Summary
holding that plaintiff's claims against expert witness were barred by the doctrine of absolute immunity
Summary of this case from Raju v. BoylenOpinion
No. CV04-0182710S
September 22, 2004
MEMORANDUM OF DECISION RE MOTION FOR REARGUMENT OF MOTION FOR SUMMARY JUDGMENT
The plaintiff brought an action in two counts (negligence and CUTPA), alleging that the defendant surveyor negligently and intentionally relied upon unclear and unreliable documents, fraudulently prepared a survey map, and testified falsely and fraudulently in a boundary line dispute between the plaintiff and its neighbor. The defendant moved for summary judgment on the grounds that plaintiff's claims are barred by the doctrine of absolute immunity applicable to participants in judicial and quasi-judicial proceedings and that defendant owed no duty to the plaintiff under negligence law or CUTPA. The court granted summary judgment, and heard reargument upon the plaintiff's motion.
The plaintiff claims first that it was not clear whether the court addressed its contention that the motion for summary judgment was not the proper vehicle for the defendant's attack on the legal sufficiency of the complaint.
The Connecticut appellate courts have stated that a motion for summary judgment is a proper way to test the legal sufficiency of the complaint. Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971); Drahan v. Board of Education, 42 Conn.App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). "To be entitled to summary judgment, however, the movant must show what the material facts are, that there is no genuine dispute as to those facts, and that under those facts the movant is entitled to judgment as a matter of law." Arnone v. Connecticut Light Power, Superior Court, Complex Litigation docket at Waterbury, Docket No. X01 CV98-0168276 (March 22, 2002, Hodgson, J.) ( 32 Conn. L. Rptr. 58). "A defendant's motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543 (1985).
The second claim is that the absolute immunity enjoyed by witnesses in judicial proceedings should not necessarily apply to expert witnesses. In support of its argument, plaintiff cites Pollock v. Panjabi, 47 Conn.Sup. 179 (2000), for the proposition that "expert witnesses" do not enjoy absolute immunity in all cases. In Pollock v. Panjabi, supra, the issue was whether witness immunity bars a claim brought by an attorney or his client against an expert witness for failing to provide competent litigation support services. Under the facts alleged in the complaint, the court found that witness immunity was inapplicable to that case because the plaintiff was suing his own expert witness under contract and negligence theories. The claim was that the defendants, a spinal biomechanics expert and a kinesthesiolgist, were negligent and in breach of a contract between the parties in negligently conducting an experiment that formed the basis for Punjabi's opinion. Although the discredited opinion was rendered by way of in-court testimony, the court held that "[t]he 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." Pollock v. Panjabi, supra at 194.
As noted above, the circumstances in the instant case are different from those in the Pollock case. The surveyor had no contract with and no duty to the plaintiff.
The court permitted the plaintiff urges the court to deny the defendant's motion as to the CUTPA claim and cites an Arizona case in support of its proposition that absolute immunity should not be extended in CUTPA actions. The Arizona Supreme Court allowed a claim to survive summary judgment where the action was based on a RICO claim, and the basis of the claim was not the witness' appraisals and testimony (which the court held were absolutely privileged) but the alleged conspiracy to defraud which resulted in the appraisals and testimony. See Darragh v. Superior CT. In and For City of Maricopa, 183 Ariz. 79 (App. 1995).
Connecticut courts provide absolute immunity for witnesses an judicial and quasi-judicial proceedings: "It is well settled that communications 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 privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citations omitted; internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 83 (2004); see also Petyan v. Ellis, 200 Conn. 243, 245-46, 251-52, 510 A.2d 1337 (1986); 3 Restatement (Second), Torts § 586, comment (a), p. 247 (1977). That absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous. See Petyan v. Ellis, supra, 253. The underlying policy giving rise to this protection for witnesses in judicial and quasi-judicial proceedings has been enunciated by the Connecticut appellate courts:
"In reaching our conclusion, we also are mindful of the strong public policy that underlies the absolute privilege. Our Supreme Court has emphasized the importance of cultivating a judicial process that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability. See, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991)." Alexandru v. Strong, supra, 84.
The relief requested by the plaintiff is denied.
GALLAGHER, J.