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FBT-CV-14-6043491
DAVID CONFEITEIRO : SUPERIOR COURT
vs. : JUDICIAL DISTRICT OF
: BRIDGEPORT, AT BRIDGEPORT
TATIANA MEZARINA-ROJAS, ET AL : OCTOBER 26, 2016
OBJECTION TO DEFENDANTS’ MOTION IN LIMINE
RE: LOST WAGES AND/OR IMPAIRMENT OF EARNING CAPACITY
The Plaintiff hereby objects to the Defendants’ Motion in Limine regarding lost wages
and/or impairment of earning capacity as the Plaintiff has provided specifics and
documentation relative to his lost wages and impairment of earning capacity claims, and/or has
provided appropriate authorization to defense counsel to obtain the same. Such
documentation and authorizations were provided promptly by Plaintiff's trial counsel upon
Defendants’ request, and the introduction of evidence at trial, or the displaying, offering or
making reference to, lost wages and impairment of earning capacity claims will not prejudice
the Defendants.
I. FACTS
The undersigned first appeared in this case as trial counsel in March of 2016.
Accordingly, the following facts are provided based upon a review of the court filings and
archived correspondence among the parties.
On December 1, 2014, the Plaintiff provided the Defendants with his answers to the
Defendants’ interrogatories and Production requests, in compliance with Practice Book Section
13-2 (Def. Ex. 1). In these answers, the Plaintiff indicated he was pursuing a claim for lost
wages and provided additional information about his job, including his position, employer,
employer's address, and his approximate average weekly wage. He further stated that he was
4“unable to return” to work and had been out of work permanently since June of 2013. He
included a calculation of lost wages to date, and an assertion of an impairment of earning
capacity. Finally, he noted that copies of, or written authorization for, relevant tax returns and
wage and employment records would be provided.
On April 28, 2015, the Defendants filed a Motion to Compel Full Disclosure (Ex. 1)
seeking various additional medical, financial, and employment records. Relevant to the
present Motion, the Defendants sought “[a]ny and all employment records and tax returns for
the three years prior to the subject accident to present” and “disability application 4/29/14, and
supporting documentation regarding his lost wage claim.”
On May 20, 2015, the Plaintiff provided the Defendants with the disability exam by Dr.
Lipow, in which he opines that the Plaintiff ‘nas extremely limited potential for employment,”
along with copies of the Plaintiff's tax returns from years 2009 to 2014. (See letter of
transmittal, Ex. 2.) Though the Plaintiff and his wife filed joint returns, the copies provided to
the Defendants on May 20, 2015 included the Plaintiff's New York State Income Tax Return,
distinguishing his income from that of his wife, who worked in Connecticut.
On March 14, 2016, the Defendants filed a new Motion for Order of Compliance (Ex. 3)
seeking medical records of three specific doctors or courses of treatment. This Motion did not
include any mention of tax returns or wage and employment records.
The undersigned appeared in this case on March 17, 2016 and immediately began
working to obtain the records specifically requested by the Defendants in the March 14, 2016
Motion. Over the next several months, the undersigned and defense counsel exchanged
numerous emails regarding the status of requested medical records, and the undersigned
produced nearly all such records. In the rare instance that the Plaintiff could not obtain arequested record, the undersigned provided authorizations to allow the Defendants to obtain
them. Despite the open dialogue among the parties as to discovery and production, the
Defendants never mentioned that they required additional documents in connection with the
lost wages and loss of earning capacity claims.
Following a pretrial on June 21, 2016, the Court scheduled pretrial and trial dates of
October 13, 2016 and October 27, 2016, respectively.
On August 29, 2016, the Plaintiff provided the Defendants with, among other medical
records, the report of vocational expert Albert Sabella, dated the same day. On September 8,
2016, the Plaintiff provided the Defendants with the report of economics expert Dr. Gary
Crakes, dated September 7, 2016, and filed Plaintiff's Disclosure of Expert Witnesses, in which
both experts, as well as certain medical experts, were identified as possibly providing live
testimony at trial.
Correspondence between the undersigned and defense counsel continued throughout
September. On September 15, 2016, defense counsel noted in an email to the undersigned
that he needed to follow up on the status of the Plaintiff's social security disability claim. On
September 19, defense counse! emailed the undersigned to follow up on the disclosure of
certain psychiatric records.
It was not until October 4, 2016, approximately three weeks before the start of trial, that
the Defendants first raised the issue of tax returns with the undersigned.' The following day,
the Defendants reclaimed their 4/28/15 Motion for Order of Compliance, and the undersigned
‘ Notably, defense counsel's email of October 4, 2016 incorrectly states, "| note that not /sic/ tax returns
have been disclosed, despite [Plaintiff's] D&P indicating it would be provided.” As noted above, tax returns for
years 2009 to 2014 were initially provided on May 20, 2015.provided them with copies of the Plaintiff's tax returns and W-2s for years 2008 to 2013, as
well as wage and benefit documentation from 2012 and an employment authorization for use
by the Defendants to obtain additional employment records.? On October 7, 2016, the
undersigned further provided the Defendants with Plaintiff's tax returns for years 2014 (again)
and 2015.
On October 12, 2016, the Defendants filed the subject Motion in Limine, and the ©
following day, a Motion in Limine to Preclude Expert Gary Crakes, PhD, which is the subject of
a separate objection by Plaintiff.
i ARGUMENT
Our Supreme Court has long recognized the inherent difficulty in assessing future
damages in personal injury actions. As Justice Wheeler opined in his 1912 decision, “In tort
the plaintiff must recover in a single action all of his damage. The consequences of an injury
cannot be definitely predicted. The plaintiff should be permitted to prove those results that are
likely to happen, that is, those which are reasonably probable... .” Johnson v. Connecticut
Co., 85 Conn. 438, 441 (1912). Provided the plaintiff could establish, by a fair preponderance
of the evidence, that a future consequence of his injury was “reasonably likely, or probable, or
to be expected,” the Court held that he should be compensated for this, as well as for
consequences that were “certain to occur.” Id. at 144. Similarly, one hundred years later, our
standard Civil Jury Instructions on Damages allow plaintiffs to be compensated for expenses,
losses, and injuries they are “reasonably likely” to incur or suffer in the future as a result of a
tortfeasor's negligence. State of Connecticut Judicial Branch, Civil Jury Instructions, Part 3:
? The Plaintiff recently learned thatTorts, 3.4-1: Damages — General [Revised March 23, 2012 (modified April 5, 2012)]
at http:/Avww.jud.ct.gow/JI/civil/part3/3.4-1.htm.
