Opinion
FSTCV075003525S
06-21-2016
Barbara Tiplady, Administratrix v. Samuel Maryles, M.D
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION FOR ORDER (#272.00)
Kenneth B. Povodator, J.
This case, commenced in 2007, and tried in 2012 before a jury, has returned to the trial court after the Appellate Court reversed the judgment entered in favor of the defendants, 158 Conn.App. 680, 120 A.3d 528 (2015). The issue presently before the court is the scope of the trial on remand. That issue is complicated by the specific facts/history of the case as well as legal issues that contributed to (or made unavoidable) the present dispute as to scope of remand.
In 2004, the plaintiff's decedent went to the emergency room/department at Stamford Hospital, seeking treatment for a number of medical issues. At the emergency department, she was treated by the defendant doctor, Dr. Maryles. She was treated and released; the next day, she was admitted to Bridgeport Hospital where she died.
Legal representatives of the estate brought suit, claiming that medical malpractice had resulted in her death; named as defendants were the doctor himself, two entities alleged to have operated the emergency department on behalf of Stamford Hospital (Emergency Medicine Physicians of Fairfield County, LLC and Emergency Medicine Physicians, LTD), and Stamford Health Systems, Inc., d/b/a The Stamford Hospital (hereafter, " Stamford Hospital").
Prior to trial, all of the claims against Stamford Hospital had been removed from consideration by the jury, through a variety of mechanisms. The net effect, however, was that judgment had been entered, prior to trial, in favor of Stamford Hospital as to all claims asserted against it.
Although there were a number of claims that had been asserted against Stamford Hospital, the one of principal (current) concern is the claim that Stamford Hospital is liable to the plaintiff because Dr. Maryles had been acting as an apparent agent of Stamford Hospital and that in that capacity, Stamford Hospital was vicariously liable as the principal. Based on the then-existing state of the law, i.e. that there was no such basis for vicarious liability, judgment had entered in favor of Stamford Hospital on that claim.
The manner in which judgment had entered in favor of Stamford Hospital on that claim, in turn, itself is a " complicating" factor. As recited in the Appellate Court decision, 158 Conn.App. 700, " [p]rior to the start of evidence, the court granted Stamford Hospital's motion in limine to preclude evidence concerning apparent agency." That, in turn, led to the court entering judgment in favor of Stamford Hospital on that issue, prior to trial--and it is that judgment that is at the focus of the conflicting claims of parties.
Again, prior to the commencement of the trial before the jury, all claims against Stamford Hospital had been resolved by judgment, in one fashion or another. The parties stipulated that the time limits for the plaintiff to perfect its appeal on any such issues were suspended. At a minimum, that presumably relieved the plaintiff of the need to file a notice of intention to appeal pursuant to Practice Book § § 61-3 and 61-5. As a result, Stamford Hospital did not actively participate during the jury trial.
In starkest terms, Stamford Hospital contends that the reversal of the judgment by the Appellate Court did not implicate the judgment that had been rendered in favor of Stamford Hospital, prior to the jury trial, especially with respect to potential liability for the conduct of an apparent agent. Not surprisingly, the plaintiff contends that the reversal and remand preserve the right to pursue the claim against Stamford Hospital. That claimed right, in turn, had been--until recently--somewhat hypothetical/tentative in nature, but became material when the Supreme Court very recently issued a decision in Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), declaring that Connecticut does, in fact, recognize the concept of an apparent agent, and in particular, the principle applies in the context of medical malpractice. In so ruling, the Supreme Court undercut the rationale for prior trial court rulings that had led to the judgment in favor of Stamford Hospital on the issue of apparent agency.
Two separate appellate decisions were decided and officially released on June 14, 2016.
The court recognized that there were two separate concepts that come within the scope of the term " apparent agency" as often used--the apparent scope of authority of an actual agent and someone who could be characterized as an apparent (but not actual) agent. The court decided that both concepts should be treated in the same manner. For clarity, however, the court will try to maintain the distinction by referring to the claim of vicarious liability in this case as premised on a theory of apparent agent.
In their submissions and at argument, the parties largely focused on the nature of the agreement of the parties that had been made in connection with the pre-jury-trial entry of judgment in favor of Stamford Hospital. The court believes that the proper starting point is the remand and rescript, with the agreement of the parties at most informing the interpretation of the remand.
