Pet v. Department of Health Services

Berdon, J.,

dissenting.

This eight year odyssey does not speak well for our administrative process, especially because it involves a physician who is accused of serious professional misconduct and negligence. Nevertheless, I agree with the trial court that a new hearing is required because the constitutional right of the plaintiff, Dr. Donald Pet, to due process of law was violated in two respects. First, I believe that Dr. Pet’s due process rights were violated when Dr. Harvey Mandell, the chairperson of the panel that conducted the administrative hearings, placed a time limitation on Dr. Pet’s right to cross-examine the state’s only expert witness, Dr. Kenneth Selig.1 Second, I believe that Dr. Pet’s rights were violated by the fact that only one of the members of the defendant Connecticut medical examining board (board) was present for part of the hearing and the other six members did not hear any of the testimony. I believe this violated due process, especially because four of the most serious charges against Dr. Pet were wholly dependent on the personal credibility of the complaining witnesses.

*686I

In Pet v. Department of Health Services, 207 Conn. 346, 353-54, 542 A.2d 672 (1988) (Pet I),2 the court noted “that a license to practice medicine is a recognized property right and may only be revoked under procedures that comport with constitutional due process of law.” The Uniform Administrative Procedure Act,3 which governs license suspension proceedings before the board, provides that “a party may conduct cross-examinations required for a full and true disclosure . . . .” General Statutes (Rev. to 1985) § 4-178 (3), now codified at § 4-178 (5). We have recognized that “[t]he right of cross-examination is not a privilege but is an absolute right . . . .” Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973). Indeed, the denial of the right to cross-examination implicates the due process rights of a party. See Pet I, supra, 366; Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 574, 409 A.2d 1020 (1979); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 569, 345 A.2d 520 (1973); Welch v. Zoning Board of Appeals, 158 Conn. 208, 212-13, 257 A.2d 795 (1969).

*687I agree with the trial court’s conclusion that the record discloses that in imposing the one hour time limitation upon the cross-examination of Selig, Mandell intended to punish Dr. Pet.4 While Mandell had the *688right and duty to curtail repetitious or irrelevant cross-examination; see General Statutes § 4-178 (1) (“the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence”); punishing Dr. Pet by imposing a time limitation on his cross-examination was beyond the scope of Mandell’s authority. See 1 C. McCormick, Evidence (4th Ed. 1992) § 19, p. 81 (“[t]he judge . . . has wide discretionary control over the extent of cross-examination upon particular topics, but the denial of cross-examinations altogether, or its arbitrary curtailment upon a proper subject of cross-examination will be ground for reversal” [emphasis altered]). Indeed, we *689have long held that “[a] fair and full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, and not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error.” (Internal quotation marks omitted.) Fahey v. Clark, 125 Conn. 44, 47, 3 A.2d 313 (1938). To “absolutely stop” a party’s cross-examination is to deny that party the right to cross-examine. Id., 48.

We have held in an analogous situation that placing a time limitation on the examination of prospective jurors is improper, even though the “trial court is vested with wide discretion in conducting the examination of jurors.” (Internal quotation marks omitted.) State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156 (1976); see State v. Roberson, 173 Conn. 102, 376 A.2d 1087 (1977). In State v. Anthony, supra, the trial court had summoned a panel of fourteen venirepersons, placed them in the jury box, and informed the defendant that she would have one hour to voir dire everyone on the panel. This same procedure was followed with a second panel of venirepersons. When a third panel was necessary to complete the jury, the trial court limited the defendant’s voir dire to forty-five minutes. Id., 173. This court held that the trial court’s imposition of the time limitation was arbitrary and prejudicial, and therefore required reversal. Id., 177.

I believe that Mandell’s imposition of the time limitation on Dr. Pet’s cross-examination was an arbitrary denial of due process. The majority concedes that the time limitation was “inappropriate,”5 but nevertheless *690holds that it was not “unlawful.” This holding is based on the conclusion that, even if the limitation had deprived Dr. Pet of due process, he had not demonstrated “substantial prejudice.” I disagree with the majority.

First, I believe that the time limitation deprived Dr. Pet of his right to a full and complete cross-examination. Mandell terminated the cross-examination right at the point when Selig conceded that he was not an expert in those therapies that do not emphasize the transference phenomenon or that deal with it in a different way than the psychodynamic therapies.6 This *691area of testimony was critical in regard to the four counts that charged Dr. Pet with mismanaging “transference” and thereby violating General Statutes § 20-13c (4).7 In addition, Dr. Pet was completely prohibited from cross-examining Selig after his redirect testimony, which concerned possible interest and bias. Selig testified on redirect that his primary motivation for testifying for the state was that he was a “good citizen.” Indeed, after this testimony, Mandell stated that the panel would assume that Selig had provided his testimony “as a public service.” Dr. Pet was denied an opportunity to challenge this assumption.

