Opinion
HHDCV136045901S
02-01-2016
Donald V. Pearce, Jr. v. David Miele
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Cesar A. Noble, J.
I.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Donald V. Pearce, Jr., commenced this action by a seven-count complaint dated October 7, 2013, in which David Miele and Sheila Moses were named as defendants. The nexus of all counts is the delivery of the plaintiff's claimed privileged and confidential financial records from a bank by the defendant to Moses. Complaint, Counts 1-7, ¶ 6. The court finds that the following facts have been established by affidavits, deposition and hearing transcripts, and other records provided by the defendant in support of his motion for summary judgment.
For purposes of this memorandum of decision, David Miele will be referred to as the defendant and Sheila Moses will be referred to as Moses.
The records were originally obtained by the defendant in his capacity as a detective with the Town of Manchester Police Department. The defendant had been investigating the allegation that the plaintiff's deceased wife, Janet Pearce (Janet), had embezzled several hundreds of thousands of dollars from her employer, Connecticut Endodontic Associates (Connecticut Endodontic), for whom she worked as an office manager. After having come to suspect Janet, Connecticut Endodontic secured the assistance of its accountant, the co-defendant, Moses, in its financial investigation of Janet's malfeasance. Moses had also served as the accountant for the Pearces.
As a result of that investigation, it was determined that Janet had gambling losses at the Mohegan Sun Casino in the amount of $153, 990, which debt was widely inconsistent with her recorded legitimate earnings. Janet died while the investigation was ongoing. The defendant met with the plaintiff and requested copies of the plaintiff's bank records. While the plaintiff initially agreed to provide copies of his bank records, he ultimately declined to do so. The defendant thereafter applied for a search warrant, the object of which was the Pearce's joint and individual bank records, which warrant was signed by the court, Fuger, J., and served on the Pearce's banks. The warrant provided the defendant with the requested records, including checking and savings accounts information. The defendant's investigation determined that the majority of the stolen funds from Connecticut Endodontic were managed in a checking and savings account maintained by Janet, from which she paid an appreciable portion of the couple's domestic expenses, including a beach cottage rental, tuition for her son's private school, car payments, and retail and grocery store payments. These accounts also appeared to be the source of her gambling moneys.
No criminal action was ever prosecuted against the plaintiff. Connecticut Endodontic initiated a civil suit against the plaintiff claiming that he was liable to it, pursuant to, inter alia, theories of beneficiary liability under General Statutes § § 45a-368 and 45a-372, unjust enrichment and civil conspiracy. In connection with that suit, the defendant received a subpoena from Connecticut Endodontic to appear at a hearing on its claim for prejudgment remedy. The subpoena commanded him to produce all documents in his possession relating to his investigation of Janet and Donald Pearce. Thereafter, the defendant received a request from Moses for copies of any documents that were part of the investigation into the Connecticut Endodontic embezzlement and he provided her with the Pearces' bank records obtained via search warrant. Prior to the hearing, the plaintiff also caused a subpoena to be served on the defendant, requesting copies of all documents related to allegations by Connecticut Endodontic's allegations of criminal conduct by the plaintiff. Responsive to both of the subpoenas served on him, the defendant produced the requested documents to the court for the PJR hearing on September 5, 2013, at which time the plaintiff objected, inter alia, to the production of his financial records. After an in camera review, the court, Miller, J., found that the documents were relevant and discoverable in the context of the lawsuit and the PJR hearing was held on October 19, 2013.
The court takes judicial notice of the complaint in the matter of Connecticut Endodontic Associates, P.C. v. Pearce, et al., Superior Court, judicial district of Hartford, Docket No. CV13-6038172-S, as it has the power to take judicial notice of court files between the same parties. See Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979). The Pearce's son was also sued under a theory of beneficiary liability. This action has since been withdrawn.
