Can Unretained Experts be Compelled to Give Opinion Testimony?
For years, Connecticut’s trial courts have debated an important question: whether individuals, who have not been hired and disclosed as expert witnesses, may still be compelled to express their opinions under oath. Any person who possesses particular training and expertise could find herself in this quandary. Although treating physicians, nurses, and other health care providers are most often confronted with this dilemma, real estate appraisers, engineers, and other professionals may face it as well. The Appellate Court’s recent decision in Redding Life Care, LLC v. Town of Redding, 174 Conn. App. 193, A.3d (2017) sheds light on the debate. In Redding, the Appellate Court explicitly recognized a qualified testimonial privilege for individuals who are experts in their field. Although the Redding privilege has limitations, which are addressed below, it is an important protection for anyone who does not want to serve as an unwilling, uncompensated expert witness.
In its 1968 decision in Town of Thomaston v. Ives, the Connecticut Supreme Court concluded that: “Undeniably, there is a distinction between the duty of a witness to testify to factual matters within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert.”1 In Ives, the trial court compelled a state-hired appraiser to testify against his will as to value during an eminent domain hear-ing, the Supreme Court required the witness to testify. The Supreme Court affirmed, but explained that its decision should not be taken to mean that every expert witness is subject to the same requirement.
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