Second, it is clear that Dr. Pet was also prejudiced by the time limitation because Selig was the only expert witness called by the state in support of the charges of professional misconduct. Although the members of the board may rely upon their own expertise; Jaffe v. Department of Health, 135 Conn. 339, 349-50, 64 A.2d 330 (1949); “expert testimony may be required when the question involved goes beyond the ordinary knowl*692edge and experience of the trier of fact.” (Internal quotation marks omitted.) Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980). The trial court specifically found that the board had based its decision, at least in part, upon Selig’s testimony.8 Furthermore, “[i]f an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience . . . .” Id. In its memorandum of decision, the trial court found that the board had “pointed to no evidence in the record concerning the agency members’ expertise in the precise subject matter of the charges brought against” Dr. Pet. Therefore, we must presume that the board relied solely upon Selig’s expertise.

Even if Dr. Pet had not demonstrated actual prejudice, I believe that the time limitation would have to be presumed to be prejudicial for the same reason that it was in State v. Anthony, supra. In that case, this court noted that “because of the arbitrary time limitations *693set for the voir dire examination, it is impossible for the defendant to show that he could have discovered facts or prejudices on the part of individual veniremen which would have justified challenges for cause.” Id., 177. We therefore presumed that the time limitation was prejudicial in the absence of proof to the contrary. Similarly, in the present case, it is impossible for Dr. Pet to show that further cross-examination would have revealed interest, bias or prejudice,9 or demonstrated that the alleged expert was not so expert. Therefore, prejudice should be presumed.

The majority now adopts a new standard in order to predicate error on a wrongful limitation of cross-examination. It holds that Dr. Pet, who was pro se, should have either subpoenaed Selig, or moved to have Selig’s testimony stricken, in an effort to remedy the inappropriate time limitation. We have never before held a party to this standard, and the majority cites no authority to support this harmless error analysis. Furthermore, it is inconsistent with Chief Justice Peters’ conclusion in Fellin v. Administrator, 196 Conn. 440, 446, 493 A.2d 174 (1985), that “the leniency traditionally afforded to inexperienced pro se parties may justify belated consideration of claims not fully explored in earlier proceedings.” (Internal quotation marks omitted.) While the majority purports to rely on Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 630, 613 A.2d 739 (1992), this case is inapposite. In Dragan, the defendant did not “assert his right to undertake . . . [the] cross-examination.” Rather, “more than one year after the hearings had begun, the plaintiff reserved only the right to submit *694additional exhibits for the board’s consideration.” (Emphasis in original.) Id. Clearly, in this case, Dr. Pet made his objection known as indicated in the testimony quoted in footnote 4.

I fear that in grappling with the complexities of this case the majority has lost sight of the fundamental importance of cross-examination in adversary proceedings. “ ‘Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982); see State v. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959).” State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983). Indeed, years ago, this court stated that “[t]he test of cross-examination is the highest and most indispensable test known to the law for the discovery of truth.” Bishop v. Copp, 96 Conn. 571, 575, 114 A. 682 (1921). “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. . . . [F]airness can rarely be obtained by . . . one-sided determination^] of facts decisive of rights. . . . [And no] better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss . . . the right to contest the facts upon which the judgment depends; next to this right, the significance of any argument for . . . expediency or efficiency pales.” (Citations omitted; internal quotation marks omitted.) Society for Savings v. Chestnut Estates, Inc., supra, 574.

II

I am also troubled by the majority’s conclusion that Dr. Pet was not denied due process, even though only one of the seven members of the board who voted participated in the evidentiary hearing, and even this mem*695ber, Dr. Shirley Williams, was not present throughout the entirety of the hearing. Four of the charges at issue in the hearings alleged that Dr. Pet had sexual relations with four female patients while he was providing psychiatric care to them. The board found that Dr. Pet had had varying degrees of sexual contact with the four women. For example, the board specifically found that he had had “both oral sex and sexual intercourse” with one of the female patients.

The resolution of these charges, which were denied by Dr. Pet and supported solely by the testimony of the four female patients, depended entirely on credibility. The board’s written decision emphasized this by stating that “the Board accepts as credible the testimony of these four patients and not that of Dr. Pet.”

