Sylvester Traylor Administrator of the Estate of Roberta Mae Traylor et al. v. Bassam Awwam, M.D. et al. (2011)

MEMORANDUM OF DECISION

In the main, this is a medical (psychiatric) malpractice wrongful death action.   It arises from the psychiatric treatment and eventual death of the late Roberta Mae Traylor.   It is claimed she committed suicide on March 1, 2004.

This case is contained in a very large file.   There are close to 500 file entries.   Confusion abounds.

There are two plaintiffs.   The first is Sylvester Traylor as Administrator of the Estate of his late wife, Roberta Mae Traylor.   Sylvester Traylor, in his individual and/or personal capacity, is also a plaintiff asserting loss of consortium claims.

The defendants are Bassam Awwa, M.D., a psychiatrist, and his professional corporation, Connecticut Behavioral Health Associates, P.C. It is alleged that Roberta Mae Traylor was a patient of the defendants.

The original Complaint, dated June 1, 2006 was signed by Sylvester Traylor.   Sylvester Traylor is not licensed to practice law.   That original Complaint did not have, as required by General Statutes § 52-190(a), a signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.   The Return Date was July 3, 2006.

When the original June 1, 2006 Complaint was returned to court and filed with the court clerk, the Complaint had attached to it a copy of a document entitled “PETITION TO THE CLERK OF THIS COURT FOR AN AUTOMATIC 90-DAY EXTENSION OF THE STATUTE OF LIMITATIONS” dated February 23, 2006.   The copy of the “Petition” indicated the original bore file stamps showing the “Petition had been filed with the court clerk on February 23, 2006.   This “Petition” was signed on behalf of the plaintiffs by Attorney Andrew J. Pianka of the law firm of Grady & Riley LLP. The clerk had granted the “Petition” on February 23, 2006.   The authority for the Petition and the time extension sought is contained in C.G.S. § 52-190a(b).  The whole justification for the 90-day extension is to obtain the good faith certificate the essential ingredient thereof being the written and signed opinion of a similar health care provider.   Plaintiffs (i.e., Sylvester Traylor in both his capacities) were well aware of the procedure for obtaining the extension of the statutes of limitations, and having obtained same, surely knew of the requirement of having a signed opinion of similar health care provider attached to the original complaint.

Between early July 2006 (when this case was returned) and early July 2010, pleading wise, there was no evident progress.   The case was stuck.   In July 2006 there was only the original complaint.   In early July 2010, 4 years into the case, there was only a complaint but no progress pleading wise beyond the complaint stage.   Although plaintiffs had filed amended or revised complaints, causing some skirmishes, no practical advancement of the pleadings occurred.   Throughout, plaintiffs' complaints seem largely whim-driven.

On December 1, 2009, this court issued an Order to Show Cause [348] ¹ premised on the then brand new case, Sophie Ellis, Executrix v. Jeffrey Jacobs, et al., 118 Conn.App. 211 (December 1, 2009).   Primarily, the Order to Show Cause required Sylvester Traylor to show why he, a non-lawyer, should not be barred from representing himself as Administrator of the Estate, and, in effect, from representing the Estate.   See Order to Show Cause, December 1, 2009.[348]  A hearing on the Order to Show Cause was held on December 21, 2009.

The facts recited in the December 1, 2009 Order to Show Cause were not disputed and indeed they could not be.

On December 21, 2009, the court, in open court, on the record, and in the presence of Sylvester Traylor, entered several orders.   Transcript of Proceedings, December 21, 2009.   The orders were:

On December 21, 2009, the court entered orders effective immediately as follows:

Mr. Sylvester Traylor cannot appear or represent the Estate of his late wife, Roberta Mae Traylor.   Transcript of Proceedings, December 21, 2009, p. 32.

Parties and counsel are to take no further action pending the court's specifically lifting this order.   Parties and counsel are not to submit anything for filing with the clerk until such time as an appearance by an attorney is filed on behalf of the Estate of Roberta Mae Traylor.   Anything submitted for filing with or by the clerk before an appearance is filed by an attorney for the Estate will be returned without its being filed.

