Opinion
UWYCV135016457
02-15-2017
Zygmunt Golek, M.D. v. Ury & Moskow, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS AFFIDAVITS AND EXHIBITS #188 MOTIONS FOR SUMMARY JUDGMENT #S 161, 193
Barbara Brazzel-Massaro, J.
I. BACKGROUND
This action was initiated by a writ, summons, and complaint with a Return Date of June 25, 2013. The complaint names as defendants, Ury & Moskow, LLC, Attorney Neal Moskow, Attorney Stephanie Dellolio, Attorney Deborah Garskof, and Attorney Anthony LaBella. The complaint originally set forth six causes of action, that is; Legal Malpractice, Breach of Fiduciary Duty, CUTPA, Breach of Contract, Breach of Oral Contract or Implied Contract, and Breach of Implied Covenant of Good Faith and Fair Dealing. The court, Zemetis, J., granted a motion to strike counts two through six. The only remaining count is a claim of legal malpractice.
The defendant filed a motion for summary judgment dated July 1, 2016 arguing that the plaintiff cannot establish the necessary elements of causation and the complaint must fail. The plaintiff filed a memorandum in opposition to the motion on September 2, 2016 with supporting exhibits, affidavits, and documents. Additionally, the plaintiff filed a motion for summary judgment as to the claim of legal malpractice dated September 20, 2016 and filed on September 21, 2016 after the motion for permission to file the summary judgment was granted by the court. In support of the motion for summary judgment the plaintiff submitted a number of affidavits and exhibits.
The motion for summary judgment was accompanied by a memorandum and Exhibits consisting of Deposition testimony of Golek taken in the instant action (Exhibit A), Deposition testimony of Golek from the action of Golek v. St. Mary's (Exhibit B); Deposition testimony of Dudrick for the action of Golek v. St. Mary's (Exhibit C); Deposition testimony of Turner from the Golek v. Ury & Moskow LLC. Et Al. action (Exhibit D); Moskow Opening Statement (Exhibit E); Moskow Closing Statement (Exhibit F); Shea Closing Statement (Exhibit G); Verdict Form in Golek v. St. Mary's et al. (Exhibit H); ABS 7/13/11 letter (Exhibit I); ABS 4/16/13 letter (Exhibit J); ABS 3/4/13 letter (Exhibit K); and Excerpts of Votre Deposition (Exhibit L).
The plaintiff's Exhibits in opposition consist of affidavits of Turner, Lewis and Votre and Golek as well as exhibits for each affidavit and Golek's amended interrogatories as well as a number of other documents. The exhibits in opposition to the summary judgment are over 500 pages attached in two filings for the opposition.
The defendant filed a memorandum in opposition to the plaintiff's motion dated October 21, 2016 with exhibits and attachments. In addition to the cross motion for summary judgment the parties have each filed memorandum regarding the submission of the affidavits which were attached in support of the motions and objections by the plaintiff. They contend that the affidavits were submitted by plaintiff's counsel were " sham" affidavits and the documents were unauthenticated, thus, they cannot be considered by the court in deciding the legal issues involved in the motions for summary judgment.
