Emanuel J. DiTeresi et al.  Executors of the Will of Santina DiTeresi et al. v. Stamford Health System, Inc. et al. (2012)

MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION FOR A DETERMINATION TO ALLOW AN IMMEDIATE APPEAL UNDER PRACTICE BOOK § 61–4 DATED SEPTEMBER 22, 2011 (# 361.00)

The question before this court is whether this court as the trial judge should exercise its limited discretion as per Practice Book § 61–4 to allow the plaintiff, Emanuel DiTeresi and Virginia DiTeresi, as Executors of the Will of Santina DiTeresi, to appeal the court's order granting the Defendants' Motion for Summary Judgment on some but not all the counts brought on behalf of Santina DiTeresi?

For the purpose of the issues raised in the Motion for Summary Judgment the operative complaint is the plaintiff's Second Amended Complaint dated February 12, 2010 (# 212.00).   There were originally nineteen counts;  six counts for Virginia DiTeresi individually against the defendants Stamford Health System, Inc. and the Stamford Hospital (“Hospital”), two counts by Santina DiTeresi against Robert E. Mayes, eleven counts by Santina DiTeresi against the hospital.   All six of Virginia DiTeresi's counts have been disposed of by pretrial motions.   Count Fifteen alleging bystander emotional distress by Virginia DiTeresi against the hospital was stricken by the court (Tobin, J.) on March 6, 2007 (# 135.10).   The plaintiff reserved her right to appeal from the order striking Count Fifteen.   By a Memorandum of Decision dated December 14, 2010 (# 345.00) this court granted Summary Judgment in favor of the hospital on the following five counts by Virginia DiTeresi individually against the hospital;  Count Seven, intentional infliction of emotional distress;  Count Nine, negligent infliction of emotional distress;  Count Thirteen, violation of Connecticut Unfair Trade Practices Act;  Count Seventeen, breach of fiduciary duty;  and Count Nineteen, recklessness.   By reason of the above Motion to Strike and the Motion for Summary Judgment all six counts alleged by Virginia DiTeresi have been disposed of and these dispositions constitute a final judgment as to all of Virginia DiTeresi's claims.   On January 3, 2011 Virginia DiTeresi appealed all six counts.   That appeal is pending in the Appellate Court A.C. 33052.   On January 31, 2012, the plaintiff, Virginia DiTeresi, filed her brief with the Appellate Court.

The events that led to this lawsuit are alleged to have occurred in March 2004.   The plaintiff's original complaint is dated March 22, 2006.   The return date is May 16, 2006.   Santina DiTeresi died on January 22, 2008 and her Co–Executors were substituted as party plaintiffs.   The plaintiffs' complaint has been amended a number of times.   The matter had been assigned various dates for the jury trial to commence:  June 1, 2010, November 16, 2010, December 21, 2010, January 19, 2011 and December 12, 2012.

The following is the summary of facts set forth by Virginia DiTeresi individually in her January 31, 2012 Appellate Brief:  “The principle issue in this appeal is whether the defendant Stamford Health System, Inc. and The Stamford Hospital (collectively the ‘Hospital’) can be held liable for its conscious decision to place its concerns about its reputation and liability over the rights and concerns of Virginia DiTeresi (‘Virginia’).   Virginia's mother, Santina DiTeresi (‘Santina’) was a patient at the Hospital between March 9, 2004 and March 29, 2004.   Santina was 94 years old and suffered from Parkinson's and dementia.   Unable to communicate effectively and requiring assistance for virtually all aspects of her daily life, the Hospital categorized Santina as a ‘total care patient.’   At approximately 10:30 a.m. on March 23, 2004, Robert Mayes, who the Hospital employed as a certified nurse's assistant, was caught sexually assaulting Santina by another employee.   The Hospital's handling of the assault on Santina and its treatment of Virginia demonstrated a callous concern for its own reputation and potential liability to the complete detriment of both Virginia and Santina.

Virginia had been Santina's primary caregiver for at least twenty years and the two of them enjoyed an extremely close relationship.   Because Santina suffered from dementia, Virginia was her attorney in fact and made all of Santina's health care decisions, which was noted in Santina's hospital record.   Virginia visited her mother daily.   On the day of the assault, she arrived at the Hospital at approximately 2:15 p.m. It was not until 5:30p.m., however, that the Hospital decided to tell Virginia that one of its employees had sexually assaulted her mother seven hours earlier.   She also learned at that time that neither the police, nor her mother's physician had been informed of the assault;  in fact, Santina had not even received a medical exam.   Virginia was devastated.”