The Defendants aptly note that “a party who seeks to recover damages . . . [for
diminished and/or loss of 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. . . of the amount of that loss.” Bombero v. Machionne, 11 Conn. App. 486, 489
(1987), quoting Mazzucco v. Krall Coal & Oil Co,, 172 Conn. 355, 360 (1977). However, unlike
the plaintiff in Mazzuco who admitted his inability to put a dollar figure on his lost earnings
claim, the Plaintiff provided detailed lost earnings calculations in his December 1, 2014
Discovery Compliance (See response to Interrogatory #23 in Def. Ex. 4). The Plaintiff has
provided copies of full tax returns from 2008 to 2015, as well as a wage and benefit document
signed by the Plaintiff's employer verifying his wages and hours worked and documenting his
lost time immediately following the accident (Ex. 4). The Plaintiff has also provided
Defendants with an authorization allowing them to obtain additional employment records, as
needed.
Additionally, at his 2015 deposition, the Plaintiff testified as to his inability to work due to
his accident-related injuries and provided details regarding his lost earnings and impairment.
As such, he provided a “foundation upon which a reasonable estimate of damages could be
based.” Hoadley v. University of Hartford, 176 Conn. 669, 674 (1979)("The record reveals that
the plaintiff introduced evidence that after she sustained the injury to her ankle, she was
unable to perform the maintenance and inspection activities which were a necessary part of
her job, and that the incapacity would continue indefinitely into the future.”); Lashin v.
Corcoran, 146 Conn. 512, 513 (1959)(plaintiff testified that she could only work part-time infamily business in the future.) Dr. Lipow, the neurosurgeon who performed cervical spine
surgery on the Plaintiff in 2013, has been disclosed as an expert who also will testify regarding
the Plaintiff's inability to work. The Plaintiff has further disclosed vocational and economics
experts. Should the court choose to exclude any or all evidence pertaining to lost wages or
loss of earning capacity, and prevent the Plaintiff or his experts from referencing such
information at trial, the Plaintiff would effectively be precluded from establishing the specific
basis for his damages. Clearly, the exclusion of this evidence would be prejudicial to the
Plaintiff, due to its integral and probative value in this case. The exclusion of information and
evidence regarding lost wages and/or loss of earning capacity is entirely unwarranted and
unjustifiable.
As the Defendants explained, the court possesses the authority to exclude evidence
where its prejudicial effect outweighs its probative value. See State v. Morgan, 70 Conn. App.
255, 271-72, cert. denied, 261 Conn. 919 (2002). Here, the evidence regarding the losi wage
and eaming capacity claims has great probative value and should not have any prejudicial
effect on the Defendants. The Defendants were well aware of both the fact that the Plaintiff's
lost wages and impairment claims, as well as the details of each clairn as early as 2014; the
Plaintiff's claimed lost earnings and future lost earnings in his May 30, 2014 Complaint,
provided detailed lost earnings calculations in his December 1, 2014 Discovery Compliance,
sent copies of his tax returns to the Defendants on May 20, 2015, as aforesaid, and testified
regarding his lost earnings/impairment claims at his September 29, 2015 deposition.
Between March and October of 2016, the undersigned and defense counsel
communicated often in regard to discovery and production issues, yet the Defendants did not
make any reference to — or any request for — additional tax, wage, or employment documents,until three weeks prior to trial. The undersigned had no reason to believe that discovery with
regard to these claims was insufficient, and, in fact, could reasonably have concluded that the
provision of the Plaintiff's tax returns on May 20, 2015 had been satisfactory to the Defendants
in this regard, as the Defendants’ March 13, 2016 Motion for Order of Compliance notably
contained no reference whatsoever to tax returns or wage and employment records. The
Plaintiff filed his disclosure of experts, including vocational and economics experts, on
September 8, 2016, and, even then, the Defendants did not raise concern over the tax, wage,
or employment information provided by the Plaintiff until nearly a month later.
The undersigned has made reasonable and continued good faith efforts to provide any
and all documents and information requested by the Defendants. In light of their ongoing
requests for medical records between March and October 2016, the Defendants’ failure to
notify the Plaintiff of its alleged lack of tax, wage, and employment records led the Plaintiff to
believe that his earlier disclosure of tax returns had sufficiently satisfied the Defendants’
discovery requests. Furthermore, as soon as the Defendants alerted the Plaintiff that they
required additional tax, wage, and employment records, on October 4, 2016, the Plaintiff
provided the Defendants immediately with full copies of the Plaintiff's tax returns and a wage
and employment disclosure.
The Defendants claim these documents were not provided “in a manner that would
have allowed the Defendant an opportunity to independently review and authenticate any
documents which may exist substantiating those claims.” They therefore request the exclusion
of the documents, as well as any reference to lost wages and/or loss of earning capacity at trial
because it would be prejudicial to the Defendants. As the above timeline establishes, the
Defendants had ample time to investigate, review, and authenticate the tax returns, firstprovided on May 20, 2015, and re-produced, in full, upon Defendants’ request in early October,
2016. Clearly, the introduction of tax, wage, and employment evidence, and the discussion of
such information at trial, will not unfairly prejudice the Defendants.
Ii. CONCLUSION
For all the foregoing reasons, the Plaintiff respectfully requests that the Defendants’
Motion in Limine Re: Lost wages and/or Impairment of Earning Capacity be denied.
THE PLAINTIFF, DAVID CONFEITEIRO
Chelsea E. Krombel
Law Offices of Paul E. Farren, Jr., P.C.
