Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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1 I se v-01009sSRU I ocument 107 Filed 11/03/2005 Page 1 of 4
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JOSEPH ATTIAS & HAIM ATTIAS : CIVIL NO. 3:03 CV 01009 (SRU)
Plaintiffs ;
PATRONS MUTUAL INSURANCE :
COMPANY OF CONNECTICUT :
Defendant : Octobergi 2005 I
PLAINTIFFS’ OBJECTION TO DEFENDANT’S

MOTION TO PRECLUDE PLAINTIFFS’ EXPERT WITNESS

LOUIS E. RANCIATO
I The Pla1ntiffs’ Hiam and Joseph Attias hereby object to the Defendant’s motion to preclude the
plaintiffs’ expert witness Louis E. Ranciato on the grounds that, no trial date has been scheduled in this
matter, no prejudice would occur to the defendant in allowing this belated disclosure of an expert witness,
yet preclusion of this expert would prejudice the plaintiffs} ability to prosecute their case and respond to the
defendant’s defense of said case. Additionally, good cause exists to permit the plaintiffs the belated
disclosure of this expert witness.
As stated by the defendant, the parties entered into a scheduling order, endorsed by the Court,
which provided for the completion of discovery by August 31, 2004. No discovery has been undertaken
since said time, however discovery disputes continued until resolved by the Court at a hearing on July 27,
2005.* At that hearing the Court additionally allowed the defendants to file an amended counterclaim
against the plaintiffs. Said amended counterclaim was filed on August 29, 2005 and set forth three (3)
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j se 3:03-cv-01009-SRU Document 107 Filed 11/03/2005 Page 2 of 4
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separate causes of action against the plaintiffs, verses the one cause of action that had been filed in response -
to the Court’s order on the plaintiff motion for more definite statement on December l7, 2003.
Also at the July 27, 2005 hearin the Court ruled on the defendant’s motion for summary
judgment on the issue of whether the plaintiffs’ can seek replacement cost coverage as an element of
damage in this case if they had not in fact replaced or rebuilt the property insured by the policy at issue in
{ this case. The Court denied that motion, without prejudice to renew, indicating that it might later grant
such a motion it] as trial approached, the plaintiffs’ had not actually replaced or rebuilt said property. That
I ruling has required the plaintiffs to seek an expert opinion to combat that proposed defense.- The plaintiffs’
proposed expert Louis E. Ranciato has been disclosed address the issues raised by that claim of the
defendant and he will testify on the proper method of determining Actual Cash Value and the appropriate
method of determining the plaintiffs’ loss under the subject policy. Mr. Ranciato is a Public Adjuster
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located in Durham, Connecticut. As such he is qualified to render such expert opinions. Additionally as
he is a locally located expert he is more assessable to the plaintiffs counsel for trial and trial preparation
then the previously disclosed plaintiffs’ expert.
On June 29, 2004 the plaintiffs had disclosed Darin R. Checchia a representative of Adjusters
International, located in Albany New York to offer expert testimony on similar issues. The defendant took
Mr. Checchia’s deposition as a fact witness never questioning him on his expert opinions. Mr. Checchia’s
geographic location has impeded plaintiffs’ counsel’s ability to work with him as closely as necessary
especially as a trial will grow near. Something that was not anticipated at the time of the original
disclosure. Mr. Ranciato’s position as an expert witness on the issues ofthe value of the subject loss, and
proper methods of evaluating the loss, and the methods used by the defendant in evaluating the loss,
including the appropriateness of the defendant’s use of those methods in the plaintiffs’ claim would be in
lieu of Mr. Checchia’s expert testimony.
The defendant does not contend that the belated disclosure of this expert has caused it any
prejudice. No trial has been scheduled to date. The defendant merely contends that it will be prejudiced
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l ase 3:03-cv-01009-SRU Document 107 Filed 11/03/2005 Page 3 of 4 l
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unless it is given an opportunity to depose Mr. Ranciato. The plaintiffs are more than willing to produce
Mr. Ranciato promptly for deposition. The remainder of the defendant’s objection to Mr. Ranciato as an
expert appear to revolve around whether his opinions merit expert qualification. That is a subject to be i
dealt with at the time of trial after an appropriate voir dire of his qualifications. However Mr. Ranciato has Q
been a public adjuster for over 20 years in Connecticut and has testified at numerous depositions and at two E
trials in the State of Connecticut as an expert witness.
The defendant also contends that Mr. Ranciato’s report is too broad and indefinite, and
accordingly to permit his late disclosure would be prejudicial to the defendant. The plaintiffs submitcd to
the defendant a seven (7) page report with the disclosure, which specifically set forth Mr. Ranciato‘s
analysis and opinions. Such opinions are available for exploration by deposition. In contrast, the defendant
has disclosed Robert Nattrass as an expert witness to testify on the extent of improvement on the plaintiffs’
property without supply any report regarding such proposed expert testimonyz. See Exhibit A, Defendant's
June 23, 2004 disclosure. The defendant further disclosed as an expert witness John Lo Monte with a
brief, inadequate, one and a half page report and no CV. See Exhibit B Defendant’s disclosure dated April
8, 2004. Mr. Ranciato’s report is through, specific and detailed. Please see attached Exhibit C. The
plaintiffs’ disclosure of Mr. Ranciato is sufficient to meet the requirements ofthe F. R. Civ., Rule
26(a)(2)(B).
_ In determining whether to preclude a party from offering an expert witness due to late disclosure,
the Court is to consider, "the existence of prejudice in fact against the surprised party, the ability to cure the
prejudice, the extent to which the improperly disclosed testimony would disrupt trial and whether the
failure to disclose was a bad faith or willful act." Duma v. Zimmer, Inc., __ F. Supp.2d __,
3:0OCVl306a (March 9, 2005, Conn., Squatrito, J.) (Attached hereto as Exhibit D). In the present case.
new issues were recently joined to the case by way of the defendant’s new counterclaims. There is no
disruption of trial, as trial has not yet been scheduled. No prejudice in fact has been claimed by the q

