Opinion
No. FST CV 06 5001188 S
September 9, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#137.00)
I. Factual Allegations
The plaintiffs' revised complaint dated August 23, 2006 is in two counts. The first count sets forth claims by William P. Mara, Jr., and alleges he is a dentist in Greenwich, Connecticut specializing in the treatment of periodontal disease and that the defendant Karen Otto was a patient who had visited his office several times a month in the year prior to September 2004. It is further alleged that on September 26, 2004, Otto required emergency treatment from Dr. Mara because a dental bridge he had installed had broken, and on that date Dr. Mara repaired the bridge in his office. A week later it is alleged that Dr. Mara was informed by the Greenwich Police Department that he was under investigation for sexual assault. The investigation continued until January 21, 2005 and concluded with no charges brought against Dr. Mara.
Dr. Mara alleges, on information and belief, that Otto stated to the Greenwich Police that Dr. Mara sexually assaulted her on September 26, 2004. It is alleged that Otto knew the allegations were false and intended to cause pain and distress. Dr. Mara alleges that as a result he was compelled to undergo an investigation including a lie detector test, other interrogations and to hire legal representation. It is claimed that this caused extreme distress, anxiety and damaged his marital relationship. It is also claimed that the false statements and emotional distress caused back and neck pain that has engendered medical treatment and limited his dental practice.
In the second count, Mrs. Mara, who acts as Dr. Mara's dental hygienist and office manager, repeats the allegations in the first count, and alleges that she suffered extreme emotional distress and anxiety because of the possibility of the arrest, prosecution and conviction of Dr. Mara, that her marital relationship suffered, and that she suffered diabetes symptoms, the treatment of which has caused pain, discomfort and disruption of her life. She also claims that the effects on Dr. Mara's practice have caused her loss of income.
The defendant Otto has moved to strike a portion of the first count which sets forth a claim by Dr. Mara for loss of consortium and those portions of the second count in which Mrs. Mara sets forth legal claims and damage claims other than a claim for loss of consortium. The plaintiffs have opposed the motion to strike Mrs. Mara's claims, but have conceded in their memorandum of law opposing the motion (Dkt. Entry 143.00) that they are withdrawing Dr. Mara's loss of consortium claim.
II. Standard of Review
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). "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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). When deciding a motion to strike, the court "must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." Waters v. Autuori, 236 Conn. 820, 822 (1996).
In this case, the defendant seeks to strike certain paragraphs of the second count. Specifically she moves to strike Paragraph 12(a) (in which Mrs. Mara claims to have suffered extreme emotional distress from anxiety over the potential arrest, prosecution and conviction of her husband) Paragraph 12(c) (claim to have suffered symptoms of diabetes) Paragraph 13 (loss of income from decline in Dr. Mara's practice) Paragraph 14 (Mrs. Mara unable to pay living expenses) and Paragraph 15 (loss of enjoyment of life resulting from physical, emotional and financial problems).
Connecticut trial courts have been split on the question of whether it is appropriate to strike a single paragraph of a pleading with most courts holding that only entire counts may be stricken unless the individual paragraph sets forth an entire cause of action or defense. See Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, CV 06 5007079 (May 21, 2007, Tanzer, J.) [ 43 Conn. L. Rptr. 458]; Sanchez v. Barrett, Superior Court, judicial district of Hartford, CV02 0818806 (September 15, 2004, Shapiro, J.); see also Zamstein v. Marvasti, 240 Conn. 549, 553 (1997) (noting the trial court struck a single paragraph because the court construed it as a claim for filial consortium).
There is also a line of cases holding that if the party opposing the motion to strike does not object to the moving party's effort to strike a portion of a count in a pleading, any defect in the motion is waived. See Sanchez v. Barrett, supra; Peterken v. Epright, Superior Court, judicial district of Middlesex, CV 01 0096940 (July 29, 2002, Shapiro, J.) [ 32 Conn. L. Rptr. 571]; LaBaire v. Blumenthal, Superior Court, judicial district of Windham, CV 03 0069892 (July 9, 2003, Potter, J.) ( 2003 WL 21805533).
The court concludes that the paragraphs sought to be stricken taken together comprise a claim for either intentional or negligent infliction of emotional harm and therefore may be considered subject to a motion to strike. The court also finds that even if the defendant's motion is deemed defective, that defect has been waived by the plaintiffs' failure to object. Finally, the court is aware that this case is over three years old with a trial scheduled in the next few months. Therefore, it is long overdue to get the pleadings finalized and closed so that the parties are fully apprised of the legal and factual issues that must be proven or defended against.
