Joe Maffe et al. v. Jeffrey Banker, M.D. et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion # 109.00)

I

FACTS

On September 22, 2010, the plaintiffs Joe Maffe, Guy Maffe, and the estate of Lorraine Maffe, through its executor Gary Maffe,¹ filed an eight-count amended complaint in which they allege the following facts.²  On March 31, 2008, the decedent went to the emergency room of the defendant, Bridgeport Hospital (the hospital), complaining of chest pain.   The hospital and the defendants Cardiac Specialists, P.C. (Cardiac Specialists), and their agents Dr. Jeffery Banker and Dr. Russell Scott Holliday, undertook the medical care and supervision of the decedent.   The plaintiffs allege that Banker and Holliday failed to exercise the degree of care and skill ordinarily( used by physicians when they misdiagnosed the decedent's pain as gastrointestinal in nature and later discharged her from the emergency room after assuring her and her family that her condition did not pose a threat to her life.   Following her discharge, the decedent's condition worsened, and she suffered a fatal heart attack.

The plaintiffs allege further that Joe Maffe and Gary Maffe were both present with the decedent in the emergency room at the time of her misdiagnosis.   In addition, the plaintiffs allege that Joe Maffe, Gary Maffe and Guy Maffe were present at the time the decedent suffered her fatal heart attack and, further, that Guy Maffe called 911 and later witnessed emergency technicians administer life saving techniques and transport the decedent to the hospital in full cardiac arrest.   The plaintiffs allege further that Joe Maffe and Gary Maffe each suffered nervous shock, extreme emotional distress and anguish caused by witnessing the death of the decedent.

Count three alleges a cause of action for bystander emotional distress by Joe Maffe against the hospital.   Count four alleges a cause of action for bystander emotional distress by Gary Maffe, in his personal capacity, against the hospital.   Count seven alleges a cause of action for bystander emotional distress by Joe Maffe against Cardiac Specialists.   Count eight alleges a cause of action for bystander emotional distress by Gary Maffe, in his individual capacity, against Cardiac Specialists.³

The defendants have filed a motion to strike counts three, four, seven and eight of the plaintiff's complaint on two grounds:  (1) Connecticut law does not recognize bystander emotional distress claims in the context of medical malpractice actions and (2) in the alternative, even if Connecticut does recognize such claims, the allegations of the complaint are legally insufficient to allege a claim for bystander emotional distress as it is enunciated in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996).   The motion is accompanied by a memorandum of law.   The plaintiffs have filed an objection.   The defendants subsequently filed a memorandum in reply.

II

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39.  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The defendants raise two principle arguments in their motion to strike.   First, they argue that, in accordance with the holding of Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), courts in Connecticut do not recognize a cause of action for bystander emotional distress in the context of medical malpractice actions.   Second, and in the alternative, the defendants argue that under the four-part test propounded by the Supreme Court in Clohessy v. Bachelor, supra, 237 Conn. 31, the plaintiffs have failed to allege a claim for bystander emotional distress in counts three, four, seven and eight.

The plaintiffs present two responses in kind.   First, the plaintiffs argue that there is a split of authority among the judges of the Superior Court regarding whether Maloney continues to preclude bystander emotional distress arising from medical malpractice in light of the holding of Clohessy.   Compare Wattman v. New Hartford Volunteer Fire Dept., Superior Court, judicial district of Waterbury, Docket No. CV 00 0156795 (October 10, 2001, Rogers, J.) (30 Conn. L. Rptr. 554) (Clohessy did not overrule or limit Maloney;  Maloney precludes all actions for bystander emotional distress in the context of medical malpractice) with Drew v. W. Backus Hospital, Superior Court, judicial district of New London, Docket No. CV 550724 (September, 30, 1999, Hurley, J.) (25 Conn. L. Rptr. 534) (Maloney was limited to facts before it and remains consistent with Clohessy;  bystander emotional distress permitted in medical malpractice if Clohessy test satisfied), aff'd on other grounds, 77 Conn.App. 645, 825 A.2d 810 (2003) (declining to address whether medical malpractice bystander emotional distress cognizable).   The plaintiffs argue that a minority of judges of the Superior Court have found that a cause of action for bystander emotional distress is cognizable in the context of medical malpractice in cases involving facts that would otherwise meet the four-part test enunciated by Clohessy, and that this court should adopt that viewpoint.   Second, the plaintiffs argue that they have alleged facts in their complaint satisfying each of the four elements enunciated by Clohessy.