The no-filing order applies to Mr. Traylor in both his individual capacity regarding his loss of consortium claims and also in his capacity as administrator of the Estate.   Transcript of Proceedings, December 21, 2009, p. 42.

Mr. Traylor as administrator of the Estate of Roberta Mae Taylor is allowed four months, until April 21, 2010, to have an attorney appear on behalf of the Estate.   If an attorney does not file an appearance by that date, case number CV 06 5001159 will be dismissed.   Transcript of Proceedings, December 21, 2009, p. 43.

Memorandum of Orders, February 5, 2010[354].

As time went on, despite the clarity of the order barring him from representing himself as Administrator and the Estate, Sylvester Traylor often filed papers purportedly on behalf of the Estate and, in court proceedings, tried to speak on behalf of the Estate, thus trying to represent himself as Administrator (i.e., the Estate).   His statements regarding Sophie Ellis, Executrix v. Jeffrey Jacobs, et al., demonstrate he has no understanding of the facts and holding thereof.   The court has treated papers he has filed for the Estate as having no force or effect.   Similarly, the court has not allowed him to speak on behalf of himself as Administrator or on behalf of the Estate during court proceedings.

The court allowed Sylvester Traylor, Administrator, four months, that is until April 21, 2010 to have an attorney enter an appearance for Sylvester Traylor, Administrator and upon failure of such an appearance, risk dismissal of the Estate's cause of action.²

On April 21, 2010, at 4:21 pm, the law firm, Hall Johnson LLC, entered appearances for both plaintiffs, namely, Sylvester Traylor as Administrator of the Estate of Roberta Mae Traylor, and for Sylvester Traylor in his individual and personal capacity for his claimed loss of consortium.

No one from Hall Johnson LLC ever looked at the court file before, on, or since April 21, 2010, and even to this date.   The file has been in the undersigned's chambers throughout.   Thus, Hall Johnson LLC's knowledge of the file is limited, only what Sylvester Traylor wants them to see.

After Hall Johnson LLC's appearance on April 21, 2010, there was no activity or word from Hall Johnson LLC for several weeks.

On May 18, 2010, the court ordered a scheduling conference for June 15, 2010.   See Order, May 18, 2010.[355]

The scheduling conference was held on June 15, 2010.   At that proceeding, Hall Johnson LLC, plaintiffs' counsel indicated they were preparing a new complaint which they believed would alleviate the conditions which had, for four years obstructed the progress of this case.   On June 21, 2010, this court issued an order which, among other things, provided:  “The plaintiff(s) may file an amended/revised complaint by no later than June 30, 2010.”   Scheduling Order, June 21, 2010[357], p. 1, ¶ 1.

On July 12, 2010, the plaintiffs filed their “Second Amended Complaint” dated July 12, 2010.[362] ³

“The Second Amended Complaint had eight counts.   The first six counts sounded in medical malpractice and wrongful death.   Two of the six counts were for loss of consortium on behalf of Sylvester Traylor in his individual or personal capacity.   The Seventh Count purports to be a spoliation of evidence cause of action.   The Eighth Count alleged a CUTPA violation, based on evidence spoliation set forth in the Seventh Count.   See Second Amended Complaint, July 12, 2010.[362]

On July 16, 2010, a Motion to Dismiss [366] the first six counts (the malpractice counts) was filed by defendants.   The Motion to Dismiss was based on the failure of the plaintiffs to have had attached to their original June 1, 2006 Complaint a letter of a similar health care provider stating there appeared to be medical negligence.   See Motion to Dismiss, July 16, 2010.[366]

Oral argument was held on July 28, 2010.   On July 29, 2010 the court granted the Motion to Dismiss without a memorandum. [366.03] The court dismissed counts 1-6, the malpractice, loss of consortium and wrongful death causes of action.   On August 11, 2010, the court issued a Memorandum of Decision regarding the Motion to Dismiss.   See Memorandum of Decision, August 11, 2010. [366.04]

The Supreme Court very recently affirmed the rationale upon which this court dismissed the six malpractice counts.   See Bennett v. New Milford Hospital, 300 Conn. 1 (January 5, 2011).

With the dismissal of Counts 1 through 6, only Counts Seven and Eight remained, the spoliation and CUTPA counts.

