Redding Life Care, LLC v. Town of Redding , 174 Conn. App. 193 ( 2017 )


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    REDDING LIFE CARE, LLC v. TOWN OF REDDING
    (AC 37928)
    DiPentima, C. J., and Prescott and Beach, Js.
    Argued January 6—officially released June 27, 2017
    (Appeal from Superior Court, judicial district of New
    Britain, Schuman, J.)
    Proloy K. Das, with whom were Robert E. Kaelin,
    Joseph B. Schwartz and, on the brief, Sarah Gruber,
    for the plaintiff in error (David R. Salinas).
    Elliott B. Pollack, with whom, on the brief, was Tif-
    fany K. Spinella, for the defendant in error (town of
    Redding).
    Opinion
    BEACH, J. The plaintiff in error, David R. Salinas, an
    appraiser, provided two opinions to banks regarding
    the value of a certain property. In a subsequent, unre-
    lated tax appeal regarding that property, a party sought
    to compel him to testify in a deposition regarding those
    opinions. The issue presented in this writ of error is
    whether an expert, who previously has rendered an
    opinion on an issue material to a later, unrelated case
    in which neither party has engaged his services, may
    be compelled by subpoena to provide an opinion in that
    case. We hold that Connecticut recognizes a qualified
    testimonial privilege for unretained expert witnesses
    and, accordingly, we grant the writ of error and remand
    the case for further proceedings.
    The record reveals the following undisputed facts
    and procedural history. In April, 2013, Redding Life
    Care, LLC (Redding Life), initiated an action against
    the defendant in error town of Redding (town) to chal-
    lenge the town’s assessment of a property owned by
    Redding Life (tax appeal). Prior to the initiation of that
    action, Salinas had completed two appraisals of that
    property on behalf of banks that were considering lend-
    ing to Redding Life. In July, 2014, after learning about
    these appraisals, the town filed a motion for commis-
    sion1 to depose Salinas. Redding Life and CapitalSource
    Bank, a nonparty to the tax appeal and one of the banks
    for which Salinas had conducted an appraisal, objected.
    The trial court, Hon. Arnold W. Aronson, judge trial
    referee, granted the town’s motion.
    Approximately four months later, the town served
    Salinas with a subpoena compelling him to appear at
    a deposition scheduled for January, 2015. Salinas filed
    a motion for a protective order seeking to prohibit the
    town from taking his deposition. He argued that he had
    not been retained in the tax appeal, did not have any
    relevant knowledge, and could not be compelled to
    testify as an expert. He specifically argued that Connect-
    icut law ‘‘prohibit[s] the compulsion of unretained
    expert testimony,’’ and referred the court to the deci-
    sions in Drown v. Markowitz, Superior Court, judicial
    district of Hartford, Docket No. CV-05-4010740 (August
    18, 2006) (
    41 Conn. L. Rptr. 855
    , 856), which relied on
    the reasoning from other jurisdictions that ‘‘ ‘absent
    extraordinary circumstances . . . a nonparty expert
    cannot be compelled to give opinion testimony against
    his or her will,’ ’’ and Hill v. Lawrence & Memorial
    Hospital, Superior Court, judicial district of Hartford,
    Complex Litigation Docket, Docket No. HHD-X04-CV-
    4034622-S (June 30, 2008) (
    45 Conn. L. Rptr. 789
    , 792),
    which held that ‘‘[i]n the absence of compelling neces-
    sity, the fact that the [experts] are likely to have formed
    opinions is an insufficient basis on which to require
    them to be expert witnesses.’’2 The town objected.
    The court rejected Salinas’ argument, denied his
    motion, and ordered the following: ‘‘The deposition
    shall proceed. The town shall pay the witness his fees
    and expenses as provided in Practice Book § 13-4 (c)
    (2). The town shall enter into any reasonable protective
    order proposed by the witness or the other parties
    designed to limit the use of the information obtained
    in the deposition to this case only.’’ Salinas subse-
    quently filed a motion seeking the following articula-
    tion: ‘‘Did the trial court conclude that . . . Salinas can
    be compelled under Connecticut law to provide expert
    witness testimony against his will? If so, what is the
    basis for that conclusion?’’ The court responded as fol-
    lows: ‘‘The answer to the first question is no. It was
    unnecessary to reach that conclusion because [Salinas]
    had already authored appraisals that contained his
    opinions.’’
    Salinas filed a writ of error with our Supreme Court
    on February 3, 2015, seeking appellate review of the
    trial court’s denial of his motion for a protective order.
    The town filed a motion to dismiss for lack of subject
    matter jurisdiction, arguing that the court’s discovery
    order did not constitute an appealable final judgment.
    Our Supreme Court transferred the matter to this court,
    and this court denied the town’s motion.
    Salinas argues that the court erred in failing to recog-
    nize that an unretained expert privilege3 exists under
    Connecticut common law and, consequently, erred in
    denying his motion for a protective order. He notes
    that, although Connecticut appellate courts have not
    addressed directly the question whether an unretained
    expert privilege exists under Connecticut common law,
    several Superior Court decisions have recognized such
    a privilege. Salinas also argues that, if this court holds
    that such a privilege does exist, the privilege is absolute.
    In the alternative, he argues that there should be a
    qualified privilege that ‘‘can only be overcome by an
    affirmative showing of ‘compelling need.’ ’’
    The town responds that ‘‘[t]here is no need for this
    court to opine whether any unretained nonparty expert
    testimonial privilege exists in Connecticut with regard
    to potential trial testimony at this time,’’ because, as
    the court noted in its articulation, Salinas’ testimony,
    regardless of whether it is admissible at trial, is dis-
    coverable because it ‘‘ ‘appears reasonably calculated to
    lead to the discovery of admissible evidence’; Practice
    Book § 13-2; especially under the liberal standard that
    applies to discovery in civil cases.’’4 The town then
    argues that, if we do address the issue of privilege, we
    are bound by the precedent of Thomaston v. Ives, 
    156 Conn. 166
    , 
    239 A.2d 515
    (1968). In that case, the town
    posits, our Supreme Court held that the question of
    whether a privilege exists should be determined on a
    case-by-case basis, and that if a privilege does exist, it
    is never absolute. We agree with Salinas that an unre-
    tained expert privilege does exist under Connecticut
    common law, but we hold that it is a qualified privilege
    rather than an absolute privilege.
    We begin our analysis by setting forth the standard
    of review. The question of whether an unretained expert
    privilege exists, and, if it does, whether that privilege
    is absolute, are questions of law. See Hutchinson v.
    Farm Family Casualty Ins. Co., 
    273 Conn. 33
    , 38, 
    867 A.2d 1
    (2005) (‘‘[w]hether the trial court properly con-
    cluded that there is an exception to the attorney-client
    privilege when an insured has made an allegation of
    bad faith against an insurer . . . and, if so, whether it
    properly delineated the scope and contours of such an
    exception, are questions of law’’); see also Olson v.
    Accessory Controls & Equipment Corp., 
    254 Conn. 145
    ,
    169, 
    757 A.2d 14
    (2000) (whether court should recognize
    civil fraud exception to attorney-client privilege and
    limitations on exception are questions of law). Accord-
    ingly, our review is plenary.
    We turn first to the issue of whether we should recog-
    nize an absolute privilege. Connecticut appellate courts
    have not yet addressed directly whether an unretained
    expert privilege exists under Connecticut law. See C.
    Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014)
    § 7.13, p. 485. Salinas argues that we should recognize
    an absolute unretained expert privilege.5 On the basis
    of Milliun v. New Milford Hospital, 
    129 Conn. App. 81
    ,
    108–109, 
    20 A.3d 36
    (2011), aff’d on other grounds, 
    310 Conn. 711
    , 
    80 A.3d 887
    (2013), however, we decline to
    recognize an absolute privilege.
    In Milliun, this court held that nonparty physicians
    could be compelled to testify as expert witnesses for
    the plaintiff conservator in a professional negligence
    action regarding the bases for medical opinions they
    previously formed after treating the conserved person.
    
