Opinion
HHDCV156064393S
01-02-2019
State of Connecticut, COMMISSIONER OF the DEPARTMENT OF PUBLIC HEALTH v. Anthony COLANDREA, DDS
UNPUBLISHED OPINION
OPINION
Sheridan, J.
The defendant, Anthony Colandrea, D.D.S., has moved to vacate this Court’s December 10, 2017 [Order Docket Entry No. 115.86] granting the plaintiff’s Motion for Contempt and imposing a coercive fine of $ 1, 000.00 for each day of non-compliance. The defendant contends that his noncompliance is not willful, and should be excused for impossibility of compliance.
For the reasons set forth below, the court concludes that the moving party has not met his burden of showing by credible evidence that, through no fault of his own, he is completely unable to comply with the order of the court. However, the facts suggest that a coercive penalty is not longer an appropriate remedy, requiring a modification of the court’s order. The Motion to Vacate is therefore denied in part, and granted in part.
I. BACKGROUND
On December 10, 2015, the plaintiff Department of Public Health ("DPH") filed a Petition for Enforcement of a November 16, 2015 Subpoena Duces Tecum served upon Dr. Colandrea seeking production of certain patient records in connection with an investigation of possible fraudulent billing practices. This court (Robaina, J.) conducted a hearing regarding the petition. On January 25, 2016, the Court granted DPH’s petition and overruled the defendant’s objection thereto, ordering the defendant to release thirty-one subpoenaed patient records to DPH. The defendant appealed that decision and, on August 1, 2017, in a per curiam decision, the Appellate Court affirmed the Superior Court’s granting of the Petition for Enforcement of Subpoena. Commissioner of Public Health v. Anthony P. Colandrea, 175 Conn.App. 254 (2017). The defendant petitioned the Supreme Court for Certification. On November 8, 2017, the Connecticut Supreme Court denied the defendant’s petition. Commissioner of Public Health v. Anthony P. Colandrea, 327 Conn. 357 (2017).
On November 20, 2017, DPH moved the court to find the defendant in contempt for failing to comply with the subpoenaed patient records. The motion was calendared for a hearing on December 4, 2018. On November 28, 2018, the plaintiff moved for a continuance of the hearing, supposedly because Dr. Colandrea was "in Florida, and unable to attend or testify on December 12/4." The continuance was denied. On December 4, 2018, the motion appeared on the short calendar and the parties appeared and were heard. Dr. Colandrea was represented by counsel. At the hearing, neither Dr. Colandrea or his counsel informed the Court-or even suggested-that the records had been "accidentally destroyed." Quite to the contrary, counsel represented that "there is an explanation for the non-compliance with the court order," but requested than any questioning of Dr. Colandrea regarding that explanation be deferred until subsequent counsel could be present, because "there is a Fifth Amendment problem." Dr. Colandrea did briefly take the stand but, on the advice of counsel, refused to answer any questions regarding the subpoenaed documents, invoking his Fifth Amendment privilege against self-incrimination.
Subsequent testimony under oath revealed that Dr. Colandrea was in Connecticut on November 28, 2017. He had, in fact, been in the state since November 23, 2017. Counsel’s misrepresentation was never explained.
After the hearing, counsel for Dr. Colandrea filed a motion for protective order, based upon a claim that production of documents in response to the subpoena would violate the Fifth Amendment prohibition against self-incrimination. The court denied the motion for protective order and, on December 10, 2017, declared Dr. Colandrea in contempt of court and ordered the defendant to pay a coercive fine of one thousand dollars per day to the Office of the Attorney General from the date of the order until the documents which are the subject of the plaintiff’s petition for enforcement of subpoena were delivered to the Connecticut Department of Public Health. See Order on Motion for Contempt, Docket Entry No. 115.86.
On December 15, 2017, new counsel for the defendant Dr. Colandrea appeared in the case and filed the present Motion to Vacate Order Re Motion for Contempt. In the motion, the defendant conceded that he had failed to produce the subpoenaed patient records to DPH, but nonetheless moved to vacate the coercive fine based on the impossibility of complying with the court order. The defendant asserted that he could not comply with the court’s order because the documents are no longer in existence. The defendant explained that the subpoenaed documents were destroyed under circumstances which the defendant alleged were outside his knowledge or control.
The court heard evidence regarding the question of inability to comply on January 11, May 17 and June 25 of 2018. Post-hearing briefs were submitted by both parties.