Defendants filed a Motion to Strike Count Seven which inadequately alleged the spoliation of evidence.   Motion to Strike Count Seven of Second Amended Complaint, August 10, 2010.[383]  The court granted the Motion to Strike.   Order, August 16, 2010. [383.01].

After (a) false start(s), Count Seven was amended to cure the deficiencies found by the court when granting the Motion to Dismiss.   See Revised Complaint, September 8, 2010.[416].

Defendants filed an Answer and Special Defense on September 13, 2010.   See Defendants' Answer to Plaintiffs' Second Revised Complaint (# 416) Dated September 8, 2010, September 13, 2010, p. 11.[421].

The Special Defense reads:

“Counts Seven and Eight of the plaintiffs' Revised Complaint dated September 8, 2010 is barred by the time limitations set forth in Connecticut General Statutes § 52-577, § 52-584 or both.”   See Defendants' Answer to Plaintiffs' Second Revised Complaint (# 416) Dated September 8, 2010, September 13, 2010, p. 11.[421].

The court ordered the Estate to file its Reply by 3 pm on September 21, 2010.   See Order, September 14, 2010.[423].

However, on September 7, 2010, Hall Johnson LLC had moved to withdraw its appearances for the plaintiffs.   See Motion to Withdraw, September 7, 2010. [412]. Hall Johnson LLC also filed an Addendum to Motion to Withdraw, September 8, 2010 [419.05]. Sylvester Traylor then filed Plaintiff's Reply to Motion to Withdraw, September 9, 2010[419] and Affidavit, September 9, 2010. [419.50].

Hall Johnson LLC's Motion to Withdraw was to be heard at 2 pm on September 20, 2010.   The court had ordered the Estate to file its Reply by 3 pm on September 21, 2010.   See Order, September 14, 2010.[423].

Hall Johnson LLC had a dilemma.

Literally, on the way out the door to attend the proceedings on Hall Johnson LLC's withdrawal of appearance motion, Hall Johnson LLC, actually Attorney James Hall, e-filed a Reply for the Estate.   See Plaintiff, Sylvester Traylor Administrator of Estate of Roberta Mae Traylor's Reply to Special Defenses, September 20, 2010.[427]. Court records show the Reply was e-filed on September 20, 2010 at 11:37 am.

The September 20, 2010 court proceeding began at 2 pm.   At Sylvester Traylor's bidding, Attorney Hall asked the court to have the Reply that had been filed just over 2 hours previously be withdrawn.   Transcript of Proceedings, September 20, 2010, pp. 2-4.   The court granted the request.   Since the Reply had been on file for at most 2 1/2 hours and was, according to Sylvester Traylor, filed without his approval, the court has treated the Reply as though it was never filed and has no force or effect as a pleading herein.   See Order, September 21, 2010.[432]. Thus, the Estate did not file its Reply by September 21, 2010 as ordered.   In fact, no Reply has been filed by the Estate to this date.

Largely based on the Estate's non-appearing status after September 20, 2010, its failure to file a Reply by September 21, 2010, and the rules regarding the advancement of pleadings, the court issued an Order to Show Cause on October 6, 2010[436] to show the court why Sylvester Traylor, Administrator of the Estate and/or the Estate should not be nonsuited or the case dismissed.   This Order to Show Cause was scheduled for hearing on October 18, 2010.   That Order to Show Cause included this paragraph:

3.  The parties may file pre-hearing briefs addressing the issues raised herein provided such non-mandatory briefs are filed by October 15, 2010.   See p. 5, ¶ 2.

The hearing on the October 6, 2010 Order to Show was postponed to October 26, 2010.

On October 14, 2010, the court issued another Order to Show Cause, [437].   Order to Show Cause, October 14, 2010.[437]. Perhaps over-distilling, this Order to Show Cause was premised on the defendants' apparent and probable ability to overcome the rebuttable presumption critical to the spoliation of evidence cause of action set forth in Count Seven.   For amplification, see discussion below.   The Order to Show Cause also invited plaintiffs to dissuade the court from taking action suggested in the Order to Show Cause.   Paragraph 24, p. 6, provided:

24.  The parties may file pre-hearing briefs addressing the factual statements herein and also addressing the conclusions of law stated herein.   Such non-mandatory briefs, if any, must be filed by October 22, 2010.   Order to Show Cause, October 14, 2010, p. 6, ¶ 24. [437].

