Opinion
No. CV 07 5008525S
March 31, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #155
FACTS
On January 10, 2007, the plaintiffs, Susan Millen and James Millen, filed the present medical malpractice action against the defendants, John Beiner, M.D. and Connecticut Orthopaedic Specialists, P.C. (COS). In their four-count revised complaint, dated November 13, 2008, the plaintiffs allege that Beiner, a physician specializing in orthopaedic and spinal surgery, negligently administered an epidural steroid injection into Susan Millen's spine by "failing to exercise the degree of care and skill ordinarily exercised by physicians in this specialty of the medical profession." The plaintiffs further allege that COS is vicariously liable for Beiner's negligence. In counts one and two, Susan Millen alleges claims for professional negligence. In counts three and four, James Millen alleges claims for loss of consortium. Pursuant to General Statutes § 52-190a(a), the original complaint included the written opinion of a board certified anesthesiologist and pain medicine physician concluding that there may be evidence of medical negligence on the part of Beiner in his medical management, care and treatment of Susan Millen.
On October 1, 2010, the defendants filed a motion to dismiss the plaintiffs' claims on the ground that the opinion letter attached to the original complaint was not written by a similar healthcare provider as required by § 52-190a(a). The motion is accompanied by a memorandum of law. On October 20, 2010, the plaintiffs filed an objection to the defendants' motion to dismiss. Thereafter, the parties filed subsequent reply briefs. The matter was heard at short calendar on January 3, 2011.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). Nevertheless, "[b]oth statutory and Practice Book provisions provide for dismissals on the basis of nonjurisdictional grounds." Rios v. CCMC Corp., 106 Conn.App. 810, 821 n. 8, 943 A.2d 544 (2008) (citing General Statutes §§ 52-549t(b) and 33-724(a), and Practice Book § 13-14). Subsection (c) of § 52-190a provides: "The failure to obtain and file the written opinion required by subsection (a) of [§ 52-190a] shall be grounds for the dismissal of the action." Therefore, "the grant of a motion to dismiss, rather than a motion to strike, is the proper statutory remedy for deficiencies under § 52-190a . . ." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011).
The Appellate Court has suggested that defendants may waive the requirements of § 52-190a. See Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 586, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). "Although the defendants might have waived this statutory requirement enacted for their benefit, they did not do so, and because the court properly found that the complaint did not contain the statutorily required written opinion, as the plaintiff here concedes, we affirm the court's decision [dismissing the action]." Id. There is no appellate authority, however, that provides under what circumstances a defendant may be deemed to have waived the requirements under § 52-190a.
The plaintiffs argue, however, that the defendants have waived their right to file a motion to dismiss because: (1) they have failed to follow the appropriate rules of practice under Practice Book § 10-6, regarding the order of pleadings, and Practice Book § 10-30, regarding the time frame for filing a motion to dismiss; and (2) they are barred under the equitable principles of waiver. In response, the defendants counter that motions to dismiss based on § 52-190a do not implicate the court's jurisdiction over the defendants and, therefore, are exempt from the rules of practice. The defendants further argue that they have not waived their right to challenge the adequacy of the opinion letter under the equitable principles of waiver because the basis for their challenge was not known to them until "[l]ong after the plaintiffs initial [c]omplaint had been filed." The plaintiffs respond that § 52-190a implicates the court's personal jurisdiction and, therefore, is subject to the rules of practice, and that the defendants argument in opposition to the application of the equitable principles of waiver "is disingenuous and without merit."
