Kathleen M. Avery v. Maxim Healthcare Services, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE SPECIAL DEFENSES (# 128)

FACTS AND BACKGROUND

The plaintiff, Kathleen Avery commenced this medical malpractice action against the defendant on September 14, 2012, with a return date of October 9, 2012.   The action arises out of the defendant's alleged negligence in the treatment of the plaintiff's decedent Paul Avery.   The defendant filed a motion to dismiss on November 8, 2012, on the ground that the good faith opinion letter, filed pursuant to General Statutes § 52–190a, was insufficient.   The plaintiff subsequently filed an objection and a request for leave to amend the complaint to include an amended good faith letter, which was granted by the court (Wilson, J.).   The court heard argument on the defendant's motion to dismiss and, on April 17, 2013, denied the motion to dismiss in a detailed memorandum of decision [55 Conn. L. Rptr. 891].

The defendant filed a motion to reargue on May 2, 2013, to which the plaintiff filed an objection.   On June 7, 2013, the court denied the defendant's motion to reargue and issued a detailed memorandum of decision stating the reasons for the denial [56 Conn. L. Rptr. 227].

On July 2, 2013, the defendant filed an answer and two special defenses to the plaintiff's first amended complaint.  (Docket Entry No. 126.)   The defendant's first special defense alleges that the court lacks personal jurisdiction over the defendant under General Statutes §§ 33–929 and 52–190a because “the plaintiff has failed to obtain and attach to her complaint a written opinion letter authored by a similar health care provider in accordance with the provisions of Connecticut General Statutes § 52–190a.”   Defendant's Answer, supra.   The defendant's second special defense alleges that the plaintiff “fails to state a claim upon which relief may be granted as the plaintiff has failed to obtain and attach to her complaint a written opinion letter authored by a similar health care provider in accordance with the provisions of Connecticut General Statutes § 52–190a.”  Id. The plaintiff filed a motion to strike the defendant's special defenses on grounds that both defenses are not appropriate special defenses because the issue of lack of personal jurisdiction has already been decided by the court, and the court's decision is the law of the case.   The matter was heard at short calendar on September 18, 2013.

DISCUSSION

Practice Book § 10–39 provides in relevant part:  “(a) Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   The court must “construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   In ruling on a motion to strike a special defense or special defenses, the role of the trial court is “to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint [or answer] ․” Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

A

First Special Defense

The defendant, in its first special defense alleges that “[t]he court lacks personal jurisdiction over the defendant, a foreign corporation, pursuant to Conn. Gen.Stat. §§ 33–929 and 52–190a because the plaintiff has failed to obtain and attach to her complaint a written opinion letter authored by a similar health care provider in accordance with the provisions of Connecticut General Statutes § 52–190a.”   Def.'s Answer and Special Defenses, supra.

The plaintiff has moved to strike the first special defense on grounds that lack of personal jurisdiction is not an appropriate special defense, and because the issue of personal jurisdiction was already addressed by this court.

“As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway ․ Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues.”  (Internal quotation marks omitted.)  Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004).

The court concludes that the defendant's special defense of lack of personal jurisdiction is legally insufficient since the claim of lack of personal jurisdiction must be raised by a motion to dismiss.  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  Practice Book § 10–30.  “The motion to dismiss shall be used to assert ․ lack of jurisdiction over the person.”   (Emphasis added.)  Practice Book § 10–31(a).

“[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10–6 ․” Pitchell v. Hartford, 247 Conn. 422, 433 (1999).   Section 10–6 requires the sequence or “order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint ․ (5) The defendant's answer (including any special defenses) to the complaint ․

“Because the claim of lack of personal jurisdiction must be raised as a motion to dismiss and because it was not, it has been waived.   The special defense of lack of personal jurisdiction is legally insufficient.”   Fernandes v. Adduci, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08 5008240 (Feb. 4, 2009, Tanzer, J.).

In addition, “[a]lthough there is some authority holding that the denial of a motion to dismiss based upon lack of jurisdiction does not preclude the filing of a special defense raising the same jurisdictional issue, the ․ more numerous and more persuasive cases bar the assertion of lack of personal jurisdiction as a special defense.   See [Day v. Benisovich, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV10 6002676, (October 14, 2011, Danaher III, J.) (assertion of lack of personal jurisdiction is not an appropriate special defense, particularly after the court has denied a motion to dismiss that advanced the same claim of lack of personal jurisdiction.   The court noted that unlike the statute of limitations, lack of personal jurisdiction is not included in the list of defenses that must be specially pleaded pursuant to Practice Book § 10–50”) ];  Center Capital Corp. v. Hall, Superior Court, judicial district of Hartford, New Britain at New Britain, Docket No. 452084, 11 Conn. L. Rptr. 215 (February 24, 1994, Lavine, J.) [same];  Weiss v. Town of Greenwich, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 119062, 9 Conn. L. Rptr. 61 (April 30, 1993, Rush, J.) (‘where jurisdictional issues are decided adversely to the defendant and where rights of appeal are preserved by virtue of Practice Book 146 [now 10–34], the court believes that it is not appropriate to plead the same matters as a special defense thereby requiring a relitigation of the issue at the trial on the merits');  Ecsedy v. Jack Tar Village Resorts, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 287576 (November 24, 1992, Leheny, J.) (a special defense is not the proper vehicle to challenge the court's personal jurisdiction).   But see Hammond v. Parker, 20 Conn.Sup. 193, 196, 129 A 2d 793 (1956) (it is proper for the defendant to raise a jurisdictional question for a second time via a special defense because it is more efficient to relitigate the jurisdictional issue at the trial level rather than face the prospect of a reversal for jurisdictional reasons after a lengthy trial on the merits).”   Firstar Trust Co. v. Clave, Superior Court, judicial district of Stamford at Stamford, Docket No. CV96 0152229 (Aug. 20, 1998, Hickey, J.) [22 Conn. L. Rptr. 689].

