Opinion
No. NNI-CV-04-4001430-S
October 30, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION IN LIMINE REGARDING LOST EARNING CAPACITY
This memorandum of decision addresses the motion in limine submitted by the defendant, William Caporossi, on October 18, 2006. The motion relates to trial of a personal injury action brought by the plaintiff, Bennett A. Paul, who alleges he suffered losses as the result of the collision between the bicycle he was riding and the automobile operated by the defendant. Through the motion, the defendant sought to preclude the plaintiff from introducing evidence testimonial and documentary evidence "related to the Plaintiff's claim for lost income arising out of the injuries he claims he sustained in the collision giving rise to this action." Defendant's Memorandum of Law in Support of the Defendant's Motion in Limine (October 18, 2006). The defendant's written and oral arguments directed the focus of this motion to one fundamental issue: In the pending litigation, the defendant seeks to bar the plaintiff from presenting any evidence that he lost "earning capacity" as the result of the collision at issue. On October 26, 2006, after hearing, this court issued bench orders denying the motion in limine and stating its reasons therefore, while also granting specified relief to the defendant. This written memorandum of decision encompasses the court's conclusions as to the parties' pivotal claims of law and the factual basis for the court's decision, as contemplated by Practice Book § 64-1.
Trial of the underlying personal injury action matter commenced on October 19, 2006, one day after the defendant's motion was filed. On the first day of trial, the court entertained preliminary argument from the parties and allowed the plaintiff to present an initial offer of proof on the economic loss issues raised through the motion in limine. The court reserved resolution of the motion, and the plaintiff commenced presentation of evidence in support of the general allegations of negligence, recklessness, causation and damages as raised in his complaint.
The Meriden Superior Court Standing Order for Civil Jury Trials, then in effect, required that all motions in limine "must be filed at least one week prior to the start of trial." (Emphasis in the original.)
Paragraph 9 of the complaint dated November 8, 2004, asserts: "As a further result of said collision and said negligence of the defendant William P. Caporossi, plaintiff Bennett A. Paul has suffered lost earnings and has incurred a loss of earning capacity." (Emphasis added.) In his answer and special defenses dated February 17, 2005, the defendant denied the allegations raised in Paragraph 9.
While other evidence progressed, the parties continued to pay close attention to the legal and factual issues raised in the motion in limine. The defendant's motion in limine had been accompanied by a thorough and comprehensive Memorandum of Law. On October 23, 2006, the plaintiff further addressed the issues raised in the motion in limine by submitting a well-reasoned and researched Memorandum of Law in Support of Lost Earning Capacity. On October 24, 2006, the defendant submitted his Reply Memorandum Regarding Lost Wages raising additional pertinent issues of law. On October 25, 2006, the plaintiff submitted his Sur-Reply re: Lost Earning Capacity proposing additional legal bases for allowing the evidence at issue.
On October 25, 2006, the court received evidentiary offer of proof from the plaintiff-witness concerning the status of the dental practice and business in which the plaintiff was engaged at or about the time he sustained the injuries in question. After direct examination, the plaintiff was subjected to strenuous cross-examination on the offer of proof. In addition, counsel for the plaintiff presented a summary offer of proof related to testimony ostensibly to be provided by William Woods, a CPA who provides professional accounting services for the plaintiff individually and for the plaintiff through his business endeavor. The court also accepted documentary exhibits during the offer of proof, including: a letter from William Woods, dated May 24, 2004 (Court Exhibit 4); Plaintiff's Answers to Defendant's Discovery, dated March 30, 2005 (Court Exhibit 5) (includes responses to interrogatories and to production requests); Form JD-ES 47, Plaintiff's Pretrial Memo with attachments, dated January 27, 2006 (Court Exhibit 6); a definition of "Loss of earning capacity" from Black's Law Dictionary (Court Exhibit 7); and a copy of the Plaintiff's Expert Disclosure of William Woods, dated March 21, 2006, contained in the court file as Pleading #121 (Court Exhibit 8).
