Redding Life Care, LLC v. Town of Redding

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
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.