Count Two, vicarious liability by Santina DiTeresi against the hospital was stricken by the court (Tobin, J.) on March 6, 2007 (# 135.10).   Count Two is no longer pending at the trial level.   Remaining at the trial level are five counts scheduled for the December 2012 jury trial;  Count Three, negligent supervision by Santina DiTeresi against the hospital;  Count Six, battery by Santina DiTeresi against Robert E. Mayes, Count Ten, negligent infliction of emotional distress by Santina DiTeresi against the hospital, Count Eleven, intentional infliction of emotional distress by Santina DiTeresi against Robert E. Mayes, and Count Fourteen, medical malpractice by Santina DiTeresi against the hospital.   The hospital has filed a Second Motion for Summary Judgment dated July 7, 2011 (# 357.00) seeking summary judgment on Count Three of the Second Amended Complaint dated February 12, 2010;  negligent supervision by Santina DiTeresi against the hospital.   That motion was assigned for a short calendar argument on July 25, 2011 and was marked “OFF.” The Motion for Summary Judgment (# 357.00) addressed to Count Three has not been reclaimed, argued, decided or withdrawn.

Of the twelve counts in which this court granted Summary Judgment on December 14, 2010 (# 345.00) the following seven counts were by Santina DiTeresi against the hospital:  Count One, premise liability;  Count Four, violation of Connecticut's patient's bill of rights Gen.Stat. § 19a–550;  Count Five, violation of patient's bill of rights Gen.Stat. §§ 17a–540 et. seq;  Count Eight, intentional infliction of emotional distress;  Count Twelve, violation of CUTPA, Count Sixteen, breach of fiduciary duty, and Count Eighteen, recklessness.

The plaintiff has moved that this court furnish a written determination pursuant to Practice Book § 61–4 to allow the plaintiff, Santina DiTeresi, to appeal the seven counts on which this court granted summary judgment as well as Count Two vicarious liability by Santina DiTeresi against the hospital that was stricken by Judge Tobin on March 6, 2007.   The defendant hospital has filed a written objection.   Both parties filed memoranda of law and appeared and orally argued their respective positions.

All causes of action filed by Virginia DiTeresi have been disposed of by pretrial motions.   She has filed an appeal.   The validity of that appeal is not an issue in this motion.   Not all causes of action filed by Santina DiTeresi have been disposed of.  “When the trial court renders a judgment to which this section applies, such judgment shall not ordinarily constitute an appealable final judgment.   Such a judgment shall only be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs.”  P.B. § 61–4a.

“The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007).”  O'Connor v. Med–Center Home Health Care, Inc., 308 Conn. 338, 244 (2011).

“In the language of Section 61–4, the right to bring an immediate interlocutory appeal from a trial court's ruling must be based on a threshold judicial determination that the issues resolved by that ruling are of such significance to the outcome of the case that the delay incident to the appeal would be justified.”   ShareAmerica, Inc. v. Ernst & Young, LLP, Superior Court judicial district of Waterbury at Waterbury, Civil Complex Litigation Docket No. X02 CV93–0150132 (July 23, 1999, Sheldon, J.) [25 Conn. L. Rptr. 160].   “A major consideration for this court is the interplay between the claims that were ruled on in the motions to strike and the claims that remain pending in this case.”   Baker v. Cheshire, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 07–5013602S (July 11, 2008, Robinson, J.).

Against this background, the Court agrees with the defendant that the purpose of Section 61–4 is to create a narrow exception to our final judgment rule for those rare and special cases where interlocutory review of a trial court's pretrial ruling will resolve or greatly streamline the resolution of the entire case.   In those limited circumstances, the purpose of the final judgment rule—to promote efficiency in the handling of cases by avoiding the added cost, delay and administrative burden of piecemeal litigation—is better served by granting the right to an immediate appeal than, as usual, postponing any appeal until the rights of all parties have been fully adjudicated in the trial court.   Only if the trial judge, who knows the case personally and understands the interplay among its several claims, and the chief judge of the appellate court having jurisdiction, who knows the current status of his or her appellate docket, are mutually satisfied that the possible benefits of early appellate review exceed the likely costs and burdens of such review should the motion be granted.

Other considerations include whether an appellate ruling would likely have the practical effect of ending the case in the trial court, so that the appellate court would not be faced with deciding the same case twice.   See the discussion in Royal Indemnity Company v. Terra Firma, Inc., 2006 Ct. Sup. 20624 (Beach, J.) [42 Conn. L. Rptr. 296].

