Jonathan Manson, M.D. v. Danbury Hospital (2013)

MEMORANDUM OF DECISION

I

PROCEDURAL BACKGROUND

The parties in this action are the plaintiff, Jonathan Manson, M.D., and the defendant Danbury Hospital.   In his complaint, the plaintiff has filed a breach of contract claim as against the defendant for the alleged breach of a written Agreement and General Release (“the Agreement”) entered into between the parties on January 28, 1992.   The plaintiff alleges that the breach of the Agreement by the defendant prevented him from gaining employment in the legal and medical fields.   The defendant filed several special defenses to this claim, including the defense that the plaintiff's failure to file his breach of contract claim within six years following the date of the alleged breach barred his claim under General Statutes § 52–576(a) and that his failure to file a claim within three years following the date of the alleged breach bars his claim under General Statutes § 52–581(a).

The defendant has moved for summary judgment on the Complaint and this court heard oral argument on the defendant's motion for summary judgment on March 4, 2013.

II

FACTUAL BACKGROUND

The plaintiff was employed as a medical resident in the defendant's residency training program, which was supposed to be for a term of one year commencing on July 1, 1991 and ending on June 30, 1992.  (Compl.¶ 1.)   After five months, the plaintiff was dismissed from the program on December 9, 1991.

Shortly after his dismissal, the plaintiff retained an attorney, Donald Grossfield.   Attorney Grossfield was sent a copy of all documents contained in the plaintiff's Danbury Hospital personnel file.   The plaintiff concedes that he did not see any of the documents contained in his personnel file which was produced to Attorney Grossfield.  (Pl.Dep. Tr. 71–72.)   On or about January 28, 1992, the plaintiff and the defendant entered into the Agreement.

The portion of the Agreement that is at issue in this case is the fourth “whereas” clause.   The fourth “whereas” clause in the Agreement provides in relevant part:  “Danbury Hospital has further agreed that (a) my personnel file shall reflect the resignation as stated above and shall contain no reference whatsoever to ‘termination,’ (b) no ‘explanatory statement’ of any type shall be submitted to the American Medical Association pursuant to Paragraph 12 of this contract since such statement is submitted only if the contract is terminated by the Hospital ․ and (c) no Adverse Action Report shall be submitted to the National Practitioner's Data Bank pursuant to the Federal Health Care Quality Improvement Act of 1986 because (i) no conduct on my part while employed at Danbury Hospital warrants such report and (ii) I am not a physician licensed to practice in the State of Connecticut and therefore am not covered by the Act.” (Ex. 2.)

After the plaintiff's dismissal from the defendant's residency program, he was accepted into a residency program at Dartmouth–Hitchcock Medical Center (“DHMC”) in Hanover, New Hampshire.   Issues once again arose with the plaintiff's behavior.   On or about September 29, 1992, the plaintiff signed a handwritten authorization to permit Dr. Iannini, then the Director of the defendant's Department of Medicine, to speak with Dr. William Hickey, Chairman of DHMC's Department of Pathology, about the plaintiff.  (Pl.Dep. Tr. 97–100.)   The following day, the plaintiff signed a typed authorization and release permitting Dr. Iannini to fully discuss and disclose to Dr. Hickey all matters surrounding the termination of the plaintiff's internship.  (Pl.Dep. Tr. 100.)   A short time later, the plaintiff was dismissed from the DHMC program.

Following his dismissal, the plaintiff hired attorney Donald LoCascio, an attorney in New Hampshire, to investigate and potentially pursue a claim as against the defendant relating to his termination from the DHMC program.   (Pl.Dep. Tr. 94.)   Attorney LoCascio forwarded a release and authorization for the plaintiff's records at Danbury Hospital, including his personnel file.   (Pl.Dep. Tr. 96.)   In response to Attorney LoCascio's request, in October 1992, a copy of plaintiff's personnel file was sent by the defendant to Attorney LoCascio.   The plaintiff concedes in this action that he did not see what documents his attorney received and does not know what was contained in his personnel file at that time.  (Pl.Dep. Tr. 109.)