In response, the defendants note in their memorandum in reply that the plaintiffs concede that Gary Maffe was not present during “the critical times required under the law for a bystander emotional distress claim” and that the plaintiffs have withdrawn all claims filed on behalf of Gary Maffe.⁴  The defendants also argue that Maloney continues to be good law and that the plaintiffs have not, in any case, alleged a contemporaneous sensory perception of a traumatic event that caused the injury, which is required to allege a cause of action under the Clohessy test.

As the parties recognize, there exists a split of authority among the judges of the Superior Court regarding whether Maloney v. Conroy, supra, 208 Conn. 392, has been abrogated and whether bystander emotional distress is cognizable in the context of medical malpractice.   Thus, the central dispute in this case focuses upon whether Clohessy v. Bachelor, supra, 237 Conn. 31, abrogated Maloney such that bystander emotional distress is cognizable in medical malpractice actions.   This inquiry is closely tied to the historical underpinnings of the holdings of Maloney and Clohessy and the court will examine that jurisprudential history now.

Connecticut's jurisprudence pertaining to bystander emotional distress begins with Strazza v. McKittrick, 146 Conn. 714, 717, 156 A.2d 149 (1959).   In that case, the plaintiff sought to recover damages for emotional distress she suffered when the defendant negligently crashed his vehicle into the plaintiff's front porch, on which the plaintiff's minor child was standing.   The plaintiff alleged that she heard, but did not witness, the crash and that as a result she suffered emotional disturbance for both the fear of her own safety and that of her child.   The Supreme Court held that the plaintiff could recover emotional damages arising out of fear for her own safety.   At the same time, however, the court also held that the plaintiff could not recover “for injuries occasioned by fear of threatened harm or injury to the person or property of another.”  (Emphasis added.)  Id., 719.   The court reasoned that this second type of bystander emotional distress ought to be rejected as a cause of action because “[s]uch injuries are too remote in the chain of causation to permit recovery.”  Id.

Thereafter, the court reexamined the cause of action for bystander emotional distress in Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980).   In Amodio, the plaintiffs claimed bystander emotional distress as a result of witnessing the death of her daughter, which was alleged to be the result of the defendant's medical malpractice.   There, the plaintiff specifically advocated that the court abrogate Strazza and, in its place, adopt the rule set out in the California case of Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968).   In Dillon, the California Supreme Court recognized the cause of action for bystander emotional distress as cognizable and adopted a rule of liability that turned upon the reasonable foreseeability ⁵ of a plaintiff's emotional distress.

Examining Dillon and then-emerging cases from other jurisdictions, our Supreme Court first noted that the different states continued to disagree as to the propriety of allowing a plaintiff to recover for emotional distress resulting from the witnessing of injury to another.  Amodio v. Cunningham, supra, 182 Conn. 84.   The court observed that states that did permit the cause of action had taken steps to limit the scope of liability such that “[i]n addition to the requirement that the plaintiff bystander perceive the negligent act, it appears that recovery from emotional distress resulting from injury inflicted upon another is also restricted to situations where the injury to the third party is manifest contemporaneously with the negligent act.”  Id., 91–92.   Accordingly, the court concluded that “[m]erely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior ․ is insufficient to maintain a cause of action for emotional distress to a bystander.”  Id., 90.

The court then proceeded to examine the case before it.   Without formally adopting the Dillon rule, the court concluded that the plaintiff could not recover on the facts presented because the injuries suffered by her daughter and which were witnessed by the plaintiff did not manifest until “a considerable period of time” after the doctor's alleged malpractice had occurred.  Amodio v. Cunningham, supra, 182 Conn. 93.   Accordingly, even under Dillon, the plaintiff failed to state a cause of action.

