Mercer v. cosley
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
EUGENE P. MERCER v.
KATISHIA COSLEY ET AL.
Flynn, C. J., and Beach and Dupont, Js.
Argued June 2—officially released September 16, 2008
(Appeal from Superior Court, judicial district of
Eugene P. Mercer
, pro se, the appellant (plaintiff).
William S. Fish, Jr
., with whom was Paul Guggina
FLYNN, C. J. The pro se plaintiff, Eugene P. Mercer,
appeals from the summary judgment rendered by thetrial court in favor of the defendants, Katishia Cosley,Burchell Henry, Paul Lewis and Jerry Martin and theiremployer, Tribune Television Company, also known asWTIC FOX-61 (collectively FOX-61), and Thomas M.
O’Brien and his employer, Outlet Broadcasting, Inc.,doing business as WVIT NBC-30 (collectively NBC-30).
On appeal, the plaintiff claims that the court improperly(1) failed to recuse itself, sua sponte, on the basis ofjudicial bias and (2) rendered summary judgment infavor of the defendants on the plaintiff’s libel claim.
We affirm the judgment of the trial court.
The record reveals the following undisputed facts and
relevant procedural history. The plaintiff is an inmateserving a forty-five year sentence for felony murder.
, 208 Conn. 52, 53–54, 544 A.2d 611(1988). In July, 2004, the plaintiff filed an action againstthe state in the Superior Court, seeking treatment forphysical symptoms related to acquired immune defi-ciency syndrome (AIDS) and claiming discrimination.1In that action, the plaintiff claimed, in part, that he ‘‘has[AIDS] resultant from his [human immunodeficiencyvirus (HIV)] infection’’ and that the state had discrimi-nated against him in denying his ‘‘request for the reason-able accommodation of testosterone gel in January,2004, [when] the . . . request for testosterone gel wasfor the treatment of HIV-hypogonadism and erectiledysfunction . . . .’’ He also alleged that the state ‘‘knewor should have reasonably known that the plaintiff’smedical record reflects multiple instances over thecourse of several years concerning his decreased spon-taneous erections, erectile dysfunction, decreased mus-cle mass and strength . . .’’ and that the testosteronegel ‘‘restores sexual function, and muscle mass andstrength and prevents bone loss.’’ The plaintiff also filedtwo cases with the commission on human rights andopportunities in 2004, claiming, in part, that he suffersfrom ‘‘Vacuolar Myelopathy, Peripheral Neuropathy andHIV-[h]ypogonadism or erectile dysfunction,’’ and thathe ‘‘has been denied diagnosis and treatment of impo-tence and/or HIV-[h]ypogonadism.’’
On May 25, 2005, defendants NBC-30 and FOX-61
each aired a report regarding Governor M. Jodi Rell’sorder that the department of social services stop provid-ing Viagra and other similar drugs to sexual offendersthrough the Medicaid program. They also discussed theplaintiff’s complaints against the state during thesereports.
In response, the plaintiff filed the present action
against the defendants claiming, in relevant part,2 libelper se,3 pursuant to General Statutes § 52-237.4 The com-plaint alleged, inter alia: ‘‘1. The plaintiff . . . is cur-
rently an inmate incarcerated at the Connecticutcorrectional institution—Osborne. [The] [p]laintiff filesthis action against the [defendants] with claims of libelper se and [other additional claims] . . . .
‘‘6. . . . [The defendants] acted with actual malice
and reckless disregard of the truth and negligence intheir broadcast of false allegations [and] defamatorystatements . . . .
‘‘12. During the ten o’clock news . . . broadcast on
Wednesday, May 25, 2005, [t]he defendant[s] . . .
made individual and separate defamatory and slander-ous statements [t]hat [the] plaintiff is suing . . . the[s]tate or the [d]epartment of [c]orrection for Viagra,for treatment of [the] plaintiff’s erectile dysfunction.’
‘‘13. [The] [d]efendants Cosley and Henry [p]ublicly
disclosed during their broadcasting the plaintiff’s confi-dential HIV-related information . . . . A photograph ofthe plaintiff was also publicly displaced during thedefendant[s’] broadcast[s]. In addition to their televi-sion broadcast[s], the defendant[s] have published thedefamatory and slanderous statement[s] through theInternet . . . .
‘‘14. . . . [T]he defendant[s’] broadcast[s] [were]
about or in response to Governor Jodi Rell’s order tothe state [d]epartment of [s]ocial [s]ervices to makesure state medical assistance programs do not coverthe cost of erectile dysfunction drugs for registeredsex offenders.
‘‘15. In addition to their actual malice, defamatory
and slanderous statements, the defendants placed theplaintiff in a false light as a registered sex offender andexposed the plaintiff to hatred, contempt or aversionand induced . . . unsavory opinions of the plaintiff inthe minds of a substantial number of the general publicand the prison community.