129 Whitney Avenue
New Haven, CT 06510
Phone: (203) 784-0326
Fax: (203) 624-5324
Juris No, 421215
By:ORDER
The foregoing objection, having been presented, it is hereby ORDERED:
SUSTAINED/OVERRULED.
BY THE COURTCERTIFICATION
| certify that a copy of this document was or will immediately by mailed or delivered
electronically or non-electronically this date to all attorneys and self-represented parties of
record and to all parties who have not appeared in this matter and that written consent for
electronic delivery was received from all attorneys and self-represented parties receiving
electronic delivery.
Name and address of each party and attorney that copy was or will immediately be
mailed or delivered to:
Alan S. Tobin, Esq.
Law Offices of Meehan, Roberts, Turret & Rosenbaum
108 Leigus Road, 1st Floor
Wallingford, CT 06492
Joseph S. Dobrowolski, Esq.
51 Elm St., 2nd Floor
New Haven, CT 06510
Chelsea E. Krombel
Dated: October 26, 2016
10Exmisir 7
LL
DOCKET NO. FBT-CV14-6043491-S : SUPERIOR COURT
DAVID CONFEITEIRO : JD. OF FAIRFIELD
Vv AT BRIDGEPORT
TATIANA MEZARINA-ROJAS ET AL : APRIL 28, 2015
MOTION TO COMPEL FULL DISCLOSURE
The undersigned Defendants move the Court for an order compelling the Plaintiff'to fully
comply with the Defendant’s Interrogatories and Requests for Production dated 7/ 3/ 14.
Specifically, defendants seek full responses on following issues via full disclosure or providing fully
executed authorizations:
. any and all employment records and tax returns for the 3 years prior to the subject
accident to the present,
any and all prior records relating to neck or back complaints. While Plaintiff denied
any prior similar conditions in his interrogatory responses, a review of his records
makes clear he had neck pain at least sometime in 2011 and underwent a cervical
MRI on 7/5/11. Additionally, Dr. Lipow’s note of 3/12/13 references neck pains in
2001 that resolved with Neurontin; whether this is actually 2001 or simply a typo
referring to 2011,
pre- and post-accident records relating to treatment for anxiety and depression.
(particularly where he is also claiming post-traumatic stress from the subject accident
as well.)
Any and all records from Dr, Patricia Richards; these were claimed in his
interrogatories but none were provided
. Any and all records from Dr. Menta/Menta Chiropractic; these were claimed in his
interrogatories but none were provided
LAW OFFICES OF MEEMAN, TURRE’
101 BARNES ROAD, 3 FLOOR, WALLINGFORD, CT 06492
ROSENBAUM
103) 294-7800 LEWURIS NO. 408308Treatment record from St. Vincent’s Hospital 7/20/14; these were claimed in his
interrogatories but none were provided
records from the diskogram performed antecedent to Plaintiff's surgery; unclear from
records where this was performed but no records were provided
ANY AND ALL radiodiagnostic films of Plaintiffs cervical and lumbar spine,
including but not limited to CT Scan of cervical spine 6/5/12; MRI’s of cervical spine
WUSI1, 1/14/12, 12/5/12, 7/8/13; as well as any and all electrodiagnostic studies
relating to PlaintifP's neck and/or upper extremity radiculopathy.
-disability application 4/29/14, and supporting documentation regarding his lost wage
claim.
WHEREFORE, the Defendant requests this Court to rule the following relief:
1
2.
Enter an order requiring the Plaintiff to adequately respond to said requests;
Enter Nonsuit against the Plaintiff for failure to comply or to adequately respond;
Award the Defendant the costs of pursuing this motion, including reasonable Attorney’s
fees; and
Order any and all further relief that the court may deem necessary.
LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM
101 BARNES ROAD, 3” FLOOR, WALLINGFORD, CT 06492 [f1(203) 294-7800 TENURUS NO. 408308THE DEFENDANTS,
BY _____408236 _
Alan S. Tobin
Law Offices of Meehan, Turret &
Rosenbaum
101 Barnes Road, 3rd Floor
Wallingford, CT 06492
Tel. # 203-294-7800
Juris # 408308
CERTIFICATION
This is to certify that all personal identifying information was redacted pursuant to
Practice Bock Seti 4-7. This will further certify the foregoing was mailed via U.S. Mail, postage
pre-paid or electronically delivered pursuant to Pradice Book Section 10-14 on this 28th day of
April, 2015,
Attorney forP itt
Joseph S. Dobrowolski, Esq.
51 Elm Street
New Haven, CT 06510
408236,
Alan S. Tobin
Commissioner of the Superior Court
LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM
10] BARNES ROAD, 3*° FLOOR, WALLINGFORD, CT 06492 []203) 294-7809 LUsURIS NO. 408308ExHigir 2
JOSEPH S, DOBROWOLSKI
ATTORNEY AT LAW
51 ELM STREET
NEW HAVEN, CONNECTICUT Q6510
(203) 787-1293
FAX # (203) 782-2116
SHELLEY M. EDWARDS
PARALEGAL
Faxed only to:
May 20, 2015
Alan 8. Tobin, Esq.
Law Offices of Meehan, Turret & Rosenbaum
203-
‘RE: David Confeiteiro v. Tatiana Mezarina-Rojas
Dear Attorney Tobin:
Transmitted herewith please find a copy of the disability exam from Dr. Ken on Lipow Gwhich
was Just faxed to us), along with copies of his tax returns from 2009 — 2014.
1am aware that there is a pre-trail tomorrow; please call me to discuss same.
Very trul
Ours,
Joseph S. Dobrowolski
ISD/sme
15 pages transmitted.
|~ 603. 49.2.666
BOF “FBG AG DSexwet 3
DOCKET NO. FBT-CV 14-6043491-S : SUPERIOR COURT
DAVID CONFEITEIRO. : J.D. OF FAIRFIELD
Vv : AT BRIDGEPORT
TATIANA MEZARINA-ROJAS ET AL : MARCH 14, 2016
MOTION FOR ORDER OF COMPLIANCE
The Defendants herein, TA TIANA MEZARINA-ROJAS and THE NEILSEN
COMPANY (US), LLC, move this Honomble Court for an order compelling the Plaintiff, DAVID
CONFEIREIRO, to fully comply with the Defendant’s Interrogatorics and Requests for Production]
dated 07/03/2014, While the Plaintiff has provided some documentation, his compliance is
incomplete. Specifically, the Defendants seek:
© ‘The Plaintiffs primary care physician records from 2010 to the present;
* Records from the Plaintiff's neurological care with Dr. Sena occuring ptior to the subject
motor vehicle accident, including any and all diagnostic records and/or films;
9 All records roJated to any mental health treatment and/or counseling the Plaintiff underwent!
between September, 2013 and the present.
