Agnes Squeo et al. v. The Norwalk Hospital et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (253.00)

FACTUAL AND PROCEDURAL BACKGROUND

This case presents somewhat arcane procedural questions which make it difficult to reach the merits of the motion to strike now before this court.   The plaintiffs, Agnes Squeo, in her role as the fiduciary of the estate of her deceased son, Stephen J. Squeo (the decedent), and Joseph Squeo, individually, have brought this action against the defendants, the Norwalk Hospital Association (the hospital) and Deborah M. Shahid, APRN.¹ By way of background, in the operative pleading, the plaintiffs' amended complaint dated May 14, 2010, the plaintiffs allege the following facts.   On the evening of August 14, 2007, Agnes Sqeuo telephoned the Norwalk police department because her son, the decedent, was depressed and expressed a desire to harm himself with an electrical cord.   Later that evening, the decedent was detained by the police and admitted to the hospital for an emergency psychiatric examination.   During his stay at the hospital, the decedent was evaluated by Shahid.   The following morning, Shahid left a telephone message for the plaintiffs indicating that the decedent would soon be released from the hospital because he was no longer a danger to himself or others.   The decedent was allowed to leave the hospital soon after Shahid left the voicemail message for the plaintiffs.   After walking home alone, the decedent obtained a cord and immediately hung himself from a tree in the front yard.   Soon thereafter, Joseph Sqeuo saw the decedent hanging from a tree and the plaintiffs ran to assist their son.   In an attempt to revive him, the plaintiffs cut the decedent down from the tree and administered CPR. Despite the plaintiffs' best efforts, the decedent had already suffered substantial brain injuries, and he ultimately died after being taken off life support on August 23, 2007.

The plaintiffs' two-count complaint alleges claims against the defendants for medical malpractice and bystander emotional distress.   On May 21, 2010, the defendants filed a motion to strike count two, the bystander emotional distress cause of action.   The defendants argued that pursuant to the Connecticut Supreme Court's decision in Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), Connecticut law does not allow the plaintiffs to bring a claim for bystander emotional distress in a medical malpractice case.   In response, on July 28, 2010, the plaintiffs filed a memorandum of law in opposition.   The plaintiffs argued that a more recent Supreme Court case, Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), governs all bystander emotional distress claims, including those that arise in medical malpractice cases.   In Clohessy, the Supreme Court recognized the tort of bystander emotional distress generally, but it did not overrule its prior decision in Maloney.   Via a memorandum of decision dated September 16, 2010, the court, Karazin, J.T.R., denied the defendants' motion to strike.   Recognizing a split of authority in the Superior Court regarding how to reconcile the seemingly conflicting Maloney and Clohessy decisions, Judge Karazin held that “a plaintiff can state a claim for bystander emotional distress in a medical malpractice case so long as the plaintiff has satisfied the standards articulated in Clohessy and the case does not run afoul of the policy concerns raised in Maloney.”   Squeo v. Norwalk Hospital Ass'n., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5012548 (September 16, 2010, Karazin, J.T.R.) (50 Conn. L. Rptr. 618, 620).

Following Judge Karazin's denial of their motion to strike, the defendants filed an answer and special defense on November 23, 2010.   Subsequently, in October 2011, the Appellate Court decided Milton v. Robinson, 131 Conn.App. 760, 27 A.3d 480 (2011), in which it analyzed the legal validity of a bystander emotional distress cause of action in a medical malpractice case by only referencing the Supreme Court's Maloney decision.   In Milton, the Appellate Court stated that “[o]ur Supreme Court's decision in Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), is dispositive of this issue.   In Maloney, the plaintiff initiated a medical malpractice action against two physicians and a hospital seeking to recover damages for severe emotional distress she alleged to have suffered as a result of the defendants' negligent medical treatment of her mother ․ The trial court granted the defendants' motions to strike the plaintiff's complaint and subsequently rendered a partial judgment against the plaintiff ․ On appeal, our Supreme Court held ‘that a bystander to medical malpractice may not recover for emotional distress ․’ In this case, count seven of the plaintiffs' ․ complaint asserted a claim for emotional distress as a bystander to the university's alleged negligent medical treatment of the plaintiff.  Maloney bars such a claim.”  (Citations omitted.)  Id., 784–85.   Despite this holding, the Milton court did not attempt to reconcile the meaning of Clohessy with its determination that Connecticut does not allow a plaintiff to bring a bystander emotional distress claim in a medical malpractice case.

