TRAYLORv.AWWA

Connecticut Superior Court Judicial District of New London at New LondonOct 14, 2010
2010 Ct. Sup. 18984 (Conn. Super. Ct. 2010)

No. 06 5001159

October 14, 2010


ORDER TO SHOW CAUSE


PARKER, J.T.R.

1. In the main, this case is a medical (psychiatric) malpractice wrongful death action. It arises from the psychiatric treatment and eventual death of the late Roberta Mae Traylor. It is claimed she committed suicide on March 1, 2004.

2. The plaintiffs herein are Sylvester Traylor, Administrator of the Estate of Roberta Mae Traylor (the Estate of Roberta Mae Traylor) and Sylvester Traylor, in his individual and/or personal capacity.

3. The defendants are Bassam Awwa, M.D., and his professional corporation, Connecticut Behavioral Health Associates, P.C.

4. The original June 1, 2006 Complaint had two counts, both sounding in medical malpractice. Count One was against Bassam Awwa, M.D.; Count Two was against Connecticut Behavioral Health Associates, P.C. Complaint, June 1, 2006.

5. In each of the two counts it was alleged that "Plaintiff Sylvester Traylor in his individual capacity has suffered a loss of consortium with his wife." Complaint, June 1, 2006, ¶ 21 of both counts.

6. The June 1, 2006 Complaint did not have attached to it a copy of a signed opinion of a similar health care provider opining that there appears to be evidence of medical malpractice and including a detailed basis for such opinion as required by General Statutes § 52-190a. Complaint, June 1, 2006.

7. In the ensuing 36 months, plaintiffs filed or attempted to file several revised and/or amended complaints. Each such complaint alleged medical malpractice against the two defendants.

8. On June 4, 2009, plaintiffs filed their Amended Complaint, dated June 4, 2009 [310]. It contained six counts alleging medical malpractice, including two counts alleging loss of consortium claims by the plaintiff, Sylvester Traylor, in his individual or personal capacity.

9. This Complaint, June 4, 2009 [310], also contained a seventh count purporting to allege a cause of action for the intentional spoliation of evidence [medical records].

10. On July 12, 2010 plaintiffs filed their Second Amended Complaint, dated July 12, 2010 [362].

11. The Second Amended Complaint, July 12, 2010 [362] was filed for the plaintiffs by Hall Johnson LLC, which had appeared as plaintiffs' attorneys on April 21, 2010.

12. The Second Amended Complaint, July 12, 2010 [362] contained six counts alleging medical malpractice, a seventh count alleging intentional spoliation of evidence, and an entirely new eighth count alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110 through 42-110q, CUTPA.

13. On the defendant's Motion to Dismiss, the court dismissed the six medical malpractice counts on July 29, 2010. See Decision dated July 29, 2010 [366.03] and Memorandum of Decision, August 13, 2010 [366.04]

14. The six malpractice counts were dismissed because the original June 1, 2006 Complaint did not have attached to it a copy of a signed opinion of a similar health care provider opining that there appears to be evidence of medical malpractice and including a detailed basis for such opinion as required by General Statutes § 52-190a. See Memorandum of Decision, August 13, 2010 [366.04].

15. The two counts brought by Sylvester Traylor, in his individual capacity, were among the six dismissed malpractice counts.

16. The court notes that, in addition to the lack of a signed opinion letter, a consortium claiming spouse's case fails upon termination of the injured spouse's case, here the Estate's malpractice wrongful death case. Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 496 (1979). See also, Swanson v. City of Groton, 116 Conn.App. 849, 864-65 (2009), and authorities cited there. "Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and. inextricably attached to the claim of the injured spouse." Izzo v. Colonial Penn Insurance Co., 203 Conn. 205, 312 (1987).

17. The plaintiffs claim that the defendants' willful spoliation of evidence prevents plaintiffs from pursuing the underlying action, i.e., the medical malpractice case. This claim gives vitality to their Seventh Count, the willful spoliation of evidence cause of action.

18. The court is concerned that a plaintiff's spoliation of evidence cause of action may be defeated by the defendants establishing "that the plaintiff[s] would not have prevailed in the underlying [medical malpractice] action even if the lost or destroyed evidence had been available." (Citation omitted.) Rizzuto v. Davidson Ladders, Inc., et al., 280 Conn. 225, 248 (2006).

19. The Estate of Roberta Mae Traylor's underlying action, the medical malpractice causes of action, have been dismissed for reasons wholly separate from any claim of spoliation. See Memorandum of Decision, August 13, 2010 [366.04].

20. The court is concerned that Count Seven, alleging the intentional spoliation of evidence, may be subject to dismissal.

21. The Eighth Count, alleging a CUTPA violation, is predicated on the Seventh Count, intentional spoliation of evidence. Since the foundation for Count Eight is the Seventh Count, the court is concerned that the Eighth Count likewise may be dismissable.

WHEREFORE:

22. Based on the foregoing facts and what appears to be the applicable law, all as recited above, the plaintiffs are ordered to show cause why this entire case for the plaintiffs, Sylvester Traylor, Administrator of the Estate of Roberta Mae Traylor, and, Sylvester Traylor, in his individual and/or personal capacity should not be dismissed.

23. A hearing on this Order to Show Cause will be held on October 26, 2010 at 2 p.m.

24. The parties may file pre-hearing briefs addressing the factual statements made herein and also addressing the conclusions of law stated herein. Such nonmandatory briefs, if any, must be filed by October 22, 2010.