‘‘16. . . . With malice in [public] broadcasting and
publishing false accusations with defamatory and slan-derous statements [the plaintiff] has [been] prejudiced. . . in his reputation within the general public andprison community, and [the defendants have] placedthe plaintiff’s life . . . in danger by intimidation andthreat of physical harm by inmates of the prison popula-tion who perceive the plaintiff as a sex offender and/or homosexual willing to infect other prisoners withHIV by engaging in sexual activities with the aid of[V]iagra, as well as harassment and intimidation of cor-rectional officers.
‘‘17. The plaintiff does not have, nor did the plaintiff
ever have, any lawsuits against the state . . . for [V]ia-gra as a treatment for erectile dysfunction.
‘‘18. The plaintiff is not a sex offender or a registered
sex offender, and is not a recipient of any state medicalassistance programs. The plaintiff is a ward of the state
[d]epartment of [c]orrection and receives all medicalcare from the [University of Connecticut] [c]orrectional[m]anaged [c]are contract. . . .
‘‘19. The plaintiff does have a pending lawsuit in [the]
New Britain Superior Court, [Docket] No. CV-04-4000197-S against officials of the [department of correc-tion] for discrimination based on disability . . . fortheir failure to diagnose and treat HIV-[h]ypogonadismand/or erectile dysfunction . . . . There is no allega-tion or request in the above mentioned complaint for[V]iagra. Rather, the treatment requested was testoster-one gel and/or a urology consultation and appropriatetherapy as would be prescribed by the urology consult.
‘‘20. The plaintiff also has two pending complaints
with the commission of [h]uman [r]ights and [o]pportu-nities, CHRO No. 0540397 and 0540398 against [thedepartment of correction and the University of Connect-icut Health Center/Correctional managed health care],respectively for discrimination based on disability . . .
for their failure to diagnose and treat HIV-[h]ypogo-nadism and/or erectile dysfunction . . . . There is noallegation or request in the above mentioned . . . com-plaint[s] for Viagra. Rather, the treatment requested wastestosterone gel and/or a urology consult.
‘‘21. The defendant[s’] reckless disregard of the truth,
acts and omissions in their deliberate and negligenttelevision broadcast and [I]nternet publication of falseaccusations, defamatory and slanderous statement[s]and their disclosure of the plaintiff’s confidential HIV-related information has violated the plaintiff’s right[s]. . . .’’ (Internal quotation marks omitted.)
The complaint went on to allege: ‘‘Third claim of
relief—Title 52-237 of the Connecticut [G]eneral [S]tat-utes—libel per se—[General Statutes §] 19a-581 . . .
‘‘27. [The] defendant[s] acted with actual malice,
reckless disregard [f]or the truth and negligence in theirbroadcast of false allegations, defamatory statement[s]and disclosure of the plaintiff’s confidential HIV-relatedinformation, in violation of [General Statutes §§] 52-237 and 19a-581.’’
The defendants filed an answer and two special
defenses to the plaintiff’s libel claim, namely, substan-tial truth and the fair reporting privilege. On September1, 2006, the defendants filed a motion for summaryjudgment, which was granted by the court on June 5,2007, after it concluded that there were no materialissues of fact in dispute and that both special defenseswere applicable. This appeal followed. We affirm thesummary judgment of the trial court.
On appeal, the plaintiff claims that the trial judge
improperly failed to recuse himself, sua sponte, afterdemonstrating judicial bias in violation of canon 3 (c)
(1) of the Code of Judicial Conduct.5 The plaintiff arguesthat the judge demonstrated bias when he became thedefendants’ ‘‘adviser’’ in drafting an order denying inpart the defendants’ motion to strike, which stated, inrelevant part, that if the ‘‘defendants had filed a motionfor summary judgment, the decision might well havebeen different.’’ The plaintiff acknowledges that thisissue was not presented to the trial court and, therefore,is unpreserved. He requests that we employ plain errorreview.6 Having reviewed the record, we are unable tofind anything, ‘‘in the interests of justice’’; Practice Book§ 60-5; that rises to the level of plain error. Nothing inthe record undermines our confidence in the court’sfact-finding process or demonstrates judicial bias.
‘‘Ordinarily, we will not review a claim of judicial
bias on appeal unless that claim was properly presentedto the trial court through a motion for disqualificationor a motion for mistrial. . . . Because an accusationof judicial bias or prejudice strikes at the very core ofjudicial integrity and tends to undermine public confi-dence in the established judiciary . . . we nonethelesshave reviewed unpreserved claims of judicial bias underthe plain error doctrine.’’ (Citations omitted; internalquotation marks omitted.) Doody
, 99 Conn.