The Supreme Court addressed the issue of bystander emotional distress in the context of medical malpractice again in 1988 in Maloney v. Conroy, supra, 208 Conn. 392, a case that presented similar claims to those in Amodio and which is at the nexus of the present dispute.   In Maloney, the plaintiff alleged in her complaint that following surgery upon her mother, she remained at her mother's bedside and observed her mother's health deteriorate under the negligent care of the defendants, ultimately culminating in her mother's death.   The trial court granted a motion to strike on the ground that bystander emotional distress was not cognizable in Connecticut.

Before the Supreme Court, the plaintiff requested a reconsideration of the Amodio holding in light of a more recent California case, Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal.Rptr. 661 (1985), in which the California Supreme Court extended the Dillion rule to include circumstances where a bystander witnesses a misdiagnosis and is contemporaneously aware that the misdiagnosis is causing harm to another.   The Supreme Court agreed with the plaintiff that she had alleged facts sufficient to support a cause of action for bystander emotional distress under the rule in Ochoa.   Nevertheless the court declined to find error in the Superior Court's grant of the motion to strike as follows.

The court first examined the challenges posed by the recognition of bystander emotional distress as cognizable.   In doing so, it observed:  “Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned, apart from the problem of permitting bystander recovery, that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act ․ Perhaps for this reason, even those courts that permit recovery for emotional disturbance alone have erected some barriers not applicable to bodily injury claims.”  (Citation omitted.)   Maloney v. Conroy, supra, 208 Conn. 397–98.

With that concern in mind, the court continued “[t]he present case, for example, poses the troublesome question of causation involved in distinguishing the plaintiff's natural grief over the loss of her mother, with whom she had lived for many years and whose death she might well have had to bear even in the absence of malpractice, from the effects upon her feelings of her belief that the suffering and death of her mother were attributable to the defendant's conduct.”  Id., 399.   The court thus concluded, “[w]e are not inclined to resume our dalliance with the Dillon guidelines that we held not to be satisfied when we disposed of the malpractice emotional disturbance claim in Amodio that was so similar to the case before us.”  Id., 402.   It further held “[w]hatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that ‘there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.’  “ Id.

In support of the above conclusion, the court also noted that its holding was guided by several weighty policy considerations.   First, the court cited concern that permitting bystander emotional distress claims in the context of medical malpractice would “curtail substantially the extent of visitation of patients that is presently permitted.”  Id. Second, the court did not want to create a rule that would cause physicians to feel “obligated to respond to the usually uninformed complaints of visitors concerning the treatment of patients more for fear of stimulating emotional disturbances upon the part of the visitors than because of the merits of the complaint.”  Id., 403.   Third, the court cited its concern to avoid a rule that would lead to the distraction of physicians who would be forced to concern themselves with visitors as well as patients.  Id.

Such was the jurisprudential paradigm in which the court addressed the bystander emotional distress claim that was brought in Clohessy v. Bachelor, supra, 237 Conn. 31, a case that arose from an automobile accident.   In Clohessy, the specific question addressed by the court was “whether a parent and sibling can recover damages for the emotional anguish they sustained by witnessing the parent's other young child being fatally injured as a result of an accident caused by the negligence of the defendant.”  Id., 32.   In order to provide an answer, the Clohessy court reexamined its holdings in Strazza v. McKittrick, supra, 146 Conn 714, Amodio v. Cunningham, supra, 182 Conn. 80, and Maloney v. Conroy, supra, 208 Conn. 392.   The court also examined numerous cases in other jurisdictions, including the California Supreme Court's decisions in Dillon v. Legg, supra, 68 Cal.2d 728 and Ochoa v. Superior Court, supra, 39 Cal.3d 159.

The court first observed that “two principal schools of thought have emerged in support of allowing bystanders a cause of action for emotional distress—' zone of danger' and ‘reasonable foreseeability.’  “ Clohessy v. Bachelor, supra, 237 Conn. 38.   The court then noted that:  “Although we discussed Dillon at length in both Amodio and Maloney, in neither case did the factual scenario present the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress.   Central to this court's concern in Amodio and Maloney was that ‘the etiology of emotional disturbance is usually not readily apparent as that of a broken bone following an automobile accident’ ․ The problem is compounded when the underlying act of negligence with respect to the victim is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged.   For this precise reason most courts have recognized that a cause of action for bystander emotional distress must be confined in order to avoid limitless liability.”   (Citation omitted;  internal quotation marks omitted.)  Id., 44.

