Opinion
No. CV-09-5010404
July 20, 2010
MEMORANDUM OF DECISION
Motion to Dismiss No. 138
The defendants Duffield Ashmead, M.D. and Hartford Orthopaedic, Plastic Hand Surgeons, Inc. seek to dismiss the plaintiff's complaint on the ground that the plaintiff failed to attach an opinion letter from a similar health care provider to her initial complaint. This opinion letter is required by General Statutes § 52-190a(c), which provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." The dispositive issue in this case is whether the defendants have waived their statutory right by filing this motion a year after the commencement of the action and beyond the time frame for filing such a motion pursuant to the Practice Book. The court holds, for reasons stated below, that the defendant has waived his right to challenge the adequacy of the written opinion. The court views this motion as challenging the court's personal jurisdiction over the defendant Ashmead and thus the timing of the filing of the motion is controlled by the Practice Book. Even if the motion does not fall squarely within the Practice Book framework, this defendant has waived his statutory rights by waiting too long to raise an issue that he should have been aware of from the date he was served with the complaint in this action.
POSTURE
The plaintiff, Wanda Sanabria, commenced this medical malpractice action on February 2, 2009, against the defendants, Duffield Ashmead, M.D., Gabriel Trainer, M.D., Casey Burke, Hartford Orthopaedic, Plastic Hand Surgeons, Inc. (Hartford Orthopaedic) and Hartford Hospital (the Hospital). Pursuant to General Statutes § 52-190a, the plaintiff attached to her initial complaint a written opinion authored by a physician self-described as board certified in orthopaedics. In her second amended complaint, filed August 6, 2009, the plaintiff alleges the following facts. At all relevant times, Ashmead, Trainer and Burke were employees or agents of Hartford Orthopaedic, and Trainer and Burke were employees of the Hospital. On November 1, 2006, the plaintiff underwent a tenolysis procedure performed by Ashmead, who was assisted by Trainer and Burke, at the Hospital. During the procedure, due to negligent use of a tourniquet by Ashmead, Trainer and Burke, the plaintiff suffered iatrogenic skin injury to her right arm, including hematoma and burning. In addition to three counts against Ashmead, Trainer and Burke, the plaintiff brings one count against Hartford Orthopaedic under a theory of respondeat superior, and two counts against the Hospital, one alleging negligence, and the other under respondeat superior.
The amended complaint attributes identical negligent acts or omissions to Ashmead, Trainer and Burke, specifically alleging in counts one, two and three that each "failed to use padding under the tourniquet to prevent skin antiseptic from leaching under it . . . failed to apply a drape to isolate the tourniquet from the operative field to prevent skin antiseptic from leaching under the tourniquet . . . failed to deflate the tourniquet to allow re-perfusion of the plaintiff's arm . . . caused or allowed the tourniquet to be inflated too long during surgery [and] failed to follow the [Hospital's] tourniquet procedure."
Defendants Ashmead and Hartford Orthopaedic filed requests to revise on March 16, 2009, March 26, 2009 and June 8, 2009. Ashmead and Hartford Orthopaedic filed an answer and special defense on June 25, 2009. The plaintiff filed an amended complaint on August 6, 2009, and Ashmead and Hartford Orthopaedic filed a second answer accompanied by two special defenses in response on September 3, 2009. On September 10, 2009, Ashmead and Hartford Orthopaedic filed a motion for summary judgment, which was denied by the court (Cosgrove, J.) on December 17, 2009. On February 3, 2010, Ashmead and Hartford Orthopaedic filed a motion to dismiss counts one and four of the plaintiff's amended complaint on the ground that the plaintiff failed to append to her initial complaint a sufficient opinion of a similar healthcare provider pursuant to § 52-190a. The plaintiff filed a memorandum of law in opposition on February 17, 2010, and Ashmead and Hartford Orthopaedic filed a reply on February 18, 2010. The court heard oral argument on the motion on February 22, 2010. Upon order of the court, the plaintiff and the defendants submitted supplemental briefs on June 10, 2010 and June 14, 2010, respectively.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). A motion to dismiss is the proper vehicle with which to challenge an absent or inadequate written opinion of a similar health care provider. See Bennett v. New Milford Hospital, 117 Conn.App. 535, 545 n. 6, 979 A.2d 1066 (2009), cert. granted, 294 Conn. 916 (2009); Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008). A motion to dismiss challenging the adequacy of a § 52-190a written opinion does not, however, implicate the subject matter jurisdiction of the court. See Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). In contrast to a defect in subject matter jurisdiction, which "may not be waived by any party"; Gonzalez v. Commissioner of Correction, 107 Conn.App. 507, 511, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008), a defendant may waive the statutory requirements of § 52-190a. See Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 586.