Credibility must be assessed, as any trial judge will attest, not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). An appellate court must defer to the trier of fact’s assessment of credibility because “[i]t is the [factfinder] . . . which had an opportunity to observe the demeanor of the witnesses and the parties; thus it is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) In re Juvenile Appeal (82-AB), 188 Conn. 557, 561, 452 A.2d 113 (1982). As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are “not fully reflected in the cold, printed record.” Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).

As Justice Cardozo recognized in Smith v. New York, 214 N.Y. 140, 144, 108 N.E. 214 (1915), the principle that credibility must be judged firsthand applies equally to administrative and judicial proceedings: “The Board *696is not in the strict sense a court . . . but its functions are judicial, and the requirement that witnesses shall be seen and heard by the judicial officer who is to weigh their testimony has been proved by experience to be a means so important for the ascertainment of truth as to entitle us to assume that it will not be lightly abandoned.” (Citation omitted.) Similarly, in holding that a member of the Philadelphia city council would “be disqualified from voting on any of the charges [against a local official] that is supported by . . . evidence introduced when he was not present”; Marshall Impeachment Case, 363 Pa. 326, 343, 69 A.2d 619 (1949); the Supreme Court of Pennsylvania stressed the importance of observing testimony firsthand: “Not only what witnesses say but their manner and demeanor while testifying are important factors in passing on their credibility. The determination of whether or not a witness is worthy of belief depends upon the impression he makes when answering questions put to him on direct and cross-examination. It is possible, if not probable, that there will be conflicts or contradictions in the testimony, and the acceptance of the testimony of one witness and the rejection of the testimony of another witness necessitate that most careful attention be given each witness from the moment he is sworn or affirmed until his testimony is concluded.” Id., 342.

Evidently, the majority perceives no need to distinguish the present case from the typical, technical administrative appeal in which the personal credibility of the witnesses is either unchallenged or is a very minor issue. Other courts have made such a distinction. See, e.g., Prince George’s County v. Zayre Corp., 70 Md. App. 392, 521 A.2d 779 (1987) (in cases where credibility is an important issue, only members of the panel who hear the testimony may participate in the deliberations; allowing a decision to be based on the written record where credibility is important may vio*697late due process); Stevens Chevrolet, Inc. v. Commission on Human Rights, 498 A.2d 546 (D.C. App. 1985), and cases cited therein (where agency decision depends on the credibility of witnesses, any findings made by one who has not personally heard the testimony is necessarily arbitrary).

While Pet I, supra, 361-62, generally approved of many aspects of the administrative process currently under review, this court did not have before it at that time the absenteeism from hearings and changes in the membership of the board that characterize the current appeal. I do not believe that the Pet I court could have even envisioned the “revolving door” adjudication that followed it. The other authorities relied upon by the majority for the proposition that a board member need not attend the evidentiary hearing in order to participate in the final decision—New Haven v. Public Utilities Commission, 165 Conn. 687, 724, 345 A.2d 563 (1974), and Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971)—are inapposite. The New Haven case concerned an appeal from a decision by the public utilities commission approving two utility companies’ applications to construct overhead electrical transmission lines. New Haven v. Public Utilities Commission, supra, 689-90. Only one of the commission members who participated in the decision had not attended the hearing. Id., 724. Similarly, in Loh, which concerned a planning commission’s granting of an application for a zone change, only one voting member of the commission had failed to attend the hearing. Loh v. Town Plan & Zoning Commission, supra, 40. These cases are clearly distinguishable from the present appeal in two important respects: (1) in light of the subject matter, personal credibility was not an issue at those administrative hearings; and (2) only one member of the administrative body was not present to hear the evidence.

*698We have long held that “hearings must be conducted so as not to violate the fundamental rules of natural justice.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984). The due process clause of the fourteenth amendment requires “an opportunity . . . granted at a meaningful time and in a meaningful manner . . . for [a] hearing appropriate to the nature of the case . . . .” (Citation omitted; emphasis altered; internal quotation marks omitted.) Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); accord Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 24, 357 A.2d 495 (1975). When a person is deprived of a significant property right, i.e., a license to practice medicine, following administrative proceedings at which a time limitation was placed on that person’s cross-examination, and only one of the seven decision makers actually heard any of the testimony, that person is deprived of fundamental fairness and due process of law. Accordingly, I would affirm the judgment of the trial court on the cross-examination issue, reverse on the “revolving door” issue, and remand the case to the board for a new hearing.

I respectfully dissent.

The plaintiff, Dr. Pet, appeared pro se—that is, he represented himself— during the relevant portions of the administrative hearing and before this court.

