Estate of John Curtis, Sr. v. Stuart Nerzig, et al (2010)

MEMORANDUM OF DECISION RE OBJECTION TO & MOTION TO STRIKE PLAINTIFF'S OFFER OF COMPROMISE # # 216 AND 235

Two of the defendants in this matter, Stuart Nerzig and Sidney Bogardus, Jr. (collectively, “the defendants”), have each filed an “objection to and motion to strike plaintiff's offer of compromise” (the objections).¹  For the following reasons, the objections are overruled.

This action was commenced on September 9, 2010.   The amended complaint, which is operative at this juncture, asserts claims for medical malpractice and loss of consortium against the defendants, who are both physicians, and is brought pursuant to the wrongful death statute, General Statutes § 52-555.²  On March 2, 2010, the plaintiff, Anne Curtis, executrix of the estate of John Curtis, the plaintiffs decedent, filed two offers of compromise one as to Nerzig and another as to Bogardus each in the amount of $975,000.   The following day, Nerzig filed one of the objections now before the court, and on March 19, 2010 Bogardus filed his own objection.   Both objections are essentially premised on the same two grounds:  first, that the plaintiff failed to properly disclose all standard of care experts in the manner required by General Statutes § 52-192a ³ and Practice Book § 17-14A,⁴ and second, that the plaintiff was required to seek and receive approval from the Probate Court before filing an offer of compromise, but failed to do so.   The next day, on March 4, 2010, the plaintiff filed a memorandum of law in response, arguing that she properly made all disclosures in the manner and form required by General Statutes § 52-192a and Practice Book § 17-14A, and that she was not required to receive Probate Court approval before filing the offer of compromise.   Thereafter, on March 8, 2010, Nerzig filed a reply memorandum of law, reiterating his earlier arguments.

As an initial matter, the court notes that, to the extent the defendants' motions ask the court to strike the offers of compromise, they are procedurally improper.  “Offers of [compromise] are not covered by [Practice Book] § 10-39 [which governs motions to strike] ․ An offer of [compromise] is neither a complaint, counterclaim or cross claim, nor an answer to any of those pleadings ․ Thus ․ [a] motion to strike is not a proper procedural vehicle to contest the plaintiff's offer of [compromise].”  (Internal quotation marks omitted.)   Hamilton v. Thorson, Superior Court, judicial district of Danbury, Docket No. CV 06 5001461 (July 12, 2008, Shaban, J.) (45 Conn. L. Rptr. 723, 724).   The proper mechanism by which to challenge the filing of an offer of compromise is an objection, and the court will treat the defendants' motions as such.  Id.

The defendants first argue that the plaintiff did not make the disclosure required by our General Statutes and rules of practice prior to filing the offer of compromise.   Specifically, General Statutes § 52-192a(b) requires that where an offer of compromise is made in a wrongful death action to recover damages, “[a]t least sixty days prior to filing ․ [the] offer, the plaintiff or the plaintiff's attorney shall ․ disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.”   It also requires the plaintiff to “file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”  Practice Book § 17-14A largely mirrors the language of § 52-192a(b) and includes the same requirements.   See footnote 4 of this memorandum of decision.

The defendants argue that the plaintiff did not properly disclose all standard of care experts.   In response, the plaintiff provided the court with a copy of a letter, dated November 11, 2009, in which five expert witnesses are listed and brief descriptions of their expected testimony are provided.   The letter also provides each expert's contact information and lists their employers.   Neither defendant contests the validity of this letter or the date upon which it was sent.   Rather, they argue that the letter does not comply with the disclosure requirements at issue because it is not sufficiently formal and is incomplete.   The court disagrees, as it has reviewed the letter in question and finds that it sufficiently discloses the standard of care experts listed therein.

Nerzig also argues that the disclosure was inadequate because the term “disclosure” itself “triggers the opposing party's right to depose such experts,” and he contends that, at the time his objection was filed, the plaintiff's counsel “explicitly refused to permit depositions of any of these experts.”   The proper way to address such an issue, however, is to seek an extension of time to respond to the offer of compromise so that depositions can be taken before deciding whether to accept or decline the offer.   See, e.g., Koutrakos v. Hanson, Superior Court, judicial district of Fairfield, Docket No. CV 07 5008111 (December 1, 2008, Bellis, J.) (46 Conn.L.Rptr. 726, 727-28) (compelling equitable reasons-including plaintiff's refusal to allow depositions of expert witnesses may justify extension of otherwise mandatory time frame in which defendant may accept offer of compromise;  however, court does not have “authority or reason to sustain a blanket objection to the offer of compromise”).

Finally, the defendants argue that the plaintiff was required to seek and receive approval from the Probate Court before filing her offer of compromise.   In support of this position, they cite several extra-jurisdictional decisions that stand for the proposition that a parent or guardian may not settle, waive, release or otherwise compromise claims belonging to a minor or incompetent person without approval of a court of competent jurisdiction.⁵  These cases are all inapposite to the situation at hand.   The defendants have not cited, and the court has not found, any Connecticut authority that requires the executrix of an estate to receive approval from the Probate Court before filing an offer of compromise in a wrongful death action pending in the Superior Court.⁶

For the foregoing reasons, the defendants' objections to the plaintiff's offers of compromise are overruled.

Rodriguez, J.

