MEMORANDUM DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
S. TEEL JR., Bankruptcy Judge
In the bankruptcy case within which this adversary proceeding is being pursued, Shaw Pittman LLP, now known by way of merger as Pillsbury Winthrop Shaw Pittman LLP, represented the debtor, Capitol Hill Group, as its counsel from approximately February 21, 2002 until approximately January 7, 2004. Shaw Pittman, as the plaintiff in this adversary proceeding, seeks to recover attorney's fees incurred in defending against a malpractice lawsuit filed against it in 2007 by Capitol Hill Group with respect to services Shaw Pittman rendered to Capitol Hill Group in front of the District of Columbia Board of Zoning Adjustment (sometimes referred to as the BZA) during the pendency of the bankruptcy case and prior to December 2003.
Shaw Pittman contends that it is entitled to such fees pursuant to an agreement by Capitol Hill Group not to object to Shaw Pittman's fee applications in the bankruptcy case for attorney's fees that had been billed prior to December 15, 2003. (As of that date, fees had been billed through November 30, 2003.) That agreement included an obligation on the part of Capitol Hill Group to reimburse Shaw Pittman for any additional fees Shaw Pittman incurred if Capitol Hill Group objected to those fee applications in violation of the agreement.
Shaw Pittman has moved for summary judgment. This decision views the evidence in the light most favorable to the opposing party, Capitol Hill Group, and concludes that the agreement required only that Capitol Hill Group not contest Shaw Pittman's fee applications for services rendered through November 30, 2003, and did not purport to address any malpractice claims that Capitol Hill Group might later pursue against Shaw Pittman even if relating to the services that were the subject of those fee applications. Accordingly, Shaw Pittman's motion for summary judgment must be denied.
I
On February 21, 2002, Capitol Hill Group commenced its bankruptcy case by filing a voluntary petition under chapter 11 of the Bankruptcy Code, with Shaw Pittman acting as its counsel. On October 30, 2003, Shaw Pittman filed a brief on behalf of Capitol Hill Group in an appeal by Stanton Park Neighborhood Association pending before the Board of Zoning Adjustment regarding the number of parking spaces that Capitol Hill Group's tenants were required to maintain under their certificates of occupancy. In July and November 2003, Shaw Pittman represented Capitol Hill Group at hearings in that proceeding before the Board of Zoning Adjustment. Capitol Hill Group later contended in its malpractice lawsuit commenced in 2007 that Shaw Pittman committed malpractice by not raising a historic designation argument based on a municipal regulation.
On November 14, 2003, Shaw Pittman filed its first fee application in the bankruptcy case, seeking compensation for services rendered of $1,094,868 and reimbursement of expenses of $138,530, for the period of February 21, 2002, through October 31, 2003. By December 15, 2003, Shaw Pittman had also billed Capitol Hill Group for fees and expenses through the period of November 1, 2003 to November 30, 2003, but had not yet filed an application for those fees and expenses.
The court held a hearing on December 15, 2003, to address a motion regarding when Capitol Hill Group's plan would be allowed to become effective. At that hearing, Shaw Pittman could have sunk Capitol Hill Group's attempt to have its confirmed plan become effective by objecting that Shaw Pittman's fees were not being paid by the effective date of the plan. As this court later found, however, Capitol Hill Group and Shaw Pittman reached an agreement on December 15, 2003, under which:
(1) Shaw Pittman would not raise at the hearing on that date an objection to Capitol Hill Group's plan becoming effective;
(2) out of the funds being received from a lender to finance the plan, Capitol Hill Group would immediately pay Shaw Pittman $850,000 of the fees sought by its first fee application;
(3) Capitol Hill Group was to grant Shaw Pittman a security interest in certain property to secure the balance of the fees;
(4) Capitol Hill Group agreed not to object to the applications for fees that had been billed as of December 15, 2003 (the last bill having been for a period ending on November 30, 2003); and
(5) Capitol Hill Group agreed to pay Shaw Pittman's attorney fees incurred in any fight regarding such fee applications.
The agreement arose from an offer contained in a series of e-mails that this court ruled Capitol Hill Group had accepted by its silence at the hearing of December 15, 2003. The District Court upheld this court's ruling that such an agreement had been reached. Capitol Hill Group v. Shaw Pittman LLP (In re Capitol Hill Group), 313 B.R. 344 (D.D.C. 2004).
Capitol Hill Group did not file an objection to Shaw Pittman's first fee application, and on December 15, 2003, the court signed an order granting that application as unopposed, awarding the fees and expenses on an interim basis, meaning that the award remained subject to review by the court anew upon the filing of a final fee application.
On January 6, 2004, the Board of Zoning Adjustment entered an order denying Stanton Park Neighborhood Association's appeal (and it was not until February 24, 2004, that the Board reconsidered its ruling in a manner adverse to Capitol Hill Group). On January 7, 2004, the court entered an order pursuant to which Shaw Pittman withdrew as counsel for Capitol Hill Group as of that date.
As explained by the Court of Appeals:
Initially CHG was told it would have to provide 225 parking spaces, but in March 2003 the Zoning Administrator decided 85 spaces would suffice. In January 2004, after a neighborhood association appealed, the Board of Zoning Adjustment (BZA) affirmed, but then decided to reconsider its ruling. On February 24, 2004, the BZA finally settled on a total of 177 spaces, an announcement it made orally. The ruling was not issued in written form until September 9, 2004. . . .
Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 487 (D.C. Cir. 2009). Shaw Pittman has dropped its claim for attorney's fees for work defending against the claim in the malpractice lawsuit that Shaw Pittman committed malpractice by failing to notify Capitol Hill Group of the adverse written ruling.
On January 12, 2004, Shaw Pittman filed its Second Interim and Final Fee Application, seeking an award for the period of November 1, 2003 through January 7, 2004. That application, in other words, included the amounts that had been billed prior to December 15, 2003, for services performed and expenses incurred from November 1, 2003, through November 30, 2003.
If Capitol Hill Group had lived up to its bargain and not objected to the fee application, Shaw Pittman would have obtained an order of the court allowing its fees and expenses for services rendered through November 30, 2003, without having to engage in litigation regarding the propriety of those fees and expenses. Shaw Pittman could have then proceeded to enforce that award as it saw fit without all of the delay that a contested fee application entails.
But Capitol Hill Group did not live up to its agreement. Instead, on January 30, 2004, Capitol Hill Group filed an objection (Dkt. No. 486) to the final fee application. The objection noted "that Debtor is filing this Objection with regard to the totality of fees billed by Shaw Pittman in this matter." An accompanying motion (Dkt. No. 487) (incorporated by reference into the objection) made clear that this meant that Capitol Hill Group was objecting not only to the fees incurred from November 1, 2003, to January 7, 2004, but also to the fees for the period of February 21, 2002, through October 31, 2003, that this court's order of December 15, 2003, had awarded on only an interim basis. No one else filed an objection to the final fee application.
The motion sought to delay the hearing on the final fee application, and included as examples of excessive fees amounts that Shaw Pittman had charged for services rendered in July 2003, a period covered by the first fee application. Mtn. (Dkt. No. 487) at 3-7.
Capitol Hill Group pressed its objections at several hearings conducted by this court in February, March and April 2004. With respect to fees and expenses relating to services rendered through November 30, 2003, this court ruled that Capitol Hill Group's objection to the fee application violated the parties' agreement, and struck the objection with respect to those fees and expenses. The court examined the fee application and determined that the fees and expenses sought for services rendered through November 30, 2003, were reasonable. Accordingly, by an order of April 9, 2004, the court granted as a final order the fee application for services rendered through November 30, 2003, in the amount of $240,329.47. (Dkt. No. 589.)