Because the relief available pursuant to § 61–4 is to be granted sparingly, and because, as identified at the hearing of the motion in this court on January 17, 2007, several other issues would be tried in this court regardless of the outcome of the appeal, I hold that the appropriate exercise of discretion militates against recommending immediate relief in the Appellate Court.

Fortin v. Hartford Underwriters Insurance Company, et al., Superior Court, judicial district at Middlesex at Middletown, Complex Court Litigation Docket Number X04–CV03–0103483S (January 19, 2007, Beach, J.).

Already there is an appeal on the six counts brought by Virginia DiTeresi individually.   In the event that Virginia DiTeresi is successful in her appeal and the matter remanded to the trial court for a new trial, all the events relating to the alleged assault by Robert E. Mayes of Santina DiTeresi and the claimed delays and cover ups by the hospital would have to be tried.   Virginia DiTeresi's appeal cannot conclude prior to the commencement of the December 2012 jury trial.   Therefore, the jury trial will proceed in December 2012 on the remaining two or three counts that Santina DiTeresi has pending against the hospital as well as her two counts against Robert E. Mayes.   That jury will hear all the evidence of the alleged sexual assault and the hospital's delays and cover ups.   In the event the hospital prosecutes its pending Motion for Summary Judgment directed to Count Three, negligent supervision by Santina DiTeresi against the hospital, and the trial court grants summary judgment, the jury trial will have four counts to hear;  the two counts against Robert E. Mayes for battery in Count Six and intentional infliction of emotional distress in Count Eleven, and two counts by Santina DiTeresi against the hospital;  Count Ten negligent infliction of emotional distress and Count Fourteen medical malpractice.   The resolution of any appellate ruling in the pending Virginia DiTeresi's appeal would have no effect on these four or five remaining counts scheduled for a jury trial.   The results of any interlocutory appeal on the Santina DiTeresi seven counts at issue would have no effect on these four or five remaining counts scheduled for the December 2012 jury trial.

The defendant, Robert E. Mayes, was convicted of sexual assault in his criminal trial and sentenced to jail.   He has not appeared by counsel of record in this civil suit.   It may be that Robert E. Mayes is judgment proof.   He does not appear to be insured for the plaintiff's claims.   No evidence one way or the other was furnished to this court.   If he is judgment proof and uninsured, Santina DiTeresi may not proceed to trial solely on Count Six battery against Robert E. Mayes and Count Eleven intentional infliction of emotional distress against Robert E. Mayes.   That is plaintiff's trial decision and that determination is not before this court.   The court assumes that the plaintiff will try the two counts against Robert E. Mayes.   By not filing any dispositive motions the hospital has conceded that two counts will clearly go to trial;  Count Ten, negligent infliction of emotional distress by Santina DiTeresi against the hospital and Count Fourteen, medical malpractice by Santina DiTeresi against the hospital.   It may be that Count Three, negligent supervision by Santina DiTeresi against the hospital will proceed to trial depending on the prosecution or lack thereof of the current pending Motion for Summary Judgment.

In a trial involving Counts Ten and Fourteen all of the alleged sexual assault evidence as well as the evidence of the hospital's cover ups and delays will have to be presented.

The defendant's Objection (# 363.00) states:  “If plaintiff's decedent represented here that she would withdraw her remaining claims in the event that the decision of the trial court was affirmed on appeal, defendants might also consider an immediate appeal before trial.”   On the contrary the plaintiffs have informed this court that the remaining four or five counts by Santina DiTeresi against the hospital and Robert E. Mayes would proceed to trial regardless of the appellate outcome.

This court finds that significant issues in this case remain to be tried.   Southridge Capital Management Ltd. v. Twin City Fire Insurance Company, Superior Court, judicial district of Hartford at Hartford, Complex Civil Litigation Docket Number HHD X04 CV 02–4034703 S (May 23, 2008, Shapiro, J.) The court finds that it is unlikely that any appeal, either the current pending Virginia DiTeresi appeal or the seven counts under consideration by Santina DiTeresi would be adjudicated prior to the scheduled December 2012 trial.   The court finds that it is unlikely that the successful prosecution of either or both of those appeals would narrow the issues for the two counts pending against Robert E. Mayes and the two or three counts pending against the hospital.   This court cannot find that the issues to be resolved on appeal are of such significance to the outcome of the case that the delay incident to the appeal would be justified.

This case does not fit in to the “rare and special circumstances outlined in the exception to the final judgment rule as codified in § 61–4.”  Baker v. Cheshire, supra.

Accordingly, the court denies Plaintiffs' Motion for Determination to Allow an Immediate Appeal under Practice Book Section 61–4 dated September 22, 2011 (# 361.00).

THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.