II. FACTUAL BACKGROUND
The plaintiff, Zygmunt Golek, (Golek) became interested in the medical field after the death of his child. In particular, he had a goal of becoming a cardiothoracic surgeon. After completing his medical studies outside of the United States, he returned to continue his training and residency in the United States. He performed a one-year surgical residency at a different hospital. (PGY 1--Post Graduate Year 1). In August 2004 the plaintiff began a residency program at St. Mary's Hospital in Waterbury, Connecticut. The residency was in the general surgery program. The residency program at St. Mary's involved six levels of study which amounted to six years of study. The levels at St. Mary's Hospital were labeled PGY 1 (the first clinical year) and followed with the second year PGY 2, the postdoctoral research year noted as PGY 3, the fourth clinical year as PGY 4, the chief resident year as PGY 5 and the most senior level of residency as PGY 6. Because the plaintiff had completed one year, he began the residency program at St. Mary's in the PGY 2 level. He entered into a residency agreement with St. Mary's Hospital. He completed PGY 2 and then continued to PGY 3, which he also completed. In July 2006, the hospital " skip promoted" the plaintiff to PGY 5 position. At the end of PGY 5, the plaintiff asked Dr. Dudrick to write a letter of recommendation on his behalf for a fellowship program at the University of California. It was after this request that Dr. Dudrick and St. Mary's informed the plaintiff that he was fired from the program and that they would not promote him to PGY 6, as chief resident. Thereafter, the hospital offered him another residency program which required him to repeat his PGY 5 year. The plaintiff sought the services of the defendant, Ury & Moskow, LLC, to help him negotiate a pre-litigation resolution with St. Mary's. This was not successful. When unsuccessful in settlement negotiations with the hospital, Dr. Golek filed a legal action against the hospital, Dr. Stanley Dudrick, the surgery program director and the Accreditation Council for Graduate Medical Education (ACGME) in the Superior Court, Golek v. St. Mary's Hospital, Inc. et al., X02 UWY CV-08 5008961. The plaintiff sought a restraining order and temporary injunction to prevent the hospital from making inaccurate or false statements about the plaintiff to potential employers. The court granted the plaintiff's temporary restraining order and injunction. As a result of the restraining order the hospital refused to provide any information to the plaintiff's prospective employers. The plaintiff requested that his counsel obtain a less restrictive order so that he could search for new employment and programs. The plaintiff contended that this restraining order was overly broad, caused him to lose the opportunity to secure a position with a new employer. The plaintiff proceeded with the civil action and as a result of the failure to obtain an agreement prelitigation, he left the program at St. Mary's Hospital. Attorney Neal Moskow was responsible as the lead attorney in the Superior Court action. Portions of this complaint were stricken and summary judgment was entered on other counts. Prior to the jury trial the hospital made the plaintiff a settlement offer for $150,000, plus assistance in finding the plaintiff a new position. Although the hospital's attorney invited the counsel for the plaintiff to make a counter proposal, the defendant, Ury & Moskow advised the plaintiff to accept the offer " as is" and failed to advise him to engage in negotiating the settlement. Based on the advice of Ury & Moskow, the plaintiff declined the settlement offer. A trial took place and a jury returned a verdict as to liability and damages for the defendants after a trial. The plaintiff appealed the decisions regarding the motions and the jury verdict. The Appellate Court affirmed the decision of the trial court. Golek v. St. Mary's Hospital, 133 Conn.App. 182, 34 A.3d 452 (2012). The plaintiff now brings this action alleging that Attorney Moskow and other counsel in the firm of Ury & Moskow, LLC negligently represented him in the underlying pre-litigation involvement and the civil action. He has filed this legal action alleging the defendants engaged in professional malpractice. The plaintiff alleges in the complaint that the conduct of Attorney Neil Moskow and counsel who represented him in the underlying action denied him a recovery because they: 1) failed to resolve the matter early on because it failed to obtain crucial information which would have resolved the matter pre-litigation; 2) the defendants obtained a temporary restraining order and injunction which was overly broad and thus prevented him from obtaining employment and the defendants failed to act to correct the injunction to allow the release of information to obtain employment; 3) the defendants failed to obtain information which would demonstrate that St. Mary's and Dr. Dudrick did not receive the proper authorization for the " skip" from the American Board of Surgery (ABS) and knew the skip would have an impact on the plaintiff; 4) the defendants failed to obtain information or contact witnesses at the request of the plaintiff as part of the discovery process to demonstrate the skip promotion was fatal to his education and thus not pursuing the discovery was either intentional or negligent; 5) the defendants failed to contact the American Board of Surgery and obtain critical information until after the unsuccessful jury trial although being made aware of false representations from St. Mary's and Dudrick; 6) the defendants failed to have a qualified expert ready to testify at trial; 7) the defendants negligently handled negotiations and improperly advised the plaintiff as to the offer and a submission of a counter offer. The plaintiff strongly argues that the failure to contact the ABS and in particular to obtain the correspondence from Mr. Lewis concerning the " skip promotion" and its involvement and perception of the impact was an integralbasis of his claims against the hospital. The defendants have denied each of the allegations of the plaintiff and they have filed a summary judgment arguing that the plaintiff has failed to provide a factual basis to demonstrate the plaintiff was damaged in any manner as a result of the representation by Ury & Moskow, LLC or its counsel. The plaintiff has also submitted a motion for summary judgment dated September 1, 2016 contending they are entitled to partial summary judgment on Count One for Legal Malpractice. The defendants filed an opposition to the motion for summary judgment dated October 21, 2016 and the plaintiff filed a reply on November 21, 2016 and thereafter defendant filed a request to file a sur-reply on November 29, 2016 but no sur-reply was filed. Each memorandum is accompanied with extensive affidavits and exhibits.
