Opinion
FBTCV136039122 FBTCV136036033
10-11-2016
Craig Gambardella, Administrator of the Estate of Tara Gambardella v. Heiko Schmitt, M.D. et al. Craig Gambardella, Administrator of the Estate of Tara Gambardella v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PRECLUSION OF APPORTIONMENT
Michael P. Kamp, J.
The issue before the court is whether the jury may properly apportion liability among state and nonstate defendants, in accordance with the statutory right to apportionment through § 52-572h, notwithstanding the state's right to have such issues determined by the court without a jury pursuant to § 4-160(f).
FACTS
On June 17, 2013, the plaintiff, Craig Gambardella, both individually and as administrator of the estate of Tara Gambardella, filed a medical malpractice action against the state of Connecticut/UConn Health Center (state), Peter Schulman, M.D., W. David Hager, M.D., Jonathon Hammond, M.D., and the Connecticut Cardiothoracic Surgical Associates. The plaintiff later withdrew his complaint as to some of the defendants, leaving the state as the sole and current defendant in the first action. See Gambardella v. State, Superior Court, judicial district of Fairfield, Docket No. CV-13-6036033-S. On November 4, 2013, the plaintiff filed this present action against John Hammond, M.D., Connecticut Cardiothoracic Surgical Associates, and Hartford Clinical Associates (nonstate defendants).
During a September 7, 2016 status conference, an issue was raised as to how liability is to be apportioned among the state and nonstate defendants. On September 16, 2016, in the companion case, the state filed a motion in limine to preclude the plaintiff and nonstate defendants from presenting evidence and arguments in support of a claim of apportionment. In response, on September 19, 2016, the nonstate defendants filed a motion in limine in the present case for a ruling as to manner in which apportionment of damages will be submitted to the jury. On September 19, 2016, the plaintiff filed a memorandum of law in both cases regarding the issue of apportionment. Thereafter, on September 26, 2016, the plaintiff filed an objection to the state's motion in both cases.
Presently, no apportionment complaint has been filed against the state pursuant to § 52-102b(a). In addition, none of the parties have argued whether an apportionment complaint can properly be filed against the state. Instead, the motions have focused on whether the jury is permitted to determine apportionment of liability pursuant to § 52-572h in light of § 4-160(f) requiring that the state receive a bench trial. Section 52-102b(a) provides: " Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint." The return date for the present case, per the summons and complaint filed on November 4, 2013, is November 19, 2013. Additionally, since it is arguable that the plaintiff's original complaint is the action currently pending against the state, the return date on that case, per the summons and complaint filed June 17, 2013, is June 25, 2013. Therefore, the filing of any apportionment complaint at this time would be outside of the specified one-hundred-twenty-day range based on either aforementioned return date.
DISCUSSION
" [T]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge's inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008). " The judicial authority may grant the relief sought in the motion or other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding." Practice Book § 42-15.
The state moves in limine for preclusion of evidence and arguments regarding apportionment on the ground that the state is an entity immune from liability pursuant to General Statutes § 52-102b, and therefore its liability cannot be considered for apportionment purposes under General Statutes § 52-572h. Moreover, the state argues that the claims commissioner lacks authority to waive the state's sovereign immunity with respect to claims for apportionment.
In response, the plaintiff argues that the jury may properly determine apportionment of liability as to the state and the nonstate defendants, to the extent that the jury finds that both are liable. The plaintiff further argues that although the claims commissioner lacks jurisdiction to review or authorize an apportionment complaint, there was no such request in the present case, since the commissioner already waived sovereign immunity for liability purposes in accordance with General Statutes § 4-160. The nonstate defendants, who filed a motion in limine regarding trial procedure and apportionment, argue that they have a constitutional right to a jury trial and a statutory right to apportionment of damages, and that the state's statutory right to a bench trial does not vitiate the apportionment of damages under § 52-572h.
Subsection (a) of § 4-160 provides: " Whenever the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable." Subsection (b) of § 4-160 provides that " [i]n any claim alleging malpractice against the state, a state hospital or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Office of the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim." Furthermore, subsection (c) of § 4-160 provides in relevant part: " The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances." In regard to trial procedure, subsection (f) of § 4-160 requires that " [i]ssues arising in such actions shall be tried to the court without a jury."