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defendant. Any possible prejudice can be easily cured by the taking of the deposition of Mr. Ranciato, W
` which can be accomplished as soon as the defendant so requests. The defendant never took the expert E
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deposition of the plaintiffs’ prior expert Mr. Checchia, therefore no duplicative costs will be incurred by the l
defendant due to Mr. Ranciato’s disclosure. There is no bad faith on the part of the plaintiffs or plaintiffs’
counsel in seeking a new expert or in the timing of the disclosure. The late disclosure was not willful, but a
result of the progression and developments of the case. "The remedy of exclusion is considered "drastic"
and should not be imposed where it could frustrate the overarching objective of the Rules, which is to
provide substantial justice for litigants? Dunn attached hereto as Exhibit D. l
Wherefore for the foregoing reasons the plaintiffs respectfully submit that the defendant’s motion
to preclude should be denied and the plaintiffs permitted to call Mr. Ranciato as an expert witness in the
trial of this matter.
THE PLAINTIFFS, __ . l
BY ’
Che effernan
Farver Heffernan
2842 ld Dixwell Avenue
Hamden, Connecticut 06518
Telephone: 203-288-8266
Facsimile: 203—288—4?02 .
Fed Bar No.:CT 06473 '
CERTIFICATION p
I hereby certify that a copy of the foregoing was sent by first class mail, postage prepaid this ?F"' I
day of October 2005, to:
Joel Rottner, Esq. "W-N A
Skelley Rottner P.C. //
PO Box 340890 l
Hartford, CT 06 134-0890
Chery . Heffernan
2 Mr. Nattrass‘ tire loss report was disclosed by the defendant prior to disclosing him as an expert but such K
report does not address the issues for which he was disclosed as an expert witness. y
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