On April 27, 2004, the court entered an order (Dkt. No. 626) granting in an agreed reduced amount the balance of Shaw Pittman's final fee application ( i.e., the portion of the application that covered fees and expenses for services from December 1, 2003, through January 7, 2004, the fees that were not subject to any agreement for Capitol Hill Group not to object to the fee application).
In the meantime, Capitol Hill Group appealed the order of April 9, 2004, that allowed the portion of the final fee application seeking fees for services through November 30, 2003. In August 2004, the District Court affirmed the fee award and remanded with instructions that Capitol Hill Group be ordered to pay Shaw Pittman its fees incurred defending against Capitol Hill Group's prohibited objections to the fee applications, including fees incurred on the appeal. Capitol Hill Group, 313 B.R. at 357-58. Shaw Pittman was also entitled to certain attorney's fees under the security agreement it obtained, and sought those fees as well.
This court awarded Shaw Pittman both types of fees and expenses (those due under the contract and those due under the security agreement), including attorney's fees and expenses incurred in recovering such fees and expenses, the first such award being one pursuant to an oral decision of October 22, 2004, resulting in a judgment entered on December 2, 2004 (Dkt. No. 733); the second award being pursuant to a judgment entered on August 2, 2005 (Dkt. No. 891); the third award being pursuant to a stipulated judgment entered on September 14, 2005 (Dkt. No. 945); and the final award being set forth in a stipulated judgment entered on October 5, 2005 (Dkt. No. 954). At no time did Capitol Hill Group contend that malpractice in the BZA proceeding was a defense, by way of setoff, to the amounts that Shaw Pittman sought, but it did raise professional responsibility arguments in contesting the fees Shaw Pittman sought.
In the interim, on August 3, 2005, Shaw Pittman had filed a complaint commencing Adversary Proceeding No. 05-10050 against Capitol Hill Group and others seeking to enforce Shaw Pittman's rights under a security agreement that had been granted to Shaw Pittman to secure payment of its fees. Eventually, without the necessity of the court's granting any relief in the adversary proceeding, all of the fees awarded to Shaw Pittman were paid. Capitol Hill Group thus sought to have the adversary proceeding dismissed. Shaw Pittman objected to that request unless it were given assurances that Capitol Hill Group would not sue Shaw Pittman, and it requested leave to amend its complaint to seek a declaratory judgment that all claims against Shaw Pittman were now barred by res judicata. At a hearing of April 12, 2006, the court overruled Shaw Pittman's objection and dismissed the adversary proceeding without prejudice, noting that Shaw Pittman could defend on the basis of res judicata if Capitol Hill Group were to sue Shaw Pittman after having failed in all of the fee litigation ever to raise any claims against Shaw Pittman as a setoff against Shaw Pittman's fee claims.
On September 7, 2007, Capitol Hill Group initiated its malpractice lawsuit in the D.C. Superior Court seeking no less than $50 million and alleging additional fiduciary duty breaches and malpractice by Shaw Pittman arising from the services rendered by Shaw Pittman to Capitol Hill Group as its counsel in the bankruptcy case. On September 5, 2008, after the malpractice lawsuit was removed to federal court, the District Court (ruling on Shaw Pittman's motion to dismiss and in the alternative for summary judgment) granted summary judgment and dismissed Capitol Hill Group's complaint on the basis of res judicata. Capitol Hill Group v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d 143 (D.D.C. 2008), aff'd, 569 F.3d 485 (D.C. Cir. 2009).
Shaw Pittman then filed the complaint commencing this adversary proceeding.
II
Shaw Pittman contends that "the District Court specifically ruled that CHG was legally obligated to further compensate Shaw Pittman for the fees and expenses incurred in defending against challenges by CHG to the services rendered by Shaw Pittman to CHG. See Capitol Hill Group v. Shaw Pittman LLP, 313 B.R. 344, 357-58 (D.D.C. 2004)." Shaw Pittman Mem. in Support at 8. This misconstrues the District Court's ruling. The District Court ruled:
CHG objected to Shaw Pittman's fees in violation of the contract. Therefore Shaw Pittman is entitled to its expenses for work performed in response to CHG's objections. This includes expenses incurred for proceedings in front of the bankruptcy court as well for proceedings in this Court. The Court shall remand the case to the bankruptcy court for a determination of the amount of those expenses and an award of those expenses to Shaw Pittman.
Capitol Hill Group, 313 B.R. at 357. The District Court, in other words, did not construe the parties' contract as barring anything other than objections to the specified fee applications. The contract barred objections to the specified fee applications, but did not bar Capitol Hill Group from raising malpractice claims for damages arising from negligence in performance by Shaw Pittman of its services.
Shaw Pittman argues that questioning the quality of Shaw Pittman's services was barred by the agreement. Although Capitol Hill Group was barred by the agreement from objecting to the pertinent fee applications on any ground, including based on any alleged defect in Shaw Pittman's services, the agreement did not attempt to address whether Capitol Hill Group was barred from seeking damages against Shaw Pittman for harm caused by any malpractice Shaw Pittman committed in the rendition of those services. Shaw Pittman, represented by experienced counsel, did not ask Capitol Hill Group for a release of all claims that Capitol Hill Group had arising out of Shaw Pittman's rendition of services through November 2003. Further, beyond the agreement's unambiguous language, Shaw Pittman was the drafter of the agreement, and cannot complain when the agreement is only reasonably viewed as having a precise and narrow no-objection-provision.
The limited nature of Capitol Hill Group's obligation under the agreement is made evident by the District Court's review of the series of e-mails that led to the agreement being formed:
[O]n the morning of December 15, Mr. Donald Hartman, an attorney and employee of CHG, sent an email to Mr. Potter, an attorney for Shaw Pittman and primary attorney for CHG's bankruptcy case, with a copy to the owner of CHG, Mr. Shin, stating:
Dr. Shin is prepared to offer to pay Shaw Pittman $850,000 today from the Fremont proceeds and give SP [Shaw Pittman] a lien against the Accounts Receivable pending The HBCC closing which we anticipate will occur very soon.
Joint Appendix at 392 ("CHG Email 1"); Brief of Appellant CHG at 9.
Mr. Potter responded with an email sent to Mr. Hartman stating:
Donald: My Management Team accepts the fee proposal on two caveats. One the UCC liens will be signed today. And, of course,
I will not be fighting with CHG about my fee applications (trust me, not that I am concerned; and
I am sure you probably know, any fights about fee applications would be an expense to be paid by CHG). Please confirm immediately.
Joint Appendix at 392 ("SP Email 2").
Mr. Hartman responded to Shaw Pittman's offer via email, this time with no copy being sent to Mr. Shin, stating "Patrick — It's a deal — this presupposes the (I believe) 5% discount you offered Dr. Shin previously. I hope your firm can prepare the liens." Joint Appendix at 394 ("CHG Email 3"). Mr. Potter responded to this email stating: "No it does not presuppose a 5% deal. I did not offer it. That is a mischaracterization. Please confirm all fees will be paid. I will consider a discount after my questions put to Dr. Shin on the issue have been answered." Joint Appendix at 400 ("SP Email 4").
313 B.R. at 348 (emphasis added).
The District Court, after reviewing those e-mails, concluded:
Here the Court finds the meaning of the phrase "I will not be fighting with CHG about my fee applications" to be unambiguous.
The plain meaning of the term is exactly as it appears; CHG cannot fight with Shaw Pittman over its fee applications.
