Li Poa, M.D. v. The Stamford Hospital et al. (2011)

MEMORANDUM OF DECISION RE MOTIONS FOR APPOINTMENT OF COMMISSION TO TAKE DEPOSITIONS (# 149, # 150)

This is a breach of contract claim arising out of the plaintiff's former employment with the defendant Stamford Hospital (the Hospital).   The plaintiff claims that he was terminated from his employment and that as a result, among other things, the Hospital is liable to him under the terms of a liquidated damages provision in his employment contract.   The Hospital denies that the plaintiff was terminated, but in the alternative asserts that the liquidated damages provision of the contract is unenforceable under Connecticut law.   Following the end of his employment with the Hospital, the plaintiff relocated to California.   He began working for Kaiser Permanente (Kaiser), the entity from which the hospital seeks discovery.   The plaintiff's wife, also a medical doctor, relocated with him.   The Hospital seeks her testimony relative to her determination to relocate, as well as any statements she may have made to third persons regarding her and her husband's decision to relocate and the circumstances surrounding the end of his employment with the Hospital.

The Court grants the Hospital's motions to appoint a commission for purposes of taking the out of state deposition of a representative of Kaiser Permanente as well as the plaintiff's spouse, subject to the following limitations.¹

Kaiser Permanente

The court finds that information related to the plaintiff's subsequent employment with Kaiser Permanente is appropriately sought in discovery as it is material to the subject matter of this litigation and likely to lead to the discovery of admissible evidence.   The information sought from Kaiser is germane to the validity of the liquidated damages portion of the contract at issue.   This information is germane to the issue of whether the plaintiff was terminated or resigned voluntarily.   This information is germane to whether the plaintiff has mitigated his damages.   To preclude the Hospital from pursuing this information at this stage of the proceedings would be to unduly and unfairly restrict its ability to defend this action.

Therefore, inquiry as to the circumstances under which the plaintiff was hired is permitted, to include any communications between the plaintiff and Kaiser on this subject.   Inquiry as to the plaintiff's compensation and benefits is permitted, to include any communications between the plaintiff and Kaiser on this subject.   Inquiry as to any contractual or other agreements relating to the plaintiff's employment is permitted, to include any communications between the plaintiff and Kaiser on this subject.   Inquiry as to the circumstances of his departure from employment at Kaiser is permitted, to include any communications between the plaintiff and Kaiser on this subject.

The Hospital may include a request for production of records consistent with these permitted lines of inquiry.

Notwithstanding the above, the Hospital is not permitted to inquire as to the plaintiff's treatment of particular patients and is not permitted to request the records of any patient treated by the plaintiff.

The Plaintiff's Spouse

The plaintiff asserts the marital privilege and seeks to preclude the deposition of his wife.

There are two distinct marital privileges.   The first protects communications between spouses made during the course of the marriage which were intended to be private.   See, State v. Christian, 267 Conn. 710 (2004);  Baeder v. Fourth of July Celebration, judicial district of Hartford, Dkt. No. CV 04 5000893 (Tanzer, J. January 24, 2007) (42 Conn. L. Rptr. 744).   See also, Colin C. Tait & Eliot D. Prescott, Tait's Handbook of Connecticut Evidence § 5.33 et seq. (4th Ed.2008).²  The second privilege is called the testimonial privilege.   The Supreme Court has recognized that at common law a privilege existed in civil litigation which could be invoked to preclude one spouse testifying against the other.  Spitz's Appeal, 56 Conn. 184 (1887) (holding that the privilege did not apply when husband and wife had conflicting interests or were opposing parties).³  Although the appellate courts have been silent on the issue since Spitz, the superior court has repeatedly recognized the privilege.   Baeder v. Fourth of July Celebration, judicial district of Hartford, Dkt. No. CV 04 5000893 (Tanzer, J. January 24, 2007) (42 Conn. L. Rptr. 744);  Attorneys Title and Abstract Company, Inc. v. Esposito, judicial district of Fairfield, Dkt. No. CV 04 0410913 (Dewey, J. February 2, 2005);  Breadadventrues, Inc. v. Mrvic, judicial district of Stamford–Norwalk, at Stamford, Dkt. No. CV 000180681 (Adams, J. February 22, 2002) [31 Conn. L. Rptr. 468];  Chandler v. Cardiothoracic and Vascular Group, P.C., Superior Court, judicial district of Waterbury at Waterbury, CV 94014618 (November 18, 1998) (Sheldon, J.) (23 Conn.L.Rptr. 372);  DeGruttola v. Britt, Superior Court, judicial district of Hartford–New Britain at Hartford, FA 95 0551058 (January 2, 1996) (Barall, J.) (15 Conn.L.Rptr. 586).

