The preliminary hearing for the case of Michael McAlear v. Wesleyan University took place on Tuesday, Oct. 29 at the Superior Court of Waterbury, Conn. No additional counts in the complaint have been stricken, and the case will move forward to further pretrial litigation.
The case centers on posters first circulated in the fall of 2016, which displayed the face and name of Associate Professor of Molecular Biology and Biochemistry Michael McAlear, in addition to two other University professors. A sentence reading, “Reject sexual predators emboldened by institutional power,” was printed above the names and images of the three professors. McAlear’s complaint alleges that, by failing to defend him when posters circulated bearing his likeness, the University is liable under breach of contract, recklessness, and defamation per se (defamation alleging a crime involving moral turpitude, i.e. an act that is morally unscrupulous and intrinsically bad). Counts of negligence and negligence of emotional distress were withdrawn from the original complaint in August 2019 after the University argued that negligence can only be awarded punitive damages if an employee loses their job, which did not happen in this case.
The hearing was conducted by Judge Linda K. Lager as part of the Waterbury judicial district’s Complex Litigation Docket (CLD), a division of the Waterbury Superior Court responsible for adjudicating cases that involve charges for which there is no legal precedent in the state. The case was transferred to the CLD on Sept. 10 at the request of University attorney Patricia E. Reilly, as a claim involving the aiding and abetting of defamation has never been made in Connecticut.
In addition to the issue of aiding and abetting in defamation, the hearing focused on discussion of the allegations claiming breach of contract and recklessness.
Judge Lager began the hearing with discussion of McAlear’s contractual claims, focusing on the contention over coverage of reputational damages under contractual law. While McAlear’s attorney, Thomas Minogue, argued that losses to McAlear’s reputation could entitle him to additional damages, the University argued that reputational losses would fall under the breach of contract allegation, and therefore McAlear would not be entitled to separate damages.
Judge Lager additionally pointed out that the case upon which Minogue relies, West Haven Sound Development Corp. v. West Haven (1986), states that the damages in a breach of contract claim are intended to place the party in the financial position he would have held had the contract been upheld. Since McAlear continues to hold the tenured position guaranteed by his contract, Lager questioned the validity of Minogue’s claims for consequential damages, as based on the standard established by West Haven.
Lager also questioned the reasoning behind McAlear’s assertion that the University was responsible for breach of contract, as she could not discern what action the University had taken to violate their contract with McAlear.
Minogue asserted that the University’s inaction, specifically its failure to protect McAlear, would count as action in this case.
“The University did nothing about it,” Minogue said. “That constituted a breach of the contract to protect him.”
Another point of contention was the alleged recklessness on the part of the University. The University argued that McAlear did not provide any legal standard to support his claim that inaction could be reckless. Since a claim of recklessness requires proof of a specific action, McAlear’s claims would constitute negligence rather than recklessness, and thus would not constitute an additional claim.
Reilly further argued that, as negligence cannot arise in the context of ongoing employment contract, recklessness cannot follow, stating that recklessness is essentially “negligence plus.”
Judge Lager responded that she did not agree with the University’s interpretation of recklessness, saying that recklessness involves a wanton disregard of the plaintiff’s safety, rather than the failure to insure it.
“Recklessness is an independent cause of action, in my view,” Judge Lager said. “It is often tagged onto negligence counts with no additional allegations to support recklessness, but recklessness itself is conduct that is willful or wanton. It is much more than negligence or gross negligence. It is conduct that indicates reckless disregard of someone else’s rights or consequences of the actions…. They stand independently.”
Judge Lager clarified that this was not a confirmation of proof of recklessness.
“At this point in time, I’m not determining whether or not the plaintiff can prove recklessness, only whether the allegations in the complaint are sufficient for recklessness,” she said.
Minogue claimed that the University’s failure to stop the publication of the posters did indeed constitute a reckless action, as he alleged that the University knew that the claims on the posters were unsubstantiated.
“The overriding fact is, Wesleyan knew, actually knew, that that description of the professor is false,” Minogue said. “That goes through the whole event. And when you add that to the list of conduct that gives rise and provides a factual basis at this stage in the proceedings, maintain a count of record, you have to build that into it. They knew it was false, and they let it go for 13 months, at least.”
Reilly neither confirmed nor denied that the University knew the claims were false, proceeding instead into the allegation of aiding and abetting. As Judge Lager explained, the legal standard for aiding and abetting is threefold: A crime must be committed, the defendant must assist in this crime, and the defendant must act with intent and the knowledge that their action is wrong. Since the claim of defamation per se assumes that the crime of defamation has occurred, the issue at hand was whether the University substantially assisted the students responsible for the posters, as well as whether the University acted with specific intent.
Minogue argued that by failing to restrict student access to specific printing facilities, the University made it expressly possible for students to print the defamatory posters.
“There really would be no defamation—period—if Wesleyan had not supplied the students with an office, a typewriter, a computer, a copier, all the materials necessary to compose and circulate these posters,” Minogue said.
Lager acknowledged that while the factuality of claims was not at issue during the preliminary hearing, Minogue’s argument lacked strong reasoning.
“We live in a world where everybody has access to paper and computers and duplicating machines, so that’s a little bit of a stretch,” Lager responded.
Lager declined the University’s request to strike McAlear’s claim of aiding and abetting defamation. The case will proceed under a revised complaint, and is scheduled for further pretrial litigation on Dec. 5.