After the Appellate Court's release of its Milton decision, the defendants filed a second motion to strike on October 27, 2011.   The defendants also filed a memorandum of law in support of their motion.   On December 6, 2011, the plaintiffs filed a memorandum of law in opposition.   In response, the defendants filed a reply memorandum on December 16, 2011.   The court heard argument in this matter at the February 6, 2012 short calendar.

LEGAL DISCUSSION

In the memorandum of law in support of their motion, the defendants argue that the Appellate Court's Milton decision resolved the split of authority in the Superior Court regarding the legal viability of a bystander emotional distress cause of action in a medical malpractice case.   According to the defendants, Milton clearly dictates that such claims are invalid, and, as a result, they are entitled to have count two stricken from the operative complaint.   Furthermore, the defendants contend that Judge Karazin's previous denial of their motion to strike should not be given law of the case effect because Milton effectively overruled Judge Karazin's decision.

The plaintiffs respond that the defendants' second motion to strike should be denied since the defendants have waived the right to file a motion to strike because they have already filed an answer.   The plaintiffs contend that because the defendants never asked for, or were granted, permission from the court to file this motion to strike out-of-order, that the motion to strike must be denied.   Additionally, the plaintiffs believe that Milton does not alter Judge Karazin's previous decision because Milton does not attempt to reconcile Maloney and Clohessy.   Simply put, the plaintiffs contend that Milton did not definitively resolve the split in Superior Court authority regarding the legal validity of a bystander emotional distress claim in a medical malpractice case.

In their reply memorandum, the defendants argue that they have not waived their right to challenge the plaintiffs' bystander emotional distress cause of action because they previously filed a motion to strike in accordance with the proper order of pleadings.   The defendants contend that it would be unjust for the court to apply the rules of practice in such a manner as to preclude review of the legal validity of the plaintiffs' bystander emotional distress claim, especially since the Appellate Court did not release its Milton decision until after the defendants had filed their answer.   Moreover, the defendants note that pursuant to Practice Book § 1–8, the court has discretion to allow them to file pleadings out-of-order.   Finally, the defendants dispute the plaintiffs' characterization of the Appellate Court's Milton opinion, and the defendants argue that this case clearly establishes that Connecticut does not recognize a bystander emotional distress claim in a medical malpractice case.

Pursuant to the Connecticut rules of practice, a defendant must file a motion to strike before it files its answer.  Practice Book § 10–6.²  “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [Practice Book § 10–6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”  Practice Book § 10–7.   “Under our rules of practice, the filing of a responsive pleading waives the right to file a motion to strike ․ Thus ․ by filing [an] answer ․ [the moving party waives] its right to test the legal sufficiency of that pleading by way of a motion to strike.”  (Citations omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009);  see also Southington v. Commercial Union Ins. Co., 71 Conn.App. 715, 736, 805 A.2d 76 (2002) (stating that once the “defendant filed an answer and special defense to the amended complaint ․ without again challenging the legal sufficiency of the contract count ․ [t]he defendant ․ waived its right to challenge the legal sufficiency of the amended pleading.”).

The motion to strike that is currently before the court was certainly after the defendants filed their answer.   Under our rules of practice, this procedure is prohibited.   Although the defendants are correct that Practice Book § 10–7 does allow for the filing of pleadings out-of-sequence by order of the judicial authority, “[i]f a party wishes to file a pleading out of order, they must seek the court's permission before doing so.”  (Emphasis added.)   Gage v. Drazen, Superior Court, judicial district of New Haven, Docket No. CV 030482741 (August 26, 2004, Arnold, J.) (37 Conn. L. Rptr. 732, 734–35).   In fact, as stated by our Supreme Court, “[a]fter filing an answer, it [is] improper for the defendant to file any motion addressed to the complaint without seeking the permission of the court.”  (Emphasis added.)  Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 451, 352 A.2d 291 (1974).   As the defendants did not obtain prior permission from the court to file this motion to strike, it is procedurally improper and should not be considered by the court in its current form.