The plaintiff's complaint was served on the defendants on October 7, 2013. It alleges the facts described above and further alleges that the defendant's conveyance of the financial records to Moses was done without authorization of the plaintiff, a court order, or any legal right to do so; that Moses thereafter gave the plaintiff's financial records to counsel for Connecticut Endodontic and the plaintiff suffered humiliation, embarrassment, and emotional distress. Counts one, three, five, six, and seven were directed to the defendant. Counts one and three respectively claim (1) an invasion of the plaintiff's privacy by the defendant's intentional intrusion upon the plaintiff's private affairs and concerns in a manner that would be highly offensive to a reasonable person and (2) having unreasonably publicized the plaintiff's private life. Counts five, six, and seven respectively assert violations of Sections 1983 and 1988 of Title 42 of the United States Code on the basis that his conduct violated the fourth amendment to the United States constitution by an unreasonable search and seizure, deprived the plaintiff of property without procedural due process of law, and constituted a substantive due process of law in violation of the fourteenth amendment. Counts two and four assert, respectively, claims for invasion of privacy by Moses based on her intentional intrusion upon the plaintiff's private affairs and unreasonable publicity.
The defendant removed the complaint to federal court. Without objection, the United States District Court for the District of Connecticut granted. Moses' motion for summary judgment. Pearce v. Miele, United States District Court, Docket No. 3:13CV01580 (JAM), 2015 WL 4546114, *2 n.2 (D.Conn. July 28, 2015). Thereafter, the defendant's motion for summary judgment was granted as to the federal claims with the state law claims being remanded to state court. Upon remand, the defendant filed the present motion for summary judgment under consideration.
The defendant asserts four reasons why summary judgment should be granted: (1) the plaintiff does not have a reasonable expectation of privacy in the bank records (causing both counts to fail) and such a claim is barred by the doctrine of res judicata based on the district court's ruling on the plaintiff's fourth amendment claims; (2) the plaintiff's claim in count one for invasion of privacy, predicated on an intentional intrusion into his private affairs, fails because the plaintiff cannot prove a highly offense intrusion; (3) count three fails because the plaintiff cannot prove publicity as that word is defined in the context of invasion of privacy; and (4) the defendant is entitled to absolute judicial immunity because any disclosure of the plaintiff's financial records was made in the course of a judicial proceeding. In support of his motion, the defendant attached portions of the certified copy of the plaintiff's deposition; the defendant's affidavit, which contains a number of attachments including the subpoena duces tecum served on him by counsel for Connecticut Endodontic and the subpoena duces tecum served on him by counsel for the plaintiff, both of which commanded him to disclose all records relating to his investigation; transcripts of the PJR hearings held on September 5, 2013, and October 9, 2013, as well as portions of the plaintiff's executed and notarized interrogatory responses.
The plaintiff objects to the entry of summary judgment by countering that the defendant's argument of a lack of reasonable expectation of privacy fails because fourth amendment privacy rights are different than the state privacy interests and the plaintiff had the right to rely on the order of Judge Feuger directing the defendant to retain the records in custody upon execution of the search warrant. The plaintiff argues that disclosure to Moses is " publicity" within the meaning of the tort of invasion of privacy by unreasonable publicity of the plaintiff's private life and collateral estoppel does not apply because the only issue decided in federal court was whether the plaintiff had a reasonable expectation of privacy under the fourth amendment to the United States constitution. The plaintiff provided no evidentiary opposition to rebut the defendant's motion.
In the defendant's reply brief, he noted, inter alia, that the plaintiff failed to object to the argument that the defendant is entitled to absolute immunity. The plaintiff addressed this oversight in a supplementary brief, in which he argued that the disclosure of private information was made not in the course of a judicial proceeding but rather to a private party for her to share with an attorney in civil litigation without court authorization. The plaintiff offered no evidentiary basis for this assertion.
The court agrees that on the facts presented in this case, the plaintiff did not have an expectation of privacy in those disclosed bank records of his, which were properly discoverable in the context of the litigation against him. Additionally, summary judgment enters on count one because the plaintiff is unable to prove an offensive intrusion, that is the method used to obtain the private information into the plaintiff's personal affairs. Summary judgment is also appropriate as to count three because the plaintiff has failed to present any evidence that the defendant engaged in publicity as that term is used in the tort of invasion of privacy, that is, a communication that reaches or is sure to reach the public. Because these provide a sufficient basis to grant summary judgment, the court does not reach the arguments as to whether the defendant's conduct is protected by absolute judicial immunity.
II.
STANDARD
Summary judgment may be rendered if " the pleadings, affidavits and any 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." Practice Book § 17-49. " [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 . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). " 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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
III.