Objectively viewed and taken as a whole, the proffered evidence could establish, inter alia, that during the time period in question, the plaintiff operated his dental practice as a professional corporation known as Bennett A. Paul, P.C.; that he was employed by this professional corporation at the time of the incident and when he sustained the injuries alleged; that he received salary and bonuses from the professional corporation on a regular basis; that his work product, providing dental services and running his dental office, provided income for the professional corporation; that he and the professional corporation filed separate income tax returns; and that as an individual, the plaintiff considered himself to be one and the same as his professional corporation, insofar as income was concerned. The parties stipulated that the court could take judicial notice of General Statutes §§ 33-182a through 33-182l, governing the status, privileges and responsibilities of professional corporations in this state.
The plaintiff further proffered evidence that as the result of the injuries he sustained in the collision, he was required to miss 7 1/2 days of income-producing work time; that he was required to reschedule patients whose appointments fell on those days; and that he was unable to provide income for his professional corporation on those days when he was unable to work; that during this 7 1/2-day period following the April 2004 incident, although he was neither generating revenues ordinarily associated with his personal performance of services nor making associated contributions to the corporation's asset base, his dental practice still had to pay expenses for overhead and staff services.
Following the offer of proof on October 25, 2006, the court heard extended argument from both parties on the hotly contested issues raised through the motion in limine. Those arguments continued on October 26, 2006. Distilled, the defendant's arguments in support of the motion in limine fall into three categories. First, the defendant asserts that the proof proffered by the plaintiff is not legally competent to support a claim of lost earning capacity. Second, the defendant asserts that he did not receive due notice of the plaintiff's lost earning capacity claim, and that he would be unfairly prejudiced if this evidence was presented to the jury. Third, the defendant asserts that because of the plaintiff's untimely submission of the lost earning capacity claim, he is entitled to remedies including preclusion of all related evidence.
I. Loss of Earning Capacity is a Lawful Element of Damages Under the Circumstances of this Case
Despite the defendant's vehement claims to the contrary, it is appropriate for the plaintiff to submit evidence of lost earning capacity as an element of economic damages caused by the collision in question. Self-employed individuals may both receive a salary and/or bonus constituting earned income and may also make contributions to the aggregate asset base from which that salary and/or bonus is paid. Under such circumstances, if a plaintiff has suffered a measurable financial loss as the result of tortious conduct by a defendant, he may properly be permitted to present evidence of both lost salary and/or bonus and of any lost capacity to earn income which would have provided contributions to that aggregate asset base from which those distributions were made.
The plaintiff's proffer indicates that his limited evidence would demonstrate that he suffered lost earning capacity for a specified period of time, approximately 7 1/2 days following the incident. His damages are liquidated in nature, as he asserts that he lost ability to produce income for contribution to his professional corporation, the source of his personal income, in the total amount of twelve thousand to eighteen thousand dollars during that period. The plaintiff's proof will establish that the professional corporation paid a constant amount of salary and/or bonus to the plaintiff in the amount of three hundred thousand dollars during the immediate years prior to, including and following this collision. Under the totality of the circumstance, it falls to the jury to determine the weight, if any, to be attributed to the plaintiff's claim of lost capacity to earn income which would be used to make contributions to his business's asset base, whether or not those assets were distributed to him in any one year.