* * *
[E]ven when the Court considers extrinsic evidence only one reasonable interpretation is possible. The pending fee application, CHG's agreement to the term in its next email, and its simultaneous failure to question the meaning or purpose of the no objection term before acceptance results in only one reasonable interpretation — that
CHG would not contest Shaw Pittman's fee applications for fees billed up to that point.
313 B.R. at 352 (emphasis added). Nothing Shaw Pittman has adduced in its motion for summary judgment alters the conclusion
that the parties' agreement was unambiguous and only meant that Capitol Hill Group was not to contest the specified fee applications.
III
Despite the agreement of December 15, 2003, being clear and unambiguous, Shaw Pittman contends that the agreement implicitly carried with it an obligation not to attack via a lawsuit for malpractice the quality of the services Shaw Pittman had rendered (and for which fee applications were filed to which Capitol Hill Group was obligated not to object).
A.
Shaw Pittman has failed to adduce evidence from which the agreement can be treated as ambiguous, despite its plain language, with respect to whether in addition to barring objections to the relevant fee applications, it might also bar a later lawsuit seeking damages for malpractice committed with respect to the services covered by the relevant fee applications. The agreement addressed only objections to the relevant fee applications. It did not purport to release Shaw Pittman from all claims that Capitol Hill Group might have against it, and Shaw Pittman, as a sophisticated law firm, would have been aware of that distinction but did not insist on a release.
As discussed previously, however, the agreement gave Shaw Pittman the assurance that it could obtain an award of the pertinent fee applications without Capitol Hill Group objecting to those fee applications, and with Capitol Hill Group to be liable for Shaw Pittman's attorney's fees incurred if Capitol Hill Group nevertheless objected to the fee applications. The immediate award of fees that Shaw Pittman sought to assure by way of the agreement would permit Shaw Pitman to collect its fees for services rendered prior to December 2003 without being delayed by Capitol Hill Group's assertion of claims against it.
B.
Shaw Pittman argues that the agreement not to object to the fee applications was necessarily an agreement not to challenge the quality of Shaw Pittman's services because 11 U.S.C. § 330 permits reasonable compensation based on the nature, extent, and value of the services. An agreement not to object to a fee application is limited to not opposing, on whatever grounds are available, the entry of an order allowing the fees, in the amount sought, as an administrative claim against the estate. Accordingly, Capitol Hill Group was barred from objecting to the relevant fee applications based on the quality of the services for which fees were sought. That, however, does not mean that the quality of services cannot be questioned in another context.
The malpractice claim pursued by Capitol Hill Group was not raised as an objection to the fee applications. Instead, the malpractice claim sought damages, far in excess of the attorney's fees that were sought by the fee applications, for harm arising from alleged malpractice by Shaw Pittman in its representation of Capitol Hill Group. The agreement not to object to the specified fee applications did not bar the later pursuit of malpractice claims.
This is not, as contended by Shaw Pittman, elevating form over substance. By 2006, Shaw Pittman had obtained judgments for all of its fees and collected those fees, including the fees incurred in fighting Capitol Hill Group's objection to the fee applications that were subject to the no-objection-to-fee-applications-agreement. It thereby enjoyed the fruits of its agreement. When Capitol Hill Group sued in 2007 for malpractice, the fee awards were a done deal and the substance of the agreements had been upheld. Capitol Hill Group's malpractice lawsuit was barred by res judicata because it would have effectively nullified the fee awards (including awards of fees not covered by the no-objection-to-fee-applications-agreement), but (as discussed in part IV, below) Shaw Pittman's protection under the doctrine of res judicata was distinct from its narrow protections under the no-objection-to-fee-applications-agreement.
In any event, Capitol Hill Group's malpractice lawsuit did not allege harm in the form of fees paid to Shaw Pittman. Rather, it alleged harm of an entirely different character, namely, substantial damages arising from the Board of Zoning Adjustment's imposition of a requirement regarding parking spaces that adversely affected the operations of Capitol Hill Group.
IV
That Capitol Hill Group's malpractice lawsuit was dismissed based on res judicata does not demonstrate that the parties' December 15, 2003 agreement barred the lawsuit. The defense of res judicata was distinct from any defense based on the December 15, 2003 agreement.
In the fee litigation in the bankruptcy court, Capitol Hill Group failed to object, on the basis of the acts of malpractice asserted in the malpractice lawsuit, to the fee recoveries sought (including "fees for fees" under Captiol Hill Group's obligation to pay for Shaw Pittman's fees if Capitol Hill Group fought the applications for services that had been billed as of December 15, 2003). Nevertheless, Capitol Hill Group raised broad professional responsibility arguments questioning the quality of Shaw Pittman's representation of it in the bankruptcy case. Capitol Hill Group, 569 F.3d at 492. That triggered Capitol Hill Group's "duty to discover the legal errors (if any) committed by Shaw Pittman. . . ." Id. Accordingly, res judicata barred the malpractice claims.
Res judicata would have applied only if Capitol Hill Group was aware (through actual or constructive notice) of the malpractice claims at the time of the fee litigation. Capitol Hill Group, 569 F.3d at 491, 492 n. 1. Shaw Pittman correctly contends that lack of knowledge of the malpractice is irrelevant to whether the agreement barred any objection, based on malpractice, to the fee applications for services rendered through November 30, 2003. From that, Shaw Pittman erroneously reasons, it follows that Capitol Hill Group would have been barred from pursuing its malpractice claims even if Capitol Hill Group had become aware, through actual or constructive notice, of the malpractice only after all of the fee litigation concluded.
Assume that a surgeon performs surgery to remove a diseased kidney, that the patient disputes the surgeon's professional fees for removing as excessive, and that when the surgeon sues to recover the fees, the parties reach an agreement that the patient will not dispute entry of a judgment for the surgeon's fees in exchange for the surgeon's agreement to continue providing medical services. Later, the patient discovers that in the surgery, the surgeon had removed the patient's healthy kidney, leaving the patient with a diseased kidney. It would be shocking to think that the parties' agreement regarding not objecting to fees would immunize the surgeon from the patient's claim for medical malpractice. Yet that is the analog of what Shaw Pittman contends should apply here. Capitol Hill Group agreed not to object to the fee applications, and did not thereby agree to forego any malpractice claim it might later discover. This supports the conclusion that it was res judicata, not the parties' agreement, that barred the later malpractice lawsuit.
As of December 15, 2003, when the parties reached their agreement calling for Capitol Hill Group not to object to fees for services through November 30, 2003, there is no evidence that Capitol Hill Group was aware of any malpractice by Shaw Pittman. Nevertheless, argues Shaw Pittman, Capitol Hill Group was on constructive notice of the alleged malpractice because, with due diligence, it could have discovered Shaw Pittman's malpractice. See Capitol Hill Group, 574 F. Supp. 2d at 152 ("The historic designation argument was based on a municipal regulation[], and therefore was discoverable with due diligence, and could have been asserted as a defense against Shaw Pittman's first fee application in the first hearing.") Shaw Pittman thus contends that Capitol Hill Group must be charged with knowledge of the alleged malpractice as of December 15, 2003. The fallacy in this argument is that actual or constructive notice is an element of res judicata, and has nothing to do with parties' contractual commitments, as here, regarding the litigation of fee applications. Moreover, Capitol Hill Group's opportunity to attempt to uncover malpractice through reasonable diligence had not expired as of December 15, 2003. At best, Capitol Hill Group's opportunity to uncover malpractice through due diligence in order to avoid the defense of res judicata (something having nothing to do with the parties' rights under the December 15, 2003 agreement) did not expire until the litigation of Shaw Pittman's final fee application was concluded. By the time that Capitol Hill Group objected to that final fee application, the Board of Zoning Adjustment had ruled (on January 6, 2004) in favor of Capitol Hill Group, not against it.
