Opinion
X10CV156029965S
01-31-2017
Anthony Diaz v. Griffin Health Services Corp. et al
UNPUBLISHED OPINION
RULING ON MOTION TO STRIKE (ENTRY #124)
LINDA K. LAGER, JUDGE.
The defendants Griffin Health Services Corporation and Griffin Hospital (Griffin) have moved to strike the entirety of the amended complaint (complaint) dated May 11, 2016 (entry #120). Briefly summarized, the complaint alleges that the plaintiff, an insulin-dependent diabetic patient at Griffin Hospital, along with a putative class of over 3, 100 patients, was injected with insulin from a multi-dose insulin pen intended for use on a single patient which may have been improperly used on other patients, did not learn about the practice until he received notice from Griffin in correspondence dated May 16, 2014, suffered emotional distress due to the potential that he was exposed to blood-borne pathogens which could cause infections such as hepatitis B (HBV), hepatitis C (HCV) or HIV, suffered a physical injury in that he went for subsequent blood testing and continues to suffer from emotional distress. The first count pleads medical negligence, the second count pleads common-law recklessness and the third court pleads negligent infliction of emotional distress. The complaint seeks class certification.
Griffin maintains that the complaint " fails to set forth any cognizable injury for which recovery in tort is possible" (entry #124, p. 1) and it asserts multiple grounds for striking the tort counts. It also asks the court to determine as a matter of law that there are no circumstances under which this action could meet certain requirements for class certification.
In deciding a motion to strike, Practice Book § 10-39, the court must examine the allegations of the complaint in the light most favorable to the plaintiff to determine the legal sufficiency of the causes of action from the pleaded facts, as well as the reasonable inferences that can be drawn from those facts. Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). Moreover, the " pleadings must be construed broadly and realistically, rather than narrowly and technically." Lawrence v. O and G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). Finally, the court's role is not to decide whether the evidence will support the cause of action but only to determine whether the allegations are legally sufficient to state the cause of action. Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).
I.
Griffin challenges the first two counts on multiple grounds but the crux of its argument is that the complaint does not set forth any claim of cognizable harm because the conduct alleged to have caused harm was the notification letter it sent to the plaintiff and others (¶ 31), as a matter of public policy and otherwise sending such a letter is not negligent conduct and should be encouraged, and such conduct does not provide a basis for imposing liability for emotional distress damages in the absence of allegations of physical harm or actual exposure to blood-borne pathogens causally connected to its negligence.
Griffin's argument focuses on the first count which alleges professional negligence. It does not make any independent argument to strike the second count, sounding in common-law recklessness, but merely maintains that it " cannot survive without a viable negligence claim." (Entries #124 and #125, p. 3.)
The plaintiff counters that the conduct alleged to have caused harm was Griffin's improper use of the single patient multi-dose insulin pens on multiple patients between September 2008 and early May 2014 (¶ ¶ 23-29), its use of such device on the named plaintiff (¶ ¶ 13-15) and Griffin's negligent failure to engage in safe and proper practices in the administration of insulin to its patients using the multi-dose pens (¶ 49) resulting in the need for blood testing (¶ ¶ 32, 38), medical monitoring and treatment until such time as the patients can medically ascertain whether the wrongful conduct caused HBV, HCV or HIV infections and attendant emotional distress, anxiety and anguish (¶ ¶ 50-51). The plaintiff maintains that these allegations set forth a cognizable claim for medical negligence and that the harms alleged--blood testing, medical monitoring and attendant emotional distress--are not attenuated from the alleged negligent conduct, were reasonably foreseeable and causally connected. For the reasons stated below, the court agrees with the plaintiff's position and denies the motion to strike the first and second counts.
