174 Conn. App. 193
Conn. App. Ct.2017Background
- Plaintiff in error David R. Salinas, an appraiser, had prepared two bank appraisals of property later subject to a tax-assessment appeal by Redding Life Care, LLC.
- The Town of Redding sought to depose Salinas in the unrelated tax appeal to obtain his valuation opinions; Salinas had not been retained in that tax appeal.
- Salinas moved for a protective order, arguing Connecticut recognizes a privilege shielding unretained experts from compelled opinion testimony; the trial court denied the motion, reasoning Salinas had already authored opinions in the appraisals.
- Salinas filed a writ of error seeking reversal of the denial; the matter reached the Connecticut Appellate Court on plenary review of the legal question whether an unretained-expert testimonial privilege exists and whether it is absolute.
- The Appellate Court concluded Connecticut recognizes a qualified (not absolute) privilege for unretained expert witnesses and remanded for the trial court to apply the qualified-privilege framework.
Issues
| Issue | Plaintiff's Argument (Salinas) | Defendant's Argument (Town) | Held |
|---|---|---|---|
| Does an unretained-expert testimonial privilege exist under Connecticut common law? | Connecticut recognizes such a privilege; several Superior Court decisions support it. | No need to decide; Salinas’ opinions are discoverable under liberal discovery rules. | Yes — Connecticut recognizes a qualified unretained-expert privilege. |
| If a privilege exists, is it absolute or qualified? | Privilege should be absolute or at least broad qualified with "compelling need" exception. | Any privilege is not absolute; precedent (Thomaston) supports case-by-case balancing. | Not absolute; the court rejects an absolute rule and adopts a qualified privilege. |
| What is the proper test/scope for the qualified privilege? | (Salinas) Privilege should protect previously formed opinions except in compelling necessity. | (Town) Discovery can reach opinions that reasonably lead to admissible evidence. | Adopt two-part inquiry: (1) would expert reasonably expect to be called to give opinion; and (2) is there a compelling need for the expert’s opinion; other factors may inform the balance. |
| Did the trial court err in denying the protective order to Salinas? | Denial was error because qualified privilege applies and trial court did not apply the proper balancing test. | Denial was justified because appraisals already existed and discovery is broad. | Yes — trial court erred; order denying protective order vacated and remanded for application of qualified-privilege analysis. |
Key Cases Cited
- Milliun v. New Milford Hospital, 129 Conn. App. 81 (Conn. App. 2011) (addressed compelled testimony of nonparty physicians; court declined to create categorical privilege)
- Milliun v. New Milford Hospital, 310 Conn. 711 (Conn. 2013) (Supreme Court disposition on appeal; noted privilege issue not decided by that court)
- Thomaston v. Ives, 156 Conn. 166 (Conn. 1968) (recognized context-specific limits on compelling experts, emphasizing differing expectations across subject areas)
- Burnett v. Alt, 224 Wis. 2d 72 (Wis. 1999) (Wisconsin Supreme Court recognizing a qualified unretained-expert privilege with a "compelling need" exception)