In Pet v. Department of Health Services, 207 Conn. 346, 542 A.2d 672 (1988), this court reversed the trial court’s granting of a temporary injunction to the plaintiff, Dr. Donald Pet. After two hearings before the defendant Connecticut medical examining board, Dr. Pet had instituted an action in the Superior Court seeking injunctive relief. The trial court granted the requested relief in part, ordering that the defendant board: (1) accord Dr. Pet the right of prehearing discovery; (2) strike the complaining witness’ testimony if she continued to invoke her attorney-client privilege during cross-examination; (3) complete the necessary hearings within a two month period; and (4) ensure that any board member who was to participate in a vote had either heard the case in its entirety or read the entire record. This court reversed the judgment and ordered that the trial court dismiss the action for lack of jurisdiction because Dr. Pet had failed to exhaust his administrative remedies.

General Statutes § 4-166 et seq.

Dr. Pet’s cross-examination became repetitive and the following colloquy occurred: “Dr. Pet: Would you accept, Dr. Selig, that there are professionals in the field who—

“[Panel] Chairman Mandell: Don’t ask him if he thinks there are differences of opinion among professionals in the field. We know that. . . .

“Dr. Pet: I’m trying to establish what I think is a very critical point and I’m also trying to understand the issue. I think this is the one expert witness that the health department presents, and I—

“Chairman Mandell: We’re going to take a ten minute break and you formulate a specific question of this witness and it cannot be on the differences of opinion amongst psychiatrists and are there alternate forms of therapy. Even Mr. Harris grasped that by now. All right. We are adjourned for ten minutes. . . . I am instructed by higher ups in the attorney general’s office that we do not have to allow unlimited time for cross-examining of any witness. If we’re getting into irrelevancies and repetition, [then] I have the authority as chairman of the panel to cut off cross-examination and with that in mind, I’m going to say now that this witness is going to be excused at 12:15 today. Also, I’d like from you now who you, a list of your next witnesses and when they’re going to be available for your examination.

“[Assistant Attorney General Andrea] Gaines: Just for the record, I would note that it’s ten after eleven giving Dr. Pet a little over an hour for cross-examination.

“Chairman Mandell: I’ve just explained that this witness is going to be excused at 12:15. Period. And, then I’m going to ask for now a list of Dr. Pet’s next witnesses and when they’re going to be available.

“Dr. Pet: Dr. Mandell, I would like to take exception to the ruling that you’re making.

“Chairman Mandell: I’ve just made it. Period.

“Dr. Pet: I’d like to make—

“Chairman Mandell: No. You’ve become repetitious. You got into irrelevancies. You’re wasting our time. Your delaying tactics are untenable.

“Dr. Pet: I’d like to establish on the record why it is that I think—

“Chairman Mandell: You’ve done that over and over again. Now, please, I want a list of your next witnesses. I’m told I don’t have to allow you unlimited time. Now, who are your next witnesses and when are they going to be available?

“Dr. Pet: I was planning to be the next witness.

“Chairman Mandell: At what time will that witness be here?

“Dr. Pet: Well, I, I have questions to ask of Dr. Selig—

“Chairman Mandell: What time? Why cannot you answer my question? What time is your next witness going to be here?

*688“Dr. Pet: I would—

“Chairman Mandell: And, what is her name or Ms name?

“Dr. Pet: I would prefer to presume that I would be the next witness and that would be the next meeting following this meeting.

“Chairman Mandell: Then, we will adjourn here at 12:15 today, then, and you, you are not bringing in any other witnesses besides yourself?

“Dr. Pet: Yes. I do plan on having additional—

“Chairman Mandell: Well, let me have their names right now, please.

“Dr. Pet: I don’t have all of their names right now.

“Chairman Mandell: This is really contemptuous of this panel.

“Dr. Pet: I’d like to be able to respond to the issues that you made.

“Chairman Mandell: No. This contempt for this panel has gone on far enough. You will not furnish us the names of your next witnesses?

“Dr. Pet: No. I didn’t say, I will not. It’s just that—

“Chairman Mandell: And, when will you be available to be the witness? At one o’clock this afternoon?

“Dr. Pet: The next meeting that we have. I would prefer to be available.

“Chairman Mandell: All right. Let’s resume questioning and Dr. Selig is to be excused at 12:15. And, there will be no further testimony by Dr. Selig.

“Dr. Pet: Dr. Mandell, I do believe that I’m entitled to raise my objection. To time limits. I, I do have other areas to explore with Dr. Selig.