" Duty is a legal conclusion about relationships between individuals, made after the fact . . . [and] determined by the circumstances surrounding the conduct . . ." Jarmie v. Troncale, 306 Conn. 578, 590, 50 A.3rd 802 (2012). Medical malpractice claims are common-law negligence claims " procedurally circumscribed by statute." Greenwald v. Van Handel, 311 Conn. 370, 383, 88 A.3d 467 (2014). The duty of health care providers is defined by Connecticut's common law " as an ordinary duty to their patients not to harm them through negligent conduct and an affirmative duty to help them by providing appropriate care." Jarmie v. Troncale, supra, 306 Conn. at 592. Thus, " deviations from the appropriate standard of medical care . . . should be the central concern of medical practitioners." (Internal quotation marks omitted; internal citations omitted). Id., 607.
The first count states claims by a patient against the patient's health care provider. It alleges that Griffin violated its ordinary duty in the way in which it treated and cared for the plaintiff, an insulin-dependent diabetic, and other similarly situated patients. Contrary to Griffin's position, the first count does not allege that its negligent conduct was sending the notification letter. Rather, it alleges that Griffin had a duty to administer insulin injections to its diabetic patients pursuant to the applicable standard of care, it breached that duty when it misused the single patient multi-use insulin pens and the breach caused the patients to undergo blood testing, medical monitoring and treatment and to experience emotional distress, anguish and anxiety. The first count alleges a standard medical malpractice claim seeking damages for physical harm and emotional distress caused by the alleged breach of the standard of care and supported by a § 52-190a good faith certificate letter.
In light of this conclusion, there can be no question that " the normal expectations of the participants in the activity under review, " Id., 590, include " the physician's duty of undivided loyalty to the patient . . . and the patient's corresponding loyalty, trust and dependence on the physician's medical treatment and advice." (Internal quotation marks omitted; internal citations omitted.) Id., 606. It is reasonable to infer from the facts alleged here that the patient would expect the hospital not to misuse multi-dose insulin pens, that the hospital should expect that a patient would suffer physical harm and emotional distress from any such misuse and that both parties could expect compensation to be awarded if professional negligence and damages were proven.
Nonetheless, without citing any relevant authority to support this claim, Griffin argues that imposing liability on it is contrary to public policy because it would discourage healthcare providers from notifying patients " about potential problems" or issuing " broadscale alerts" and could open the door to increased litigation. These concerns are not relevant to the first and second counts, but see section II infra, because the negligent conduct is not the hospital's activity in sending the notification letter to its patients but rather the alleged negligent misuse of the insulin pens, proof of which is subject to specific common-law and statutory requirements regarding medical malpractice claims.
Griffin also focuses on the emotional distress damages alleged in paragraph 51 claiming that they are not proper as a matter of law in the absence of allegations of physical harm causally connected to its negligent conduct. In making this argument, Griffin overlooks the allegations that Griffin offered free blood testing to the affected patients and encouraged them to be tested (¶ 32), and that the named plaintiff had his blood drawn (¶ 38), a form of physical harm or present injury. Griffin also overlooks the allegations that patients received injections in an improper manner which may have exposed the patients to the transmission of blood-borne infections such as HBV, HCV and HIV, another form of physical harm or present injury.
Thus, contrary to Griffin's argument, the allegations suffice to allow this case to fall squarely within the rule of damages set forth in Petriello v. Kalman, 215 Conn. 377, 397-98, 576 A.2d 474 (1990), which held that " in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that future harm is likely to occur." At this stage of the pleadings, the question is not whether the plaintiff can prove these damages but only whether a cognizable tort has been alleged.
Petriello is a case about damages, not causation. In Petriello, the court adopted a modern rule of compensation for damages arising from the risk of future harm resulting from tortious conduct. The court held " that a plaintiff may recover for the fear of future medical treatment and disability, as distinguished from a recovery for the future disability itself, even if there is only a possibility that such future treatment or disability will take place. This rule of damages is based on the unremarkable proposition that a danger of future injury is a present fact and the jury [is] entitled to take into consideration the anxiety resulting therefrom." (Internal quotation marks omitted; citations omitted.) Goodmaster v. Houser, 225 Conn. 637, 645-46, 625 A.2d 1366 (1993). When a plaintiff claims emotional distress as an element of damages based on an increased risk of future injury resulting from tortious conduct, the plaintiff must prove, by a fair preponderance of the evidence, both the probability percentage of that increased risk and that his attendant anxiety has some reasonable basis. In short, the plaintiff will bear the ultimate burden of proving that his fear was not only " subjectively held" but was also " objectively reasonable." Petriello v. Kalman, supra, 215 Conn. 390.
