43 Conn. App. 397

ADRIEN GIRARD, EXECUTOR (ESTATE OF SUSAN CONDON) v. JOSEPH WEISS

(14667)

Dupont, C. J., and O’Connell and Healey, Js.

*398Argued April 2

officially released October 1, 1996

*399 Donald J. McCarthy, Jr., for the appellant (plaintiff).

Katherine C. Callahan, with whom was Karen K. Clark, for the appellee (defendant).

DUPONT, C. J.

The plaintiff, on behalf of his decedent, Susan Condon, instituted this medical malpractice action against the defendant physician, Joseph Weiss, for allegedly misdiagnosing a malignant tumor on Con-don’s foot. The trial court rendered summary judgment in favor of the defendant, from which the plaintiff appealed. The plaintiff raises two issues in this appeal, the first of which is whether the trial court, Hon. Robert J. Hale, state trial referee,1 had authority to act on pretrial motions made by the defendant including the defendant’s motion for summaiy judgment.2 The second issue is whether the trial court properly precluded the plaintiff from offering expert testimony at trial. We conclude that the trial court did have authority to act on the defendant’s pretrial motions, but that it improperly precluded the plaintiff from offering expert testimony at trial and, therefore, we reverse the granting of summary judgment rendered in favor of the defendant.

Because we reverse the summary judgment rendered in favor of the defendant, we also consider, pursuant to Practice Book § 4013 (a) (1) (B),3 two rulings of *400the trial court that are adverse to the defendant. The defendant seeks review of (1) the denial by the trial court, Sheldon, J., of another motion for summary judgment filed by the defendant, which sought judgment on the ground that the plaintiffs action was barred by the statute of limitations, and (2) the decision by Judge Hale precluding the defendant from subsequently pleading the statute of limitations as a special defense. These claims of the defendant are intertwined. We conclude that the trial court properly determined that the plaintiffs action was not barred by the statute of limitations and that it, therefore, properly denied the defendant’s motion for summary judgment on that basis, and that the defense of the statute of limitations, on the facts of this case, should have been stricken from the defendant’s answer.

The pertinent facts and procedural history are not in dispute.4 The plaintiff instituted this action by the delivery of process to a sheriff on July 8, 1993, which was served on the defendant on July 23,1993, in accordance with General Statutes § 52-593a.5 On September 28,1993, the defendant served requests for interrogatories and production on the plaintiff. One of the interrogatories sought the identity of the plaintiffs trial expert and the opinions and subject matter on which the expert was expected to testify.6 On October 28, 1993, the day *401the responses to all of the interrogatories were due,7 the plaintiff filed a motion for extension of time to respond, which the trial court granted, thereby extending the deadline until January 1,1994. On January 7, 1994, the defendant filed a motion for nonsuit pursuant to Practice Book § 2318 because the plaintiff had not responded to the discovery requests. The trial court did not enter a nonsuit, but ordered the plaintiff to comply with the discovery requests on or before February 28, 1994,

*402On March 3, 1994, the defendant, pursuant to § 231, moved for a judgment of dismissal on the ground that the plaintiff did not comply with the court’s order to respond to the defendant’s discovery requests. On March 25,1994, the plaintiff submitted responses to the defendant’s request for interrogatories and production. In response to the interrogatory regarding the identity of the plaintiffs trial expert and the opinions and subject matter on which the expert was expected to testify, the plaintiff answered that “ [n] o decision has yet been made with respect to an expert.” The defendant viewed that answer as incomplete and, therefore, filed a motion to compel the plaintiff to answer the interrogatory. On September 26, 1994, counsel for both parties argued the motion before the trial court. The plaintiff argued that he could not disclose his experts until he had completed the defendant’s deposition. At the conclusion of oral argument, the trial court granted the motion to compel discovery and ordered the plaintiff to depose the defendant within the next thirty days and further ordered the plaintiff to disclose his expert within thirty days after the date of the defendant’s deposition. Although the plaintiff deposed the defendant on November 2, 1994, the plaintiff did not comply with the trial court’s order to disclose the identity of his trial expert.

On December 7, 1994, the defendant filed a motion for a judgment of dismissal on the ground that the plaintiff failed to comply with the trial court’s order compelling him to disclose the identity of his expert within thirty days of the defendant’s deposition. The trial court did not render a judgment of dismissal, but did issue an order precluding the plaintiff from offering the testimony of any expert at trial.