App. 512, 523, 914 A.2d 1058 (2007). ‘‘The plain errordoctrine [however] is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine thatthis court invokes in order to rectify a trial court rulingthat, although either not properly preserved or neverraised at all in the trial court, nonetheless requires rever-sal of the trial court’s judgment, for reasons of policy.
. . . The plain error doctrine is reserved for trulyextraordinary situations where the existence of theerror is so obvious that it affects the fairness and integ-rity of and public confidence in the judicial proceedings.
. . . A party cannot prevail under plain error unless ithas demonstrated that the failure to grant relief willresult in manifest injustice.’’ (Internal quotation marksomitted.) State
, 275 Conn. 205, 239–40, 881A.2d 160 (2005).
The standard to be employed when determining
whether a judge should recuse herself or himself pursu-ant to canon 3 (c) is well established. ‘‘The standard. . . is an objective one [meant to assess] whether [thejudge] can be fair and impartial in hearing the case.
. . . Any conduct that would lead a reasonable [person]knowing all the circumstances to the conclusion thatthe judge’s impartiality might reasonably be questionedis a basis for the judge’s disqualification. Thus, an impro-priety or the appearance of impropriety . . . thatwould reasonably lead one to question the judge’simpartiality in a given proceeding clearly falls withinthe scope of the general standard. . . . The questionis not whether the judge is impartial in fact. It is simplywhether another, not knowing whether or not the judgeis actually impartial, might reasonably question [the
judge’s] . . . impartiality, on the basis of all of the cir-cumstances.’’ (Internal quotation marks omitted.) Saba-tasso
, 91 Conn. App. 808, 825, 882 A.2d 719,cert. denied, 276 Conn. 923, 888 A.2d 91 (2005).
The following additional facts are necessary to our
analysis. The defendants had filed a motion to strikethe plaintiff’s complaint and had attached transcriptsof the television reports to their motion. The plaintiffalso attached exhibits to his opposition to the defen-dants’ motion. On May 30, 2006, the court heard argu-ment on the defendants’ motion to strike. During thehearing, the defendants also asked the court to evaluatethe difference between Viagra and testosterone gel inrendering its decision. The court explained that itthought the defendants were getting into a ‘‘speaking’’motion to strike in asking the court to look beyond thepleadings.7 The defendants responded that, althougharguable, they believed it was appropriate for the courtto review the transcripts in this case and to make ajudgment concerning the use of the two medications.
The defendants also argued that if the court took thesethings into consideration, it would find that their broad-cast substantially was true but that if it did not makesuch a finding, they ‘‘certainly [would] be raising thisagain on a motion for summary judgment . . . .’’
In an August 2, 2006 order, the court granted the
motion to strike in part and denied it in part.8 Specifi-cally, the memorandum of decision stated: ‘‘The courtcannot look to facts—even uncontested facts—outsidethe allegations of the complaint as a basis for granting amotion to strike. [The] [p]laintiff has set forth sufficientfactual allegations in these counts to state viable causesof action against the defendants. If [the] defendantshad filed a motion for summary judgment, the decisionmight well have been different.’’
In the claim of judicial bias, the plaintiff argues in
effect that the court’s remark affected the defendants’handling of the case and, perhaps, instigated their filingof their motion for summary judgment. Having reviewedthe record, we conclude that the statements containedin the court’s order merely served to explain the basisfor the court’s ruling and that they were not demonstra-tive of any bias. The court merely was pointing out thedifference between a motion for summary judgmentand a motion to strike in terms of the ability to lookat exhibits and information outside allegations of thecomplaint. Unlike a motion for summary judgment, ‘‘amotion to strike challenges the legal sufficiency of apleading and, consequently, requires no factual findingsby the trial court . . . .’’ (Internal quotation marksomitted.) Doe
v. Yale University
, 252 Conn. 641, 667,748 A.2d 834 (2000). Furthermore, the transcript fromthe May 30, 2006 hearing, three months before the courtissued its ruling, revealed the defendants’ statementthat they would file a motion for summary judgment if
the court denied in part the motion to strike.
Our thorough review of the record does not reveal
anything that leads us to question the judge’s impartial-ity in this case. Further, the plaintiff has not demon-strated that he suffered manifest injustice such thatwould warrant a finding of plain error.
The plaintiff next claims that the court’s rendering
of summary judgment on his claim of libel was improperbecause there existed disputed material facts relatedto the defendants’ special defenses asserting substantialtruth and the protection of the fair reporting privilege.
We affirm the court’s granting of summary judgmenton the ground that the news broadcasts were true eithersubstantially or literally. After setting forth the applica-ble standard of review and the law on defamation andlibel, in particular, we will address the court’s grantingof the motion for summary judgment on the plaintiff’sclaim. First, however, we briefly digress in order to notethat the plaintiff repeatedly throughout his complaintstates that his claim sounds in libel per se.9 To recoveron a claim that the libel was actionable per se, a plaintiffmust show that the libel, on its face, either chargedsome impropriety in the plaintiff’s business or profes-sion or that it charged a crime of moral turpitude. SeeMiles
, 11 Conn. App. 584, 601–602, 529 A.2d199 (1987). Neither the parties nor the trial court dis-cussed this aspect of the plaintiff’s complaint. Likewise,the parties have not raised this as an issue on appeal.