The skip promotion allowed him to completely forego the necessary time that would be devoted to the PGY 4 level.
One of the controversies as to the promotion was that the plaintiff took examinations (ABSITE Examinations) at the end of this year which were indicative of the ability to pass the American Surgery Certification Examination and his scores were low on the two sets of qualifying examinations.
The jury did find in favor of the plaintiff on the breach of contract claim but found that the plaintiff did not satisfy the burden of proof as to the damages.
Both motions for summary judgment and opposition to the motions consist of interrelated arguments as well as exhibits and affidavits in support and in opposition. Therefore, the court has considered the motions together in determining if summary judgment should be granted in any manner as argued by the parties in their memorandum, affidavits and exhibits.
III. DISCUSSION
A. SHAM AFFIDAVITS
In addressing the two separate motions for summary judgment, the objections and replies which have been submitted, the court will first address the claims as to the affidavits and evidence which were submitted in opposition and in support for the motions. The parties have each submitted memorandum addressing the affidavits and the allegation that in particular the plaintiff's affidavits of Turner, Lewis and Votre are contradictory to their disclosures or not provided in the expert disclosures at all and thus should not be considered by the court. The court first addresses the attacks on the affidavits in what the defendant describes as sham affidavits. The plaintiff argues that the affidavits are not contradictory and that the affidavit of Dr. Lewis is provided as a fact witness and thus the court should utilize them for purposes of denying the defendants' motion for summary judgment and in support of the plaintiff's motion for summary judgment. Whether they are considered by this court may have an impact upon the court's analysis and decision in the summary judgments. A sham affidavit is " an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiants prior sworn deposition testimony." In re Citx Corp., 448 F.3d 672, 679 (3rd Cir. 2006). " [A sham affidavit is an] affidavit that contradicts clear testimony previously given by the same witness, [usually] used in an attempt to create an issue of fact in response to a motion for summary judgment." (Internal quotation marks omitted.) Id. In DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 2 A.3d 963 (2010), the court found that a subsequent inconsistent affidavit should not be disregarded but that it creates a question of fact. The court noted that the usual method to address an affidavit that the party contends is contradictory is to point to the statements but it is not to preclude testimony. Id., 617. The DiPietro court also addressed the consideration of an affidavit after the deposition for purposes of amplifying prior deposition testimony as the plaintiff indicate they have done in this action. Such consideration of the affidavits as a means of supplementing the deposition testimony is permissible. Citing Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2nd Cir. 1998), Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030, 376 U.S. App.D.C. 330 (D.C.Cir. 2007).
