John C. Clapper, Jr., Administrator et al. v. Joel Gallup et al. (2015)

MEMORANDUM OF DECISION ON MOTION TO COMPEL PRODUCTION OF DNA (# 120)

Before the court is the plaintiffs' March 31, 2015, motion for an order that the defendant Joel Gallup ¹ provide a DNA sample for testing by the plaintiffs.  In the present motion, the plaintiffs state that the Connecticut State Police have determined that their son John was the driver of the automobile and that “obtaining the DNA of the defendant, Joel Gallup, is the only remedy available for the plaintiffs to conclusively determine the driver of the vehicle at the time it crashed into the tree ․ It can also exclude him from being the driver.”  With their motion, the plaintiffs filed a cover sheet identifying seven exhibits but not attaching them for stated privacy reasons.  With his brief in opposition to this motion, and his attorney's affidavit, the defendant on June 11, 2015, submitted numerous exhibits which were, upon his uncontested motion, sealed by the court.  On August 12, 2015, the plaintiffs refiled the same cover sheet filed on March 31, 2015, but with the exhibits attached.  The defendant's opposition to the present motion was calendared for hearing on June 29, 2015, marked ready, and called that day for argument.  No one responded to the opportunity to argue the objection or the motion and the court took both under submission on the papers.

FACTS

On December 7, 2010, there occurred a catastrophic, single-vehicle accident on Route 201 in Griswold.  Four of five high school students in the car, including the plaintiffs' son, died that day.  Only the defendant survived.  The accident and its aftermath received intense public interest and concern, and extraordinary press coverage.

Omitting legal conclusions and opinions,² the plaintiffs allege “upon information and belief” that the defendant was operating the automobile at the time of the crash;  that their son and decedent, John Clapper, was just a passenger;  and that the defendant so negligently operated the automobile, in multiple particulars including unreasonable speed, that he caused the vehicle to leave the road and collide with a tree, which collision caused their son's death.  Other facts will be found as needed.

DISCUSSION

The plaintiffs claim that their testing of material taken from the automobile shows DNA other than their son's in the driver's seat area.  They claim the requested order is justified, indeed necessary, to permit comparison of the defendant's DNA to the unidentified DNA from the driver's seat area and that such comparison is the only way to determine conclusively who was driving the car when it crashed.  They analogize the requested order to an order for disclosure of a Social Security number, and the present motion to a petition for a bill of discovery.

The plaintiffs' analogy to a bill of discovery is sound.  “The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought ․ As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries.  See Middletown Bank v. Russ, 3 Conn. 135, 140 (1819) ․ The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery ․ Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion.”  (Citations omitted.)  Berger v. Cuomo, 230 Conn. 1, 5–6, 644 A.2d 333 (1994).  A bill of discovery is appropriate for evidence believed, on a good faith basis, to be material and necessary to aid in the proof of another action pending or about to be brought;  id., 6–7;  for which action there is probable cause;  Pottetti v. Clifford, 146 Conn. 252, 258–59, 150 A.2d 207 (1959);  or for the defense of such action, when there is no adequate remedy at law for obtaining the evidence.  See id., 261–62.  In other words, the standard for granting a petition for a bill of discovery is not high, but the petitioner does have the burden of proving the justification and appropriateness of the discovery.  See Trilegiant Corp. v. Jakubovitz, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–6007082–S (December 23, 2011).  That is, when a bill of discovery is sought in a pending action, the party seeking discovery must show that there is probable cause for the action and a good faith basis for believing the evidence sought is material and necessary to aid in his proof.³

While the court is skeptical as to whether there is probable cause for this action, the court does not question the good faith of the plaintiffs as they navigate their grief at the loss of their son and the challenges of this lawsuit.  Nor is it necessary to rule on the existence of probable cause to rule on the present motion.⁴  The court simply is unable to share the plaintiffs' conviction that there is any sound basis for believing the defendant's DNA is material and necessary to their proof.  The court finds no logical basis for the claim that the defendant's DNA sample, “analyzed in conjunction with the DNA obtained from the subject motor vehicle, could determine whether the defendant was sitting in the driver's seat at the time of the accident ․”