Accordingly, we do not consider whether the newsbroadcasts were actionable as per se libel.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-vits and any other proof submitted show that there isno genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trialcourt must view the evidence in the light most favorableto the nonmoving party. . . . The party moving forsummary judgment has the burden of showing theabsence of any genuine issue of material fact and thatthe party is, therefore, entitled to judgment as a matterof law. . . . The test is whether the party moving forsummary judgment would be entitled to a directed ver-dict on the same facts.’’ (Internal quotation marks omit-ted.) Reardon
v. Windswept Farm, LLC
, 280 Conn. 153,158, 905 A.2d 1156 (2006).
‘‘[A] party opposing summary judgment must sub-
stantiate its adverse claim by showing that there is agenuine issue of material fact together with the evi-dence disclosing the existence of such an issue. . . .
It is not enough, however, for the opposing party merelyto assert the existence of such a disputed issue. Mereassertions of fact . . . are insufficient to establish the
existence of [an issue of] material fact and, therefore,cannot refute evidence properly presented to the court[in support of a motion for summary judgment].’’ (Inter-nal quotation marks omitted.) Gould
v. Mellick & Sex-ton
, 263 Conn. 140, 151, 819 A.2d 216 (2003). ‘‘Adefendant’s motion for summary judgment is properlygranted if it raises at least one legally sufficient defensethat would bar the plaintiff’s claim and involves notriable issue of fact.’’ (Internal quotation marks omit-ted.) Brunswick
v. Safeco Ins. Co
., 48 Conn. App. 699,704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719A.2d 1168 (1998). Our review of the trial court’s decisionto grant the defendant’s motion for summary judgmentis plenary. See Reardon
v. Windswept Farm, LLC
,supra, 280 Conn. 158.
The plaintiff claims that the court improperly granted
the defendants’ motion for summary judgment on hislibel count. ‘‘A defamatory statement is defined as acommunication that tends to harm the reputation ofanother as to lower him in the estimation of the commu-nity or to deter third persons from associating or dealingwith him. . . . To establish a prima facie case of defa-mation, the plaintiff must demonstrate that: (1) thedefendant published a defamatory statement; (2) thedefamatory statement identified the plaintiff to a thirdperson; (3) the defamatory statement was published toa third person; and (4) the plaintiff’s reputation sufferedinjury as a result of the statement.’’ (Internal quotationmarks omitted.) Hopkins
, 282 Conn. 821,838, 925 A.2d 1030 (2007).
‘‘Defamation is comprised of the torts of libel and
slander. . . . Slander is oral defamation. . . . Libel. . . is written defamation. (Internal quotation marksomitted.) Gambardella
v. Apple Health Care, Inc
., 86Conn. App. 842, 850, 863 A.2d 735 (2005). It has beenheld by our Supreme Court that ‘‘reading from a pre-pared manuscript in a radio address constitutes libel,even though the result is the spoken word, as the wordshave been reduced to permanent form in the manu-script.’’ D. Wright, J. Fitzgerald & W. Ankerman, Con-necticut Law of Torts (3d Ed. 1991) § 146, p. 407, citingCharles Parker Co.
v. Silver City Crystal Co
., 142 Conn.
605, 116 A.2d 440 (1955). In this case, involving televisednews broadcasts, which certainly are reduced to perma-nent form in this day and age, we conclude that a claimof defamation properly could sound in libel as the plain-tiff had alleged in his complaint. We continue our analy-sis by examining separately the content of bothbroadcasts.
A transcript of a May 25, 2005 FOX-61 news broadcast
was submitted to the trial court along with an affidavitattesting that it was a true, accurate and complete tran-
script of the relevant broadcast that forms the basis ofthe plaintiff’s claim against Fox-61. The transcript isas follows:
‘‘Unidentified woman: It’s a complete outrage. It’s
like giving a loaded gun to a murderer.
‘‘Brent Hardin (Anchor): A drug dispute here in Con-
necticut and across the country. Should taxpayers footthe bill for impotence drugs to sex offenders? Governor[M.] Jodi Rell says no, and she’s trying to make sureConnecticut taxpayers don’t have to pick up the tab forinmates in our prisons.
‘‘Susan Christensen (Anchor): The federal govern-
ment reports more than 400 convicted sex offenders inNew York and Florida got impotence drugs throughfederally or state-funded healthcare programs. TodayGovernor Rell ordered the department of social servicesto come up with a plan to prevent that happening here.
