Opinion
CV115014231
04-25-2017
Chandra Bozelko v. Tina Sypek D'Amato
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Timothy D. Bates, J.
FACTS
This action arises out of a claim by the plaintiff, Chandra Bozelko, that while being represented by the defendant attorney, Tina Sypek D'Amato, Attorney D'Amato committed legal malpractice. In her complaint, filed on August 11, 2011, the plaintiff alleges the following facts:
Plaintiff having been convicted of a crime but not yet sentenced, entered a retainer agreement in November 2007, with Attorney D'Amato. On December 7, 2007, Attorney D'Amato appeared on the plaintiff's behalf at the plaintiff's sentencing hearing. The plaintiff claims that in the course of representing her at the hearing, Attorney D'Amato committed legal malpractice when she 1) failed to secure a continuance of the sentencing hearing before advising the plaintiff she would not be sentenced that day; 2) misrepresented the purpose of the December 7, 2007, proceeding; 3) misrepresented the content of the pre-sentence investigation report; 4) failed to correct mistakes and/or material misrepresentations in the pre-sentence investigation report; 5) failed to review the pre-sentence investigation report with the plaintiff; 6) failed to correct misconduct by the judge; 7) failed to prepare for sentencing; and 8) failed to maintain client confidentiality at the December 7, 2007, proceeding.
On June 23, 2016, Attorney D'Amato filed this motion for summary judgment (#182) along with a memorandum of law in support (#183). The defendant claims that there is no genuine issue of material fact remaining as to whether the plaintiff is required, in a legal malpractice trial, to present expert testimony with regard to the standard of care and causation and that plaintiff's failure to obtain such expert testimony entitles defendant to judgment as a matter of law. The defendant attached the following exhibits: the plaintiff's complaint; defendant's first set of interrogatories; affidavit of Michelle Wojcik, the defendant's attorney; and a motion for order re schedule for expert disclosure.
On September 14, 2017, the plaintiff filed an objection (#186) along with a memorandum of law in support (#187) arguing that an expert witness was not necessary for plaintiff to make her prima facie case and therefore, the lack of an expert is not dispositive of the case on summary judgment. The plaintiff submitted the transcript from the December 7, 2007 sentencing proceeding as an exhibit attached to her memorandum of law.
On September 20, 2016, this judge ordered the parties to brief the relevancy of the holding in Connecticut Supreme Court decision in Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016), to the present case. The parties were ordered to present their briefs to the court by October 11, 2016. On October 11, 2016, the defendant submitted her brief (#190). On October 12, 2016, the plaintiff submitted her brief (190).
To date, there has been no objection to the timeliness of this filing.
After a status conference held on December 22, 2016, the parties agreed to move forward with adjudication of the defendant's motion for summary judgment (#182) and also agreed that two items should be entered into the record for consideration: 1) the opinion of Judge Sferrazza in August 2013; and 2) the transcript from the hearing in May 2013. This judge ordered (#198) that the defendant provide those items with a responsive briefing by January 5, 2017, which the defendant complied with. In the same order, this judge ordered the plaintiff to submit a responsive brief by January 19, 2017, which was submitted on January 20, 2017. By the same order, either party could request oral argument by January 25, 2017. In her submission on January 26, 2017, the plaintiff requested oral argument on the defendant's motion for summary judgment. Oral argument was granted and heard on April 3, 2017.
To date, there has been no objection to the timeliness of this filing.
To date, there has been no objection to the timeliness of this filing.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
In her motion for summary judgment (#182), along with her memorandum in support (#183), the defendant argues that she is entitled to summary judgment as a matter of law on the ground that the plaintiff failed to obtain expert testimony which is required for a legal malpractice claim. The defendant argues that the plaintiff cannot prevail on her claim of legal malpractice without providing expert testimony about the standard of care and causation as these are essential elements to her legal malpractice claim. The defendant argues that the plaintiff had shown no intention to obtain such testimony before trial and that the lack of this testimony is fatal to the plaintiff's claim.