As a preliminary matter, the court must determine whether the defendants have waived their right to object to the failure of the plaintiff's written opinion to comply with the requirements of § 52-190a by filing their motion to dismiss eleven months after the appearance of the defendants' counsel and subsequent to several requests to revise, answers and special defenses and a motion for summary judgment. Accordingly, the court examines the defendants' motion in the context of the relevant waiver provisions of the Practice Book: §§ 10-32 and 10-6, and on separate timeliness grounds.
I. Waiver Pursuant to Practice Book § 10-32
Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." The grounds of "improper venue" or "insufficiency of process" or "insufficiency of service of process" are specific grounds to challenge a court's jurisdiction over a particular person. "[Practice Book § 10-30] specifically and unambiguously provides that any claim of lack of jurisdiction over the person or an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). "Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." Foster v. Smith, 91 Conn.App. 528, 536-37, 881 A.2d 497 (2005).
Practice Book § 10-30 provides in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty-days of the filing of an appearance."
In order to determine whether the defendants have waived their right to contest the adequacy of the plaintiff's written opinion, the court must address whether the claim raised in the defendants' motion is subject to the timeliness requirements incorporated by reference in § 10-32. The defendants in their supplemental brief argue that because Votre held that a claim for dismissal based on § 52-190a is not jurisdictional, and because it is not one of the listed grounds set forth § 10-32, a motion on such ground therefore is not subject to § 10-32. In Votre, however, the specific question addressed by the court was whether the trial court correctly concluded that a party's failure to comply with § 52-190a implicated the court's subject matter jurisdiction, a question the Appellate Court answered in the negative. See Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 583. By contrast, Votre is silent as to whether § 52-190a instead implicates personal jurisdiction. The court in Votre did, however, state that a defendant may waive the statutory requirements of § 52-190a. Id., 586. Implicit in the recognition that this statutory ground for dismissal is waivable is the recognition that it will be waived if not exercised in a timely or equitable fashion.
The defendants' motion to dismiss in Votre, according to courthouse records, was filed less than thirty days after the appearance of the defendant's counsel, and thus was in compliance with Practice Book § 10-30. Moreover, the motion to dismiss was the first pleading filed by the defendants, and was therefore in the proper pleading order pursuant to § 10-6. Accordingly, the timing of the defendants' motion in Votre does not preclude the possibility that the court understood the defendants' claim and motion to be subject to the waiver provisions of these Practice Book sections.
In support of their argument that § 52-190a claims are not governed by § 10-32, the defendants cite Wightman v. Sposato, Superior Court, judicial district of New Haven, Docket No. CV 09 5026454, (December 4, 2009, Wilson, J.) ( 49 Conn. L. Rptr. 162) (appeal pending). The court in Wightman cited Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001), for the proposition that "the timing requirement of § 10-32 is inapplicable to a motion to dismiss based on a ground not explicitly stated in that section." Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164. in Durkin, however, the legal claim at issue was forum non conveniens, which does not implicate the court's subject matter jurisdiction or jurisdiction over the person. Sabino v. Ruffolo, 19 Conn.App. 402, 405-06, 562 A.2d 1134 (1989) ("[F]orum non conveniens . . . recognizes the discretion of a court . . . where jurisdiction and venue are proper . . . to dismiss a suit because the court has determined that another forum is better suited to decide the issues involved.")