Fox-61’s Katishia Cosley joins us live with more on howat least one convicted felon is trying to fight this.
‘‘Katishia Cosley (Reporter): This ban isn’t only for
registered sex offenders, but also for all inmates. Theattorney general’s office received a lawsuit from a con-victed murderer who wants access to these drugs.
‘‘Katishia Cosley: Forty-two year old Eugene Mercer,
an inmate at the Osborne Correctional Facility for thelast twenty years, is suing the medical services directorfor denying him erectile dysfunction drugs. He claimshe has AIDS, which, he says, is a disability. He arguesthat is why he should get the drugs. Attorney GeneralRichard Blumenthal disagrees and says his office ismoving to immediately dismiss the case.
‘‘Richard Blumenthal: The claim here is a constitu-
tional right to this medication. We believe there is noright for someone in prison to receive these kinds ofprescription drugs.
‘‘Katishia Cosley: Earlier this week, the centers for
Medicare and Medicaid Services started notifying allfifty states that they don’t have to offer Medicaid-fundedViagra or similar drugs to sex offenders.
‘‘[Governor M.] Jodi Rell: This is like, hello, it’s com-
mon sense, you know. We don’t give Viagra to sexoffenders, and, when the federal rules allowed that wecan simply eliminate them from the Medicaid, I thinkit makes good sense to do so.
‘‘Katishia Cosley: Here in Connecticut, seven different
erectile dysfunction medications are covered with adoctor’s prescription for clients of Connecticut’s Medic-aid, ConnPace and state administered general assis-tance programs. Governor Rell doesn’t know how many
inmates or sex offenders are using the impotence drugs.
The state doesn’t have the capability to cross-checkclients with the sex offender registry, but they are work-ing on it.
‘‘Richard Blumenthal: We’re making progress in shut-
ting down the system so far as it’s been providing thesedrugs or reimbursement for them to people receivingMedicare and Medicaid, and, certainly, we will stop forany inmates that may be receiving them.
‘‘Katishia Cosley: Governor Rell has already ordered
the department of social services to stop giving pre-scriptions to inmates or registered sex offenders. Thoseagencies that do not comply will face penalties. I’mKatishia Cosley, Fox-61 News at 10.’’
The plaintiff claims that the court improperly ren-
dered summary judgment on the ground that this reportwas substantially true. He argues that FOX-61’s reportwas not substantially true because ‘‘it erroneouslyreported that the plaintiff is seeking erectile dysfunctiondrugs in his suit against the department of correction’’and that, accordingly, summary judgment on behalf ofthe defendants was inappropriate. We disagree.
The relevant portion of FOX-61’s broadcast stated
that ‘‘forty-two year old Eugene Mercer, an inmate atthe Osborne Correctional Facility for the last twentyyears, is suing the medical services director for denyinghim erectile dysfunction drugs.’’ Along with the plain-tiff’s opposition to FOX-61’s motion for summary judg-ment, the plaintiff submitted an affidavit and supportingdocuments. One of those documents was a copy of hisJuly 13, 2004 complaint against, inter alia, Edward A.
Blanchette, whom the complaint listed as the depart-ment of correction director of clinical services. In that2004 complaint, which the plaintiff averred was docketnumber CV-04-4000197-S, the plaintiff alleged, amongother things, that the state had discriminated againsthim in denying his ‘‘request for . . . testosterone gelin January, 2004, [when] the . . . request for testoster-one gel was for the treatment of HIV-hypogonadismand erectile dysfunction
. . . .’’ (Emphasis added.)The 2004 complaint also alleged that the state ‘‘knewor should have reasonably known that the plaintiff’smedical record reflects multiple instances over thecourse of several years concerning his decreased spon-taneous erections, erectile dysfunction
, decreased mus-cle mass and strength . . . .’’ (Emphasis added.)
Looking to the plain language on the face of the
plaintiff’s 2004 complaint, it is clear that he allegedthat the department of correction’s director of clinicalservices, as well as others, was discriminating againsthim by denying his request for testosterone gel for thetreatment of erectile dysfunction
and other symptomsrelated to HIV and AIDS. Additionally, in the complaint
in the present action, the plaintiff admitted in paragraphnineteen: ‘‘The plaintiff does have a pending lawsuitin New Britain Superior Court, [Docket] No. CV-04-4000197-S against officials of the [department of correc-tion] for discrimination based on disability . . . fortheir failure to diagnose and treat HIV-hypogonadismand/or erectile dysfunction . . . .’’