In reaching this determination, the court relied upon related and well-established principles of law. In circumstances where a claim for lost earning capacity is limited in duration and the evidence is sufficient to support a finding that as a result of tortious conduct the plaintiff was deprived of the opportunity to actively engage in operating a previously established business, a jury may properly be charged "that the loss of earning capacity was an appropriate element of damages, that the loss of net profits of the plaintiff from his business was one measure of determining the amount of the loss, and that the amount of the loss could . . . be considered as long as all of the evidence afforded a basis for a reasonable estimate." Mihalek v. Cichowski, 4 Conn.App. 484, 487, 495 A.2d 721 (1985), relying upon Delott v. Roraback, 179 Conn. 406, 411-12, 426 A.2d 791 (1980). CT Page 20117
There is no precise mathematical formula to calculate damages for loss of earning capacity. See Jerz v. Humphrey, 160 Conn. 219, 221, 276 A.2d 884 (1971). "Loss of earning capacity is . . . an . . . uncertain area for the assessment of damages . . . In determining whether there is a loss of earning capacity `[t]he essential question is whether the plaintiff's capacity to earn [has been] hurt.' . . . Wages before and after an accident are only material as guides to the trier." (Citation omitted.) Id., 222. The assessment of such damages does not depend on the plaintiff's receipt of any wages at all because it is the capacity to earn that governs the amount of damages to which a plaintiff is entitled. See Lashin v. Corcoran, 146 Conn. 512, 514, 152 A.2d 639 (1959). "Recovery of damages for loss of earning capacity is not merely a recovery of wages lost. Salary or wages earned at the time of the injury are merely evidential facts, relevant but not conclusive, in the inquiry as to the pecuniary value of the impairment of earning capacity which an injured person has sustained." Id., 514. In order to recover for an impairment of earning capacity, there must be a reasonable probability that the injured person did sustain such an impairment and that the evidence allows a finding of the reasonable estimate of the dollar amount. Mulligan v. Rioux, p. 710, 38 Conn.App. 546, 553, 662 A.2d 153 (1995). In 4 Restatement (Second), Torts § 920A, comment (b) (1979), it is noted that the plaintiff is entitled to damages for the future loss or the impairment of earning capacity. A plaintiff is entitled to the difference between the value of the impairment, given the injury, and what it would have been if there had been no harm to the plaintiff by the defendant. Id., § 924, comment (d). That sum should be reduced to its present value. Id., § 913A, comment (a). In evaluating the loss, the fact finder should take into account the type of work the plaintiff had done before the accident and the type of work he will be able to do after the accident in view of his physical condition, education, experience and age. Id., § 924 comment (d).
(Emphasis added.) Nunez v. Palmer, 96 Conn.App. 707, 799-10 (2006) (affirming generally that money paid to a plaintiff from a source other than the defendant cannot be set off against an impairment of earning capacity due to a defendant's wrongful act).
In support of his motion in limine, the defendant emphatically relies upon Daigle v. Metropolitan Property and Casualty Insurance Co., 60 Conn.App. 465, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). However, the facts of that matter differ markedly from those of the present case, rendering Daigle of only oblique value in assessing whether the plaintiff should be afforded an opportunity to present his lost earning capacity claim. In Daigle, for instance, the plaintiff sought to utilize his income tax records to substantiate a claim that injuries caused by the defendant had caused an increase in his business expenses with a concomitant loss of wages or earning capacity. Daigle v. Metropolitan Property and Casualty Insurance Co., supra, 60 Conn.App. 469. The Appellate Court concluded that those tax records had been properly excluded from trial, as they had "also showed an increase in his net income for each year after the accident." (Emphasis added.) Id. 469, 470. Under those circumstances, the Appellate Court reasoned that the tax records could not provide the jury with a reasonable basis for finding "an alleged loss in wages or earning capacity due to his injuries." (Emphasis in the original.) Id., 70.
On the Daigle appeal, the Supreme Court expressly declined to even commence addressing the conclusions or reasoning utilized by the Appellate Court in confirming exclusion of the tax records at issue: "We conclude that, because the plaintiff did not enter into the record for identification purposes the income tax returns that he had intended to offer as proof, we cannot properly review his claim." Daigle v. Metropolitan Property and Casualty Insurance Co., supra, 257 Conn. 363. "Inasmuch as the plaintiff failed to make his income tax returns part of the record, [the Supreme Court was] left to speculate as to the factual predicates for his argument" on the issue of lost earning capacity as it related to income tax records alone. Id., 365.
