Opinion
CV096002516S.
11-08-2012
UNPUBLISHED OPINION
VINCENT E. ROCHE, J.
The issue is whether the court should grant the defendants' motion for summary judgment (# 162). The court grants the defendants' motion for summary judgment because the claims are barred by the doctrine of collateral estoppel and fail as a matter of law based on the undisputed facts.
FACTS
On November 1, 2010, the plaintiff filed the fourth amended complaint (# 129) against the defendants, Waterbury Hospital Health Center (WHHC) and Steven M. Wexler. The undisputed facts, based on the record, are as follows.
The record includes a previous action, Casper v. Waterbury Hospital Health Center, judicial district of Waterbury, Docket No. CV 04 0182444, and its subsequent appeal, Casper v. Waterbury Hospital Health Center, 114 Conn.App. 901, 969 A.2d 879, cert. denied, 292 Conn. 915, 973 A.2d 662 (2009), of which the court takes judicial notice.
The present case arises from a prior action between the same parties, represented by the same counsel. On January 7, 2002, at approximately 6:00 p.m., the plaintiff was brought by ambulance to WHHC due to a motor vehicle accident where her left hand went through the driver's door window. The plaintiff was treated by Wexler, a physician specializing in emergency medicine. On May 14, 2002, the plaintiff requested her medical records from WHHC arising from her January 7 treatment. The plaintiff received some information regarding her treatment pursuant to her request, but at the time did not receive a radiology requisition form (requisition form). The plaintiff filed her original action against the defendants by a complaint dated December 22, 2003, under docket number UWY CV 04 0182444 (underlying case), alleging she sustained injuries and losses while under the defendants' care.
On November 20, 2006, the defendants submitted the requisition form to the plaintiff in response to an amended disclosure by the plaintiff's expert witness, which opined that emergency room doctors must communicate their preliminary interpretation of patients' X rays to the radiology department to satisfy the standard of care. On November 30, 2006, the plaintiff filed a motion for leave to amend the complaint, seeking to allege a new claim of intentional spoliation of evidence based on the alleged late production of the requisition form, and motion for continuance, seeking additional time to conduct discovery. On December 1, 2006, Judge Cremins denied both motions.
The requisition form was entered into evidence during the jury trial. Wexler testified that the requisition form was used by emergency room doctors at WHHC to communicate their preliminary interpretation of X rays and request an official interpretation from the radiology department. Wexler additionally testified that he examined the plaintiff's X rays when she was admitted to WHHC on January 7, 2002, and documented his preliminary interpretation contemporaneously on the requisition form. The plaintiff questioned Wexler about the authenticity of the requisition form, his preliminary interpretation of the X rays and the communication of his interpretation to the radiology department. The plaintiff questioned Andrew Lawson, the radiologist who allegedly performed the official interpretation of the plaintiff's X rays, about the authenticity of the requisition form. The plaintiff herself also testified about the requisition form's alleged late disclosure, stating she found it " interesting that it was supplied so late."
On December 14, 2006, the plaintiff filed a request to charge, requesting a jury instruction that the alleged late disclosure of the requisition form violated General Statutes § 20-7c. Judge Cremins denied the request. On December 22, 2007, the jury entered a verdict on all counts for the defendants. The jury found, through interrogatories, that the plaintiff did not prove, by a fair preponderance of the evidence, that the defendants " failed to obtain and read the Waterbury Hospital X-rays, or the report thereof, at all, or in a timely manner, and properly base his care and treatment of the plaintiff thereupon." The jury additionally found that the plaintiff did not prove, by a fair preponderance of the evidence, that the defendants " failed to obtain other X-rays, or images/diagnostic tests, to confirm all said automobile window glass had been removed ..." or " failed to take a proper history."
General Statutes § 20-7c(b) provides in relevant part: " Upon a written request of a patient ... a provider, shall furnish to the person making such request a copy of the patient's health record ... within thirty days of the request ..."