‘‘[T]he admission of the truth of an allegation in a
pleading is a judicial admission conclusive on thepleader. . . . A judicial admission dispenses with theproduction of evidence by the opposing party as to thefact admitted, and is conclusive upon the party makingit. . . . Solomon
v. Connecticut Medical ExaminingBoard
, 85 Conn. App. 854, 866, 859 A.2d 932 (2004),cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); seealso 71 C.J.S. 246, [Pleading] § 196  (admissionin a plea or answer is binding on the party making it, andmay be viewed as a conclusive or judicial admission). Itis axiomatic that the parties are bound by their plead-ings.’’ (Internal quotation marks omitted.) Rudder
v.Mamanasco Lake Park Assn., Inc
., 93 Conn. App. 759,769, 890 A.2d 645 (2006). ‘‘The most persuasive evidencethat a [purportedly libelous] statement is accurate is theexistence of a public record confirming the informationreported.’’ B. Sanford, Libel and Privacy (2d Ed. Sup.
1998) § 220.127.116.11, p. 6-46. On the basis of the record beforeus, we conclude that not only were FOX-61’s statementssubstantially true, they literally were true when viewedin combination with the plaintiff’s pleadings, which hehad put in the public domain. Truth is an absolutedefense to an allegation of libel. Goodrich
v. WaterburyRepublican-American, Inc
., 188 Conn. 107, 112, 448A.2d 1317 (1982).
A transcript of a May 25, 2005 NBC-30 news broadcast
was submitted to the trial court along with an affidavitattesting that it was a true, accurate and complete tran-script of the relevant broadcast that forms the basis ofthe plaintiff’s claim against NBC-30. That transcript isas follows:
‘‘Logan [Byrnes]: Governor Rell says enough is
enough! She doesn’t want one more sex offender gettingprescription drugs like Viagra, especially when the stateis footing the bill. NBC-30’s Doug Greene is here withmore. Doug?
‘‘Doug [Greene]: Governor Rell yesterday ordered the
department of social services to stop providing Viagraand company to sex offenders on Medicaid. . . .
‘‘[Governor] Rell: I believe that it is off the table, and
this is like, hello? It’s common sense. We don’t giveViagra to sex offenders. Somehow, someone in the Med-icaid program back in 1998 thought these little bluepills should be just like any other medication—available
‘‘Amanda Pepin: I think that’s disgusting, pretty much.
I don’t know why the government should be givingpeople Viagra.
‘‘Tim Adkins: I just thought it was absurd, I mean
why would they give sexual offenders Viagra? Whatwould be the point for them to get more . . . more. . . healthy?
‘‘Stephen Schiopucie: I thought it was ridiculous,
completely ridiculous. No medicinal value.
‘‘Lauren Wiser: I think it’s inappropriate. I don’t think
they should be given Viagra. Actually, there’s anotherside. This convicted sex offender wrote this book aboutinner battle against sexual terrorism. But he says, oncean offender has served his time . . . [quote from JakeGoldenflame:] ‘I think anybody who’s completed theirparole or probation successfully should have the rightto the medications like anybody else upon their doctor’srecommendation.’ But in Connecticut from now on, theonly way convicted sex offenders can get Viagra is topay for it themselves. When the federal rules allowedthat we can simply eliminate that from Medicaid, I thinkit makes good sense to do so. You’ve told [the depart-ment of social services] not to do it anymore? Not todo it anymore.
‘‘Doug [Greene]: On another front, there is a prison
inmate, Eugene Mercer, who is suing the state. He’s nota sex offender. He’s a convicted killer. But he wantshis Viagra, and the state doesn’t buy it for inmates.’’
The plaintiff claims that the court improperly ren-
dered summary judgment on the ground that this reportwas substantially true. He argues that there existedmaterial issues of fact in dispute and that the courtimproperly weighed those facts when it found that thedistinction between Viagra and testosterone gel ‘‘is adistinction without substantial difference.’’ He furtherargues that ‘‘Viagra versus testosterone gel presents atriable issue of fact . . . . The pleaded truth of [the]plaintiff’s [complaint against the state] is that [the]plaintiff sought testosterone gel (an anabolic steroid)to treat HIV-hypogonadism, the symptoms of whichinclude erectile dysfunction. The plaintiff did not seekViagra or other impotence drugs as reported by thedefendants.’’
Although ‘‘the determination of whether an allegedly
libelous statement is substantially true [can be] onefor the jury . . . both the common law and the FirstAmendment [to the United States constitution] submitthe issue to ‘close scrutiny’ when appropriate. Summaryjudgment, therefore is often granted to defendants onthe issue of substantial truth.’’ B. Sanford, supra, § 6.4.1,pp. 6-26-6-27 (2d Ed. Sup. 2007). [W]here minor inaccu-racies [are] immaterial to the ‘sting’ or harm sufferedby the plaintiff . . . [or] where the inaccuracies [are]
of a technical nature that conveyed the same meaningas the true facts would have in the eyes of the averagereader,’’ summary judgment may be appropriate. Id.,§ 6.4.2, p. 6-39.