Nevertheless, there is some merit to the defendants' argument that they should not be deemed to have waived their right to file the current motion to strike because their first motion to strike was filed in the correct sequence as outlined in the Practice Book. Under these circumstances, it may seem unfair for the court to invoke the order of pleadings rule as a reason to bar the defendants from challenging the legal sufficiency of the bystander emotional distress count, given the recent Milton decision.   At the same time, the rules of practice are clear.   A defendant cannot file a motion to strike after it has filed its answer.   If the defendants wanted to challenge the continuing validity of Judge Karazin's previous denial of their first motion to strike in light of the Appellate Court's Milton decision, the proper course of action ostensibly would have been to file a motion to reargue pursuant to Practice Book § 11–12.   See, e.g., Pratt v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006100 (December 15, 2009, Pickard, J.) (49 Conn. L. Rptr. 10, 11) (stating that “[i]n light of the changes in the law resulting from [a Supreme Court case] ․ the court granted the plaintiff's motion for reargument”).³  Alternatively, the defendants could have sought prior approval of the court to file this motion to strike.   The defendants did not choose this option, and their non-compliance with the rules of practice is clear.

However, Connecticut law favors resolving disputes on their merits.   See e.g. Fedus v. Planning & Zoning Commission, 278 Conn. 751, 769–70 (2006).   The court could convert the defendants' motion to strike into a motion for summary judgment.   Generally speaking, the court has such authority.   See Drahan v. Board of Education, 42 Conn.App. 480, 489, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996) (stating that “the construction of a pleading is a question ultimately for the court ․ When a case requires this court to determine the nature of a pleading filed by a party, [it is] not required to accept the label affixed to that pleading by the party.”).

Nevertheless, such an approach would be ill-advised in the present case.   Practice Book § 17–44 provides, in relevant part, that “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”  (Emphasis added.)   As clearly provided by § 17–44, a party cannot file a motion for summary judgment when a case has been assigned for trial without prior permission by the court.   This matter is presently scheduled for a trial to commence in September 2012, and the defendants have not obtained permission to file a summary judgment motion with respect to their bystander emotional distress cause of action.   Under Connecticut law, it is plain error for a trial court judge to rule on a motion for summary judgment at the same time as a motion for permission to file a motion for summary judgment.   As stated by the Appellate Court when ruling on this issue, when “the trial court fail[s] to abide by our rules of practice by granting the plaintiff's motion for summary judgment at the same time it granted the plaintiff's motion for permission to file a motion for summary judgment ․ [t]he trial court's rulings ․ constitute plain error.”  R.I. Waterman Property, Inc. v. Misiorski, 51 Conn.App. 659, 662, 725 A.2d 340 (1999).   The Appellate Court reached this conclusion because “[t]he trial court's rulings did not afford the defendants an opportunity to oppose the motion for summary judgment as provided by [Practice Book] § 17–45.” ⁴

Accordingly, it appears that there is no way for the court to review the argument raised by the defendants, at least in its current form.   The court cannot consider a motion to strike because the defendants have already filed an answer.   Nor can the court entertain a motion for summary judgment because the case has been scheduled for trial and the defendants did not obtain permission to file a summary judgment motion addressed to the plaintiffs' bystander emotional distress cause of action.⁵  The court also may not consider a motion to reargue Judge Karazin's ruling on the first motion to strike because motions to reargue are addressed to the judge who initially made the ruling on the subject motion.  Practice Book § 11–12(c).  Accordingly, in order to place this issue before the court in its proper form, the defendants will need to obtain judicial permission to file a summary judgment motion, and then have that summary judgment motion argued before the court.  “Once notice is given of the granting of permission to file a summary judgment motion, the motion for summary judgment should be placed on the short calendar not fewer than fifteen days from the giving of the notice.”  R.I. Waterman Property, Inc. v. Misiorski, supra, 51 Conn.App. 661;  Practice Book § 17–45.   The trial in this matter is not scheduled to commence until September 2012.   Therefore, so long as the motion for permission is granted and the summary judgment motion appears on the calendar before May 2012, the defendants may have an opportunity to obtain a ruling on the legal validity of the plaintiffs' claim for bystander emotional distress before trial.⁶  In fact, a summary judgment motion in which the parties may rely on facts and information not pleaded in the complaint may well present the legal issue in a more comprehensive setting.