The court continued, “[t]his case affords us with an opportunity to reexamine this court's holding in Strazza in light of Amodio and Maloney and the law regarding bystander emotional distress that has developed over the last four decades.  Strazza did not provide this court with an analysis for rejecting bystander emotional distress;  rather, the court relied on the state of the law in other jurisdictions at the time ․” Id. Thus the court concluded “[w]e believe the time is ripe to recognize a cause of action for bystander emotional distress.   Under certain circumstances, which are hereinafter delineated, we conclude that a tortfeasor may owe a legal duty to a bystander ․ Accordingly, we now overrule Strazza to the extent that it conflicts with our opinion in this case.”  Id., 46.   The court did not explicitly overrule Maloney or Amodio.

Thereafter, the court elected to adopt the “reasonable foreseeability” rule because it found such a rule to be less likely to produce arbitrary results than the zone of danger test.  Id., 47–49.   In order to limit the vast expansion of liability attendant to a reasonable foreseeability rule, the court also adopted four specific limitations.   In particular, today a plaintiff claiming bystander emotional distress in Connecticut must allege:  “(1) he or she is closely related to the injury victim ․ (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury ․ (3) the injury of the victim [is] substantial ․ and (4) the bystander's emotional injury [is] serious, beyond that which would be anticipated in a disinterested witness ․” Id., 56.

In the wake of Clohessy, the judges of the Superior Court have split as to whether Clohessy abrogated Maloney.   For example, Wattman v. New Hartford Volunteer Fire Dept., supra, 30 Conn. L. Rptr. 554, concluded that Maloney was not overruled by Clohessy.   The court, Rogers, J., found it significant that Clohessy did not expressly overrule Maloney, that subsequent decisions of the Supreme Court had cited Maloney with approval;  see, e.g., Mendillo v. Board of Education, 246 Conn. 456, 480, 717 A.2d 1177 (1998) (“our cases suggest that the imposition of third party liability on a tortfeasor is an exception” citing Maloney v. Conroy, supra, 208 Conn. 392);  and noted that Maloney raised special policy concerns that Clohessy did not address.

In contrast, in Drew v. W. Backus Hospital, supra, 25 Conn. L. Rptr. 534, the court, Hurley, J., concluded that although Maloney had not been overruled, “the scope of the Maloney holding is very narrow, and fits squarely within the contours of the Clohessy framework.   The Maloney court was careful to limit its holding to ‘the circumstances pleaded in the complaint.’  ․ Indeed, those circumstances pleaded in the complaint addressed by Maloney would similarly fail to state a valid claim under Clohessy.”   (Citations omitted.)  Id., 536–37.   Accordingly, the Drew court concluded that Clohessy would permit a plaintiff to state a cause of action for bystander emotional distress resulting from medical malpractice if the plaintiff could satisfy the Clohessy standard.  Id., 537.

This court concludes that the majority viewpoint has the better argument.   Throughout Strazza, Amodio, Maloney and Clohessy, a constant refrain of the Supreme Court is concern surrounding the problem of causation—i.e., attenuation—in bystander emotional distress claims.   The court remarked in both Amodio and Maloney, and again in Clohessy, that this concern is especially pressing in the context of medical malpractice because that context presents the unique challenge of separating emotional distress suffered as a result of the death or injury of a loved one, which may occur absent any malpractice, from emotional distress that is directly connected to or actually caused by any malpractice involved.   Even though Clohessy addressed general concerns surrounding causation in bystander emotional distress via the four restrictions it placed upon such liability, the Clohessy court did not state that those restrictions also solved the more unique problem presented by medical malpractice actions.   Further, nothing in the court's analysis suggests how the four restrictions might accomplish such a goal.   This all despite the fact that the Clohessy court was clearly aware of Maloney.