In any event, the defendants contend that the plaintiffs have failed to set forth all their arguments in their original objection, most notably, the plaintiffs' argument that the defendants are barred from filing a motion to dismiss under the equitable principles of waiver. In this regard, the defendants argue that "it is well settled law in this jurisdiction that issues raised for the first time in a reply brief are considered abandoned." In Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378 n. 6, 3 A.3d 892 (2010), which the defendants relied upon for this proposition, the Supreme Court declined to consider a claim of error from the trial court, however, made by the plaintiff in her reply brief. While a few decisions of the Superior Court have adopted this language with regard to motions made before the Superior Court, these decisions declined to consider additional grounds or claims made in a reply memorandum in support of a motion. See Maryland Casualty Co. v. DNR Painting Co., LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4012459 (February 17, 2009, Pavia, J.); Kaltsas v. Kaltsas, Superior Court, judicial district of Middlesex, Docket No. CV 07 4007142 (January 8, 2008, Holzberg, J.) ( 44 Conn. L. Rptr. 726). Nevertheless, the plaintiffs have sufficiently set forth, in their objection, their arguments that the defendants have waived their right to file a § 52-190a motion to dismiss. The plaintiffs' subsequent surreply and surrebuttal merely expound upon the arguments raised in their objection. Therefore, the court will address the plaintiffs' arguments for waiver as delineated above.
I. PRACTICE BOOK WAIVER
Two provisions under the rules of practice provide for waiver of the right to file a motion to dismiss: Practice Book §§ 10-32 and 10-7.
A. Practice Book § 10-32
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Practice Book § 10-6 sets forth the order of pleadings and provides that the first pleading after the plaintiff's complaint shall be the defendant's motion to dismiss. Practice Book § 10-30, provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." Therefore, "thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). Nevertheless, "the Connecticut Supreme Court has held that the timing requirement of [Practice Book] § 10-32 is inapplicable to a motion to dismiss based on a ground not explicitly stated in that section." Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 502 6454 (December 4, 2009, Wilson, J.) ( 49 Conn. L. Rptr. 162, 164). For example, in Durkin v. Intevac, Inc., 258 Conn. 454, 480, 782 A.2d 103 (2001), the Supreme Court concluded that "Practice Book §§ 10-30 and 10-32 are inapplicable to motions to dismiss on the ground of forum non conveniens because such a motion does not contest the court's jurisdiction." (Emphasis added.)
The Appellate Court has had an opportunity to consider whether § 52-190a implicates a court's jurisdiction. In Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 583, the Appellate Court stated that "the failure to comply with § 52-190a(a) is not a jurisdictional defect." More specifically, however, the Appellate Court concluded that "[a] plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action." (Emphasis added.) Id. As a result, there is no appellate authority that considers whether § 52-190a implicates a court's personal jurisdiction. The Appellate Court has indicated, however, that "[d]ismissal pursuant to [§ 52-190a] is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading." (Emphasis added.) Id., 583-84.
Nevertheless, "[o]ur Supreme Court has on at least one occasion found that a statutory provision, not explicitly listed in [Practice Book] § 10-32, nonetheless implicates personal jurisdiction." Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) ( 50 Conn. L. Rptr. 199, 201). In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 33, 848 A.2d 418 (2004), the Supreme Court determined that General Statutes § 52-102b implicates personal jurisdiction because it is a service provision. In reaching this conclusion, the Supreme Court stated that "§ 52-102b is replete with references to service of process, through the use of the term `serve'" and "in addition to the language suggestive of service of process, § 52-102b ties the 120 day window to the return date, a device primarily concerned with matters related to service of process." Id.
There is a split of authority in the Superior Court as to whether § 52-190a implicates a court's personal jurisdiction. Section 52-190a(a) provides in relevant part: "No civil action . . . shall be filed to recover damages resulting from personal injury . . . 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 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 . . . shall contain a certificate 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 . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . ."
In Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164, the court concluded that a motion to dismiss under § 52-190a is not subject to Practice Book § 10-32 because it is not expressly listed therein and, under Votre, it is not jurisdictional. In Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 201, the court distinguished Votre and concluded that "[a]ltogether, the requirement that the written opinion be attached to a plaintiff's complaint, the defendant-specific requirements for the contents of the opinion, the remedy of dismissal for a failure to file the required opinion and Votre's acknowledgment that the requirements of § 52-190a may be waived persuade the court that the issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant."