In Petriello v. Kalman, 215 Conn. 377, 378-82, 576 A.2d 474 (1990), the plaintiff's emotional distress claim was based on her anxiety over the possibility of an increased risk of a future bowel obstruction resulting from the probable formation of adhesions related to a bowel resection performed by a non-negligent surgeon to repair a bowel perforation negligently caused by the defendant Kalman, an obstetrician, in the course of performing a dilation and curettage.
If the plaintiff proves Griffin's professional negligence but does not establish that he was exposed to blood-borne pathogens as a result, a fact finder may conclude that he has failed to prove a present injury and find in favor of the defendants or the fact finder may find that he has failed to establish that his fear of future injury is objectively reasonable and refuse to award emotional distress damages on the first count.
Of course, causation is an essential element of a medical malpractice claim. Petriello did not " in any way relax a plaintiff's burden to prove a causal link between negligent acts and the harm for which he or she seeks compensation." Drew v. William W. Backus Hospital, 77 Conn.App. 645, 668-69, 825 A.2d 210, cert. granted, 265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn Dec. 22, 2003). Proximate cause is determined by the substantial factor test which requires the harm to be " of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 124, 869 A.2d 179 (2005). In a professional negligence case, the test of foreseeability is broad, Pisel v. Stamford Hospital, 180 Conn. 314, 322-23, 430 A.2d 1 (1980), citing Figlar v. Gordon, 133 Conn. 577, 581, 53 A.2d 645 (1947), and does not require that the particular injury which is alleged to have resulted was foreseeable. See Connecticut Judicial Branch Civil Jury Instruction 3.1-4--Proximate Cause-Foreseeable Risk. Griffin maintains that the complaint insufficiently alleges causation because, without allegations of concurrent physical harm or allegations of actual exposure to the infectious agents, the emotional harm alleged in the first count is too attenuated from the alleged malpractice. The court has concluded the first count sufficiently alleges physical harm, see p. 5, supra. The court further concludes that the harms alleged-blood testing, medical monitoring and emotional distress-fall within the scope of the foreseeable risk created by the alleged misuse of the multi-dose insulin pens and are not too remote from the alleged professional negligence. Whether the plaintiff was actually injured and whether Griffin's negligence, if proven, was a proximate cause are factual questions unresolvable by way of a motion to strike.
Since 1941 Connecticut has permitted recovery for negligence which proximately causes foreseeable fright or shock without evidence of a contemporaneous physical injury. In Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941), the Supreme Court held that " where it is proven that negligence proximately caused fright or shock in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover." In Strazza v. McKittrick, 146 Conn. 714, 717, 156 A.2d 149, 151 (1959), overruled on other grounds, Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), the court affirmed that a plaintiff may recover for damages for fear of injury proximately caused by negligent conduct " without consequential physical injury." In so holding, Connecticut deviated from a common requirement of other jurisdictions that recovery in negligence for emotional distress for one's own fear of injury requires evidence of actual physical impact. Id., 38. Although Orlo and Strazza are distinguishable on their facts from this case, they support the proposition that emotional distress can be an independent present injury without an attendant physical injury or physical impact if the distress falls within the scope of the risk created by the negligent conduct.
Further, the court agrees with the plaintiff that the cases upon which Griffin relies to argue that allegations of actual exposure are required for the professional negligence count relate not to it but to the third count alleging negligent infliction of emotional distress. Barrett v. Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (1995), was premised on the law of negligent infliction of emotional distress. Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978). And, as Griffin concedes, Barrett did not adopt " the actual exposure test which requires that a plaintiff show actual exposure to a disease causing agent as a prerequisite for prevailing on a claim based on fear of contracting a disease." (Internal quotation marks omitted). Barrett v. Danbury Hospital, supra, 232 Conn. 257.
