Berry v. Loiseau

• Decision Date: 12 August 1992
• Docket Number: 14283,Nos. 14282,s. 14282
• Citation: 223 Conn. 786,614 A.2d 414
• Court: Connecticut Supreme Court
• Parties: Ricky BERRY v. Edward M. LOISEAU, Sr., et al.

Page 414

614 A.2d 414

223 Conn. 786

Ricky BERRY v.Edward M. LOISEAU, Sr., et al.

Nos. 14282, 14283.

Supreme Court of Connecticut.

Argued April 1, 1992.

Decided Aug. 12, 1992.

Covello, J., filed concurring statement in which Callahan, J., joined.

Berdon, J., filed concurring opinion.

Louis R. Pepe, with whom was Ann F. Bird, Hartford, for appellant-appellees in Docket No. 14282 and the appellees in Docket No. 14283(defendants).

William M. Laviano, Ridgefield, with whom was Joseph C. Locascio, White Plains, N.Y., for the appellee-appellant in Docket No. 14282 and appellant in Docket No. 14283(plaintiff).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and BERDON, JJ.

GLASS, Associate Justice.

The defendantEdward Loiseau, Jr., appeals from the trial court's judgment rendered on the jury verdicts on the second and sixth counts of the plaintiff's complaint, its award of punitive damages to the plaintiff, and its refusal to set aside the verdicts or to remit the jury's compensatory damages award.The plaintiff, Ricky Berry, cross appeals from certain jury instructions given by the trial court and from the verdict directed in favor of the named defendant, Edward Loiseau, Sr., on the first count of the plaintiff's complaint.The plaintiff appeals separately from the trial court's ruling limiting the amount of punitive damages awarded on the sixth count of the complaint to one third of the jury's verdict on that count, in accordance with General Statutes § 52-251c.We affirm the judgment of the trial court with respect to the defendantEdward Loiseau, Jr.'s appeal and the first claim of the plaintiff's cross appeal.We reverse the judgment of the trial court with respect to the second claim of the plaintiff's cross appeal and we reverse, in part, with respect to the plaintiff's separate appeal.

The plaintiff brought this action against his former employer, Bird Electron Beam Corporation(Bird), Bird's president, Edward Loiseau, Sr.(Loiseau, Sr.), and Bird's vice president, Edward Loiseau, Jr.(Loiseau, Jr.).In a six count complaint, the plaintiff alleged, respectively, false imprisonment, assault and battery, wrongful termination, breach of an implied covenant of good faith, defamation and intentional infliction of emotional distress.Bird and Loiseau, Sr., filed a seven count counterclaim, alleging, respectively, misappropriation of trade secrets, breach of a nondisclosure agreement, intentional interference with a business relationship, breach of fiduciary duty, conversion, corporate defamation and personal defamation.After a jury trial, the plaintiff prevailed on the counts of his complaint alleging assault and battery, wrongful termination, breach of an implied covenant of good faith and intentional infliction of emotional distress.The trial court directed verdicts for the defendants on the false imprisonment count, on which the jury was hung, and the defamation count.The trial court set aside the jury's verdicts for the plaintiff on the counts alleging wrongful termination and breach of an implied covenant of good faith.The trial court accepted the jury's verdicts in the amount of $7500 on the assault and battery count and $50,000 on the intentional infliction of emotional distress count.The plaintiff filed a motion for a retrial of the false imprisonment count.

With respect to the defendants' counterclaim, the plaintiff prevailed on all counts but those alleging breach of fiduciary duty, corporate defamation and personal defamation.The jury returned verdicts: for Bird on the fourth count, alleging breach of fiduciary duty of loyalty, in the amount of one dollar; for Bird on the sixth count, alleging corporate defamation, in the amount of one dollar; and for Loiseau, Sr., on the seventh count, alleging personal defamation, in the amount of one dollar.The plaintiff filed a motion to set aside the jury's verdicts on counts four, six and seven of the defendants' counterclaim.The trial court denied the plaintiff's motion.

The trial court submitted interrogatories to the jury, asking whether punitive damages were warranted on the plaintiff's intentional infliction of emotional distress count, and on the sixth and seventh counts of the defendants' counterclaim, alleging corporate defamation and personal defamation.The jury responded in the affirmative.Subsequently, the trial court adjudged that the plaintiff should recover of Loiseau, Jr., $57,500, plus punitive damages, to be determined in a subsequent proceeding, and that Bird and Loiseau, Sr., should recover of the plaintiff four dollars ¹ plus punitive damages, to be determined in a subsequent proceeding.