DISCUSSION
A. Invasion of Privacy
The Connecticut Supreme Court first recognized the tort of invasion of privacy in its decision in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). The Supreme Court noted that the law of privacy was comprised of a complex of " four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone . . . The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 127-28.
Since Goodrich, the Restatement and its commentary have informed the appellate analysis of the standards and elements for each of the four categories of invasion of privacy. See, e.g., Foncello v. Amorossi, 284 Conn. 225, 231, 931 A.2d 924 (2007); Perkins v. Freedom of Information Commission, 228 Conn. 158, 170-71, 635 A.2d 783 (1993). The Superior Courts have similarly been guided by the Restatement in the determination of the applicable principles. See Corniello v. Fuzion Medical Aesthetic Boutique, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6051182-S, 2015 WL 5712823, *3 (August 26, 2015, Wilson, J.); Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV-06-5005107-S, 2009 WL 2506607, *2 (July 20, 2009, Wilson, J.), aff'd on other grounds, 149 Conn.App. 283, 88 A.3d 589 (2014), cert. granted on other grounds, 312 Conn. 920, 94 A.3d 1201 (2014); and cases cited therein. This court does so as well.
B. Privacy
A claim for invasion of privacy requires an injury to a cognizable privacy interest. Here, the plaintiff has claimed injury to his privacy under two of the categories recognized by the Restatement: unreasonable intrusion upon the seclusion of another and unreasonable publicity given to the other's private life. The defendant argues that the plaintiff had no privacy interest in the bank records provided to Moses. On the facts presented in this case, the court agrees.
Section 652A of the Restatement (Second) of Torts provides the general principle that " (1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. (2) The right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or . . . (c) unreasonable publicity given to the other's private life, as stated in § 652D . . ." 3 Restatement (Second), Torts § 652A (1977). The commentary to § 652B makes clear that " [t]he defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." 3 Restatement (Second), Torts § 652B, comment (c) (1977). Similarly, § 652D provides that " [t]he rule stated in this Section applies only to publicity given to matters concerning the private, as distinguished from the public, life of the individual." 3 Restatement (Second), Torts § 652D, comment (b) (1977).
The defendant suggests that the federal court's decision, finding no privacy interest in the bank records in Pearce v. Miele, is dispositive as res judicata. The court is not persuaded.
" Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action . . . between the same parties or those in privity with them, upon the same claim . . . In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 473-74, 998 A.2d 766 (2010). As the district court's decision makes clear it resolved a related similar, but different, interest.
The issue before the district court in the case removed was whether the plaintiff had a " [c]onstitutionally protected ownership interest or privacy rights in his bank's records of the customer's banking transactions." Pearce v. Miele, supra, United States District Court, Docket No. 3:13CV01580 (JAM), [WL] at *1. Quoting from United States v. Miller, 425 U.S. 435, 440-43, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the court stated: " A bank's records are not a customer's 'private papers, ' but are 'the business records of the banks'; a bank customer 'can assert neither ownership nor possession over such documents for Fourth Amendment purposes . . . The [Supreme] Court further ruled that a bank customer has no reasonable expectation of privacy in his banking records, because they 'contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.' . . . As the Court explained, '[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government, ' and 'the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.'" (Citations omitted.) Pearce v. Miele, supra, United States District Court, Docket No. 3:13CV01580 (JAM), *2. The district court clearly limited its analysis to the fourth amendment with its comment that " a government official who lawfully comes into possession of bank records might well violate some federal or state law by disclosing the records to third parties. The lesson from Miller is simply that these activities--however improper--do not implicate the bank customer's protectable interests under the Fourth Amendment ." (Emphasis added.) Id. at *3. Res judicata and collateral estoppel are inapplicable because the district court's analysis was limited to the plaintiff's fourth amendment interests.