The hearing on the October 14, 2010 Order to Show Cause was scheduled for October 26, 2010.   P. 6, ¶ 23.

On October 19, 2010, Attorney Edward C. Berdick entered two appearances:  one for “Pty# 01 Sylvester Traylor,” and the second for “Pty# 02 Sylvester Traylor Adm. Est. of Robert M.” It is noteworthy that Attorney Berdick had never looked at the file before filing his appearances.   He has not looked at the court file since.   Thus his knowledge of same is restricted to what Sylvester Traylor wants him to know.

Attorney Berdick, roughly concurrent with his appearances, filed two motions.   See Motion to Transfer Action to the Judicial District of Fairfield at Bridgeport, October 18, 2010.[439]. The second motion is Motion to Strike Defendant's Special Defenses, October 18, 2010.[440]. The Motion to Strike was accompanied by an extended memorandum.   Memorandum of Law in Support of Motion to Strike Defendants Special Defenses, October 18, 2010.[441].

On October 26, 2010, the date upon which the October 6 and October 14, 2011 Orders to Show Cause were to be heard, plaintiffs, via Attorney Berdick, filed a Motion to Recuse [Disqualify].   See Motion to Recuse [Disqualify], October 25, 2010.[444].

When the hearing scheduled for the two Orders to Show Cause opened, Attorney Berdick informed the court he was not ready to proceed on the October 6th Order to Show Cause.   He informed that he had filed a Motion to Recuse [Disqualification] and asked to be heard on the Motion.   He informed the court he was not prepared on the October 6th Order to Show Cause “because I want to make an argument that I had filed a motion for reclusal (sic) for disqualification ․ the reason is I'm a new attorney to the case.   There's been over 400 motions.   I'd like to have 30 days to get up to speed.”   Transcript of Proceedings, October 26, 2010, p. 2.

The court heard Attorney Berdict on the disqualification motion.   Transcript of Proceedings, October 26, 2010, pp. 2-16.

The court then returned to the October 6 Order to Show Cause.   Although invited to do so, plaintiffs had not filed any brief regarding the factual statements and legal precedents upon which the October 6 Order to Show Cause were premised.   See Order to Show Cause, October 6, 2010, p. 5, ¶ 3. [436].  And, during the in court proceedings, Attorney Berdick offered no cogent argument, instead, claiming he needed more time to prepare.   Transcript of Proceedings, October 26, 2010, pp. 16-22.

The court then turned to the October 14 Order to Show Cause.

Again, the court had explicitly invited and solicited guidance from the parties regarding the factual statements and conclusions of law set forth in the Order to Show Cause.   Order to Show Cause, October 14, 2011, p. 6, ¶ 24.   Attorney Berdick objected to going forward:  “I object to going forward because I'm prepared adequately.”  “I would like to do for any further substantive procedural arguments on any motions until I get up to speeds on the file.”   Transcript of Proceedings, October 26, 2010, p. 22.   At one point, Attorney Berdick stated:  “I object.   I have stuff prepared, but I'm not going to submit it.”   P. 25.   Throughout, Attorney Berdick spoke of his not being prepared and to the extent he did address the issues at hand, his arguments confirm he was not prepared.   Transcript of Proceedings, October 26, 2010, pp. 37.

The court first discusses the October 6, 2010 Order to Show Cause based on the non-appearing status of the Estate and the Estate's not replying to the Special Defense.

As of October 6, 2010, the Estate had been non-appearing since September 20, when Hall Johnson LLC was allowed to withdraw.   Attorney Berdick appeared on October 19, 2010.   That non-appearing status lasted 28 days.   In view of the overall history of this case, the other extended times when the Estate was not represented by a licensed attorney, Attorney Berdick's appearance does not persuade the court that, a nonsuit of the Estate or the dismissal of its case is not warranted.