Even if Capitol Hill Group was aware of Shaw Pittman's malpractice when it entered into the agreement, that does not demonstrate that it was agreeing not to pursue the malpractice claims. Under those circumstances, all that Capitol Hill Group would have been agreeing to would have been not to object to the applications for fees for services rendered through November 30, 2003, despite being aware of the malpractice claims. In not objecting to those fee applications under those circumstances, Capitol Hill Group would have potentially subjected its malpractice claims to a defense of res judicata if the pre-December 2003 fees were the only fees that Shaw Pittman sought in the case. However, those were not the only fees that Shaw Pittman sought. Despite the parties' agreement, Capitol Hill Group remained free to raise the malpractice claims as a defense to the application for fees for services rendered after November 30, 2003. Because no final judgment had been entered by January 30, 2004, neither res judicata nor collateral estoppel would have barred such a defense had Capitol Hill Group included such a defense in its objection filed on January 30, 2004, to the application for fees for services rendered after November 30, 2003.
As the Court of Appeals noted in holding that res judicata barred the malpractice claims, allowing Capitol Hill Group, after litigating all of Shaw Pittman's fee applications for services performed in representing Capitol Hill Group in the bankruptcy case "to litigate malpractice claims against Shaw Pittman now, based on the same representation, would nullify the initial judgment or impair the rights established by Shaw Pittman in the bankruptcy fee litigation." Capitol Hill Group, 569 F.3d at 492. Although the malpractice lawsuit, if allowed to go forward, would have nullified or impaired Shaw Pittman's fee awards, the reason the malpractice lawsuit was barred was not because Capitol Hill Group had agreed not to object to fee applications relating to fees for services rendered through November 30, 2003, but because res judicata protected the fee awards that Shaw Pittman had secured. Res judicata may have protected the fruits of the agreement by barring the malpractice lawsuit, but the agreement itself did not bar the malpractice lawsuit. The malpractice lawsuit having been dismissed based on res judicata, and not based on the agreement, Capitol Hill Group's lack of success in the malpractice lawsuit is not a basis for imposing attorney's fees against Capitol Hill Group pursuant to the parties' agreement.
V
Shaw Pittman points to this court's ruling of October 22, 2004, made after the first hearing regarding recovery of fees pursuant to the District Court's remand. In the oral ruling of October 22, 2004, this court awarded Shaw Pittman its fees incurred in litigating the fees billed through November 30, 2003. The award included attorney's fees for pursuit of avenues of collection — designed to protect the eventual fee award — necessitated by the delay engendered by Capitol Hill Group's having objected to the fees. In its ruling, the court reasoned that "[t]he contractual provision is broad enough also to include any foreseeable consequential damages accruing to Shaw Pittman, which included the necessity to pursue efforts to protect collection of the [allowed] fees which had been delayed. . . . by reason of the allowance being delayed." Tr. of Oct. 22, 2004 Hearing at 7. The court further explained:
Now, if there had not been an objection to the attorney's fees, the attorney's fees would have been awarded promptly, and Shaw Pittman would have been allowed to execute upon that fee award. It was deprived of that right. It turned to what was next available to it by reason of Capitol Hill Group's having objected to its attorney's fee application, and pursued whatever other collection remedies short of having a judgment it could employ.
I think that pursuing those collection efforts fall within the type of damages that were foreseeable by reason of the breach and that Shaw Pittman was entitled to pursue recovery of attorney's fees incurred, and expenses incurred, by reason of having to
pursue that alternative means of securing or promising to secure collection of its fees.
* * *
[C]ertainly it was foreseeable that Shaw Pittman would have to turn to seek alternative means to protect its right to collect that it was being deprived of by reason of Capitol Hill Group improperly objecting to its fee application instead of allowing a judgment to be in place that Shaw Pittman could enforce immediately.
Id. at 27-28.
Shaw Pittman argues that defending against the malpractice lawsuit was an effort to protect the fees it had collected, and that the attorney's fees it incurred in defending against that lawsuit constitute foreseeable consequential damages that Shaw Pittman is entitled to recover from Capitol Hill Group. This misses the meaning of the court's ruling of October 22, 2004.
The ruling of October 22, 2004, dealt with damages arising from Capitol Hill Group objecting to the fee applications in violation of the parties' agreement. In contrast, the attorney's fees Shaw Pittman incurred in defending against the malpractice action did not arise from Capitol Hill Group having improperly objected to the fee applications. By the time the malpractice lawsuit was filed, Capitol Hill Group had paid all of the fees awarded against it.
VI
Shaw Pittman also points to the hearing of April 12, 2006, in the adversary proceeding it brought against Capitol Hill Group, at which Shaw Pittman sought assurances that Capitol Hill Group would not pursue any further litigation against Shaw Pittman, and noted that many issues that Capitol Hill Group still had "should have been raised at the multitude at, the number, whatever they were, two, three, four trials, that we had on the matters throughout the course of 2004 and 2005." Tr. of Apr. 12, 2006 Hearing at 8. The court responded that as to issues that Capitol Hill Group might raise regarding the adequacy of representation by Shaw Pittman:
The fact is they could have raised the issue. They didn't. They're barred, as you say, by res judicata, from pursuing it. If I understand the law correctly. There's no need to bring a declaratory judgment proceeding to get a declaration to that effect. . . . If they were to pursue claims against you after this adversary proceeding is dismissed, you've got the defense of res judicata, you can file [
i.e., serve] your Rule 11 motion, file a motion to extend the time to answer, and if they don't [move to] dismiss in the face of a valid defense of res judicata, then
you're back in the sanctions business.
Id. at 8-9 (emphasis added). Shaw Pittman construes this as meaning that the sanction of damages would again be available under the agreement if Capitol Hill Group filed a malpractice lawsuit challenging the adequacy of the services rendered by Shaw Pittman as of November 30, 2003. Specifically, Shaw Pittman argues that it had never recovered any sanctions other than for breach of the December 15, 2003 agreement, so the court must have been referring to recovery of fees pursuant to the agreement. Instead, what the court was saying was that sanctions would be available under Rule 11 of the Federal Rules of Civil Procedure
(or its analog in Superior Court) because it appeared to the court that such a proceeding would be barred by res judicata (not by the parties' agreement of December 15, 2003), and that the filing of the lawsuit in the face of that defense would not pass muster under Rule 11. The court was suggesting that Shaw Pittman could pursue a Rule 11 motion, and if Capitol Hill Group did not withdraw its malpractice complaint within the safe harbor period of Fed.R.Civ.P. 11(c)(2) (or its analog), then Shaw Pittman would be back in the sanctions business, this time under Rule 11, whereas previously the sanctions awarded were contractual damages.
VII
After the fee litigation had concluded, and after Shaw Pittman had collected all of the fees it was awarded, this court entered an order directing the parties to show cause why the bankruptcy case ought not be closed. Shaw Pittman opposed the closing of the case because it was concerned that Capitol Hill Group might pursue claims against it, and it wished to have the case remain open so that it could seek appropriate relief in this court (without incurring a reopening fee) if such a proceeding were brought. Capitol Hill Group, however, suggested that no such proceeding would be brought. As Shaw Pittman observes:
When last before this Court, through the very same lawyers now representing it, CHG stated that "Shaw Pittman bases its argument on an unsupported notion that CHG, like the proverbial Phoenix, might one day arise
from the ashes and somehow wreak havoc upon Shaw Pittman." ("Response of Capitol Hill Group to Motion of Patrick Potter to Delay Closing of Case" at ¶ 5). The clear intention of this statement (and other similar statements) was to persuade this Court that
unlike the "proverbial Phoenix," CHG would
not "one day arise from the ashes and somehow wreak havoc upon Shaw Pittman."
