Opinion
No. X06 CV-05-4011481 S
April 3, 2007
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
The plaintiff Nichele Johnson, as administratrix of Carmen Geriak's estate, filed this action in New Haven Superior Court on June 8, 2005. The defendants are Housein M. Wazaz, M.D., David M. Sack, M.D., David M. Sack, M.D., P.C. ("Sack PC"), Krzysztof Jakubowski, M.D., C. Jakubowski, M.D., L.L.C. ("Jakubowski LLC"), Daniel Schwartz, M.D., CBS Surgical Group, P.C. ("CBS Surgical"), and Richard H. Anderson, M.D. Dr. Wazaz and Dr. Sack are gastroenterologists. They also are principals, agents, or employees of Sack PC. Dr. Jakubowski is an internist and is a principal of Jakubowski, LLC. Dr. Schwartz is a surgeon and a principal, agent, or employee of CBS Surgical. Dr. Anderson is a psychiatrist.
In March 2006, the plaintiff filed a revised six-count complaint alleging that the defendants were negligent in the diagnosis, testing or treatment of Carmen Geriak's medical condition, resulting in her death on March 27, 2003. Although the statute is not referenced in the revised complaint, no dispute exists among the parties that the plaintiff seeks damages under Connecticut's wrongful death statute, General Statutes § 52-555. Pending before the court are motions for summary judgment filed by Dr. Wazaz, Dr. Anderson, Dr. Schwartz and CBS Surgical. These defendants filed memoranda in support of their motions. Dr. Sack, Sack PC, Dr. Jakubowski, and Jakubowski LLC have joined the motion for summary judgment filed by Dr. Wazaz. Dr. Sack and Sack PC also filed a supporting memorandum. The plaintiff filed an objection to the motions for summary judgment. For the following reasons, the defendants' motions for summary judgment are denied and the plaintiff's objection is sustained.
DISCUSSION CT Page 5289
Summary judgment shall be rendered if the pleadings, affidavits and any other proof 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. Practice Book § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore a right to summary judgment. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . ." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citations omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
The defendants' first argument is that this action is barred by the two-year limitation period of the wrongful death statute, General Statutes § 52-555(b), and that this limitation period is not extended by the provisions of General Statutes § 52-190a(b). There is no dispute that the wrongful death statute requires such actions to be commenced within two years from the date of the decedent's death and that this suit was instituted two years and fifty-two days after Carmen Geriak's death. The plaintiff claims, however, that she filed a petition under General Statutes § 52-190a(b) to extend the limitation period by ninety days. This petition was granted by the clerk of the Superior Court for the Judicial District of New Haven at Meriden, but the complaint was filed in the Superior Court for the Judicial District of New Haven at New Haven. The defendants emphasize that General Statutes § 52-190a(b) requires the petition for the ninety-day extension to be presented to the "clerk of the court where the action will be filed" (see footnote 2). According to the defendants, because this action was filed in the Judicial District of New Haven and the clerk of that court did not grant the petition, the plaintiff failed to comply with § 52-190a(b) and she cannot utilize this statue to acquire an extension of the two-year limitation period. In reply, the plaintiff argues that because General Statutes § 52-190a(b) is procedural and does not implicate subject matter jurisdiction, failure to comply strictly with its provisions does not mandate dismissal. The court agrees with the plaintiff
General Statutes § 52-555(b) provides in relevant part that "no action shall be brought to recover such damages and disbursements [under the statute] but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
General Statutes § 52-190a(a) provides that a complaint alleging negligence and seeking damages against a health care provider for personal injuries or wrongful death shall contain a certificate stating that a reasonable inquiry has been made and that this inquiry indicates a good faith belief that grounds exist for an action against each named defendant. General Statutes § 52-190a(b) states the following: "Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods."
There is no dispute among the parties that General Statutes § 52-190a(b) does not implicate the court's subject matter jurisdiction. The defendants have expressly stated that they filed motions for summary judgment, rather than motions to dismiss, because they are not making subject matter jurisdiction claims. The essence of their argument is simply that the plaintiff cannot avail herself of the extension provisions of General Statutes § 52-190a(b) without strict compliance with the statute. As just indicated, however, the statute does not implicate subject matter jurisdiction. Moreover, a careful construction of the statute indicates that it is procedural rather than substantive, because its language regarding the filing of the petitions is more anticipatory and directive than mandatory and definitive. To be consistent with the defendants' position, the statutory language should be read as meaning that the petition "shall" be filed or can "only" be filed with the clerk of the court where the action will be filed; or should be read as meaning that an action shall be abated if not so filed. The statute, however, cannot be fairly read in the manner advanced by the defendants. By providing that the automatic extension may be acquired "[u]pon petition to the clerk of the court where the action will be filed," the statute is merely anticipating where the suit will be filed, and among the clerks throughout the state who could entertain the petition, it identifies the clerk to whom the petition should be directed. When read in this light, even if the language of General Statutes § 52-190a(b) is viewed as imposing mandatory requirements, the statute would be subject to variance based on equitable considerations and would not be subject to strict or rigid application. See generally, Pedro v Miller, 281 Conn. 112, 914 A.2d 524 (2007) (a mandatory requirement not involving subject matter jurisdiction is waivable and subject to variance for equitable reasons). Based on equitable considerations, a judgment in favor of the defendants would be unreasonably and unjustly elevating form over substance when based on the filing of the complaint with one court clerk in a judicial district rather than with one at another court in the same judicial district, particularly when the defendants have not claimed and cannot show any prejudice. See generally, Beers v. Westport Bank Trust Co., 50 Conn.App. 671, 678, 719 A.2d 58 (1998).