Nor did the Estate comply with the order that a Reply be filed by September 21.   Although Attorney Berdick appeared for the Estate on October 19, the Estate has yet to file a Reply.

The unassailable and unassailed facts upon which the October 6, 2010 Order to Show Cause regarding the pleading deficiency are.

1. The defendants' Special Defense was filed on September 13, 2010.

2. The Rules of Practice require that pleadings advance every 15 days.   P.B. § 10-8.

3. The court had ordered the Estate to file its Reply by September 21, 2010.   See Order, September 14, 2010, ¶ 12.[423].

4.  The Estate had not Replied as of October 14, 2010.

5. As of October 26, 2010, the Estate was tardy by some 35 days in filing a Reply.

In fact, the Estate has not filed a Reply as of this February 15, 2011.

Although warranted, the court does not nonsuit the Estate or dismiss its action pursuant to the October 6 Order to Show Cause.

The court now turns to the substantive issues presaged in the October 14, 2010 Order to Show Cause.   They are encompassed in the October 14, 2010 Order to Show Cause. [437].

In the Seventh Count of the Second Amended Complaint, July 12, 2010[362], the plaintiff Estate alleges the intentional spoliation of evidence.   In 2006, Connecticut recognized this as a viable tort.  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225 (2006).

Since Rizzuto is much the focus herein, the court sets forth the facts thereof.

In December 1996, while shopping at a Home Depot store, plaintiff Rizzuto climbed a ladder made by defendant Davidson Ladders, Inc. The ladder collapsed and Rizzuto fell to the floor receiving serious injuries.   In August 1997 Rizzuto filed a products liability action against Davidson and Home Depot.   Rizzuto repeatedly asked these defendants to preserve the ladder so he could have it examined professionally.   In 1998, the defendants' expert examined the ladder and concluded it was not defective.   Thereafter defendants destroyed the ladder without the plaintiff having an opportunity to inspect it.

In May 2001, Rizzuto amended his complaint to add a claim for intentional spoliation of evidence (the destruction of the ladder).  Rizzuto, 227-8.

The Supreme Court identified the essential elements of the new tort.

“(1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-5 (2006).

The Supreme Court explained the plaintiff's burden of proof.

To establish proximate causation, the plaintiff must prove that the defendants' intentional, bad faith. destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation.   Cf. Smith v. Atkinson, 771 So.2d 429, 434 (Ala.2000) (in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment);  Hannah v. Heeter, supra, 213 W.Va. 714 (same).   Once the plaintiff satisfies this burden, there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation ․ Smith v. Atkinson, supra, 432-33;  see also Hannah v. Heeter, supra, 717 ( [o]nce the [elements of the tort of intentional spoliation of evidence] are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence the party injured by the spoliation would have prevailed in the pending or potential litigation);  cf.  Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir.1988) (When, as here, a plaintiff is unable to prove an essential element, of her case due to the negligent loss or destruction of evidence by an opposing party, and the proof would otherwise be sufficient to survive a directed verdict, it is proper for the trial court to create a rebuttable presumption that establishes the missing elements of the plaintiff's case that could only have been proved by the availability of the missing evidence.   The burden thus shifts to the defendant-spoliator to rebut the presumption and disprove the inferred element of [the] plaintiff's prima facie case.).   The defendant may rebut this presumption by producing evidence showing that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available.  Smith v. Atkinson, supra, 435.   The [defendant] spoliator must overcome the rebuttable presumption or else be liable for damages.  Hannah v. Heeter, supra, 717.  (Internal quotation marks omitted, and footnotes omitted.)  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 246-8 (2006).

For the purposes of discussion in this case, the court assumes (but does not find or hold) that the plaintiff here could establish the elements of the tort of intentional spoliation of evidence.   If this be so, there is a rebuttable presumption that but for the fact of the spoliation of evidence, the plaintiff could have prevailed in the underlying litigation, here the six counts alleging medical malpractice, loss of consortium and wrongful death.

But the presumption is rebuttable.   How can the presumption be rebutted?   For this, our Supreme Court in Rizzuto looked to Smith v. Atkinson, 771 So.2d 429, 435-6 (Ala.2000).   In Smith v. Atkinson, the Alabama Supreme Court employed a hypothetical case to illustrate a rebuttal of the presumption.   That illustration is particularly instructive.

