Epright sought to recover underinsured motorist benefits from Liberty Mutual in connection with a motor vehicle collision. Epright allegedly sustained multiple injuries, including an injury to her left shoulder. During her deposition, Epright testified that she had experienced shoulder pain since the date of the accident.
Liberty Mutual retained an orthopedic surgeon, James Depuy, to provide testimony regarding damages and causation. During the deposition, Depuy stated that he had reviewed all of Epright’s medical records and that they contained no indication that Epright complained of shoulder pain until well after the accident. Depuy’s opinion was that the medical treatment Epright received with respect to her left shoulder was not related to the motor vehicle accident.
Kevin Brignole, an attorney working for the firm representing the Plaintiffs, asked Depuy whether it would change his opinion if Depuy learned that Epright in fact had been complaining of shoulder pain since the date of the accident, to which Depuy responded that such information might change his opinion.
Subsequently, without informing counsel for Liberty Mutual, Timothy Brignole, another attorney at the firm, instructed his paralegal, Sandra H. Bryan, to contact Depuy’s office to schedule an appointment for Depuy to perform a medical examination on Epright for a fee. That same day, Kevin Brignole filed a detailed expert disclosure with the trial court, indicating that Epright intended to call Depuy as an expert witness.
Thereafter, Depuy conducted the medical examination of Epright, and opined that Epright’s shoulder injury was causally related to the accident.
This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation.
Discussion by the Court
The trial court imposed monetary sanctions after finding that attorneys with the firm engaged in impermissible ex parte communications with Depuy. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communication between an attorney and an opposing party’s disclosed expert witness.
The firm representing the Plaintiffs argued that neither Connecticut case law nor the rules of practice limit or prohibit a Plaintiff from contacting and thereafter disclosing the Defendant’s disclosed expert witness as the Plaintiff’s own expert.
In 2008, the judges of the Superior Court amended Practice Book § 13-4, which amendment became effective in 2009. Prior to that time, the rule expressly limited the procedure for communication with an opposing party’s expert to interrogatories to an opposing party and/or formally noticed depositions of the expert.
In 2009, the rule was amended, and the language that limited the methods of communication with an opposing party’s expert was removed. The current rule did not include the language that existed in the rule before the 2009 amendments, which expressly confined communication with an opposing party’s disclosed expert to interrogatories served on the opposing party or depositions.
To conclude, the Connecticut Supreme Court affirmed the judgment of the Appellate Court.
Held
The Connecticut Supreme Court agreed with the Appellate Court that the trial court improperly imposed sanctions on the firm for conducting ex parte communications with an expert witness previously disclosed by Liberty Mutual.
Key Takeaway:
This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communications between an attorney and an opposing party’s disclosed expert witness. The Connecticut Supreme Court agreed and, accordingly, affirmed the judgment of the Appellate Court.
Case Details:
| Case Caption: | Epright v. Liberty Mutual Insurance Company |
| Docket Number: | SC 20751 |
| Court: | Connecticut Supreme Court |
| Order Date: | July 11, 2024 |
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