781 A.2d 518 (Conn.Super. 2000), CV970402199, Pollock v. Panjabi

• Court: Superior Court of Connecticut
• Writing for the Court: LEVIN, J.
• Judge: LEVIN
• Citation: 47 Conn.Supp. 179,781 A.2d 518
• Parties: Harvey I. POLLOCK et al. v. Manohar Murlidhar PANJABI et al.
• Date: 17 May 2000
• Docket Number: CV970402199S.

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781 A.2d 518 (Conn.Super. 2000)

47 Conn.Supp. 179

Harvey I. POLLOCK et al.

v.

Manohar Murlidhar PANJABI et al.

No. CV970402199S.

Superior Court of Connecticut, Judicial District of New Haven.

May 17, 2000.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Thomas P. Willcutts & Associates, Hartford, for the plaintiffs.

Delaney, Zemetis, Donahue, Durham & Noonan, Guilford, for the defendants.

LEVIN, J.

I

INTRODUCTION

The issue Before the court on the defendants' motion to strike is one of first impression in [47 Conn.Supp. 180] Connecticut: Does witness immunity bar 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 answers this question in the negative. The defendants' motion to strike is, therefore, denied.

The plaintiffs are Melvin Green and his attorney in a foreign action, Harvey I. Pollock, a Canadian lawyer. Attorney Pollock represented Green in a Canadian personal injury action against officers of the Winnipeg, Manitoba police department for permanent and physically debilitating injuries Green received during an arrest. Specifically, on May 1, 1992, officers Jeffrey Lawrence and Conrad Leschied arrested Green for allegedly assaulting his former girlfriend. Lawrence placed Green in a "full nelson" wrestling hold. ¹ Green claimed that Lawrence's full nelson hold fractured his neck and rendered him a quadriplegic. On May 28, 1992, Pollock filed a lawsuit on Green's behalf in the Court of Queen's Bench of Manitoba, Canada against Lawrence, Leschied and others. In the lawsuit, Green alleged that Lawrence had employed excessive force during the arrest in restraining Green and sought money damages for Green's injury. In defense, Lawrence alleged that Green had caused his own injury by thrusting his legs backwards against Lawrence. To support his defense, Lawrence disclosed expert reports and computer generated animation.

In preparation for trial, Pollock retained the services of the named defendant, Manohar Murlidhar Panjabi, Ph.D., a professor at Yale University (Yale), as a spinal biomechanics expert. Panjabi was hired to design and conduct experiments to demonstrate how Green's neck [47 Conn.Supp. 181] injury and quadriplegia were caused by the officer's full nelson hold. Pollock agreed to pay Panjabi $400 per hour, plus travel and accommodation expenses, and Panjabi agreed that (a) he would prepare a report of his findings and conclusions and appear in court to communicate his expert opinion, (b) he would deter mine and explain the mechanism of Green's injuries using the

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science of spinal biomechanics with the skill, due care and diligence expected of a "world-class spinal bio-mechanic," (c) any experiment he would use for the purpose of confirming his theory as to the biomechanics of Green's injury and the results achieved thereof could be replicated by other scientists and would be defensible among his scientific peers, (d) he would ensure that all equipment he used in the gathering of data was fit for its intended purpose and that the data generated thereby was reliable, and (e) he would adhere to the scientific process and methodology acceptable within the scientific community. The complaint alleges that Green is an intended beneficiary of this agreement.

Panjabi chose to employ the defendant Jacek Cholewicki, Ph.D., a kinesiologist, ² to assist him in completing the undertaking. Cholewicki is also a professor at Yale. Panjabi and Cholewicki allegedly used Yale's facilities, equipment and personnel to conduct the experiments to recreate the forces exerted on Green when Lawrence placed him in the full nelson hold. Pollock allegedly paid Yale $2000 by check made out to "Bio-mechanics Laboratory/Dr. Panjabi" for the use of Yale's laboratory, equipment and personnel. Based on the data produced from these experiments, Panjabi provided Pollock and Green with reports that concluded that Lawrence had unilaterally caused Green's injuries. Pollock and Green provided these reports to Lawrence's solicitors.

