William Mara et al. v. Karen Otto (2009)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 148.00)

I. Background

William Mara, a dentist with a specialty in periodontics, and his wife, Suzan Mara, a dental hygienist, brought suit against Karen Otto, a former patient of Dr. Mara, alleging defamation of Dr. Mara and loss of consortium by Mrs. Mara. The matter arises out of statements made by Otto to the Greenwich Police Department that Dr. Mara sexually assaulted her while she was in Dr. Mara's office as a patient.   The Greenwich Police Department declined to prosecute Dr. Mara.

Otto's motion for summary judgment dismissing the Maras' Revised Complaint in its entirety is based on the following contentions:  (1) Otto's statements to the police are protected by a qualified immunity;  (2) Dr. Mara suffered no damage to his reputation, and (3) if Dr. Mara's claims fail, so must Mrs. Mara's claim of loss of consortium since it is a derivative claim.   The Maras' opposition papers contend that one must infer malice by Otto because of the nature of her accusations thereby negating any qualified immunity.   They also contend that Dr. Mara suffered reputational injury and therefore neither Count One (defamation) and Count Two (loss of consortium) should be dismissed on summary judgment.

II. Scope of Review

Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1998).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Facts

The following facts are undisputed.   Dr. Mara treated Otto regularly and often for several years prior to September 2004.   On September 26, 2004, a Sunday, Otto requested an emergency appointment with Dr. Mara who saw her later that day.   Later that week Otto went to the Greenwich Police Department and told a detective that during the September 26, 2004 appointment she was given nitrous oxide, and when the effects of nitrous oxide wore off, she realized Dr. Mara had placed his penis in her hand and was masturbating.   Otto also gave the police a written statement to this effect.   During its investigations, the police administered a lie detector test to Dr. Mara. On January 22, 2005 the police advised Otto there would be no prosecution of Dr. Mara.

IV. Defamation Claim

A. Injury to Reputation

Under Connecticut law the elements of a defamation claim are:  (1) a defamatory statement by the defendant, (2) which identified the plaintiff to a third person, (3) was published to a third person, and (4) the plaintiff's reputation suffered injury as a result of the statement.  Cweklinsy v. Mobil Chemical Co., 267 Conn. 210, 217 (2004).   See also Craig v. Colonial Penn Insurance Co., 335 F.Sup.2d 296, 312 (D.Conn.2004) (applying Connecticut law and quoting Cweklinsky ).   A defamatory statement is defined as a communication that tends to harm the reputation of another.  Cweklinsky, supra, 267 Conn. 217.   In Miles v. Perry, 11 Conn.App. 584 (1987) the Appellate Court described “harm to reputation” as a necessary element of a defamation cause of action.   Id., 601 n.11. A compendium of legal authority has noted that Connecticut is one of several jurisdictions requiring proof of injury to reputation as a prerequisite to recovery for defamation and without it there is no valid claim for defamation.   50 Am.Jur.2d, Libel and Slander, § 368 (2006) (citing Miles v. Perry ).

Otto contends that Dr. Mara cannot prove a necessary element of his defamation claim because at his deposition in 2006, he stated he was not claiming injury to his reputation.   Specifically, at that time, he was asked the following questions and under oath gave the following answers:

Q. Do any of the dentists that you have identified know about the criminal investigation?

A. Not to my knowledge.

Q. Are you aware of anyone who no longer refers patients to you as a result of the allegations made by Ms. Otto or the fact that you were the subject of a criminal investigation?

[Dr. Mara asked for the question to be repeated.]

A. The answer would be no.

Q. You are not claiming that your reputation has suffered any damage as a result of the allegations made by Ms. Otto, is that correct?

A. Correct.

Nevertheless, Dr. Mara has revised his view as to whether he suffered reputational injury.   In his initial affidavit in opposition to summary judgment, he stated “[a]s a result of Karen Otto's false complaint to the Greenwich Police Department my practice has suffered, and my income has dropped dramatically.”   William Mara Affidavit, October 29, 2009, ¶ 12.   Subsequently, in a later affidavit, Dr. Mara stated:  “On July 31, 2006, at my first deposition, I was not fully aware of the harm done to my reputation.   I am now fully aware of the harm done to my reputation and practice because of Ms. Otto's false accusations.   I get very few referrals from my previous referral base.   As a result of Ms. Otto's false statements, our house is in foreclosure, and my wife and I have filed for bankruptcy.”   William Mara Affidavit, November 20, 2009, ¶¶ 14-15.   While these later statements are hardly dispositive, they at least contradict what Dr. Mara said at his deposition and provide on their face, some evidentiary support that his reputation suffered from Otto's statements.   The court determines that the affidavits are sufficient to at least create a genuine issue of fact as to whether there was injury to Dr. Mara's reputation from Otto's statements, and the existence of such injury is very material in this case.   Summary judgment cannot be granted on this record.