These documents, which should have been disclosed in respoase to standard discovery
requests, were requested by electronic mail to Plaintiff's counsel on October 26, 2015, and again by
letter dated January 18, 2016, See cotrespondence attached as Exhibit A. To date, no responsive
documents have been received. Not only is such failure to produce these records a violation of the
Practice Book tules, but it will also significantly prejudice the ability of the parties to meaningfully
discuss settlement at the 5/5/2016 pretrial of this matter.
LAW ORFICES OF MEENAN, TURRET & ROSENBAUM
108 LEIGUS ROAD, I FLOOR, WALLINGFORD, CT 06492 « (203) 294-7800 + JURIS NO. 408308The time within which to comply has now elapsed and the Plaintiff has failed to euraply witt]
wait! requests,
WHEREFORE, the Defendant requests this Court to tule the following relief
{ Enter an order requiring the Plaintiff to adequately respond to said requests;
2. Hnter Nonsuit against the Plaintiff for failure to comply or to adequately respond;
3. Award the Defendant the costs of pursuing (his motion, Including teasouable Attorney’
fees; and
4. Ordet any and all further relief that the court may deem necessary.
THE DEFENDANT,
TATIANA MEZARINA-ROJAS and
THE NEILSEN COMPANY (US), LLC
BY 4082.36.
Alan S. Tobin, Esq.
Law Offices of Meehan, Turret &
Rosenbaum
108 Leigus Road, 1st Floor
Wallingford, CT 06492
‘Tel. # 205-294-7800
Juris # 408308
CERTIFICATION
This will certify the foregoing was mailed via U.S, Mail, postage pre-paid ot electronically
detivercd pursasot to Prahe fad Sevier (0-4 on this 1 Dag uf Mareh, 2016.
AN, EDRRET & ROSENIATSE
DCP 8 CAN SATB 6 IGRUS NU, 498508
LAW OFFICES OF &
A PEG DS ROAR FLOOR WALLBEAutomey for Plaintiff
Joseph $, Dobtowolski, Esq.
51 Elm Street
New Haven, Cl'06510
4082.36,
Alan 8. ‘Tobin
Commissioner of the Superior Court
LAW OFFICERS OF MEEHAN, TURRET & ROSENBAUM
168 LEIGUS ROAD, 1 FLOOR, WALLINGFORD, CT 06492 = (203) 294-7800 « JURIS NO, 408308Exhibit A
LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM
108 LEIGUS ROAD, F FLOGR, WALLINGFORD, CT‘06492 © (203)294-7800 « JURISNO. 408408i
JOANNA M. CZERAJEWSKI
VINCENT DI PALMA
DENISE v
TYLER DEW
Law OFPICES,
Ox FRANK GARORALO, IIL
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GARY W.HOHENTHAL
MEEHAN, TURRET & REVIS ue
ROSENBAUM TAYLOR W. JOHNSON
OF LIBERTY MUTUAL
ROUP, INC.
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“ » PATRICE 8. NOAH
WALLINGFORD, CC sun PRARI, MAN‘
TENIONE: (203) 294-7800 CURISTOPHER j, POWDERLY:
E-SERVICE:
LMLAWCT@LibertyMutual.com
EPAX: (603)427-2666 KSITH STURGES
PLUASH BY ADVISK THA'C WH ARE NOW MICHAEL BISCHOMIE
ACCEPTING R-SuRVICH, ALAN 8. TOBIN *
JAMES DONOITUE
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danuary 18, 2016
Joseph S, Dobrowolski Esq.
51 Elm Street
New Haven, CT 06510
RE: David Confeiteiro y, Tatiana Mezarini-Rolas ET AL
Dear Attorney Dobrowolski:
As you know, we have a PTC scheduled for 2/2/16 It was hoped that we would have
sufficient information to engage in substantive settlement discussion on that date, However,
we have yet to receive responses to our recent requests including:
1. Response to my 12/14/16 email seeking:
A. Your client's primary care MD records 201 0-presenit,
2, His prior neurological care (Dr. Sena) 2011-2012 before our loss including
actual diagnostics/filnms
3. and psychological/psychiatric/counselling records after death of plaintiffs 14
yr. old daughter In Sept. 2013,
2. Response to my inquiry re: agreement on IME as outlined on 12/13 (below)As follow up to the requested information and in order to be in @ position to discuss
potential settlement in February, Please advise if, on receipt of all necessary
information, you would consent t
fo an IME with either Kimberlee Sass Phd or Marvin
Zeiman MD regarding the cognitive issues alleged by your client.)
Until these issues are addressed, | don’t believe we will be ina position to engage in
any substantive settlement discussions. Please advise when we may expect responses to
these issues.