Indeed, the court has difficulty accepting the implication in the argument of the plaintiff that the court might or should treat the agreement of the parties as controlling (rather than the directive from the Appellate Court in the rescript). While the court might consider an agreement of the parties as a factor, and perhaps entitled to significant weight if the remand were otherwise insolubly ambiguous, the court knows of no directives from an appellate tribunal concerning proper application of a remand that recognizes a proviso " unless the parties agreed otherwise." For example, if the rescript had specified the counts that were to be subject to retrial, or if it had specified that the judgment was reversed only as to Dr. Maryles and his alleged/actual principals, the court would seem to have little choice but to abide by such specificity, regardless of any agreement of the parties.
Initially, it must be noted that in the process of remanding this case for a new trial, the Appellate Court did not engage in a formal discussion of the scope of the remand; cf. Bruno v. Whipple, 162 Conn.App. 186, 207-08, 130 A.3d 899 (2015).
The Supreme Court just recently reviewed the proper approach to be taken by a trial court with respect to determining the scope of proceedings on remand.
Determining the scope of a remand is a matter of law because it requires the trial court to undertake a legal interpretation of the higher court's mandate in light of that court's analysis . . . Because a mandate defines the trial court's authority to proceed with the case on remand, determining the scope of a remand is akin to determining subject matter jurisdiction . . .
Well established principles govern further proceedings after a remand by [an appellate court]. In carrying out a mandate of [an appellate court], the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . . . This is the guiding principle that the trial court must observe . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein . . . These principles apply to criminal as well as to civil proceedings . . . The trial court cannot adjudicate rights and duties not within the scope of the remand. It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed.
We have also cautioned, however, that our remand orders should not be construed so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand . . . So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing.
" This court's decisions consistently have declined to read our remand orders narrowly to preclude the trial court from exercising its discretion to manage a case remanded to that court. See, e.g., State v. Wade, 297 Conn. 262, 276-77, 998 A.2d 1114 (2010) (trial court did not exceed scope of remand when it resentenced defendant on all remaining counts rather than only on reversed count, notwithstanding Appellate Court's rescript directing sentence only on reversed count); Higgins v. Karp, 243 Conn. 495, 498, 706 A.2d 1 (1998) (trial court misinterpreted remand order, directing trial court to determine whether good cause existed to set aside defaults entered against defendant for failure to plead, to preclude introduction of additional evidence); Rizzo Pool Co. v. Del Grosso, supra, [240 Conn. 58, 65-66, 689 A.2d 1097] (in granting defendants' postremand motion for attorneys fees, trial court acted within scope of remand that merely directed it to render judgment in favor of defendants); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 522-25, 686 A.2d 481 (1996) (trial court improperly interpreted remand order for further proceedings for consideration of the zoning enforcement officer's claim for injunctive relief to prohibit parties from amending pleadings on remand)." State v. Brundage, 320 Conn. 740, 747-49, 135 A.3d 697 (2016). (Internal quotation marks and citations, omitted; emphasis as in cited case.)
Attempting to frame the issue in somewhat technical terms, defendant Stamford Hospital appears to take the position that there were (at least) two separate judgments that resulted from this case, one in favor of Stamford Hospital prior to the jury trial, and one in favor of the remaining defendants as a result of jury determinations at trial. Further, Stamford Hospital claims that only the jury determined issues were reversed by the Appellate Court, such that the prior-to-trial judgment in favor of Stamford Hospital remains in effect. Not surprisingly, the plaintiff disagrees with that analysis, contending that the Appellate Court reversed all aspects of the judgment when it remanded the matter for a new trial.
Again, although the parties have focused a fair amount of attention on the events surrounding the entry of judgment in favor of Stamford Hospital, the court believes that the appropriate focus is on the post-verdict proceedings and especially the appellate decision and remand/rescript. The court does not believe that it needs to address the issue as framed by the parties at times, i.e. did the parties agree to preserve all rights subject to final appellate resolution, or was it simply a deferral of the right to appeal the decision in favor of Stamford Hospital?
The defendant points to the fact that the appeal taken by the plaintiff was from the denial of the motion to set aside the verdict; inferentially, even allowing for liberality in interpretation of pleadings, that might suggest that the plaintiff only was appealing from the result of the jury verdict (which did not address liability issues relating to Stamford Hospital). The substance, however, is otherwise. In the plaintiff's motion to set aside the verdict (#242.00), the seventh (and last) basis for seeking judicial relief from the verdict focused precisely on the issue of the court's earlier rulings relating to Stamford Hospital--initially, evidentiary, and eventually entry of judgment based on having precluded any proffered evidence relating to status as an apparent agent. In turn, section VI of the memorandum of decision relating to that motion (#242.86) addressed that subject. (The motion requested a new trial on all of the identified issues.)