Unlike the factual basis in Daigle, the plaintiff in the pending action does not claim "that his income tax returns were crucial to demonstrate . . . lost earning capacity." Daigle v. Metropolitan Property and Casualty Insurance Co., supra, 257 Conn. 364. Here, the plaintiff sought to rely on his own testimony related to lost earning capacity, explicated by testimony from Woods. The plaintiff's offer of proof provides sufficient basis from which the jury could reasonably ascertain the nature, duration, and extent of the claimed economic loss for the 7 1/2 days in question, if it determined that testimonial evidence to be credible and reliable in relation to the evidence as a whole. It remains axiomatic that "`[a] party who seeks to recover damages . . . [on the ground of lost earnings or earning capacity] must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss.' Bombero v. Marchionne, 11 Conn.App. 485, 489, 528 A.2d 396, cert. denied, 205 Conn. 801, 529 A.2d 719 (1987)." Daigle v. Metropolitan Property and Casualty Insurance Co., supra, 60 Conn.App. 469-70. It falls to the jury to determine whether to credit, or to discredit, such a liquidated claim as that proffered by the plaintiff.
The defendant's position receives little succor from his additional reliance upon Nunez v. Palmer, supra; the court declines to accept the defendant's vigorously promoted but restrictive reading of this recent Supreme Court opinion, which addressed a plaintiff's claim that he lost earning capacity as the result of a second accident which followed injuries sustained in a first incident. In the present case, the defendant asserts that Nunez allows the jury to consider evidence of earning capacity only as it relates to future lost capacity, to the exclusion of liquidated loss of earning capacity in the past. To the contrary, the very language of Nunez cited by the defendant overtly contemplates reliance upon the provisions of the Restatement (Second) which catechize that, in the alternative, a plaintiff is entitled to "damages for the future loss or the impairment of earning capacity" without limiting issues of earning capacity to a subsequent occasion. Nunez v. Palmer, supra, 96 Conn.App. 710.
Moreover, Nunez v. Palmer relies upon venerable authority that expressly anticipates measuring past impairment of earning capacity when calculating an appropriate damage award. As noted in Lashin v. Corcoran, supra, cited in Nunez v. Palmer, supra: "One who has been injured though another's fault and whose earning capacity has been impaired by the injury is entitled to recover damages for the loss sustained by reason of such impairment . . . The essential question is whether the plaintiff's capacity to earn was hurt. If it was, she is entitled to damages for any loss, past or future, attributable with reasonable probability to the impairment in her earning . . . Recovery of damages for loss of earning capacity is not merely a recovery for wages lost. Salary or wages earned at the time of the injury are merely evidential facts, relevant but not conclusive, in the inquiry as to the pecuniary value of the impairment of earning capacity which an injured person has sustained." (Citations omitted; emphasis added.) Lashin v. Corcoran, supra, 514. It is of interest that in Lashin, the court approved financial recovery for an injured plaintiff who had contributed services to a "business of which she was a part owner and from which she derived income in the form of a share of the net profits and drew a weekly amount against that share. In such a situation, the value of her earning capacity is to be measured by the value of the services she contributed to the business" without restriction to the actual amount of wages or draw she may have received during the period in question. (External citations omitted.) Id., 514-15.
In further support of his motion in limine, the defendant urges the court to find that the plaintiff is not competent to raise the claim for lost earning capacity at issue, given his status as a member or employee of a professional corporation who has brought a personal complaint without a separate claim on behalf of his business. The defendant asserts that ". . . the Plaintiff is actually an employee of a professional corporation not a party to this action . . . Consequently, while the corporate entity may have sustained a loss of revenue because of Dr. Paul's absence, Dr. Paul did not personally sustain any such loss of income. Since the corporation which employs Dr. Paul is not a party to this action, Dr. Paul cannot make a claim for loss of income or revenue on his behalf." Defendant's Memorandum of Law in Support of the Defendant's Motion in Limine (October 18, 2006).