The defendants argue that the affidavits of plaintiff's experts, Attorney Kenneth Votre and Dr. James Turner submitted in opposition to the motion for summary judgment should be rejected because they contain information which they define as contradictory. However, a review of each of the voluminous affidavits which were provided by the plaintiff demonstrates that the affidavits provide very detailed and in some instances repetitious clarifications of the expert opinions. As a whole however, the affidavits include the opinions which are the crux of the complaint and the issues which the plaintiff has raised as the basis for his claim of legal malpractice. The court agrees that the affidavits are far more extensive than the expert disclosure and the deposition inquiry but does not agree that such additional clarification creates a sham affidavit. " The fact that [the] testimony actually provided greater detail and specificity than had been disclosed is irrelevant. Such granularity is not required by the Practice Book or our case law. To require such specificity of disclosure would place a burden on parties that is inconsistent with the underlying purpose of Practice Book § 13-4(4), which is only to assist parties in preparation of their case and to avoid unfair surprise." Vitali v. S. New England Ear, Nose, Throat & Facial Plastic Surgery Grp., LLP, 153 Conn.App. 753, 764, 107 A.3d 422, 429 (2014). The affidavits of Dr. Turner and Attorney Votre are extremely thorough. This is not to say that the affidavits contain testimony which is inconsistent with the opinions expressed in the disclosure or the deposition testimony of the experts. For instance, the defendants contend that Dr. Turner in his affidavit challenges the testimony of defendants' legal experts and is unqualified to do so. They also contend that Turner did not make reference to certain facts or material and did not offer an opinion on evidence they deem important. This is not contradictory but is simply a disagreement of the impact of the program including the requirements of ABS and the ability of Dr. Golek to complete his training. As to Attorney Votre, the defendants contend that his affidavit reaches beyond his deposition testimony. As stated earlier, this is not unusual given the discovery process. The defendants contend that because his affidavit offers further opinion testimony it must be excluded because the discovery was closed. Such an argument ignores the consistent opinion testimony of Attorney Votre which in the simplest form propounds an opinion that the defendants failed to properly represent the plaintiff in pre-litigation settlement negotiations, failed to obtain the documentary discovery that would establish that St. Mary's in fact engaged in a pattern of fraud and misrepresentation, failed to properly advise the plaintiff as to settlement negotiations, failed to communicate with the plaintiff as to the information received about the policy of a skip for the ABS; and failed to address the broad temporary restraining order and injunction which caused his ongoing inability to obtain a new position and the necessary certification. These opinions in the affidavit provide consistent support for his position in support of the opposition tothe defendants' summary judgment and although are more thoroughly supported do not change the plaintiff's support or create what can be viewed as a sham affidavit.
The affidavit of Dr. Turner which was submitted in opposition to the summary judgment does not contain contradictions to his previous deposition testimony. The defendants provide some excerpts of the deposition testimony. Reviewing these excerpts and the affidavits which directly address the issues on summary judgment do not amount to what this court finds are either contradictory or different than his disclosure as an expert. The affidavit of Dr. Turner is certainly much more specific and addresses the issues raised by the defendants. The information is not irrelevant or new but simply not inquired into within the deposition.
The defendants contend that the affidavits of Dr. Lewis cannot be considered because he was never disclosed as an expert. The plaintiff argues that the affidavits are not submitted as expert testimony but instead is information of a fact witness. The plaintiff has included two separate affidavits with multiple exhibits from Dr. Lewis. The affidavits were dated March 10 and March 11, 2016. Each affidavit contains separate subject areas regarding the involvement of the American Board of Surgery (ABS). The March 10, 2017 affidavit of Dr. Lewis authenticates a number of documents which are contained in the records of the American Board of Surgery related to St Mary's resident program and the program as it related to Dr. Golek. The affidavit contains a graphical analysis that Dr. Lewis created from information supplied by Mr. Biester, who is a non-disclosed employee of ABS. Within the affidavit Dr. Lewis provides opinions regarding the number of the pass-fail analysis for residency testing as well as an analysis and comparison of the number to other years. This analysis was performed by Dr. Lewis to explain or create testimony about the testing of ABS and the relationship of the testing to the performance of the residents. This information and analysis is specialized knowledge which is well beyond the pale of an ordinary person and thus is expert testimony. The plaintiff did not disclose Dr. Lewis or the information and thus the motion in respect to the March 10 affidavit and exhibits is granted.
However, the second affidavit dated March 11, 2016 is an authentication of documents which were part of the files of ABS. The affidavit does not contain opinion testimony and is part of the factual testimony of the documents kept by ABS with no other analysis performed by Dr. Lewis. Thus, the motion in respect to this affidavit and exhibits is not granted. As part of the argument regarding the affidavits and exhibits, the defendants generally contend that the documents and exhibits submitted as part of the memorandum are unauthenticated. They state without specificity that the documents include communications including emails purportedly between the parties and non-party witnesses, time entry records, unverified records from non-parties, incomplete and partial transcripts lacking reporter certification, notes and/or summaries, agreements, reference letters and discovery materials. The defendants also contend that the documents contain hearsay which is inadmissible. The plaintiff submitted an objection in which he argues that the documents are authenticated and that the defendants failed to provide a single example. The Practice Book, § 17-47, contemplates that documents to a motion for summary judgment be made under oath or be otherwise reliable. " [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e. that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted, internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). The argument by the defendants that the documents as a whole are unauthenticated provides a very overreaching and unsupported argument. While the defendants may be correct as to some of the documents, a review of the documents as a whole does not permit the court to reach this conclusion. The plaintiff has include affidavits of Attorney Votre, Dr. Golek, Dr. Turner, and Dr. Lewis which provide authentication for many of the documents. In analyzing the multiple motions before the court, it has not utilized documents, transcripts or testimony which is inappropriate for its conclusions. Without specific objections the court will not make a finding of wholesale unauthenticated documents. Thus the court denies the motion to suppress affidavits, documents and evidence in support of or in opposition to the motions for summary judgment.
