Opinion
No. FST X08 CV 094019435 S
September 14, 2011
MEMORANDUM OF DECISION MOTION TO REINSTATE AMENDED COMPLAINT #262
INTRODUCTION AND BACKGROUND
This action was commenced by complaint and summons dated January 15, 2009 returnable on February 17, 2009. On January 19, 2006, the plaintiff, Patricia May Zelle, underwent an MRI scan of the brain in the Department of Radiology at Danbury Hospital. As part of the imaging study, a contrast agent called Magnevist was injected for image enhancement. Plaintiff claims that she suffered an adverse reaction to Magnevist and requires treatment. The original complaint was in Five Counts, alleging actions against the defendants, Bayer Healthcare, LLC et al and the Danbury Hospital. The counts alleged negligence, breach of implied warranty, breach of express warranty, products liability and a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). On July 27, 2009, the plaintiff filed an amended complaint in Ten Counts alleging many of the same allegations and separating the claims as to each of the defendants. On August 11, 2009, the defendant, Danbury Hospital, filed a Motion to Strike the Sixth, Seventh, Eighth and Tenth counts of the July 27, 2009 Amended Complaint for their legal insufficiency. The defendant claimed that the plaintiff could not bring a cause of action for negligence based solely on the applicability of the exclusivity clause to the product liability claims. On May 4, 2010, the Court, Ozalis, J., granted the Defendant's Motion to Strike all negligence counts from the complaint based upon the arguments by the defendants. On May 19, 2009, the plaintiff filed a notice of intent to appeal the decision of the court and on the same date filed an Amended Complaint. The Amended Complaint consisted of two separate counts alleging a cause of action against each party pursuant to § 52-572m, et seq. Connecticut Product Liability Act ("CPLA"). The May 19, 2009 complaint did not allege any other causes of action.
The Practice Book, Sec. 10-45 states in part: "Whenever the judicial authority grants a motion to strike the whole or any portion of any pleading or count which purports to state an entire cause of action or defense, and such pleading or portion thereof states or constitutes a part of another cause of action or defense, the granting of that motion shall remove from the case only the cause of action or defense which was the subject of the granting of that motion . . ."
On February 4, 2011 the defendant, Danbury Hospital, filed a motion for summary judgment arguing that it is not a "product seller" for purposes of the CPLA. The plaintiff in response to the motion on March 7, 2011 filed a Motion to Reinstate the July 27, 2009 complaint. On March 15, 2011, the defendant filed an objection to the motion to reinstate the July 27, 2009 amended complaint. On May 19, 2011 the plaintiff submitted a supplemental memorandum and the defendant filed a reply memorandum in support of the objection on May 20, 2011. This court heard argument by counsel.
DISCUSSION
The plaintiff's motion to reinstate the July 27, 2009 Amended Complaint does not contain any reference to the Connecticut Practice Book or case law that has permitted the filing of such a motion to this court. The plaintiff in response to the order of the court striking the negligence claims filed a pleading entitled "Amended Complaint." In response to a granting a motion to strike the party has the opportunity to file a new pleading within fifteen days or allow judgment to enter as to the stricken count. § 10-44 Connecticut Practice Book. The filing of an amended pleading is a withdrawal of the original pleading. Good Humor Corp. v. Ricciuti, 160 Conn. 133, 136 (1971). The court in Good Humor Corp. held that "the filing of an amended pleading operates as a waiver of the right to claim that there was error in the [granting] of the [motion to strike] of the original [complaint]." Id. at 135. In the instant action, the plaintiff provided a new pleading while at the same time filed a notice of appeal as to the decision of the court to strike the negligence claims. The plaintiff then proceeded based upon the May 19 Amended Complaint. As a result, the only causes of action before the court are the products liability claims as to Bayer and Danbury Hospital. The claim as to the legal sufficiency of the negligence claims is no longer a part of this action. The plaintiff now claims that the negligence claims should be reinstated and litigated in this action. The plaintiff argues that the defendant's motion to strike mislead the plaintiff and the court to believe that there was a viable products liability claim.