Very truly yours,
Haw S Tobia
Alan S. TobinGyueir 4
AUTHORIZATION AND REQUEST FOR EMPLOYMENT RECoRns
TO: Andy Lopes Building Corp. RE: David Confeiteiro
OT
nr
You are hereby requested and authorized to furnish to A
: t
Joseph S. Dobrowolski, 51° Elim Street, New Haven, Connecticut Bey!
the information requésted below, concerning my loss of wa es ox “
earnings as a result of an accident which oceurrad o~ 06/04/12
SS# xxx~xx-8722
2. Date of Hire June 3.2603
3. Average number of hours per day &
=
Average number of days per week 440
5. Date stopped work [yp 7b-12. » 20)
6. Date returned 9-5-2, + 20)
7. Wages or earnings prior to date of accidenr: Hourly 2 A.el
Average regular GueeEy pay $19 Average weekly
overtime pay $§ —O-
8. Wages or earnings after return to work: Hourly $ 43 LI
. RQSS LO kl
Average ‘regular weekl¥ pay S198. Average weekly
overtime pay $ —~9 —
ae
Dated: sega Nude ¢
Pirle (go -
\
Preview
FBT-CV-14-6043491 DAVID CONFEITEIRO : SUPERIOR COURT vs. : JUDICIAL DISTRICT OF : BRIDGEPORT, AT BRIDGEPORT TATIANA MEZARINA-ROJAS, ET AL : OCTOBER 26, 2016 OBJECTION TO DEFENDANTS’ MOTION IN LIMINE RE: LOST WAGES AND/OR IMPAIRMENT OF EARNING CAPACITY The Plaintiff hereby objects to the Defendants’ Motion in Limine regarding lost wages and/or impairment of earning capacity as the Plaintiff has provided specifics and documentation relative to his lost wages and impairment of earning capacity claims, and/or has provided appropriate authorization to defense counsel to obtain the same. Such documentation and authorizations were provided promptly by Plaintiff's trial counsel upon Defendants’ request, and the introduction of evidence at trial, or the displaying, offering or making reference to, lost wages and impairment of earning capacity claims will not prejudice the Defendants. I. FACTS The undersigned first appeared in this case as trial counsel in March of 2016. Accordingly, the following facts are provided based upon a review of the court filings and archived correspondence among the parties. On December 1, 2014, the Plaintiff provided the Defendants with his answers to the Defendants’ interrogatories and Production requests, in compliance with Practice Book Section 13-2 (Def. Ex. 1). In these answers, the Plaintiff indicated he was pursuing a claim for lost wages and provided additional information about his job, including his position, employer, employer's address, and his approximate average weekly wage. He further stated that he was 4“unable to return” to work and had been out of work permanently since June of 2013. He included a calculation of lost wages to date, and an assertion of an impairment of earning capacity. Finally, he noted that copies of, or written authorization for, relevant tax returns and wage and employment records would be provided. On April 28, 2015, the Defendants filed a Motion to Compel Full Disclosure (Ex. 1) seeking various additional medical, financial, and employment records. Relevant to the present Motion, the Defendants sought “[a]ny and all employment records and tax returns for the three years prior to the subject accident to present” and “disability application 4/29/14, and supporting documentation regarding his lost wage claim.” On May 20, 2015, the Plaintiff provided the Defendants with the disability exam by Dr. Lipow, in which he opines that the Plaintiff ‘nas extremely limited potential for employment,” along with copies of the Plaintiff's tax returns from years 2009 to 2014. (See letter of transmittal, Ex. 2.) Though the Plaintiff and his wife filed joint returns, the copies provided to the Defendants on May 20, 2015 included the Plaintiff's New York State Income Tax Return, distinguishing his income from that of his wife, who worked in Connecticut. On March 14, 2016, the Defendants filed a new Motion for Order of Compliance (Ex. 3) seeking medical records of three specific doctors or courses of treatment. This Motion did not include any mention of tax returns or wage and employment records. The undersigned appeared in this case on March 17, 2016 and immediately began working to obtain the records specifically requested by the Defendants in the March 14, 2016 Motion. Over the next several months, the undersigned and defense counsel exchanged numerous emails regarding the status of requested medical records, and the undersigned produced nearly all such records. In the rare instance that the Plaintiff could not obtain arequested record, the undersigned provided authorizations to allow the Defendants to obtain them. Despite the open dialogue among the parties as to discovery and production, the Defendants never mentioned that they required additional documents in connection with the lost wages and loss of earning capacity claims. Following a pretrial on June 21, 2016, the Court scheduled pretrial and trial dates of October 13, 2016 and October 27, 2016, respectively. On August 29, 2016, the Plaintiff provided the Defendants with, among other medical records, the report of vocational expert Albert Sabella, dated the same day. On September 8, 2016, the Plaintiff provided the Defendants with the report of economics expert Dr. Gary Crakes, dated September 7, 2016, and filed Plaintiff's Disclosure of Expert Witnesses, in which both experts, as well as certain medical experts, were identified as possibly providing live testimony at trial. Correspondence between the undersigned and defense counsel continued throughout September. On September 15, 2016, defense counsel noted in an email to the undersigned that he needed to follow up on the status of the Plaintiff's social security disability claim. On September 19, defense counse! emailed the undersigned to follow up on the disclosure of certain psychiatric records. It was not until October 4, 2016, approximately three weeks before the start of trial, that the Defendants first raised the issue of tax returns with the undersigned.' The following day, the Defendants reclaimed their 4/28/15 Motion for Order of Compliance, and the undersigned ‘ Notably, defense counsel's email of October 4, 2016 incorrectly states, "| note that not /sic/ tax returns have been disclosed, despite [Plaintiff's] D&P indicating it would be provided.” As noted above, tax returns for years 2009 to 2014 were initially provided on May 20, 2015.provided them with copies of the Plaintiff's tax