On or about September 11, 1997, the defendant received a letter from the State of Maryland Board of Physician Quality Assurance (“BPQA”) along with a subpoena duces tecum and an authorization signed by the plaintiff.  (Pl. Dep. Tr. 119;  Ex. 8.) The BPQA letter stated that the plaintiff applied for medical licensure but “failed to disclose that he had participated in a residency program at Danbury Hospital” and that “the Board is requesting that any and all information contained in Dr. Manson's file be forwarded to the BPQA's compliance analyst.”  (Ex. 8.) The subpoena requested “a copy of any and all documents regarding the application, employment and termination of Jonathan David Manson, M.D., which materials are in your possession or control.”  (Ex. 8.) The authorizations signed by the plaintiff and provided to the defendant stated:  “I agree that anybody, including, but not limited to government agencies, the National Practitioner Data Bank, hospitals and other licensing bodies, can release to you any information necessary for the processing of my application for medical licensure in Maryland.”  (Ex. 8.)

In response to the request, authorization and subpoena, Dr. Iannini of Danbury Hospital sent a letter dated September 15, 1997 to the Maryland BPQA. (Pl. Dep. Tr. 169;  Ex. 9.) Dr. Iannini's letter stated in part that the plaintiff “was dismissed from the program because of various behaviors that were unprofessional, the most serious of which was the theft of stationery which he used to forge letters of recommendation to other training programs and to forge the signature of our Chief of Cardiology.”  (Ex. 9.) The Maryland BPQA subsequently denied the plaintiff's application for licensure and he appealed.  (Ex. 10.)

In a written decision dated August 13, 1998, an administrative law judge for the Maryland Office of Administrative Hearings described the evidence against the plaintiff for making false or deceptive statements in the medical licensure application process.   Listed among the exhibits by the judge was the September 15, 1997 letter from Dr. Iannini of Danbury Hospital to the BPQA from which the judge concluded that the plaintiff was dismissed from the defendant's postgraduate program at Danbury because of unprofessional behavior, including theft and forgery.   The plaintiff filed exceptions to the administrative law judge's decision.   In a Final Decision and Order dated December 9, 1998, the BPQA adopted the findings of the administrative law judge.  (Ex. 11.)   The BPQA concluded, not only that the plaintiff lacked the requisite good moral character to become a physician in Maryland, but that he had also “fraudulently and deceptively attempted to obtain a license in this State, and has willfully made false representations when seeking licensure.”  (Ex. 11.)

On or about August 2, 2001, the plaintiff wrote to the defendant inquiring about Dr. Iannini's September 15, 1997 letter and asserted that Dr. Iannini's letter was a breach of the Agreement because it did not reference the Agreement.  (Pl. Dep. Tr. 149–50;  Ex. 12.)   On August 31, 2001, the defendant's attorney responded to that letter, and explained that the Agreement only addressed the contents of the plaintiff's personnel file and not the contents of other files at the hospital and that the plaintiff had expressly authorized the disclosure of information by Dr. Iannini.  (Ex. 13.)   On September 5, 2001, the plaintiff wrote to the defendant's outside counsel again asserting that Dr. Iannini's letter breached the Agreement.  (Ex. 14.)

By 2002, the plaintiff had gone to law school, graduated and applied to the New Mexico and Texas bars.  (Pl.Dep. Tr. 150.)   The plaintiff contacted the defendant once again on February 7, 2003, advising counsel for the defendant that he had to discuss Dr. Iannini's 1997 letter with the state Supreme Court for New Mexico where he was then applying for admission.  (Ex. 15.)   In his “Response to Answer and Special Defenses” which was filed in this action, the plaintiff admitted that he knew in 2002 that his personnel file contained certain references to his termination and the circumstances under which he was terminated, and he believed such records breached the Agreement.  (Pleading No. 124.)   When the plaintiff was applying to the New Mexico Bar following his graduation from law school, the issue of the discrepancies between his bar application and documents from his Danbury Hospital personnel file were raised by the Board of Bar Examiners.  (Pleading No. 124.)   The plaintiff admitted in this action that:  “In a letter dated October 7, 2002, [the New Mexico Board of Bar Examiners] noted that there were discrepancies between statements in the Agreement and documents obtained from the personnel file and other licensing boards.”  (Pleading No. 124, p. 8.) Plaintiff also admitted that he had to spend several months discussing his Danbury Hospital personnel file in front of the New Mexico Board of Bar Examiners in 2002 and 2003.  (Pleading No. 124.)   The plaintiff further claims in his “Response to Answer and Special Defenses” that it was foreseeable and consequential at that time that accusations of criminal battery and needing psychiatric care that were contained in the personnel file could prevent employment in the legal field or other fields or cause a medical licensure application to be denied or severely delayed.   (Pleading No. 124.)

