Opinion
No. CV 09-4046119-S
October 29, 2010
MEMORANDUM OF DECISION
FACTS
On December 11, 2009, the plaintiff, Glenn Hauer, submitted a four-count substitute complaint against the defendants, ECHN Community Healthcare Foundation, Inc. (ECHN) and Kathy Rogers. The plaintiff alleges that on August 15, 2007, he went to the emergency room at ECHN for treatment of a painful medical condition and was left alone for a period of time despite his moans and pleas for help. When a patient approached Rogers, a nurse, regarding the plaintiff's condition, Rogers stated: "He is only here for drugs." At the time, ECHN was operating the emergency room and was responsible for the care and treatment of the patients therein. Further, Rogers was employed by ECHN and was acting as its agent. In the substitute complaint, the plaintiff alleges that Rogers' statement was defamatory, slanderous per se and constituted both negligent and intentional infliction of emotional distress.
The plaintiff's original complaint was filed on August 20, 2009. Subsequently, count four of that complaint was dismissed; and counts two and three were stricken. "[The] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009). In the present case, the plaintiff did replead. The substitute complaint indicates that it was drafted on December 11, 2009, however there is no file date on record. A copy of the pleading was faxed in response to a request by the court on June 14, 2010. The defendants have made no objection regarding the lack of official filing records for the substitute complaint.
On December 21, 2009, the defendants filed a motion to strike counts two, three, and four of the substitute complaint on the grounds that count two is time barred by the applicable statute of limitations and fails to allege a legally cognizable claim of slander per se, and that counts three and four fail to cure the defects that were addressed by the defendants' first motion to strike. The defendants submitted a memorandum of law in support of the motion. The plaintiff filed a memorandum of law in opposition on January 18, 2010. The matter was heard at the short calendar on May 10, 2010. The court denied the defendants' motion to strike as to all counts on June 14, 2010. The defendants moved for articulation on June 23, 2010.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof . . ." Practice Book § 10-39. In ruling on the motion to strike, the court must "construe the complaint 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 its consideration, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.
"Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
A. Count Two
The defendants argue that count two of the substitute complaint is legally insufficient because the slander per se cause of action was not pleaded in the original complaint and is therefore time barred. The defendants assert that, "although the incident giving rise to the claim of slander per se is not new, the cause of action here is entirely separate, as it alleges distinct elements" not present in the original complaint. The defendants note that the original complaint does not assert facts tending to suggest that the plaintiff was accused of any crime, and therefore the applicable statute of limitations expired on August 15, 2009. The plaintiff argues that although the legal theory has changed, the factual situation has remained the same as the first complaint, and so the slander per se allegation relates back to the date of the original pleading.
"[O]rdinarily, [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., CT Page 21401 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." (Internal quotation marks omitted.) 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 . . ." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12.
In the present case, paragraphs five through eight of the first count of the plaintiff's complaint, which are incorporated by reference into count two, state the date on which the alleged slander per se occurred. Therefore, all facts necessary to determine if this cause of action was barred by the statute of limitations were pleaded. As a result, this is an instance in which the statute of limitations defense may be raised by a motion to strike. See Forbes v. Ballaro, supra, 31 Conn.App. 240.
"[I]f a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted." New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 483 n. 38, 970 A.2d 592 (2009). "[I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence . . . This particular focus is guided by the policy reasons underlying the relation back doctrine — namely, ensuring that parties receive fair notice while at the same time allowing parties who have complied with the applicable statute of limitations the benefit of expanding upon existing claims." (Citations omitted.) Sherman v. Ronco, 294 Conn. 548, 556-57, 985 A.2d 1042 (2010). To decide whether a particular claim relates back, therefore, the court must compare "the allegations in the original complaint to those in the amended substitute complaint." Id., 557.
Here, the original complaint alleged that Rogers "published one or more oral false statements which were intended to impeach Mr. Hauer's honesty, integrity, virtue, or reputation. The defamatory statements were . . . `He is only here for drugs' and `He is here looking for drugs.'" The substituted complaint makes the identical allegation, adding only, in count two, that "these statements relate to a charge of moral turpitude or to which an infamous penalty is attached, or said statements are a crime that can be a chargeable offense which is punishable by imprisonment . . . [The statement also] charges improper conduct or lack of skill or integrity in the plaintiff's profession or business as a salesman and . . . was calculated by the defendant to cause injury to his profession or business."
Comparison of the two complaints makes clear that the addition of the slander per se cause of action in the substituted complaint merely amplifies the original facts, and does not present a new factual situation for which the defendants did not have ample notice. The additional allegation will not require the defendants to gather "different facts, evidence, and witnesses"; (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 67, 776 A.2d 444 (2001); so it relates back to the original complaint and is not time barred by the applicable statute of limitations. See id. The motion to strike, therefore, cannot be granted on this ground.
The defendants argue, in the alternative, that the plaintiff has failed to allege a legally cognizable claim of slander per se because the statements allegedly made by Rogers "do not rise to the level of the false accusation of commission of a crime of moral turpitude," were ambiguous in that "no reasonable individual could construe, for instance that Hauer was imputed to be breaking the law, as opposed to legitimately seeking medication for pain," and no facts alleged would suggest "that the statements . . . intended to harm his business practice." The plaintiff argues, in response, that the statements implied that he was there to obtain drugs by virtue of fraud or deceit, and thereby accused him of committing "a chargeable offense which is punishable by imprisonment" under General Statutes § 21a-266.
