Estate of John Curtis, Sr. et al. v. Dr. Stuart A. Nerzig et al. (2011)

MEMORANDUM OF DECISION RE (# 316) DEFENDANTS' MOTION TO COMPEL TESTIMONY OR TO PRECLUDE EXPERT

This is an action alleging medical malpractice resulting in the death of the plaintiff's decedent.   One of the named defendants was Kathleen M. Chaisson, M.D. Chaisson was deposed as a defendant on December 8, 2008.

On March 27, 2009, the case was withdrawn as to Chaisson.   Thereafter, Chaisson was disclosed as an expert by the plaintiffs.   A second deposition of Chaisson was noticed by the plaintiffs as a treating expert.   At that deposition, and in response to questions put to her by the defendants' attorney, Chaisson testified that she had engaged in conversations with her attorney after being discharged as a defendant and after having been disclosed as an expert.   The defendants' attorney asked Chaisson to disclose what was said during those conversations with her attorney.   The defendants seek testimony regarding the conversations and disclosure Dr. Chaisson had with her attorney that relate to her being retained as an expert witness by the plaintiffs.

On advice of her attorney, Dr. Chaisson did not answer those questions for the reason that those statements are protected by the attorney-client privilege.

The defendants argue that the attorney-client privilege, under the circumstances of this case, does not apply and have moved this Court to compel Chaisson to answer the questions or, in the alternative, to preclude Chaisson's testimony as an expert at the time of trial.

Plaintiff's attorney has filed an objection to the relief sought in this motion and argues that the attorney-client privilege is applicable and that Chaisson is under no obligation to answer the questions.

Having considered the arguments of counsel and the applicable statutes and case law, the Court makes the following findings.

As the plaintiffs point out in their brief in opposition, “Where legal advice of any kind is sought from a professional legal advisor in his [or her] capacity as such, the communications relating to that purpose, made in confidence by the client, are at [the client's] instance permanently protected from disclosure by [the client] or by the legal advisor, except the protection may be waived.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 157 (1998).

A review of the transcript of Dr. Chaisson's deposition on March 30, 2011, discloses that she was asked, “So then, after [the case was withdrawn as to her as a defendant], you spoke to [her attorney] about being an expert, correct?”   To which she replied “Yes.” She was then asked questions about what her attorney said to her.

“In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity as a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.”  Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52 (1999).

The plaintiffs also cite the finding in United States v. United Shoe Machinery Corp., 89 F.Sup. 357, 358–59 (D.Mass.1950), wherein the Supreme Court articulated the conditions under which the attorney-client privilege is applicable.   Those conditions include communication between the client and his attorney “(c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding ․” Id. (emphasis added).

Having considered the facts in this case, the Court finds that the communications in question are protected by the attorney-client privilege.   For that reason the relief sought in this motion is denied.

BY THE COURT,

JOSEPH W. DOHERTY, Judge

Doherty, Joseph W., J.