[47 Conn.Supp. 182] Judge Alan Macinnes of the Court of Queen's Bench of Manitoba granted the request by Lawrence's solicitor for pretrial voir dire of Panjabi. As a result of this questioning, it was discovered that the load cell Panjabi and Cholewicki had used in their experiment was defective. ³ Accordingly, Judge Macinnes ruled that Panjabi's expert opinion was not credible evidence and, therefore, not admissible at trial.

To remedy the unfavorable ruling, Pollock requested a continuance of the trial to permit Panjabi to conduct another experiment using an accurately functioning load cell. Judge Macinnes granted the request on the conditions that (1) the original experiment be exactly replicated and any subsequent testimony of Panjabi be confined to the new results, and (2) Before Panjabi's testimony would be admissible at trial, it would have to be established that the load cell in Panjabi's original experiment actually had been defective.

Panjabi conducted the second experiment with a "corrected" load cell and provided Pollock with a new report. Panjabi, however, refused to testify in court unless he was paid $13,050. To protect Green's interests, Pollock paid Panjabi the additional money. Panjabi appeared in court and underwent voir dire a second time. At the conclusion of the second voir dire, Judge Macinnes again disallowed Panjabi's testimony because he had not followed the scientific methodology of the original experiment. The court awarded costs against Green in the amount of $9200 (Canadian dollars).

Judge Macinnes granted Pollock's request for a second continuance to allow Panjabi another opportunity [47 Conn.Supp. 183] to conduct the experiment again. Panjabi did so and

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provided Pollock with a new report, which Pollock disclosed to Lawrence's solicitors. A defense expert then issued a report opining that Panjabi had again deviated from scientific methodology in conducting the original experiment a second time. A third continuance was granted, with the court advising counsel that the issue of costs would be addressed at the conclusion of the trial.

Panjabi again refused to appear in court unless he was paid additional money. Pollock again paid Panjabi the demanded money. Panjabi and Cholewicki then provided Pollock with another report. For a third time, Panjabi appeared in court and underwent voir dire. At the conclusion of the third and last voir dire, Judge Macinnes again ruled that Panjabi's experiments were incorrectly performed and that his reports would be inadmissible at trial. ⁴

Pollock and Green subsequently filed the present lawsuit against Panjabi, Cholewicki and Yale, claiming that the plaintiffs were damaged because of the manner in which Panjabi and Cholewicki rendered their services. In the first count of their revised complaint, Pollock and Green allege that Panjabi breached his contract with Pollock by, inter alia, failing to perform the contractual undertakings involving the load cell experiment. The second count alleges that the negligence of Panjabi and Cholewicki caused damages to Green and Pollock. In the third count, the plaintiffs allege that the acts and omissions of Panjabi and Cholewicki were unfair and deceptive acts and practices in the conduct of trade or commerce, in violation of the Connecticut [47 Conn.Supp. 184] Unfair Trade Practices Act (CUTPA), General Statutes 42-110b et seq. The second and third counts also allege that Yale is vicariously liable based on the doctrine of respondeat superior. The defendants have moved to strike all three counts of the revised complaint.

II

"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the [nonmoving party] ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). "A motion to strike admits all facts well pleaded." Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). The trial court, in ruling on a motion to strike, may consider only those grounds raised in the motion. See Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). "[A] trial court must take the facts to be those alleged in the complaint ... and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them ... and if facts provable under the

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allegations would support a defense or a cause of action, the demurrer [motion to strike] must fail." (Citation omitted; internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).

[47 Conn.Supp. 185] III

The defendants argue that this action may not be maintained because Panjabi and Cholewicki are protected by the doctrine of witness immunity. The plaintiff argues that witness immunity is inapplicable to the facts of the present case.

"It has long been established that there is an absolute privilege for statements made in judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894)[, overruled...