Consequently, the court denies the defendants' current motion to strike and invites the defendants to obtain judicial permission to file a summary judgment motion and have that motion ruled on by the court.   Alternatively, pursuant to Practice Book § 10–7, the defendants might seek judicial permission to file a motion to strike in contravention of the order of pleadings outlined in Practice Book § 10–6.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. All references to “the plaintiffs” and “the defendants” in this memorandum will refer to both of the plaintiffs and the defendants collectively.   Otherwise, when necessary, the parties will occasionally be referred to separately..  FN1. All references to “the plaintiffs” and “the defendants” in this memorandum will refer to both of the plaintiffs and the defendants collectively.   Otherwise, when necessary, the parties will occasionally be referred to separately.

FN2. Practice Book § 10–6 provides:  “The order of pleading shall be as follows:(1) The plaintiff's complaint.(2) The defendant's motion to dismiss the complaint.(3) The defendant's request to revise the complaint.(4) The defendant's motion to strike the complaint.(5) The defendant's answer (including any special defenses) to the complaint.(6) The plaintiff's request to revise the defendant's answer.(7) The plaintiff's motion to strike the defendant's answer.(8) The plaintiff's reply to any special defenses.”.  FN2. Practice Book § 10–6 provides:  “The order of pleading shall be as follows:(1) The plaintiff's complaint.(2) The defendant's motion to dismiss the complaint.(3) The defendant's request to revise the complaint.(4) The defendant's motion to strike the complaint.(5) The defendant's answer (including any special defenses) to the complaint.(6) The plaintiff's request to revise the defendant's answer.(7) The plaintiff's motion to strike the defendant's answer.(8) The plaintiff's reply to any special defenses.”

FN3. Yet, this approach is not practically available in this case because § 11–12, which governs motions to reargue, has a twenty-day time frame for filing such a motion.   The defendants would not have been able to file their motion to reargue within twenty days of Judge Karazin's September 16, 2010 decision because Milton was not released by the Appellate Court until October 2011..  FN3. Yet, this approach is not practically available in this case because § 11–12, which governs motions to reargue, has a twenty-day time frame for filing such a motion.   The defendants would not have been able to file their motion to reargue within twenty days of Judge Karazin's September 16, 2010 decision because Milton was not released by the Appellate Court until October 2011.

FN4. Practice Book § 17–45 provides:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.   The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs.   The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”.  FN4. Practice Book § 17–45 provides:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.   The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs.   The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

FN5. As the plaintiffs raised the fact that the defendants have not obtained permission to file the summary judgment motion during the February 6, 2012 short calendar, the plaintiffs cannot be said to have consented to the court ruling on a potential summary judgment motion..  FN5. As the plaintiffs raised the fact that the defendants have not obtained permission to file the summary judgment motion during the February 6, 2012 short calendar, the plaintiffs cannot be said to have consented to the court ruling on a potential summary judgment motion.

FN6. Permission to file a summary judgment motion must be granted by the Presiding Judge, Civil who also must pass on requests for continuance of a trial date.   This court recommends that the Presiding Judge look favorably on either or both requests if it is necessary to get a summary judgment motion properly scheduled and briefed..  FN6. Permission to file a summary judgment motion must be granted by the Presiding Judge, Civil who also must pass on requests for continuance of a trial date.   This court recommends that the Presiding Judge look favorably on either or both requests if it is necessary to get a summary judgment motion properly scheduled and briefed.

Adams, Taggart D., J.T.R.