Erica Domand Executrix v. Miguel Caldera et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 107

Whether the court should grant the defendants' motion to strike count four of the complaint on the grounds that the claim is barred by the statute of limitations and is insufficient to state a cause of action.

FACTS

The plaintiff Erica Domond, as the executrix for the estate of Christopher Domond, filed a four-count complaint and summons on the defendants Miguel Caldera and Crossroads, Inc. (Crossroads) on September 7, 2011.   In her complaint, the plaintiff alleges the following facts.   The plaintiff was appointed executrix for the estate of her son Christopher Domond, who died after his birth was induced at Yale New Haven Hospital.   Crossroads is a medical facility in New Haven, Connecticut.   Miguel Caldera is the executive director and chief clinician of that facility.   The plaintiff was a patient of the facility at the time in question.

The plaintiff further alleges that from about July 1, 2009, until about July 16, 2009, Caldera and his servants, agents, apparent agents, or employees undertook the care, treatment, monitoring, diagnosing and supervision of the plaintiff.   While under Caldera's care, the plaintiff suffered a diabetic coma which required the induced birth of her son prior to gestation, resulting in his death.   Crossroads or its agents altered the medical records of the plaintiff when they knew or should have known that their alterations would cause injury to the plaintiff's potential case.   The plaintiff seeks money damages, punitive damages, double or treble damages, and costs.

On May 9, 2013, the defendants filed a motion to dismiss the first three counts of the complaint on the ground that the plaintiff failed to file a certificate of good faith and a written opinion from a similar health care professional as required by General Statutes § 52–190a.   The motion was granted by the court, Zemetis, J. The defendants then filed a motion to strike count four accompanied by a memorandum of law on July 9, 2013, on the grounds that the claim is barred by the statute of limitations and fails to allege facts sufficient to state a cause of action.   The plaintiff filed an objection to the motion to strike and a memorandum of law on August 28, 2013.   The defendants filed a reply to the objection on September 4, 2013.

DISCUSSION

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Santorso v. Bridgeport Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “[I]n 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 ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Santorso v. Bridgeport Hospital, supra, 349.

Although “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 omitted;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Accordingly, “[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.)  Santorso v. Bridgeport Hospital, supra.

The defendants first argue that the claim is barred by the statute of limitations.   The plaintiff responds that a motion to strike is not the proper vehicle to bring a challenge based on the statute of limitations.  “A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).  “[T]here are two exceptions to that holding.   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).  “The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239–40, 624 A.2d 389 (1993).   The second exception “exists ․ when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., supra, 344–45, n.12.

Neither exception applies here.   The plaintiff's cause of action in count four is for spoliation of evidence, which exists at common law and not by statute.   The parties have not reached an agreement that a motion to strike is proper to raise the issue.   Therefore the defendants' motion to strike on the ground of the statute of limitations is denied.

The defendants' second argument is that the allegations contained in the complaint are legally insufficient to state a cause of action for spoliation of evidence.   The defendants claim that the complaint fails to allege or imply that:  1) the defendants knew of a pending civil action by the plaintiff,¹ 2) the defendants acted in bad faith, and 3) the plaintiff was unable to establish a prima facie case without the evidence in question.   The plaintiff argues that the required elements are sufficiently pled in the complaint.

“[T]he tort of intentional spoliation of evidence consists of the following essential elements:  (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff;  (2) the defendant's destruction of evidence;  (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action;  (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence;  and (5) damages.”  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244–45, 905 A.2d 1165 (2006).  “To establish proximate causation, the plaintiff must prove that the defendants' intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation.”  Id., 246.  “[T]his state requires the plaintiff to prove a complete inability to litigate his underlying cause of action ․” (Emphasis added.)   Id., 246 n.13. “The absence of direct evidence ․ is not, however, fatal to a plaintiff's claims, and a plaintiff, under certain circumstances, may establish a prima facie case using circumstantial evidence ․” Metropolitan Property and Casualty.   Ins. Co. v. Deere and Co., 302 Conn. 123, 132, 25 A.3d 571 (2011).

The plaintiff has not properly pled a complete inability to litigate her underlying cause of action as a result of the defendants' alleged spoliation of evidence.   Count four of the complaint states only that the destruction of the medical records in question would cause injury to the plaintiff's potential case.   Even construed in the light most favorable to the pleader, the complaint does not imply that the plaintiff is completely unable to establish a prima facie case based solely on the claim that her case has been injured.²  Although the plaintiff argues that she is entitled to every piece of available evidence to prove her case, that is not the standard for a spoliation of evidence claim.   The plaintiff's claim that the information was relevant to her case similarly fails to establish that such information was so essential that its destruction rendered the plaintiff completely without a prima facie case.   Accordingly, the plaintiff's pleading in count four is legally insufficient as pled.

CONCLUSION

For the foregoing reasons, the court grants the defendants' motion to strike count four without prejudice to the plaintiff to replead with appropriate allegations in the spirit of Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013);  Conn. Coalition for Justice v. Rell, 295 Conn. 240, 990 A.2d 206 (2010).

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. The defendants appear to abandon this argument in their reply to the plaintiff's objection.   There, they state that elements one, two, and five of the spoliation of evidence claim “are not properly disputed in this Motion to Strike.”   Element one is the defendant's knowledge of a pending civil action..  FN1. The defendants appear to abandon this argument in their reply to the plaintiff's objection.   There, they state that elements one, two, and five of the spoliation of evidence claim “are not properly disputed in this Motion to Strike.”   Element one is the defendant's knowledge of a pending civil action.

FN2. The plaintiff acknowledges in her objection to the motion to strike that there might be other evidence of the defendants' breach of the standard of care..  FN2. The plaintiff acknowledges in her objection to the motion to strike that there might be other evidence of the defendants' breach of the standard of care.

Roche, Vincent E., J.