On September 2, 2010, the plaintiff once again contacted the defendant, this time contacting Phyllis Zappala, the defendant's Senior Vice President of Human Resources and attached the Agreement.  (Ex. 16.)   In that email, the plaintiff stated:

I was a medical resident at Danbury Hospital in 1991, and resigned from my position and have attached my Agreement and General Release.   Since that time the agreement has not been followed, as can be seen by the attached comments by Dr. Iannini, comments, which have been repeated at least three times to state boards and other programs directors.   His references to being “dismissed” also violated the agreement, because the employee file was not to have any reference whatsoever to “termination,” and therefore a termination did not occur.   I lost the position at Dartmouth Hitchcock medical center largely due to Dr. Iannini's comments, and had to withdraw other license application in one state.  (Ex. 16.)

On September 7, 2010, Ms. Zappala responded to the plaintiff's e-mail noting that he had provided a written authorization and release to permit Dr. Iannini to speak with Dr. Hickey at DHMC about all matters surrounding his termination.  (Ex. 17.)

On December 20, 2010, the plaintiff filed a complaint as against the defendant in Danbury Superior Court alleging defamation.   On January 5, 2011, the defendant appeared and removed the case to federal court.   The defendant filed a motion to dismiss the plaintiff's defamation claims based on statutes of limitations grounds, which was granted on July 28, 2011.   See Manson v. Danbury Hospital, Case 3:11 CV 00012–PCD (D.Conn.2011) (Ex. 18).   The plaintiff withdrew the remainder of his suit at that time.

On September 16, 2011, the plaintiff filed his second complaint in Danbury Superior Court against the defendant, this time alleging that the defendant breached the Agreement.   The defendant once again removed the case to federal court and after the plaintiff agreed not to seek damages in excess of $20,000, the defendant consented to the plaintiff's motion to remand the case back to this court.   The defendant filed several special defenses to the plaintiff's sole breach of contract claim, including the defenses that the plaintiff's failure to file his breach of contract claim within six years following the date of the alleged breach bars his claim under General Statutes § 52–576(a) and that his failure to file a claim within three years following the date of the alleged breach bars his claim under General Statutes § 52–581(a).   The plaintiff did not file a reply asserting a fraudulent concealment claim.

III

DISCUSSIONA. Summary Judgment

The defendant has moved for summary judgment on the sole count in plaintiff's complaint for breach of contract.  “Practice Book § 17–49 provides that 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [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 ․ [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.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“[T]he genuine issue aspect of summary judgment 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 ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case ․” (Citations omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “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 such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

B. Breach of Contract and “Whereas” Clause

The defendant first moves for summary judgment on the grounds that the plaintiff's complaint for breach of contract is based exclusively on the fourth “whereas” clause of the Agreement and that the language contained in this “whereas” clause is not an enforceable part of the Agreement.

The fourth “whereas” clause in the Agreement provides in relevant part:  “Danbury Hospital has further agreed that (a) my personnel file shall reflect the resignation as stated above and shall contain no reference whatsoever to ‘termination,’ (b) no ‘explanatory statement’ of any type shall be submitted to the American Medical Association pursuant to Paragraph 12 of this contract since such statement is submitted only if the contract is terminated by the Hospital ․ and (c) no Adverse Action Report shall be submitted to the National Practitioner's Data Bank pursuant to the Federal Health Care Quality Improvement Act of 1986 because (i) no conduct on my part while employed at Danbury Hospital warrants such report and (ii) I am not a physician licensed to practice in the State of Connecticut and therefore am not covered by the Act.” (Ex. 2.)