The plaintiff counters in her objection (#187) that the defendant is not entitled to summary judgment because there is an exception as to when expert testimony is required and that is when the defendant's conduct is so egregious and deficient that even a lay person could determine that there was negligence on the part of the defendant attorney. In the present case, the plaintiff argues that the defendant's conduct meets this test and therefore expert testimony is not necessary. The crux of the plaintiff's argument is that the defendant admitted to not being prepared at the December 7, 2007 proceeding and that this admission shows that her conduct was so clear and obvious that there is no need for expert testimony. Further, the plaintiff argues that the defendant made inconsistent statements about her preparedness at the December 7, 2007 proceeding and these obvious inconsistencies do not require expert testimony for the trier of fact to determine malpractice. Also, the plaintiff argues that because she has not claimed the case to a jury and, rather is trying her case to the court, that she does not need to obtain expert testimony because she will be giving evidence only to the judge and a judge is not a layperson for purposes of the requirement.
In her reply memorandum, the defendant argues (#189) that the plaintiff's claim that a different standard should apply because the matter is being tried to the court instead of a jury is incorrect. Further, she argues that the plaintiff has failed to show evidence that this matter falls within the exception of the requirement that the plaintiff must present expert testimony in a legal malpractice action.
In her supplemental memorandum (#190), as ordered by this court (#182.01), the defendant addresses the impact, if any, that the decision in Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016), has on the present case. The defendant argues that the decision strengthens her contention that the plaintiff is required to provide expert testimony and is consistent with the line of cases that the defendant has relied on thus far. In response, the plaintiff argues (#191) that the decision is not instructive because the matter in Bozelko v. Papastavros, supra, was meant to be heard by a jury and the requirement to have expert testimony is not applicable under the present circumstances because she is presenting the present matter to the court. Further, she continues the argument that the present case involves clear gross negligence and would not require expert testimony regardless.
In her supplemental memorandum (#199), as ordered by this court (#198), the defendant addresses whether the impact, if any, of the opinion in Bozelko v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-4003804-S, (August 13, 2013, Sferrazza, J.), and the transcript from the habeas hearing in May 2013, of Bozelko v. Warden, supra, has any effect on the present case. The defendant argues that neither have any impact on the present decision except to strengthen her position that the plaintiff has still failed to show that her claims fall within the exception to the necessity of expert testimony. In response, the plaintiff argues (#201) that these documents show that the defendant perjured herself and that the defendant is estopped from making any claim or defense under both the unclean hands doctrine, as well as the fraud on the court doctrine.
It first must be decided whether expert testimony is necessary in legal malpractice claims for purposes of this motion for summary judgment.
" Summary judgment in favor of a defendant is proper when expert testimony is necessary to prove an essential element of the plaintiff's case and the plaintiff is unable to produce an expert witness to provide such testimony." Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." (Emphasis omitted; internal quotation marks omitted.) " In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." Grimm v. Fox, 303 Conn. 322, 330, 33 A.3d 205 (2012).
" The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant's conduct . . . The second component, proximate causation, requires us to determine whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . That is, there must be an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct] . . . This causal connection must be based [on] more than conjecture and surmise . . . [N]o matter how negligent a party may have been, if his negligent act bears no [demonstrable] relation to the injury it is not actionable . . ." (Internal quotation marks omitted.) Bozelko v. Papastavros, supra, 323 Conn. 283, citing Stuart v. Freiberg, 316 Conn. 809, 833-34, 116 A.3d 1195 (2015).
" The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . In legal malpractice actions arising from prior litigation, the plaintiff typically proves that the . . . attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the [attorney] not been negligent. This traditional method of presenting the merits of the underlying action is often called the case within a case . . . More specifically, the plaintiff must prove that, in the absence of the alleged breach of duty by her attorney, the plaintiff would have prevailed [in] the underlying cause of action and would have been entitled to judgment . . . To meet this burden, the plaintiff must produce evidence explaining the legal significance of the attorney's failure and the impact this had on the underlying action." (Citations omitted; internal quotation marks omitted.) Bozelko v. Papastavros, supra, 323 Conn. 284.
