Motion for Finding of Non-Compliance with Pre-Trial Order and Appropriate Remedial Orders

    CV 85-0360977s 

MILO SHEFF, et al., : SUPERIOR COURT 

Plaintiffs, : JUDICIAL DISTRICT OF 

: HARTFORD/NEW BRITAIN 

Vv. : AT HARTFORD 

WILLIAM A. O'NEILL, et al., 

Defendants. : AUGUST 24, 1992 

MOTION FOR FINDING OF NON-COMPLIANCE WITH PRE-TRIAL 

ORDER AND APPROPRIATE REMEDIAL ORDERS 
  

  

Pursuant to Paragraph Nine (9) of the Pre-Trial Order 

entered in this case on April 10, 1992, the plaintiffs were 

required to "submit a final list of expert witnesses on August 

15, 1992." On August 19, 1992, the defendants received a 

document from the plaintiffs entitled "Plaintiffs Final 

Identification of Expert Witnesses Pursuant to Practice Book 

Section 221 (D)". A copy of this document is attached. This 

document fails to meet the requirements of Paragraph Nine (9) of 

the Pre-Trial Order. 

Although the caption of the document which was delivered to 

defendants suggests that the document is the final identification 

called for by the Pre-Trial Order, it is clear from the text that 

ORAL ARGUMENT REQUESTED 

NO TESTIMONY REQUIRED 

  

  
 



  

  

    

the plaintiffs’ identification of expert witnesses 1s not final 

or complete. 

1. According to the second sentence of the plaintiffs’ 

disclosure, the list they are providing does not include "any 

potential rebuttal [expert] witnesses." In other words, the 

plaintiffs attempt to avoid their obligation to respond to the 

defendants' discovery request regarding expert witnesses and the 

requirements of the outstanding order regarding disclosure of 

expert witnesses by labelling certain of their experts as 

"rebuttal witnesses." The Pre-Trial Order and the defendants’ 

discovery request draw no distinction between expert witnesses 

who may be called as part of the plaintiffs' case in chief and 

experts who may be called in rebuttal. All experts must be 

disclosed -- no exceptions. The plaintiffs effort to subvert the 

purposes of the Pre-Trial Order and the clear intention of the 

defendants' interrogatories relating to expert witnesses should 

be rejected by the Court. 

In a case with as much potential for disruption of our 

current educational system as the plaintiffs believe this case 

has, the defendants should not be forced to trial under 

circumstances in which they face ambush by undisclosed "expert 

  

  
 



      

witnesses" who, for strategic purposes, the plaintiffs have 

chosen to designate as rebuttal witnesses. The plaintiffs’ 

refusal to disclose expert witnesses who they may call as 

rebuttal witnesses will harm both the defendants' case 

preparation and the Court's fact finding process. Both will 

suffer because the defendants will have no time and may only have 

a limited opportunity to prepare and present information and 

evidence the Court may need to hear to assess the validity of ste 

opinions which will be offered by the plaintiffs' rebuttal 

witnesses. Potential rebuttal witnesses who may be asked to 

of fer expert opinion are not exempt from the disclosure 

requirements the Pre-Trial Order. 

2. In the third sentence of the plaintiffs' disclosure, the 

plaintiffs note that they "have not listed any present or former 

state employees, appointees, or any defendants' experts" whom 

they intend to call for the purposes of eliciting expert 

testimony. Again, the plaintiffs are attempting to avoid their 

responsibilities under the Pre-Trial Order by creating a 

nonexistent category of expert witnesses whom they are refusing 

to disclose. 

  

  

 



  

    

The outstanding Pre-Trial Order requires separate 

identification of expert and non-expert witnesses. The purpose 

of the order is to ensure that all witnesses are disclosed prior 

to trial. The plaintiffs have not listed any present or former 

state employees, or appointees.as non-expert witnesses and they 

now attempt to avoid disclosing these individuals as expert 

witnesses. It is apparent that the plaintiffs are attempting to 

carve out another group of "mystery witnesses" who will offer 

opinion testimony at trial with little or no opportunity for the 

defendants to produce responsive information or evidence. It 1s 

utterly inconsistent with the agreed upon Pre-Trial Order for the 

plaintiffs to proceed as if they can offer "mystery witnesses" at 

trial. The Court should not tolerate this obvious subversion of 

the purpose of the Pre-Trial Order. 

3. In footnote one (1) on page 6 of the plaintiffs’ 

disclosure, the plaintiffs equivocate about whether they will be 

presenting expert testimony from Ruth Price, Yale Rabin, Terry 

Tondro, "and other witnesses." Their description of the 

testimony these expert witnesses may offer also fails to meet the 

requirements of Practice Book Section 220(D) and the defendants’ 

first set of interrogatories in terms of the specificity which is    



  

  

    

required. This portion of the plaintiffs' disclosure is in direct 

conflict with the requirement that the plaintiffs provide a final 

1deheification of their expert witnesses by August 15, 1992. 

