Opinion
No. HHD X04 CV-02-4034702 S
October 24, 2008
MEMORANDUM OF DECISION ON CROSS MOTION TO COMPEL
The court has considered the plaintiff's cross motion to compel, dated October 2, 2008, (#353) and the defendant Hartford Roman Catholic Diocesan Corporation (Diocesan Corporation), and deponent Grace Carrie and Monsignor William Mullen's objection, dated October 16, 2008 (#362).
The plaintiff seeks production of "[a]ny and all sexual abuse training materials in your possession or control distributed or utilized within the Archdiocese of Hartford." See plaintiff's motion, page 2. The plaintiff also seeks a privilege log concerning such materials.
The objection asserts that the plaintiff seeks materials generated after 1978, contrary to previous court orders which have limited discovery to documents and information related to the time period prior to 1979. The plaintiff alleges that he was sexually molested by defendant Stephen Foley in 1978. The objection also contends that no privilege log is required.
In the objection, the Diocesan Corporation and the deponents also raise a First Amendment jurisdictional argument, citing its motion to dismiss. The court addressed the motion to dismiss in its memorandum of decision, dated October 20, 2008 (#366).
The plaintiff argues that post-1978 materials are relevant since they would tend to show preventative actions that could have been taken in 1978 and before; that they would "tend . . . to show later corrective action and that at some point the Diocese was assuming responsibility for discovering and preventing such wrongdoing; and . . . the defendants have questioned the plaintiff's background and have made assumptions as a result." See plaintiff's motion, page 3.
Connecticut Rule of Evidence § 4-7(a) provides that "[e]xcept as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures." Subsection (b) does not apply here since this action does not concern strict product liability.
Recently, the Supreme Court explained "[t]he general rule is that evidence of subsequent repair is not admissible on the issue of negligence . . . This court, however, has admitted evidence of subsequent remedial measures if offered for other purposes . . . [T]he rule barring evidence of subsequent repairs in negligence actions is based on narrow public policy grounds, not on an evidentiary infirmity . . . It presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing tortfeasors to repair hazards of having proof of negligence . . . Even in negligence actions, however, we have held proof of subsequent remedial measures admissible if offered for a purpose other than to show culpable conduct on the part of a defendant. In several cases, we have admitted such evidence when the defendant's control of the hazardous instrumentality is at issue in the suit . . . The existence of these exceptions to the general rule illustrates that the strength of the public policy supporting the rule is not so great as to demand the exclusion where there is a strong probative use for the evidence, as contrasted with the somewhat dubious legal relevance of subsequent repairs to the question of negligence itself.
"The central question is the plaintiff's purpose in introducing the evidence. The doctrine bars evidence of subsequent repairs when offered to prove negligence. It does not exclude such evidence when offered to prove some other material issue . . . While repairs made after an accident tend to prove that the party conducting them retains control over the area in question; . . . if the defendant has admitted orally that it controlled the premises on which the injury occurred, no reference in testimony to subsequent repairs should be made." (Citations omitted; internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 447-48, 899 A.2d 563 (2006).
Here, the rule prohibits evidence which tends to show subsequent preventative actions that could have been taken in 1978 and before; or which tends to show later corrective action. The court is also unpersuaded that such evidence is discoverable in order to show that, as contended by the plaintiff, "at some point the Diocese was assuming responsibility for discovering and preventing" Foley's alleged wrongdoing in 1978.
The alleged facts here differ substantially from the types of control issues as to which evidence has been permitted. For example, in Smith v. Greenwich, supra, a premises liability case, the Supreme Court concluded that the trial court did not abuse its discretion in admitting photographic evidence as probative on the issue of control over a snow pile, where the defendant did not concede it was responsible for creating the snow pile. See id., 278 Conn. 448-49.
There is no question here that Foley was a Catholic priest who was assigned within the Hartford Archdiocese at the time of the events which the plaintiff alleges occurred in 1978. Later sexual abuse training materials do not appear to be "reasonably calculated to lead to the discovery of admissible evidence," see Practice Book § 13-2, as to whether or not the Diocesan Corporation is liable for negligent or reckless misconduct in connection with Foley's alleged sexual abuse of the plaintiff in 1978. In addition, the plaintiff's argument that "the defendants have questioned the plaintiff's background and have made assumptions as a result" is vague and appears far afield from the exceptions which have been recognized to the general rule about subsequent remedial measures.
Finally, no privilege, such as the attorney-client privilege, has been asserted here. Privilege logs are generally required in order to aid in the assessment of the validity of the assertion of a privilege. See Babcock v. Bridgeport Hospital, 251 Conn. 790, 808, 836, 742 A.2d 322 (1999) (concerning peer review privilege under General Statutes § 19a-17b). Since no privilege is at issue, there is no need for a privilege log.
Accordingly, based on the reasons stated above, the cross-motion to compel is denied.
It is so ordered.