Opinion
No. CV02 038 83 96 S
April 4, 2006
CORRECTED MEMORANDUM OF DECISION
This is a motion for summary judgment filed by a defendant law firm with respect to the claims of two out of three plaintiffs who have filed a legal malpractice suit.
The plaintiffs, Deborah S. Reynolds, Jennifer Connolly and Venezia Van der Zyde, were employed by a firm known as Donaldson, Lufkin, and Jenrette Securities Corporation (DLJ). The plaintiffs were under the belief that they had been subjected to sexual discrimination and harassment by their employer and as a result were either fired from or terminated their employment.
The plaintiff Jennifer L. Connolly was initially hired as a Reverse Engineer in the Structured Finance Department with a starting salary of approximately $70,000.00 per year. She was eventually promoted to Vice President, Senior Whole Loan Structure in 1996. After taking a maternity leave, Ms. Connolly felt, upon her return, that she was the subject of sexual harassment and voluntarily resigned her position under conditions which Ms. Connolly felt was a constructive termination. Ms. Connolly was employed in a New York office of DLJ.
The plaintiff Deborah Reynolds, was initially employed as Vice President, Inverse Floater Trader for the Fixed Income Division of DLJ at a salary of $125,000.00 per year plus bonuses and benefits. She eventually was promoted to Senior Vice President and in 1994 actually received a bonus increase annually from $275,000 to $400,000 per year. As with Ms. Connolly, Ms. Reynolds took a maternity leave and felt upon her return that she was subject to sexual harassment and intentionally included in a reduction in force program with the termination benefits so provided. Ms. Reynolds was employed in a New York office.
Ms. Venezia Van der Zyde, was employed as Vice President in Sales Person/Taxable Fixed Incomes Sales with an annual salary of $10,000 per month and net commission rates of 14% for one portion of the business and 23% for another. Ms. Van der Zyde was already the mother of two and took an additional maternity leave during her employment. Ms. Van der Zyde was also included in a reduction in force program with a specific termination arrangement in place. She, as did Ms. Connolly and Ms. Reynolds, felt she was terminated as a result of sexual discrimination. Ms. Van der Zyde was employed in a Boston office of DLJ and resided in a Massachusetts community.
These plaintiffs with their individual claims engaged the defendant law firm to pursue their three claims together. The attorney for the defendant law firm agreed to represent the plaintiffs and indicated he would file a complaint with the Equal Employment Opportunity Commission to investigate their claims. He also advised them that they would be required to file a complaint for discrimination under Title VII of the Civil Rights Act of 1964.
In their affidavits, the plaintiffs Connolly and Reynolds indicated that they did not request the attorney to file a class action but simply requested he do his best to get the largest recoveries that they could. The attorney eventually filed an Equal Employment Opportunities Commission complaint in Federal Court but failed to do so within the statutorily required time and the claim was dismissed.
After being advised that the Connecticut attorney had failed to file a proper claim under the Civil Rights Act of 1964, the plaintiffs engaged the services of a New York attorney, Ann Clark, to represent them in a claim to be brought under New York State and City Law for sexual discrimination.
Although the three plaintiffs were made well aware that the plaintiff Van der Zyde was not employed in New York, a requirement to obtain jurisdiction, the three plaintiffs advised their attorney that they wished to pursue their separate claims together and prior to litigation agreed to attempt to a lump sum settlement through mediation. In addition, the plaintiffs devised a percentage amongst themselves as to how an ultimate lump sum settlement would be divided by the three of the plaintiffs with Connolly and Reynolds receiving 36.6% each and Ms. Van der Zyde receiving 26.8%. In fact, a lump sum settlement of $650,000 plus attorneys fees was achieved. The plaintiffs Reynolds and Connolly each received $237,900 and Van der Zyde received $174,200.
The plaintiffs have now filed legal malpractice claims against the defendant law firm claiming the failure to file a proper notice under Title VII of the Civil Rights Act resulted in a reduction in their ability to achieve the maximum recovery available for employment discrimination. Although the three plaintiffs have three separate causes of action, they have once again engaged a single attorney and once again indicate they wish to pursue their claims jointly.
The defendant law firm has filed a motion for summary judgment as to the individual claim of Connolly and the individual claim of Reynolds. The basis for the motion for summary judgment is that the plaintiffs cannot prove the activity of the defendant law firm impaired their respective individual ability to recover for employment discrimination as their claims under the New York State and New York City employment laws offered them any and all remedies which would have been available under Title VII. A further claim is that any reduction in their ultimate recovery in New York was as a result of their own decision to join the three separate cause of action in one with respect to negotiation and settlement with an inherent deficiency by including the plaintiff Van der Zyde who had no standing to sue in New York and therefore no leverage for negotiation.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . . Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal citations and quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558 (2004).