In Barrett v. Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (1995), the plaintiffs only sought compensation for emotional distress. Id., 259, n.11. The negligent conduct was the introduction of potentially contaminated blood into Barrett's rectum by a physician performing rectal examinations. The defendants moved for summary judgment and submitted " expert testimony . . . which showed no blood in the stool [and] conclusively determined that blood had not been introduced into Barrett's rectum." Id., 255 The plaintiffs " failed to show any contact with the blood in the manner that they claimed to have caused their fear." Id., 262. In light of these undisputed facts, the court determined as a matter of law that there was no evidence to support the first element of negligent infliction of emotional distress, i.e., that the claimed conduct created an unreasonable risk of causing the plaintiff emotional distress, because no blood was introduced. Interestingly, the court noted that since there was no claim that the plaintiffs " were unaware of the tests that revealed the absence of blood in Barrett's rectum [it would] not consider . . . whether the plaintiffs' fear would have been reasonable had they been unaware of the medical evidence that blood had not been introduced into Barrett's rectum." Id., 262, n.12.
II.
Griffin seeks to strike the third count on the ground that it fails to sufficiently allege the elements of negligent infliction of emotional distress. Although the third count incorporates the allegations of paragraphs 1 through 62 of the second count, the conduct underlying this claim is premised on different conduct from the first and second counts, namely, Griffin's act of informing the plaintiff and similarly situated patients of the misuse of multi-dose insulin pens. Analyzing the third count in light of this alleged conduct, the court concludes it must be stricken.
As the plaintiff acknowledged upon the court's inquiry at oral argument. (Hearing Transcript, 11/9/16, pp. 30, 43.)
To recover for negligent infliction of emotional distress, a plaintiff must prove that " (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). " Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).
The complaint alleges that on May 16, 2014, Griffin " sent correspondence to over 3, 100 patients . . . notifying them they were administered insulin through multi-dose insulin pens [which] identified misuse of those pens" and the resulting potential exposure to blood-borne pathogens such as HBV, HCV, and HIV (¶ 31), offered free testing for those pathogens and encouraged the patients to be tested (¶ 32). The question, then, is whether Griffin knew or should have known that sending this letter was tortious conduct that created an unreasonable risk of causing emotional distress likely to cause illness or bodily harm. Assuming, without deciding, that Griffin had a duty to inform its patients of the potential exposure, the court concludes as a matter of law and policy that doing so is not tortious conduct that creates an unreasonable risk of emotional distress.
" In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . ." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002). Accordingly, to state a cognizable claim, the complaint must allege sufficient facts from which the court can infer that the plaintiff's alleged emotional distress is objectively reasonable in light of Griffin's alleged conduct in sending out the notification letter on May 16, 2014. Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 345-46. Apart from alleging the boilerplate elements of a negligent infliction of emotional distress claim, there are no facts alleged from which the court can draw the requisite inference. See McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 197, 851 A.2d 1154 (2004). While receipt of such a notice may have caused some patients to be concerned about their potential exposure and take advantage of the free testing, other patients may have felt grateful for the notice or felt no concern whatsoever. In on-going physician-patient relationships there are many occasions when a physician must tell a patient about suspicions regarding a possible illness, a potential exposure or other medical concerns or advise the patient to undergo testing or additional procedures, but a reasonable person would certainly want to know that information and would temper his or her reaction to it. The complaint insufficiently pleads the requisite element that Griffin should have foreseen that sending the notification letter would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.
Further, as a matter of public policy, the court concludes that Griffin should not be held liable for negligent infliction of emotional distress based on its conduct in sending out the notification letter. Four factors are usually " considered in determining the extent of a legal duty as a matter of public policy. These are: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Citations omitted; internal quotation marks omitted). Jarmie v. Troncale, supra, 306 Conn. 603. The first three factors are decisive here.