returns and W-2s for years 2008 to 2013, as well as wage and benefit documentation from 2012 and an employment authorization for use by the Defendants to obtain additional employment records.? On October 7, 2016, the undersigned further provided the Defendants with Plaintiff's tax returns for years 2014 (again) and 2015. On October 12, 2016, the Defendants filed the subject Motion in Limine, and the © following day, a Motion in Limine to Preclude Expert Gary Crakes, PhD, which is the subject of a separate objection by Plaintiff. i ARGUMENT Our Supreme Court has long recognized the inherent difficulty in assessing future damages in personal injury actions. As Justice Wheeler opined in his 1912 decision, “In tort the plaintiff must recover in a single action all of his damage. The consequences of an injury cannot be definitely predicted. The plaintiff should be permitted to prove those results that are likely to happen, that is, those which are reasonably probable... .” Johnson v. Connecticut Co., 85 Conn. 438, 441 (1912). Provided the plaintiff could establish, by a fair preponderance of the evidence, that a future consequence of his injury was “reasonably likely, or probable, or to be expected,” the Court held that he should be compensated for this, as well as for consequences that were “certain to occur.” Id. at 144. Similarly, one hundred years later, our standard Civil Jury Instructions on Damages allow plaintiffs to be compensated for expenses, losses, and injuries they are “reasonably likely” to incur or suffer in the future as a result of a tortfeasor's negligence. State of Connecticut Judicial Branch, Civil Jury Instructions, Part 3: ? The Plaintiff recently learned thatTorts, 3.4-1: Damages — General [Revised March 23, 2012 (modified April 5, 2012)] at http:/Avww.jud.ct.gow/JI/civil/part3/3.4-1.htm. The Defendants aptly note that “a party who seeks to recover damages . . . [for diminished and/or loss of 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. . . of the amount of that loss.” Bombero v. Machionne, 11 Conn. App. 486, 489 (1987), quoting Mazzucco v. Krall Coal & Oil Co,, 172 Conn. 355, 360 (1977). However, unlike the plaintiff in Mazzuco who admitted his inability to put a dollar figure on his lost earnings claim, the Plaintiff provided detailed lost earnings calculations in his December 1, 2014 Discovery Compliance (See response to Interrogatory #23 in Def. Ex. 4). The Plaintiff has provided copies of full tax returns from 2008 to 2015, as well as a wage and benefit document signed by the Plaintiff's employer verifying his wages and hours worked and documenting his lost time immediately following the accident (Ex. 4). The Plaintiff has also provided Defendants with an authorization allowing them to obtain additional employment records, as needed. Additionally, at his 2015 deposition, the Plaintiff testified as to his inability to work due to his accident-related injuries and provided details regarding his lost earnings and impairment. As such, he provided a “foundation upon which a reasonable estimate of damages could be based.” Hoadley v. University of Hartford, 176 Conn. 669, 674 (1979)("The record reveals that the plaintiff introduced evidence that after she sustained the injury to her ankle, she was unable to perform the maintenance and inspection activities which were a necessary part of her job, and that the incapacity would continue indefinitely into the future.”); Lashin v. Corcoran, 146 Conn. 512, 513 (1959)(plaintiff testified that she could only work part-time infamily business in the future.) Dr. Lipow, the neurosurgeon who performed cervical spine surgery on the Plaintiff in 2013, has been disclosed as an expert who also will testify regarding the Plaintiff's inability to work. The Plaintiff has further disclosed vocational and economics experts. Should the court choose to exclude any or all evidence pertaining to lost wages or loss of earning capacity, and prevent the Plaintiff or his experts from referencing such information at trial, the Plaintiff would effectively be precluded from establishing the specific basis for his damages. Clearly, the exclusion of this evidence would be prejudicial to the Plaintiff, due to its integral and probative value in this case. The exclusion of information and evidence regarding lost wages and/or loss of earning capacity is entirely unwarranted and unjustifiable. As the Defendants explained, the court possesses the authority to exclude evidence where its prejudicial effect outweighs its probative value. See State v. Morgan, 70 Conn. App. 255, 271-72, cert. denied, 261 Conn. 919 (2002). Here, the evidence regarding the losi wage and eaming capacity claims has great probative value and should not have any prejudicial effect on the Defendants. The Defendants were well aware of both the fact that the Plaintiff's lost wages and impairment claims, as well as the details of each clairn as early as 2014; the Plaintiff's claimed lost earnings and future lost earnings in his May 30, 2014 Complaint, provided detailed lost earnings calculations in his December 1, 2014 Discovery Compliance, sent copies of his tax returns to the Defendants on May 20, 2015, as aforesaid, and testified regarding his lost earnings/impairment claims at his September 29, 2015 deposition. Between March and October of 2016, the undersigned and defense counsel communicated often in regard to discovery and production issues, yet the Defendants did not make any reference to — or any request for — additional tax, wage, or employment documents,until three weeks prior to trial. The undersigned had no reason to believe that discovery with regard to these claims was insufficient, and, in fact, could reasonably have concluded that the provision of the Plaintiff's tax returns on May 20, 2015 had been satisfactory to the Defendants in this regard, as the Defendants’ March 13, 2016 Motion for Order of Compliance notably contained no reference whatsoever to tax returns or wage and employment records. The Plaintiff filed his disclosure of experts, including vocational and economics experts, on September 8, 2016, and, even then, the Defendants did not raise concern over the tax, wage, or employment information provided by the Plaintiff until nearly a month later. The undersigned has made reasonable and continued good faith