In the present case, the plaintiff properly filed a notice of claim with the claims commissioner pursuant to General Statutes § 4-147, and the commissioner authorized suit against the state pursuant to § 4-160(b). " Under the statutory scheme for presentation of medical malpractice claims against the state, if the claims commissioner authorizes a suit pursuant to § 4-160(b), the state's sovereign immunity is waived." Calvert v. University of Connecticut Health Center, 142 Conn.App. 738, 743, 68 A.3d 107 (2013). Therefore, in accordance with § 4-160(c), the state's sovereign immunity is waived, and its liability will be treated the same as though it were a private person.
Section 4-147 provides in relevant part: " Any person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state, if such permission is sought."
There is no indication in the filings that a " certificate of good faith" was submitted to the claims commissioner. Paragraph 5 of the plaintiff's second revised complaint, filed January 14, 2016 in the state's case, alleges that the claims commissioner granted plaintiff permission to bring an action against the state after " finding that the requirements of Connecticut General Statutes § 4-160(b) have been met." In the state's motion in limine re preclusion of apportionment, it reasserts this same finding. Since this assertion is not currently in dispute, this motion will proceed as though all of the proper requirements have been met.
The state argues that, pursuant to § 52-102b, its liability cannot be considered for apportionment purposes in the nonstate defendants' jury trial. Specifically, they note that subsection (c) of § 52-102b provides: " No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h." The state cites to Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), and Bloom v. Gershon, 271 Conn. 96, 856 A.2d 335 (2004), in support of its argument that the claims commissioner lacks authority to waive sovereign immunity for apportionment claims, and that, therefore, the state's immunity remains intact.
Before addressing the state's argument, it is appropriate to review the relevant statutory provisions. General Statutes § 52-572h governs liability of multiple tortfeasors for damages in negligence actions. Subsection (c) of § 52-572h provides in relevant part, that " [i]n a negligence action to recover damages resulting from . . . wrongful death . . . if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section." (Emphasis added.) Subsection (f) of § 52-572h further provides: " The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant." (Emphasis added.)
In the present case, the plaintiff successfully filed a notice of claim with the claims commissioner for authorization of suit against the state. This is distinguishable from the facts in Bloom v. Gershon, supra, 271 Conn. 101, where the nonstate defendants Maresh and the radiologists filed " notices of claim with the claims commissioner seeking a waiver of sovereign immunity and permission to file their apportionment complaints in the Superior Court." (Emphasis added.) The Supreme Court found that " the commissioner lacked jurisdiction under chapter 53 to authorize apportionment complaints, " and that " [t]herefore, the state's immunity was not waived in regard to the apportionment complaints of Maresh and the radiologists." Id., 114.
Importantly, the court further went on to highlight that " there is no indication in the record that [the plaintiffs] ever sought to have the claims commissioner waive the state's sovereign immunity with regard to their claims against [the state] . . . Apparently, [the plaintffs] regard the viability of their claims against [the state] as rising or falling with the viability of the apportionment complaints against [the state]." (Emphasis added.) Id., 100 n.3. Notably, the court did not address whether the plaintiff was correct in that regard, as the issue before the court was limited to whether the claims commissioner could authorize an apportionment complaint by a defendant. Addition ally, in Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 35, the court addressed the issue of timeliness with regard to the filing of an apportionment complaint pursuant to § 52-102b(a).
Here, the only claim made with the claims commissioner pursuant to § 4-160(b) was by the plaintiff for authorization to sue the state, not by a defendant seeking permission to file an apportionment complaint. By permitting the plaintiff to sue the state, the commissioner has waived sovereign immunity, thereby rendering § 52-102b(c) not applicable to the current action as there are no immune parties involved.
