47 Conn. Super. Ct. 179 | Conn. Super. Ct. | 2000
The plaintiffs are Melvin Green and his attorney in a foreign action, Harvey I. Pollock, a Canadian lawyer. Attorney Pollock represented Green in a Canadian personal injury action against officers of the Winnipeg, Manitoba police department for permanent and physically debilitating injuries Green received during an arrest. Specifically, on May 1, 1992, officers Jeffrey Lawrence and Conrad Leschied arrested Green for allegedly assaulting his former girlfriend. Lawrence placed Green in a "full nelson" wrestling hold.1 Green claimed that Lawrence's full nelson hold fractured his neck and rendered him a quadriplegic. On May 28, 1992, Pollock filed a lawsuit on Green's behalf in the Court of Queen's Bench of Manitoba, Canada against Lawrence, Leschied and others. In the lawsuit, Green alleged that Lawrence had employed excessive force during the arrest in restraining Green and sought money damages for Green's injury. In defense, Lawrence alleged that Green had caused his own injury by thrusting his legs backwards against Lawrence. To support his defense, Lawrence disclosed expert reports and computer generated animation.
In preparation for trial, Pollock retained the services of the named defendant, Manohar Murlidhar Panjabi, a professor at Yale University (Yale), as a spinal bio-mechanics expert. Panjabi was hired to design and conduct experiments to demonstrate how Green's neck *181 injury and quadriplegia were caused by the officer's full nelson hold. Pollock agreed to pay Panjabi $400 per hour, plus travel and accommodation expenses, and Panjabi agreed that (a) he would prepare a report of his findings and conclusions and appear in court to communicate his expert opinion, (b) he would determine and explain the mechanism of Green's injuries using the science of spinal biomechanics with the skill, due care and diligence expected of a "world-class spinal bio-mechanic," (c) any experiment he would use for the purpose of confirming his theory as to the biomechanics of Green's injury and the results achieved thereof could be replicated by other scientists and would be defensible among his scientific peers, (d) he would ensure that all equipment he used in the gathering of data was fit for its intended purpose and that the data generated thereby was reliable, and (e) he would adhere to the scientific process and methodology acceptable within the scientific community. The complaint alleges that Green is an intended beneficiary of this agreement.
Panjabi chose to employ the defendant Jacek Cholewicki, a kinesiologist, 2 to assist him in completing the undertaking. Cholewicki is also a professor at Yale. Panjabi and Cholewicki allegedly used Yale's facilities, equipment and personnel to conduct the experiments to recreate the forces exerted on Green when Lawrence placed him in the full nelson hold. Pollock allegedly paid Yale $2000 by check made out to "Bio-mechanics Laboratory/Dr. Panjabi" for the use of Yale's laboratory, equipment and personnel. Based on the data produced from these experiments, Panjabi provided Pollock and Green with reports that concluded that Lawrence had unilaterally caused Green's injuries. Pollock and Green provided these reports to Lawrence's solicitors. *182
Judge Alan Macinnes of the Court of Queen's Bench of Manitoba granted the request by Lawrence's solicitor for pretrial voir dire of Panjabi. As a result of this questioning, it was discovered that the load cell Panjabi and Cholewicki had used in their experiment was defective.3 Accordingly, Judge Machines ruled that Panjabi's expert opinion was not credible evidence and, therefore, not admissible at trial.
To remedy the unfavorable ruling, Pollock requested a continuance of the trial to permit Panjabi to conduct another experiment using an accurately functioning load cell. Judge Machines granted the request on the conditions that (1) the original experiment be exactly replicated and any subsequent testimony of Panjabi be confined to the new results, and (2) before Panjabi's testimony would be admissible at trial, it would have to be established that the load cell in Panjabi's original experiment actually had been defective.
Panjabi conducted the second experiment with a "corrected" load cell and provided Pollock with a new report. Panjabi, however, refused to testify in court unless he was paid $13,050. To protect Green's interests, Pollock paid Panjabi the additional money. Panjabi appeared in court and underwent voir dire a second time. At the conclusion of the second voir dire, Judge Machines again disallowed Panjabi's testimony because he had not followed the scientific methodology of the original experiment. The court awarded costs against Green in the amount of $9200 (Canadian dollars)
Judge Machines granted Pollock's request for a second continuance to allow Panjabi another opportunity *183 to conduct the experiment again. Panjabi did so and provided Pollock with a new report, which Pollock disclosed to Lawrence's solicitors. A defense expert then issued a report opining that Panjabi had again deviated from scientific methodology in conducting the original experiment a second time. A third continuance was granted, with the court advising counsel that the issue of costs would be addressed at the conclusion of the trial.