After a hearing, the trial court awarded punitive damages to the plaintiff to be recovered of Loiseau, Jr., in the amount of $16,667, and to the defendants, Bird and Loiseau, Sr., to recover of the plaintiff in the amount of $50,000.Loiseau, Jr., appealed and the plaintiff cross appealed to the Appellate Court from the judgment rendered on the complaint, and the plaintiff appealed separately to the Appellate Court from the judgment rendered on the counterclaim.We transferred the appeals and the cross appeal to ourselves from the Appellate Court pursuant to Practice Book§ 4023andGeneral Statutes § 51-199(c).

On appeal, Loiseau, Jr., claims that the trial court improperly: (1) permitted the plaintiff's expert witness, Dr. Harry Powers Dunne, and lay witnesses, David Gamage and Doreen DeNomme, to testify when the plaintiff had failed to disclose their names in response to the defendants' interrogatories, and had failed to disclose the name of his expert witness in accordance with Practice Book§ 220(D);(2) permitted the plaintiff's witness, Gamage, to testify to "prior bad acts" of Loiseau, Jr., when such testimony was inadmissible character evidence offered only to show Loiseau, Jr.'s propensity to commit such acts; (3) failed to set aside the jury's verdicts on the counts of the plaintiff's complaint alleging assault and battery and intentional infliction of emotional distress; (4) failed to remit the jury's award of compensatory damages on the intentional infliction of emotional distress count; (5) awarded the plaintiff punitive damages when there was no evidence to support such an award; and (6) failed to declare a mistrial on the basis that plaintiff's counsel was guilty of misconduct during the course of the trial, which prejudiced the defendants in the eyes of the jury.

In his cross appeal, the plaintiff claims that the trial court improperly: (1) failed to instruct the jury, with respect to the defamation counts of the defendants' counterclaim, that the plaintiff enjoyed a qualified privilege to report the defendants' business improprieties to public authorities, and, therefore, the defendants had the burden of proving malice in order to prevail on these counts; and (2) directed a verdict in favor of Loiseau, Sr., on the false imprisonment count of the plaintiff's complaint when the jury was unable to reach a verdict on that count.Finally, in his separate appeal, the plaintiff claims that the trial court improperly: (1) measured the amount of punitive damages awarded him by the amount of attorney's fees he had incurred; and (2) applied General Statutes § 52-251c(b) to limit the amount of punitive damages awarded to one third of the jury's verdict on the sixth count of the plaintiff's complaint.

The jury could reasonably have found the following facts.Bird is an electron beam welding shop that performs welding services for various federal defense contractors.From September, 1984, through March 7, 1987, the plaintiff was employed by Bird, during which time he was trained and certified as an electron beam welder.During the course of the plaintiff's employment at Bird, he was subjected to repeated physical abuse by Loiseau, Jr., including being punched and choked.The plaintiff observed Bird employees engage in improper procedures, including the production and shipping to Bird's customers of inferior welds, the scrapping of parts and the use of noncertified welders to perform work under the name of a certified welder.The plaintiff accumulated data on the improper procedures employed at Bird.As a result of the plaintiff's activities, Loiseau, Sr., and Loiseau, Jr., confronted the plaintiff on March 7, 1987, after which date the plaintiff did not return to work at Bird.Thereafter, the plaintiff discussed the alleged improprieties of Bird and Loiseau, Sr., with the Federal Bureau of Investigation (FBI) and the United States Department of Defense and with other persons in the electron beam welding business.Additional facts will be detailed in relation to specific issues.

I

We first dispose of the Loiseau, Jr.'s claims on appeal.

A

The defendant Loiseau, Jr., first claims that the trial court improperly permitted the plaintiff's expert witness, Dr. Harry Powers Dunne, and lay witnesses, David Gamage and Doreen DeNomme, to testify when the plaintiff had failed to disclose their names in response to the defendants' interrogatories and had failed to disclose the expert's name in compliance with Practice Book§ 220(D). ²The plaintiff contends that the trial court properly allowed Dunne to testify because it had granted permission to the defendants, during voir dire, to present two previously undisclosed witnesses.The plaintiff contends further that Gamage and DeNomme were properly permitted to testify as rebuttal witnesses.We conclude that the trial court acted within its discretion in admitting the testimony of Dunne, Gamage and DeNomme.

The plaintiff called Dunne, a psychologist, to testify in support of his claim that he had suffered physical damage and emotional distress as a result of Loiseau, Jr.'s actions.The plaintiff had not disclosed Dunne's name prior to trial in response to the defendants' interrogatories or in compliance with Practice Book§ 220(D).During voir dire, the plaintiff's...