The very first sentence of the appellate decision identifies the scope of the appeal:
In this medical malpractice action, the plaintiff, Barbara J. Tiplady, administratrix of the estate of Linda Jablonski, appeals from the judgment of the trial court denying her motion to set aside the jury verdict returned in favor of the defendants, Samuel Maryles, Stamford Health Systems Inc. (Stamford Hospital), Emergency Medicine Physicians of Fairfield County, LLC, and Emergency Medicine Physicians Limited. 158 Conn.App. 683, 120 A.3d 528 (footnote omitted).
Thus, the Appellate Court started out by identifying the appeal as being applicable to all defendants.
Further, the Appellate Court recognized the existence of issues before it relating to Stamford Hospital. The court concluded that it would be inappropriate for it to address the merits of the apparent-agent issue based on the perception that it was moot, but that at least implies that the court recognized that the issue was before it. Even before determining whether an issue is moot or presents an issue suitable for adjudication, the court must determine that the issue is actually before it. There is no suggestion that the court had any reservations as to whether issues pertaining to Stamford Hospital and its liability properly had been presented to the court-identified in the appropriate statement of issues, appropriately briefed, etc.
In the reply briefs submitted to the Appellate Court, the plaintiff identified the issues being presented to the court, and issue #5 stated:
In the event of retrial, whether the Trial Court erred in ruling that as a matter of law a hospital is not liable for the torts of its apparent agents in the hospital's emergency room and in refusing to hold that a hospital has a nondelegable duty to patients treated in the hospital's emergency room, pursuant to State and Federal law.
These issues were addressed by the Appellate Court in Part II of its decision. The court declined to reach the merits of the apparent agent issue based on mootness (158 Conn.App. 699-701), but addressed the nondelegable duty issue on the merits (158 Conn.App. 701-04), affirming the trial court's resolution of that issue. It is beyond doubt, then, that the appellate decision was not limited to the judgment that had been rendered in favor of the defendant doctor and his actual employer(s) directly resulting from the jury verdict, but also considered issues pertaining to the judgment that had been rendered in favor of Stamford Hospital.
The rescript was short and to the point: " The judgment is reversed and the case is remanded for a new trial." The court did not parse the judgment nor the remand so as to identify which issues or which parties would be the subject of a retrial. Of course, to the extent that the rescript must be read in the context of the opinion, issues that had been affirmed on the merits could not be revisited, and in this case, the issue of nondelegable duty could not be revisited.
Having determined the issue unreviewable due to mootness, the Appellate Court did not address the merits of the theory that the defendant doctor had been an apparent agent of Stamford Hospital such that Stamford Hospital might be vicariously liable for his claimed negligent torts. The court could have affirmed the judgment in favor of Stamford Hospital almost summarily, based on the then-existing status of appellate authority, i.e. Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014) (prior to the Supreme Court's decision issued on June 14, 2016, 321 Conn. 593, 141 A.3d 752 (2016)).
Although the defendant Stamford Hospital may not agree, this court's interpretation of the procedural context for the characterization of the issue as moot is as follows: the discussion of the issue of concern in the appellate decision focused on the trial court's denial of the motion to set aside the verdict. The trial court's analysis of that issue in the memorandum of decision on the motion to set aside the verdict effectively was a revisiting of an issue that the court previously had determined without benefit of the jury verdict. The issue of vicarious liability of Stamford Hospital did not need to be revisited, in light of the jury determination that the defendant doctor was not legally responsible such that there was no primary liability of an apparent agent for which Stamford Hospital (or any " principal") might be vicariously liable. The Appellate Court did not address the merits of the decision actually rendered by the trial court on this issue (and did not reverse it).
Again, the court notes that there is at least some level of procedural ambiguity. The Appellate Court did not state that the appeal could not affect an earlier ruling on the issue of possible liability of defendant Stamford Hospital as the principal for an apparent agent, but rather focused on the fact that the discussion in the trial court's memorandum of decision, post-jury verdict, necessarily was advisory because of the jury's exoneration of Dr. Maryles.
At argument on June 10, 2016, it was noted that there were reasons that both sides might have asked for clarification from the Appellate Court as to the scope of its remand, with particular attention to this issue. It also was noted or implied that one or both sides might have had reasons to be wary of asking the Appellate Court to revisit its decision in any way. Thus, this court is left with a rescript for a new trial--no identification of any limitation as to counts, theories or parties.
