Schumann v. Dianon Sys., Inc.

Decision Date01 May 2012
Docket NumberNo. 18655.,18655.
Citation34 IER Cases 535,304 Conn. 585,43 A.3d 111
CourtConnecticut Supreme Court
PartiesG. Berry SCHUMANN v. DIANON SYSTEMS, INC.

OPINION TEXT STARTS HERE

Gregory A. Castanias, pro hac vice, with whom were Leon F. DeJulius, Jr., pro hac vice, Daniel A. Schwartz, Hartford, and, on the brief, Cara Ceraso, Bridgeport, for the appellant (defendant).

Stephen J. Fitzgerald, with whom were Joseph D. Garrison, New Haven, and, on the brief, Alinor C. Sterling, Bridgeport, for the appellee (plaintiff).

Gregg D. Adler, Nicole M. Rothgeb, Hartford, and Marc P. Mercier, Manchester, filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, HARPER and VERTEFEUILLE, Js.

NORCOTT, J.

In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the United States Supreme Court concluded “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for [f]irst [a]mendment 1 purposes, and the [c]onstitution does not insulate their communications from employer discipline.” The principal issue in this appeal requires us to determine whether the rule in Garcetti is applicablein an action brought against a private employer pursuant to General Statutes § 31–51q, 2 claiming that adverse employment actions taken in response to speech made during the course of an employee's job duties amounted to retaliation for the exercise of rights guaranteed by the first amendment to the United States constitution. The plaintiff, G. Berry Schumann,3 a twelve year employee of the defendant, Dianon Systems, Inc., brought a two count complaint against the defendant, alleging a violation of § 31–51q and common-law wrongful termination of employment, following the defendant's termination of the plaintiff's employment as a senior pathologist. The defendant appeals 4 from the judgment of the trial court, rendered after a jury trial, awarding the plaintiff $10,136,015. On appeal, the defendant claims, inter alia, that the trial court improperly disregarded controlling principles under the first amendment by declining to apply the rule in Garcetti in instructing the jury and in denying the defendant's posttrial motions for a new trial, to set aside the verdict and for judgment notwithstanding the verdict. We concludethat the trial court improperly failed to grant judgment in the defendant's favor on the count of the complaint under § 31–51q because the plaintiff's speech was in the course of his employment duties for the defendant and, therefore, was not entitled to first amendment protection under Garcetti. We further decline to reach the plaintiff's proffered alternative ground for affirmance, namely, that Garcetti is not applicable under article first, § 4, of the constitution of Connecticut, because even if it is properly before us, the plaintiff's speech would not have been protected under the pre- Garcetti standards that he would have us apply.5 Accordingly, we reverse the judgment of the trial court.

The record reveals the following facts that the jury reasonably could have found, and procedural history. The defendant is a medical testing laboratory located in Stratford, which performs diagnostic tests of biological samples, including tissue and bodily fluid specimens. Among the tests performed is urine cytology, which examines cells found in urine in order to detect various forms of cancer and other abnormalities. The defendant performs tests as ordered by the requesting physicians and, upon completion of the test, generates a report that contains the test results and diagnosis. Once the reports are approved by one of the defendant's staff pathologists, they are sent to the requesting physician.

In December, 1992, the defendant extended an offer of employment to the plaintiff, an experienced cytopathologist.6 The plaintiff accepted the offer and began to work for the defendant as its director of cytology 7 and cytotechnology 8 in January, 1993, reporting to James Amberson, the then vice president of pathology services and laboratory director.9

Before beginning his employment with the defendant, the plaintiff had developed a specialized urine test, called cytodiagnostic urinalysis, which examined hematuria, or “the presence of blood in urine.” The plaintiff provided this test to other physicians before he began to work for the defendant. When he joined the defendant in 1993, the plaintiff licensed this test to the defendant under the trade name Microcyte. Although prior to its implementation of Microcyte the defendant had offered other urine diagnostic tests, Microcyte represented an advancement over the defendant's earlier offerings that examined only cells from the bladder or lower urinary tract; Microcyte examined cells above, including the kidney. Because of this distinguishing feature, Microcyte provided a noninvasive alternative to kidney biopsies. Microcyte also had an increased sensitivity for detecting bladder cancer and other abnormalities. In addition, Microcyte offered the benefit of integrating two separate analyses, a cellular analysis and a chemical analysis, into one reporting format. The chemical component focused on chemical analyses of analytes and substances in the urine sample, whereas the cellular component involved the examination of the cells in the urine sample.

Microcyte proved to be a successful diagnostic service for the defendant, and, in 1996, the defendant launched Microcyte II, which modified the original test by integrating DNA analysis as an adjunctive component. This DNA test provided results that included an analysis of the chromosomes within a cell, which indicated, inter alia, if there were an abnormal number of chromosomes. The Microcyte tests continued to be successful from the date of their inception through 2004, and outpaced the defendant's original urine cytology test, Urocyte.