As has been noted in several of these cases, the Connecticut legislature appears to have acknowledged the common law privilege in civil litigation because it has limited its applicability in certain contexts.   See, General Statutes §§ 46b–129a(3) (husband and wife may testify as to any relevant matter in neglected child proceedings);  and 52–146 (wife may be compelled to testify in an action against her husband for necessaries furnished her while living apart).

The reasoning in these cases, especially that of Judge Sheldon in Chandler v. Cardiothoracic and Vascular Group, P.C., supra, is persuasive that the marital privilege against adverse spousal testimony is recognized in civil litigation in Connecticut.⁴

The superior courts are not in agreement as to who may assert the privilege.   Judge Sheldon held that the privilege may be asserted by the witness or the spouse of the witness.  Chandler v. Cardiothoracic and Vascular Group, P.C., supra.   Judge Adams and Judge Barall concluded that the privilege must be asserted by the witness spouse.   Breadadventures, Inc. v. Mrvic, judicial district of Stamford–Norwalk, at Stamford, Dkt. No. CV 000180681 (Adams, J. February 22, 2002);  DeGruttola v. Britt, Superior Court, judicial district of Hartford–New Britain at Hartford, FA 95 0551058 (January 2, 1996) (Barall, J.) (15 Conn.L.Rptr. 586).   Professor Tait argues that consistent with the privilege in criminal cases, the privilege should only be invoked by the witness spouse.   Colin C. Tait & Eliot D. Prescott, Tait's Handbook of Connecticut Evidence, § 5.34.3 (4th Ed.2008).   This court agrees that the testimonial privilege can only be invoked by the spouse whose testimony is sought.

Therefore, the motion for appointment of a commission to take the deposition of the plaintiff's wife is granted.   However, both the plaintiff and the plaintiff's spouse may assert the marital communication privilege as may be implicated by the inquiry.   Further, the plaintiff's spouse may invoke the privilege against testifying at all.   If no such privilege is asserted by the plaintiff's wife, the deposition can be taken subject to the assertion of the marital communications privilege.⁵

K. DOOLEY, J.

FOOTNOTES

FN1. Under our rules of practice, the issues presented would normally be raised through a request for a protective order upon the issuance of a notice of deposition.   Here, insofar as the would-be deponents are in California, the issues were properly raised in opposition to the request for appointment of commission to take the depositions at issue..  FN1. Under our rules of practice, the issues presented would normally be raised through a request for a protective order upon the issuance of a notice of deposition.   Here, insofar as the would-be deponents are in California, the issues were properly raised in opposition to the request for appointment of commission to take the depositions at issue.

FN2. Although the Hospital initially argued that the marital communications privilege does not apply by virtue of the “business” exception thereto, the Hospital appears to have abandoned that issue and is seeking testimony only as to the plaintiff's wife's observations, personal determinations and communications with third persons.   To the extent the issue was not abandoned, the court has found no authority under which the marital communications privilege would be vitiated in this case..  FN2. Although the Hospital initially argued that the marital communications privilege does not apply by virtue of the “business” exception thereto, the Hospital appears to have abandoned that issue and is seeking testimony only as to the plaintiff's wife's observations, personal determinations and communications with third persons.   To the extent the issue was not abandoned, the court has found no authority under which the marital communications privilege would be vitiated in this case.

FN3. There is no indication that the plaintiff and his spouse have conflicting interests..  FN3. There is no indication that the plaintiff and his spouse have conflicting interests.

FN4. The privilege is codified at CGS § 54–84 for criminal matters..  FN4. The privilege is codified at CGS § 54–84 for criminal matters.

FN5. The court rejects the other arguments made in opposition to the motion for appointment of commission..  FN5. The court rejects the other arguments made in opposition to the motion for appointment of commission.

Dooley, Kari A., J.