Sally Southwood v. VNA CT (2011)

ORDER RE MOTION TO DISMISS (# 117)

The defendant's motion to dismiss (# 117) dated October 30, 2009, is hereby denied.   The court finds that the defendant has failed in its burden of proof claiming that the opinion of the similar health care provider (Graham Claytor MPT) does not comply with Conn. Gen.Stat. §§ 52–190a(a) and 52–184c(d), and that said written report was not received by plaintiff's counsel prior to the commencement of the action in question.   The court has reviewed the affidavits of counsel for the plaintiff dated November 13, 2008, and expert physical therapist, Graham Claytor, dated March 24, 2010, together with exhibits 1 and 2 attached thereto.

This court concludes that the plaintiff's counsel had a written signed report of a similar health care provider (Graham Claytor) prior to the execution and filing of the original complaint in this case.   The defendant, through counsel, contends that the absence of (1) an electronic record of a downloading and printing of these documents, and (2) the lack of a PDF with a date on it requires a finding that the opinions were not received prior to the execution of the good faith certificate in question.   The plaintiff, through counsel, argues that these opinions were sent electronically with no receipt record kept.   The plaintiff also claims that the file was deleted after the Claytor opinion was received.   The credibility of the witness is left to the trier of fact.  State v. Anderson, 132 Conn.App. 125, 143 (2011).   The affidavits of plaintiff's counsel and Graham Claytor are found to be credible.

Devine, J.

Devine, James J., J.