We have reviewed the remainder of the plaintiff's claims of error and do not consider them likely to arise on retrial. State v. Jones, 234 Conn. 324, 351, 662 A.2d 1199 (1995). The error already found in the judgment make it unnecessary for us to identify and discuss these claims further.
The judgment is reversed and the case is remanded for a new trial. 158 Conn.App. 704. The Appellate Court certainly knows how to remand a case for a new trial with explicit direction as to parties and counts/theories. See, e.g. Lynch v. Granby Holdings, Inc., 32 Conn.App. 574, 585, 630 A.2d 609 (1993), rev'd, 230 Conn. 95, 644 A.2d 325 (1994): " On the appeal, the judgment in the first case is reversed as to the plaintiff Daniel Lynch's claim for breach of lease only and that case is remanded for a new trial." Instead, here there is a monolithic reference to " the judgment is reversed" without any particularity.
The court must now return to the recent Supreme Court decision in Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016). At the time of the jury trial, at the time the appeal was taken to the Appellate Court, at the time that the Appellate Court issued its decision, and at the time that the plaintiff filed its motion for order (#272.00), the law in Connecticut was reasonably clear that there was no cause of action for vicarious liability based on a claimed apparent agent. Although often cited in support of the proposition that such vicarious liability had been recognized in Connecticut, Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941) involved an issue of the scope of apparent authority of an actual agent--a distinction that was recognized (and then rendered academic) in the Supreme Court's decision in Cefaratti .
As quoted above from Brundage: " We have also cautioned, however, that our remand orders should not be construed so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand." The Appellate Court did not address the merits of the apparent-agent issue that the plaintiff had tried to resolve, perhaps because it had not been " envisioned" as necessary to address given its own prior rulings on the substance of the issue. Conversely, although the defendant Stamford Hospital contests the scope and efficacy of the plaintiff's efforts, the record is clear that the plaintiff never abandoned the issue (as discussed above).
In addition to its decision in Cefaratti, see, L& V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012).
As reflected in the affidavit submitted by counsel relating to the September 5, 2012 agreement between plaintiff and Stamford Hospital, the goal of counsel for the plaintiff had been " to find a way to excuse [defendant Stamford Hospital and its attorney] from the trial without prejudicing [plaintiff's] right to appeal the decision after trial, " the subject " decision" being the trial court's order precluding any evidence relating to apparent agency. See, paragraph 4 of the affidavit.
In paragraph 6 of the affidavit, counsel acknowledges that he " agreed as part of the dismissal that [the plaintiff] could defer [the] appeal until after the jury trial at the end of the month and [defense counsel] would not challenging [the] appeal as untimely." In paragraph 9, counsel recites the fact that the court denied the plaintiff's motion to set aside the verdict, after which an appeal had been filed, and as had been agreed, counsel for the defendant " did not move to dismiss the appeal on the grounds that it was untimely and instead briefed and argued the appeal. This extinguished our agreement as it was fully performed."
Accepting the recitation in the affidavit as accurate, where does that leave the issue of apparent agent? The plaintiff had appealed the issue, and the Appellate Court declined to review the issue on the merits--and without distinction as to parties or issues, remanded for a new trial. In declining to rule on the issue as a result of perceived mootness, had the court lost sight of the original ruling and entry of judgment, which had occurred prior to the jury verdict and subsequent decision on the motion to set aside? In a loose sense, the portion of the decision on the motion to set aside relating to apparent agency was an articulation of why the court previously had ruled on the issue as it had been presented to the court; the Appellate Court seems to have treated it as simply an unnecessary discussion of a non-essential issue.
It is possible that the Appellate Court may have relied too heavily on an excerpt from the trial court's decision that it quoted, which may have conveyed the impression that there had not been a prior (controlling) ruling: " Since apparent agency deals with vicarious liability and a jury found that the defendant Dr. Maryles was not liable to the plaintiff, the issue of apparent agency has become moot in the case at bar . . . Nonetheless, because of the importance of the issue . . . this court needs to set forth its ruling and rationale." (As quoted by the Appellate Court, 158 Conn.App. 700, 120 A.3d 528).The need for an explanation may have been rendered moot, but the judgment in favor of Stamford Hospital had not been predicated on the verdict, and once the verdict was determined to have been flawed, the underlying basis for the judgment in favor of Stamford Hospital was ripe for review.