The court acknowledges that the defendants have cited many cases from other jurisdictions which have held, largely in the context of potential exposure to HIV, that emotional distress damages cannot be recovered for fear of harm in the absence of evidence of actual exposure to the virus and the plaintiff has cited many cases in opposition. However, neither side has provided any caselaw that discusses the public policy implications of imposing liability on a health care provider for notifying its patients about potential exposure to pathogens and the court's research could not find any.
In an on-going relationship between a health care provider and its patients there are occasions when the provider must not only inform the patient about illnesses, exposures and concerns but also about bad outcomes and possible medical errors. The patient would expect to be so informed and the health care provider should be encouraged to do so. Indeed, deciding when and how to advise a patient about potential risks is likely encompassed within a physician's duty of undivided loyalty to the patient. Id., 607. Disclosure of potential risks allows patients to take steps to protect themselves against future harm and furthers the principle of patient autonomy in health care decision-making. Disclosure also creates trust and encourages patients to accept a health care provider's professional opinions and rely on its advice, thus facilitating the patient-physician relationship. Id. Connecticut's public policy favors the protection of patient safety and encourages patient choice. The policy is reflected, in part, by the mandated reporting of adverse medical events occurring at hospitals, General Statutes 19a-127n, which are published annually by the Department of Public Health and publicly available on its web site. See http://www.ct.gov/dph/cwp/. And since 1999, following the release of a seminal report from the Institute of Medicine, To Err is Human, concerning preventable medical errors in hospitals, there has been an admirable trend towards voluntary disclosure of medical errors by hospitals and other health care providers. See J. Schwartz, " A Dose of Reality for Medical Malpractice Reform, " 88 N.Y.U. Law Review 1224, 1230, 1254-56 (2013); T. Hafemeister and S. Spinos, " Lean on Me: A Physician's Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient, " 86 Wash.U.L.Rev. 1167, 1171-72 (2009). Imposing liability on a health care provider for providing such voluntary disclosure, as opposed to imposing liability for any underlying medical negligence, is counterproductive to the salutary policy goals of promoting patient safety and furthering patient autonomy in making health care decisions. And allowing a cause of action premised solely on such disclosures could naturally lead to increased litigation with " its attendant costs in terms of time and money." Jarmie v. Troncale, supra, 306 Conn. 615.
Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building a Safer Health System (Linda T. Kohn et al. eds., 2000).
III.
Griffin has moved to strike the class action allegations before any discovery has occurred, relying on certain federal and Superior Court decisions in which such motions have been made. For the reasons made clear in footnotes 9 and 10, these cases are distinguishable.
The district court in Shein v. Canon USA, Inc., No. CV08-07323, 2009 WL 3109721 (C.D.Cal. Sept. 22, 2009), denied the motion to strike on the ground that it was premature and inappropriate, ruling that class certification should not be determined until the parties " had an opportunity to conduct class discovery and develop a record." In Hovsepian v. Apple, Inc., No. 08-5788, 2009 WL 5069144 (N.D.Ca. Dec. 17, 2009), the court had previously given the plaintiff two opportunities to amend the complaint to allege an ascertainable class and once again struck the class allegations but without prejudice. John v. National Security Fire and Casualty Co., 501 F.3d 443, 445 (5th Cir. 2007), affirmed the granting of a motion to dismiss on the unchallenged ground that the complaint failed to allege an ascertainable class. Finally, in Muehlbauer v. GMC, 431 F.Supp.2d 847, 871-72 (N.D.Ill. 2006), the plaintiffs agreed to amend the class definition and the court found that the amended class was not unmanageable and that there was predominance of common legal issues within subclasses the plaintiff had alleged.