‘‘In a civil action for libel, where the protected interest
is personal reputation, the rule in Connecticut is thatthe truth of an allegedly libelous statement of fact pro-vides an absolute defense. . . . Contrary to the com-mon law rule that required the defendant to establishthe literal truth of the precise statement made, the mod-ern rule is that only substantial truth need be shownto constitute the justification. . . . It is not necessaryfor the defendant to prove the truth of every word ofthe libel. If he succeeds in proving that the main charge,or gist, of the libel is true, he need not justify statementsor comments which do not add to the sting of the chargeor introduce any matter by itself actionable. . . . Theissue is whether the libel, as published, would have adifferent effect on the reader than the pleaded truthwould have produced.’’ (Citations omitted; internal quo-tation marks omitted.) Goodrich
v. Waterbury Republi-can-American, Inc.
, supra, 188 Conn. 112–13.
Clearly, the portion of the NBC-30 report that is rele-
vant to the plaintiff’s claim of libel would be the verylast portion, which stated: ‘‘On another front, there isa prison inmate, Eugene Mercer, who is suing the state.
He’s not a sex offender. He’s a convicted killer. But hewants his Viagra, and the state doesn’t buy it forinmates.’’ The plaintiff argues that he never requestedViagra and that this part of the broadcast ‘‘would havea different effect on the reader than the pleaded truthwould have produced.’’ See id., 113. His argument isthat he requested testosterone gel, not Viagra, and, hadNBC-30 correctly reported that fact, the effect on thelistener would have been different. Additionally, heargues that the court improperly rendered summaryjudgment when it determined that there was no substan-tive difference between Viagra and testosterone gel.
Although we agree, and NBC-30 concedes, that there
is no evidence that the plaintiff ever sought Viagra, weconclude that the plaintiff clearly pleaded that one ofthe purposes for seeking testosterone gel was for thetreatment of erectile dysfunction. Accordingly, had thereport said: ‘‘But he wants his testosterone gel,’’ or,‘‘But he wants his erectile dysfunction medication,’’instead of, ‘‘But he wants his Viagra,’’ it would not havehad a different effect on the reader or listener. SeeStrada
v. Connecticut Newspapers, Inc
., 193 Conn. 313,319–22, 477 A.2d 1005 (1984).
In conclusion, we affirm the court’s rendering of sum-
mary judgment. On the basis of the record, includingthe plaintiff’s pleadings and the documentary evidencesubmitted with his affidavit in opposition to the defen-dants’ motion for summary judgment, we conclude thatthe statements were true, either substantially or liter-
ally. Having so concluded, we need not address whetherthe defendants’ broadcasts were protected by the fairreporting privilege.
In this opinion the other judges concurred.
1 A copy of this complaint and the cases filed with the commission on
human rights and opportunities is contained in the court’s file. The plaintifffiled these copies along with an affidavit attesting to their truth, accuracyand completeness in the trial court.
2 Additional counts in the complaint are not relevant to this appeal.
3 In rendering a decision on the defendants’ motion for summary judgment,
the court apparently considered the plaintiff’s libel count as sounding inlibel per quod, rather than libel per se, as did the defendants.
4 General Statutes § 52-237 provides: ‘‘In any action for a libel, the defen-
dant may give proof of intention; and unless the plaintiff proves either malicein fact or that the defendant, after having been requested by the plaintiffin writing to retract the libelous charge, in as public a manner as that inwhich it was made, failed to do so within a reasonable time, the plaintiffshall recover nothing but such actual damage as the plaintiff may havespecially alleged and proved.’’
5 Canon 3 (c) (1) of the Code of Judicial Conduct ‘‘requires a judge to
disqualify himself or herself in a proceeding in which the judge’s impartialitymight reasonably be questioned. The reasonableness standard is an objectiveone. Thus, the question is not only whether the particular judge is, in fact,impartial but whether a reasonable person would question the judge’s impar-tiality on the basis of all the circumstances. . . . Even in the absence ofactual bias, a judge must disqualify himself in any proceeding in which hisimpartiality might reasonably be questioned, because the appearance andthe existence of impartiality are both essential elements of a fair exerciseof judicial authority.’’ (Citations omitted; internal quotation marks omitted.)State
, 83 Conn. App. 142, 150, 848 A.2d 1246, cert. denied, 270 Conn.
915, 853 A.2d 530 (2004).
6 ‘‘The court shall not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial. The court may in theinterests of justice notice plain error not brought to the attention of thetrial court. . . .’’ Practice Book § 60-5.
7 A speaking motion to strike is one improperly importing facts from
outside the pleadings. See Liljedahl Bros., Inc
. v. Grigsby
, 215 Conn. 345,347–48, 576 A.2d 149 (1990); Bulkley
v. Norwich & W. Ry. Co
., 81 Conn.