Guided by the applicable principles of law, the court declines to accept this aspect of the defendant's argument. As previously discussed, the factual circumstances presented in Lashin v. Corcoran, supra, are clearly apposite to the facts of the present case. Nunez v. Palmer, supra, also reminds us that if there is evidence sufficient to support a reasonably probable estimate of the dollar amount lost as the result of an impairment of earning capacity, the jury may be permitted to ascertain whether or not to credit such evidence in finding the facts of the case. Id., 96 Conn.App. 709. In addition, a close reading of Daigle v. Metropolitan Property Casualty Insurance Co., supra, teaches us that an offer of evidence related to lost earning capacity is not dependent upon tax returns that show a loss of income after an accident. Id., 257 Conn. 363 fn.5. As Justice Zarella explained, "[t]he mere fact that a party's income tax returns show an increase in net income after an accident does not necessarily mean that party has not sustained a loss of earning capacity." (Emphasis added.) Id., 257 Conn. 363 fn.5. Applying these legal measures, the court is constrained to conclude that the plaintiff is entitled to present the jury with evidence competent to establish that the plaintiff may have received a salary during the year of the accident which was consistent with the salary he received during adjacent years; that as the result of the injuries sustained in the accident he lost the ability to work on 7 1/2 days; and that as the result of that lost ability to work, he lost the ability to produce income ranging from twelve to eighteen thousand dollars.
The defendant raises another legal argument in opposition to the plaintiff's proof of lost earning capacity; he claims that only the defendant's professional corporation can bring forth the claim of lost earning capacity at issue. In addressing this basis for the defendant's motion, the court has considered the statutory scheme enabling individuals to operate professional corporations for the provision of services such as those extended to patients by the plaintiff in this case. See §§ 33-182a through 33-182l, supra. The professional corporation statutes, read as a whole, contemplate a service provider such as the plaintiff identifying himself personally and his corporation professionally as being one and the same for earning capacity purposes, all the while receiving anticipated protection from legal claims for contract and tort actions arising from the provision of such services. Thus, the jury in this case is entitled to determine whether or not it will credit the plaintiff's testimony that insofar as he and the professional corporation at issue are concerned, they are identical: as presented in his offer of proof the plaintiff is the sole owner of the corporation at issue; he alone determines what salary is paid to him by the corporation from the corporation's earnings, which he and he alone generates personally through his work production and through the work of the corporation's other employees.
The admissibility of the plaintiff's lost earning capacity, relative to the corporate entity through which he legally does business, is buttressed by the factual comparison to the circumstances presented in Seguro v. Cummiskey, 82 Conn.App. 186, 844 A.2d 224 (2004). While not dealing with a professional corporation, in Seguro v. Cummiskey, the evidence showed that, in practice, the plaintiff maintained the primary responsibility of performing the newspaper delivery work at issue and that he had received the wages therefrom even though the newspaper route itself was "owned" not by the plaintiff personally, but by his wife. Because the plaintiff demonstrated a "specific, personal and legal interest" in the income he was capable of accruing through delivering those newspapers, he was entitled to show that he had lost the capacity to accrue this income following his accident. Id., 82 Conn.App. 199. The Seguro plaintiff had "standing" to pursue his economic loss claim even though the loss technically adhered to his wife, who owned the newspaper delivery route at issue. Id. Similarly, the plaintiff in the present matter has "standing" to seek reimbursement for his lost earning capacity from the defendant.
In addressing this aspect of the parties' contest over the issue of lost earning capacity, the court notes with interest the plaintiff's proffer of Commission on Human Rights and Opportunities v. Department of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV92-0703593 (O'Neill, J., January 12, 1993) (approving claim for plaintiff's lost earning capacity claim, although the damage claim was "more appropriately [identified as] one of loss of income in the form of a share of the profits of the [limousine] corporation, as measured by the value of the Complainant's services to the business as a driver."