B. Qualified Immunity

The Connecticut Supreme Court has discussed at length and recognized that a citizen's statements to the police in reporting possible criminal activity are granted the protection of a qualified immunity in later defamation actions.   Gallo v. Barile, 284 Conn. 459, 471-73 (2007).   Qualified immunity “protects false statements that are not made maliciously.”   Id., 464 n.6. The malice required “is actual malice or malice in fact.”  Id., (quoting Hopkins v. O'Connor, 282 Conn. 821, 845 (2007).   Actual malice requires that the statement be made with actual knowledge that it was false or reckless disregard of whether it was false.   Malice in fact, is sufficiently shown when there is proof the statement was made with improper or unjustifiable motives.  Id. The qualified immunity for statements made to police investigators has long been recognized in Connecticut.   See Flanagan v. McLane, 87 Conn. 220, 223-24 (1913) (statement of defendant to Town Constable accusing plaintiff of theft);  Petyan v. Ellis, 200 Conn. 243, 252 (1986).   Communications of this nature have been granted a qualified immunity by a great number of states.   See authorities cited in Gallo v. Barile, supra, 284 Conn. 472-73.

Otto contends that her statements to the Greenwich police were truthful and not malicious.   Otto Affidavit, September 18, 2009, ¶ 6 (Dkt. Entry 151.10).   In opposition to the motion for summary judgment, the Maras contend that a jury could infer malicious intent because Otto's statements were false, outrageous, accused Dr. Mara of committing a crime of moral turpitude and, since they were given to the police, could be expected to cause injury.   Plaintiff's Opposition to Summary Judgment (Dkt. Entry 161.00). 1. Dr. Mara states in his first affidavit that Otto's statements are “completely false,” a “fabrication” and that he “passed” a lie detector test during the investigation.   William Mara Affidavit, October 29, 2009, ¶¶ 7, 10.   In their memorandum the Maras assert that a jury must decide the immunity issue when the facts are in dispute, citing Oliveira v. Mayer, 23 F.3d 642 (2d Cir.1994).

At oral argument of this motion on November 16, 2009, the plaintiffs were provided an additional time to submit additional affidavits and memoranda in connection with their opposition.   Additional papers were filed on November 20, 2009 (Dkt. Entry 165.10) including a second affidavit of William Mara and a memorandum of law.   The second William Mara affidavit, dated November 20, 2009, provided no information on the issue of malice, although, as noted, new assertions were made as to damage to reputation.   In the Maras' second memorandum, also dated November 20, 2009, it is asserted that by the nature of Otto's accusations and the fact that she made them to the police “a jury could easily and justifiably find that the defendant intended to defame and injure Dr. Mara.”

In this case, the plaintiffs have provided no evidentiary foundation for a jury to conclude that Otto's statements to the police were the product of actual malice.   The two memoranda simply state that because Otto's statements were false and potentially highly injurious, there must be an inference of malice.   No authority is cited for this proposition.  Oliveira v. Mayer, supra, involved a qualified immunity sometimes available to police officers during the performance of their duties-a different immunity involving different proof than the qualified immunity sought by the defendant Otto.

No admissible evidence has been presented or disclosed in opposing the summary judgment motion that Otto acted with actual malice, unjustifiably or improperly.   See Maffucci, supra, 243 Conn. 254.   Nothing in either of Dr. Mara's affidavits is evidence of malice, and no sworn deposition testimony supporting a finding of malice has been presented.   Indeed, Dr. Mara, at his deposition, stated he did not know why Otto said what she said, and merely hypothesized that the nitrous oxide might have caused the problem.   William Mara Deposition, July 31, 2006, pp. 182-83, attached as Exhibit A to Affidavit of James Riley of November 12, 2009 (Dkt. Entry 163.00).

The Connecticut Supreme Court has held “that even with respect to questions of motive, intent, and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”  Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250 (1992).   In a case involving the existence, or not, of malice, the Connecticut Appellate Court has stated:

[i]n opposing summary judgment, the plaintiff relies on his own conclusory statements and personal assessment of the motives of the defendants in attempting to demonstrate that a “genuine issue as to any fact exists.”   Practice Book § 17-49.   The plaintiff's opinions and assertions about the motives of the defendants, however, are not sufficient to establish “facts as would be admissible in evidence,” as required by Practice Book § 17-46.

Chadha v. Charlotte Hungerford Hospital, 97 Conn. 527, 540 (2006).   Here, neither of the plaintiffs has provided by affidavit, deposition transcript, or by any other means, any factual predicate supplied by them, or any other source, for the assertion that Otto's statements were made maliciously.   Therefore, the court concludes that summary judgment should be granted dismissing Count One of the Revised Complaint alleging defamation.

To the extent that Count One may be construed as a claim for intentional infliction of emotional distress, the same qualified immunity attaches to Otto's statements to the police.  Gallo v. Barile, supra, (the court dealt with a judgment on defamation and intentional infliction of distress claims, holding that a qualified immunity applies);  See also Petyan v. Ellis, supra, 200 Conn. 254-55 (a privilege can defeat a claim for intentional infliction of emotional harm).   Therefore, Count One is dismissed even if it might be considered something more, or different, than a claim of defamation.

V. Loss of Consortium

Count Two of the Revised Complaint alleges a cause of action by Suzan Mara for loss of consortium.   Such a claim is derivative in nature, and the right to pursue it depends on the viability of the predicate claim-in this case the defamation claim by Dr. Mara. “The derivative action cannot afford greater relief liability-wise than would be permitted under the predicate action.”   Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 556 (1989).   Therefore, having found Count One deficient, the court also dismisses Count Two, the loss of consortium claim.   See Cypher v. Danbury Motel Association, Superior Court, judicial district of Danbury, CV 07 5002571 (December 12, 2008, Shaban, J.)

VI. Conclusion

For the reasons stated above the motion for summary judgment is granted, and the Revised Complaint dismissed.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

Adams, Taggart D., J.