See also 574 F. Supp. 2d at 151, n. 3.
Shaw Pittman Reply Mem. at 11 (footnotes omitted). Shaw Pittman contends that Capitol Hill Group should not be permitted to avoid the result that would have been reached by this court had Capitol Hill Group attempted to assert its malpractice claims in the bankruptcy court prior to the closing of the case; allowing it to do so, according to Shaw Pittman, would reward Capitol Hill Group for engaging in deception in order to commence the malpractice action in another court.
Even if Capitol Hill Group engaged in deception (because it knew that it intended to pursue malpractice claims), that in itself is not an appropriate ground for awarding fees to Shaw Pittman for its defense of the malpractice lawsuit that ensued. Nor does it follow that, had the malpractice lawsuit been commenced in the Bankruptcy Court, Shaw Pittman would be entitled to a recovery of attorney's fees under the December 15, 2003 agreement: wherever the malpractice lawsuit was commenced, the agreement would not have barred the lawsuit (although res judicata would have), and accordingly the agreement would not have been a basis for an award of attorney's fees.
What Shaw Pittman appears to be arguing is, first, that if the malpractice claims had been raised as an objection to the fee applications for services rendered through November 30, 2003, the objection would have been barred by the parties' agreement, and fees for defending against the objection would have been recoverable. That may be true, but nothing precluded the malpractice claims from being raised as an objection to other fees sought in the case. More importantly, the narrowly written agreement does not support what appears to be the second step of Shaw Pittman's argument, that because an objection to fees for pre-December 2003 services would have been barred by the agreement, any malpractice lawsuit asserting claims for damages for negligent rendition of those services would also be barred by the agreement. As discussed previously, the assertion of malpractice claims for damages (especially those above and beyond the attorney's fees for which Capitol Hill Group was out of pocket) although barred by res judicata, was not an objection to the fee applications, and was thus not barred by the parties' agreement.
VIII
Based on the foregoing, an order follows denying Shaw Pittman's motion for summary judgment, and directing it within 14 days to show cause, if any it has beyond the arguments and submissions it has already made, why summary judgment ought not be entered against it.
Signed: September 14, 2010.
ersonal and professional history; awards and special achievements; memberships and functions in national and international research groups; memberships on professional editorial boards; refereeships for professional journal papers and grant applications; collaborations with visiting researchers and scholars; supervision of postdoctoral fellows and Ph.D students; supervision of graduate level candidates in Zurich, Switzerland, and master's level candidates in Calgary; supervision of professional assistants, summer students and research students; research grants; invited lectures, both international and national; 300 publications; six publications submitted, accepted or in press; instances of cooperation with industry; and participation in court cases as an expert witness.
Nigg testified as follows. Using the actual shoe worn by Michelle at the time of her injury and a portion of the actual carpet surface in use at Arena at the time, as well as a portion of a more modern synthetic sports surface, and based on Michelle's description, supplied to him by her attorney, of how her foot stuck to the surface before she fell, Nigg performed a standard test to quantify what happens between a soccer shoe and the Arena surface during the movement of a player's foot. Nigg testified that the synthetic surface he used was a standard sports surface that has been in use a long time and is commonly used in sports facilities. The test consisted of a series of experiments measuring the resistance created between the sole of the shoe and the surface during various athletic movements of the foot, namely, forefoot rotation, midfoot rotation and lateral traction. Nigg also testified that an operator or owner of an indoor sports facility should, in the absence of government or industry standards, perform tests for the safety of the surface before installing it.
We use the term "testified" here to include both Nigg's deposition testimony, his affidavit, which was prepared after his deposition and presented to the trial court in connection with the summary judgment proceedings, and his written report that was attached to his affidavit. We discuss in the text the dispute over part of that affidavit, namely, paragraph 4.
The test that Nigg performed showed that resistance levels were significantly higher on the carpeted surface than on the synthetic surface. Nigg concluded, as a result, that there was a "substantially higher risk for injuries in the carpet condition compared to [the] synthetic . . . condition." In paragraph 4 of his affidavit, Nigg opined: "The flooring surface provided by the defendants was unreasonably dangerous and unfit for use at an indoor soccer arena because (a) it produced excessive translational and rotational traction forces, which typically result in higher injury frequencies, (b) because it showed significantly higher loading than synthetic sports surfaces found more frequently in sports arenas, and (c) because it created excessive forces on the foot, which can lead to ankle injuries such as the one sustained by [Michelle]. Based on the mechanism of injury described by [Michelle], my results indicate that the surface was a substantial factor in causing [Michelle's] injury." Nigg added, in paragraph 5 of his affidavit, that "[m]y opinions are based upon my review of the documents forwarded to me in connection with this lawsuit, upon the tests my office and I performed on the floor surface that was located at the indoor soccer arena, upon the epidemiological data I have previously published, and upon my education, experience and expertise in the field of biomechanics, engineering, medicine and kinesiology."
Nigg acknowledged that he had no knowledge of specific indoor soccer industry standards or of a specific standard of care applicable to indoor soccer facilities. He did testify, however, with regard to industry standards, that such standards generally constitute a compromise among the members of the industry that is not necessarily related to the safety of the players. He also acknowledged that he had not spoken to the plaintiff or Michelle; he did not have Michelle's deposition testimony or medical records when he issued his report; and he had no information regarding the frequency of injuries on the carpeted surface, the fit of Michelle's shoes or her soccer position.
The trial court first concluded that there is "nothing about a nondefective, carpeted floor that constitutes a dangerous condition per se." The court then stated that "[t]he question of whether the carpeted floor was safe for indoor soccer involves industry standards, engineering and mechanics," and concluded further that the question of whether the carpet in question was dangerous required expert testimony because it is beyond the ordinary knowledge and experience of jurors. The court then assumed without deciding, because the defendants had indicated that they intended to move to exclude his testimony on the basis of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), that Nigg was qualified to testify in the case. Nonetheless, the court stated that "only the defendants have provided evidence of the standard of care and the lack of notice about the alleged, dangerous defect." The court discounted Nigg's statement in paragraph 4 of his affidavit that "[t]he flooring surface provided by the defendants was unreasonably dangerous," by noting that Nigg had testified "in his deposition that he is only able to testify as to causation." In addition, the court noted that Nigg was not able to testify as to the standard of care applicable to indoor soccer facilities or as to prior notice of any defect. In addition, the court noted that "even if the plaintiff could prove the applicable standard of care and this were a case where notice is not required, the risk of the alleged affirmative act would need to be foreseeable . . . [and] not even a scintilla of evidence suggests foreseeability." (Citations omitted.)
We, of course, express no opinion on whether Nigg's testimony would be subject to the Porter standards or, if it were, whether it would comply therewith. That is an issue that will require a hearing in the trial court if the defendants file an appropriate motion therein.
Finally, the court determined that Nigg lacked personal knowledge of the essential facts of the case because he had not spoken with the plaintiff, Michelle, her father, who had witnessed her fall, or her coach; he had not examined Michelle's deposition or medical records when he issued his report; he had no information related to environmental conditions, the age or use of the facility, the frequencies of injury, the fit of her shoes, her soccer position, the place of injury, or what Michelle "was doing at the time of injury to gain a complete understanding of the biomechanics of the accident." Therefore, the court found "that Nigg does not have the personal knowledge about this case that would allow him to render an opinion with substantial value." This last finding appears to be a determination that, despite the court's earlier assumption, Nigg's testimony would not be admissible at trial. See State v. Asherman, 193 Conn. 695, 716-17, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).