The state police have concluded that the plaintiffs' son was the driver.  The evidence includes the statement of Steven H. Merchant, Sr. (December 7, 2010), that “the male I believe was the driver ․ had the seatbelt wrapped around him”;  the statement of Brian Cook (February 17, 2011) that he observed John Clapper being treated by the driver's side of the car;  the statement of Thomas J. Wilber (December 8, 2010) that the only survivor of the crash—the defendant—was in the rear of the car and that the male in the driver's seat had the seatbelt around his neck;  and the statement of Brian Cook (February 17, 2011) that he identified John Clapper as the person he saw being treated by the driver's side of the car.  The plaintiffs' own DNA testing reveals that two of the four DNA samples taken from the driver's side of the car were John Clapper's.  In this horrible light, even if the defendant's DNA were found to match one of the other samples taken by the plaintiffs' investigator from the driver's side of the car, there would be no probable cause to conclude that the defendant was the driver of the car.

In Hargrave v. Brown, 783 So.2d 497 (La.App.), cert. denied, 793 So.2d 1229 (La.2001), the court applied three factors to a decision concerning production of a DNA sample.  See also McGrath v. Nassau Health Care Corp., 209 F.R.D. 55, 59 (E.D.N.Y.2002) (outlining factors Hargrave court considered).  The first factor is whether there is legal authority for the requested production.  Hargrave v. Brown, supra, 783 So.2d 500.  Here, as in Louisiana, there is ample, general authority for special orders of discovery based on special circumstances:  “[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution ․ of the action ․ It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence ․” Practice Book § 13–2.⁵  Second, the court considered whether “the competing interests weigh in favor of permitting the test.”  Hargrave v. Brown, supra, 783 So.2d 500.  This court finds no basis for believing the defendant's DNA will lead to the discovery of admissible evidence and, therefore, finds there is nothing of legal or equitable substance that outweighs the defendant's right to be free of what amounts to a very personal (even if not very invasive) search of his person.  Third, as suggested by the previous sentence, the Hargrave court considered the protection of the due process rights of the party from whom disclosure is requested, particularly whether the requesting party made a prima facie showing of a reasonable possibility of a DNA match.  Id., 500–01.  Here, the plaintiffs have shown a possibility that the defendant's DNA was in the driver's seat area:  in that violent crash, the defendant's blood, saliva, sweat or hair might have gone anywhere in the car.  The court finds as a matter of fact, however, that the plaintiffs have failed to show a reasonable possibility—something more than conjecture—that the defendant's DNA is to be found in the samples they have taken, let alone that the defendant was in the driver's seat.

For the foregoing reasons, the motion is denied.

Cole–Chu, J.

FOOTNOTES

FN1. Gallup will be referred to as the defendant.  The co-defendant Gina Pelletier is not involved in this motion..  FN1. Gallup will be referred to as the defendant.  The co-defendant Gina Pelletier is not involved in this motion.

FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN2. The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN3. The petitioner must also show that there is no adequate remedy at law for obtaining the evidence.  See Pottetti v. Clifford, supra, 146 Conn. 262.  There is no objection on that ground..  FN3. The petitioner must also show that there is no adequate remedy at law for obtaining the evidence.  See Pottetti v. Clifford, supra, 146 Conn. 262.  There is no objection on that ground.

FN4. The motion avers that it is unlikely that this case will settle without the defendant's DNA. That is not a relevant consideration for applying the principles of discovery and equity..  FN4. The motion avers that it is unlikely that this case will settle without the defendant's DNA. That is not a relevant consideration for applying the principles of discovery and equity.

FN5. Practice Book § 13–2 provides, in pertinent part:  “In any civil action, ․ a party may obtain in accordance with [Practice Book Chapter 13] discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed.  Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.  It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence ․”.  FN5. Practice Book § 13–2 provides, in pertinent part:  “In any civil action, ․ a party may obtain in accordance with [Practice Book Chapter 13] discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed.  Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.  It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence ․”

Cole–Chu, Leeland J., J.