    Id., 108–109. In
    that case, the plaintiff alleged that, while
    in the defendant hospital’s care, the conserved person
    suffered an ‘‘anoxic incident’’ which resulted in her
    cognitive impairment. 
    Id., 85. Subsequent
    to this inci-
    dent, but prior to initiating the underlying action against
    the defendant, the conserved person sought treatment
    from physicians at the Mayo Clinic for the purpose of
    determining whether the anoxic incident had caused
    her impairment.6 
    Id., 85–86. The
    defendant hospital
    attempted to assert an expert privilege on behalf of the
    physicians, and argued that the physicians’ testimony
    regarding causation was barred by the privilege. 
    Id., 107. This
    court determined that the physicians could be
    compelled to testify for three reasons: (1) the defendant
    had asserted the privilege rather than the physicians;
    (2) a categorical rule permitting treating physicians to
    refuse to testify at a deposition would be contrary to
    ‘‘our liberal discovery rules’’; and (3) because there was
    no justification for a rule that would ‘‘wholly’’ exempt
    experts from testifying about previously formulated
    opinions, the court did not wish ‘‘to create a testimonial
    privilege that would prevent such witnesses from being
    deposed in the present case.’’ (Internal quotation marks
    omitted.) 
    Id., 107–109. Consistent
    with our holding and
    the underlying reasoning in Milliun,7 then, we decline
    to recognize an absolute privilege for unretained expert
    testimony in this case.
    Salinas argues in the alternative, however, that we
    should recognize a qualified privilege. He asks this court
    to recognize a ‘‘broader qualified privilege’’ with a ‘‘com-
    pelling need exception,’’ as defined by the Wisconsin
    Supreme Court in Burnett v. Alt, 
    224 Wis. 2d 72
    , 
    589 N.W.2d 21
    (Wis. 1999). (Internal quotation marks omit-
    ted.) ‘‘Under [a] broader qualified privilege, an expert
    may be forced to provide expert testimony but only if
    the compelling party affirmatively demonstrate[s] some
    compelling necessity for an expert’s testimony that
    overcomes the expert’s and the public’s need for protec-
    tion. . . . Furthermore, an expert only can be com-
    pelled to give previously formed opinions and cannot
    be required to engage in any out-of-court preparation.’’
    (Citations omitted; internal quotation marks omitted.)
    