Shortly after Amberson's promotion in 2001 to executive medical director; see footnote 9 of this opinion; the plaintiff, citing personal reasons, resigned as director of the urocytopathology laboratory, a position he had assumed in 1996. The plaintiff continued, however, with his diagnostic and research and development responsibilities as a senior staff pathologist. In that capacity, the plaintiff worked on Microcyte and prostate biopsy samples. At that time, the plaintiff also retained control of his independently owned corporations, which included Schumann Diagnostics, Inc., and Schumann Cytology Laboratories, Inc., and maintained business relationships with other organizations, which included Orion Laboratories, Inc., Diagnostic Oncology CRO, Inc., and the University of Connecticut School of Allied Health Professionals.

In November, 2001, the defendant merged with another laboratory testing company, UroCor, which was located in Oklahoma City, Oklahoma. Thereafter, in early 2003, another company, Laboratory Corporation of America (LabCorp), purchased the defendant. At that time, the testing sites in Oklahoma City and Stratford were both owned by LabCorp. As part of the subsequent standardization process between the two sites, Amberson, who at that time was executive medical director and laboratory director of the Stratford site, was charged with, inter alia, standardizing the terminology used in the urine cytology programs at the two sites.

The standardization process resulted in the creation of a new urine testing service called MicrocytePlus. MicrocytePlus included an additional analytical test, Urovysion, which was a molecular genetics test that utilized fluorescent in situ hybridization technology, a method of examining not just the number of chromosomes in a given cell, but also the quality of those chromosomes. It provided medical professionals with an additional method of monitoring patient health. Urovysion was, therefore, a more sensitive test that could detect and assess the risk of developing or recurring bladder cancer with greater accuracy than could the defendant's standard urine tests. The combination of traditional cytology with Urovysion was the hallmark of MicrocytePlus, and was the genesis of the plaintiff's eventual dispute with the defendant.

Amberson also proposed a new set of diagnostic terms to be used in the reports generated by the new MicrocytePlus testing process. Before MicrocytePlus was offered, standard Microcyte reports, which informed the requesting physician of the test results and the diagnostic impressions made by the interpreting pathologist, used specific diagnostic language that included six diagnostic categories, two of the most obvious being “negative” and “cancer.” Amberson's newly proposed terms included five diagnostic categories and was his attempt to resolve the ongoing conflict between the two labs about how many diagnostic categories to use, as well as which ones.

In late January, 2005, Amberson called a meeting of the staff pathologists, which included the plaintiff, and officially presented the new MicrocytePlus product, as well as the new diagnostic terms. Although the plaintiff remained silent throughout the meeting, he was shocked to learn that the MicrocytePlus product was so close to launch in the absence of any clinical research supporting Amberson's proposal to integrate Urovysion into the Microcyte testing profile and roll out a new set of diagnostic terminology. During the presentation, Mary Lachman, another staff pathologist, voiced her concerns that, because Urovysion was a molecular genetics test performed by technicians over whom she had no control, she was not comfortable signing out, or approving, the new MicrocytePlus reports. Amberson did not address Lachman's concerns at the meeting and, shortly thereafter, he removed her from the urine service.

Sometime after the meeting, the plaintiff spoke with Amberson directly to express his disapproval of MicrocytePlus. He specifically...

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  • Reville v. Reville
    • United States
    • Supreme Court of Connecticut
    • 8 Julio 2014
    ...because the claim whose success depended on that prerequisite would fail in any event. See, e.g., Schumann v. Dianon Systems, Inc., 304 Conn. 585, 621, 43 A.3d 111 (2012) (assuming, without deciding, that balancing test for determining whether public employee speech was constitutionally pro......
  • Lopez v. Burris Logistics Co., 3:12–CV–1039 (CSH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 23 Septiembre 2013
    ...be entitled to pursue them.” Id. Furthermore, Plaintiffs rely on the Connecticut Supreme Court's decision in Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012), in which the “Court overturned the jury's verdict on the plaintiff's § 31–51q claim,” and then “remanded the case......
  • Jansson v. Stamford Health, Inc.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 5 Abril 2017
    ...to the application of § 31-51q . . . is that the speech at issue must be constitutionally protected . . ." Schumann v. Dianon Systems, Inc., 304 Conn. 585, 600 (2012). To be protected under the United States Constitution, speech must address a matter of public concern, which occurs when it ......
  • Reville v. Reville
    • United States
    • Supreme Court of Connecticut
    • 8 Julio 2014
    ...because the claim whose success depended on that prerequisite would fail in any event. See, e.g., Schumann v. Dianon Systems, Inc., 304 Conn. 585, 621, 43 A.3d 111 (2012) (assuming, without deciding, that balancing test for determining whether public employee speech was constitutionally pro......
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1 books & journal articles
  • 2012 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 87, 2013
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