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Redding Life Care, LLC v. Town of Redding

Court of Appeals of Connecticut

June 27, 2017

REDDING LIFE CARE, LLC
v.
TOWN OF REDDING

          Argued January 6, 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 Tiffany K. Spinella, for the defendant in error (town of Redding).

          DiPentima, C. J., and Prescott and Beach, Js.

          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, unrelated 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 challenge 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 lending to Redding Life. In July, 2014, after learning about these appraisals, the town filed a motion for commission[1] to depose Salinas. Redding Life and Capital Source 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 Connecticut law ‘‘prohibit[s] the compulsion of unretained expert testimony, '' and referred the court to the decisions 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 necessity, 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 subsequently filed a motion seeking the following articulation: ‘‘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 follows: ‘‘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 recognize that an unretained expert privilege[3] 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 discoverable 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 unretained 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 concluded 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 ...


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