Opinion
FSTCV115015359S
10-26-2016
Sylvester Traylor v. Bassam Awwa, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATED APRIL 15, 2016 (DOCKET NO. 188)
Robert L. Genuario, J.
I. Background
This is one of several cases brought by the plaintiff that have as their origin the tragic death of the plaintiff's wife Roberta Traylor (Roberta) by suicide on or about March 1, 2004. In this action the plaintiff, in his remaining claim, alleges that the defendants Robert Knowles, Neil Knowles and Advance Telemessaging (collectively referred to as the Knowles defendants), who at pertinent times operated a telephone answering service, spoliated evidence by destroying records and particularly records concerning telephone calls placed by the plaintiff to Roberta's psychiatrist, the former defendant Bassam Awwa, M.D., shortly before her death. The Knowles defendants have moved for summary judgment.
Before addressing the specific issues raised by the Motion for Summary Judgment the court must first review the background of the plaintiff's original case against Dr. Bassam Awwa, M.D. (Awwa) and Connecticut Behavioral Health Associates, P.C. (CBHA) which was brought in 2006. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV 06-5001159-S (hereinafter the 2006 case). Both the plaintiff and the defendants herein have made frequent reference to the 2006 case as a part of their claims and the court takes judicial notice of the file in the 2006 case. Next, the court must review the procedural history of this case and finally the court must discuss the substantive claims raised by both the plaintiff and the defendants regarding the defendants' Motion for Summary Judgment.
A. The 2006 Case
In the 2006 case the plaintiff alleged that Awwa was negligent in several ways including that he prescribed certain medications which were inappropriate for Roberta and that he failed to adequately inform her of the risks associated with the medications he prescribed, and that he failed to supervise, monitor or otherwise follow through with the plaintiff concerning his wife's suicidal behavior. The plaintiff specifically alleged that he called Awwa and CBHA, in the days leading up to Roberta's death, concerning her indications that she was suicidal and a danger to herself but that the plaintiff received no return calls. The plaintiff specifically alleged that Awwa and CBHA were negligent in that they refused to return his phone calls concerning the increased suicidal behavior of Roberta. The plaintiff's complaint was brought both in his individual capacity and his capacity as duly appointed administrator of the estate of his late wife.
On July 12, 2010 the plaintiff filed an Amended Complaint in the 2006 case which sounded in eight counts. The first six counts of that Amended Complaint were based upon various medical malpractice claims against each of the 2006 defendants. The Seventh Count alleged that the 2006 defendants (which did not include the Knowles defendants) had spoliated evidence and the Eighth Count alleged that the 2006 defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA). On July 29, 2010 then Judge Trial Referee, Thomas F. Parker entered an order dismissing Counts One through Six of the July 12, 2010 Amended Complaint. On August 11, 2010 Judge Parker filed a Memorandum of Decision articulating the basis for his order dismissing Counts One through Six. While the court will not recite the details of the Judge Parker's August 11, 2010 Memorandum of Decision it is fair to say that a significant component of the twenty-eight-page decision was the Court's view that the original complaint did not contain a certificate that complied with Conn. Gen. Stat. § 52-190a which required a certificate of good faith with a medical opinion. The Court's decision acknowledged that a medical opinion dated October 18, 2006 was obtained on that date. The Court's decision was based on its determination that the subsequently obtained medical opinion could not rescue the plaintiff's action that was brought approximately four months prior to the time that the plaintiff obtained the medical opinion. It is fair to say that the plaintiff disagrees with the substance of the Court's August 11, 2010 Memorandum of Decision. Subsequently, the 2006 Court granted the defendant's Motion to Strike the seventh and eighth counts of the Amended Complaint. On October 5, 2010 the court (Parker, J.T.R.) denied the defendants' Motions for Non-Suit and on February 15, 2011 the court (Parker, J.T.R.) dismissed counts seven and eight.