The Connecticut Supreme Court " previously has explained that, as a general matter, expert testimony is necessary in legal malpractice cases in order to establish the standard of care, against which the attorney's conduct should be evaluated . . ." Id. " [E]xpert testimony also is a general requirement for establishing the element of causation in legal malpractice cases." Id. " The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard." (Internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn.App. 410, 420, 835 A.2d 477 (2003). Both standard of care, as well as causation, are essential to the plaintiff's claim of legal malpractice, and it is clear that expert testimony is required to establish these elements of the plaintiff's case.
In the present case the defendant argues that because the plaintiff has failed to disclose an expert and has made no efforts to obtain an expert, she therefore cannot prove all of the essential elements of her claim. In support of that argument, the defendant has submitted plaintiff's responses to defendant's interrogatories, an affidavit of Attorney Michele Wojcik, as well as the suggested motion for order submitted by the defendant for a schedule requiring plaintiff to provide an expert by December 30, 2015. The defendant argues that the responses to defendant's interrogatories show that the plaintiff had originally identified Attorney Robert Gulash as her expert witness. The defendant argues that the affidavit of Michele Wojcik shows that when asked whether Attorney Gulash would be available for deposition, the plaintiff responded that Attorney Gulash had failed to render an opinion and that when asked if she would obtain a different expert, the plaintiff failed to respond. The defendant further argues that the motion for order which was granted showed a schedule for plaintiff to provide an expert which she failed to comply with. The defendant has met its burden in showing that the plaintiff did not provide expert testimony. The lack of expert testimony, as proven by defendant, would therefore be fatal to the plaintiff's legal malpractice claim as she cannot prove all of the essential elements of her prima facie claim.
" There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person." Grimm v. Fox, 303 Conn. 322, 336, 33 A.3d 205 (2012). This " exception is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client's interests . . ." Id. But this exception is strict and narrowly applied.
This exception was applied in Paul v. Gordon, 58 Conn.App. 724, 754 A.2d 851 (2000) where the defendant attorney who was retained to help with negotiation of a lease, did not show up for anything and did nothing to advocate for his client allowing default judgment in a summary process eviction to be decided against the defendant attorney's client in the matter. The court holding that " no expert testimony is required to establish legal malpractice in a situation where an action has been brought against a party and judgment by default is rendered against that party in the case because his attorney has allegedly done absolutely nothing to protect him. The defendant's alleged failure to take any action whatsoever to protect the interests of the plaintiffs is conduct that involves such an obvious and gross want of care and skill that the neglect would be clear even to a layperson."
In contrast, in Pagan v. Gonzalez, Superior Court, judicial district of New Haven, Docket No. CV-04-4000688-S, (April 17, 2007, Holden, J.), aff'd, 113 Conn.App. 135, 965 A.2d 582 (2009), where the plaintiff alleged that the defendant had blatantly misrepresented him in his criminal proceedings leading to a bad outcome from the plaintiff, the court held that the defendant's evidence indicated that the defendant attorney took a number of actions on behalf of his client, including entering into substantial negotiations, including plea negotiations, which ended in the result the client wanted and that this the plaintiff failed to produce sufficient evidence that the defendant attorney had " blatantly misrepresented him by doing nothing."
In the present case, the plaintiff argues that in representing the plaintiff at her sentencing hearing on December 7, 2007, the defendant attorney's statements that she was not ready for sentencing and that she did not know enough about the plaintiff to advocate for her are sufficient on their face to prove that the defendant committed legal malpractice in such a gross and obvious way that her conduct falls within the exception as articulated above. In support of her argument, the plaintiff submitted the transcript from the December 7, 2007, proceeding. However, based on this alone, the standard of care and the causal link between the plaintiff's allegations of negligence and the plaintiff's sentence are far from obvious. Specifically, even if the defendant's statements were negligent or evidenced negligence, it would not be entirely clear to a lay person that these statements alone were enough to effect the outcome of the plaintiff's sentence. It is also apparent that the defendant's statements do not show such gross want of care that her conduct falls within the very limited exception as to not require expert testimony. To the contrary, because the exception requires so little to be done on the part of the defendant attorney to meet this test, the defendant has surpassed this threshold by showing up and advocating on behalf of the client who she was there to represent. Ultimately, the evidence of statements made by the defendant are not sufficient to show that defendant attorney's conduct was so egregious that it would not require expert testimony to establish malpractice. As a result, she has not raised a genuine issue of material fact that would survive the defendant's motion for summary judgment.