While it is clear that this motion to dismiss does not contest subject matter jurisdiction, it is not clear whether this motion should be treated as a challenge to the personal jurisdiction of the court over the defendants or, because this motion is based upon a right of the defendants granted by a statute, it should be analyzed in a different manner. No consensus on this issue exists among the decisions of the Superior Court that have addressed it. In contrast to Wightman, one recent decision concluded that a defendant's motion to dismiss challenging a plaintiff's compliance with § 52-190a must be filed within thirty days of the appearance of the defendant, albeit without mention of personal jurisdiction. Guarrneri v. Visiting Nurse Ass'n. of South Central Connecticut, Superior Court, judicial district of New Haven, Docket No. CV 095029393 (February 23, 2010, Berdon, J.T.R.) ( 49 Conn. L. Rptr. 325, 325). The court in Guarrneri, however, did point out in support of its conclusion that "from the day the complaint was filed, the defendant should have been able to determine whether or not the provisions of § 52-190a(a) have been complied with and whether the complaint should have been subject to dismissal." Id. Our Supreme Court has on at least one occasion found that a statutory provision, not explicitly listed in § 10-32, nonetheless implicates personal jurisdiction. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004). The statute at issue, § 52-102b, establishes a time limitation for the filing of apportionment complaints. Having first concluded that the limitation is mandatory, the court further addressed the question of whether that mandatory time limitation implicates subject matter jurisdiction or personal jurisdiction. Id., 31. In concluding that § 52-102b implicates personal jurisdiction, the Lostritto court found most significant that the statute contains frequent use of the word "serve," and also ties the time limitation to the return date. Id., 33. The presence of such statutory language persuaded the court that § 52-102b is a service provision, and therefore implicates personal jurisdiction. Id.
Section 52-190a, though it does not explicitly mention the terms "service" or "return date," requires that the written opinion be attached to a plaintiff's complaint or initial pleading. See General Statutes § 52-190a. Service of a plaintiff's complaint is an essential element of commencement of suit by mesne process, without which a court is deprived of personal jurisdiction. See General Statutes § 52-45a; Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002). Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction. See Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). Similarly, § 52-190a provides that "[t]he failure to obtain and file the written opinion . . . shall be grounds for the dismissal of the action." The written opinion shares other similarities with existing statutory service requirements. Notably, both the absence of a writ of summons from the initial complaint and the absence of an opinion letter of a similar health care provider from the initial complaint generally are incurable defects which are grounds for dismissal of an action. Compare Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 585 (plaintiff may not obtain written opinion of similar health care provider after filing of initial complaint) with Hillman v. Greenwich, supra, 217 Conn. 526 (plaintiff may not cure absence of writ of summons from initial complaint by filing amended complaint with proper summons). Finally, § 52-190a fundamentally establishes a precondition over the court's exercise of its jurisdiction over the person of an individual physician. The requirement that a plaintiff attach an opinion of a "similar health care provider," as defined in § 52-184c, will, in a case with multiple defendants, require a plaintiff to satisfy § 52-190a as to each named defendant. See Matkin v. Schoenfeld, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005165 (November 14, 2007, Upson, J.) ( 44 Conn. L. Rptr. 449, 449).
"Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted.) Connor v. Statewide Grievance Committee, supra, 260 Conn. 442.
Altogether, the requirement that the written opinion be attached to a plaintiff's complaint, the defendant-specific requirements for the contents of the opinion, the remedy of dismissal for a failure to file the required opinion and Votre's acknowledgment that the requirements of § 52-190a may be waived persuade the court that the issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant. Furthermore, analysis of this motion as a challenge to the jurisdiction over the person is supported by public policy arguments. In the present case, the defendants filed motions and pleadings that had to be addressed by the plaintiff. The defendants' motion for summary judgment required the expenditure of judicial resources to decide. These expenditures could have been avoided if the defendants had raised their challenge to the jurisdiction of the court in a timely fashion. The sufficiency of a § 52-190a opinion letter is a threshold question that ought to raised and addressed in an expeditious fashion. It seems to the court that the Practice Book's thirty-day time frame for raising these issues is appropriate. This time frame is triggered by an appearance of behalf of the defendant. Without such a limiting time frame a defendant could sit on his rights, expend the time and energy of his opponent and the court on pleadings and motions practice and then at the last hour raise his grounds for dismissal. Accordingly, the court concludes that claims challenging the adequacy of a written opinion pursuant to § 52-190a are waived if not raised in the manner specified in § 10-32.
In the present case, the alleged defect in the plaintiff's written opinion which gave rise to the present motion to dismiss was knowable to the defendants from the day they were served with the complaint. Under all the circumstances, the defendants were therefore obligated to file their motion within thirty days of the filing of their appearance. Having failed to do so, the defendants are deemed to have submitted to the jurisdiction of the court and, accordingly, have waived their right to object to the adequacy of the plaintiff's written opinion.