The plaintiff filed an appeal to the Appellate Court but that appeal was dismissed by the Appellate Court on December 19, 2011. The plaintiff filed a petition for certification to the Connecticut Supreme Court on December 29, 2011 but that petition was denied by the Connecticut Supreme Court on January 27, 2012, effectively ending the 2006 case.
There are multiple subsequent filings in the 2006 case including some by the plaintiff as recently as September 8, 2016 but none of those filing appear to be pertinent to the issues before this court raised by the Knowles defendants in their Motion for Summary Judgment.
B. The History of the Case at Bar
In January 2011, subsequent to the dismissal of counts 1 through 6 of the Amended Complaint filed in the 2006 case, the plaintiff brought this action returnable to the New London Superior Court against multiple defendants. That complaint alleged, in part, that the various state actors and certain private parties had discriminated against the plaintiff in violation of federal law because of his inter-racial marriage to Roberta. (The complaint alleges that the plaintiff is black and Roberta was white.) The case was removed to the United States District Court for the District of Connecticut on January 25, 2011 (See Traylor v. Awwa et al., United States District Court for the District of Connecticut (New Haven) Docket #3:11cv-00132-AWT). After various proceedings in federal court the case was dismissed or judgment entered in favor of ten of the thirteen defendants. The United States District Court then remanded the remaining state court claims against the Knowles defendants for adjudication in state court on March 23, 2015 (federal court docket #431) which order was confirmed after re-argument on June 10, 2015 (federal court docket #442). After several proceedings in different venues of the Superior Court the case was transferred to the Judicial District of Stamford/Norwalk on February 10, 2016. The Knowles defendants filed an Answer and Special Defense on February 16, 2016 responding to the Amended Complaint filed in federal court dated April 5, 2011. The plaintiff filed a request to amend his complaint on March 3, 2016 which the Knowles defendants objected to on March 14, 2016. The plaintiff filed a Motion to Strike the Answer and Special Defense and on April 26, 2016, this court rendered a decision denying the plaintiff's Motion to Strike the Answer and Special Defense and ruled that the operative complaint was the Amended Complaint filed in federal court on April 5, 2011. This particular history is important to the matter currently before the court because in April 2016 when this court rendered its decision it was apparent that the parties had a disagreement as to what was the operative complaint in the case at bar. The court expressly found in its decision on April 26, 2016 that the operative complaint was the Amended Complaint dated April 5, 2011 for the reasons stated in that decision. (See Docket No. 180.1.) The April 5, 2011 Complaint contained only one remaining count not adjudicated by the United States District Court. That count was Count 11 alleging that the Knowles defendants had spoliated certain evidence pertinent to the plaintiff's case against Awwa and CBHA. The plaintiff continues to assert in its opposition to the Motion for Summary Judgment that the operative complaint is the June 7, 2013 Complaint filed in federal court as federal court docket #274. The court will not repeat all of the reasons contained in its decision dated April 26, 2016 as to why the court determined that the April 5, 2011 complaint was and is the operative complaint but refers the reader to that decision for the detail of the federal court proceedings contained therein. This court, in deciding the Motion for Summary Judgment, will not revisit or reconsider its decision of April 26, 2016 and will address the defendants' Motion for Summary Judgment as it is directed to the remaining count eleven of the April 5, 2011 Amended Complaint.
The defendants included Bassam Awwa, M.D.; Attorney Donald Leone; Richard Blumenthal, Connecticut Attorney General; the City of New London; Joseph D'Alesio of the Connecticut Judicial Branch; the New London Criminal Division for the State of Connecticut Attorney's Office; Dr. Robert Galvin, Commissioner of the Connecticut Department of Public Health and the Knowles defendants.
The court does not suggest that this is a comprehensive summary of the allegations contained in one-hundred-eleven-page complaint. For more detail the reader is referred to the complaint itself.
II. Discussion
A. Standards for a Motion for Summary Judgment
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proofs 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 . . ." Ugrin v. Cheshire, 307 Conn. 364, 389, 54 A.3d 532 (2012). " Summary judgment is a method of resolving litigation when pleadings, affidavits and any other proofs submitted show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989) (Citations omitted).