Accordingly, the court granted the motions for summary judgment. We read the court's opinion as resting on several independent grounds. First, expert testimony was required to establish the standard of care applicable to an indoor soccer facility and the breach thereof, and such testimony was lacking. Second, even if expert testimony on the standard of care was not required, there was no evidence of notice of the specific defect alleged. Third, even if expert testimony on the standard of care was not required and there was no requirement of evidence of notice, there was no evidence of foreseeability. Fourth, Nigg's testimony would be inadmissible in any event because of a lack of sufficient personal knowledge of the facts of the case.
B
With this procedural background in mind, we turn now to the merits of the appeal. In this regard, we first consider our scope of review of the question of the admissibility of Nigg's testimony in this summary judgment proceeding and, applying the appropriate scope of review, address whether that testimony should have been considered as fully admissible. The plaintiff contends that our scope of review is plenary and that Nigg's testimony should have been considered as fully admissible. The defendants contend that our scope of review is limited to whether the trial court abused its discretion and that there was no such abuse of discretion in disregarding Nigg's testimony.
Ordinarily, a trial court's ruling on the admissibility of an expert's testimony at trial is subject to the deferential scope of review of abuse of discretion. Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157, 971 A.2d 676 (2009). That scope of review does not apply, however, where the trial court has excluded such testimony in connection with a summary judgment proceeding.
It is well settled that our scope of review of a trial court's determination on a motion for summary judgment is plenary. SS-II, LLC v. Bridge Street Associates, supra, 293 Conn. 294. Where, as here, the trial court ruled the expert's testimony inadmissible in the course of summary judgment proceedings, it would be inconsistent with that plenary scope of review to subject a particular subset of the trial court's determinations in those proceedings, namely, the admissibility of an expert's opinion, to the highly deferential abuse of discretion scope of appellate review.
Furthermore, it would be inconsistent with the well settled principles of summary judgment jurisprudence that the burden is on the movant to establish that there is no genuine issue of material fact involved in the case, and that the facts must be viewed in the light most favorable to the nonmoving party, to subject the court's ruling on the admissibility of Nigg's opinion to an abuse of discretion scope of review. The abuse of discretion standard for appellate review assumes that the trial court had discretion and therefore could have reasonably ruled either way; to apply a deferential scope of review to its ruling, where as here it excluded the expert's testimony, would be inconsistent with the movant's burden to establish that there is no genuine issue of fact, and with the notion that the facts are to be viewed in the light most favorable to the nonmoving party. Put another way, because the movant in a summary judgment proceeding has the burden to show that there is no genuine issue of fact and the facts are to be viewed in the light most favorable to the nonmoving party, a trial court in such a proceeding would be obligated to exercise its discretion in favor of the nonmoving party's offer of evidence. Similarly, in applying our plenary scope of review to the question of the admissibility of Nigg's testimony, the same considerations compel us to resolve any doubts about that question in favor of admissibility.
The defendants' reliance on Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 84, 882 A.2 1254 (2003), is misplaced. In that medical malpractice case, the trial court held a two day evidentiary hearing in response to the defendants' motion in limine to preclude the testimony of the plaintiff's proposed expert because the parties agreed "that a favorable ruling on that motion would be determinative of whether the plaintiff could maintain his action"; id., 82; and on the basis of that evidentiary hearing the court ruled the testimony inadmissible in part. Id. Thereafter, the court granted the motion for summary judgment because, based on the prior ruling, the plaintiff would be unable to prove his case. Id., 83. In the ensuing appeal, we applied the highly deferential abuse of discretion scope of review to the trial court's evidentiary ruling. Id., 84. That case is distinguishable because the ruling in the trial court was akin to a ruling at trial, made on a full factual record, and not made during the course of a summary judgment proceeding.
We acknowledge that the federal rule is to apply an abuse of discretion standard to the question of the admissibility of expert opinion in the summary judgment context. See, e.g., General Electric Co. v. Joiner, 522 U.S. 136, 142-43, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). We think, however, that for the reasons we have given it is more consistent with our summary judgment jurisprudence to apply a de novo standard of review, particularly when the trial court has excluded the expert opinion.
We are also aware of this court's opinion in Turner v. Croman, 52 Conn. App. 445, 448-49, 726 A.2d 1168 (1999), in which the court, after reciting the traditional rule of the admissibility of expert opinion testimony, including the trial court's discretion in such rulings, stated that "[w]e agree with the conclusion of the trial court that the attorney affiant qualified as an expert witness." Id., 449. Turner is not controlling, however. The court did not focus its analysis on the question of the scope of appellate review of the trial court's ruling. Instead, the court focused its analysis on whether the witness had qualified as an expert witness. See id., 448-49. Turner should not be read, therefore, as holding that when a trial court excludes an expert witness' testimony in the course of a summary judgment proceeding, the scope of appellate review of that ruling is limited to whether the trial court abused its discretion.
Applying our plenary scope of review, therefore, to the plaintiff's offer of Nigg's testimony, we conclude that it should have been fully considered. "The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue. . . . Once the threshold question of usefulness to the jury has been satisfied, any questions regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony." Davis v. Margolis, 215 Conn. 408, 416-17, 576 A.2d 489 (1990). "The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than the admissibility of the [expert's opinion] evidence." (Internal quotation marks omitted.) Sanderson v. Bob's Coaster Corp., 133 Conn. 677, 682, 54 A.2d 270 (1946). In addition, Practice Book § 17-46 "sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit. The requirements that the affidavit be based on personal knowledge and contain facts admissible at trial do not mean, however, that expert opinions in the form of affidavits may not be considered in a summary judgment proceeding. For the purposes of an expert's opinion, the expert's personal knowledge of facts is comprised of those materials on the basis of which he properly may render his opinion. See State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). These materials include those on the basis of which the expert forms an opinion, and include . . . hearsay. . . . See State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1980). Furthermore, an expert's opinion is, for purposes of § [17-46], a fact that would be admissible at trial, assuming that the expert is qualified to render such an opinion." (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 251-52, 654 A.2d 748 (1995). Thus, an expert's opinion may be based on second hand sources, such as his training and experience, and information obtained from others. See id., 251-52; State v. Pjura, 68 Conn. App. 119, 127, 789 A.2d 1124 (2002); Eisenbach v. Downey, 45 Conn. App. 165, 179, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997); C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.9.3, p. 534. Although an expert's opinion must be based on facts, "there is no rule of law declaring the precise facts which must be proved before [his] opinion may be received in evidence." (Internal quotation marks omitted.) State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).
Our code of evidence incorporates these standards. Section 7-4 (a) provides that an expert may give an opinion "provided sufficient facts are shown as the foundation for the expert's opinion." Conn. Code Evid. § 7-4 (a). Section 7-4 (b) provides that those facts "may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. . . ." Conn. Code Evid. § 7-4 (b).
Under these standards, Nigg's entire testimony, including his opinion that the carpet was unreasonably dangerous for an indoor soccer facility and was a substantial factor in causing Michelle's fall, was admissible for purposes of the summary judgment proceeding. His curriculum vitae dispels any reasonable doubt about his general qualifications as an expert in the field of biomechanics and related fields, and the defendants do not seriously question those qualifications. His personal knowledge, namely, of how Michelle was injured, related to him by her counsel as described by her and her father, who witnessed the injury, and of the experiments that he and his colleagues conducted, about which he testified in detail, using the specific shoes she had been wearing at the time of the injury and the actual carpet from the defendants' facility, was sufficient for his opinion to be admissible. Also supporting the admissibility of Nigg's testimony was his comparison of the carpeted surface used by the defendants to the synthetic sports facility surface that he also used in his experiments, and the evidence that, subsequent to Michelle's injury, the defendants installed, in a different facility, a different, synthetic sports facility surface. "The plaintiff in all negligence cases may show that better, safer and more practicable devices than those used were available to the defendant." (Internal quotation marks omitted.) Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349 (1945).