II. Waiver Pursuant to Practice Book § 10-6
Secondly, the court considers whether the defendants have waived their right to file their motion to dismiss through noncompliance with the pleading order requirements of Practice Book § 10-6. The defendants, in their supplemental brief, argue that § 10-32 limits the types of motions to dismiss that are subject to the order of pleadings in § 10-6, citing in support Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 569 and Wightman v. Sposato, supra, 49 Conn. L. Rptr. 162. A motion to dismiss based on a ground not listed in § 10-32, the defendants argue, will not be subject to § 10-6. The plaintiff, in its supplemental brief, argues that § 10-6 is applicable to the present case, and therefore that the defendants have waived their right to file their motion to dismiss by filing it after a request to revise, answer and special defenses.
Section 10-6 governs the order in which pleadings may be filed. Section 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by [§ 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Section 10-6 is also incorporated by reference into § 10-32, which provides in relevant part: "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 . . ."
Practice Book § 10-6 provides: "The order of pleading shall be as follows:
"(1) The plaintiff's complaint.
"(2) The defendant's motion to dismiss the complaint.
"(3) The defendant's request to revise the complaint.
"(4) The defendant's motion to strike the complaint.
"(5) The defendant's answer (including any special defenses) to the complaint.
"(6) The plaintiff's request to revise the defendant's answer.
"(7) The plaintiff's motion to strike the defendant's answer.
"(8) The plaintiff's reply to any special defenses."
In Sabino v. Ruffalo, supra, 19 Conn.App. 402, our Appellate Court considered a trial court's decision to apply the pleading order requirements of § 10-6 to a motion to dismiss on forum non conveniens grounds that had been filed simultaneously with a motion to strike. Forum non conveniens, as previously discussed, is not jurisdictional, and moreover is not one of the grounds explicitly set forth in Practice Book §§ 10-30 and 10-32. Durkin v. Intevac, Inc., supra, 258 Conn. 480. Nonetheless, the Appellate Court apparently found that the plaintiff's motion to dismiss was subject to the pleading order requirements of the Practice Book, stating that "generally, pleadings are not to be filed out of the order specified in [Practice Book § ] 112 [now Practice Book § 10-6]." Sabino v. Ruffalo, supra, 404. Ultimately, the court found that the trial court properly exercised its discretionary authority, pursuant to Practice Book § 10-7, to overlook the untimely filing of the motion to dismiss and to consider the motion on its merits. Id., 405. Such discretion is permissible, the court held, "where strict adherence to the [Practice Book] rules will work surprise or injustice because the very design of the rules is to facilitate business and advance justice." (Internal quotation marks omitted.) Id.
Looking beyond the relevant appellate authority on the issue, the plaintiff's argument misconstrues Practice Book § 10-32. Section 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section CT Page 15007 10-30." Section 10-32, by its plain language, does not state that only motions to dismiss brought on certain grounds will be subject to the pleading order requirements of Practice Book § 10-6, but rather that certain claims are waived if not raised in a motion to dismiss complaint with Practice Book §§ 10-6, 10-7 and 10-30. Moreover, Practice Book § 10-7 emphasizes that waiver on the basis of pleading order applies " [i]n all cases, when the judicial authority does not otherwise order . . ." (Emphasis added.) Accordingly, although the court has concluded that a motion to dismiss brought pursuant to § 52-190a implicates personal jurisdiction, and therefore will be governed by § 10-6 pursuant to the requirements of § 10-32, even non-jurisdictional motions to dismiss will be subject to the rule, stated in Sabino, that pleadings generally are not to be filed out of the order specified in Section § 10-6. Sabino v. Ruffalo, supra, 19 Conn.App. 404; see also Muisener v. Saranchak, Superior Court, judicial district of New Britain, Docket No. CV 07 5004003 (March 13, 2009, Pittman, J.) ( 47 Conn.L.Rptr. 359, 360) (holding that the pleading order requirements apply to a motion to dismiss brought pursuant to § 52-190a).