While the documentary evidence that has been submitted by the parties is extensive and the issues involved somewhat complex, that in and of itself does not mean that summary judgment is inappropriate. Although the Connecticut Supreme Court has recognized " that, in complex cases, it may be more difficult to determine in advance of trial whether there exist any disputes regarding material facts, the opinions do not stand for the proposition that summary judgment is inappropriate in complex cases where the absence of disputes regarding material facts can be established. Succinctly stated, as a matter of law, no case is too complex for summary judgment." Gould v. Mellick & Sexton, 263 Conn. 140, 141, 819 A.2d 216 (2003). (Citations and internal quotation marks omitted.) " Summary judgment in favor of the defendant is properly granted if the defendant and its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issues of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 727 A.2d 1276 (1999).
Finally, in attempting to sustain their positions the parties will be able to rely on " only evidence that would be admissible at trial . . ." Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied 280 Conn. 917, 908 A.2d 538 (2006). See also Home Insurance Co. v. Aetna Life and Casualty Co., 235 Conn. 185, 202-04, 663 A.2d 1001 (1995); New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
B. Spoliation of Evidence
The Knowles defendants move for summary judgment claiming that the plaintiff cannot satisfy any of the essential elements required for a claim of intentional spoliation of evidence in Connecticut and that the Knowles defendants are entitled to judgment because the plaintiff failed to file his claim within the applicable statute of limitations.
In Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006), the Connecticut Supreme Court for the first time recognized an independent cause of action for intentional spoliation of evidence. The Supreme Court in recognizing that tort held that:
the tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant's knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant's destruction of evidence; (3) in bad faith, that is, with the intent to deprive the plaintiff of his cause of action; (4) the plaintiff's inability to establish a prima facie case without the spoliated evidence; and (5) damages.Id. at 244-45.
As each of these elements are essential to the tort if the defendants are correct that there is no genuine issue of material fact that any one of the elements does not exist then the plaintiff cannot prevail and the defendants are entitled to summary judgment. Accordingly, the court will go through each of the essential elements and review the affidavits and exhibits submitted by the parties to determine whether or not there is a genuine issue of material fact with regard to each of the elements.
Before engaging in that exercise the court observes however, that Rizzuto recognized a cause of action for first-party spoliation of evidence. That is to say that Rizzuto recognized cause of action when a party to an underlying action destroys or suppresses evidence relevant to the plaintiff's claim against that party. The Supreme Court specifically stated: " We express no opinion as to whether this state recognizes a cause of action for third party spoliation of evidence." Id. at 234-35 fn. 5.
The plaintiff's claim against the Knowles defendants is a third-party spoliation claim. In other words the plaintiff claims that the Knowles defendants destroyed evidence that would have been relevant to the 2006 case against Awwa and CBHA. The Knowles defendants were not defendants or parties in that case. Since Rizzutto, several superior court cases have recognized a cause of action for third-party spoliation of evidence. See e.g. Cambridge Mutual Fire Insurance Company v. Fox Heating Service, LLC, 57 Conn.L.Rptr. 790, superior court for the judicial district of Tolland, CV 136006920 (March 11, 2014 Bright, J.). The Knowles defendants have not asserted as a basis for their motion a claim that Connecticut does not recognize third-party spoliation of evidence claims. Accordingly, this court will not address that issue and will proceed on the assumption that such a cause of action is recognized in Connecticut and requires no more than the same elements as a first-party spoliation cause of action.
Specifically, the plaintiff alleges that the Knowles defendants who operated a telephone answering service had records evidencing that the plaintiff had called Awwa and CBHA in the days leading up to Roberta's death and perhaps other medical records concerning his late wife but that they destroyed that evidence which evidence would have been relevant to the plaintiff's claim against Awwa and CBHA that in part rested on his ability to prove that Awwa did not return urgent and immediate phone calls from the plaintiff when the plaintiff was desperately trying to alert Awwa that his late wife was experiencing suicidal symptoms as a result of the medication prescribed by Awwa.