The issue in the present case of whether the claims commissioner waiver of sovereign immunity permits apportionment among the state and nonstate defendants was recently addressed by another Superior Court decision in Bujak v. State, Superior Court, judicial district of Hartford, Docket No. CV-08-6003355-S (January 16, 2015, Robaina, J.) (59 Conn.L.Rptr. 630, ), which this court finds to be persuasive. In Bujak, the plaintiff had alleged two separate claims of negligent care and treatment; one against the state of Connecticut and the other against an obstetrician-gynecologist in private practice. Id., 630, . Just as in the present case, the state in Bujak was to have its issues and claims determined by the court, while the issues and claims against the private doctor were to be determined by a jury. Id. Judge Robaina found that the claims commissioner had waived the state's sovereign immunity, and therefore the jury was permitted to determine the apportionment of liability as to both the private doctor and the state, to the extent that the jury found both defendants liable. Id., 631, . Moreover, as in the present case, the state in Bujak was a party defendant of the original action, unlike in Bloom where the state only made an appearance as an interested party and would have become a party only after another defendant was permitted to file an apportionment complaint pursuant to § 52-102b. Id., 631, n.3.
The issue that this court must now address, however, is precisely how the nonstate defendants' statutory right to a jury determination of apportionment, pursuant to § 52-572h, interacts with the state's statutory right to a bench trial, pursuant to § 4-160(f). " If two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both." (Internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 598, 610 A.2d 1177 (1992). " If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so." Dorry v. Garden, 313 Conn. 516, 531-32, 98 A.3d 55 (2014). Therefore, this court must look at the meaning and intent of each statute. " [A] primary purpose of enacting [§ 52-572h] was to change the common law of joint and several liability such that a defendant would be liable only for that proportion of the damages for which he was responsible." (Internal quotation marks omitted.) Baxter v. Cardiology Associates of New Haven P.C., 46 Conn.App. 377, 381, 699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640 (1997). " [T]o require [a] defendant to pay the entire amount of damages assessed by the jury in [a] multitortfeasor situation without apportionment taking place essentially [is] a reversion to the common law of joint and several liability, which was abolished by Tort Reform I and Tort Reform II, and in particular, by § 52-572h." (Internal quotation marks omitted.) Carlson v. Waterbury Hospital, 280 Conn. 125, 150, 905 A.2d 654 (2006).
Section 52-572h ensures that, in a case involving multiple tortfeasors, each individual tortfeasor only pays their proportionate share of damages. In order to ascertain the proportionate share of liability for a particular tortfeasor, however, the jury is tasked with determining the liabilities of all negligent parties to the action. This necessarily means that the jury in the nonstate defendants' trial is statutorily required to make a determination as to the state's liability as well. Nevertheless, § 4-160(f) requires that the issues and claims against the state and, specifically, a determination of its liability to the plaintiff, be tried to the court without a jury. Therefore, the jury's assessment of the state's liability in the nonstate defendants' trial could not be binding on the state.
A determination by the jury of the state's proportionate share of liability can properly be characterized as an incidental component of the jury's findings, but necessary to a proper determination of the nonstate defendants' liability pursuant to § 52-572h. The predominate focus of the jury's findings is to determine the nonstate defendants' proportionate share of liability to the plaintiff--not the state's. The binding determination as to the state's liability to the plaintiff, if any, will be decided by the court, not the jury. Therefore, in reconciling § 52-572h and § 4-160(f), the jury must properly apportion liability among the state and nonstate defendants for the purposes of determining the amount, if any, of the nonstate defendants' liability, but the court will not be bound by any such findings in its determination of the liability of the state. Similarly, the court must also apportion liability among all parties in determining the amount of liability, if any, of the state.
In oral arguments on October 6, 2016, the state pointed to the decision in Donner v. Kearse, 234 Conn. 660, 673, 662 A.2d 1269 (1995), where the Supreme Court found that the jury could not consider the negligence of a nonparty in determining the defendant's percentage of responsibility. In that case, the initial action involved two plaintiffs, Lilyan Donner and Robert Donner, against two defendants, Kelvan Kearse and Anna Riccio. Prior to trial, plaintiff Lilyan settled with, and executed a re-lease of, defendant Riccio, and thereafter withdrew her action against him. Id., 663. Plaintiff Robert then withdrew his cause of action against both defendant Kearse and defendant Riccio, leaving only plaintiff Lilyan and defendant Kearse as parties to the action. Id. Subsequently, Defendant Kearse specially pleaded that the proximate cause of plaintiff Lilyan's injuries was the negligence of Robert Donner. Id., 664. Plaintiff Lilyan moved to strike the special defense that referred to Robert Donner's negligence on the ground that " he was no longer a party and, therefore, that his negligence could not be considered by the jury in apportioning damages under § 52-572h." Id.