III. Discussion
The gist of Otto's motion to strike the various claims of Mrs. Mara is the contention that a claim of defamation is personal to the party who is defamed and a person who is indirectly injured by the defamatory statement does not have a cause of action. The court finds this contention to be a correct statement of the law. The parties have not cited any Connecticut cases for or against the above proposition, but the authorities cited in the motion to strike and otherwise available, are persuasive enough that Connecticut courts should, and would, follow them.
The two general compendiums of American law are in agreement. "Generally, an action for defamation is personal to the party defamed and may not be asserted by a third party . . . Thus, there can be no recovery for a libelous or slanderous statement relating to another, including a relative or a spouse even if the statement indirectly inflicts some injury upon the person seeking recovery." 50 Am.Jur.2d, Libel and Slander, § 330 (2006) (footnotes omitted). "Members of a family, such as a spouse, may not sue for the defamation of other family members." 53 C.J.S. Libel and Slander, § 170 (2006) (footnotes omitted). In Johnson v. KTBS, Inc., 889 So.2d 329, 332 (La.App.2d Cir. 2004) the court said defamatory words must be "of and concerning the plaintiff" (holding that the children of two murder victims described on television as twins who later married did not have standing to sue even if the statement indirectly injured them). In Ramos v. City of Peru, 333 Ill.App.3d 75, 775 N.E.2d 184 (2002) the complaint of a wife of an arrested person whose photograph was erroneously published as being of a person wanted for aggravated sexual abuse was dismissed because the complaint sought compensation for her own alleged injures.)
Mrs. Mara contends that the scope of the right to recover damages for mental distress based on the intentional infliction thereof, has been expanded by decisional law. She correctly cites Sheltra v. Smith, 136 Vt. 472 (1978) for this point. Nevertheless, the courts have not recognized a cause of action for the intentional infliction of emotional harm for a person based on the defamation of another. In Chaikin v. VV Publishing Corp., U.S. Dist. Ct., S.D.N.Y. 91 Civ. 2102 (JFK), 1992 WL 168282, the court said:
It is undisputed that a cause of action for libel is not derivative and that the defamatory statements must concern the named plaintiff. Restatement (Second) of Torts § 564 (1977). Only the party about whom the allegedly libelous statements were made has standing to sue. See Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1984). Because the complaint does not assert that the children were the subject of the allegedly defamatory articles, the children cannot state claims for libel. In addition, the children do not have an independent cause of action for emotional distress resulting from Defendants' supposedly outrageous conduct. Talbot v. Johnson Newspaper Corp., 124 A.D.2d 284, 508 N.Y.S.2d 80 (3d Dep't 1986) (family member not named in allegedly defamatory article has no claim for emotional distress). Plaintiffs' motion to amend the complaint to replace Plaintiff John Chaiken with his children is, therefore, without merit.
In Kramer v. Kroger, 534 S.E.2d 446 (Ga.App. 2000) the Georgia Court of Appeals held that defamatory statements about the plaintiff were not actionable as a claim for intentional infliction of emotional distress. And while it is not clear whether Mrs. Mara is alleging a claim for bystander emotional distress (apparently she was present when the police first announced their investigation to Dr. Mara and she was interviewed during the investigation) the law in Connecticut is quite clear that such a claim must arise from a death or serious physical injury. Clohessy v. Bachelor, 237 Conn. 31, 53-54 (1996).
Otto also moves to strike claims in the second count alleging economic loss arising from the diminution of Dr. Mara's dentistry practice. To this court, it appears these claims must be stricken because they arise directly out of the effects of the tort of defamation and therefore are personal to Dr. Mara even though arguably there was an indirect effect on Mrs. Mara's income.
Finally, Otto seeks to strike those claims for damages that are not supported by the claim of loss of consortium. The consortium claim involves the loss to a spouse of certain intangibles such as companionship, affection, society and sexual relations. These are not pecuniary losses, and not subject to proof of monetary loss. See Restatement (Second, Torts, Section 693, comment f (1977). In Musorofiti v. Vlcek, 65 Conn.App. 365 the Connecticut Appellate Court stated that a claim of loss of consortium does not include economic damages. Id., 730 n. 4. In Collins v. Gulf Oil Corp., 605 F.Sup. 1519 (D.Conn. 1985) the federal district court applying Connecticut law rejected a consortium claim which included physical manifestations of stress and anxiety as well as a claim that loss of income prevented a plaintiff from seeking medical attention Id., 1524 n. 6.
The federal court also rejected a claim based on Agis v. Howard Johnson Co., 370 Mass 140, (1976) a case cited by Mrs. Mara, that a loss of consortium might be pursued where there was no physical injury, stating such a claim could not be supported by any Connecticut law. Id., 1524.
IV. Conclusion
The motion to strike Paragraphs 13(b) and (c) in the first count is granted on the representation that plaintiffs withdraw this claim. For the reasons stated above, the motion to strike Paragraphs 12(a) and (c), 13, 14, and 15 of the second count is granted.