B. LEGAL STANDARD
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Assocs. No. 1 v. Ins. Co. of Pa., 231 Conn. 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o 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 . . . 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). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10-11, 938 A.2d 576 (2008)
C. LEGAL MALPRACTICE
" In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." Grimm v. Fox, 303 Conn. 322, 329-30, 33 A.3d 205 (2012). " Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services . . ." (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984).
As part of each party's motions for summary judgment they produced substantial affidavits of doctors associated with the various certification agencies and from legal counsel as to the standard of care for the attorneys representing Mr. Golek in the underlying action against St. Mary's and Dudrick. There were many defects in representation raised in the extensive affidavit of Attorney Votre in support of the plaintiff's position. After outlining the documentation which plaintiff contends was necessary and supportive for the cause of action against the hospital, the plaintiff's expert provides a compelling argument that the lack of knowledge on the part of the defendants as to the process, the regulations and the procedure followed by the hospital created an issue as to whether the information would have supported the cause of action for fraud, misrepresentation or other actions. The plaintiff through the affidavit of Dr. Turner and Attorney Votre made it clear that their opinion is that the involvement of the American Board of Surgery and its records were crucial in defining and demonstrating the various causes of action raised by Dr. Golek. The testimony of Attorney Moskow indicates that at the time of his legal representation, he had little knowledge of the process required and the mandatory approvals and review which would be required. It is uncontroverted that the defendants did not seek discovery from the American Board of Surgery and approached the matter as a simple breach of contract action. In accordance with the affidavit of Attorney Votre the professional negligence arose because the defendants failed to conduct discovery which would have indicated that it was not solely the plaintiff's failure to execute a contract which was offered to him but it was the fact that St. Mary's had no authority to offer either the skip or the repeat to the plaintiff and they were aware of the failure to first obtain approval of the ABS for the skip and thereafter for the repeat of the R3 to permit him to satisfy the board requirements. The plaintiff provided an affidavit of Attorney Mitchell and his opinion as the expert for the defendants offers a different perception of the facts. Attorney Mitchell expresses the view that the decision of Dr. Golek to refuse the offer by St. Mary's to finish out his program is the reason he has been unsuccessful. Attorney Mitchell offers an opinion that the attorneys were not required to engage in the discovery of ABS policy particularly because at the time the plaintiff could have entered into an agreement that would have permitted him to complete the program in two years which would have been the original time frame without the skip promotion. Whether this is correct certainly depends on whether there is sufficient supporting testimony that the new program was available, acceptable and authorized. This is certainly a question for the jury at trial. There are conflicting opinions as to whether counsel should have researched this area more closely and been in a position to provide different advise as to the offer or its impact on the plaintiff. The affidavit of Dr. Turner offers an inordinate amount of material and certainly different views as to the residency program at St. Mary's and the rationale for what happened to Dr. Golek. Dr. Turner is familiar with the process of board certification and the usual application but he is not familiar with the legal aspect. His opinions as to the irregularities of the process that was followed creates some questions but the issue of whether the application of this complicated educational criteria to the legal action by Dr. Golek amounted to legal malpractice is not clear.
One of the arguments in the previous action was that Dr. Golek was responsible for his inability to complete the requirements because he failed to accept an offer to repeat the year but this argument is now suspect if the defendant failed to discover that St. Mary's had no authority to propose such an offer and if accepted, the offer would have simply left Dr. Golek with another year of work and no closer to professional certification. The knowledge of this fallacy should have been utilized to pursue the claims of breach of contract, fraud and misrepresentation.