II. LEGAL STANDARD AND BURDEN OF PROOF
An order of the court must be obeyed until it has been modified or successfully challenged. Bunche v. Bunche, 36 Conn.App. 322, 325, 650 A.2d 917 (1994). Disobedience or resistance of a lawful order, judgment, or mandate, constitutes a contempt of court. Ferrie v. Trentini, 111 Conn. 243, 252, 149 A. 664 (1930). The court has the inherent power to punish for such an offense. In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982).
"Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts." (Citations omitted; internal quotation marks omitted; emphasis original.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). This court has previously found that the plaintiff DPH made a prima facie case-by clear and convincing evidence-of indirect civil contempt based upon a clear and unambiguous order of the court and the defendant’s failure to comply with that order. The defendant does not challenge those findings. Thus, those questions will not be revisited here. The defendant does, however, contest the court’s finding of willfulness, based on his claim of inability to comply with the order of the court. See Eldridge v. Eldridge, 244 Conn. 523, 527-28 (1998) (inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt).
In the interests of justice, the court will consider the "defense" of inability to comply, despite the fact that it was first presented after the contempt order had already been entered and, apparently, only when Dr. Colandrea had been "cornered at the end of the chase." See United States v. Rylander, 460 U.S. 752, 762 (1983).
Since DPH has made out a prima facie case of contempt, Dr. Colandrea bears the burden of producing credible evidence in support of his defense that, through no fault of his own, was unable to obey the court’s order. See Norberg-Hurlburt v. Hurlburt, 162 Conn.App. 661, 671 (2016) (inability to comply is a defense to a contempt motion; however, the burden of proving inability to pay rests upon the contemnor). The dispositive question in this case is whether the defendant has carried that burden of production.
In civil contempt proceedings, facts must be proven by "clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319 (2015). The Supreme Court in Miller v. Commissioner of Correction, 242 Conn. 745 (1997), provided guidance on the standard of clear and convincing evidence as follows:
The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. (Emphasis added; internal quotation marks omitted; citations omitted.)Miller v. Commissioner of Correction, supra, 242 Conn. at 794.
The Miller court further stated:
Although we have characterized this standard of proof as a "middle tier standard" ... and as "an intermediate standard" ... between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard ... We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Citations omitted; emphasis in original.)Miller v. Commissioner of Correction, supra, 242 Conn. at 794-95, quoting Lopinto v. Haines, 185 Conn. 527, 539, (1981).
"Once a contempt has been found, General Statutes § 52-256b(a) authorizes a trial court to sanction a noncomplying party through the award of attorneys fees ... The award of attorneys fees in contempt proceedings is within the discretion of the trial court." (Internal quotation marks omitted.) Gina M.G. v. William C., 77 Conn.App. 582, 594-95, 823 A.2d 1274 (2003). "Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion." (Internal quotation marks omitted.) Esposito v. Esposito, 71 Conn.App. 744, 747, 804 A.2d 846 (2002).
III. FACTUAL FINDINGS
A trial court presented with a motion for contempt must exercise its discretion, as informed by factual findings. Bunche v. Bunche, 36 Conn.App. 322 (1994). In the present case this court, having carefully reviewed the documentary exhibits and evaluated the demeanor and credibility of the witnesses, having analyzed and weighed the evidence according to the applicable standards of law, and having considered the parties’ arguments and memoranda of law, finds the following facts to have been proven by clear and convincing evidence.
Dr. Colandrea was licensed as a dentist and has been a self-employed dentist in Connecticut since 1980. In 2014, Dr. Colandrea was the subject of an investigation commenced by the Department of Public Health. United Healthcare, a health insurer provider, contracted with an auditing firm, Verisk Analytics, to conduct audits of various healthcare providers to investigate potential fraudulent billing activities. After reviewing patient billings submitted by the Dr. Colandrea to United Healthcare billing, Verisk Analytics attempted to obtain certain patient records from Dr. Colandrea. Dr. Colandrea refused to provide the requested records, leading Verisk Analytics to refer the matter to the Office of the Attorney General, which subsequently referred the matter to the Department of Public Health.
On August 27, 2014, the DPH’s Practitioner Licensing and Investigations Section initiated an investigation of allegations of fraudulent billing activities by Dr. Colandrea. On November 16, 2015, DPH issued a subpoena duces tecum to Dr. Colandrea for complete copies of all records for thirty-one patients identified by Verisk Analytics. When Dr. Colandrea refused to comply with the subpoena, the present action seeking a contempt order was initiated.
Dr. Colandrea had a practice of storing, among other things, patient records in the basement of his dental office. On at least two occasions, July 28, 2016 and February 19, 2017, the basement was subject to minor flooding from leaky plumbing.