FOOTNOTES

FN1. Nerzig is joined in his motion to strike by two other defendants, Stephen Spear and Stephen M. Spear, M.D. and Stuart A. Nerzig, M.D. P.C. However, the offer of compromise in question was addressed only to Nerzig..  FN1. Nerzig is joined in his motion to strike by two other defendants, Stephen Spear and Stephen M. Spear, M.D. and Stuart A. Nerzig, M.D. P.C. However, the offer of compromise in question was addressed only to Nerzig.

FN2. General Statutes § 52-555 provides in relevant part as follows:  “(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of ․ “.  FN2. General Statutes § 52-555 provides in relevant part as follows:  “(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of ․ “

FN3. General Statutes § 52-192a provides in relevant part as follows:  “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than [180] days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain ․ The plaintiff shall give notice of the offer of compromise to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself.   Within thirty days after being notified of the filing of the offer of compromise and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise.   Upon such filing and the receipt by the plaintiff of such sum certain, the plaintiff shall file a withdrawal of the action with the clerk and the clerk shall record the withdrawal of the action against the defendant accordingly.   If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled.   Any such offer of compromise and any acceptance of the offer of compromise shall be included by the clerk in the record of the case.“(b) In the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to subsection (a) of this section shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages ․”.  FN3. General Statutes § 52-192a provides in relevant part as follows:  “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than [180] days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiff's attorney, directed to the defendant or the defendant's attorney, offering to settle the claim underlying the action for a sum certain ․ The plaintiff shall give notice of the offer of compromise to the defendant's attorney or, if the defendant is not represented by an attorney, to the defendant himself or herself.   Within thirty days after being notified of the filing of the offer of compromise and prior to the rendering of a verdict by the jury or an award by the court, the defendant or the defendant's attorney may file with the clerk of the court a written acceptance of the offer of compromise agreeing to settle the claim underlying the action for the sum certain specified in the plaintiff's offer of compromise.   Upon such filing and the receipt by the plaintiff of such sum certain, the plaintiff shall file a withdrawal of the action with the clerk and the clerk shall record the withdrawal of the action against the defendant accordingly.   If the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled.   Any such offer of compromise and any acceptance of the offer of compromise shall be included by the clerk in the record of the case.“(b) In the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to subsection (a) of this section shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages ․”

FN4. Practice Book § 17-14A provides:  “In the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”.  FN4. Practice Book § 17-14A provides:  “In the case of any action to recover damages resulting from personal injury or wrongful death, 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, an offer of compromise pursuant to Section 17-14 shall state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.   At least sixty days prior to filing such an offer, the plaintiff or the plaintiff's attorney shall provide the defendant or the defendant's attorney with an authorization to disclose medical records that meets the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) (HIPAA), as amended from time to time, or regulations adopted thereunder, and disclose any and all expert witnesses who will testify as to the prevailing professional standard of care.   The plaintiff shall file with the court a certification that the plaintiff has provided each defendant or such defendant's attorney with all documentation supporting such damages.”

FN5. See Leslie v. Estate of Tavares, 984 P.2d 1220 (Haw.1999);  Whitcomb v. Dancer, 443 A.2d 458 (Vt.1982);  Julian v. Zayre Corp., 388 A.2d 813 (R.I.1978);  Smith v. YMCA of Benton Harbor/St.   Joseph, 550 N.W.2d 262 (Mich.Ct.App.1996), cert. denied, 558 N.W.2d 733 (Mich.1997);  Gomez v. Maricopa County, 857 P.2d 1323 (Ariz.Ct.App.1993);  Castro v. Boulevard Hospital, 483 N.Y.S.2d 65, 106 App. Div.2d 539 (1984);  Walker v. Stephens, 626 S.W.2d 200 (Ark.Ct.App.1981);  Ballard v. Hunter, 184 S.E.2d 423 (N.C.Ct.App.1971), cert. denied, 185 S.E.2d (1972)..  FN5. See Leslie v. Estate of Tavares, 984 P.2d 1220 (Haw.1999);  Whitcomb v. Dancer, 443 A.2d 458 (Vt.1982);  Julian v. Zayre Corp., 388 A.2d 813 (R.I.1978);  Smith v. YMCA of Benton Harbor/St.   Joseph, 550 N.W.2d 262 (Mich.Ct.App.1996), cert. denied, 558 N.W.2d 733 (Mich.1997);  Gomez v. Maricopa County, 857 P.2d 1323 (Ariz.Ct.App.1993);  Castro v. Boulevard Hospital, 483 N.Y.S.2d 65, 106 App. Div.2d 539 (1984);  Walker v. Stephens, 626 S.W.2d 200 (Ark.Ct.App.1981);  Ballard v. Hunter, 184 S.E.2d 423 (N.C.Ct.App.1971), cert. denied, 185 S.E.2d (1972).

FN6. In his memorandum of law, Nerzig also contends that the plaintiff did not file a certification attesting that the defendants were provided with all documentation supporting the claimed damages.   However, the court's review of the record reveals that these certifications were filed by the plaintiff on March 4, 2010..  FN6. In his memorandum of law, Nerzig also contends that the plaintiff did not file a certification attesting that the defendants were provided with all documentation supporting the claimed damages.   However, the court's review of the record reveals that these certifications were filed by the plaintiff on March 4, 2010.

Rodriguez, Eddie, J.