The plaintiff argues that a genuine issue of material fact remains as to whether she is required to provide expert testimony because she argues that the defendant later made inconsistent statements with the ones made at the December 7, 2007 proceeding. The plaintiff alleges that the defendant stated at the May 24, 2013, habeas trial in Bozelko v. Warden, supra, Superior Court, Docket No. CV-10-4003804-S, that the defendant stated she had not been prepared for the December 7, 2007 proceeding. In support of this argument, the plaintiff has submitted transcripts from the December 7, 2007 proceeding and a transcript from State v. Bozelko, Superior Court, judicial district of Ansonia-Milford, Docket No. CR-05-128445-S, (November 28, 2008), in a July 13, 2015 proceeding. She also relies on the transcript from the May 24, 2013 proceeding in Bozelko v. Warden, supra .
The plaintiff argues that she is not required to provide expert testimony because the issue before the court is one of credibility which does not require expert testimony. However, while credibility is generally material at trial, in this situation, it is not the dispositive issue before the court because it is not an element of the cause of action for legal malpractice. Therefore, it cannot be said to be the ultimate issue on which this court must decide. Rather, credibility, in this sense, is merely incidental and does not raise a material issue of fact that can survive the motion for summary judgment.
" The classic distinction between materiality and relevance is that (1) materiality pertains to whether the evidence tends to prove a fact that bears on an element of or defense to the action, and (2) relevance pertains to whether the evidence actually tends to prove that fact. See Conn. Code Evid. § 4-1, commentary; C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § § 4.1 through 4.1.4, pp. 153-55. In a strict sense, then, evidence is relevant to facts, and facts are material to legal elements. See Conn. Code Evid. § 4-1, commentary. In a more general sense, evidence is material if it is offered to prove facts that are themselves material, either directly or indirectly, to a legal element." (Emphasis in the original; internal quotation marks omitted.) State v. Erick L., 168 Conn.App. 386, 397, 147 A.3d 1053 (2016).
The plaintiff also argues that a genuine issue of material fact remains as to whether she must provide expert testimony because she does not intend for a jury to hear her evidence, but rather she intends only the court to hear her evidence. She argues that the court is not a layperson when it comes to understanding lack of preparation for trial. She goes on to argue that the ruling in Bozelko v. Papastavros, supra, 323 Conn. 275, is neither illuminative nor instructive because it would have eventually been tried to a jury and therefore is inapplicable to the circumstances at hand. Relying primarily on the holding in Dubreuil v. Witt, supra, 80 Conn.App. 410, the plaintiff argues that when a legal malpractice claim is to be tried by the court, the court is held to a different standard because they are not lay people in team of the purpose of requiring expert testimony.
While the court held in Dubreuil v. Witt, supra, 80 Conn.App. 410, that expert testimony was not required because the case was being tried to a judge, it was not based on the reasoning on which the plaintiff relies. To the contrary, the court in Dubreuil v. Witt, supra, held that because the purpose of expert testimony was to help the trier of fact, in that case, because the standard of care dealt with a breach of the rules and procedures of the court, an expert was not necessary as judges of the Superior Court apply those rules every day and should be " aware of the standard of care that applies to attorneys practicing in the Superior Court." Id., 421-22. However, the court in Dubreuil v. Witt, supra, 80 Conn.App. 422, did not mean this ruling to circumvent the normal requirement for expert testimony, except in these narrow circumstances involving the Connecticut rules of procedure and practice. In fact, the court in Dubreuil v. Witt, supra, 80 Conn.App. 422, n.7, noted the narrow application of this holding stating that the " holding is limited to the circumstances of this case. We do not hold or imply that a judge of the Superior Court is an expert in every area of the law and that expert testimony does not have to be presented in cases involving other types of legal malpractice tried to the court." Further, the court in Dixon v. Bromson and Reiner, 95 Conn.App. 294, 299, 898 A.2d 193 (2006) aptly held that where the plaintiff's claim of malpractice " did not simply involve rules of practice and procedure, " expert testimony is still required " to determine whether the defendant's performance complied with the requisite standard of care."