    Id., 87–88. With
    this assertion, we agree.
    We first observe that the issue of a qualified privilege
    was not presented in Milliun. In introducing the issue
    in that case, this court stated, ‘‘[t]he defendant contends
    that the treating physicians enjoyed an absolute privi-
    lege not to be pressed into service as experts for the
    plaintiff.’’ (Emphasis added.) Milliun v. New Milford
    
    Hospital, supra
    , 
    129 Conn. App. 107
    . In its discussion,
    as noted previously, this court agreed that there was
    no justification for treating physicians to be ‘‘wholly
    exempt’’ from providing information. (Internal quota-
    tion marks omitted.) 
    Id., 109. Our
    decision in that case,
    however, was not inconsistent with the existence of a
    qualified unretained expert privilege. This case provides
    us with an opportunity to clarify whether a qualified
    privilege exists.
    Several Superior Court decisions have recognized a
    qualified unretained expert privilege. These decisions
    have held that an unretained expert called as a witness
    against his or her will may be questioned regarding
    his or her own conduct and observations, but, without
    more, cannot be questioned more generally on matters
    with which he or she is conversant as an expert. See
    Hill v. Lawrence & Memorial 
    Hospital, supra
    , 
    45 Conn. L
    . Rptr. 792 (plaintiff prohibited from questioning treat-
    ing physicians about damages or causation, but could
    question them about their own conduct and treatment
    of decedent); Drown v. 
    Markowitz, supra
    , 
    41 Conn. L
    .
    Rptr. 856 (plaintiff could depose decedent’s treating
    physician regarding her own conduct and to ‘‘facts that
    she knows,’’ but not ‘‘her opinion as to those facts or
    standard of care of anyone except herself’’); see also
    Izquierdo v. KIA Motors America, Inc., Superior Court,
    judicial district of Tolland, Docket No. X07-CV-
    000075599-S (June 16, 2003) (plaintiff could not require
    witness to render expert opinion regarding whether
    brake system was defective and whether defect proxi-
    mately caused car accident). In recognizing a qualified
    privilege, these decisions have drawn from the widely
    cited reasoning of the Wisconsin Supreme Court in Alt
    as well as the reasoning of our Supreme Court in Thom-
    aston v. 
    Ives, supra
    , 
    156 Conn. 166
    .
    In determining that an unretained expert privilege
    exists under Connecticut law, the court in Drown v.
    