Saphir v. Neustadt, 37 Conn.Supp. 46, 429 A.2d 972 (Super.Court 1980), involved a self represented plaintiff who failed to adequately describe the putative class and was likely unable to advocate on behalf of any putative class members because of his pro se status; in Bthrifty, LLC v. Comcast Spotlight, LLC., Superior Court, Judicial District of Hartford, Docket No. 106013996, 2012 WL 800762 (Feb. 16, 2012), the court had previously granted a motion to strike the class action count and treated the second motion to strike as a motion for class certification; in Maltagliati v. Wilson, Superior Court, Judicial District of Hartford, Docket No. 970575612 1998 WL 774137 (Oct. 22, 1998) [23 Conn.L.Rptr. 275, ], " the plaintiffs failed to allege any of the requirements for a class action set forth in Practice Book § § 9-7 and 9-8."
The relevant rules governing class actions in Connecticut are found at Practice Book § § 9-7 and 9-8 which are substantively identical to Fed.R.Civ.P. 23(a) and 23(b) respectively. As a result, Connecticut looks " to federal case law for guidance" in addressing the requirements for class certification. Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 738, 818 A.2d 731 (2003). In the federal courts, " motions to defeat certification prior to the completion of discovery are generally regarded with disfavor." Rubinstein, 3 Newberg on Class Actions § 7.22, p. 114 (5th ed. 2013). See Herrera v. JFK Medical Center Ltd. Partnership, 648 Fed.Appx. 930 (11th Cir. 2016); Manning v. Boston Medical Center Corp., 725 F.3d 34, 59 (1st Cir. 2013); O'Leary v. New Hampshire Boring, Inc., 176 F.Supp.3d 4, 13 (D.Mass. 2016); Belfiore v. P& G, 94 F.Supp.3d 440, 447 (E.D.N.Y. 2015); Shaw v. Experian Information Solutions, Inc., 49 F.Supp.3d 702, 709 (S.D.Cal. 2014); Smith v. Washington Post Co., 962 F.Supp.2d 79, 91 (D.D.C. 2013). Such a motion is a preemptive strike. Newberg on Class Actions, supra, p. 116. Granting it denies the plaintiff the opportunity to obtain discovery in order to develop an " adequate record" to support its class allegations. Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 644, 894 A.2d 240 (2006). Accordingly, at this juncture, as the movant, it is Griffin's heavy " burden [to] demonstrat[e] from the face of plaintiffs' complaint that it will be impossible to certify the [class] alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove." Bryant v. Food Lion, Inc., 774 F.Supp. 1484, 1495 (D.S.C. 1991). The court concludes that it has not met this burden.
Paragraphs 41 through 48 of the complaint set forth the class action allegations. The class is described as " all patients of Griffin Hospital between September 1, 2008 and May 7, 2014, for whom a multi-dose insulin pen was prescribed, who received notice of the misuse of multi-dose insulin pens . . . and who were subsequently tested for HBV, HCV and/or HIV" (¶ 41) whose " claims . . . depend upon Griffin's . . . practices in administering insulin from multi-dose insulin pens to insulin dependent diabetics admitted to Griffin Hospital" during the relevant time period (¶ 43). Facts regarding multi-dose insulin pens are alleged in paragraphs 18 through 21 and facts regarding Griffin's practices in administering insulin with multi-dose pens are alleged in paragraphs 23 through 28 and 49.
In moving to strike the class action claims prior to discovery, Griffin concedes that the complaint recites all the elements of a class action (¶ ¶ 41-48) but maintains that there are no circumstances under which the commonality and typicality requisites for class certification, Practice Book § 9-7(2) and (3), may be satisfied entitling it, effectively, to a dismissal of the class action as a matter of law. Griffin argues that the establishment of both liability and damages will require an individualized inquiry defeating commonality. And it asserts that typicality is defeated because the plaintiffs seek emotional distress damages which are inherently individual, subjective and not subject to calculation by some formula or common set of standards. Griffin also maintains that individualized damages claims are not susceptible to class certification pursuant to Practice Book § 9-8(1) and defeat the predominance requirement of Practice Book § 9-8(3). Thus, Griffin's characterization of the plaintiff's liability and damages claims as individualized is central to its argument.
