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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 Tiffany 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, 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 commission1

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 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-CV4034622-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 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 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 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

ofreview. 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 (2000)(whether court should recognize

civil fraud exception to attorney-client privilege and

limitations on exception are questions of law). Accordingly, our review is plenary.

We turn first to the issue of whether we should recognize 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 incident, but priorto 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 ‘‘compelling 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 omitted.) ‘‘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 protection. . . . Furthermore, an expert only can be compelled 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 privilege 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 quotation 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 treating 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-CV000075599-S (June 16, 2003) (plaintiff could not require

witness to render expert opinion regarding whether

brake system was defective and whether defect proximately 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 Thomaston 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 Practice Book and the Wisconsin statute that served as the

basis for the unretained expert privilege under Wisconsin 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 consents 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 partthat‘‘[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 property. Thomaston v. Ives, supra, 168. Our Supreme Court

affirmed the judgment requiring that the appraiser testify, 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 generalization.’’ 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 compensation 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 proceeding. 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 treating 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 physicians 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 compelling 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 testimony.’’ 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

theirtestimony. Hill v. Lawrence & Memorial Hospital,

supra, 45 Conn. L. Rptr. 792. The plaintiff had argued

that there was a compelling need for the expert testimony 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 courtrejected 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 Connecticut law. Although not bound by them, we find persuasive 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 protective order because his testimony is appropriately

barred by the qualified unretained expert privilege, consider (1) whether, under the circumstances, he reasonably 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 orreflection.’’(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 transpired [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,

SuperiorCourt, 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 physician’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 opportunity to examine the patient, or other subject of inquiry, may have some

bearing on the issue of compelling need.