In reference to § 52-572h, the court in Donner noted that " these provisions set forth two classes of persons whose negligence must be considered by the trier of fact: (1) the parties to the action; and (2) settled or released persons, as that term is illuminated in subsection (n)." (Internal quotation marks omitted.) Donner v. Kearse, supra, 234 Conn. 671. The court defined the term 'party' as referring to " those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons." (Citation omitted; internal quotation marks omitted.) Id. The court determined that Robert Donner was not a party because he had " withdrawn his legal action against the defendant before the time of trial, and he no longer fit [the] definition of 'party.'" Id., 672.
In the present case, the plaintiff's initial cause of action included the state and nonstate defendants in one suit. The plaintiff later withdrew his action against the nonstate defendants and subsequently refiled the case now before the court. As it presently stands, the plaintiff has pending actions against the state, under docket number CV-13-6036033-S, and against the nonstate defendants, under docket number CV-13-6039122-S. In contrast to the plaintiff in Donner, the plaintiff in the present case did not permanently withdraw all actions against either the state or nonstate defend-ants. Under the definition of 'party' as supported by the Supreme Court, the state remains an entity " against whom a legal suit is being brought, " and therefore may properly be considered in apportioning liability pursuant to § 52-572h.
Furthermore, the court in Donner discussed at length the legislative intent behind the enactment of § 52-102, specifically noting that " [t]he legislature included in Tort Reform II a provision that allowed defendants to implead persons who might have been negligent, but who had not been pursued by the plaintiff ." (Emphasis added.) Donner v. Kearse, supra, 234 Conn. 668-69. " It demonstrates that the legislature, in enacting Tort Reform II, intended to limit the universe of negligence to be considered to only particular, identifiable persons . If a defendant wished to broaden the universe of negligence to be considered in any given case, the legislature placed the burden upon him to implead that nonparty in accordance with § 52-102." (Emphasis added.) Id., 669-70.
In the present case, the state is a particular, identifiable person against whom the plaintiff is currently pursuing a legal action. To determine that the state's proportionate share of liability to the plaintiff, if any, cannot be considered in the nonstate defendants' jury trial would be contrary to the intent of Tort Reform II as outlined by the Supreme Court. Therefore, the jury should apportion liability between the state and nonstate defendants accordingly.
In Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000), the court addressed the issue of apportionment of damages in a consolidated action involving injuries sustained in successive accidents. In that case, the plaintiff was involved in three different car accidents occurring on three days between July 31, 1992, and January 14, 1993, the second of which involved a state employee acting within the scope of his employment. Id., 135-36. The plaintiff filed separate actions against the driver in the first accident, the state employee and the state, and the driver in the third accident. Id., 136. Prior to trial, the plaintiff settled her claim against the driver in the third accident, and thereafter the court granted her motion to consolidate the actions against the remaining two cases. Id. Although the court determined that expert testimony elicited at trial concerning the apportionment of damages was speculative, it held that the trial court " should instruct the jury that if it is unable to determine how much of the plaintiff's damages is attributable to each tortfeasor, the jury may make a rough apportionment, " and that " [i]f the jury is unable to make even a rough apportionment, it must apportion the damages equally among each party whose negligent actions caused injury to the plaintiff, including settled or released persons as contemplated by § 52-572h(n)." Id., 145.
Although the court in Card refers to " apportionment, " no defendant was ever made a party in either of the plaintiff's consolidated actions against the other defendants, nor was any apportionment complaint filed pursuant to § 52-102b. The case concerned separate actions, consolidated together for the purposes of trial, with separate verdicts rendered in each. This is comparable to the present case, where the actions against the state and nonstate defendants have been consolidated for trial but will render separate verdicts by the court and the jury, respectively. Therefore, in accordance with Donner and Card, the jury should apportion liability among the state and nonstate defendants.
CONCLUSION
For the foregoing reasons, the jury may properly apportion liability among the state and nonstate defendants in accordance with both parties' statutory rights as delineated in § 52-572h and § 4-160(f).
KAMP, J.