Hearing Transcript, 11/9/16, p. 71.
Practice Book § 9-7 provides, in pertinent part: " One or more members of a class may sue . . . as representative parties on behalf of all only if . . . (2) there are questions of law or fact common to the class, (3) the claims . . . of the representative parties are typical of the claims . . . of the class . . ."
The plaintiff argues that the allegations suffice to establish commonality and typicality with respect to liability and that the potential of individualized damages determinations does not, without more, defeat class certification. The plaintiff asks the court to reject Griffin's characterization of the substantive claims alleged in the complaint. The plaintiff maintains that the court should make the requisite determinations following a hearing on a motion for class certification. Indeed, in the absence of a such a motion, it is unknown whether the plaintiff will move for full or partial class certification or whether the plaintiff can demonstrate, pursuant to the appropriate standard, that an individualized consideration of causation and damages would not bar class certification here. See Marr v. WMX Technologies, Inc., 244 Conn. 676, 682, 711 A.2d 700 (1998).
The plaintiff's oral argument suggested the possibility of a motion for partial certification. Connecticut's rules of practice have been interpreted to permit partial class actions. Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 25, 836 A.2d 1124 (2003). Partial class actions foster principles of judicial economy and efficiency. " A class action may be brought or maintained with respect to particular issues, provided the requirements for class certification are satisfied." Id., 26.
" As a general matter, a ruling on class certification should normally be based on more information than the complaint itself affords . . ." (Quotation marks omitted; citation omitted.) Bryant v. Food Lion, Inc., supra, 774 F.Supp. 1495. In conducting the " rigorous analysis" required to determine class certification, the court is not " limited to the pleadings . . . On the contrary . . . class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action . . . and it . . . may be necessary for the court to probe behind the pleadings before coming to rest on the certification question . . . the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 320-21, 880 A.2d 106 (2005); Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 23-25, 836 A.2d 1124 (2003).
Commonality is satisfied if the putative class members " share a common question of law or fact." Id., 34. Typicality " does not require the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the name plaintiff's claim as to that of other members of the proposed class." (Internal quotation mark omitted; citation omitted.) Id.
The court is bound to take the substantive allegations of the complaint as true. Id., 24. For the purpose of this motion only, the court concludes that the complaint, read broadly and in the light most favorable to the plaintiff's position that it is premature to decide if the class action requirements have been met, alleges that over a lengthy period of time Griffin improperly administered insulin to its insulin dependent diabetic patients by using single patient multi-dose insulin pens in a manner that violated the standard of care. The claims of the putative class members arise from these circumstances. A central question to all the putative claims is the applicable standard of care. Common questions of law and fact are likely to arise with respect to the standard of care applicable to the use of the pens and may also arise with respect to the proof of any breach of the standard of care. Further, in the context of the applicable standard of care, the allegations of ¶ ¶ 41, 43 and 46 suffice to state the factual predicate for Practice Book § 9-8(1)(A) so it is not necessary to address Griffin's predominance argument at this time.
In order to maintain a class action, Practice Book § 9-8 requires that one of its three conditions be met in addition to meeting the requisites set out in Practice Book § 9-7. It provides, in pertinent part: " An action may be maintained as a class action if . . . (1) the prosecution of separate actions by or against individual members of the class would create a risk of; (A) inconsistent or varying adjudications with respect to individual members of class which would establish incompatible standards of conduct for the party opposing the class . . ." The court is cognizant that the damages sought here are monetary and that, under federal law, certification of such claims under Fed.R.Civ.P. 23(b)(1), the federal analogue of Practice Book § 9-8(1), is deemed inappropriate. See Daskalea v. Washington Humane Society, 275 F.R.D. 346, 364 (D.D.C. 2011) and cases cited therein. This issue, along with the predominance claim, will have to be explored more fully at the appropriate time.
IV.
For the reasons stated above, the motion to strike the first and second counts and the class action claims is denied. The motion to strike the third count is granted.