In the years following Clohessy, including as recently as this year, our appellate courts have continued to cite Maloney with approval, indicating that its central holding remains sound.   See, e.g., Mendillo v. Board of Education, supra, 246 Conn. 480 (“our cases suggest that the imposition of third-party liability on a tortfeasor is an exception” citing Maloney v. Conroy, supra, 208 Conn. 392);  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, (2013) (“although the trial court improperly characterized [the plaintiff's] claim as a bystander emotional distress claim in the context of observed medical malpractice, a cause of action not recognized in Connecticut;  see Maloney v. Conroy, supra, 208 Conn. 392;  the concerns that led our Supreme Court to reject the bystander cause of action lend support to our decision today.”  [Emphasis added.] ).

Further, Clohessy did not directly address the unique policy concerns raised by Maloney;  namely, distraction of our state's physicians and medical professionals and a reduction in the overall level of care provided, as well as a reduction in visitation rights.   Nor could it have.   The case before the court in Clohessy did not concern medical malpractice.

Accordingly, in light of the facts that (1) Clohessy did not overrule Maloney, (2) the unique causation problems recognized by Maloney were not explicitly addressed by Clohessy, (3) more recent decisions from our appellate courts indicate that Maloney remains good law and (4) the policy concerns underlying the Maloney holding remain true today, this court agrees with the majority viewpoint that bystander emotional distress is not cognizable in the context of medical malpractice.

Regarding the present motion to strike, the court concludes that the allegations of counts three, four, seven and eight fail to allege a cause of action for bystander emotional distress because such a cause of action is not recognized in the context of medical malpractice.

Such would be the court's conclusion even if it agreed with the minority view.   At most, the facts in the complaint, when read in their most favorable light, allege that the plaintiffs witnessed the alleged misdiagnosis of the decedent and that the injury did not manifest until “a considerable period of time” after the alleged tortious conduct.   The plaintiffs do not allege that they witnessed a sudden traumatic event.⁶

CONCLUSION

For the foregoing reasons, the defendant's motion to strike is granted in its entirety.

ELLIS, J.

FOOTNOTES

FN1. Gary Maffe and Guy Maffe are both the sons of the decedent.   Joe Maffe is the husband of the decedent..  FN1. Gary Maffe and Guy Maffe are both the sons of the decedent.   Joe Maffe is the husband of the decedent.

FN2. The operative complaint in this action was filed subsequent to the instant motion to strike via a request to file an amended complaint.   The defendants did not file an objection to that request, and represent in their memorandum in reply that they do not object to the amended complaint.   The motion to strike will, therefore, be considered as a motion to strike counts three, four, seven and eight of the amended complaint..  FN2. The operative complaint in this action was filed subsequent to the instant motion to strike via a request to file an amended complaint.   The defendants did not file an objection to that request, and represent in their memorandum in reply that they do not object to the amended complaint.   The motion to strike will, therefore, be considered as a motion to strike counts three, four, seven and eight of the amended complaint.

FN3. The remaining four counts of the complaint—counts one, two, five and six—are not the subject of the present motion to strike.   Counts one and five allege causes of action for wrongful death on behalf of the decedent's estate against the hospital and Cardiac Specialists, respectively.   Counts two and six allege causes of action for loss of consortium on behalf of Joe Maffe against the hospital and Cardiac Specialists, respectively.   The plaintiffs do not allege any cause of action in any count on behalf of Guy Maffe in the amended complaint..  FN3. The remaining four counts of the complaint—counts one, two, five and six—are not the subject of the present motion to strike.   Counts one and five allege causes of action for wrongful death on behalf of the decedent's estate against the hospital and Cardiac Specialists, respectively.   Counts two and six allege causes of action for loss of consortium on behalf of Joe Maffe against the hospital and Cardiac Specialists, respectively.   The plaintiffs do not allege any cause of action in any count on behalf of Guy Maffe in the amended complaint.