C. The Elements Required to Prove a Claim for Spoliation of Evidence
The court will discuss the first two elements of a spoliation of evidence claim together because in the case at bar they are interrelated. The second element is the defendant's destruction of evidence. There is at a minimum a genuine issue of fact to be tried with regard to the issue of whether or not the defendants destroyed evidence. By the defendant's own admission, as set forth in their affidavits, they keep records of incoming phone calls on a computer system utilizing a three-and-a-half-inch computer disc They also acknowledge that in the regular course of their business they reuse those computer discs every three or four months writing over the previous entries thereby making the evidence of the prior phone calls inaccessible and effectively destroying such evidence. The defendants' affidavits indicate that their normal business practice was to type a text entry into their computer system indicating the date and time of the call, the name of the caller, the name of the client, the customer that the caller wanted to speak with and a brief note concerning the caller's message. The affidavits also indicate that those text entries were stored on the three-and-one-half-inch computer discs and that their office would forward the message to the particular customer or client in the fashion that the customer had requested. The Knowles' affidavits state that they reused the three-and-one-half-inch discs every three to four months to save storage space and to save money. There was no other record of incoming calls. The Knowles' affidavits also indicate that the first time they heard of the plaintiff, Roberta or Roberta's death was late summer of 2007 when an employee of CBHA called looking for telephone records because the plaintiff was bringing suit as a result of Roberta's death. Essentially, the Knowles defendants argue that there is no genuine issue of material fact that they routinely reuse their computer discs thereby making inaccessible the records of prior phone conversations every three or four months and that therefore the records of phone messages would have become inaccessible three or four months after the calls were placed in 2004, long before they knew of an impending civil action against Awwa or CBHA.
However, the plaintiff in his affidavit states: that he spoke with employees of Advance Telemessaging on March 1, 2004. That he made it very clear that he was going to hold all parties liable for not returning his urgent telephone calls. He states in his affidavit that on March 1, 2004 he asked for the name of the answering service business, the owner's name, their address and their telephone number but the defendants' employee declined to give it to him. He also indicates that he received a call from Awwa on March 2, 2004 in which Awwa asked him " what happened." The plaintiff suggests, not unreasonably, that Awwa's question " what happened" allows an inference that employees of the Knowles defendants informed Awwa that the plaintiff's wife had committed suicide. Moreover, the plaintiff in his affidavit stated that in 2008 he discovered the names of the Knowles defendants through a discovery request in the 2006 case. The plaintiff's affidavit includes the statements that when he visited the Knowles defendants' place of business in 2008 he started to read a letter contained in their files from the CBHA manager instructing the Knowles defendants " to destroy all evidence as it pertained to the Traylors." (The referenced letter has not been provided to the court.)
Of course it is not the court's function on a motion for summary judgment to weigh or balance the evidence but only to determine whether or not the competing affidavits and exhibits raise triable issues of fact. Given the affidavit of the plaintiff, the court determines that there are genuine issues of material fact, triable to a jury with regard to elements one and two regarding when the Knowles defendants became aware of a likely and impending civil action and when they destroyed the evidence.
Similarly there is a genuine issue of fact with regard to element three: whether the defendants destroyed the evidence " with intent to deprive the plaintiff of his cause of action." Given the plaintiff's affidavit, stating that he saw a letter instructing the Knowles defendants to destroy all evidence as it pertained to the Traylors from CBHA in a file kept by the Knowles defendants, the court concludes that there is a genuine issue of material fact to be decided by a jury as to whether or not the Knowles defendants acted in bad faith. Once again it is not the court's function on a motion for summary judgment to weigh the credibility of the various affidavits but only to determine whether or not a genuine issue of material fact exists. The court concludes that with regard to element three such an issue of fact has been raised.