    Markowitz, supra
    , 
    41 Conn. L
    . Rptr. 856, identified a
    similarity between a provision in the Connecticut Prac-
    tice Book and the Wisconsin statute that served as the
    basis for the unretained expert privilege under Wiscon-
    sin law. In Burnett v. 
    Alt, supra
    , 
    224 Wis. 2d 86
    , the
    Wisconsin Supreme Court recognized the existence of
    the unretained expert privilege on the basis of a statute
    that stated that ‘‘[a]n expert witness shall not be
    appointed by the judge unless the expert witness con-
    sents to act.’’8 (Emphasis omitted.) The court in Alt
    noted that ‘‘[i]f a court cannot compel an expert witness
    to testify, it logically follows that a litigant should not
    be able to so compel an expert,’’ and stated that ‘‘this
    express grant implies a privilege to refuse to testify
    if the expert is called by a litigant.’’ 
    Id. In Drown,
    a
    Connecticut court noted that Practice Book § 42-39,
    which provides in relevant part that ‘‘[a]n expert witness
    shall not be appointed by the judicial authority unless
    the expert consents to act,’’ is nearly identical to that
    Wisconsin statute. Drown v. 
    Markowitz, supra
    , 856. The
    court in Drown accordingly held that § 42-39 provides
    a basis for recognizing an unretained expert privilege
    under Connecticut law.9 
    Id. In Hill
    v. Lawrence & Memorial 
    Hospital, supra
    , 
    45 Conn. L
    . Rptr. 790, the Superior Court found a basis for
    the unretained expert privilege in our Supreme Court’s
    holding in Thomaston v. 
    Ives, supra
    , 
    156 Conn. 166
    . In
    Thomaston, an appraiser who had been hired by the
    defendant state highway commissioner to appraise the
    damages arising from a taking of certain property by
    the state was compelled by the plaintiff to testify as an
    expert concerning the value of the condemned prop-
    erty. Thomaston v. 
    Ives, supra
    , 168. Our Supreme Court
    affirmed the judgment requiring that the appraiser tes-
    tify, but carefully limited its holding, noting that ‘‘[t]his
    is not to be taken to mean that every expert witness is
    to be held to the same requirement. The wide diversity
    of subjects on which expert opinion may be required
    and the varying circumstances under which the opinion
    may be sought militate against any such sweeping gen-
    eralization.’’ 
    Id., 174. The
    court specifically noted that
    the purpose of an eminent domain proceeding is ‘‘to
    ensure that the property owner shall receive, and that
    the state shall only be required to pay, the just compen-
    sation which the fundamental law promises the owner
    for the property,’’ and that, therefore, ‘‘[a]ll material
    and relevant information which will assist the trier in
    determining the sum of money which will constitute
    that just compensation should, in justice to both parties,
    be made available . . . .’’ 
    Id. The court
    reasoned that
    an appraiser hired by the state specifically to appraise
    the damages arising from a taking would expect, in the
    normal course of events, to be called to testify about the
    value of that property in a subsequent eminent domain
    proceeding in which the state, which had hired him, was
    a party. 
    Id. As such,
    the court reasoned, the appraiser
    appropriately could be compelled to testify at that pro-
    ceeding. 
    Id. In Hill
    v. Lawrence & Memorial 
    Hospital, supra
    , 
    45 Conn. L
    . Rptr. 790, 792, the court applied the reasoning
    set forth in Thomaston but reached a different result
    under the facts of that case. In Hill, two nonparty treat-
    ing physicians were called as expert witnesses in a
    professional negligence action against the defendants,
    a hospital, a radiology practice and another physician.
    
    Id., 789. The
    court determined that a treating physician,
    as perhaps opposed to an expert hired by an adversary,
    would not, in the normal course of events, expect to be
    called as an expert witness in a professional negligence
    action against a hospital and another treating physician.
    