The plaintiffs should not be permitted to undermine the 

purpose of the requirement that there be a final identification 

of expert witnesses by way of this footnote. The plaintiffs must 

decide whether they expect to offer expert testimony from these 

individuals and the "other witnesses" whose names remain 

undisclosed and they must provide a proper description of the 

testimony each of these individuals may be called upon to 

present. See "Plaintiffs' Memorandum of Support of Their Motion 
  

for Order Compelling Full Disclosure of Expert Testimony" 

(January 10, 1992) (emphasis added). The plaintiffs should be 

instructed to properly disclose the experts alluded to in 

footnote one (1) or be barred from calling these individuals as 

witnesses. 

4, The fundamental failure of the plaintiffs to meet the 

requirements of Paragraph Nine (9) of the Pre-Trial Order is made 

especially apparent by the following sentence which appears on 

page ten (10) of their disclosure: "Plaintiffs may also seek to 

add an additional expert witness to this list in the near future,   
 



      

who could not be contacted at the time this list was due." It 1s 

evident from this sentence and the other portions of their August 

19, 1992 disclosure which are noted above that the plaintiffs’ 

disclosure is not the final disclosure required by the Pre-Trial 

Order. It 1s also evident that the plaintiffs are not prepared 

to provide a final identification of expert witnesses. 

Instead of offering the defendants and the Court a 

disclosure which is deceptively mislabeled as "final" the 

plaintiffs' should have sought an appropriate extension of time 

to meet the final disclosure requirements of Paragraph Nine (9). 

Undoubtedly they have not taken this route because such a request 

would be inconsistent with the plaintiffs consistent objections 

to the defendants' requests for extension of time. A request for 

an extension of time to provide a full and final disclosure of 

expert witnesses would, however, accurately reflect the limited 

nature of the progress which the plaintiffs have made in their 
  

trial preparation. The limited progress which the plaintiffs 

have made in their case preparation is, of course, a strong 

indicator of how much time the defendants will need to develop 

their defense. Similarly, the plaintiffs obvious need for more 

time to meet the requirements of Paragraph Nine (9) provides a 

good barometer of the justification for the 

  
| 

  

  
 



  

  
  

    

defendants' requests for extension of time. An application by the 

plaintiffs for an extension of time to meet the requirements of 

Paragraph Nine (9) would have presented an honest picture of the 

stage of development in which this case stands. The Court should 

treat the plaintiffs' deficient disclosure as such a request and 

set a new date for full and final compliance. 

This is not a case which should proceed to trial in a 

helter skelter fashion. The likelihood of serious damage to our 

educational system resulting from a decision which is made on an 

inadequate or incomplete trial record is simply too great. The 

plaintiffs' tactic of offering an incomplete disclosure of expert 

witnesses as their "final" disclosure puts the Court, the 

defendants, and the public as a whole in jeopardy and should be 

rejected. 

The plaintiffs have been preparing their case for more than 

three years but they are still not ready to fully disclose their 

expert witnesses or provide full and final answers to basic 

questions in the defendants’ two year old first set of 

interrogatories. There is no stronger evidence of the need for 

the Court to be wary of the plaintiffs' attempts to circumvent 

the orderly process of pre-trial disclosure set forth in the 

 



      

Pre-Trial Order and to be wary of the plaintiffs' suggestions 

that the parties are ready to plunge into what will be a highly   
complex trial. 

WHEREFORE, for the foregoing reasons, the defendants ask 

that the Court find that the plaintiffs have failed to comply 

with Paragraph Nine (9) of the outstanding Pre-Trial Order and 

that the Court enter such orders as are appropriate, including, 

but not limited to, an order setting new dates for compliance 

with the various scheduling provisions of the Pre-Trial Order. 

FOR THE DEFENDANTS 

   
BY: L/L 

R. Whelan 
/AsSistant Attorney General 
[Jd ris No. 0851}12 
{ 110 Sherman Street 

“Hartford, CT 06105 
Telephone: 566-7173 

  

     

        
Assistant 

Juris NO. 

Attorney General 

406172 
110 Sherman Street 

Hartford, CT 06105 

Telephone: 566-7173 

  
 



  

  
ORDER 

For a good cause shown, the foregoing Motion is hereby 

GRANTED/DENIED and the following orders entered: 

This day of August, 1992,   
  

Honorable Harry Hammer 

      
 



  

  

    

CERTIFICATION 
  

This is to certify that a copy of the foregoing was mailed 

postage prepaid on the 7¥f/day of August, 1992 to the following 

counsel of record: 

John Brittain 
University of Connecticut 
School of Law 

65 Elizabeth Street 
Hartford, 'CT 06105 

Philip Tegeler, Esq. 
Martha Stone, Esq. 
Connecticut Civil Liberties 
Union 

32 Grand Street 
Hartford, CT 06106 

Ruben Franco, Esq. 

Jenny Rivera, Esq. 
Puerto Rican Legal Defense 
and Education Fund 

99 Hudson Street 

14th Floor 

New York, NY 10013 

John A. Powell 

Helen Hershkoff 
American Civil Liberties Union 

132 West 43rd Street 

New York, NY 10036 

Wilfred Rodriguez 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, CT 06112 

Wesley W. Horton, Esq. 
Moller, Horton & Fineberg, 
90 Gillett Street 
Hartford, CT 06105 

Julius L. Chambers, 

Marianne Lado, Esq. 
Ronald Ellis, Esq. 
NAACP Legal Defense 
Educational Fund 

99 Hudson Street 
New York, NY 

Esq. 

and 

10013 

P.C,