On July 16, 2007, the plaintiff filed a motion to set aside the verdict on the ground that if her previous motions had been properly granted, it might have constituted a complete victory for her. Judge Cremins denied the motion on February 13, 2008, entering a judgment that included a $10,541.36 award of costs for the defendants. The Appellate Court affirmed the trial court's denial of the plaintiff's motion to amend, motion for a continuance and request to charge. Casper v. Waterbury Hospital Health Center, 114 Conn.App. 901, 969 A.2d 879, cert. denied, 292 Conn. 915, 973 A.2d 662 (2009).
In the eleven-count operative complaint, the plaintiff alleges that the defendants fabricated, altered or intentionally withheld the requisition form during the discovery phase of the underlying case. The plaintiff claims that the defendants' alleged actions regarding the requisition form were a substantial contributing factor to her loss in the underlying case, including the " trauma, great emotional distress and humiliation she endured." The plaintiff specifically alleges spoliation of evidence, violations of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq .), negligent misrepresentation, fraud, and breach of fiduciary duty against both defendants. The plaintiff additionally alleges negligence per se against WHHC for violating § 20-7c. The plaintiff seeks as damages her costs of litigating the underlying case in the amount of $20,000, and the costs awarded to the defendants in the underlying case in the amount of $10,541.36. A letter dated November 20, 2006, from the defendants' counsel to the plaintiff's counsel and a copy of the requisition form that was allegedly included with the correspondence, are attached as an exhibit.
On June 14, 2012, the defendants filed a motion for summary judgment (# 162) as to the entire operative complaint, on the grounds that all the plaintiff's claims are barred by collateral estoppel, the allegations of improper conduct are unfounded, the plaintiff did not suffer actionable damage as a proximate result of the defendants' purported conduct, and the claims are barred by the statute of limitations. The motion is accompanied by a memorandum of law. Attached as exhibits from the underlying case are: excerpts of trial and deposition transcripts, copies of the defendant's medical records, and correspondence between counsel. Also attached are correspondence between counsel from after the conclusion of the underlying case, a deposition of the plaintiff from the present case, an affidavit by Mary O'Hara, WHHC's director of risk management, and a copy of the requisition form. The plaintiff filed a memorandum of law in opposition to the motion for summary judgment (# 175) on September 12, 2012. The defendants filed a reply in further support of their motion for summary judgment on September 13, 2012. The matter was heard on short calendar on September 17, 2012.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
" An important exception exists ... to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ... It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850-51, 939 A.2d 1249 (2008). A party's " conclusory statements, in the affidavit and elsewhere ... do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The defendants argue they are entitled to summary judgment because the plaintiff's claims are barred by the doctrine of collateral estoppel. The defendants contend that the plaintiff's claims are based exclusively on allegations questioning the authenticity and alleged late production of the requisition form, an issue which has been fully and fairly litigated in the underlying case with a final judgment reached. The plaintiff argues that their claims in the present action, which concern the alleged late production or alteration of evidence, differ materially from the claims in the underlying case, which involved medical negligence, thus there are no issues giving rise to collateral estoppel.
" Summary judgment is an appropriate method for resolving issues of res judicata or collateral estoppel." Zanoni v. Lynch, 79 Conn.App. 325, 338, 830 A.2d 314 (2003). " Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim ... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009). " For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Internal quotation marks omitted.) State v. Joyner, 255 Conn. 477, 490, 774 A.2d 927 (2001). " The proper function of interrogatories is to provide a means by which the jury may record the findings of fact that form the basis for their verdict." Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 752, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).
" [T]he decision whether to apply the doctrine of collateral estoppel in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ... and the competing interest of the plaintiff in the vindication of a just claim ... These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation ... [c]ourts should be careful that the effect of the doctrine does not work an injustice ... Thus, [t]he doctrines of preclusion ... should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Citations omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light and Power Co., 300 Conn. 325, 343-45, 15 A.3d 601 (2011).