C.G.S. § 52-190a does not implicate a court's personal jurisdiction. While the Appellate Court in Votre specifically considered whether § 52-190a(a) implicates a court's subject matter jurisdiction, it also stated more generally that "the failure to comply with § 52-190a(a) is not a jurisdictional defect." Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 583. Furthermore, the Appellate Court has stated that dismissal under § 52-190a is a "statutory remedy." Id., 583-84. Moreover, under § 52-190a(a), there is no reference to "service" that would render it a service provision.
To the contrary, in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), the Supreme Court considered an earlier version of § 52-190a that did not require a written opinion letter or include the language under § 52-190a(c), which mandates dismissal. In considering this earlier version of § 52-190a, the Supreme Court viewed "the statutory requirement that the complaint contain a good faith certificate as a pleading necessity akin to an essential allegation to support a cause of action." Id., 711. The Supreme Court went on to conclude that "the absence from the complaint of the statutorily required good faith certificate renders the complaint subject to a motion to strike . . ." Id. Since LeConche, however, § 52-190a has been amended to require a written opinion letter under § 52-190a(a) and mandate dismissal for the failure to obtain and file a written opinion letter under § 52-190a(c). See Public Acts 2005, No. 05-275. The purpose of the written opinion letter is to substantiate the good faith certificate. See General Statutes § 52-190a(a). Therefore, in light of LeConche, the written opinion letter is merely an essential allegation to support a cause of action, namely that there is a good faith belief that a cause of action exists, to which there is a "statutory remedy" of dismissal under § 52-190a(c). As a result, the timing requirement under Practice Book §§ 10-30 and 10-32 is inapplicable to the defendants' § 52-190a motion to dismiss.
Nevertheless, unlike Practice Book § 10-30, Practice Book § 10-6 is not limited to jurisdictional challenges. Furthermore, the requirements under Practice Book § 10-6 are incorporated into other provisions of the rules of practice other than Practice Book § 10-32. See Practice Book § 10-7. As a result, the court will consider the order of pleadings requirement under Practice Book § 10-6, as incorporated by reference into Practice Book § 10-7.
B. Practice Book § 10-7
Practice Book § 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [Practice Book § 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." (Emphasis added.) Practice Book § 10-6 sets forth the order of pleadings and provides that the first pleading after the plaintiff's complaint shall be the defendant's motion to dismiss followed in order by the defendant's request to revise, the defendant's motion to strike and the defendant's answer. "[G]enerally, pleadings are not to be filed out of the order specified in [Practice Book § 10-6], and the filing of a pleading listed later in the order set out by [Practice Book § 10-6] waives the right to be heard on a pleading that appears earlier on the list." Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989).
"The very words of [Practice Book § 10-7], `when the court does not otherwise order' indicate, however, that the court has discretion to allow the filing of pleadings out of order. [Practice Book § 1-8] supports this view . . ." Id. Practice Book § 1-8 provides: "The design of [our rules of practice] being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
For example, a number of "non-jurisdictional motions to dismiss could be filed outside of the order of pleadings, such as those permitted by § 52-549t(b) and Practice Book § 14-3." Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164 n. 11. These provisions are distinguishable from § 52-190a, however. Practice Book § 14-3 concerns dismissal for lack of diligence. By its plain reading, a motion to dismiss would not be warranted unless a party "shall fail to prosecute an action . . ." Practice Book § 14-3. A party's failure to prosecute an action could occur at any time during the order of pleadings, and thus, it would be "unjust" to prohibit a party from filing a valid motion to dismiss based on the failure to comply with the order of pleadings under Practice Book §§ 10-6 and 10-7. Section 52-549t(b) concerns dismissal for failure to appear at a hearing. Again, a party's failure to appear at a hearing could occur at any time during the order of pleadings.
