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CONNECTICUT OPINIONS FEBRUARY 1, 2021 ¦ 43

CRIMINAL APPEALS against defendant. Defendant filed a motion
to compel, seeking the production of a diary
that plaintiff testified about at his deposition,
Court Granted Defendant’s Motion despite having responded that he did not keep
for Compassionate Release Given a diary when asked in the initial discovery pro-
COVID-19 Concerns tocols. The court denied defendant’s motion.
Plaintiff claimed that the electronic document
CASE: United States v. Clark that he wrote, which defendant referred to as a
COURT: U.S. District Court for Connecticut diary, was a written record of the events that
DOC. NO.: 3:12-cr-00104 occurred during the time period at issue. When
COURT OPINION BY: Underhill he retained his attorney, he provided him with
DATE: January 20, 2021 • PAGES: 17 a copy of this document. Plaintiff asserted
that this documentation was protected by at-
Defendant pled guilty in 2013 to one count of torney-client privilege because it was a com-
conspiracy to distribute and to possess with in- munication from him to his lawyer explaining
tent to distribute 280 or more grams of crack his perspective on what had been happening.
cocaine. He was sentenced to 140 months pris- The court agreed. It noted that what was im-
on and five years supervised release. He moved portant was the fact that the notes were made
for a sentence reduction, arguing that his under- for the purpose of ultimately communicating
lying medical condition put him at higher risk with an attorney, and that plaintiff revised the
of contracting COVID-19. The court granted document once he retained the attorney to give
his motion and reduced his sentence to time his attorney an updated version. Therefore, the
served. The court first waived the exhaustion court denied defendant’s motion.
requirement seeing as how the government con-
ceded it had been met. It then analyzed whether
there were extraordinary and compelling rea-
sons. It noted that defendant is obese, has el- TOXIC TORTS • EXPERT WITNESSES

evated blood pressure, and was diagnosed with Testimony of Expert Witnesses on
periodontal disease, increasing his risk of con-
tracting COVID-19. The court found that these Links Between Asbestos Exposure and
factors, in conjunction with prison conditions, Cancer Was Relevant and Admissible
constituted extraordinary and compelling rea-
sons for release. The court also reasoned that CASE: Erhardt v. BMW of N. Am., LLC
defendant received a much higher sentence than COURT: U.S. District Court for Connecticut
his co-defendants based largely on an unwar- DOC. NO.: 3:18-cv-01327
ranted sentencing disparity between crack and COURT OPINION BY: Bolden
cocaine, and that he had already served eight DATE: January 18, 2021 • PAGES: 46
years of his sentence. The court denied a motion to exclude testimony
of plaintiff ’s expert witnesses. Helmut Erhardt
filed a product liability suit against BMW of
DISCOVERY • EMPLOYMENT LITIGATION North America and others, claiming that his

Court Denied Defendant’s Motion to exposure to asbestos during his employment at
an auto repair shop caused him to contract me-
Compel in Employment Discrimination sothelioma. Plaintiff relied on proffered expert
Lawsuit testimony from three witnesses. Drs. Arthur
Frank and David Zhang opined that plaintiff ’s
workplace exposure to asbestos caused his me-
CASE: Nelson v. City of Hartford sothelioma. Frank was a physician and certified
COURT: U.S. District Court for Connecticut
DOC. NO.: 3:20-cv-00221 by boards of internal medicine and preventive
COURT OPINION BY: Spector medicine, with an extensive publishing back-
DATE: January 15, 2021 • PAGES: 7 ground. He opined that cumulative exposure,
Plaintiff, a retired police detective, sued the city such as brake repair exposure, was enough to
for employment discrimination. He alleged that show cause, without need of further radio-
the city subjected him to a hostile work environ- graphic or other specific evidence of exposure.
ment that resulted in a constructive discharge in Mesothelioma is overwhelmingly caused by as-
retaliation for having supported a fellow police bestos, he opined. Zhang, a teaching physician
detective in his complaints of discrimination with backgrounds in pathology and preventive

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