There are several categories of slander which are actionable per se. First, "a [slander] is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." Moriarty v. Lippe, CT Page 21403 162 Conn. 371, 384, 294 A.2d 326 (1972). Under this category, "[s]poken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity." Proto v. Bridgeport Herald Corp., 136 Conn. 557, 567, 72 A.2d 820 (1950). "[S]lander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987). "Moral turpitude . . . is a vague and imprecise term to which no hard and fast definition can be given . . . A general definition . . . is that moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his [fellow man] or to society in general, contrary to the accepted rule of right and duty between man and law." Moriarty v. Lippe, supra, 162 Conn. 382-84. "The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment." Battista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356 (1987), cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). "All of the circumstances connected with the publication of defamatory charges should be considered in ascertaining whether a publication was actionable per se. The words used, however, must be accorded their common and ordinary meaning, without enlargement by innuendo." Miles v. Perry, supra, 11 Conn.App. 602-03, citing Proto v. Bridgeport Herald Corp., supra, 136 Conn. 565.
In the instant case, viewing the statements alleged in light of the circumstances connected with its publication, the words imply that the plaintiff was attempting to procure drugs he did not need for medicinal purposes. Such an act is prohibited by General Statutes § 21a-266, which provides in relevant part: "No person shall obtain or attempt to obtain a controlled substance or procure or attempt to procure the administration of a controlled substance (1) by fraud, deceit, misrepresentation or subterfuge, or (2) by the forgery or alteration of a prescription or of any written order, or (3) by the concealment of a material fact . . ." Violation of § 21a-266 is a crime punishable by fine and imprisonment. See, e.g., State v. Russo, 89 Conn.App. 296, 299, 873 A.2d 202, cert. denied, 275 Conn. 908, 882 A.2d 679 (2005) (judgment of conviction for violation of General Statutes § 21a-266 and sentence of two years incarceration, execution suspended, three years of probation and a $3,000 fine affirmed on appeal); State v. Sonntag, Superior Court, judicial district of New Haven, Docket No. CR 8116502 (September 24, 1996, Purtill, J., Klaczak, J., and Norko, J.) (total effective sentence of ten years, execution suspended after five years and three years probation for conviction of five counts of violating § 21a-266 held not to be disproportionate or excessive). Under the modern trend, the statements as alleged are legally sufficient to state a cause of action for slander per se, and the motion to strike count two must be denied.
B. Count Three
The defendants argue that count three should be stricken because it fails to allege that the negligent infliction of emotional distress suffered by the plaintiff was severe enough to cause illness or bodily harm. The defendants further assert that because of this omission, the plaintiff has failed to cure the defect sought to be addressed by the defendants' original motion to strike. The plaintiff contends that every essential element of negligent infliction of emotion distress is pleaded and supported by the facts, and therefore count three is legally sufficient.
To survive a motion to strike, a plaintiff claiming negligent infliction of emotional distress must plead the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). Again, in deciding upon a motion to strike, the court must be mindful that "[w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
In the present case, the plaintiff has expressly alleged the first, second, and fourth elements of negligent infliction of emotional distress in paragraph seventeen of the substitute complaint. Furthermore, in paragraph eighteen, the plaintiff alleges that "[a]s a result of the defendants' unreasonable conduct, [the plaintiff] has suffered and will continue to suffer mental pain and anguish, severe emotional trauma, embarrassment, and humiliation." (Emphasis added.) While the plaintiff does not expressly state that this distress was severe enough to result in illness or bodily harm, one would necessarily imply from the allegations in paragraph eighteen that it was sufficiently severe to satisfy the third element of this cause of action. Count three, therefore, is legally sufficient to state a claim for negligent infliction of emotional distress and the defendants' motion to strike count three must be denied.
C. Count Four
The defendants argue that count four, which sounds in intentional infliction of emotional distress, should be stricken because violation of HIPAA regulations is not "extreme and outrageous" conduct and, therefore, the facts pleaded are not legally sufficient to support this cause of action. The plaintiff argues that when Rogers, who was fully aware of HIPAA privacy laws, chose to make defamatory statements in a crowded emergency room, she engaged in extreme and outrageous conduct. The plaintiff notes that "[w]hen people seek medical treatment in the emergency room, they expect to be treated with respect and a helping hand, not be accused of being drug seeking in front of other people."
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted). Appleton v. Board of Education of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous." (Citations omitted; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 492, 998 A.2d 1221 (2010).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education of Stonington, supra, 254 Conn 210-11. "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2006).
In the present case, the plaintiff has not alleged facts which rise to the level of extreme and outrageous conduct. The plaintiff alleges only that Rogers made the statements in the presence of other patients on one occasion. This alone does not meet the high standard for "extreme and outrageous" established by the courts. See, e.g., Appleton v. Board of Education of Stonington, supra, 254 Conn. 212 (where the acts allegedly committed by a school principal and others did not constitute extreme and outrageous conduct for purposes of a teacher's claim for intentional infliction of emotional distress). The court therefore grants the defendants' motion to strike count four.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike counts two and three of the plaintiff's substitute complaint is denied, and the defendants' motion to strike count four is granted.