Panjabi again refused to appear in court unless he was paid additional money. Pollock again paid Panjabi the demanded money. Panjabi and Cholewicki then provided Pollock with another report. For a third time, Panjabi appeared in court and underwent voir dire. At the conclusion of the third and last voir dire, Judge Macinnes again ruled that Panjabi's experiments were incorrectly performed and that his reports would be inadmissible at trial.4
Pollock and Green subsequently filed the present lawsuit against Panjabi, Cholewicki and Yale, claiming that the plaintiffs were damaged because of the manner in which Panjabi and Cholewicki rendered their services. In the first count of their revised complaint, Pollock and Green allege that Panjabi breached his contract with Pollock by, inter alia, failing to perform the contractual undertakings involving the load cell experiment. The second count alleges that the negligence of Panjabi and Cholewicki caused damages to Green and Pollock. In the third count, the plaintiffs allege that the acts and omissions of Panjabi and Cholewicki were unfair and deceptive acts and practices in the conduct of trade or commerce, in violation of the Connecticut *184
Unfair Trade Practices Act (CUTPA), General Statutes §
"It has long been established that there is an absolute privilege for statements made in judicial proceedings. See Briscoe v. LaHue,
"The judicial proceeding to which the immunity attaches has not been defined very exactly. It includes any *186 hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not." (Internal quotation marks omitted.) Id., 246. "The common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy. . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citation omitted.) Id., 251-52.
In Kelley v. Bonney,
"The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Petyan v.Ellis, supra,
These policy reasons undergirding the absolute privilege accorded witnesses are not implicated here. This is not a case in which the right of a witness to speak freely, in or out of court, is involved. While conduct, objects and experiments may have communicative aspects; see, e.g., Texas v. Johnson,
In most of the cases from other jurisdictions on which the defendants rely; Giffin v. Summerlin,
Bruce was a five to four decision. In a cogent dissent, Justice Pearson wrote: "The question in this case is not whether an expert witness is immune from subsequent suit for defamatory statements made in a court of law. That question is well settled. Rather, today we are asked whether a professional's act of malpractice outside the courtroom is somehow immunized by the subsequent articulation of that negligently formed opinion in a judicial proceeding. Neither the law of absolute immunity nor sound public policy dictates the result reached by the majority. I would hold that a client's action for malpractice is not barred by the defense of absolute immunity merely because the professional subsequently publishes his or her opinion in a court of law. . . ." Id. "[T]he majority extends the rule to shield otherwise actionable professional malpractice." Id. This court finds these observations persuasive. *191
In LLMD of Michigan, Inc. v. Jackson-Cross Co.,
The Murphy court also opined that the threat of liability would not "encourage experts to take extreme and ridiculous positions in favor of their clients in order to avoid a suit by them," nor would "litigants . . . be unable to retain experts to help prepare claims and present testimony." Id. Its decision, the court wrote, was "based primarily upon the commercial relationship assumed by the professional and his or her role as an advocate. . . . We find no reason or principle of public policy justifying the extension of witness immunity to professionals retained for litigation support services." Id., 682.
LLMD of Michigan, Inc., is closely analogous to the present case. InLLMD of Michigan, Inc., the plaintiff had brought a lawsuit for breach of contract. Its attorney retained the defendant expert on the issue of lost *193
profits arising out of the breach. As a result of a mathematical error committed by the defendant, however, its calculation of lost profits was undermined at trial on cross-examination and the defendant's opinion was stricken from the record by the trial judge. The plaintiff was constrained to settle its claim for $750,000. The defendant itself subsequently determined that an accurate estimation of the plaintiff's lost profits was $2.7 million. The plaintiff then sued the defendant for malpractice. The lower court granted the defendant's motion for summary judgment. LLMD of Michigan, Inc. v. Jackson-Cross Co., supra,
After reviewing the policy considerations underlying the doctrine of witness immunity, the Pennsylvania Supreme Court reversed, stating: "We are unpersuaded, however, that those policy concerns are furthered by extending the witness immunity doctrine to professional negligence actions which are brought against an expert witness when the allegations of negligence are not premised on the substance of the expert's opinion. We perceive a significant difference between Panitz and [the plaintiff's] claim in this case that [the defendant] had been negligent in performing the mathematical calculations required to determine lost profits. The goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion. The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession." Id., 306-307. *194
This court finds this reasoning apposite here. The policy on which witness immunity in Connecticut is based — having witnesses speak freely — is not implicated by the allegations of the complaint, which seek to hold the defendants accountable for not doing what they agreed to do. The motion to strike counts one, two and three based on the doctrine of witness immunity, therefore, is denied.