In Smith v. Atkinson, the plaintiff Smith and his wife were traveling in a Chrysler minivan and were struck by another vehicle driven by Ferguson.   As a result of the collision, Smith's wife died.   At the time of the collision, Smith was insured by Metropolitan Property and Casualty Insurance Company and had underinsured-motorist coverage.   He filed an underinsured-motorist coverage claim with Metropolitan.   Atkinson, a claims adjuster, handled the claim for Metropolitan.   Metropolitan obtained possession of the minivan and stored it in Metropolitan's storage facility.   Later Smith investigated a potential liability action against Chrysler theorizing the minivan was defective.   On several occasions Smith informed Atkinson and Metropolitan that he intended to bring a products liability action against Chrysler and requested the minivan be preserved for inspection.   Atkinson, and Metropolitan through Atkinson, agreed to keep the minivan at Metropolitan's facility for Smith's use and inspection.   Smith transfered the minivan title to Metropolitan.   At some time, Metropolitan allowed the minivan to be destroyed before it could be inspected by Smith or his expert.   Smith thereafter brought an action against Atkinson for spoliation of evidence.

The Alabama Supreme Court used the following example.

To illustrate further, assume that the plaintiff in a products-liability action alleges that the front wheel of an automobile separated from the vehicle during operation and that the separation caused a serious accident.   Further assume that the garage to which the vehicle was towed was given notice of a pending products-liability action against the manufacturer of the vehicle and voluntarily assumed responsibility for the vehicle, as well as for the separated wheel;  and that before the vehicle could be inspected the garage, through inadvertence, sold the vehicle and the wheel for salvage, destroying all relevant evidence and making it certain that the products-liability claim could not survive a summary-judgment motion.   In a negligent-spoliation action against the garage, the jury would be instructed to presume that the plaintiff would have prevailed on his products-liability claim against the manufacturer of the vehicle.   However, if, for example, the garage produced an eyewitness who testified that the wheel did not separate from the vehicle until after the impact, or that the plaintiff had been driving recklessly before the accident and through his own recklessness had caused the accident, then that testimony would absolve the defendant garage from liability for its spoliation of the evidence if the jury determined that on his products-liability claim the plaintiff would not have prevailed even if the evidence had not been lost or destroyed.”  Smith V. Atkinson, 771 So.2d 429, 435-6 (Ala.2000)

Repeating, this court has assumed (but does not find or hold) herein plaintiffs could establish the elements of the tort of intentional spoliation of evidence.   Thus, plaintiff is the beneficiary of a rebuttable presumption that plaintiff could have recovered in the basic six counts alleging medical malpractice.

With this, Our Supreme Court says:

“․ The burden thus shifts to the defendant-spoliator to rebut the presumption and disprove the inferred element of [the] plaintiff's prima facie case.  Rizzuto, 248.

It follows:  “The [defendant] spoliator must overcome the rebuttable presumption or else be liable for damages.”  Hannah v. Heeter, supra, 717.”  Rizzuto, 248.

Our Supreme Court instructs.

The defendant may rebut this presumption by ‘producing evidence showing that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available.’  Smith v. Atkinson, supra, 435.  Rizzuto, 247-8.

In this case, the alleged spoliators, the defendants, Dr. Awwa and Connecticut Behavioral, have overcome the rebuttable presumption.   The basic medical malpractice and wrongful death counts (the first six counts alleging medical mad malpractice, loss of consortium, and wrongful death) have been dismissed because the plaintiffs' original complaint dated June 1, 2006, did not have attached to it the opinion of a similar health care provider regarding medical malpractice as required by § 52-198a of the General Statutes.   See prior Memorandum of Decision, August 11, 2010. [366.04]. This conclusively establishes “that the plaintiff would not have prevailed in the underlying action even if the lost or destroyed evidence had been available.”   In fact, the instant case is even stronger than the example set forth in Smith v. Atkinson.   The underlying malpractice, wrongful death, and loss of consortium causes of action have all been dismissed.