On February 8, 1995, the defendant moved for summary judgment on the ground that the plaintiff could not prevail on his malpractice claim without expert testimony. The trial court granted the defendant’s *403motion for summary judgment and issued a memorandum of decision in which it concluded: “Since the plaintiff for good reason had been precluded from offering any expert testimony at trial, the plaintiff cannot establish the standard of care, a deviation from the standard of care or even that the defendant’s conduct caused the plaintiff decedent’s death. The plaintiff cannot sustain his burden of proof and therefore the defendant is entitled to judgment as a matter of law.” Additional facts and procedural history will be discussed as they become relevant to the issues.

The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A trial court “must view the evidence in the light most favorable to the nonmoving party” when deciding a motion for summary judgment. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

The plaintiff claims that the trial court (1) exceeded its powers and lacked jurisdiction when it (a) granted the defendant’s motion to compel discovery, (b) precluded the plaintiff from offering the testimony of any expert at trial, and (c) granted summary judgment in favor of the defendant, and (2) improperly, on the mer*404its, granted the defendant’s motion for summary judgment. The defendant claims that if we reverse the summary judgment rendered in his favor, we should conclude that his prior motion for summary judgment, which was based on his claim that the statutes of limitation had run, should have been granted. He further argues that the statutes of limitations that were subsequently pleaded as a special defense should not have been stricken from his answer.

I

We first consider the plaintiffs claim that challenges the jurisdiction of the trial court. See Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993). The plaintiff claims that the trial court lacked both the authority and jurisdiction to decide the defendant’s motion to compel discovery, to order the preclusion of expert testimony, and to grant the defendant’s motion for summary judgment. The plaintiff, therefore, argues that the trial court’s rulings on these motions should be vacated. The rulings on each of these motions were issued by the Hon. Robert. J. Hale, state trial referee. The powers and jurisdiction granted to state referees are set forth in General Statutes §§ 52-4349 *405and 52-434a.10 Pursuant to § 52-434 (a) (1), the Superior Court “may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case.”

The record reveals that the defendant filed a claim for a jury trial prior to the issuance of the trial court’s orders granting the defendant’s motion to compel, precluding the plaintiff from offering the testimony of any expert at trial, and granting the defendant’s motion for summary judgment. Furthermore, a review of the record reveals an absence of any document or pleading that indicates that the trial court or any other judicial authority ever solicited or obtained the written or oral consent of the plaintiff or his attorney to have a state trial referee hear and decide any of the motions that are the subject of this appeal.

The plaintiff argues that the trial court failed to comply with § 52-434 because neither he nor his attorney consented to have a state trial referee hear and decide any of the motions that are at issue in this appeal. Moreover, the plaintiff argues that at no time did the state trial referee disclose his status and that the plain*406tiff was unaware that he was in fact a state trial referee and not a judge of the Superior Court. The plaintiff asserts that the trial court’s alleged failure to comply with § 52-434 deprives it of jurisdiction and, therefore, its orders and decisions are void, or at the very least voidable, and that the summary judgment rendered in this case should be vacated.

The defendant argues that the plaintiff impliedly consented to having the motions decided by a state trial referee because at no time did the plaintiff raise an objection to the referral of these motions to a state trial referee, and, alternatively, that a state trial referee did have jurisdiction to decide the motions at issue in this case, without the consent of the parties.

Although this case was claimed for trial by a jury, the pleadings were not closed at the time the motions at issue in this appeal were referred to and heard by the state trial referee, and, therefore, the status of the pleadings in this case was such that it was not a “civil jury case pending before the court in which the issues have been closed.” Section 52-434 makes it clear that if the issues have been closed in a civil jury case at the time of reference to a state trial referee, written consent of the parties must be obtained. The determinative issue in this appeal is whether a state trial referee is authorized to hear and decide pretrial motions involving cases claimed for a jury in which the issues have not been closed at the time of reference and which, therefore, have not been placed on the jury trial list. The statute does not specifically address this issue, and we next look to the rules of practice.