efforts to provide any and all documents and information requested by the Defendants. In light of their ongoing requests for medical records between March and October 2016, the Defendants’ failure to notify the Plaintiff of its alleged lack of tax, wage, and employment records led the Plaintiff to believe that his earlier disclosure of tax returns had sufficiently satisfied the Defendants’ discovery requests. Furthermore, as soon as the Defendants alerted the Plaintiff that they required additional tax, wage, and employment records, on October 4, 2016, the Plaintiff provided the Defendants immediately with full copies of the Plaintiff's tax returns and a wage and employment disclosure. The Defendants claim these documents were not provided “in a manner that would have allowed the Defendant an opportunity to independently review and authenticate any documents which may exist substantiating those claims.” They therefore request the exclusion of the documents, as well as any reference to lost wages and/or loss of earning capacity at trial because it would be prejudicial to the Defendants. As the above timeline establishes, the Defendants had ample time to investigate, review, and authenticate the tax returns, firstprovided on May 20, 2015, and re-produced, in full, upon Defendants’ request in early October, 2016. Clearly, the introduction of tax, wage, and employment evidence, and the discussion of such information at trial, will not unfairly prejudice the Defendants. Ii. CONCLUSION For all the foregoing reasons, the Plaintiff respectfully requests that the Defendants’ Motion in Limine Re: Lost wages and/or Impairment of Earning Capacity be denied. THE PLAINTIFF, DAVID CONFEITEIRO Chelsea E. Krombel Law Offices of Paul E. Farren, Jr., P.C. 129 Whitney Avenue New Haven, CT 06510 Phone: (203) 784-0326 Fax: (203) 624-5324 Juris No, 421215 By:ORDER The foregoing objection, having been presented, it is hereby ORDERED: SUSTAINED/OVERRULED. BY THE COURTCERTIFICATION | certify that a copy of this document was or will immediately by mailed or delivered electronically or non-electronically this date to all attorneys and self-represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self-represented parties receiving electronic delivery. Name and address of each party and attorney that copy was or will immediately be mailed or delivered to: Alan S. Tobin, Esq. Law Offices of Meehan, Roberts, Turret & Rosenbaum 108 Leigus Road, 1st Floor Wallingford, CT 06492 Joseph S. Dobrowolski, Esq. 51 Elm St., 2nd Floor New Haven, CT 06510 Chelsea E. Krombel Dated: October 26, 2016 10Exmisir 7 LL DOCKET NO. FBT-CV14-6043491-S : SUPERIOR COURT DAVID CONFEITEIRO : JD. OF FAIRFIELD Vv AT BRIDGEPORT TATIANA MEZARINA-ROJAS ET AL : APRIL 28, 2015 MOTION TO COMPEL FULL DISCLOSURE The undersigned Defendants move the Court for an order compelling the Plaintiff'to fully comply with the Defendant’s Interrogatories and Requests for Production dated 7/ 3/ 14. Specifically, defendants seek full responses on following issues via full disclosure or providing fully executed authorizations: . any and all employment records and tax returns for the 3 years prior to the subject accident to the present, any and all prior records relating to neck or back complaints. While Plaintiff denied any prior similar conditions in his interrogatory responses, a review of his records makes clear he had neck pain at least sometime in 2011 and underwent a cervical MRI on 7/5/11. Additionally, Dr. Lipow’s note of 3/12/13 references neck pains in 2001 that resolved with Neurontin; whether this is actually 2001 or simply a typo referring to 2011, pre- and post-accident records relating to treatment for anxiety and depression. (particularly where he is also claiming post-traumatic stress from the subject accident as well.) Any and all records from Dr, Patricia Richards; these were claimed in his interrogatories but none were provided . Any and all records from Dr. Menta/Menta Chiropractic; these were claimed in his interrogatories but none were provided LAW OFFICES OF MEEMAN, TURRE’ 101 BARNES ROAD, 3 FLOOR, WALLINGFORD, CT 06492 ROSENBAUM 103) 294-7800 LEWURIS NO. 408308Treatment record from St. Vincent’s Hospital 7/20/14; these were claimed in his interrogatories but none were provided records from the diskogram performed antecedent to Plaintiff's surgery; unclear from records where this was performed but no records were provided ANY AND ALL radiodiagnostic films of Plaintiffs cervical and lumbar spine, including but not limited to CT Scan of cervical spine 6/5/12; MRI’s of cervical spine WUSI1, 1/14/12, 12/5/12, 7/8/13; as well as any and all electrodiagnostic studies relating to PlaintifP's neck and/or upper extremity radiculopathy. -disability application 4/29/14, and supporting documentation regarding his lost wage claim. WHEREFORE, the Defendant requests this Court to rule the following relief: 1 2. Enter an order requiring the Plaintiff to adequately respond to said requests; Enter Nonsuit against the Plaintiff for failure to comply or to adequately respond; Award the Defendant the costs of pursuing this motion, including reasonable Attorney’s fees; and Order any and all further relief that the court may deem necessary. LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM 101 BARNES ROAD, 3” FLOOR, WALLINGFORD, CT 06492 [f1(203) 294-7800 TENURUS NO. 408308THE DEFENDANTS, BY _____408236 _ Alan S. Tobin Law Offices of Meehan, Turret & Rosenbaum 101 Barnes Road, 3rd Floor Wallingford, CT 06492 Tel. # 203-294-7800 Juris # 408308 CERTIFICATION This is to certify that all personal identifying information was redacted pursuant to Practice Bock Seti 4-7. This will further certify the foregoing was mailed via U.S. Mail, postage pre-paid or electronically delivered pursuant to Pradice Book Section 10-14 on this 28th day of April, 2015, Attorney forP itt Joseph S. Dobrowolski, Esq. 51 Elm Street New Haven, CT 06510 408236, Alan S. Tobin Commissioner of the Superior Court LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM 10] BARNES ROAD, 3*° FLOOR, WALLINGFORD, CT 06492 []203) 294-7809 LUsURIS NO. 408308ExHigir 2 JOSEPH S, DOBROWOLSKI ATTORNEY AT LAW 51 ELM STREET NEW HAVEN, CONNECTICUT Q6510 (203) 787-1293 FAX # (203) 782-2116 SHELLEY M. EDWARDS PARALEGAL Faxed only to: May 20, 2015 Alan 8. Tobin, Esq. Law Offices of Meehan, Turret & Rosenbaum 203- ‘RE: David Confeiteiro v. Tatiana Mezarina-Rojas Dear Attorney Tobin: Transmitted herewith please find a copy of the disability exam from Dr. Ken on Lipow Gwhich was Just faxed to us), along with copies of his tax returns from 2009 — 2014. 