In the present case, because the court has concluded that the defendants' motion implicates the court's personal jurisdiction, the motion is subject to the pleading order requirements of § 10-6 and § 10-7 as incorporated by reference in § 10-32. As a "defendant's motion to dismiss the complaint," the motion is also independently subject to § 10-6, irrespective of the ground on which it was brought. Accordingly, the defendants were required to file their motion to dismiss in the proper order. Because the defendants filed a request to revise, answer and special defenses prior to the filing of their motion to dismiss, the court finds that, pursuant to § 10-7, they have waived the right to file their motion to dismiss. Furthermore, the court declines to overlook this deficiency pursuant to its discretionary authority under § 10-7. The motion does not raise an issue of subject matter jurisdiction, nor did the alleged defect in the written opinion upon which the motion is predicated only become known to the defendants after the filing of other pleadings. Additionally, the defendants' noncompliance with the pleading order requirements was not of a technical or insubstantial nature. In contrast to Wightman, where the defendants had filed only a single request to revise, which the defendants attempted to withdraw before it had been adjudicated, before filing their motion to dismiss, the defendants here filed multiple requests to revise, answers and special defenses over a period of twelve months following the commencement of suit.
III. Waiver on Equitable Grounds
Apart from the relevant waiver provisions of the rules of practice, the court will also consider whether the plaintiffs have waived the right to file their motion to dismiss on other grounds. Decisions of the Superior Court have held that the trial court has a discretionary authority to deny § 52-190a motions to dismiss which are untimely or where other facts indicate waiver on equitable grounds. See Lohnes v. Hospital of St. Raphael, Superior Court, Judicial District of New Haven, Docket No. CV 09 5031448 (April 6, 2010, Wilson, J) ( 49 Conn. L. Rptr. 594, 595) ("The court . . . has discretion to deny a motion to dismiss filed late in the proceedings or upon other facts that indicate waiver"); see also Wightman v. Sposato, supra, 49 Conn. L. Rptr. 164. In Lohnes v. Hospital of St. Raphael, the court found the defendants' motions to dismiss, filed within sixty-days of the filing of the plaintiff's complaint, to have been timely filed. See Lohnes v. Hospital of St. Raphael, supra, 595. In Wightman, the court held that a motion to dismiss filed four months after the commencement of suit and at the beginning of the discovery stage was not untimely. See Wightman v. Sposato, supra, 164.
A court's discretionary authority to deny motions to dismiss on timeliness grounds has been recognized in other contexts as well. A motion to dismiss on forum non conveniens grounds, for example, must be asserted "within a reasonable time after the facts or circumstances which serve as the basis of the motion have developed and become known or reasonably knowable to the defendant." In re Air Crash Disaster, 821 F.2d 1147, 1165 (5th Cir. 1987), vacated on other grounds, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). In one case, a court denied a motion to dismiss on forum non conveniens grounds due in part to the fact that it was filed nearly eleven months after the filing of the complaint, and after discovery had concluded. See Siloconature S.P.A. v. Seal King North America, Inc., United States District Court, Docket No. 8 05 3578 HMH (D.S.C., November 21, 2006).
In the present case, the alleged defect in the plaintiff's written opinion was knowable to the defendants from the commencement of this action, as previously noted. Accordingly, the defendants were obligated to challenge the adequacy of the opinion within a reasonable time of the filing of the complaint, or else waive the right to do so. Given the lapse of an entire year between the filing of the plaintiff's complaint and the filing of the defendants' motion to dismiss, and for the policy reasons discussed in part I, supra, the court concludes that the defendants have waived their right to object to deficiencies in the written opinion.
Conclusion
The court concludes that 1) the defendants have waived their right to object to the adequacy of the plaintiff's written opinion under Practice Book § 10-32 by filing their motion to dismiss more than thirty days after their appearance; 2) the defendants waived their right to file their motion to dismiss under § 10-6 by filing it after their request to revise, answer and special defenses, and 3) the defendants have waived their right to object to the adequacy of the plaintiff's written opinion under the court's discretionary application of equitable principles of waiver by raising their objection an unreasonable time after the defect in the plaintiff's opinion became reasonably knowable to the defendants. Finally, there is, in the court's opinion, no equitable or legal reason to invoke the court's discretion in this case to allow this motion to be filed out of time. Accordingly, the defendants' motion to dismiss is denied.