FN4. In their request for leave to file an amended complaint, the plaintiffs represent that the amended complaint is intended to clarify confusion regarding which of the two brothers—Guy Maffe or Gary Maffe—was present during the misdiagnosis of the decedent's heart condition.   The plaintiffs indicate in their request to amend that the original complaint purported to allege causes of action for bystander emotional distress on behalf of Guy Maffe, when it should have done so on behalf of Gary Maffe.   The plaintiffs represent that “only [the decedent's] son Gary [Maffe] and widower Joe Maffe were present during both the misdiagnosis and subsequent death of [the decedent].”  (Emphasis in original.)   The request attributes the mistake to a “scrivener's error,” and the amended complaint reflects the proposed change by alleging causes of action for bystander emotional distress on behalf of Gary Maffe in counts four and eight.   As stated in their memorandum in reply, the defendants do not object to the amended complaint.Confusion arises from the fact that the plaintiffs' memorandum in objection to the defendants' motion to strike, which the plaintiffs filed after they filed their amended complaint, states:  “[t]he plaintiff Gary Maffee (sic) concedes that he was not present during the critical times required under the law for bystander emotional distress claims and withdraws his claim.   The two remaining additional plaintiffs allege ․ that they personally observed the negligent actions of the defendants when the defendants negligently discharged [the decedent] ․” While it appears that the reference was properly to Guy Maffee rather than Gary Maffe and therefore a scriveners error, the court need not resolve this confusion at this time because, as set forth more fully below, the court concludes that the each of the possible various plaintiffs has failed to allege a cause of action for bystander emotional distress under any scenario..  FN4. In their request for leave to file an amended complaint, the plaintiffs represent that the amended complaint is intended to clarify confusion regarding which of the two brothers—Guy Maffe or Gary Maffe—was present during the misdiagnosis of the decedent's heart condition.   The plaintiffs indicate in their request to amend that the original complaint purported to allege causes of action for bystander emotional distress on behalf of Guy Maffe, when it should have done so on behalf of Gary Maffe.   The plaintiffs represent that “only [the decedent's] son Gary [Maffe] and widower Joe Maffe were present during both the misdiagnosis and subsequent death of [the decedent].”  (Emphasis in original.)   The request attributes the mistake to a “scrivener's error,” and the amended complaint reflects the proposed change by alleging causes of action for bystander emotional distress on behalf of Gary Maffe in counts four and eight.   As stated in their memorandum in reply, the defendants do not object to the amended complaint.Confusion arises from the fact that the plaintiffs' memorandum in objection to the defendants' motion to strike, which the plaintiffs filed after they filed their amended complaint, states:  “[t]he plaintiff Gary Maffee (sic) concedes that he was not present during the critical times required under the law for bystander emotional distress claims and withdraws his claim.   The two remaining additional plaintiffs allege ․ that they personally observed the negligent actions of the defendants when the defendants negligently discharged [the decedent] ․” While it appears that the reference was properly to Guy Maffee rather than Gary Maffe and therefore a scriveners error, the court need not resolve this confusion at this time because, as set forth more fully below, the court concludes that the each of the possible various plaintiffs has failed to allege a cause of action for bystander emotional distress under any scenario.

FN5. “The reasonable foreseeability theory in Dillon defined three factors for determining whether emotional injury to a bystander was reasonably foreseeable:  (1) Whether the plaintiff was physically located near the scene of the injury-producing accident;  (2) Whether the plaintiff experienced shock directly from contemporaneous observance of the accident;  (3) Whether the plaintiff and the injured third party were closely related.”  (Internal quotation marks omitted.)  Drew v. W. Backus Hospital, supra, 25 Conn. L. Rptr. 537 n.3..  FN5. “The reasonable foreseeability theory in Dillon defined three factors for determining whether emotional injury to a bystander was reasonably foreseeable:  (1) Whether the plaintiff was physically located near the scene of the injury-producing accident;  (2) Whether the plaintiff experienced shock directly from contemporaneous observance of the accident;  (3) Whether the plaintiff and the injured third party were closely related.”  (Internal quotation marks omitted.)  Drew v. W. Backus Hospital, supra, 25 Conn. L. Rptr. 537 n.3.

FN6. This conclusion applies with equal force whether the brother who witnessed the alleged malpractice was Guy Maffe or Gary Maffe..  FN6. This conclusion applies with equal force whether the brother who witnessed the alleged malpractice was Guy Maffe or Gary Maffe.

Bellis, Barbara N., J.