    Id., 790. The
    court held that the nonparty treating physi-
    cians could not be compelled to testify as experts in
    the underlying action. 
    Id., 792. In
    reaching this conclusion, the court in Hill also
    drew from the reasoning of the Wisconsin Supreme
    Court in Burnett v. 
    Alt, supra
    , 
    224 Wis. 2d 72
    . In Alt, the
    court held that a qualified unretained expert privilege
    existed under Wisconsin law, such that an expert could
    not be compelled to serve as a witness, absent a compel-
    ling need for his or her testimony. 
    Id., 89. That
    court
    noted that ‘‘[u]nlike factual testimony, expert testimony
    is not unique and a litigant will not be usually deprived
    of critical evidence if he cannot have the expert of his
    choice.’’ (Internal quotation marks omitted.) 
    Id. The court
    determined that the compelling need requirement
    would properly strike a balance ‘‘between the right of
    expert witnesses to be free from testifying against their
    will and the needs of the court and litigants for testi-
    mony.’’ 
    Id., 88. Applying
    this reasoning, the court in Hill determined
    that the two nonparty treating physicians could not be
    compelled to testify as experts, because the plaintiff
    had failed to show that there was a compelling need for
    their testimony. Hill v. Lawrence & Memorial 
    Hospital, supra
    , 
    45 Conn. L
    . Rptr. 792. The plaintiff had argued
    that there was a compelling need for the expert testi-
    mony of the decedent’s treating physicians because,
    in addition to being generally conversant as medical
    experts, the physicians had ‘‘unique insight concerning
    the decedent and would therefore be in the best position
    to testify as to treatment and survivability.’’ 
    Id., 791. The
    court rejected this argument, noting that ‘‘[t]his part
    of the plaintiffs’ argument, taken to its logical extension,
    would necessitate that any physician who treats a
    patient after alleged malpractice has occurred is
    required to become an expert witness in an ensuing
    malpractice action. Such a blanket requirement would
    be contrary to the distinction, cited in Thomaston,
    ‘between the duty of a witness to testify to factual
    matter[s] within his knowledge and the imposition of
    a requirement that he voice his opinion concerning a
    subject with which he is conversant as an expert.’ ’’10 
    Id. As set
    forth previously, the decisions of our Superior
    Court have conducted reasoned analyses in recognizing
    a qualified unretained expert privilege under Connecti-
    cut law. Although not bound by them, we find persua-
    sive their reasoning, as well as the Wisconsin Supreme
    Court’s decision in Burnett v. 
    Alt, supra
    , 
    224 Wis. 2d 72
    , and hold that a qualified unretained expert privilege
    exists. Accordingly, the trial court here improperly
    denied Salinas’ motion for a protective order.
    We must next determine the scope of that privilege.
    ‘‘The appropriate scope of expert privilege requires a
    balance between the right of expert witnesses to be
    free from testifying against their will and the needs of
    the court and litigants for testimony.’’ Burnett v. 
    Alt, supra
    , 
    224 Wis. 2d 88
    . We believe that, in order to strike
    this balance properly, the trial court here should, in
    determining whether to grant Salinas’ motion for a pro-
    tective order because his testimony is appropriately
    barred by the qualified unretained expert privilege, con-
    sider (1) whether, under the circumstances, he reason-
    ably should have expected that, in the normal course
    of events, he would be called upon to provide opinion
    testimony in subsequent litigation; and (2) whether
    there exists a compelling need for his opinion testimony
    in this case. Additional considerations may be relevant
    to the analysis, including, for example, whether he was
    retained by a party with an eye to the present dispute.
    The writ of error is granted and the case is remanded
    to the trial court with direction to vacate the order
    denying the plaintiff in error’s motion for a protective
    order, and for further proceedings consistent with
    this opinion.
    In this opinion the other judges concurred.
    1
    Salinas was residing in Florida.
    2
    The issue of qualified privilege, then, was presented to the court, and
    both sides addressed Drown and Hill. The court had the opportunity to
    rule on the issue. Both Salinas and the town expressly addressed the issue
    of qualified privilege in their briefs to this court and at oral argument.
    Accordingly, the issue of qualified privilege was adequately preserved, we
    have an adequate record for review, and no party has suggested that it was
    not preserved.
    3
    We use the phrase ‘‘unretained expert privilege’’ to mean a privilege that
    may be invoked by an expert to prevent the compelled disclosure of his or
    her opinion.
    4
    We address this claim only briefly. Practice Book § 13-30 (b) explicitly
    states that a deponent may be instructed not to answer ‘‘when necessary
    to preserve a privilege . . . .’’ In the circumstances of this case, the court
    ruled that Salinas had no privilege to preserve. Had the deposition proceeded,
    Salinas may have been placed in the unenviable position of either violating
    a putative privilege or disobeying a court order. Both parties have responsibly
    addressed the merits of the claimed privilege; we shall as well.
    5
    Salinas presents the following definition of absolute privilege, which has
    been adopted by courts in other jurisdictions: ‘‘Under the absolute privilege
    the witness is only required to testify regarding his or her observations, just
    as any other witness. The witness is not compelled to give expert testimony
    even if the witness had formed opinions prior to the deposition and without
    additional study, experimentation, thought or reflection.’’ (Internal quotation
    marks omitted.)
    6
    In Milliun, ‘‘[the conserved person] had sought treatment at the Mayo
    Clinic . . . in connection with her cognitive health. At the Mayo Clinic, she
    first was seen by Kathleen M. McEvoy, a physician. McEvoy reported that
    [the conserved person] had brought extensive outside records with her,
    along with an investigative report from the department of health regarding
    the anoxic incident that occurred while she was in the care of the defendant.
    McEvoy’s admittance notes indicated that the plaintiff also reported this
    event to her.’’ Milliun v. New Milford 
    Hospital, supra
    , 
    129 Conn. App. 85
    .
    When the conserved person returned to the Mayo Clinic three years later,
    ‘‘[Stefan A.] Dupont, a resident at the Mayo Clinic, reported in his neurology
    consult that her ‘cognitive dysfunction . . . seems to have occurred because
    of anoxic encephalopathy suffered during her respiratory arrest [while in
    the defendant’s care].’ [Another physician’s] evaluation echoed Dupont’s
    conclusion. He reported as follows: ‘It is my opinion that [the] cognitive
    impairment . . . is secondary to whatever event occurred or whatever tran-
    spired [while she was in the defendant’s care]. . . . Therefore, one must
    conclude that her cognitive impairment was secondary to [that] event
    . . . .’ ’’ 
    Id., 86. 7
         Our decision in Milliun was appealed to our Supreme Court. On appeal,
    that court determined, on the basis of representations made by the plaintiff
    during oral argument, that the issue of privilege was not before them. Milliun
    v. New Milford Hospital, 
    310 Conn. 711
    , 740, 
    80 A.3d 887
    (2013). Because
    that court did not consider the issue of privilege, our decision stands. See
    