With regard to § 52-190a, a motion to dismiss must be filed within the order of pleadings under Practice Book § 10-6. Practice Book § 10-7 expressly provides that the order of pleadings requirement applies in "all cases." See Sabino v. Ruffolo, supra, 19 Conn.App. 402 (Practice Book §§ 10-6 and 10-7 apply to nonjurisdictional grounds such as forum nonconveniens). Moreover, unlike a motion to dismiss under § 52-549t(b) or Practice Book § 14-3, a thorough examination of an opinion letter would provide a defendant with sufficient information to determine whether there has been a violation of § 52-190a(a) at the outset of the case and before any subsequent pleadings would be required. While the court in Wightman concluded that the order of pleadings requirement under Practice Book §§ 10-6 and 10-7 did not apply to a § 52-190 a motion to dismiss, in that case the only filing prior to the motion to dismiss was a request to revise, which the "defendants attempted to withdraw . . . [and] which was never brought before the court for adjudication." Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164.
In the present case, the plaintiffs' original complaint was filed on January 10, 2007. On March 27, 2007, the defendants filed a request to revise the plaintiffs' complaint. On September 9, 2008, the defendants filed a subsequent request to revise the plaintiffs' complaint. On December 9, 2008, the defendants filed an answer to the plaintiffs' revised complaint. On October 1, 2010, the defendants filed a motion to dismiss. Therefore, the defendants have failed to comply with the order of pleadings under Practice Book § 10-6.
The defendants argue, however, that at the time the plaintiffs filed their original complaint, the appellate courts of this state had not yet addressed the issue raised by the defendants, but that in Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 979 A.2d 1076 (2009), aff'd, 300 Conn. 1, 979 A.2d 1066 (2011), the Appellate Court shaped the parameters of the term similar healthcare provider and made it clear that the opinion letter author in this case does not qualify as a similar healthcare provider with respect to Beiner. The defendants argument in unavailing. Even assuming that the Appellate Court's decision in Bennett supports a motion to dismiss in the present case, the defendants were not without authority to challenge the sufficiency of the plaintiffs' opinion letter beforehand on the basis of statutory interpretation and Superior Court authority. More importantly, the defendants argument is weak in light of the fact that the Appellate Court released Bennett on October 13, 2009, almost a year prior to the date on which the defendants filed their motion to dismiss. Therefore, it would not "work surprise or injustice" to prohibit the defendants from filing their motion to dismiss after having already filed two requests to revise and an answer. While a court has discretion to allow the filing of pleadings out of order, there is no justifiable basis to do so and that, as a result, the defendants have waived their right to file a § 52-190a motion to dismiss under Practice Book §§ 10-6 and 10-7.
II. EQUITABLE WAIVER
"Decisions of the Superior Court have held that the trial court has a discretionary authority to deny § 52-190a motions to dismiss which are untimely or where other facts indicate waiver on equitable grounds." Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 203. "Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . [V]arious statutory and contract rights may be waived . . . Waiver is based upon a species of the principles of estoppel and where applicable it will be enforced as the estoppel would be enforced . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007).
In Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164, the court concluded that the defendants had not waived their right to file a motion to dismiss when it was filed four months after commencement of the suit. In Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 203, however, the court concluded that the defendants had waived their right to file a motion to dismiss when it was filed an entire year after the filing of the plaintiff's complaint.
In the present case, the defendants failed to comply with the order of pleadings under Practice Book §§ 10-6 and 10-7, and filed their motion to dismiss more than three years after the plaintiffs filed their original complaint and more than a year after the case was scheduled for trial. In addition, as previously stated above, the defendants' justification for their late filing of their motion to dismiss is unfounded. Therefore, the defendants have waived their right to file a § 52-190a motion to dismiss under the equitable principles of waiver.
CONCLUSION
For the foregoing reasons, the defendants have waived their right to file a § 52-190a motion to dismiss under Practice Book §§ 10-6 and 10-7 and under the equitable principles of waiver. As a result, the defendants' motion to dismiss is denied.