The plaintiff also contends that the failure to engage in the discovery which produced the documents that were part of the March 11, 2016 affidavit of Dr. Lewis lends support for a cause of action because they contend the actions of St. Mary's and Dr. Dudrick amounted to intentional or negligent misrepresentation and fraud which was not pursued because of the lack of discovery. The defendants admit that they did not engage in discovery which would have permitted them to pursue the alleged fraudulent actions of St Mary's in the initial skip promotion and thereafter the settlement discussions to permit a repeat and to discover that St. Mary's had provided incomplete or inaccurate records of the training of Dr. Golek to the ABS which would forever impact his ability to complete his Certification. Each of the experts provides varied opinions as to the responsibility of counsel to understand the policies and criteria of the ABS. The court recognizes that litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and thus lawyers who advise clients with respect to settlements should have the same skill, knowledge and diligence with which they pursue all legal tasks. (Citations omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 175, 646 A.2d 195 (1994). With divergent legal opinions as to what counsel should have known or sought raises genuine issues of fact as to legal representation by the defendants and the impact upon the underlying civil action.
Attorney Votre in his affidavit discusses the bad faith claim that was brought against St. Mary's Hospital and in particular discusses the importance of the facts and the documents which were not disclosed to counsel nor which counsel sought as part of the discovery in the action. Attorney Votre expresses an opinion that the facts regarding the ABS review and the lack of approval as well as other factors would have resulted in a finding of bad faith against St. Mary's. He states particularly in his affidavit that, " The skip promotion information and the fact that the 2006-2007 year was invalid in the eyes of the American Board of Surgery would have, more likely than not have changed the outcome of the trial to favor Dr. Golek for breach of contract, the covenant of good faith and fair dealing, as well as support additional substantial claims against St. Mary's and Dr. Dudrick for fraud and/or misrepresentation." (Votre Affidavit ¶ 45.) Attorney Votre also expresses an opinion that the argument concerning the absence of causation for damages in the first action would not be valid if the defendants had pursued the misrepresentation and fraud claims more vigorously with the proper discovery. He supports these opinions with some of the statements in the affidavit of Dr. Turner such as that St. Mary's failed to provide information to the plaintiff that the skip promotion would not be allowed thus creating evidence on the claim of fraud. (Votre Affidavit ¶ 60.) Of significance in establishing a genuine issue of fact is the opinion of Attorney Votre that " . . . [i]t was essential for an attorney representing Dr. Golek to obtain information regarding his record and his skip promotion--I disagree with the defendant's contention that learning that the skip was " unauthorized would 'eviscerate' the case, if it did, then the defendants fell below the standard of care in not determining this as soon as possible and informing Dr. Golek that the failure to obtain ABS authorization eviscerated and destroyed his case." (Votre Affidavit ¶ 27.) This opinion leaves open the question of whether additional claims and utilizing this information to the jury would have changed the case and resulted in a favorable decision for Dr. Golek.
The plaintiff has also alleged that the failure of the defendants to correctly address the temporary restraining order and injunction which was filed by them in the initial stages of the legal action caused him to lose opportunities for new employment. This order stated, " Stanley J. Dudrick be barred and restrained from communication with anyone not employed by Saint Mary's Hospital . . . concerning the Plaintiff, Zygmunt Golek, " and also included that " Saint Mary's Hospital, Inc. cooperate in a commercially reasonable manner with the Plaintiff Zygmunt Golek's, search for alternate employment by providing documentation concerning the dates of employment, positions held, and salary paid in a complete and timely basis." In particular, this order provides that St. Mary's Hospital or its' employees, agents or servants were prohibited from communicating to anyone about Dr. Golek. The reference to the general information which would be provided by the hospital does not address the plaintiff's claim that correspondence would be required from those supervising the programs to supplement an application for new employment or relocation for completion of residency. The deposition of Dr. Dudrick indicated that as a result of this order the hospital personnel would not write letters that were necessary for Dr. Golek to get into another program. Although the defendants were aware of this, the plaintiff alleges that they did not attempt to correct or adjust the court order and he was unable to obtain a new position. In particular, the plaintiff argues that as a result of this, he lost the ability to accept a position at the University of Toledo. The defendants have argued that the order allowed release of some information but they do not address the testimony of Dr. Dudrick which confirms that he would not write letters concerning new applications. Expert counsel for the defendants testified that the order is a rather common type of injunction for these cases. Attorney Mitchell actually indicated that there were no legal mistakes by the defendants but it was St. Mary's who was being difficult about giving information. The issue still remains as to whether the defendants as counsel for the plaintiff were obligated to address the implementation of the temporary restraining order by St. Mary's. The expert simply denies any responsibility which is contrary to the plaintiff's position and that of his expert that he requested the defendants address this concern which they admittedly did not address. The issue as to the temporary restraining order was not addressed and thus the issue remains as to whether the defendants did not satisfy their duty to clarify or amend the order.