The fourth essential element required in order to sustain a claim for spoliation of evidence is that the plaintiff must demonstrate his " inability to establish a prima facie case without the spoliated evidence." The fifth essential element is damages. The court will discuss these elements together as well since they also are interrelated. The Supreme Court in Rizzuto discussed these elements within the context of proximate causation.
To establish proximate causation, the plaintiff must prove that the defendants' intentional bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation. Cf. Smith v. Atkinson, 771 So.2d 429, 435 (Ala. 2000) (" in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment ").Rizzuto at 246-47 quoting Smith (emphasis added).
In the case at bar, however, the destruction of those phone messaging records did not render the plaintiff unable to establish a prima facie case against Awwa or CBHA. The plaintiff was quite able to testify that he placed multiple calls to Awwa and CBHA and that no calls were returned. The plaintiff could have subpoenaed the Knowles defendants to elicit testimony as to their usual business practices and even without the specific records their testimony would have evidenced that they routinely forwarded such calls to their customer. See Tait, Handbook of Connecticut Evidence, fifth edition, sec. 4.21.4, p. 204 (2014). Thus, to the extent the plaintiff's underlying action against Awwa and CBHA was based upon their failure to return the plaintiff's urgent phone calls relating to Roberta's reaction to the medication that Awwa had prescribed and to the extent as an element of that claim the plaintiff needed to establish that he had called those defendants, that their office received those calls, and that those calls went unreturned, the plaintiff was not without evidence to establish these elements of his case. Indeed, testimony consistent with the affidavits filed by the parties in this case could have established, if believed by a jury, that the plaintiff placed calls to Awwa and CBHA and that those calls went unreturned. Certainly such evidence would have survived a motion for summary judgment in the case against Awwa and CBHA if that motion was based upon a claim that those defendants had not received notice of Roberta's adverse reaction to the medication prescribed by Awwa.
Depending upon what the plaintiff established at a trial of the 2006 case concerning the missing evidence he might have been entitled to an instruction to the jury relating to an adverse inference from intended spoliation of evidence. See Beers v. Bayliner Marine Corp., 236 Conn. 769, 778, 675 A.2d 829 (1996).
The court finds that there is no genuine issue of material fact that any records spoliated by the Knowles defendants did not deprive the plaintiff of the ability to establish a prima facie case against Awwa and CBHA.
However, if the plaintiff was deprived of the ability to make out a prima facie case against Awwa and CBHA then " there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation . . ." Rizzuto at 247, quoting Smith v. Atkinson, supra, 432-33; see also Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (W.Va 2003). Thus, if the Knowles defendants can offer evidence rebutting the presumption, that but for the fact of spoliation of evidence the plaintiff would have recovered against Awwa and CBHA, then the Knowles defendants can prevail in such a claim. The Knowles defendants argue that there is no genuine issue of material fact that they can conclusively rebut the presumption. The court agrees. The plaintiff brought his case against Awwa and CBHA and he did not prevail. Those claims brought in 2006 were dismissed in 2010 and 2011. The plaintiff took an appeal to the Connecticut Appellate Court but that appeal was dismissed as well. The plaintiff filed a petition for certification to the Connecticut Supreme Court which petition was denied. This court has reviewed the various decisions referenced by the parties rendered by Judge Parker and others either striking or dismissing the plaintiff's various claims against Awwa and CBHA and ultimately entering judgment in the superior court against the plaintiff both in his individual capacity and in his capacity as an administrator of the estate of his late wife. None of those decisions even remotely rely on any claim or determination that the plaintiff would be unable to prove that he had placed multiple urgent phone calls to Awwa or CBHA at the time Roberta was allegedly suffering from an adverse reaction to medication prescribed by Awwa; nor do any of those decisions rely on the plaintiff's inability to produce evidence that might have been destroyed by the Knowles defendants. Those decisions, in the 2006 case, were based primarily on the Court's determination that the plaintiff failed to comply