Thus, with regard to Nigg's personal knowledge, the defendants' arguments in support of the trial court's decision are unavailing. The facts that Nigg had not spoken to Michelle, her father or her coach, that he did not have her deposition or medical records when he issued his report, that he did not know of the environmental conditions at the time of the injury, or of the facility's age or its use, that he had no information regarding the frequency of injuries, or regarding the fit of her shoes, or her soccer position, all go to the weight, not the admissibility, of his testimony. Considering the range of Nigg's personal knowledge of the facts that he did have, we disagree with the trial court and the defendants that the absence of Nigg's personal familiarity with these facts rendered his opinion without substantial value. See Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986) ("doctor may give an [expert] opinion . . . without having examined or treated the patient" [internal quotation marks omitted]).
The decision in Porter v. Thrane, 98 Conn. App. 336, 908 A.2d 1137 (2006), on which the defendants rely, is not to the contrary. In that case, this court held that the opinion of a residential real estate appraiser, who presented an updated appraisal report, had been improperly admitted into evidence because the appraiser "did not have the essential facts necessary to form an opinion about the value of the property." Id., 340. There, however, unlike the present case, the appraiser had not inspected the property, and no one from his office had done so since the original appraisal two years before; he never viewed the house or cottage on the property, even from a distance; and he was unfamiliar with the interior of the house on the property. On that record, this court concluded that his testimony was "based on speculation and lack of personal knowledge." Id., 341. Nigg's personal knowledge, as we have outlined previously, is not in the speculative category as determined in Porter v. Thrane, supra, 336.
With regard to the trial court's disregard of paragraph 4 of Nigg's affidavit, the defendants offer two contentions. First, they contend that, as the trial court determined, the statements he made in that paragraph were inconsistent with his deposition testimony and, therefore, were properly disregarded. Second, they contend, as an alternate ground for affirmation of the trial court's disregard of Nigg's affidavit, that we should adopt the federal "sham affidavit" rule, pursuant to which a court, under some circumstances, disregards "an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior sworn deposition testimony." (Internal quotation marks omitted.) In re CitX Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006). "[A sham affidavit is an] affidavit that contradicts clear testimony previously given by the same witness, [usually] used in an attempt to create an issue of fact in response to a motion for summary judgment." (Internal quotation marks omitted.) Id. We are not persuaded.
To the extent that the trial court disregarded Nigg's affidavit because it was merely inconsistent with his deposition testimony, we conclude that that is an insufficient reason for a trial court to disregard it entirely. The usual legal remedy for inconsistent statements by a witness is for the adversary to point them out for purposes of impeaching the witness' credibility; such an inconsistency is not ordinarily a ground for precluding the witness' testimony entirely. We see no reason for a different rule to prevail in a summary judgment proceeding, particularly given the fact that in such a proceeding the evidence is to be viewed in a light most favorable to the nonmoving party. We turn, therefore, to the defendants' contention that we should employ the "sham affidavit" rule so as to preclude Nigg's affidavit in the present case.
The defendants argue that we should employ the sham affidavit rule to bar consideration of Nigg's affidavit — particularly paragraph 4 thereof — because in "his affidavit, Nigg states that `[t]he flooring surface provided by the defendants was unreasonably dangerous'; yet he testifies in his deposition that he is only able to testify as to causation. Indeed, he attests that he has no position on standard of care or breach of duty." We need not decide in this case whether to adopt the sham affidavit rule because even if we were to do so, it would not suffice to bar Nigg's affidavit.
One of the corollaries of the sham affidavit rule is that an affidavit that supplements or amplifies prior deposition testimony, rather than contradicting it, does not violate the sham affidavit rule. Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998) (material issue of fact may be revealed by subsequent sworn testimony that amplifies or explains, rather than contradicts, prior testimony, "especially where the party was not asked sufficiently precise questions to elicit the amplification or explanation" [internal quotation marks omitted]); Galvin v. Eli Lilly Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (affidavit that does not contradict but instead clarifies prior sworn testimony admissible). In his deposition, Nigg testified that, based on his tests, there was a substantially higher risk for injuries in the carpet condition compared to the synthetic condition. In paragraph 4 of his affidavit, Nigg opined: "The flooring surface provided by the defendants was unreasonably dangerous and unfit for use at an indoor soccer arena. . . ." A careful examination of Nigg's deposition testimony does not disclose, however, the type of conflict between deposition testimony and subsequent affidavit material to which the sham affidavit rule applies.
The only deposition testimony that the defendants refer us to in support of their contention is testimony in which Nigg was asked repeatedly whether he had any information or opinion on the standard of care specifically applicable to indoor soccer facilities, such as whether there were any government or industry standards governing such facilities, whether he was familiar with the United States Indoor Soccer Association and any floor surfaces that that association might have recommended, and whether he had ever been the manager or administrator of a youth indoor soccer program. Our scrutiny of this testimony, however, discloses that it was wholly consistent with the plaintiff's claim in this case, namely, that the defendants maintained an unreasonably dangerous flooring surface for an indoor soccer facility, on the basis of premises liability, irrespective of any special standard of care applicable to such facilities. Thus, Nigg's affidavit, particularly paragraph 4 thereof, was merely supplemental to and an amplification of, and not contradictory to, his deposition testimony. Accordingly, even if we assume, without deciding, that the sham affidavit rule were to apply in Connecticut, it would not operate properly to bar Nigg's affidavit in the present case.
C
Having concluded that Nigg's testimony should have been considered by the trial court in full, we turn, now, to the principal basis of the trial court's decision, namely, that in the present case in order for the plaintiff to prevail she would have to produce expert testimony of the specific standard of care applicable to indoor soccer facilities and of the breach of that standard of care. We agree with the plaintiff, however, that her claim rests on the rules of law applicable to premises liability in which the law itself imposes the standard of care, namely, the duty to provide and to maintain premises in a reasonably safe condition. We conclude further that Nigg's affidavit was sufficient for the plaintiff to survive the defendants' motions for summary judgment in this regard.
First, it must be remembered that the plaintiffs claim by its terms rests on the nature of the premises, namely, the unsafe condition of the carpeted surface for purposes of indoor soccer. It does not rest on the nature of any particular actor's specialized conduct. Thus, in this respect, the claim differs from both Santopietro v. New Haven, supra, 239 Conn. 207, and LePage v. Horne, supra, 262 Conn. 116, on which the defendants rely. In both of those cases the focus of liability was on the specialized conduct of the defendant actors: in Santopietro, the softball umpires and in LePage, the day care provider.
Second, it is salient in the present case that there are, all parties agree, no governmental standards governing the type of floor surface for indoor soccer facilities. This necessarily means that, if the operator installs and maintains a surface that is customarily used for such facilities; and if that surface is in fact dangerous, in the sense of being unreasonably unsafe, for the users of such a facility, as Nigg asserts based on his expertise; and if that danger has not yet manifested itself by prior accidents known to or discoverable by the parties, as is the case here; then the first person to suffer from such an initial manifestation, such as Michelle, would be without a remedy; whereas perhaps the second, third or fourth person to suffer thereby would have a remedy because the danger would have sufficiently manifested itself to justify such a recovery. We think that the law should permit the first person injured by the danger to recover, rather than waiting until more persons are so injured. Put another way, the law should compensate, and not penalize, the first person to bring the unsafe condition to light. Furthermore, to the extent that there are no industry standards governing such facilities, such standards or their absence would not be determinative in any event because such standards are merely evidentiary and not conclusive of a duty of care. Considine v. Waterbury, 279 Conn. 830, 864-65, 905 A.2d 70 (2006).