Because subject matter jurisdiction can be raised at any time and cannot be established by the parties' assent, the court addresses this issue further. The law is established that the limitation periods established by the wrongful death statute, General Statutes § 52-555(b), are jurisdictional. See Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987). Procedural statutes or tolling principles nevertheless may operate to extend such limitation periods unless contraindicated by the legislative design. For example, in Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989), the Supreme Court held that "the time limitation in the wrongful death statute must be read together with the extension statute," General Statutes § 52-592 (the accidental failure of suit statute), so that the extension statute operates "as a modification of the wrongful death statute." Id., 728. See also, Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 46, 717 A.2d 77 (1998) (direct acts of fraudulent concealment may operate to toll the jurisdictional limitation period of CUTPA, General Statutes § 42-110g (f)).
The court also agrees with the plaintiff that although the defendants emphasize that their motions are about where the petition was filed, an essential aspect of their claim is about the filing or returning of the complaint to the wrong court. In this regard, judgment should not enter in favor of the defendants because General Statutes § 51-351 provides that "[n]o cause shall fail on the ground that it has been made returnable to an improper location." See also, General Statutes § 52-123 ("No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court").
Furthermore, the court notes that since the defendants' motions for summary judgment do not implicate the court's subject matter jurisdiction, and appear to involve personal jurisdiction or defects in venue or process, the procedural issues asserted in the motions should have been raised through a timely motion to dismiss, and appear to have been waived because they were not timely raised. See Practice Book §§ 10-30 — 10-32.
The defendant's second argument is that the automatic, ex parte extension of General Statutes § 52-190a(b) violates their procedural due process rights because the statute deprives them of a vested property interest in the two-year time period of General Statutes § 52-555. This creative argument requires and warrants little discussion because it has been thoroughly addressed and rejected by the superior court cases considering it. Plourde v. Hartford Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 02 0814180 (February 28, 2006, Langenbach, J.) [ 40 Conn. L. Rptr. 807]; Desinzini v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 05 04003250 (January 12, 2006, Domnarski, J.)
The plaintiff argues that under contemporary constitutional analysis, the defendants' due process interests did not become vested in the two-year limitation period of General Statutes § 52-555 until after this period expired, but the court finds it unnecessary to reach this issue. See generally, State v. Skakel, 276 Conn. 633, 888 A.2d 985 (2006). The defendants insist that their due process interests vested on the date of injury, which would be March 27, 2003, when Ms. Geriak died. See Hillier v. East Hartford, 167 Conn 100, 109, 355 A.2d 1 (1974) ("[t]he defendant's right of defense, which affected its substantial interest, became fixed in present enjoyment and available to the defendant under the statute in effect at the time of the injury . . . It was a property right which vested in the defendant and for whose protection against legislative invasion in the form of a validating act or otherwise . . .")
In State v. Skakel, 276 Conn. 633, 888 A.2d 985 (2006), the Supreme Court stated that the ex post facto clause does not preclude extension of a statute of limitations for a criminal offense when the extension is enacted after the criminal offense, but before expiration of the then existing limitation period because prior to the expiration of the existing limitation period, the defendant does not have a legitimate or fully "vested" expectancy interest in the application of that limitation period. Id. at 681-83.
Accepting arguendo the defendants' position on when their due process interest "vested," the short answer to the defendants' due process claim is that both General Statutes § 52-555 and General Statutes § 52-190a were in effect when Ms. Geriak died. Thus, the defendants then had legal notice and knowledge of the status of the law for due process purposes. In other words, the defendants' legitimate "expectancy" interests under the due process clause must be premised on the statutory scheme that existed when these interests arguably vested, and at that time, this statutory scheme included General Statutes § 52-190a(b). This case does not involve the enactment of an extension statute after the expiration of the limitation period of the wrongful death statute and the retroactive application of this extension. As just stated, the extension statute, General Statutes § 52-190a(b), was enacted, before Ms. Geriak's death, and therefore, before the defendants acquired any conceivably cognizable due process interest in the limitation period of the wrongful death statute. Consequently, on the facts of this case, the defendants' argument that the legislature had no authority to modify the two-year limitation period of the wrongful death statute through the enactment of the automatic extension provision of General Statutes § 52-190a without violating their due process rights is specious. General Statutes § 52-190a(b) statutorily operates to modify and extend the two-year limitation period of General Statutes § 52-555; see generally, Isaac v. Mount Sinai Hospital, 210 Conn 721, 557 A.2d 116 (1989) (holding that saving provisions of the accidental failure of suit statute, General Statutes § 52-592, operate to modify and extend the limitation period of General Statutes § 52-555); and therefore, no due process issues are implicated. Sneath v. Roche, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 98 0585452 (March 2, 2004, Hennessey, J.T.R.) [ 36 Conn. L. Rptr. 691]; accord, Plourde v. Hartford Hospital, supra; Desinzini v. Bristol Hospital, Inc., supra.
The cases relied on by the defendants are distinguishable and the defendants' reasoning based on them is inapposite. See Plourde v. Hartford Hospital, supra (discussing these cases). For example, the defendants rely on Hillier v. East Hartford, supra, 167 Conn. 100, but Hillier is distinguishable because in that case the legislature enacted a special act waving a limitation period after the time period had expired. As previously indicated, the defendants do not claim that General Statutes § 52-190a(b) was enacted after the two-year time period of General Statutes § 52-555 passed and is being applied to them to revive retroactively a stale cause of action. As stated above, both statutes were in effect when the injury in this case occurred.
Therefore, for the foregoing reasons, the defendants' motions for summary judgment are denied and the plaintiff's objection to these motions is granted.
So ordered this 3rd day of April 2007.