The deposition of Attorney Clark was held in October of 2003. At the time, Ms. Clark indicated that she was not testifying as an expert. However, subsequent to the filing of a motion for summary judgment, the plaintiffs have filed a disclosure indicating they intend to use Ms. Clark as an expert witness. It was agreed by the parties that for the simple purpose of determining the validity of a motion for summary judgment and in turn the validity of the plaintiffs' claim, the deposition taken in October will be considered as that of an expert in employment discrimination.
Ms. Clark testified that the three plaintiffs did in fact, engage her on an agreement between themselves that they would pursue the matters jointly. Ms. Clark testified that she was familiar with the fact that the complaint under the Equal Opportunity Employment Commission had not been properly filed precluding an action under Title VII. However, she indicated that between the New York State employment law and the New York City employment law, the parties are entitled to punitive damages, equal pay determination, mental anguish, attorneys fees and injunctive relief. In summary Ms. Clark testified that between the New York State law and the New York City law, a plaintiff has the same relief available that they would have a Federal claim of Title VII discrimination. The matter could additionally be heard by a jury and Ms. Clark intended in this case to bring it in Federal Court because of diversity, thereby providing for a faster determination.
Ms. Clark testified that prior to even instituting a lawsuit, the plaintiffs and the defendant agreed to attempt mediation through a New York judge.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts. The party seeking summary judgment "has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. Pursuant to Practice Book §§ 380 and 381, now Practice Book (1998 Rev.) §§ 17-45 and 17-46, the party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591.
As it was indicated the plaintiffs voluntarily agreed to pursue the matter jointly which included mediation. The evidence submitted to this court indicated repeatedly that the only specific legal obstruction for the three plaintiffs to recover the full extent of their claimed damages was the fact that Ms. Reynolds and Ms. Connolly were actually employed in New York City and Ms. Van der Zyde was employed in Boston and most likely did not have standing to file a claim in New York. In effect, Ms. Reynolds and Ms. Connolly had available to them all the remedies they would have had available had the attorney in Connecticut not failed to file the claim in time, but Ms. Van der Zyde was apparently precluded from pursuing any legitimate claim.
"Generally, to prevail on a legal malpractice claim, in Connecticut, a plaintiff "must present expert testimony to establish the standard of proper professional skill or care . . . Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant's conduct `legally caused' the injury of which they complain. The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. Accordingly, if a plaintiff fails to provide expert testimony on the issue of proximate cause, a directed verdict is proper. Vorna v. Lerner, 72 Conn.App. 179, 89-92, 804 A.2d 1018 (2002) (holding that trial court properly granted defendants' motion for directed verdict in absence of expert testimony as to proximate cause), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003); Solomon v. Levett, 30 Conn.App. 125, 128, 618 A.2d 1389 (1993) (affirming directed verdict in favor of defendant where plaintiff did not produce expert testimony tending to show defendant's breach proximately caused her injuries); Somma v. Gracey, 15 Conn.App. 371, 374-75, 544 A.2d 668 (1988) (holding that plaintiff must produce expert testimony that breach of professional standard of care occurred and that breach was proximate cause of injuries suffered by plaintiff). "[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . ." Distefano v. Molardo, 82 Conn.App. 838, 842 (2004).
Ms. Clark testified the absence of a Title VII claim did not impact the viability of the various relief sought by the plaintiffs. She testified with respect to Ms. Reynolds and Ms. Connolly that the New York State and New York City law would have provided them with full relief and that the only deficiency in resolving the matter jointly was the repeated reference during negotiations to the fact that Ms. Van der Zyde was not employed in the city of New York and therefore did not have the standing to participate in a claim under the New York Statutes. That was obviously the knowledge of Ms. Clark in representing the parties, and the knowledge of the defendant DLJ with reference to the negotiations as repeated by Ms. Clark; but it was their choice. As some point, DLJ offered $35,800 to Ms. Van der Zyde based entirely on the fact that she had no claim as a result a failure to file a Title VII Civil Rights claim and failure to have standing to sue in the State of New York. The plaintiffs Reynolds and Connolly indicated in their identical affidavits:
10. During the negotiations with DLJ, it became clear that DLJ thought that Ms. Van der Zyde's claim under New York law had very little value because she had worked in Boston, not New York.
11. When that fact became clear, Jennifer Connolly and I both believed that we had an obligation to Ms. Van der Zyde not to leave her high and dry, and we agreed with her to divide any settlement DLJ was willing to pay in pre-arranged percentages.
12. We made this agreement because we thought that it was the fair thing to do. We had all been victims of discrimination and then of Mr. Scheer's negligence, and we did not believe that it would be appropriate or fair to leave Ms. Van der Zyde out of significant participation in the settlement.