On the basis of the standard applicable to premises liability, Nigg's testimony was sufficient to withstand the defendants' motions for summary judgment. His opinion that the defendants' surface was unreasonably dangerous for use as an indoor soccer facility is precisely the type of expert opinion in premises liability cases that our courts have long countenanced and deemed sufficient to prove negligence. See, e.g., Delmore v. Polinsky, supra, 132 Conn. 30 ("There was definite expert testimony that the arrangement of the steps was unsafe. This is sufficient to support a finding of negligence."). In addition, there was evidence on which the jury could have found that there were other surfaces that were more safe than that employed by the defendants. Such evidence is grist for the jury mill on the question of negligence in a premises liability case. See, e.g., id., 31. Furthermore, there was no need for the plaintiff to prove notice of the unsafe condition because the defendants were responsible for creating the unsafe condition. Kelly v. Stop Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002); Tuite v. Stop Shop Cos., 45 Conn. App. 305, 308-309, 696 A.2d 363 (1997). Similarly, on the factual question of foreseeability, ordinarily, if a defendant was responsible for creating the unsafe condition, it is quintessentially a jury question as to whether he could foresee that harm of the general nature of that suffered was likely to result. See Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 30, 266 A.2d 370 (1969); Gutierrez v. Thorne, 13 Conn. App. 493, 500-501, 537 A.2d 527 (1988). Given the evidence that the defendants installed and maintained an unsafe surface in their facility, a jury could reasonably find that injury to an athlete who played on the surface was foreseeable.
We emphasize, of course, that we are not deciding whether Nigg's testimony must be believed. That will be a matter for the trier of fact at trial. We decide only that it should have been considered in full in these summary judgment proceedings and that, if believed, it, taken together with all of the other evidence supplied by the plaintiff, was sufficient for the plaintiff to withstand the defendants' motions for summary judgment.
The judgment is affirmed as to DiTommaso Associates, LLC. The judgments are reversed as to Farmington Sports Arena, LLC, Dimensional Technology Group, LLC, and Paul DiTommaso, Jr., and the case is remanded with direction to deny their motions for summary judgment and for further proceedings according to law.
In this opinion BEACH, J., concurred.
BISHOP, J., concurring.
Although I agree with part I of the majority's opinion and its conclusion that the trial court improperly rendered summary judgment in favor of the defendants Farmington Sports Arena, LLC, Dimensional Technology Group, LLC, and Paul DiTommaso, Jr., I write separately because I believe that, in part II of its opinion, the majority misinterprets the basis of the court's decision and, in suggesting that a trial court's evidentiary rulings in connection with a summary judgment procedure are inevitably subject to a plenary standard of review, the majority invites deviation from our well established decisional law.
Although the court also granted the motion for summary judgment filed by DiTommaso Associates, LLC, for the purposes of this concurrence we refer to only Farmington Sports Arena, LLC, Dimensional Technology, LLC, and Paul DiTommaso, Jr., as the defendants.
In response to the defendants' motions for summary judgment, the court determined that the plaintiff, Karen DiPietro, failed to establish the presence of a genuine issue of material fact sufficient to reach a jury on the basis that her expert, Benno M. Nigg, would not be able to offer evidence concerning the applicable standard of care and would not be able to testify that the defendants had prior notice of any alleged defect in the soccer playing surface. In addressing the plaintiffs claim on appeal concerning this issue, the majority characterizes the court's decision as a ruling on the admissibility of Nigg's testimony. In granting the defendants' motions for summary judgment, however, the court explicitly stated that it was assuming, for purposes of ruling on the motions, that Nigg's conclusions were valid and persuasive. The court found, nevertheless, that Nigg's testimony was insufficient because he was not going to be able to testify concerning the standard of care or notice of the alleged defect, and the plaintiff had presented no other evidence in that regard. In other words, in this part of its decision, the court determined that Nigg's testimony was legally inadequate, not inadmissible. Indeed, the court determined that the plaintiff could not satisfy her burden of proof to sustain a negligence action even with Nigg's testimony. Because the court explicitly credited Nigg's testimony, I do not think that it can fairly be read as excluding it in regard to the issues of notice and the standard of care.
In rendering summary judgment in favor of the defendants, the court also appears to have determined that Nigg's testimony would be inadmissible at trial due to his lack of personal knowledge regarding the circumstances of the incident giving rise to the alleged injuries to the plaintiff's minor daughter, Michelle DiPietro (Michelle). My difficulty with the majority's response to this aspect of the court's ruling is the majority's suggestion that our review of any determination of admissibility by a trial court in a summary judgment context should be plenary. In making this assertion, I believe the majority overstates its point as applied to the procedural facts of this case, and, in the process, unnecessarily casts doubt on our bedrock jurisprudence that a trial court's evidentiary rulings are, generally, subject to the more deferential standard of review for an abuse of discretion no matter the context in which they are made. See Turner v. Croman, 52 Conn. App. 445, 726 A.2d 1168 (1999). In short, not every ruling on the admissibility of evidence made by a trial court in conjunction with a summary judgment hearing is subject to plenary review. Furthermore, this case presents no reason for this court to stray from our well established jurisprudence that a trial court's evidentiary rulings, to the extent it is proper for the court to have made evidentiary rulings, are subject to a more deferential abuse of discretion standard despite the context in which they arise.
Here, it is not the court's ruling that Nigg's testimony would be inadmissible because of his lack of personal knowledge that we review, but, rather, we assess the correctness of the court's making such an evidentiary ruling in the face of conflicting evidence regarding Nigg's personal knowledge of the circumstances of Michelle's accident. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 87, 882 A.2 1254 (2003). Because the court must, when deciding a motion for summary judgment, accept all facts alleged by the nonmoving party as true, it would be inappropriate to engage in weighing the evidence or the testimony submitted. Roy v. Bachmann, 121 Conn. App. 220, 223, 994 A.2d 676 (2010) (trial court does not sit as trier of fact when ruling on motion for summary judgment). Thus, when there is a factual issue in dispute, the court should not resolve that issue on summary judgment, but, rather, that issue must be left to the fact finder for resolution.
In the case at hand, contrary to the defendants' assertions and the trial court's finding, Nigg's affidavit could reasonably support the conclusion that he received personal information from Michelle's family as to the circumstances of the accident. Rather than crediting this evidence as it was required to do, the trial court, instead, decided a material fact in concluding that Nigg had insufficient personal knowledge to permit him to testify. In doing so, the court improperly resolved a factual dispute rather than confining itself to whether such a dispute exists so as to survive the summary judgment motions. Consequently, I believe that we should accord plenary review to the court's determination that Nigg is not competent to testify, not on the basis that the court's evidentiary ruling should be accorded plenary review, but, rather, because the court was legally incorrect in engaging in such an assessment when the evidence was in conflict. Because the court acted beyond its scope of authority in this manner, its ruling is legally incorrect. Thus, although I agree with the majority that we should accord plenary review to the trial court's determinations in this summary judgment matter, I cannot share the majority's broad assertion that any review of a trial court's admissibility rulings in a summary judgment matter should be plenary simply because they arise in a summary judgment context. Accordingly, I concur with the outcome reached by the majority but not with its analysis in all respects.