In the present case, the plaintiff claims that because the case is being tried before the court, she does not need to obtain expert testimony. However, as in Dixon v. Bromson and Reiner, supra, 95 Conn.App. 294, the plaintiff's claims in the present case do not simply involve rules of practice and procedure and therefore the court cannot find merit in the plaintiff's argument. The plaintiff's claims, therefore, still require expert testimony regarding standard of care, as well as causation.
Another argument that the plaintiff has made is that the defendant should be estopped from claiming that the plaintiff needed to provide expert testimony because the defendant should be subject to the unclean hands doctrine. " The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. Unless the plaintiff's conduct is such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).
" Because the doctrine of unclean hands exists to safeguard the integrity of the court; Eldridge v. Eldridge, 244 Conn. [523], 536, 710 A.2d 757 [(1998)]; Pappas v. Pappas, 164 Conn. 242, 246, 320 A.2d 809 (1973); [w]here a plaintiff's claim grows out of or depends upon or is inseparably connected with his own prior fraud, a court of equity will, in general deny him any relief, and will leave him to whatever remedies and defenses at law he may have." (Internal quotation marks omitted.) Id. " [C]ourts apply [the doctrine of unclean hands] only when a plaintiff's improper conduct relates in some significant way to the claim he [or she] now asserts." (Internal quotation marks omitted). Id., 312.
However, " [t]his court has recognized that the doctrine of unclean hands is not one of absolutes . . . It is not a judicial straight jacket . . . Because the doctrine is founded on public policy it may be relaxed on that ground" to apply to a variety of circumstances where the court finds its use applicable. (Citations omitted; internal quotation marks omitted.) Id., 314. For instance, the " [d]octrine of unclean hands also may be relaxed if [the] defendant has been guilty of misconduct that is more unconscionable than that committed by [the] plaintiff." Id., 315. " A classic example of this principle is provided by Tami v. Pikowitz, [138 N.J.Eq. 410, 48 A.2d 221 (1926), ] a New Jersey state-court action to nullify a bill of sale alleged to have been procured fraudulently to obtain the return of plaintiff's automobile. Plaintiff and defendant, who were both married to other persons, had been engaged in a meretricious relationship. Plaintiff purchased an automobile, which defendant borrowed, allegedly to visit relatives in Pennsylvania. In order to avoid liability should defendant be involved in an accident, plaintiff temporarily transferred apparent ownership to defendant. Subsequently, she learned that defendant was not visiting relatives but was with another woman. When he refused to return the vehicle, she brought suit. Defendant first alleged that he had been given the car in consideration of the meretricious relation existing between the parties. He also asserted that plaintiff's claim was barred by unclean hands because of their illicit relationship. The court firmly rejected this defense stating: It must be realized that the doctrine of unclean hands has its logical justification only in considerations of good conscience and natural justice. There are cases in which a court of equity in fulfillment of the reasons and objects of its creation and existence may in furtherance of natural justice aid the one who comparatively is the more innocent." 11A Fed.Prac.& Proc.Civ. § 2946.
First, it must be noted that the doctrine of unclean hands is a bar to equitable relief, that is one who comes in equity must do so with clean hands. Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). This court recognizes that the requirement of expert testimony is not a form of equitable relief, but rather a practice or procedure in which the court employs to ensure equity. Therefore, the doctrine of unclean hands generally would not be applicable against the requirement of expert testimony in a legal malpractice claim.