In Alexandru v. Strong; 81 Conn.App. 68, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004); a legal malpractice action arose from a previous federal Title VII employment discrimination claim, where a former client, after firing her attorney for failing to timely file an emotional distress claim, proceeded self-represented in litigating related claims of sexual harassment and retaliatory conduct. The federal jury, by special verdict, found that the former client failed to prove both remaining allegations by a preponderance of the evidence. Id., at 77. In her later legal malpractice case, the Appellate Court found that to assert a legally viable claim, the former client would need to demonstrate she would have been successful in the previous employment discrimination case if it were not for the former attorney's alleged malpractice in failing to timely file an emotional distress claim. Id. Because the factual issue of emotional distress had been litigated and decided against the former client in the context of her sexual harassment and retaliatory conduct claims, collateral estoppel barred the former client from maintaining a cause of action for legal malpractice arising from the attorney's failure to assert her emotional distress claim in a timely manner. Id., at 77-78.
In the present case, the plaintiff alleges spoliation of evidence by the defendants in counts two and seven of the operative complaint. " [T]he tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-45, 905 A.2d 1165 (2006). Just as the former client in Alexandru v. Strong had to prove she would have been successful in her workplace harassment suit if it were not for the former attorney's actions to have a viable legal malpractice claim, to have a legally viable spoliation of evidence claim the plaintiff in the present case must prove she would have prevailed in the underlying case if it were not for the defendants' alleged conduct regarding the requisition form.
The requisition form was entered into evidence at trial during the underlying case, and the authenticity of the requisition form was the subject of testimony. Many of the jury's specific findings of fact in the interrogatories, which formed the basis of their verdict against the plaintiff, directly concerned Wexler's reading and preliminary interpretation of the plaintiff's X rays. The requisition form was the proof at trial that Wexler examined the plaintiff's X rays and performed a preliminary interpretation of them. Simply put, " in the absence of a determination" by the jury that the requisition form was authentic, " the judgment could not have been validly rendered." Lyon v. Jones, supra, 291 Conn. at 406. Therefore, summary judgment is granted in favor of the defendants as to counts two and seven.
Every claim in the operative complaint incorporates injuries that were alleged in the spoliation of evidence counts, including the plaintiff's litigation costs and costs awarded to the defendants from underlying case. All the claims in the operative complaint are derivative of claims of the spoliation of evidence because, to show she sustained damages and thus has legally viable claims, the plaintiff must prove she would have been successful in the underlying case had it not been for the defendants' alleged actions regarding the requisition form. The authenticity of the requisition form has been fully and fairly litigated, was actually decided, and that decision was necessary for the final judgment.
The defendants alternatively argue that each of the plaintiff's claims fail as a matter of law based on undisputed material facts. Specifically, the defendants argue that the plaintiff suffered no actionable damages from the defendants' alleged actions regarding the requisition form. The plaintiff contends that she suffered actionable damages from the loss and costs of litigating the underlying case. The plaintiff additionally claims that the element of damages is referred in her standard prayer for relief, which states " the plaintiff respectfully requests that this [h]onorable [c]ourt ... [a]ward to the plaintiff the actual damages suffered by her as proved at trial."
It is noted that the standard prayer for relief that the plaintiff refers to in her reply in opposition to the defendants' motion for summary judgment (# 175) does not correspond to the prayer for relief in the operative complaint (# 129), dated November 1, 2010.
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" [U]nadmitted allegations in the pleadings ... do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." (Internal quotation marks omitted.) Taylor v. Lantz, 129 Conn.App. 437, 449, 20 A.3d 88 (2011).
CONCLUSION
It is undisputed that the requisition form was released to the defendants three weeks before the commencement of trial in the underlying case. The form was entered into evidence and its authenticity was the subject of cross examination. The undisputed facts thus demonstrate the plaintiff suffered no actionable damage due to the alleged actions of the defendants. Therefore, summary judgment is granted as to the entire operative complaint.
The defendants additionally argue that summary judgment should be granted because the plaintiff's allegations of improper conduct are unfounded and all the claims are barred by the applicable statute of limitations. Since summary judgment is granted because the claims are barred by the doctrine of collateral estoppel and fail as a matter of law based on undisputed material facts, there is no need to address the defendant's alternative arguments.