Practice Book § 43011 echoes § 52-434 and adds a sentence that permits the reference to a state trial ref*407eree of any civil jury case and “any motion for summary judgment12 and any other pretrial matter in any civil nonjury or civil jury case.” Section 430, however, is silent as to whether the consent of the parties is needed to refer pretrial motions including motions for summary judgment to a state trial referee. We conclude that the absence of a consent requirement in the provisions of § 430 regarding the referral of pretrial matters to trial referees, in contrast to the express mandate for such consent contained in the provisions of General Statutes § 52-434 (a) (1) and Practice Book § 430 regarding the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal, indicates that no such consent is necessary for the referral of pretrial matters, including motions for summary judgment. Because all of the motions at issue in this appeal were pretrial motions, including a motion for summary judgment, the trial court was authorized to hear and decide those motions without the consent of the parties. The plaintiff, therefore, had no right to have the motions at issue in this appeal decided by a judge of the Superior Court and we are, therefore, not concerned with whether the plaintiff *408impliedly consented to have these motions heard and decided by a state trial referee.

Although § 52-434 does not expressly provide that pretrial matters in both jury and nonjury cases in which the issues have not been closed may be referred to state trial referees without the consent of the parties, § 52-434 (b) does provide that the “chief justice may designate, from among state referees, trial referees to whom criminal and civil cases and juvenile matters may be referred.” (Emphasis added.) We find nothing in the language of § 52-434 that would confute the language of Practice Book § 430 in which pretrial matters may be heard by state trial referees without the consent of the parties, and we, therefore, conclude that § 430 does not exceed the powers and jurisdiction of state trial referees as provided pursuant to § 52-434.13 In this case, the state trial referee had the power to decide the motions involved in this appeal.

II

The plaintiffs next claim is that the trial court improperly precluded him from offering expert testimony at trial. Because the trial court concluded that the plaintiff could not sustain his burden of proof without the offering of expert testimony,14 the court rendered summary judgment in favor of the defendant. The plaintiff asserts that the summary judgment was improperly rendered because that judgment was predicated on the trial court’s improper order precluding the plaintiff from offering expert testimony at trial.

*409As a result of the plaintiffs failure to identify his expert and the opinions and subject matter on which the expert is expected to testify, the trial court, on January 4, 1995, issued an order precluding the plaintiff from offering expert testimony. At the time that the trial court issued its order of preclusion, Practice Book § 220 (D)15 required a plaintiff to disclose the name of his expert “within 60 days from the date the case is claimed to a trial list.” Because this case was never claimed to a trial list, the plaintiff argues that the trial court was without authority to order the disclosure of the plaintiffs expert in a shorter time frame than that established by § 220 (D).16 We agree.

*410The scope of discovery of experts is set forth in Practice Book § 220. Subsection (A) of § 220 permits a defendant, through the use of interrogatories, to discover the identity of a plaintiffs expert witness and the substance of the facts and opinions to which the expert is expected to testify. Subsection (D) of § 220 provides that, except in the discretion of the court for good cause shown, such an expert shall be precluded from offering testimony at trial if a plaintiff failed to disclose the identity of that expert within sixty days from the date the case is claimed to a trial list.

The trial court’s order precluding the plaintiff from offering expert testimony was not predicated on § 220 (D), but rather on Practice Book § 231. The question is which rule of practice controls. Pursuant to § 231, as a result of a party’s failure to comply with a discovery order “made pursuant to Secs. 222, 226 and 229,” the court may issue a number of orders “as the ends of justice require.” One such order is “an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” Practice Book § 231 (d).

Although § 231 refers specifically to a number of other sections of our rules of practice with which a party may have failed to comply,17 it does not mention Practice Book § 220. The scope of § 220 is limited to discovery involving experts and begins by stating that such discovery “may be obtained only as follows *411. . . .” (Emphasis added.) We cannot ignore the express time limitation in which to disclose the identity of a party’s expert witness pursuant to § 220 (D) because “[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . ,”18 (Citations omitted; internal quotation marks omitted.) Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054 (1988).

“Whether to exclude testimony under § 231 (d) is a matter entrusted to the sound discretion of the trial court.” Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 48, 634 A.2d 870 (1993). While this court has consistently yielded to the sound discretion of a trial court’s decision to preclude expert testimony pursuant to § 231 (d); Roberto v. Honeywell, Inc., 33 Conn. App. 619, 624-26, 637 A.2d 405 (1993), cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994); Guzze v. New Britain General Hospital, 16 Conn. App. 480, 484—85, 547 A.2d 944, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518-19, 509 A.2d A.2d 552 (1986); a review of this line of cases reveals that the preclusion of expert testimony was sought after the mandatory time period in § 220 (D) had passed or before a mandatory time period was provided for in this section.19 Cases involving a trial court’s discretion to preclude expert testimony that have been decided by our Supreme Court have also *412involved preclusion only after the mandatory time period of § 220 (D) had passed. Knock v. Knock, 224 Conn. 776, 780-83, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 793-802, 614 A.2d 414 (1992); Mulrooney v. Wambolt, 215 Conn. 211, 221-23, 575 A.2d 996 (1990); Pool v. Bell, 209 Conn. 536, 540-42, 551 A.2d 1254 (1989).

