EMILIO D'ASCANIO et al. v. TOYOTA INDUSTRIES CORPORATION et al.,

SC 18935

Judicial District of Hartford

 Products Liability; Expert Witnesses; Whether the Trial Court Properly Struck the Testimony of the Plaintiffs' Liability Expert on the Ground that the Expert had Engaged in Deceptive Behavior.  The named plaintiff sustained serious injuries while he was operating a forklift that was designed, manufactured and distributed by the defendants.  He and his wife subsequently initiated this action, alleging that the injuries were caused by certain defects in the forklift.  At trial, the plaintiffs called an expert witness, Daryl Ebersole, who presented testimony on the issue of whether the forklift was defective.  After Ebersole had testified for much of the first day of trial, the plaintiffs played for the jury a videotape that depicted a forklift, at which time Ebersole explained the contents of the videotape.  Thereafter, the defendants objected to the admission of the videotape on the ground that the forklift that was portrayed in the videotape was not the same model that was involved in this case.  The trial court struck the videotape and instructed the jury that it should be disregarded.  It later struck Ebersole's testimony and precluded him from presenting further testimony, finding that he had engaged in deceptive behavior by attempting to convince the court and the jury that the videotape depicted a forklift that was the same model as the one that was at issue in this case.  The plaintiffs moved for a mistrial, arguing that they could not prosecute the action without a liability expert.  After the court denied the plaintiffs' motion, the defendants moved for a directed verdict on the ground that the plaintiffs had not presented expert testimony on the issue of whether the forklift was defective.  The court granted the defendants' motion, and the plaintiffs appealed, claiming that the court abused its discretion in striking Ebersole's testimony and in directing a verdict in favor of the defendants.  The Appellate Court (133 Conn. App. 420) agreed, determining that the trial court's finding that Ebersole had engaged in deception regarding the videotape had no connection to his earlier testimony that was unrelated to the videotape.  It opined that, instead of imposing the drastic sanction of striking Ebersole's testimony, the trial court could have minimized the prejudicial impact of the videotape by striking it and instructing the jury to disregard it.  It added that the defendants were free to challenge Ebersole's credibility through zealous cross-examination and that the jury, not the trial court, was responsible for resolving the credibility issue.  It further determined that, to the extent that the trial court wished to preclude all of Ebersole's testimony, it could have preserved the plaintiffs' right to a retrial on the merits by declaring a mistrial, which would have been a more appropriate sanction due to the lack of any evidence that the plaintiffs were complicit in Ebersole's behavior.  In this appeal, the Supreme Court will determine whether the Appellate Court's decision was correct.