United States District Court, D. Connecticut
RICKY C. DAVIS, Plaintiff,
CAROLINE B. LAPISH, et al., Defendants.
RULING ON MOTION TO DISMISS
MICHAEL P. SHEA, U.S.D.J.
se plaintiff Ricky C. Davis brings this defamation
action against the defendants, Caroline Lapish and her
employer, the law firm of Adler Pollock & Sheehan
Pending before the court is the defendants' motion to
dismiss the complaint. (ECF 36.) The motion is granted.
case arises from an earlier lawsuit the plaintiff filed
against Home Depot in which he alleged personal injury.
Davis v. Home Depot, No. 3:16CV8(MPS). During the
litigation of that case, the court scheduled a settlement
conference to be conducted by a magistrate judge. (ECF 52.)
In March 2017, the plaintiff, the plaintiff's wife, and
the plaintiff's son attended a settlement conference at
the courthouse. Ms. Lapish, an attorney who represented Home
Depot, and the magistrate judge also were present. During the
settlement conference, Ms. Lapish stated that there was
medical evidence that the plaintiff had consumed cocaine. On
April 14, 2017, the parties filed a stipulation of dismissal
and the court accordingly dismissed the case with
prejudice. (ECF 63, 64.)
the plaintiff filed this action against Ms. Lapish and Adler
Pollock & Sheehan P.C. alleging defamation arising from
Ms. Lapish's remarks during the settlement conference.
defendants argue that the complaint should be dismissed
because the alleged statements are subject to the litigation
privilege under Connecticut state law. The allegedly
defamatory statements, the defendants maintain, were
"made in the context of a judicial proceeding and are,
therefore, absolutely privileged." (ECF 34 at 8.)
Connecticut law, "absolute immunity," also known as
the litigation privilege, "bars defamation claims that
arise from statements made in the course of judicial or
quasi-judicial hearings." Rioux v. Barry, 283
Conn. 338, 344 (2007). "[C]ommunications uttered or
published in the course of judicial proceedings are
absolutely privileged so long as they are in some way
pertinent to the subject of the controversy. . . . The effect
of an absolute privilege is that damages cannot be recovered
for a defamatory statement even if it is published falsely
and maliciously." Petyan v. Ellis, 200 Conn.
243, 245-46 (1986) (internal quotation marks and citation
omitted); see also Mozzochi v. Beck, 204 Conn. 490,
494 (1987)("Because litigants cannot have [unfettered
access to the courts] without being assured of the
unrestricted and undivided loyalty of their own attorneys, we
have afforded to attorneys, as officers of the court,
absolute immunity from liability for allegedly defamatory
communications in the course of judicial proceedings.").
"The privilege extends beyond statements made during a
judicial proceeding to 'preparatory communications that
may be directed to the goal of the proceeding.'"
Tyler v. Tatoian, 164 Conn.App. 82, 88 (2016)
(quoting Hopkins v. O'Connor, 282 Conn. 821, 832
(2007)); see also Alexandru v. Dowd, 79 Conn.App.
434, 438 (2003)("The privilege applies also to
statements made in pleadings or other documents prepared in
connection with a court proceeding."); Carney v.
Amendola, No. CV106003738, 2014 WL 2853836, at *8 (Conn.
Super. Ct. May 14, 2014) (noting that "[t]he privilege
extends to statements made preliminary to a judicial
proceeding" and finding that statements by lawyer aimed
at soliciting client and in contemplation of litigation were
privileged). "Its application serves to avoid chilling
the vigorous advocacy expected in an adversarial system of
justice by barring retaliatory suits by third parties against
counsel for their communications and actions made in the
course of the representation." Kramer v.
Sierra, No. HHDCV186098422S, 2019 WL 4322463, at *2
(Conn. Super. Ct. Aug. 19, 2019). "The privilege . . .
is based upon a public policy of securing to attorneys as
officers of the court the utmost freedom in their efforts to
secure justice for their clients." McManus v.
Sweeney, 78 Conn.App. 327, 335 (2003). It "protects
the rights of clients who should not be imperiled by
subjecting their legal advisors to the constant fear of
lawsuits arising out of their conduct in the course of legal
representation. The logic is that an attorney preparing for
litigation must not be hobbled by the fear of reprisal by
actions for defamation . . . which may tend to lessen
[counsel's] efforts on behalf of clients." Simms
v. Seaman, 308 Conn. 523, 535 (2013).
Lapish made the alleged comments during the settlement
conference in the context of informing the judge of the
defendant's position as to the medical evidence that the
defendant intended to offer should the case proceed to trial.
(ECF 41, Pl's Oppn at 8.) Although there does not appear
to be any Connecticut appellate authority addressing
specifically whether the privilege applies to statements made
to a judge or mediator during a settlement conference, I
predict that the Connecticut Supreme Court, if faced with
such facts, would conclude that the privilege applies.
Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d
114, 118 (2d Cir. 1994)("Federal courts sitting in
diversity cases will, of course, apply the substantive law of
the forum State on outcome determinative issues . . . . Where
the substantive law of the forum state is uncertain or
ambiguous, the job of the federal courts is carefully to
predict how the highest court of the forum state would
resolve the uncertainty or ambiguity.") (internal
a lawyer makes to a judge during a mediation about the
anticipated evidence at trial are "pertinent to the
subject of the controversy," Peytan, 200 Conn.
at 245-46, and protecting such statements furthers the
"public policy of securing to attorneys as officers of
the court the utmost freedom in their efforts to secure
justice for their clients." McManus, 78
Conn.App. at 335. Two Connecticut Superior Court judges have
reached a similar conclusion. In Kenneson v. Eggert,
No. CV145016613, 2018 WL 4778386, at *3 (Conn. Super. Ct.
Sept. 13, 2018)(Brazzel-Massaro, J), the plaintiff brought
suit against the attorney who represented the defendant in an
earlier action the plaintiff had commenced. At issue were the
attorney's communications made during settlement
discussions in the earlier case. The court concluded that the
plaintiff's lawsuit was barred because "the
settlement discussions [in the earlier case] were part of a
judicial proceeding and thus fall within the claims that are
protected by the absolute litigation privilege."
Id. at *4. Similarly, in Ghio v. Liberty Ins.
Underwriters, Inc., No. X07HHDCV196104759S, 2019 WL
2142830, at *1 (Conn. Super. Ct. Apr. 12, 2019), the
plaintiffs sued the attorneys who represented the defendants
in an earlier case regarding their communications during
settlement negotiations. The court (Moukawsher, J.) observed
that Connecticut "courts have repeatedly rejected
lawsuits about communications and behavior in connection with
court legal proceedings in general and concerning lawyers in
particular" and reasoned that the litigation privilege
was necessary to protect settlement negotiations. 2019 WL
2142830, at *1. The court held that the communications at
issue were "part of a judicial proceeding" and that
the defendant attorneys "are absolutely immune from
being sued for them." Id. at *3. As in
Kenneson and Ghio, the litigation privilege
bars the plaintiff's defamation claims in the instant
case. Because I so conclude, I need not address the
defendants' other arguments.
reasons set forth above, the defendants' motion to
dismiss (ECF 36) is GRANTED.