In support of its claim that this “whereas” clause is not an enforceable part of a contract, the defendant cites to an Appellate Court case, DeMorais v. Wisniowski, 81 Conn.App. 595, 841 A.2d 226, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004).   In DeMorais, the Appellate Court held that “[r]ecitals in a contract, such as ‘whereas' clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract.”   Id., 610.   In reviewing the Agreement, however, and its operative terms, it is clear that the fourth “whereas” clause at issue is not merely an explanation of the circumstances surrounding the execution of the contract.   It sets forth certain binding obligations of the defendant with respect to the plaintiff.   Accordingly, the defendant's contention that, as a matter of law, the defendant cannot be in violation of the fourth “whereas” clause, is without merit.   The defendant's motion for summary judgment on this ground is denied.

B. Statutes of Limitations

The defendant next contends that even if the fourth “whereas” clause is operative and enforceable and that the defendant breached that clause, the plaintiff's claim of breach of contract still fails as a matter of law because the plaintiff's claim is barred by the applicable statute of limitations.

The defendant first cites to General Statutes § 52–576(a) which provides in relevant part:  “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ․” The defendant also cites to General Statutes § 52–581(a) which provides in relevant part:  “No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”   As the plaintiff has claimed in his complaint that the breach arises out of the written Agreement, the court will address the defendant's argument that the plaintiff's breach of contract claim is barred by the statutes of limitation set forth in § 52–576(a).

“The law concerning when a breach of contract action accrues is well settled.  [The Supreme Court] has stated that [i]n an action for breach of contract ․ the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted ․ Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action.”  (Citations omitted;  internal quotation marks omitted;  emphasis in original.)  Tolbert v. Connecticut General Life Ins. Co., 257 Conn. 118, 124–25, 778 A.2d 1 (2001).

“The true test for determining the appropriate date when a statute of limitations begins to run is to establish the time when the plaintiff first successfully could have maintained an action.   That is, an action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time ․ A cause of action does not accrue for the purposes of a statute of limitations until all elements are present, including damages, however trivial.   However, the occurrence of an act or omission—whether it is a breach of contract or of a duty—that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred;  it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later.   The fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations.”  (Citations omitted;  internal quotation marks omitted.)  Rosenfield v. I. David Marder & Associates, LLC, 110 Conn.App. 679, 686, 956 A.2d 581 (2008).

In an effort to avoid the bar from the six-year statute of limitations, the plaintiff claims in his opposition papers to this motion that the defendant fraudulently concealed information that would have supported his breach of contract claim and that he did not discover that he had a cause of action until 2010.   The plaintiff, however, failed to plead this as an affirmative matter in his “Response to Answer and Special Defenses” filed in this action.  “In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it.”  Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983);  see also Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998) (denial of fraudulent concealment defense as plaintiff failed to plead).   As the plaintiff failed to plead this special defense of fraudulent concealment prior to this motion for summary judgment, it cannot be asserted as a ground for opposing the motion.

Even if the plaintiff had properly pleaded a fraudulent concealment claim, the plaintiff still needs to establish that he can meet the criteria of such a claim.   Pursuant to General Statutes § 52–595, to toll the statute of limitations via fraudulent concealment, the plaintiff must plead and prove:  that the defendant (1) “had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action;  (2) intentionally concealed these facts from the [plaintiff];  and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on [his] cause of action.”  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007).   “[A]lthough fraudulent concealment generally requires an affirmative act of concealment, nondisclosure is sufficient when the defendant has a fiduciary duty to disclose material facts.”  Id., 107;  see also Iacurci v. Sax, 139 Conn.App. 386, 419, 51 A.3d 736 (2012).   In this case, the plaintiff has not alleged and there is no evidence to support that a fiduciary relationship existed between the parties.  “[T]he party alleging [fraudulent concealment] bears the burden of proving it with clear, precise and unequivocal evidence.”   (Internal quotation marks omitted.)  Falls Church Group, Ltd v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 110.

Upon review of the plaintiff's opposition to this motion for summary judgment, the plaintiff cannot establish that the defendant intentionally concealed from him facts necessary to establish his breach of contract cause of action for the purpose of delaying him from filing a claim against the defendant.   In fact, the evidence is to the contrary, as the defendant repeatedly kept producing the contents of the plaintiff's personnel file which contained references to his termination, not only to the plaintiff's attorneys but to other known medical and legal examining boards.