Although our case law clearly recognizes a trial court’s discretion to preclude expert testimony pursuant to § 231 (d), we conclude that such discretion does not arise under either § 231 (d) or § 220 (D)20 until a party has failed to comply with the express time limitation set forth in § 220 (D) in which to disclose the identity of an expert witness.

The language in Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996), shows that we view the provisions of § 220 (D) as a time limitation before the expiration of which a party need not disclose the identity of an expert witness and that until that period has expired, a trial court has no discretion to impose the sanction of § 220 (D), although it may exercise its discretion thereafter. In describing the procedural background, the Bourquin court noted that the trial court “had previously granted a motion to preclude such testimony after the plaintiff had failed to disclose such a witness within the deadline previously set by the court after the time limit established by Practice Book § 220 (D) had expired.” Id., 304.

This interpretation of the interplay between the trial court’s authority to preclude expert testimony pursuant to § 231 (d), and the time limitation set forth in § 220 (D) in which to disclose the identity of an expert witness, is *413logical because until the issues are joined, i.e., until the pleadings are closed and the case is claimed to the trial list, a party may not know the breadth of expert testimony that is needed to support his case or whether expert testimony is needed at all. See Puro v. Henry, 188 Conn. 301, 449 A.2d 176 (1982).

In the present case, the record reveals that at the time that the trial court issued its order precluding the plaintiff from offering expert testimony at trial, the pleadings were not closed and the case was not claimed to a trial list. Because the time limit in § 220 (D) had not expired, we conclude that the trial court was not authorized to preclude the plaintiff from offering expert testimony at trial and therefore reverse the trial court’s decision to render summary judgment in favor of the defendant.

Ill

Because we reverse the summary judgment rendered in the defendant’s favor, we next consider the prior adverse ruling that denied the defendant the summary judgment that he sought on the ground that the plaintiffs action was time barred. We also consider the adverse ruling in which the trial court overruled the defendant’s objections to the plaintiffs requests to revise, thereby deleting special defenses relating to statutes of limitations from the defendant’s answer.

On March 10,1994, the trial court, Sheldon, J., denied the defendant’s motion for summary judgment. The motion’s sole basis was that General Statutes § 52-58421 *414barred the action. Several additional facts are needed to resolve the question of whether the denial was proper. The alleged negligence of the defendant occurred on June 20, 1990, and the diagnosis of malignancy was made in September, 1990. The decedent died on April 9,1992.22 On April 8,1993, the plaintiff obtained an automatic ninety day extension of the statute of limitations pursuant to General Statutes § 52-190a (b),23 concerning negligence actions against health care providers, and suit was instituted on July 8, 1993. At the time the summary judgment was decided, the pleadings were not closed nor was closure required by the rules of practice; see Practice Book § 378; and the case had not been placed on a trial list or assigned for trial. After the motion for summary judgment was denied, the defendant filed a special defense of statutes of limitations. The plaintiff then filed requests to revise attacking the defendant’s special defense that the plaintiffs action was time barred, and sought a revision of the special defenses by deletion of the special defense of statutes of limitations. The defendant objected to the requests to revise and Judge Hale overruled the objections on October 13, 1994, thereby striking the special defense of statutes of limitations. The pleadings were closed upon the filing of the plaintiffs reply to the defendant’s remaining special defense of contributory negligence on March 13, 1995.

*415In deciding the defendant’s motion for summary judgment, the trial court first discussed whether a motion for summary judgment was a proper procedural vehicle to attack the timeliness of the plaintiffs action and concluded that it was not, but determined that, if it were, the plaintiffs action was timely and that summary judgment should be denied on the merits. The trial court relied on Forbes v. Ballaro, 31 Conn. App. 235, 624 A.2d 389 (1993), to conclude that the defendant’s motion was not properly before the court.