The plaintiff provides no legal support for her argument to reinstate the negligence claims. The plaintiff is asking the court to reinstate a complaint which has already been found by the court to be legally insufficient and which has been withdrawn with the Second Amended Complaint. There is no basis for the court to reinstate a complaint which is clearly insufficient as clearly enunciated in the decision of the court, Ozalis, J. "Where a matter has previously been ruled upon by a judge in the same case, he may treat the decision as the law of the case and should hesitate to change his own ruling if he is of the opinion that it `was correctly decided' in the absence of some new or overriding circumstance. Sheff v. O'Neil, 42 Conn.Sup. 172 (1992), citing Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The plaintiff now contends that she was misled by the motion to strike. The defendant contrary to the plaintiff's assertion did not make any assertions that there was a viable products liability claim as to Danbury Hospital. The sole basis of the motion to strike the negligence counts was the exclusivity provision of the CPLA which precluded a negligence claim in the same action. The decision of the court is the law of the case and thus at this stage should be treated as correct by this court. Because the motion requests this court to reinstate the July 27, 2009 complaint which as presented has been found legally insufficient, the plaintiff's request is contrary to the law of the case and will effectively permit what has been found to be a legally insufficient pleading to remain. For this reason alone, the request must be denied.
The plaintiff has also raised an issue that the defendant's positions are inconsistent and have misled the court and the plaintiff. In particular, the plaintiff contends that the defendant has contradicted a position taken in the earlier motion to strike by now arguing that Danbury Hospital cannot be held liable as a "product seller." Under the doctrine of judicial estoppel, a Defendant is not permitted to contradict a position that it has taken earlier in the proceedings. Association Resources, Inc. v. Wall, 298 Conn. 145, 169 (2010). In order for judicial estoppel to apply, the Defendant must have made a "judicial admission." A judicial admission is a voluntary and knowing concession of a fact by a party or a party's attorney occurring during judicial proceedings. Bowen v. Serksnas, 121 Conn.App. 503 (2010). "A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted and is conclusive upon the party making it. For that reason, the statement relied on as a binding admission must be clear, deliberate, and unequivocal." Birchard v. City of New Britain, 102 Conn.App. 79, 85 (2007). Judicial estoppel will apply if three criteria are met: "first, if the party's later position is clearly inconsistent with its earlier position, second, the party's former position has been adopted in some way by the court in the earlier proceeding and third, the party asserting the two positions would derive an unfair advantage against the party seeking estoppel." Id. at 70.
The motion to strike that was filed by the defendant did not contain any language or representation that could be considered a judicial admission that the Defendant was subject to liability pursuant to CPLA. The Defendant's motion to strike was based upon a very direct argument that a claim pursuant to the products liability statute was the exclusive remedy and thus a complaint espousing a cause of action for products liability cannot include a cause of action for negligence. The Defendant's motion relied solely upon the complaint filed by the Plaintiff and did not elaborate upon the elements of each cause of action. The Defendant never claimed that it was a "product seller" or admitted that it could be subject to liability under CPLA. The motion to strike merely highlighted the error in the Plaintiff's asserting both legal theories without addressing the underlying fact. Therefore, there is no inconsistency in the Defendant's position. The second prong of the test has not been satisfied because they did not adopt a position but merely followed the law in determining the Plaintiff was entitled to plead only one cause of action. As to the third prong, it is clear that the Plaintiff will gain an unfair advantage if they have two causes of action, one for negligence and one for CPLA which is contrary to the law. The third prong has also not been satisfied because the Plaintiff would gain an enormous advantage if she could plead multiple claims without a legal basis and chose which one to ultimately plead against the Defendant, Danbury Hospital at some unspecified time. This court does not find a judicial admission by the Defendant that would permit the Plaintiff to amend her pleadings. The facts surrounding the action clearly demonstrate that the Plaintiff must bear the responsibility for her pleadings. The plaintiff had several alternatives to address the conflicting causes of action but has failed to do so. Reinstating a legally insufficient complaint is not a legally viable alternative.
CONCLUSION
Based upon the procedural and legal insufficiencies as noted above the court denies the motion to reinstate the July 27, 2009 Amended Complaint.