    id., 741. 8
         The court was referring to Wis. Stat. § 907.06 (1).
    9
    We note that the Superior Court decisions discussed here predate our
    decision in Milliun. We nonetheless find them informative, though of course
    not binding, especially because the issue of qualified privilege was not
    expressly decided in Milliun. In Patterson v. Midstate Medical Center,
    Superior Court, judicial district of Hartford, Docket No. MMX-CV-10-6002374-
    S (August 21, 2012) (
    54 Conn. L. Rptr. 575
    , 575), which addresses the issue
    of expert privilege following our decision in Milliun, the court acknowledged
    that ‘‘there is no Connecticut appellate authority directly on point’’ on the
    issue of expert privilege. Although the court in Patterson held that a physi-
    cian’s testimony was not protected by an expert privilege, it did not hold that
    an expert privilege does not exist, and it based its decision on considerations
    similar to those outlined later in this opinion. 
    Id., 576. 10
          We note that the fact of whether a newly retained expert had the opportu-
    nity to examine the patient, or other subject of inquiry, may have some
    bearing on the issue of compelling need.
    

Document Info

Docket Number: AC37928

Citation Numbers: 165 A.3d 180, 174 Conn. App. 193, 2017 WL 2645616, 2017 Conn. App. LEXIS 265

Judges: Dipentima, Prescott, Beach

Filed Date: 6/27/2017

Precedential Status: Precedential

Modified Date: 10/19/2024