However, even if the court were to indulge the plaintiff's claim that unclean hands should be applied in equity to the defendant because of her conduct, this would require that the defendant did something egregious against public policy. The plaintiff argues that the defendant's inconsistent statements about her preparedness for the December 7, 2007 proceeding are sufficient to satisfy this requirement. However, because the unclean hands doctrine requires the parties must have come to the court with unclean hands, the plaintiff, by focusing on what the defendant has done after she came to court, has failed to show that the defendant did anything prior to her coming to the court that was so egregious that the doctrine of unclean hands should apply to bar the requirement of expert testimony. Further, even if the doctrine were relaxed to include what the defendant has arguably done after she came to court, the plaintiff has still failed to show sufficient evidence to rise to the level of egregious conduct that would offend public policy. Again, the requirement of unclean hands, in this context, is that the defendant must have done something against public policy that would require a court, in equity, to change the standards required by this court. While the inconsistency of the defendant's statements might speak to her credibility, it does not speak to whether the defendant has conducted herself in such a way that would weigh on the ultimate issue of whether this court should or should not require expert testimony in a legal malpractice case: This argument certainly does not raise a genuine issue of material fact as to whether expert testimony should be required.
The plaintiff's final argument is that the fraud on the court doctrine should apply and that the defendant's inconsistent statements should work to negate the necessity of expert testimony. However, as defined in Connecticut law, fraud on the court appears to be, in the context of this case, an inappropriate allegation, and fraud on the adverse party would be a better doctrine to apply.
" In Billington v. Billington, 220 Conn. [212], 224-25, 595 A.2d 1377 [(1991)], the Supreme Court concluded that there exists a distinction between fraud on the court and fraud on an adverse party in the marital litigation context, in that fraud on the court is limited to instance in which both parties join to conceal material information from the court." Duart v. Department of Correction, 116 Conn.App. 758, 772, n.9, 977 A.2d 670 (2009).
In Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980), similar to the circumstances of this case, " the defendant alleged that the trial was tainted by (a) false testimony; (b) bribery; (c) misconduct of counsel; and (d) misconduct of the state referee." Duart v. Department of Correction, supra, 116 Conn.App. 772, n.9. The Duart court concluded " [a]lthough these allegations befit the fraud on the court doctrine, at least according to federal definition, the Varley [ v. Varley, supra, ] court referred only to the defendant's claim as that of fraud. In Billington [v. Billington, supra ], the court concluded that it was not fraud on the court but fraud on an adverse party when one party submitted a fraudulent affidavit with the intent to induce the other party to rely on it and the moving party should be required to satisfy the limitations of Varley [v. Varley, supra ]." Duart v. Department of Correction, supra, 116 Conn.App. 772, n.9.
Federal courts have defined " [fraud on the court [as conduct that] must constitute egregious misconduct . . . such as bribery of a judge or jury or fabrication of evidence by counsel . . . It is not fraud between the parties or fraudulent documents, false statements or perjury . . . When alleging a claim of fraud on the court, the plaintiff must show by clear and convincing evidence that there was fraud on the court, and all doubts must be resolved in favor of the finality of the judgment." (Citations omitted; internal quotation marks omitted.) Id.
Under Connecticut law, as it stands, it would appear that fraud on the adverse party may be the more appropriate avenue for the plaintiff to pursue as she is arguing that the defendant's conduct alone constituted the fraud. However, this is not what the plaintiff argued. Further, even if the court were to apply the federal definition, the plaintiff has failed to show by clear and convincing evidence that the defendant's conduct was so egregious that it rose to the level of a fraud on the court by the federal definition. Therefore, regardless of how it is termed, the plaintiff has failed to show that the defendant's conduct was so egregious that it would constitute a fraud. Additionally, because the plaintiff has argued that this should prevent the need for expert testimony, the plaintiff has failed to show a genuine issue of material fact that would excuse the necessity of the plaintiff obtaining expert testimony for her legal malpractice claim.
CONCLUSION
Based on the foregoing, the court grants the motion for summary judgment as the plaintiff has failed to obtain expert testimony and failed to present a genuine issue of material fact as to why she should not have been required to have done so.