Opinion
No. CV04-4000370 S
September 17, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This is a Petition for Bill of Discovery and Order to Show Cause filed by the Plaintiffs in which they seek information they believe will reveal whether or not they have a cause of action against Johnson Memorial Hospital, Inc. and/or Robert A. Braun, M.D., and/or Eric M. Meisterling, M.D. and other potential defendants. They claim the information is necessary so that the Plaintiffs may fulfill their statutory obligation pursuant to General Statutes § 52-190a. That statute provides: "No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . ."
In support of their petition, the Plaintiffs allege the following facts: Certain of the Defendants provided medical and health services to the Plaintiff, Holly Maheu, during the labor, delivery and birth of her daughter, and the Plaintiff Philip Maheu's decedent, Taylor Maheu. Certain of the Defendants also provided medical and health services to Taylor Maheu during her birth and delivery. On December 20, 2002, the Plaintiff, Holly Maheu, was admitted to Johnson Memorial Hospital, Inc. for the labor and delivery of her daughter. On that date, Taylor Maheu was born in a brain dead condition and with no hope of a normal life. The Plaintiffs allege they have reason to believe the Defendants failed to deliver the infant in a timely and professional manner and that such delay and delivery injured or harmed her and resulted in her life threatening and abnormal condition. The Plaintiffs also allege that they have reason to believe that the Defendants have information, and may have concealed information, that will reveal whether or not they have a cause of action against Johnson Memorial Hospital, Inc. and/or Robert A. Braun, M.D., and/or Eric M. Meisterling, M.D. and other potential defendants.
The Defendant, Johnson Memorial Hospital, Inc., has moved to strike the Plaintiffs' petition on the grounds that it fails to allege sufficient facts to demonstrate 1) probable cause to believe that the Plaintiffs have a potential cause of action against the Hospital; 2) that no adequate means are available to the Plaintiffs to obtain the information they seek; and/or 3) that what the Plaintiffs seek to discover is material and necessary for proof of an action that is about to be brought.
The Defendants argue that General Statutes § 52-156a governs the manner in which a bill of discovery such as this must be initiated. That statute provides in part that "[a] person who desires to perpetuate testimony regarding any matter that may be cognizable in the superior court may file a verified petition in the superior court for the judicial district of the residence of any expected adverse party." The Defendants claim that since the petition here is not verified, that is, supported by a sworn affidavit, it should be stricken. The Plaintiffs argue that General Statutes § 52-156a does not preclude or govern the use of an equitable bill of discovery. This court agrees. The Supreme Court in both Berger v. Cuomo, 230 Conn. 1, 5 n. 7 (1994) and Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 682 n. 6 (2002), implicitly, by reference, noted § 52-156a as a statutory procedure distinct from an equitable bill of discovery.
The Hospital also argues that the petition should be stricken because it merely alleges suspicions that are not sufficient to establish probable cause exists to bring a potential cause of action against the Hospital. The parties agree that in considering this claim the controlling law was stated by the Supreme Court in Berger v. Cuomo, 230 Conn. 1 (1994). There the plaintiff brought a bill of discovery in equity seeking certain information. The Court stated: "The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion . . . To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought . . . Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, the availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought . . . This is because a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. The remedy is designed to give facility to proof. Discovery is confined to facts material to the plaintiff cause of action and does not afford an open invitation to delve into the defendant's affairs . . . A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action . . . A plaintiff should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to his case . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court's discretion . . . The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found . . . Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action . . ." (Citations omitted; internal quotation marks omitted). Id., 230 Conn. at 5-8.
In Berger the trial court had earlier stricken the Plaintiff's initial complaint because it had failed to allege a potential cause of action that was to be supported by the information sought as required by Pottetti v. Clifford, 146 Conn. 252 (1959). There the Court stated: "The law of discovery has been invested at times with unnecessary mystery. There are few fields where considerations of practical convenience should play a larger role. The rationale of the remedy, when used as an auxiliary process in aid of trials at law, is simplicity itself. At times, cases will not be proved, or will be proved clumsily or wastefully, if the litigant is not permitted to gather his evidence in advance. When this necessity is made out with reasonable certainty, a bill in equity is maintainable to give him what he needs . . . There were other reasons in times past, when parties were not permitted to be witnesses, and when there was no compulsory process for the production of books or documents . . . Today the remedy survives, chiefly, if not wholly, to give facility to proof . . . The right to a discovery, however, does not extend to all material facts but only to those which pertain to a party's cause of action or defense. Discovery cannot be used to pry into the opposing party's case or to find out the evidence by which that case will be supported . . . Discovery does not sanction impertinent intrusion, and there must be a showing of good faith and probable cause . . . In passing upon the bill, the court exercises a discretionary power within recognized limits . . ." (Citations omitted; internal quotation marks omitted.) Id., 146 Conn. at 258-59 (1959).
More recently, in Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 681-2 (2002), the Court reiterated what it said in Berger that it is necessary for a plaintiff who brings a bill of discovery to demonstrate probable cause to bring a potential cause of action and whether the particular facts alleged constitute probable cause is a question of law (quoting McMahon v. Florio, 147 Conn. 704, 707 (1960)).
Reviewing the allegations of the petition here against the standards set forth in the case law, the facts alleged in the petition do not constitute probable cause to bring a cause of action against the Defendants. The facts alleged, although certainly tragic, would not lead one to believe that the Plaintiffs have reasonable grounds to pursue a malpractice action against any or all of the Defendants. The Plaintiffs allege that they have reason to believe that the Defendants failed to deliver the infant in a timely and professional manner and that such delay and delivery injured or harmed her and resulted in her life-threatening and abnormal condition, but they do not allege any facts which form the basis for this belief. From the bare allegations of the petition, it appears that the Plaintiffs are seeking to use the bill of discovery process as a means of investigating whether or not they have a cause of action and not one for seeking evidence otherwise not available to them to support an action they already have probable cause to bring. As the court in Berger stated: "the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action." Berger v. Cuomo, 230 Conn. 1, 7-8 (1994).
The Plaintiffs argue that the standard for granting a bill of discovery in a medical malpractice case must be less than probable cause in light of the provisions of General Statutes § 52-190a which require that a Plaintiff's attorney in a medical malpractice case have a good faith belief that there has been negligence in the care or treatment of the claimant before instituting suit. The Plaintiffs argue that a "good faith belief" is a lesser standard than "probable cause" and thus a lesser standard than probable cause is required to prevail on a petition for a bill of discovery related to a medical malpractice case than to other litigation. The case law, however, does not support such a claim. In fact, arguably the good faith standard is equivalent to probable cause which the court held in Berger "is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action." Similarly in Pottetti the Court stated that "[d]iscovery does not sanction impertinent intrusion, and there must be a showing of good faith and probable cause."
In conclusion, for the reasons stated above the court finds that the petition fails to allege sufficient facts to demonstrate probable cause to believe that the Plaintiffs have a potential cause of action against the Defendants and therefore the Motion to Strike is granted.
Jane S. Scholl, J.