In 1992, the undisputed facts show that the plaintiff's attorney, Donald Grossfield, was provided with a copy of “all documents contained in the Danbury Hospital file for [the plaintiff].”  (Ex. 4.) In 1993, after his termination from DHMC, the plaintiff retained yet another attorney, Donald LoCascio, to determine whether to sue the defendant for the disclosures it made to DHMC. (Pl.Dep. Tr. 96–97.)   This attorney requested plaintiff's personnel file and such file was produced to the plaintiff's attorney.   The plaintiff in his opposition to this motion has failed to provide an affidavit of either Attorney Grossfield or Attorney LoCascio showing that the defendant withheld documents that would have shown that plaintiff had a claim for breach of contract.

Even the plaintiff admits that, under his interpretation of the Agreement, he knew of certain documents in his personnel file that breached the Agreement, including Dr. Iannini's 1997 letter.   In attempting to explain why he did not file suit despite having knowledge of Dr. Iannini's 1997 letter, the plaintiff stated:  [The letter from Dr. Iannini] “is one the reasons I filed the case ․ This [letter] is a breach of contract obviously, this is a breach of contract, but the breach of contract was, remember, it's how many years old.   It's 1997, so it's right, it's a six year limit in Connecticut, I understand.   So I would have had to file that by 2003, right?   So that, that would have been out of the statute of limitations, wouldn't it?   If I was suing under breach of contract for this, I would have had to file by 2003.”  (Pl.Dep. Tr. 169–70.)

In addition, in his “Response to Answer and Special Defenses” that the plaintiff filed in this action, he has admitted that he knew in 2002 when he was applying to the New Mexico bar that there were documents in his personnel file that breached the Agreement.  (See Pleading No. 124.)   Specifically, the plaintiff stated:  “In a letter dated October 7, 2002, [the New Mexico Board of Bar Examiners] noted that there were discrepancies between statements in the Agreement and documents obtained from the personnel file and other licensing boards.”  (Pleading No. 124.)   Plaintiff also admitted that he had to spend several months discussing the Danbury Hospital file in front of the New Mexico Board of Bar Examiners in 2002 and 2003 and was not admitted to the bar because of such documents.  (Pleading No. 124.)   The plaintiff further claimed in his “Response to Answer and Special Defenses” that it was “foreseeable and consequential at that time that accusations of criminal battery and needing psychiatric care that were contained in the personnel file could prevent employment in the legal field or other fields or cause a medical licensure application to be denied or severely delayed.”  (Pleading No. 124.)

By the plaintiff's own admissions, he was aware that the documents provided by the defendant to these Boards included documents outside of those that were permitted by the Agreement.   The court finds that the plaintiff's claims that he was unaware of these alleged issues until 2010 and that the defendant intentionally concealed this claim from him have no merit.

The undisputed facts set forth in the extensive exhibits filed by both parties show that the plaintiff was well aware of a possible breach by the defendant of the fourth “whereas” clause in the Agreement as early as 1992 and continuing on into 1997, 1998, 2001, 2002 and at the latest in 2003.   The plaintiff, however, filed this lawsuit in September 2011, more than six years after the cause of action accrued and the plaintiff in his opposition to this motion for summary judgment is unable to demonstrate that the defendant intentionally or fraudulently concealed any facts relating to the plaintiff's allegations.

The court finds that there is no genuine issue of material fact that the plaintiff's breach of contract claim is barred by both the six-year statute of limitations set forth in General Statutes § 52–576(a) and the three-year statute of limitations set forth in General Statutes § 52–581(a).   Accordingly, summary judgment is granted in favor of the defendant on the Complaint.

IV

CONCLUSION

The plaintiff in this action has failed to present evidence sufficient to avoid summary judgment on his sole count of breach of contract.   Accordingly, this court finds that there is no genuine issue of material fact that the plaintiff's claim for breach of contract is barred by the applicable statutes of limitations and the defendant's motion for summary judgment on the Complaint is granted.

BY THE COURT

Ozalis, J.

Ozalis, Sheila A., J.