Accordingly, the court concludes that the defendant's first special defense is not legally sufficient because the claim of lack of personal jurisdiction is not an appropriate special defense and should be raised by way of a motion to dismiss.

The plaintiff further argues that the defendant's first special defense should be stricken because the issue of personal jurisdiction has already been decided by this court, and is the law of the case.   The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  General Electric Capital Corp. v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Such rulings are not to be lightly changed McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000).   The doctrine is a flexible one, but the reasons behind it are compelling.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id.

The defendant's first special defense alleges that the court lacks personal jurisdiction.   The first special defense is based upon defective service of process upon the defendant on grounds that the plaintiff failed to obtain and attach to her complaint a written opinion letter authored by a similar health care provider in accordance with the provisions of § 52–190a.   As previously noted, this court addressed this issue in its memorandum of decision denying the defendant's motion to dismiss, and in its memorandum of decision on the defendant's motion to reargue/reconsider.   The defendant is simply attempting to relitigate the jurisdictional issues, which this court previously decided against it in both memoranda of decisions.   The defendant has not presented any new or overriding circumstance in its special defense which would give rise to the personal jurisdiction issue being relitigated at trial.   By denying the plaintiff's motion to strike, this court would effectively be allowing the defendant to relitigate an issue that this court has thoroughly addressed on two occasions This court is hesitant to change its own ruling where it is of the opinion that the issue was correctly decided, and, in the absence of some new or overriding circumstance.   Accordingly, the plaintiff's motion to strike the defendant's first special defense is granted.

B

Second Special Defense

The defendant alleges in its second special defense that “[t]he plaintiff fails to state a claim upon which relief can be granted as the plaintiff has failed to obtain and attach to her complaint a written opinion letter authored by a similar health care provider in accordance with the provisions of Connecticut General Statutes § 52–190a.”   Def.'s Answer and Special Defenses, supra.

“[O]ur Supreme Court recently clarified the procedural function and scope of the obligation to file the written opinion of a similar health care provider ․ In Morgan v. Hartford Hospital, 301 Conn. 388, 401–02, 21 A.3d 451 (2011), the court, after reviewing all of the prior case law regarding the issue, held that although ‘the attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice ․ [t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52–190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter’;  and is, therefore, waived if not timely challenged by a motion to dismiss filed within the thirty day time period of Practice Book § 10–32.¹

The Supreme Court reaffirmed this clarification in a recent decision in which the court held that the proper procedural vehicle to challenge the sufficiency of an opinion letter under § 52–190a is by way of a motion to dismiss and not a motion to strike, because the lack of a sufficient opinion letter constitutes insufficiency of service of process and not the insufficiency of a cause of action.   Citing its opinion in Bennett v. New Milford Hospital, 300 Conn. 1, 29, 12 A.3d 865 (2011), the court noted in Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013), that:  “We determined that, ‘[i]nasmuch as the legislative history indicates that a motion to dismiss pursuant to § 52–190a(c) is the only proper procedural vehicle for challenging deficiencies with the opinion letter, and that dismissal of a letter that does not comply with § 52–190a(c) is mandatory, we agree with the Appellate Court's reasoning in its ․ decisions in Votre v. County Obstetrics & Gynecology Group, P.C., [113 Conn.App. 569, 582–83, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) ], and Rios v. CCMC Corp., [106 Conn.App. 810, 820–21, 943 A.2d 544 (2008) ], both of which concluded that the grant[ing] of a motion to dismiss, rather than a motion to strike, is the proper statutory remedy for deficiencies under § 52–190a ․ Bennett v. New Milford Hospital, Inc., supra, 29.’  “ (Emphasis added).   Id., 349.

Thus, as the court reaffirmed in Santorso, the failure to comply with § 52–190a does not render a complaint legally insufficient but rather implicates the court's personal jurisdiction which, in the present case, the defendants have already challenged by way of a motion to dismiss and lost.   Had the defendants sought to challenge the plaintiff's compliance with § 52–190a by way of a motion to strike, the motion would have been denied as procedurally improper.   See Santorso and Bennett, supra.   As this court has previously discussed, the defendant's second special defense like its first special defense seeks to relitigate the personal jurisdiction issue which is not appropriate in light of the court having previously addressed the issue.   Accordingly, the defendant's second special defense like its first special defense is legally insufficient and the plaintiff's motion to strike the second special defense is therefore granted.

CONCLUSION

Accordingly, for the foregoing reasons, the plaintiff's motion to strike the defendants' special defenses is granted.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 10–32 provides:  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 and within the time provided by Section 10–30.”.  FN1. Practice Book § 10–32 provides:  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10–6 and 10–7 and within the time provided by Section 10–30.”

Wilson, Robin L., J.