In the first instance, the plaintiff has no personal privacy interest in the bank documents related to his deceased wife. A consideration of the plaintiff's tort privacy interest in his own bank records, however, cannot be resolved by resorting to the bald assertion that an individual has no such fourth amendment privacy interest. Bank records reflect the details of a person's private life, including personal predilections, customs, associations, and even opinions. This information resides within the constellation of personal data that is subject to protection by the tort of invasion of privacy. The public policy value of maintaining such information private is reflected in a number of statutes which seek to prevent its unfettered disclosure. The Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq., provides that the federal government may not gain access to bank customer's financial records without authorization or subpoena and affords customers the right to be informed by the government of its intention to obtain the information. The Gramm-Leach-Bliley Act (GLBA), 15 U.S.C. § 6801, asserts the Congressional policy that " each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information." 15 U.S.C. § 6801(a). The GLBA does permit the disclosure of such records by way of subpoena. The Connecticut legislature similarly recognizes a customer's privacy interest in his or her bank accounts by limiting disclosure of financial records subject to a list of exceptions. See General Statutes § 36a-42 et seq.
This analysis is not, however, dispositive of the privacy interest the plaintiff had in the disclosed bank records. The relevance of the above statutes as applied to the records in the defendant's possession is tempered by the fact that they are directed only to the financial institutions. Further, the plaintiff's privacy interests in the records provided by the defendant to Moses was significantly diminished because these were records that were reasonably subject to disclosure in the normal course of discovery in the suit by Connecticut Endodontics. In fact, they had already been subpoenaed by counsel for Connecticut Endodontic as part of the records contained in documents related to allegations by Connecticut Endodontic of criminal conduct by the plaintiff. The records were ultimately found by the court to be relevant to the claim by Connecticut Endodontics.
Clearly the status of a person's interest in privacy is dependent upon the circumstances. The Restatement instructs that there is no liability intruding on a person's seclusion for observing an individual " or even taking his photograph while he is walking on the public highway, since he is not then in seclusion and his appearance is public and open to the public eye." 3 Restatement (Second), Torts § 652B, comment (c) (1977). Identically, there is no liability for publicizing the private life of another person " when the defendant merely gives further publicity to information about the plaintiff that is already public." 3 Restatement (Second), Torts § 652D, comment (b)(1977).
The investigation by the police and the litigation against the plaintiff on the part of Connecticut Endodontic removed any patina of privacy in which the plaintiff's bank records may have previously been enveloped. The plaintiff's bank records were one step removed from the veil afforded by privacy expectations when the police came into possession of them by means of a lawful search warrant. Even if at this point the records continued to reside in the province of private affairs respected and guarded by law and society, a subsequent lawsuit claiming unjust enrichment and civil conspiracy on the part of the plaintiff was reasonably probable to result in the exposure of his bank records.
Research has not uncovered a Connecticut case squarely on point but one California decision, Rosales v. City of Los Angeles, 82 Cal.App.4th 419, 429, 98 Cal.Rptr.2d 144 (2000), supports this proposition. In that case, the California Second District Court of Appeal held that a police officer's statutory expectation of privacy in his personnel records was conditional. The Court held that the police officer could not have a reasonable expectation of privacy that his personnel records would not be discoverable in this litigation. See Rosales v. City of Los Angeles, supra, 82 Cal.App.4th 429.
This court concludes that any privacy interest the plaintiff may have possessed in his bank records was extinguished by the litigation against him and summary judgment is appropriate for his two claims for invasion of privacy.
C. Intrusion Upon Seclusion
The Connecticut Appellate Court has not considered the invasion of privacy category of the intrusion upon the private affairs of another. The Restatement defines this form of invasion of privacy as occurring when one " intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), Torts § 652B (1977). The commentary makes clear, however, that this category " does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." 3 Restatement (Second), Torts § 652B, comment (a) (1977). " The intrusion itself makes the defendant subject to liability, even though there is no publication . . ." 3 Restatement (Second), Torts § 652B, comment (b) (1977). Additionally, the interference with the plaintiff's seclusion must be a substantial one, " of a kind that would be highly offensive to the ordinary reasonable man . . ." 3 Restatement (Second), Torts § 652B, comment (d) (1977).