Testimony was offered that after one of these occasions, certain materials stored in the basement were discarded, probably including patient records responsive to the November 16, 2015 subpoena. The court notes that testimony, but does not find that fact to be proven by clear and convincing evidence.
IV. ANALYSIS
A. Inability to Comply with the Court’s Order
As is often true in these situations, the court is faced with a question of credibility. Dr. Colndrea’s testimony as to how the subpoenaed records came to be discarded or destroyed is relatively straightforward, but ultimately not credible.
First, as to the suggestion that the subpoenaed files were "in the basement," the testimony fails to meet the clear and convincing standard of proof. Dr. Colandrea was the only person who testified as to the files being in the basement, despite the fact that the evidence suggests that office staff may have been involved in the process and most certainly would have known of the files being placed in the basement. Dr. Colandrea testified that at some point (it is unclear exactly when), patient files responsive to the subpoena (it is unclear exactly how many) were segregated and kept "separately ... out of the general circulation" in a corrugated file box in the basement of his office at 810 Old Main Street in Rocky Hill (it is not clear exactly where-other than on the floor). These were active patient files. Dr. Colandrea testified that when those patients returned for care, their files were retrieved from the basement (and subsequently returned) or a "new" file was opened and kept in the office and the "old" file remained in the basement. To the court this seems a somewhat unusual response to the subpoena. The court could understand making a duplicate "working copy" of the file and securing the original for production in response to the subpoena, but the response suggested by Dr. Colandrea makes no sense in the context of a working dental practice.
Second, regarding the claim that the subpoenaed records were discarded because of the presence of mold, that testimony is also less than clear and convincing. Dr. Colandrea assumed that the records were "probably discarded" after the second incident of flooding in the basement of the office. If so, they were discarded at Dr. Colandrea’s direction. He directed his son to throw out anything that had mold on it, with full knowledge that there were "hundreds" of active and inactive paper patient health records in the basement and-as he testified-if they were destroyed, there would be no way to reproduce them. If true, that course of action was highly irrational and completely unprofessional.
Dr. Colandrea’s son, John, testified that he had been told to discard anything that "wasn’t salvageable" and so he discarded the corrugated boxes in the dumpster without even looking to see what was inside them. That testimony struck the court as somewhat contrived. There was no evidence that John Colandrea would be harmed by exposure to mold. It is illogical to suggest that he would not look inside the boxes-even if it was to see if the contents were "salvageable." Nonetheless, he testified accordingly, as did Dr. Colandrea, conveniently fitting the narrative that records were "accidentally" discarded.
Both Dr. Colandrea and his son want the court to chalk their illogical behavior up to "hysteria" and "panic"-a dubious explanation at best. John Colandrea was not at risk for mold exposure and Dr. Colandrea was in Florida at the time. When Dr. Colandrea eventually did return to the office many months later, it seems that simple expediency of a surgical mask was sufficient to allay his fears about exposure to mold.
Third, Dr. Colandrea appears to believe his obligations in response to the subpoena are limited to producing a box of files that was, allegedly, stored at some point in the basement of his office, but now has gone missing. This leaves open the possibility that there are responsive documents elsewhere in the office, but Dr. Colandrea did not testify as to any exhaustive search of the property for any responsive records. Other than one trip to the basement of his office, Dr. Colandrea has made little or no effort to locate or produce records responsive to the subpoena. A great deal of testimony was offered that strongly suggested the existence of records related to the patients listed on the subpoena other than those that were allegedly stored in the basement of Dr. Colandrea’s office. It appears that several of the patients identified in the subpoena continued in the care of Dr. Colandrea’s office after the service of the subpoena, and records would have been kept of those visits. Dr. Colandrea’s attempt to explain how patient records were kept and maintained for these returning patients after their files were supposedly sent to the basement was not at all credible, and there is a strong possibility that some or all of the patient records requested by the subpoena still exist and are in use by the dental office.
Linda Halik, A Fraud Specialist for CIGNA insurance, credibly testified that twenty-two patients listed on the DPH subpoena had received treatment at Dr. Colandrea’s office since March 1, 2017, after the alleged destruction of the subpoenaed patient records.
In the end, the court is left with no clear, direct testimony that the patient records in question were in fact discarded or destroyed, and Dr. Colandrea has not proven by clear and convincing evidence that he is unable to comply with the subpoena’s request for any and all documents in his possession and control related to the patients in question. He has not sustained his burden of proving a complete inability to comply with the court’s order.
