Superior Court of Connecticut, Judicial District of New Haven, New Haven
Maria Elisea, Administratrix of the Estate of Juan Carlos Elisea Orozco aka Juan Carlos Elisea et al.
CFC Stillwater, LLC et al
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS AMENDED DEPOSITION (#267), MOTION TO SUPPRESS AND STRIKE ERRATA SHEET (#268)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiffs, Maria Elisea, Administratrix of the Estate of Juan Carlos Elisea Orozco, a/k/a Juan Carlos Elisea and Juan Ruiz, (plaintiffs) commenced this wrongful death action, by service of writ, summons and complaint on the defendants, CFC Stillwater, LLC, (CFC) Signature Construction Group of Connecticut, Inc. (Signature) and Preferred Electrical Contractors, Inc. (Preferred Electrical) (defendants) with a return date of January 14, 2014. The plaintiffs' February 19, 2015 third amended complaint which is the operative complaint sets forth causes of action sounding in wrongful death, loss of consortium, bystander emotional distress, and negligent infliction of emotional distress in connection with the death of the decedent, Juan Carlos Elisea and alleges the following facts.
The defendants were in control of property owned by CFC located at 300 Stillwater Avenue, Stamford, Connecticut. Signature was in charge of a construction project at the premises where a building was in the process of being converted into a television studio. Signature was responsible for the overall safety of workers at the premises and Preferred Electrical, a subcontractor performing electrical contracting services on the premises was responsible for maintaining the electrical system and its components.
On or about July 12, 2012, during renovations at the premises, the decedent was installing a steel beam and came into contact with an energized dangling wire which electrocuted him and caused his death. The plaintiffs allege that the exposed live electrical wires were dangling from a defective light fixture which defendants failed to remedy. One such defendant is Preferred Electrical who was a subcontractor of Signature and had been hired to perform the electrical work on the premises.
According Signature, pursuant to Preferred Electricals contract with Signature, Preferred Electrical was responsible to remedy any electrical defects on the premises. A central issue in the case concerns the condition of the electrical wiring in the premises' ceiling. The existence of such a condition and the various defendants' awareness, or lack thereof, of any such condition is of primary importance.
On June 23, 2014, Preferred Electrical filed a motion for summary judgment in which it argues that it was not responsible to correct the alleged defect. Preferred Electrical acknowledges that it was a subcontractor of the co-defendant, Signature Construction to perform electrical work at 300 Stillwater Avenue in Stamford, however, Preferred Electrical contends that none of the electrical work encompassed within the scope of the subcontract and/or performed by Preferred Electrical involved the circuitry or lighting within the area where the accident occurred. Preferred Electrical contends that the wiring referenced in the plaintiff's amended complaint was pre-existing wiring that was not within the scope of Preferred Electrical's subcontract. Preferred Electrical claims that it was not required to, and did not maintain the area where the accident occurred, nor was it required to remove, repair or de-energize any of the wiring in the area where the accident occurred. In support of its motion, Preferred Electrical attached, inter alia, the affidavit of Steve DiCiacco, the President of Preferred Electrical in which he avers that Preferred Electrical had a subcontract with the defendant, Signature Construction to perform electrical work at 300 Stillwater Avenue in Stamford. He further avers that none of the electrical work encompassed within the scope of the subcontract and/or performed by Preferred Electrical involved the existing circuitry and lighting within the area where the accident occurred. DiCiacco further averred that following the accident he was shown the area where the accident occurred and that the wiring allegedly involved was not within the scope of the subcontract and was existing wiring that fell outside the area encompassed within the scope of the subcontract. He further avers that Preferred Electrical was not required to, and did not in fact maintain, the area where the accident occurred nor was it required to remove, repair or de-energize any of the wiring.
DiCiacco's deposition was taken on February 23, 2015. In light of DiCiacco's testimony, the defendant, Signature Construction, on March 20, 2015, filed a cross-claim against Preferred Electrical demanding a defense in this action and indemnification for any judgment, pursuant to Preferred Electrical's contract with Signature Construction. On April 13, 2015, DiCiacco signed the jurat page of his deposition and submitted an errata sheet in which he submitted changes to his testimony.
The defendant, Signature Construction, and the plaintiffs, pursuant to Practice Book § 13-31(c)(4), have moved to suppress DiCiacco's errata sheet, or in the alternative, seek permission to question DiCiacco at a second deposition in order for the parties to explore the reasons why he materially altered his answers. The defendant, Signature Construction and the plaintiffs argue that DiCiacco substantially and materially altered his deposition testimony in his errata sheet, which they claim is an improper use of an errata sheet. They argue that the errata sheet submitted by DiCiacco fails to comply with Practice Book § 13-30(d) as it does not include a statement of the reasons for the changes made. The defendant Signature and the plaintiffs further argue that DiCiacco's improper use of the errata sheet has destroyed the usefulness of the deposition. More specifically, they contend that rather than simply correct mistakes to the transcript, DiCiacco has materially and substantially altered his testimony in a narrative fashion and in many cases provided answers which are not responsive to counsel's particular question. Consequently, DiCiacco's changes to his testimony destroy the usefulness of the original deposition transcript, and thus, the testimony in the errata sheet should be suppressed or, in the alternative the parties should be granted permission to re-depose DiCiacco.
The defendant, Preferred Electrical filed an objection to both motions and argues that DiCiacco's errata sheet does comply with § 13-30(d), as DiCiacco does provide reasons for the changes he made to his testimony. Additionally, Preferred Electrical argues that § 13-30(d) does not limit changes to errors in transcription or errors in spelling, nor does the rule prescribe a particular form by which changes are to be entered upon the deposition transcript, nor does it prescribe a particular format for the listing of reasons to be given by the deponent for making the changes. The defendant, Preferred argues that close examination of the errata sheet prepared by DiCiacco indicates that he does include reasons for the substantive changes he made on the errata sheet to his testimony. Preferred therefore argues that the errata sheet should not be stricken and that it is not necessary for the movants to re-depose DiCiacco.
The defendant, Signature and plaintiffs' motions to suppress were scheduled as take papers on this court's August 31, 2015 non-arguable calendar.