CT Page 6232
13. If Ms. Van der Zyde had been able to bring her own case, such an agreement would not have been necessary and I would have been able to recover the full amount that DLJ was willing to pay to settle my case alone. This amount was substantially larger that the amount I was actually able to settle the case for in view of my agreement and obligations to Ms. Van der Zyde.
On that basis, the plaintiffs, Connolly and Reynolds compromised their claim for employment discrimination.
"Connecticut permits recovery for a lost chance provided that the evidence would permit a finder of fact to conclude reasonably that more probably than not, the defendant's negligence was the direct and proximate cause of a decrease in the chance of successful treatment of the plaintiff's injury. There is no dispute that the plaintiffs needed to elicit expert testimony to demonstrate that the defendants caused a lost chance . . . The plaintiffs attempted to surmount that evidentiary burden through (an expert's) testimony.
Although the court was bound to evaluate (the expert's) testimony in the light most favorable to the plaintiffs' case, the court was free to scrutinize the basis of . . . expert opinion. That is so because "expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause . . . In other words, the expert opinion must be based on reasonable probabilities. Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation . . . To be reasonably probable, a conclusion must be more likely than not . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony." Drew v. Backus, 77 Conn.App. 645 (2003).
The plaintiffs jointly agreed to a settlement of $237,900 for Reynolds and Connolly each and $174,200 for Van der Zyde.
The plaintiffs rely on an observation by Ms. Clark that the settlement could have been for $200,000 more. However any reference to value by Ms. Clark was not to the value of the individual claims of Reynolds or Connolly standing alone:
I think they could have more from DLJ that day but when you talk about value then there a lot of values, there is a value that they could have potentially gotten if they had won and they you have to weigh how willing they are to go forward and take the risk and fight it, but in terms of what I think they could have gotten, that day, I think those numbers wouldhave been higher had Ms. Van der Zyde's claim had not had the problems it had. In effect the $237,900 that Ms. Reynolds and Ms. Connolly had gotten would have been more, and indeed, had the percentages the three parties formulated reflected the validity of the claim, and in all likelihood the individual claims of Connolly and Reynolds would indeed have been more, but any reduction in their amount was due to their volunteering to try the matters together in spite of the problems of Ms. Van der Zyde's and voluntarily formulating a formula which had an inherent infliction of monetary damages with respect to the actual values and realistic values offered by DLJ.
Deborah Reynolds, Jennifer Connolly and Venezia Van der Zyde may have joined together to pursue recovery, but each was an individual plaintiff seeking individual damages. Each had separate elements with respect to their employment and therefore with respect to their ultimate recovery. Their positions within DLJ were different from each other. Their salaries were all different from each other. The basis under which they left the company were divergent and the actual location of their employment was at variance.
Each of the plaintiffs had a value to their claim of employment discrimination prior to engaging the defendant law firm. Each of the plaintiffs claim the value of their individual cases was less following the defendant's failure to file a Title VII claim and each, in effect, claim that the ultimate resolution of their case is a reflection as to their loss. In fact, there has been no evidence submitted by either of the plaintiffs as to the value of their claim at the time they engaged the defendant's law firm. There is no individual value given to the respective plaintiff's claims and individual verdicts are following the failure to file the Title VII cause of action and while engaging the attorney in New York. The only evidence throughout the deposition of Attorney Clark with respect to Deborah Reynolds and Jennifer Connolly, was that upon engaging the attorney in New York to pursue State and Federal discrimination claims, the issue would have been the same as under Title VII and the failure to assert a cause of action under Title VII did not have any impact on their recovery.
In addition to not offering a suggestion as to the value of the potential individual verdicts in this case, the plaintiffs have not offered a suggestion as to any appropriate individual allocation of the $650,000 settlement recovered and disbursed in New York.
"[T]he party opposing [summary judgment] . . . must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of a case . . . A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 70, 874 A.2d 798 (2005).
In effect, the plaintiffs are indicating that although they voluntarily agreed to reduce the chances of their recovery by joining in an action with the plaintiff Van der Zyde and they further incurred damages to the amount of their recovery by arbitrarily assigning the plaintiff Van der Zyde a larger percentage than was appropriate, that agreement, because of the conduct of the defendant law firm, elevated a gift into a legal obligation with respect to the damages which they suffered. While this court agrees that their arrangement did, indeed, cause them unspecified damages, those damages were self-inflicted. If, in fact, there were a legal obligation arising out of their arrangement and whether or not one was included at that time or at the present time, it is a legal obligation between the plaintiffs Reynolds and Connolly and the plaintiff Van der Zyde. It is not a legal obligation, or loss, that was created by the defendant.
The Motion for Summary Judgment is granted.