B. Clean Hands
If Dr. Colandrea expects to bring forth a defense of inability to perform, he must do so with clean hands. The court finds that, even if Dr. Colandrea’s explanation of the events leading to the discarding and destruction of the records were taken as true, and even if the circumstances of his discovery of the missing records is taken as true, his subsequent behavior shows a lack of candor toward the court and counsel, continuing a pattern of obfuscation, delay and deception found throughout this case. The peculiar events that transpired at the hearing before this court on December 4, 2017 are particularly troubling. The suggestion of a "Fifth Amendment problem" leads this court to believe that, as of that date, Dr. Colandrea was aware (or suspected that) he was not entirely blameless for the records going missing. If, as Dr. Colandrea later testified, the records were unknowingly and "accidentally" discarded by his son and office staff, there would have been no reason for him or for his counsel to believe that his testimony explaining that fact might subject him to criminal prosecution. Indeed, in retrospect the events of that date appear to represent only another chapter of the ongoing game of "hare and hounds" between Dr. Colandrea and DPH. See United States v. Rylander, 460 U.S. 752, 762 (1983).
C. The Remedy
The court is well aware of the fact that, (although the explanation for their absence may be suspect) it is likely that some or all of the subpoenaed records no longer exist. But, that has not yet been satisfactorily proven. Given the new information elicited at these hearings, the justification for a coercive penalty no longer pertains, and the court must fashion an alternative response to the contempt in order to effect compliance with the court’s order.
"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense ... Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court [C]riminal contempt is conduct directed against the authority and dignity of the court, while civil contempt is conduct directed against the rights of the opposing party ... A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public ... Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained ..." (Citations omitted; internal quotation marks omitted.) DPF Financial Holdings, LLC v. Lyons, 129 Conn.App. 380, 385, 21 A.3d 834 (2011).
"Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained ... Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of [the] complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy. Civil contempt proceedings are not punitive-i.e., they are not imposed for the purpose of vindicating the court’s authority-but are purely remedial ...’ (Citations omitted; emphasis added; internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278-79, 471 A.2d 638 (1984)." DPF Financial Holdings, LLC, 129 Conn.App. at 386-87.
In the present case, the court is not persuaded that compensation is the appropriate remedy at this time. At present, any dollar amount specified as "compensation" to the DPH for the failure to obey the subpoena would be purely speculative and somewhat arbitrary. But the court does not rule out the possibility that-at some point in the future-compensation might become the most appropriate remedy for the conduct of the contemnor.
At this juncture, the court believes that the most appropriate remedy is to cut through the factual fog that Dr. Colandrea has thrown over the question of his patient records and get to the bottom of what records actually exist, and get those in the hands of the Attorney General and the Department of Public Health. To do so, the court will enter orders that, in effect, allow the DPH and the Attorney General to inspect the defendant’s office premises for evidence of patient records responsive to the subpoena, or evidence that the records have, in fact, been destroyed. This is, admittedly, a compelling response to the situation. But, in the view of the court, it is completely necessary to determine whether any responsive patient records still exist, since Dr. Colandrea is either unwilling or unable to settle that question.
In addition, the court will award attorneys fees to DPH. This is so because, if it is shown that Dr. Colandrea’s extreme carelessness in ordering the destruction of the patient records in question has deprived DPH of the means of enforcing its subpoena and carrying out its investigation, it is appropriate that Dr. Colandrea bear the cost of that fruitless undertaking.
V. CONCLUSION
The motion to vacate is denied in part and granted in part. The court’s prior determination of contempt will stand. The court’s order that the contemnor be subject to a coercive fine of one thousand dollar per day for each day of non-compliance is vacated. The following supplemental orders are entered.
Within thirty (30) days of this order, Dr. Colandrea shall make available to the DPH and/or its attorneys and representatives any records-of any sort whatsoever-from any time in the past to the present, whether paper-based or electronic/computer-based, that are in his possession and control and that relate to the 31 patients identified in the November 26, 2015 subpoena.
Within sixty (60) days of this order, Dr. Colandrea shall permit DPH and/or its representatives full and complete access to the offices of his dental practice at 810 Old Main Street, Rocky Hill (including the basement) for the purposes of inspecting and verifying the manner of storage, existence and location of stored patient records and other documents.
Both parties and their attorneys and representatives will jointly file for court approval a qualified protective order with appropriate limits on the use and disclosure of protected health information to include, at a minimum, limiting the use of any protected health information to this matter (HHD CV156064393) and requiring the protected health information to be returned or destroyed when this matter is concluded.
Pursuant to General Statutes § 52-256b(a), attorneys fees and costs associated with the motion for contempt are awarded to DPH. The parties shall contact the court to schedule a hearing to present evidence and argument as to the amount of attorneys fees to be awarded.
SO ORDERED.