In Forbes, the defendant had not pleaded the special defense that the plaintiffs action was barred by a statute of limitations, but instead sought to have the plaintiffs complaint stricken prior to pleading such a special defense. We held, on the facts of that case, that “[a] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.” Id., 239. We also concluded that there are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted. If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed. Id., 239-40.

The question we must resolve is whether a motion for summary judgment and a motion to strike based on the time barring of a plaintiffs cause of action are to be treated similarly such that in either case the raising of the issue generally would be premature prior to a pleading asserting a time limitation as a special defense. The issue arises only in cases that apply Practice Book § 379, as effective October 1, 1992, because until that date there was a requirement that the pleadings be *416closed before seeking a summary judgment. A motion to strike should not generally be used to assert a special defense because the facts in a plaintiffs complaint must be taken as true for purposes of the motion, without considering contrary facts proffered by a defendant to show that the action is time barred and because until the pleadings are closed the plaintiff has not had an opportunity to plead in avoidance of the statute.

If we were to hold that a motion for summary judgment cannot be made prior to pleading a statute of limitations as a special defense,24 we would negate that portion of § 379 that provides that a motion for summary judgment can be made “at any time,” without the necessity of closing the pleadings. If a defendant chooses to postpone raising a time limitation as a bar to the plaintiffs cause of action by way of a special defense, in favor of obtaining an earlier disposition by way of summary judgment, we see no reason why he should not be allowed to do so. Limitation defenses are procedural and can be waived. Orticelli v. Powers, 197 Conn. 9, 16, 495 A.2d 1023 (1985).

Facts that are not alleged in a complaint may be added to the procedural mix and facts in avoidance of the statutory time limitation of action can be considered in a motion for summary judgment, whereas they cannot be considered in a motion to strike. On a motion for summary judgment, the questions are whether there is any material fact in issue, and, if not, whether the mov-ant is entitled to judgment as a matter of law. The key difference between the two motions is that, when considering a motion for summary judgment, facts in addition to those asserted in the complaint can form the basis for an argument that there is no material fact in dispute that would prevent judgment as a matter of *417law.25 When there is no such material fact in dispute or where there is agreement of the parties as to every relevant fact, we conclude that the pleadings need not be closed in order to move for summary judgment. See Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956). Here, the parties do not disagree as to the facts, and we therefore hold that the trial court could properly consider the motion for summary judgment.

After the motion for summary judgment was denied, the defendant filed special defenses raising some of the same statutory limitations as were raised in his motion for summary judgment. The plaintiff requested revisions that, in effect, called for the deletion of any special defense relating to any statutory provision that claimed the plaintiffs action was time barred. The request to revise was an inappropriate way to contest the special defenses because none of the reasons listed in Practice Book § 147,26 which addresses requests to revise, is present in this case. Instead, the plaintiff should have moved to strike the special defenses because he sought a test of their legal sufficiency. See Practice Book § 152 (5); see also Forbes v. Ballaro, supra, 31 Conn. App. 235. We do not condone the misuse of the rules of practice, but, in the interest of judicial economy, we will treat the request to revise as a motion to strike.

*418The court, at the time it considered the defendant’s “Objections to Revise,” had all of the appropriate statutes of limitations before it. Because § 52-594 requires a consideration of whether the “time limited for the commencement” of the action had elapsed at the time of the plaintiffs decedent’s death, both that statute and § 52-584, which establishes that time limitation, must be considered together. Additionally, the timeliness of the plaintiffs action cannot be resolved without also considering § 52-190a (b).

Section 52-584, as pertinent to this case, provides time limits for actions of malpractice of a physician and allows two years from the date when the injury is first discovered for the institution of suit. The parties agree that the injury was first discovered before two years had elapsed and that, at the time of the decedent’s death on April 9, 1992, the statute of limitations in § 52-584 had not run. Section 52-594 provides that if the limit of time to bring the decedent’s action has not elapsed at the time of the death, an action may be instituted within one year from the date of death. The suit, therefore, should have been brought by April 9,1993. Section 52-190a (b) grants an automatic ninety day extension of the statute, making it clear that the ninety days is in addition to other tolling periods. Suit here was instituted on July 8, 1993, and is not time barred.

As a matter of law, we hold that the defense of limitations should be stricken from the defendant’s answer.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion

In this opinion the other judges concurred.

Girard v. Weiss
43 Conn. App. 397

Case Details

Name
Girard v. Weiss
Decision Date
Oct 1, 1996
Citations

43 Conn. App. 397

Jurisdiction
Connecticut

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