284, 286, 70 A. 1021 (1908); Zirinsky
, 87 Conn. App. 257, 269n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Speakingmotions have long been forbidden by our practice and were formerly knownas speaking demurrers. See, e.g., Tilo Co
. v. Fishman
, 164 Conn. 212, 213,319 A.2d 409 (1972).
8 This order subsequently was vacated and a new corrected order was
issued on September 22, 2006. This fact, however, is not relevant to theissues on appeal.
9 ‘‘Libel per se . . . is a libel the defamatory meaning of which is apparent
on the face of the statement and is actionable without proof of actualdamages. . . . Whether a publication is libelous per se is a question for thecourt.’’ (Internal quotation marks omitted.) Lega Siciliana Social Club
v. St. Germaine
, 77 Conn. App. 846, 852, 825 A.2d 827, cert. denied, 267Conn. 901, 838 A.2d 210 (2003). ‘‘[L]ibel is actionable per se if it chargesimproper conduct or lack of skill or integrity in one’s profession or businessand is of such a nature that it is calculated to cause injury to one in hisprofession or business. . . . Libel . . . is also actionable per se if it chargesa crime involving moral turpitude or to which an infamous penalty isattached.’’ (Citations omitted; internal quotation marks omitted.) Miles
, 11 Conn. App. 584, 601–602, 529 A.2d 199 (1987). ‘‘Whether a publishedarticle is libelous per se must be determined upon the face of the articleitself. The statements contained therein, taking them in the sense in whichcommon and reasonable minds would understand them, are determinative,and they may not for this purpose be varied or enlarged by innuendo.’’(Internal quotation marks omitted.) Battista
v. United Illuminating Co
., 10Conn. App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525A.2d 1352 (1987).
Additionally, we note that the plaintiff did not claim libel by innuendo or
implication in his pleading, nor is there any mention of such a theory by
the trial court or in the plaintiff’s brief on appeal. Reviewing the transcriptfrom the hearing on the motion for summary judgment, however, it is clearthat the plaintiff argued: ‘‘Although I did not plead any of the claims of falselight and invasion of privacy or defamation by innuendo, it is not essentialto the sufficiency of the complaint alleging a statutory cause of action thatthe precise terms of the applicable statute either be counted upon or recited. . . . [A]s a pro se litigant, my pleading must be construed liberally.’’
Although it is our policy to be solicitous of pro se litigants, such policy
is applicable only when it does not interfere with the rights of other parties.
Although our courts ‘‘allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevantrules of procedural and substantive law.’’ (Internal quotation marks omitted.)New Haven
, 272 Conn. 489, 498, 863 A.2d 680 (2005). In this case,the plaintiff did not plead defamation by innuendo nor does the cited statute,§ 52-237, speak to defamation by innuendo such that the defendants wouldhave been aware of such a cause of action.
‘‘It is axiomatic that a plaintiff may rely only upon what he has alleged
[and] the right of a plaintiff to recover is limited to the allegations of hiscomplaint. . . . What is in issue is determined by the pleadings and thesemust be in writing. . . . [P]leadings have their place in our system of juris-prudence. While they are not held to the strict and artificial standard thatonce prevailed, we still cling to the belief, even in these iconoclastic days,that no orderly administration of justice is possible without them. . . . Thepurpose of a complaint . . . is to limit the issues at trial, and such pleadingsare calculated to prevent surprise.’’ (Citations omitted; internal quotationmarks omitted.) Connecticut Education Assn., Inc
. v. Milliman USA, Inc
.,105 Conn. App. 446, 460, 938 A.2d 1249 (2008). ‘‘A plaintiff’s right to recoverhas traditionally been limited to the allegations of his complaint, and aplaintiff may not allege one cause of action and recover upon another
.’’(Emphasis added.) Altberg
v. Paul Kovacs Tire Shop, Inc
., 31 Conn. App.
634, 640, 626 A.2d 804 (1993), citing Tedesco
, 215 Conn. 450,458, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656(1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992), and A. V. Giordano Co
v. American Diamond Exchange, Inc
., 31 Conn. App. 163, 166, 623 A.2d1048 (1993).
# 2009 The Authors. J. Compilation # 2009 J. Avian Biol. Received 16 June 2008, accepted 16 November 2008Test of an adaptive hypothesis for egg speckling along an elevationalgradient in a population of Mexican jays Aphelocoma ultramarinaElena C. Berg, John E. McCormack and Thomas B. SmithE. C. Berg (correspondence), J. E. McCormack and T. B. Smith, Center for Tropical Res., Inst. of the Enviro
Department of General Surgical Science (Surgery I), Department of General Surgical Science The Department of General Surgical Science of the Gunma University Graduate School of Medicine was established in 1943. This year marks its 62nd anniversary. Six years have passed since I was appointed as replacement to Dr. Yukio Nagamachi at Gunma University in 1995. Throughout the years, I have