Schumann v. Dianon Sys., Inc., SC 18655

CourtSupreme Court of Connecticut
Decision Date01 May 2012
Docket NumberSC 18655
PartiesG. BERRY SCHUMANN v. DIANON SYSTEMS, INC.

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Harper and

Vertefeuille, Js.

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

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

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

Opinion

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]mendment1 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 applicable in 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 appeals4 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 not with standing the verdict. We conclude that 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 reportthat 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 cytopa-thologist.6 The plaintiff accepted the offer and began to work for the defendant as its director of cytology7 and cytotechnology8 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, whichincluded 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. Uro-vysion 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 ''ca...

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