Decisions of the Superior Court have observed the principle that liability under this form of invasion of privacy is predicated solely on the manner of the intrusion and not on any act of dissemination of a matter subject to a privacy protection. Thus, in Gleason v. Smolinski, the court granted a motion to strike a complaint alleging an unreasonable intrusion upon the plaintiff's seclusion against a newspaper editor for the publication of an article chronicling the life of the plaintiff where the plaintiff did not allege facts concerning how the editor obtained any of the information published in the article. See Gleason v. Smolinski, supra, Superior Court, Docket No. CV-06-5005107-S. The court observed that " [p]ublication of private information alone is not legally sufficient to sustain this particular cause of action, which is concerned with the methods used when obtaining private information, rather than its subsequent dissemination." Id. at *3; see also Roman v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV-14-6044689-S, 2015 WL 3555343 (May 12, 2015, Wilson, J.). " The plaintiff's arguments regarding the publicity of the [work identification] photograph are not relevant to the intrusion upon seclusion analysis." Roman v. United Illuminating Co., supra, Id. at *9 n.11; Neron v. Cossette, Superior Court, judicial district of New Haven, Docket No. CV-11-6003350-8, 2012 WL 1592174, *2 (April 13, 2012, Markle, J.) (failure of complaint to allege methods used to obtain information subsequently disseminated renders it legally insufficient to assert claim for unreasonable intrusion upon the seclusion of another).
The only manner complained of and pleaded by the plaintiff in which the defendant intruded upon his private affairs is the execution of a search warrant, which the court finds cannot provide the basis for an unreasonable intrusion. " The principle that a plaintiff may rely only [on] what he has alleged is basic . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations [in] his complaint." (Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010). The plaintiff has not offered any evidentiary basis to counter the defendant's affidavit establishing the search warrant was validly issued and executed. Neither does the plaintiff provide any evidentiary foundation to counter the implication that the intrusion was highly offensive to a reasonable person. Judgment may therefore enter as to count one.
D. Publicity Given to Private Life
The Connecticut Supreme Court has approvingly cited the Restatement's definition of what constitutes the tort of publicity given to a private life. See Perkins v. Freedom of Information Commission, supra, 228 Conn. 171-72. The Supreme Court has not, however, specifically addressed the parameters of what constitutes " publicity" as used by the Restatement. Section 652D of the Restatement (Second) of Torts provides: " One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." 3 Restatement (Second), Torts § 652D (1977). The commentary clarifies what is meant by the term publicize. " 'Publicity, ' as it is used in this Section, differs from 'publication, ' as that term is used in § 577 in connection with liability for defamation . . . 'Publicity' . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge . . . [I]t is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons." 3 Restatement (Second), Torts § 652D, comment (a) (1977).
Superior Court decisions have recognized the need for a communication to the public at large in both publicity given to a private life and false light publicity, which share the same definition of publicity. See Corniello v. Fuzion Medical Aesthetic Boutique LLC, supra, Superior Court, Docket No. CV-14-6051182-S; Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham, Docket No. CV-06-4005043-S, 2007 WL 4755001 *2-3 (December 27, 2007, Booth, J.); Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV-01-0808241-S (January 14, 2002, Peck. J.) (31 Conn. L. Rptr. 268). The following decisions have found inadequacies in the scope of the dissemination of information; Deutsch v. Backus Corp., Superior Court, judicial district of New London, Docket No. CV-10-6004265-S, 2011 WL 522849 (January 14, 2011, Cosgrove, J.) (51 Conn. L. Rptr. 337) (no dissemination of information beyond internal hospital review proceedings); Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-05-4002947-S, 2005 WL 1971003 (June 29, 2005, Eveleigh, J.) (communications only to co-employees and patients at a hospital); Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV-03-0399811-S, 2004 WL 304325 (January 30, 2004, Doherty, J.) (dissemination to approximately eight co-employees).
See 3 Restatement (Second), Torts § 652E, comment (a) (1977).
Here, the plaintiff has alleged only that the defendant disseminated his bank records to Moses, who in turn provided the records to a John Wolfson of Hartford. The defendant's affidavit attaches a subpoena issued by John Wolfson, counsel to Connecticut Endodontics. It further documents dissemination of the bank records only in the context of the litigation and the PJR hearing. The court finds that this level dissemination fails to satisfy the Restatement's requirement of disclosure to the public at large. The plaintiff has provided no affidavit or evidentiary support suggesting that there was any further dispersal of the bank records beyond the individuals involved in the litigation. The failure to provide such counter evidence renders the plaintiff's cause subject to summary judgment.
For all the above reasons, the court enters summary judgment as to counts one and three of the plaintiff's complaint.