Ana Chuchoque v. Edward Rippel, M.D. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (116.00)

PROCEDURAL BACKGROUND:

This action was originally brought as a one-count complaint alleging that the defendant intentionally spoliated the plaintiff's medical records, thwarting her ability to pursue a cause of action against him for medical malpractice. 112.00, revised complaint.   The defendant moved for summary judgment, asserting that the plaintiff cannot prove the elements of intentional spoliation. 116.00, motion for summary judgment.

Over seven months later, without filing an objection to the motion for summary judgment, the plaintiff requested leave to amend her complaint. 121.00.   The proposed amended complaint added a count entitled “Negligence,” which is essentially a claim of negligent spoliation of records.   The original cause of action was given the title of “Intentional Spoliation” but was otherwise unchanged.

The defendant filed a timely objection to the request for leave to amend (122.00), on four grounds:  (1) that the proposed amended complaint was an attempt to circumvent his motion for summary judgment;  that the newly asserted cause of action is barred by the statute of limitations;  (3) that the newly asserted cause of action is not a recognized cause of action;  and (4) that allowing the amendment would jeopardize the scheduled trial date.

The objection to the request for leave appeared once on the short calendar, but was marked off.   The motion for summary judgment appeared on the calendar repeatedly and, on the fifth occasion, was marked ready and was heard by the court on November 21, 2011.   By this time, the plaintiff had been given the opportunity to take the deposition of the defendant and had filed an objection (124.00) to the motion for summary judgment.   One of the grounds for objecting was that the issue of whether to allow the amendment to the complaint should be determined prior to adjudicating the motion for summary judgment.

LEGAL STANDARD:

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.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․” (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   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, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS

I. Request for leave to amend and objection thereto

The plaintiff asserts that this court must defer a decision on the motion for summary judgment until there is a ruling on the proposed amended complaint.   The objection to the proposed amended complaint was not before this court when the motion for summary judgment appeared on the short calendar, and thus, this court cannot dispose of that controversy here.   However, the court is not precluded from adjudicating the motion for summary judgment as the requested amendment to the complaint would not cause any revision to the count of intentional spoliation.   The proposed amendment would not shore up any claimed deficiencies in the assertion of intentional spoliation.   The requested amendment merely seeks to add an additional count of what appears to be a claim of negligent spoliation, which has yet to be recognized by the appellate courts as a legal cause of action.   Lage v. Stop & Shop Supermarket Co., Superior Court, judicial district of New Haven, Docket No. CV10–6012081 S (November 16, 2011, Fischer, J.).

Whether or not there is a cause of action of “negligent spoliation,” and, if so, whether it relates back and whether it jeopardizes the trial date are issues for another day.   There is no obstacle to resolving the issue of the motion for summary judgment as to the cause of action of intentional spoliation, particularly as the court finds there is a genuine issue of material fact precluding the granting of summary judgment, as discussed more fully below.

II. Motion for summary judgment

The defendant argues that there is no evidence that he intentionally destroyed her medical records or intended to deprive her of a cause of action sounding in medical malpractice.   In 2006, the Connecticut Supreme Court first recognized the cause of action of intentional spoliation and set forth the following four essential elements:  (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, 244–45, 905 A.2d 1165 (2006).

The defendant asserts in an affidavit that “the most likely reason for the missing records is that they were accidentally lost ․” (116.00.) Memorandum in support of motion for summary judgment, exhibit B, affidavit of Edward Rippel, M.D. This assertion is insufficient to affirmatively negate the allegations of the plaintiff.   There are genuine issues of fact as to whether the records were destroyed, when they were destroyed, whether at the time of the destruction the defendant had knowledge of an impending civil action involving the plaintiff and, if the records were destroyed, whether they were destroyed in bad faith.   The affidavit does not address these specific issues.¹

ORDER:

The motion for summary judgment (116.00) is denied.   The objection to the motion (124.00) is sustained.

Robert E. Young, J.

FOOTNOTES

FN1. The plaintiff makes several arguments rebutting the assertions made by the defendant in his affidavit but offers no affidavit or authenticated documentation in support of her assertions.   The exhibits provided by the plaintiff attached to her objection are unauthenticated and unsupported by testimony.   These have not been considered by the court.  Practice Book § 17–46..  FN1. The plaintiff makes several arguments rebutting the assertions made by the defendant in his affidavit but offers no affidavit or authenticated documentation in support of her assertions.   The exhibits provided by the plaintiff attached to her objection are unauthenticated and unsupported by testimony.   These have not been considered by the court.  Practice Book § 17–46.

Young, Robert E., J.