The defendants contend that there is no evidence that even if the plaintiff was able to prove his action against Saint Mary's and Dr. Dudrick for all of the reasons enunciated in the motions that the plaintiff would have been unsuccessful because he could not prove damages. In particular, the defendants contend that no matter what occurred in the legal action, the plaintiff was obligated to complete his years of training and that ultimately ABS would not permit the shortening of his residency or the splitting of years four and five between different medical training institutions. The defendants argue that the plaintiff's decision to reject an offer by St. Mary's to repeat and continue with the residency broke the chain of causation as to damages. The plaintiff contends in his affidavit that the defendants recognized that he had a " strong case of money damages . . . I am confident that we will recover for you." (Golek Aff. ¶ 75.) The plaintiff argues that the defendants' position as to damages was so strong that the defendants changed the fee agreement from an hourly fee to a contingency fee. Id. In this regard, the defendants further contend that it was solely the decision of Dr. Golek to pursue another program and thus all damage thereafter is his responsibility. This view by the defendants of the decisions by Dr. Golek ignores not only the basis of the various causes of action that were ignored by the defendants and in this respect ignores the full picture as to the basis of his decision which reverts back to the very claim that the defendants did not conduct the proper discovery or offer proper legal advice as to fraud and intentional misrepresentation with full knowledge of the position of ABS and the certification requirements. These claims of fraud, misrepresentation and improper legal advice provide genuine issues of material fact as to the causes of action and the potential damages. Dr. Golek indicates in his affidavit that his decision to reject St. Mary's offer to repeat his R4 year was as a result of the advice of his counsel. (Golek Aff. ¶ 44-59.) Thus, there is a genuine issue of material fact as to whether the defendants' failure to obtain all the information related to the successful completion of the residency of Dr. Golek as well as others within the St. Mary's program and whether the policies and positions of the ABS had a direct impact upon the choices and decisions made by the plaintiff concerning the completion of his residency. Additionally, there is a difference in the parties' position as to whether the decision to reject was made with any the advice of counsel. There is also a genuine issue of fact as to whether the defendants gave the plaintiff advice concerning the error in his ABS record which remained uncorrected and thus as the plaintiff claims, contributed to his loss of the offer to the University of Toledo. (Golek Aff. ¶ ¶ 86-97.)
The plaintiff has named four individual counsel in this action including each generically within his claims. Each counsel is employed within the firm of the defendant Ury & Moskow, LLC. Among them are Attorney Dellolio, Attorney Graskof Attorney LaBella and Attorney Neal Moskow. The motions for summary judgment and the opposition to the motions offer very little testimony or evidence regarding the involvement of each counsel in the action with St. Mary's Hospital except Attorney Moskow. Dr. Golek in his affidavit indicates that Attorney Garskof and LaBella are included in the retainer agreement and thereafter Attorney Dellolio was hired and had direct contact with Dr. Golek. (Golek Aff. ¶ ¶ 41, 105.) For example, Attorney Dellolio wrote to St. Mary's in an attempt to have information released for another position. (Golek Aff. ¶ 108.) The plaintiff's affidavit describes an exchange of only limited information from Attorney Dellolio to Attorney Moskow. (Golek Aff. ¶ 70.) The retainer agreement creates the existence of a legal relationship with the plaintiff but the evidence is devoid of facts that demonstrate a legal relationship with Garskof, Dellolio, and DeBella in which there were wrongful acts or conduct which amounted to malpractice. However, even the description of Dr. Golek as to Attorney Garskof was that she worked on the litigation and appeal but was not directly communicating or advising Dr. Golek. As to the other attorneys other than a mention of work in the time sheets which contain their names, Dr. Golek has minimal facts of the specific work. The mere involvement of the three individual attorneys claimed by Dr. Golek does not provide the factual basis to even remotely indicate that there is any wrongdoing in their tasks as attorneys for Ury & Moskow. Thus, the plaintiff fails to provide supporting facts to satisfy the remaining elements essential for a legal practice action as to each of these three attorneys. The motion for summary judgment is granted as to Attorney Dellolio, Garskof, and DeBella.