The court ultimately concludes that the defendant's analysis is not persuasive. The court believes that the defendant's position is relatively straightforward and technical: although the Appellate Court declined to address the apparent-agent issue as discussed in the trial court's memorandum of decision relating to the motion to set aside the verdict (and for a new trial), based on mootness, the Appellate Court did not in any way disturb the earlier judgment that had been entered on the relevant count of the operative complaint, in turn based on the trial court's decision to preclude any evidence relating to the apparent-agent claim. The argument is plausible, and perhaps technically correct, but the court believes that the principles articulated earlier in this decision require a different result. Some of the relevant excerpts from Brundage as quoted above:
" [T]he trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . . ." (Emphasis in original)
" [I]t is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning . . ."
" [O]ur remand orders should not be construed so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand . . . So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing."
The court is compelled to conclude that it was not the intent or expectation of the Appellate Court that the substantive issue of apparent-agent vicarious liability had been foreclosed and would not be susceptible to being revisited upon retrial.
The description of the proceeding, as already quoted, sets the stage: " In this medical malpractice action, the plaintiff, Barbara J. Tiplady, administratrix of the estate of Linda Jablonski, appeals from the judgment of the trial court denying her motion to set aside the jury verdict returned in favor of the defendants, Samuel Maryles, Stamford Health Systems Inc. (Stamford Hospital), Emergency Medicine Physicians of Fairfield County, LLC, and Emergency Medicine Physicians Limited." The Appellate Court treated the verdict and judgment as unitary in nature.
The Appellate Court characterized the discussion of the issue in the post-verdict memorandum of decision as moot. The discussion properly could be considered moot only if it the judgment in favor of Stamford Hospital had been dependent (or perceived as dependent) solely on the verdict in favor of the defendant doctor. " In the present case, the jury's verdict barred the vicarious liability claim against Stamford Hospital. Thus, the court's analysis of the application of apparent authority constituted an advisory opinion and is not reviewable on appeal because the underlying issue is moot. Accordingly, we do not reach the merits of this claim."
The Appellate Court did not specify portions of the case that remained unaffected by its decision: " The judgment is reversed and the case is remanded for a new trial." This takes on additional significance since the court had rejected the appeal of the judgment in favor of Stamford Hospital relating to non-delegable duty. Only if the apparent agent issue remained in the case in some fashion could the judgment, in a unitary sense, be reversed.
The Appellate Court specifically noted that Cefaratti was pending before the Supreme Court; see, footnote 8 of the decision (158 Conn.App. 701). That would be worthy of mention--even if only in a footnote--only if the issue somehow retained relevance to the case.
Although procedurally distinct in that in this case the remand occurred prior to a subsequent change in law (rather than while the matter was pending before the Appellate Court), in Williams v. Housing Authority, 159 Conn.App. 679, 707, 124 A.3d 537 (2015), the Appellate Court remanded the case, in part, for reconsideration of the prior granting of summary judgment in light of the recent change in law brought about by the Supreme Court decision in Haynes v. City of Middletown, 314 Conn. 303, 101 A.3d 249 (2014).
Perhaps easily overlooked, the introductory language to Part II of the decision, in which the issue of apparent agency is discussed (and determined to be moot), starts with language that could only mean that the court did not believe the issue of apparent authority had been conclusively determined by the trial court (especially in a manner that was beyond review or revisiting):
Because we concluded that the case is to be remanded for a new trial it is appropriate for us to address certain issues, raised by the plaintiff, that are likely to recur on retrial. First, the plaintiff claims that the trial court erred in deciding, as a matter of law, that Stamford Hospital could not be liable for the torts of its apparent agents. 158 Conn.App. 699-700 (citation, omitted).
The court thus made it clear that it anticipated that this issue was one that was " likely to recur on retrial." The position taken by the defendant, however, would result in the court disregarding the Appellate Court's articulated perception of the scope of a trial after remand.
This analysis of the Appellate Court decision only partially takes into account the recent Supreme Court decision in Cefaratti . The Appellate Court noted the pendency of the appeal, but could not foresee the outcome. As noted above, the standards for determining the scope of a remand include consideration of unforeseen/unpredictable developments (" matters . . . that may not have been envisioned at the time of the remand").
For all of these reasons, the court concludes that the issue of defendant Maryles as an apparent agent of Stamford Hospital, as alleged in the fourth count of the operative complaint (#208.00) is part of the case that is to be retried in accordance with the remand from the Appellate Court.