with the dictates of Conn. Gen. Stat. § 52-190a which by its terms requires a plaintiff prior to bringing a medical malpractice action to make reasonable inquiry to determine that a good faith belief exists that there are grounds for such action. C.G.S. section 52-190a specifically requires a plaintiff to obtain a signed opinion from a similar health care provider that there appears to be evidence of medical negligence. While this court understands that the plaintiff attempted to correct that deficiency by filing a medical opinion in the 2006 case in October of 2006, the 2006 Court determined that the October 2006 filing of a medical opinion did not save the action. This court also understands that the plaintiff passionately disagrees with the ruling in the 2006 case but the plaintiff's remedy, if that ruling was incorrect, was to pursue an appeal to the Appellate Court. He attempted such an appeal, but was unsuccessful in pursuing it. In ruling on this Motion for Summary Judgment, it is not this court's function to determine the correctness or incorrectness of the superior court's decision in the 2006 case but only to observe and find that those rulings were not based on the lack of evidence which may have resulted from the claimed conduct of the Knowles defendants in reusing the three-and-one-half-inch computer discs or otherwise spoliating evidence. There is no genuine issue of material fact that the plaintiff was unsuccessful in the 2006 case for reasons totally unrelated to the evidence which he now claims was spoliated. Because it is clear that the plaintiff's lack of success in the 2006 case was for unrelated reasons, there is no genuine issue of material fact that the Knowles defendants are able to conclusively rebut the presumption that the plaintiff would have prevailed in the case against Awwa and CBHA but for the spoliated evidence.
But see the Connecticut Supreme Court's decision in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011).
This case requires an understanding of the reasoning set forth in Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 501 N.E.2d 1312, 103 Ill.Dec. 774 (1986), appeal denied, 114 Ill.2d 556, 508 N.E.2d 735, 108 Ill.Dec. 424 (1987), cited in Rizzuto . In Petrik, the Illinois Appellate Court determined that it need not address whether in some circumstances Illinois would recognize a cause of action for spoliation of evidence because in Petrik the " plaintiff failed to establish 'a nexus between the failure of his [underlying] suit and the destruction' of evidence." Rizzuto at 232 quoting Petrik (brackets in original).
While the plaintiff herein did not abandon his claim against Awwa as the plaintiff in Petrik had done, the plaintiff's failure to prevail in the 2006 case against Awwa and CBHA had nothing to do with the lack of evidence concerning phone calls or other records which might have been held by the Knowles defendants. There is simply no " nexus" between the failure of the plaintiff's underlying claim in the 2006 case and the loss of evidence allegedly caused by the Knowles defendants.
The court concludes that there is no genuine issue of material fact that the plaintiff would not be able to establish the fourth and fifth elements necessary to prevail in a claim for spoliation of evidence.
Some of the material filed by the plaintiff in opposition to this motion seeks to demonstrate that Judge Parker in rendering his decisions in the 2006 case was not only incorrect but was motivated by bias and personal animus against the plaintiff. This court need not comment one way or the other on the validity of the plaintiff's claims in this regard except to observe that such claims do not establish a " nexus" between the alleged spoliated evidence and the plaintiff's failure to prevail in the 2006 case.
D. The Statute of Limitations
The Knowles defendants also assert that the statute of limitations bars the plaintiff's claim. In support of this defense the Knowles defendants argue that the affidavits establish that any destruction of evidence would have occurred within three to four months of March 1, 2004 and since this case was not brought until 2011, the action was brought well beyond the three-year statute of limitations for tort claims set forth in C.G.S. § 52-577.
While the affidavits of the Knowles support their position that any evidence destroyed was destroyed in 2004, the plaintiff's affidavit indicates that he saw certain records as late as 2008. Thus, there is a genuine issue of material fact as to when the records were destroyed.
IV. Conclusion
Because there is no genuine issue of material fact that the plaintiff would not be able to establish all of the necessary elements of a claim for spoliation of evidence, the Motion for Summary Judgment of the Knowles defendants is hereby granted.
BY THE COURT
GENUARIO, J.