The defendant also argues that even if the plaintiff should be permitted to present evidence of his 7 1/2 days of lost earning capacity, his offer of proof fails to meet the requisite test for establishing the "market value" of whatever dental services he could have produced during that period. The plaintiff himself has proffered testimony that his dental practice bills for his time and services; that on average, from twelve thousand to fifteen thousand per week is billed out by his corporation for his customary 4 1/2-day work week; and that if he couldn't work, the dental business was unable to bill for the plaintiff's professional services. The plaintiff further testified at the offer of proof, that most often, his patients paid for his services as billed. Thus, the plaintiff can testify as to what the market will bear insofar as charges for his dental services are concerned.
The law does not support the defendant's argument that the plaintiff's testimony of the value of his own services, thus stated, is insufficient. Rather, while it would permit such to be tendered, the law does not require extrinsic or independent evidence of the "market value" of the plaintiff's dental product. The plaintiff's dental work is his product, his property. "The law in Connecticut is well settled as to the competency of the owner of property to testify as to its value . . . [T]he competence of a witness to testify to the value of property may be established by demonstrating that the witness owns the property in question . . . The rule establishing an owner's competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered . . . and the common experience that an owner is familiar with her property and knows what it is worth . . . Thus, [t]he owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy." (Internal quotation marks and internal citations omitted.) State v. Browne, 84 Conn.App. 351, 387-88, 854 A.2d 13 (2004). Thus, the weight of the plaintiff's evidence of the value of his services, here, his lost earning capacity, is to be determined by jury.
II. Adequate Notice of the Plaintiff's Lost Earning Capacity Claim was Provided under the Circumstances of this Case
In support of his motion in limine, the defendant claims that he received no notice that the plaintiff would raise a claim of "lost earning capacity" at trial of this matter. To the defendant's credit, an objective review of the pleadings and pre-trial procedure does establishe that the plaintiff did not provide him with a perfect indication that this type of evidence would be presented to the jury. However, fairly reviewed, that same data base indicates that the plaintiff extended sufficient, if somewhat inconsistent, indication of his intentions; that the defendant was given adequate, if not abundant, opportunity to discover and explore the nature and extent of the plaintiff's lost earning capacity claim; and that the plaintiff met the threshold for disclosure called for under the circumstances of this case.
First, the complaint of November 8, 2004, initially raises the issue of the plaintiff's lost earning capacity claim. Paragraph 9 of the first count of the complaint alleges that as the result of the defendant's negligent conduct, the plaintiff "suffered lost earnings and has incurred a loss of earning capacity." This paragraph is incorporated into the second count of the complaint, based on allegations of reckless conduct. Thereafter, under date of March 30, 2005, in responding to the defendant's interrogatories, the plaintiff answered inquiry 23(e) by stating: "I missed one and one half weeks of production following the accident for an estimation of loss of earnings in the range of $15,000-$18,000." The plaintiff answered inquiry 23(f) by stating: "I was unable to work for one week following the accident, and my ability to work several weeks after was significantly lessened due to the injuries incurred. After these responses, the plaintiff answered "No." to inquiry 24, which asked "Do you claim an impairment of earning capacity." (Court Exhibit 5.)
See footnote 2.
On March 21, 2006, the plaintiff disclosed William Woods as an expert witness, stating, in pertinent part, "Mr. Woods will testify as to Bennett Paul's loss of earning capacity and lost economic opportunities resulting from his accident on April 10, 2004, as set forth in his letter dated May 24, 2004, a copy of which has previously been produced to the defendant." (Court Exhibit 8; File #121.) The letter referenced in the expert disclosure stated, in pertinent part: "Based upon our review of Dr. Paul's billing records, as well as our experience with his past revenue generation, we estimate that Dr. Paul generates approximately $12,000 per week in billings. As he was out of work for approximately one and a half weeks, we estimate his lost revenues to be in the range of $15,000 to $18,000." (Court Exhibit 4.) Against these disclosures, the court has balanced the information submitted by the plaintiff on the Form JD-ES 47, Plaintiff's Pretrial Memo with attachments, dated January 27, 2006, wherein the plaintiff answered block 5, inquiring about "Wages" was follows: "lost wages $18,000 — future capacity N/A. (Court Exhibit 6.)
