Opinion
No. X07 CV 07 5012152 S
February 11, 2009
MEMORANDUM OF DECISION
The plaintiff, Vayle Nelson, through her parents and next friends, Susan Birk and Glen Nelson, moves to reargue the motion for summary judgment of John Dempsey Hospital and the University of Connecticut Health Center (collectively, the state defendants) that was granted by this court on November 13, 2008. The state defendants moved for summary judgment based on lack of subject matter jurisdiction and argued that the claims commissioner did not have the authority to vacate the dismissal of the plaintiff's claim or to reopen it. This court agreed.
Among the plaintiff's arguments in her memorandum in opposition to the motion for summary judgment was her assertion that the claims commissioner had the authority to rehear her claim pursuant to General Statutes § 4-156. Specifically, the plaintiff argued that her compliance with discovery and submission of a good faith certificate — months after her claim had been dismissed for failure to prosecute — were new evidence. This court disagreed because the plaintiff could have provided the discovery compliance and good faith certificate if she had exercised reasonable diligence before her claim was dismissed. The plaintiff now moves for reargument on the ground that the court cannot reexamine the claims commissioner's decision to vacate the dismissal of the plaintiff's claim and reopen it as his decision was statutorily authorized by § 4-156. Oral argument on the motion to reargue was heard on February 4, 2009.
The statute, in relevant part, provides that "[u]pon the discovery of new evidence, any claimant aggrieved by an order of the Claims Commissioner rejecting or recommending the rejection of his claim, in whole or in part, may apply for rehearing . . ."
"New evidence" has long been defined as precluding that which could have been discovered through the exercise of due diligence. See Southard v. Russell, 57 U.S. 547, 560-61, 14 L.Ed. 1052 (1853); White v. Avery, 81 Conn. 325, 328, 70 A. 1065 (1908); Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 73-74, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003). Evidence previously available or that could have been made available is not new evidence. See, e.g., LaCroix v. Glens Falls Ins. Co., 107 Conn.App. 332, 339-40, 945 A.2d 489 (2008) (affirming trial court's finding that plaintiff had not sustained burden to show that she was entitled to new trial because "`new' evidence that [the plaintiff] sought to introduce in a new trial had been available at the time of the hearing in damages, but she failed to offer it by calling the physicians as witnesses or by offering supplements to the medical records"); see also Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1231 (11th Cir. 2002) (finding that district court did not abuse its discretion by denying defendant's motion to reconsider based on new evidence because defendant could have produced testimony of its employees prior to close of discovery period). In the present case, it is undisputed that the plaintiff could have provided discovery responses if she had exercised due diligence. Moreover, the plaintiff conceded that discovery responses could not be considered to be new evidence during oral argument on the motion to reargue.
Instead, the plaintiff argues that the court should distinguish discovery responses from the good faith certificate because the claims commissioner could have considered it to be new evidence since it did not exist before her claim was dismissed. Notwithstanding the fact that the claims commissioner made no findings to this effect, this is a distinction without a difference. At oral argument on the present motion, the plaintiff conceded that the good faith certificate had been the subject of a motion to dismiss filed by the state in the claim before the claims commissioner. The plaintiff contested the need to file such a document arguing that General Statutes § 4-160(b) is permissive rather than mandatory. See General Statutes § 4-160(b) ("[i]n any claim alleging malpractice against the state [or] a state hospital . . . the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a . . ."). The plaintiff did not argue, however, that she was unable to obtain it.
Ultimately, the plaintiff had a choice: provide a good faith certificate and the claims commissioner would be required to give her permission to sue under § 4-160(b) or answer discovery and proceed under General Statutes § 4-160(a). She did neither. Like the responses to discovery, which were the subject of a motion to comply, the good faith certificate was requested by the state defendants, contested by the plaintiff, in response to the state defendants' motion to dismiss, and debated by the parties. Thus, it is difficult to conceive of how the claims commissioner could have considered the good faith certificate to be "new evidence" — it, like responses to discovery, was simply what the plaintiff knew she was required to produce to continue to pursue her claim.
Additionally, as stated above, the test for new evidence is not only whether it existed before or was previously available; it is whether it could have been made available. In the present case, there is no reason to believe that it could not have been made available, as it was in fact requested and because, as mentioned previously, the plaintiff never argued to the claims commissioner that she was unable to obtain it, only that she was not required by § 4-160(b) to provide it. Regardless of whether it was "new," it is also doubtful that the good faith certificate could be considered to be "evidence." See General Statutes § 52-190a(a) ("[s]uch written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate . . .").
Furthermore, to find that compliance with discovery or provision of a good faith certificate after a dismissal could be considered to be new evidence would nullify the appeal procedure and its time limit found in General Statutes § 4-158(b). Any claimant could wait to comply with discovery or to produce a good faith certificate, for as long as they chose, then answer discovery, or submit a good faith certificate, whenever they elected — even after the claim had been dismissed — and call it "new evidence" in order to obtain a rehearing under § 4-156.
While this court may not review the merits of the claims commissioner's decision; see D'Eramo v. Smith, 273 Conn. 610, 618, 872 A.2d 408 (2005); that scenario does not present itself here. Notwithstanding the plaintiff's argument, nothing suggests that the claims commissioner's decision was based upon any new evidence pursuant to § 4-156. The claims commissioner's memorandum of decision, dated June 1, 2007, does not cite the statute or refer to new evidence. Indeed, he found that it would not be "just and equitable" to deny the plaintiff's claim. That reference, found in General Statutes § 4-160(a), does not constitute an expression of reliance upon § 4-156.
Moreover, as noted by the state defendants, if the claims commissioner relied upon § 4-156, he arguably needed to make findings of jurisdictional facts in order to set forth his jurisdiction over the dismissed claim. See Castro v. Viera, 207 Conn. 420, 433-34, 541 A.2d 1216 (1988) (finding that workers' compensation commissioner had duty to hold evidentiary hearing in order to determine whether he had subject matter jurisdiction because it was contested whether there was employer-employee relationship which was jurisdictional prerequisite to claim). That he did not do so is further indication that the claims commissioner did not base his decision on new evidence under § 4-156. In fact, the transcript of the hearing in front of the claims commissioner is devoid of any meaningful argument, much less any presentation of evidence, by the plaintiff that there was new evidence or that the good faith certificate was new. The plaintiff had the burden to present evidence from which the claims commissioner could conclude that he had subject matter jurisdiction. See id., 434 ("[t]he burden of adducing evidence to enable the commissioner to conclude that there was subject matter jurisdiction to bring this claim within the act was on the plaintiffs").
Of course, all of this ignores the fact that the claims commissioner stated that he had continuing jurisdiction because of his standard operating procedure of considering claims until he submitted them to the legislature at the beginning of the session. Nevertheless, as explained in the memorandum of decision of this court granting the motion for summary judgment, the claims commissioner was no longer required to submit all claims to the legislature as a result of Public Acts 2005, No. 05-170, which changed General Statutes § 4-159. Because of this alteration, the claims commissioner had no statutory or regulatory basis to retain jurisdiction over the dismissed claim. No other statute in the Claims Act, except potentially for § 4-156, gave him jurisdiction over the dismissed claim. In sum, because the issues of whether the claims commissioner had jurisdiction and of whether the good faith certificate was new evidence were contested, it seems essential that the claims commissioner needed to set forth findings of jurisdictional facts in order to make clear that § 4-156 was the basis for his exercise of jurisdiction over the dismissed claim.
Accordingly, the plaintiff's motion to reargue is granted and, upon reargument and reconsideration, the relief requested therein is denied.