The plaintiff states in Paragraph 105 of his affidavit, " I explained to Attorney Moskow at the time, and later to Attorney Dellolio (the two attorneys I worked directly with at the law firm)."
The plaintiff states in his affidavit that he originally consulted with Attorney Neal Moskow. At the initial meeting the plaintiff contends Attorney Moskow described his expertise in matters such as the type of claim made by the plaintiff. Dr. Golek relied upon Attorney Moskow's claim of expertise to engage the services of the firm to do whatever was necessary. (Golek Aff. ¶ ¶ 38, 51.) Attorney Moskow directly communicated with the plaintiff and provided him with the advice for pre-litigation action, litigation direction, settlement direction as well as post-trial counseling. (Golek Aff. ¶ ¶ 51, 58, 67, 86, 97). Based upon the affidavit of Dr. Golek and Attorneys Votre and Mitchell, it is clear that the decision making and the advice to Dr. Golek was made by Attorney Moskow. It was Attorney Moskow who became the ultimate decision maker and advisor. Whether the advice satisfied his professional responsibility is a genuine issue of fact for the jury.
Dr. Golek states in his affidavit that he wrote many letters to Attorney Moskow regarding the representation. This correspondence is addressed to Attorney Moskow and provides direct information to Attorney Moskow or requests his assistance and advice. (Golek Aff. ¶ ¶ 86-95.)
IV. CONCLUSION
Viewing the evidence in the light most favorable to the non-moving parties there is some evidence that the actions or non-action of the defendants may have caused the plaintiff to be unable to successfully challenge the actions of the hospital and the motives of the hospital and its employees in the choices and methods which it utilized in the residency progression for Dr. Golek. Because there are issues of fact which were not addressed in the underlying civil action against the hospital and Dr. Dudrick, there are issues to be determined in this claim. " So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his day in court unless it is clear that no genuine issue of facts remains to be tried. A judge's function when considering summary judgment is not to cull out weak cases from the herd of lawsuits waiting to be tried; rather only if the case is dead on arrival should the court take the drastic step of administering the last rites granting summary judgment." (Citations omitted; internal quotation marks omitted.) Mott v. Wal-Mart Stores East, Ltd., 139 Conn.App. 618, 57 A.3d 391 (2012).
In the instant action, both parties through their motions for summary judgment have injected a number of genuine issues of fact which must be decided by the jury, most of which involve the validity and the research required by counsel to address the impact and propriety of the skip promotion. The plaintiff has introduced into the action a critical issue of whether the hospital had other motives for the granting of the skip and thereafter failing to correct the action. If so, should the defendants have conducted discovery which provided them with documentation that would have alerted them to a potentially different causes of action for fraudulent actions, intentional misrepresentation, or improper legal advise as to the settlement offers and the injunction action.
As to the individual defendants, the plaintiff has failed to provide any factual basis which supports the claim for legal malpractice to the associate attorneys (Garskof, Dellolio, and DeBella) whose tasks were clearly not decision making but involved the tasks such as research, brief writing, deposition preparation and accompanying the plaintiff to discovery depositions. There are no allegations that the plaintiff in any way relied upon any advise or legal duties performed by Attorney Dellolio, Attorney Garskof or Attorney DeBella. Therefore, summary judgment is granted as to each of these defendants.
The motions for summary judgment are denied in all other respects.