“Chairman Mandell: Then you better get started.

“Dr. Pet: He is the only expert witness.

“Chairman Mandell: Then, you’d better get started. I’m told that I do not have to give you limitless time and you’re using up your valuable time right now.

“Dr. Pet: I will not have time to complete the questions that I have to ask of Dr. Selig and I would just like to establish that for the record.”

Even the attorney representing the interests of the state, Judith Lederer, objected to the time limitation placed upon Dr. Pet. Her objection was preceded by a colloquy between Dr. Pet and Mandell during the cross-examination of Selig in which the time limitation was emphasized: “Dr. Pet: Pm going to ask for a few minute break because Pm, very candidly, *690I’m a little bit at a loss because the train of cross-examination that I had in mind has been interrupted.

“Chairman Mandell: Use your time as you like.

“Dr. Pet: Take a five minute break. (A recess was taken.)

“Chairman Mandell: This recess which was requested by Dr. Pet and permitted by the panel is over. Ms. Lederer can hardly restrain herself from saying something. Dr. Pet, would you, we’ll give you the extra time that Ms. Lederer seems to be insisting on.

“[Attorney] Lederer: Thank you. I would just like the record to reflect that my expert is available for the entire day. This was based not only on conversations we had in preparation, but also based on representations made at the last hearing. He has blocked out his schedule. He was anticipating returning this afternoon. As such, the department would like to go on record as opposing the board’s decision to close off Dr. Pet’s cross-examination of this witness at a specified time. I would urge the panel to reconsider its ruling, allow the witness to return after a lunch break and allow Dr. Pet to proceed with questions that are within an appropriate scope of cross-examination. Thank you.

“Chairman Mandell: Thank you for those thoughts. We’ve been told by the assistant attorney general that we do not have to permit irrelevancies, repetition and we do not have to put up with contempt of this panel. This hearing, the witness will be excused at 12:15. The record will also show that Dr. Pet was scheduled to be the next witness and at his request, his appearance will be postponed to the next hearing date. Please, proceed, Dr. Pet.”

The following exchange occurred during Dr. Pet’s cross-examination of Selig: “Q. Now, Dr. Selig, some of the, would you agree that the area of practice that I specialize in, the behavioral therapies, that you are not an expert in those areas?

*691“A. If I answer that question, I’m not an expert, do I have to agree that that’s what you specialize in?

“Q. Not at all. Not whatsoever.

“A. I would agree that I’m not an expert in behavioral therapy.

“Q. Now, if my area of work is in those therapies that don’t emphasize the transference phenomenon or deal with it in a different way than the psychodynamic individuals because as you indicated a number of people may recognize it but deal with it entirely different. Do you feel that you would be qualified as an expert to testify on those matters?

“Ms. Lederer: I would object. I think that’s asking the witness to draw a legal conclusion.

“Chairman Mandell: Yes. I agree. I don’t see any reason to question Dr. Selig of his opinions of what makes an expert witness. He was brought here by the state. Anyway, the time allotted for the end of the cross-examination has come. . . .”

In its final decision, the board defined “transference” as the process in psychotherapy whereby a close relationship with a therapist calls forth repressed feelings from earlier in the patient’s life related to people from earlier in that patient’s life. It went on to say that “[ojften, these strong feelings are ‘transferred’ to the therapist.”

The trial court found the following, with which I agree: “In the present case, a majority of the panel and of the Board were physicians, and, therefore, the Board was entitled to rely on the expertise of those members with respect to questions concerning the plaintiff’s [Dr. Pet’s] professional conduct. ... On the other hand, the defendants have pointed to no evidence in the record concerning the agency members’ expertise in the precise subject matter of the charges brought against the plaintiff. In their Motion for Protective Order and in the Board’s objection to the plaintiff’s interrogatories, both filed in connection with discovery requests of the plaintiff during this appeal, the defendants vigorously and successfully opposed the plaintiff’s attempt to inquire into the members’ particular expertise in the subject matter of the charges. The court infers, however, that the Department considered expert testimony on this subject matter to be important evidence, since it was the Department which produced the witness. Furthermore, the Board specifically referred to Dr. Selig’s testimony as support for its finding that the plaintiff was negligent in monitoring a patient’s use of medication. This, in turn, was one of the bases for the suspension of the plaintiff’s license. For all of these reasons, the court concludes that the Department considered Dr. Selig to be a highly significant witness in its case against the plaintiff and that the Board based its decision, in part, on his testimony.” (Citation omitted.)

“Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993); State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992); State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985).