The defendants' first argument is that the acts alleged in the revised complaint were not performed during the course of trade or commerce as required by General Stautes §
The defendants' argument is expressly based on Haynes v. Yale-New HavenHospital,
This court is not persuaded that the Haynes-Beverly Hills Concepts,Inc., doctrine applies to the acts and omissions of Panjabi and Cholewicki. First, the Supreme Court in Haynes did not suggest that professional negligence, other than medical or legal malpractice, fell outside of CUTPA's ambit. This court does not read the Haynes court's statement that "professional negligence — that is, malpractice — does not fall under CUTPA," to state otherwise. Haynes v. Yale-New Haven Hospital, supra,
Second, to the extent the Haynes-Beverly Hills Concepts, Inc. doctrine rested on the distinction between entrepreneurial or commercial aspects of a profession on the one hand, which are covered by CUTPA, and mere incompetence, which is not; see Haynes v. Yale-New Haven Hospital, supra,
Third, the defendants are not benefited by Advest Group, Inc. v. ArthurAndersen, LLP, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV970571417 (July 28, 1998) (
The defendants' second argument is that a simple breach of contract claim and a negligence claim are insufficient to support a CUTPA action. In response, the plaintiffs argue that they have alleged that the defendants committed more than simple negligence or breach of contract by destroying data and threatening to withhold testimony. The plaintiffs contend that the alleged acts qualify as unfair and deceptive acts that are unethical, oppressive and unscrupulous. Specifically, they argue that the defendants committed unfair and deceptive acts by destroying data to prevent the plaintiffs from examining and verifying the data and by threatening to withhold services from the plaintiffs and not testify in court if the plaintiffs did not first pay them additional moneys, not contractually agreed upon. The plaintiffs allege that the foregoing deceptive acts or practices, combined with Panjabi's alleged incompetence, constitute the basis for the CUTPA violation.
"`[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation.' Lester v. Resort CamplandsInternational, Inc.,
The defendants' third argument is that the allegations in the revised complaint constitute a single act, either a breach of contract or negligence, and do not constitute a pattern, practice or course of conduct which CUTPA requires. In reply, the plaintiffs argue that, although the Connecticut Appellate Court has not clearly decided the issue, other authority provides that a single act will suffice when the act relates to the actor's business activity. Nonetheless, the plaintiffs argue that even if this court were to find that a single act is insufficient to constitute a CUTPA claim, the defendants' alleged unfair or deceptive business practice was comprised of numerous bad acts, which occurred over the course of a year and involved multiple experiments, substantial client interaction, and several court appearances and, therefore, give rise to a CUTPA claim.
This court continues to concur, as it has in the past, with the reasoning of those cases that have held CUTPA to be applicable to a single transaction that occurs in the conduct of any trade or commerce. See, e.g., Bank of New Haven v. Karas Motors, Inc., Superior Court, judicial district of New Haven, Docket No. 414574 (July 28, 1999) (Levin, J.); Holeva v. M Z Associates, supra, Superior Court, Docket No. CV N.H. 9709-8403. Although there is a split of authority within the Superior Court as to whether a single act is sufficient to constitute a violation of CUTPA; see L. Suzio Concrete Co. v. Citizens Bank ofConnecticut, Superior Court, judicial district of New Haven, Docket No. CV970398079 *199
(August 7, 1998) (Silbert, J.); the majority of Superior Court decisions have held that a party need not allege more than a single act of misconduct to bring an action under CUTPA.10 To the extent that this unfortunate discord in the case law may be ascribed to the plural form in which the basic prohibition of CUTPA is phrased; see footnote 7 of this opinion; it is telling that General Statutes §
Moreover, in their complaint, the plaintiffs allege multiple acts that may fairly be characterized as unfair or deceptive. As has already been recounted previously in this opinion, the defendants allegedly refused, on two separate occasions, to perform the tests; further, they destroyed data and refused to testify for the second and third court appearances unless the plaintiffs first paid them additional moneys.
The defendants' final argument with respect to the legal sufficiency of the plaintiffs' CUTPA claim is that the challenged conduct can neither be characterized as offensive to public policy, immoral, unethical nor oppressive, and cannot be found to have caused substantial consumer injury. As already observed, the plaintiffs have alleged that the defendants destroyed data to prevent them from examining and verifying the data and threatened to withhold services and not testify in court if they were not first paid additional moneys. These acts are sufficient to satisfy the second prong of the "cigarette test" because the alleged conduct is offensive to public policy, unethical or oppressive. The motion to strike the CUTPA count against Panjabi and Cholewicki, therefore, is denied.
In A-G Foods, Inc., the defendant's employee committed an intentional tort, fraud, by charging the plaintiff's stores for goods he had not delivered. The Supreme Court stated: "[I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business. . . . [I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine [of respondeat superior] to apply." (Citations omitted; internal quotation marks omitted.) Id., 208. "[T]he vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business." (Internal quotation marks omitted.) Id., 210. The Supreme Court in A-GFoods, Inc., held that the evidence at trial did not support a finding that the employee was acting within the scope of his employment and in furtherance of the employer's business. Id. It further held that negligent supervision by an employer of an employee who commits an intentional tort is, without more, insufficient to support CUTPA liability against the employer. Id., 208.
"It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University,