With that dismissal, all the king's horses and all the king's men could not vitalize the basic and/or underlying malpractice case.

The Seventh Count alleging the intentional spoliation of evidence must therefore fail and must be dismissed.

Although not necessary, there is an additional ground for dismissal of the Seventh Count at least as to Sylvester Traylor in his individual or personal capacity.   The Seventh Count of the standing complaint ⁴ states solely a cause of action for Sylvester Traylor, Administrator, the Estate.   Defendants had filed a Motion to Strike the Seventh Count.   Defendants' Motion to Strike, August 10, 2010.[383]. The court granted same.   Memorandum of Decision Motion to Strike, August 16, 2010. [383.01]. The authority for filing the September 8, 2010 Revised Complaint is P.B. § 10-44 which allows plaintiff to plead over on granting of a motion to strike.   Paragraphs 1 through 26 of Count Seven of the Revised Complaint should be and are verbatim repetitions of their antecedents, namely the 26 paragraphs of First Count of the Second Revised Complaint, July 12, 2010.[362]. There is no allegation regarding Sylvester Traylor in his personal capacity nor any mention of loss of consortium in Count Seven.   Count Seven, states a cause of action for the Estate only.   Count Seven does not allege a cause of action for Sylvester Traylor in his personal or individual capacity.   In fact, the first pleading of an intentional spoliation of evidence cause of action surfaced in the Amended Complaint, June 4, 2009. [310]. It was drafted and signed by Sylvester Traylor.   See Seventh Count, pp. 14-18.   There is no mention of a loss of consortium.   Sylvester Traylor, in his personal and/or individual capacity does not appear as plaintiff in the Seventh Count of the June 4, 2009 Amended Complaint. [310].

Even if Sylvester Traylor in his personal and individual capacity had plead a spoliation of evidence cause of action, it would fail.

Sylvester Traylor's loss of consortium causes of action, if pled, are solely derivative of the Estate's malpractice and wrongful death action as set forth in the first six counts of the Second Revised Complaint.   These six counts have been dismissed.   Two counts brought by Sylvester Traylor in his personal capacity for loss of consortium were among the six counts dismissed.   Initially therefore, Sylvester Traylor personally would appear to have a basis for a spoliation of evidence cause of action regarding his loss of consortium claim.

However, “Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse.”  Izzo v. Colonial Penn Insurance Co., 203 Conn. 305, 312 (1987).   Here, Sylvester Traylor's personal loss of consortium case fails upon termination of the injured spouse's case, here the Estate's malpractice wrongful death case.  Swanson v. City of Groton, 116 Conn.App. 849, 864-65 (2009).   See also Jacoby v. Brinckerhoff, 250 Conn. 86 (1999), and cases cited therein.

The Seventh Count, alleging the intentional spoliation of evidence must therefore be dismissed.

The Eighth Count, claiming a CUTPA violation, is predicated upon a successful prosecution of the spoliation of evidence claim in the Seventh Count.   That has not happened.   The Seventh Count has been dismissed.   It follows the Eighth Count must be dismissed.

Counts Seven and Eight are dismissed.

Judgment shall enter for the defendants and against the plaintiffs.

Parker, J.T.R.

FOOTNOTES

FN1. Bracketed three digit number indicates the file entry number of a document filed in a case.   The file entry numbers for each case file begin with the number 101..  FN1. Bracketed three digit number indicates the file entry number of a document filed in a case.   The file entry numbers for each case file begin with the number 101.

FN2. “Sylvester Traylor, Administrator” and the “Estate” are used interchangeably herein..  FN2. “Sylvester Traylor, Administrator” and the “Estate” are used interchangeably herein.

FN3. The use of “Second” in the title of this version of the complaint is puzzling.   This new “Second” Amended Complaint is at least the sixth complaint the plaintiffs filed or attempted to file..  FN3. The use of “Second” in the title of this version of the complaint is puzzling.   This new “Second” Amended Complaint is at least the sixth complaint the plaintiffs filed or attempted to file.

FN4. Revised Complaint, September 8, 2011.[416]..  FN4. Revised Complaint, September 8, 2011.[416].

Parker, Thomas F., J.T.R.