It is uncontroverted that the Trial Management Conference for this case was held at the Meriden Superior Court on September 28, 2006, in the period immediately preceding jury selection. The defendant protests that "[t]he day before the Trial Management Conference [he] received for the first time the Plaintiff's W-2 forms and learned that the Plaintiff is actually an employee of a professional corporation not a party to this action. Defendant's Memorandum of Law in Support of the Defendant's Motion in Limine (October 18, 2006). Nonetheless, viewed objectively and as a whole, the plaintiff's complaint, interrogatory responses and expert disclosures provide adequate notice of the plaintiff's intention to present claims related to lost earning capacity at trial of this civil matter. The plaintiff's disclosures were consistent with his allegations that as the result of the defendant's conduct, he lost the capacity to work for a time certain, here, the 7 1/2 days asserted as the basis for this aspect of his economic loss. On balance, the defendant has failed to demonstrate sufficient basis for asserting surprise and/or undue prejudice given the pattern of disclosures at issue here. CT Page 20125
III. Remedies Appropriate under the Circumstances of this Case.
The defendant also asserts that because of the plaintiff's untimely submission of the lost earning capacity claim, he is entitled to remedies including preclusion of all related evidence including records. In relevant part, the defendant moves the court for "an order barring the Plaintiff at the time of trial from introducing into evidence documents regarding the alleged . . . lost income, lost billing, lost profits or other financial information related to the Plaintiff's claim for lost income . . . In addition, the Defendant moves this court for an order barring any testimony by any witness, including but not limited to, the Plaintiff and his accountant, William C. Woods, regarding lost billings, lost income, lost profits, overhead costs, labor costs or other financial losses the plaintiff claims he incurred, as a result of the collision on which this action is based." Defendant's Memorandum of Law in Support of the Defendant's Motion in Limine (October 18, 2006).As previously found, the plaintiff provided adequate, albeit not perfect, notice of his intention to claim loss of earning capacity during the course of this trial. The defendant had adequate notice that William Woods would be tendered as an expert witness on this subject. The defendant learned of the specific connection between the plaintiff and his professional corporation at the Trial Management Conference held on September 28, 2006. Prior to trial, nonetheless, the defendant did not pursue the issue of Woods's opinions beyond those disclosed in his letter of May 24, 2004. (Court Exhibit 4.) The defendant instead tendered his motion in limine approximately three weeks following receipt of this information, a few days beyond the deadline for submission of such motions as was required by the then effective Meriden Superior Court Standing Order for Civil Jury Trials. Given the remedies available, under all the circumstances of this case, the court is unable to identify any "undue prejudice" to the defendant as the result of the plaintiff's assertion of his lost earning capacity claim.
See footnote 1.
Accordingly, in the interest of fairness and comity, balancing the plaintiff's assertion of adequate disclosure against the defendant's assertion of surprise, as a remedy appropriate under the circumstances of this case, the court will allow the defendant adequate and sufficient time to examine and explore the nature and extent of the plaintiff's lost earning capacity claim, prior to calling for cross-examination of witnesses or impeachment of documents the plaintiff may proffer in support of this claim. The defendant is hereby offered the opportunity to utilize reasonable continuances following the presentation of direct testimony from the plaintiff and/or Woods, to allow for subpoenas duces tecum to be issued to procure relevant documentation of the lost earning capacity claim; to allow for discovery depositions to be taken of the plaintiff and/or Woods on this subject; and to enable the defendant to prepare for cross examination on this subject, if he chooses. Should the defendant request additional continuance for additional time to obtain a rebuttal expert, the court will consider this request in due course.