1am aware that there is a pre-trail tomorrow; please call me to discuss same. Very trul Ours, Joseph S. Dobrowolski ISD/sme 15 pages transmitted. |~ 603. 49.2.666 BOF “FBG AG DSexwet 3 DOCKET NO. FBT-CV 14-6043491-S : SUPERIOR COURT DAVID CONFEITEIRO. : J.D. OF FAIRFIELD Vv : AT BRIDGEPORT TATIANA MEZARINA-ROJAS ET AL : MARCH 14, 2016 MOTION FOR ORDER OF COMPLIANCE The Defendants herein, TA TIANA MEZARINA-ROJAS and THE NEILSEN COMPANY (US), LLC, move this Honomble Court for an order compelling the Plaintiff, DAVID CONFEIREIRO, to fully comply with the Defendant’s Interrogatorics and Requests for Production] dated 07/03/2014, While the Plaintiff has provided some documentation, his compliance is incomplete. Specifically, the Defendants seek: © ‘The Plaintiffs primary care physician records from 2010 to the present; * Records from the Plaintiff's neurological care with Dr. Sena occuring ptior to the subject motor vehicle accident, including any and all diagnostic records and/or films; 9 All records roJated to any mental health treatment and/or counseling the Plaintiff underwent! between September, 2013 and the present. These documents, which should have been disclosed in respoase to standard discovery requests, were requested by electronic mail to Plaintiff's counsel on October 26, 2015, and again by letter dated January 18, 2016, See cotrespondence attached as Exhibit A. To date, no responsive documents have been received. Not only is such failure to produce these records a violation of the Practice Book tules, but it will also significantly prejudice the ability of the parties to meaningfully discuss settlement at the 5/5/2016 pretrial of this matter. LAW ORFICES OF MEENAN, TURRET & ROSENBAUM 108 LEIGUS ROAD, I FLOOR, WALLINGFORD, CT 06492 « (203) 294-7800 + JURIS NO. 408308The time within which to comply has now elapsed and the Plaintiff has failed to euraply witt] wait! requests, WHEREFORE, the Defendant requests this Court to tule the following relief { Enter an order requiring the Plaintiff to adequately respond to said requests; 2. Hnter Nonsuit against the Plaintiff for failure to comply or to adequately respond; 3. Award the Defendant the costs of pursuing (his motion, Including teasouable Attorney’ fees; and 4. Ordet any and all further relief that the court may deem necessary. THE DEFENDANT, TATIANA MEZARINA-ROJAS and THE NEILSEN COMPANY (US), LLC BY 4082.36. Alan S. Tobin, Esq. Law Offices of Meehan, Turret & Rosenbaum 108 Leigus Road, 1st Floor Wallingford, CT 06492 ‘Tel. # 205-294-7800 Juris # 408308 CERTIFICATION This will certify the foregoing was mailed via U.S, Mail, postage pre-paid ot electronically detivercd pursasot to Prahe fad Sevier (0-4 on this 1 Dag uf Mareh, 2016. AN, EDRRET & ROSENIATSE DCP 8 CAN SATB 6 IGRUS NU, 498508 LAW OFFICES OF & A PEG DS ROAR FLOOR WALLBEAutomey for Plaintiff Joseph $, Dobtowolski, Esq. 51 Elm Street New Haven, Cl'06510 4082.36, Alan 8. ‘Tobin Commissioner of the Superior Court LAW OFFICERS OF MEEHAN, TURRET & ROSENBAUM 168 LEIGUS ROAD, 1 FLOOR, WALLINGFORD, CT 06492 = (203) 294-7800 « JURIS NO, 408308Exhibit A LAW OFFICES OF MEEHAN, TURRET & ROSENBAUM 108 LEIGUS ROAD, F FLOGR, WALLINGFORD, CT‘06492 © (203)294-7800 « JURISNO. 408408i JOANNA M. CZERAJEWSKI VINCENT DI PALMA DENISE v TYLER DEW Law OFPICES, Ox FRANK GARORALO, IIL e HEAT ENOVESH GARY W.HOHENTHAL MEEHAN, TURRET & REVIS ue ROSENBAUM TAYLOR W. JOHNSON OF LIBERTY MUTUAL ROUP, INC. EMpLoy. G $08 LHIGUS ROAD, 4 “ » PATRICE 8. NOAH WALLINGFORD, CC sun PRARI, MAN‘ TENIONE: (203) 294-7800 CURISTOPHER j, POWDERLY: E-SERVICE: LMLAWCT@LibertyMutual.com EPAX: (603)427-2666 KSITH STURGES PLUASH BY ADVISK THA'C WH ARE NOW MICHAEL BISCHOMIE ACCEPTING R-SuRVICH, ALAN 8. TOBIN * JAMES DONOITUE “ALSO ADMITTED EN NER YORK ALSO ADMITTED IS MASSACH + AISO ADMIT FA ALSO AD! #+4ALSO ADMITTED EN NEW] B19 ON MHODE I danuary 18, 2016 Joseph S, Dobrowolski Esq. 51 Elm Street New Haven, CT 06510 RE: David Confeiteiro y, Tatiana Mezarini-Rolas ET AL Dear Attorney Dobrowolski: As you know, we have a PTC scheduled for 2/2/16 It was hoped that we would have sufficient information to engage in substantive settlement discussion on that date, However, we have yet to receive responses to our recent requests including: 1. Response to my 12/14/16 email seeking: A. Your client's primary care MD records 201 0-presenit, 2, His prior neurological care (Dr. Sena) 2011-2012 before our loss including actual diagnostics/filnms 3. and psychological/psychiatric/counselling records after death of plaintiffs 14 yr. old daughter In Sept. 2013, 2. Response to my inquiry re: agreement on IME as outlined on 12/13 (below)As follow up to the requested information and in order to be in @ position to discuss potential settlement in February, Please advise if, on receipt of all necessary information, you would consent t fo an IME with either Kimberlee Sass Phd or Marvin Zeiman MD regarding the cognitive issues alleged by your client.) Until these issues are addressed, | don’t believe we will be ina position to engage in any substantive settlement discussions. Please advise when we may expect responses to these issues. Very truly yours, Haw S Tobia Alan S. TobinGyueir 4 AUTHORIZATION AND REQUEST FOR EMPLOYMENT RECoRns TO: Andy Lopes Building Corp. RE: David Confeiteiro OT nr You are hereby requested and authorized to furnish to A : t Joseph S. Dobrowolski, 51° Elim Street, New Haven, Connecticut Bey! the information requésted below, concerning my loss of wa es ox “ earnings as a result of an accident which oceurrad o~ 06/04/12 SS# xxx~xx-8722 2. Date of Hire June 3.2603 3. Average number of hours per day & = Average number of days per week 440 5. Date stopped work [yp 7b-12. » 20) 6. Date returned 9-5-2, + 20) 7. Wages or earnings prior to date of accidenr: Hourly 2 A.el Average regular GueeEy pay $19 Average weekly overtime pay $§ —O- 8. Wages or earnings after return to work: Hourly $ 43 LI . RQSS LO kl Average ‘regular weekl¥ pay S198. Average weekly overtime pay $ —~9 — ae Dated: sega Nude ¢ Pirle (go - \