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Gallinari v. Kloth

United States District Court, D. Connecticut

December 1, 2015


          For Susan Gallinari, Plaintiff: Neal Lewis Moskow, LEAD ATTORNEY, Ury & Moskow, Fairfield, CT.

         For David S Kloth, M.D., Connecticut Pain Care, P.C., Defendants: Richard A. O'Connor, Sachner & O'Connor, Crossroad West, Middlebury, CT.

         For Danbury Hospital, Ridgefield Surgical Center, LLC, Defendants: Michael G. Rigg, O'Brien, Tanski & Young, LLP, Rocky Hill, CT.




         Plaintiff, Susan Gallinari, filed this diversity action against Defendants, David S. Kloth, M.D. (" Dr. Kloth" ), Connecticut Pain Care, P.C. (" CPC" ), Danbury Hospital (the " Hospital" ) and Ridgefield Surgical Center, LLC (" RSC" ), alleging that Defendants injected her with a contaminated medication. Defendants have moved separately to dismiss all claims for lack of personal jurisdiction and/or failure to state a claim. For the reasons that follow, the motions are GRANTED IN PART AND DENIED IN PART.


         The Complaint sets forth the following allegations, which the Court must accept as true at this stage. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).

         CPC, RSC, and the Hospital are healthcare providers. Compl. ¶ ¶ 2, 5. Dr. Kloth is a licensed physician employed by CPC. Id. ¶ 4.

         On August 20, 2012, Defendants provided medical treatment to Plaintiff, including the sale and injection of compounded preservative-free betamethasone (the " Compounded Medication" ) into Plaintiff's spinal column. Id. ¶ ¶ 10, 21-23. Defendants purchased the Compounded Medication from New England Compounding Center (" NECC" ). Id. ¶ 23.

         For years leading up to Plaintiff's injection, risks associated with compounded pharmaceuticals were discussed in a number of publications. See id. ¶ ¶ 11-17. Moreover, the Food and Drug Administration and Centers for Disease Control and Prevention identified contaminants in medications supplied by NECC, some of which cause human disease. Id. ¶ 6. Contaminated NECC products allegedly resulted in deaths and injuries. See id. ¶ 7. Plaintiff claims that Defendants knew or should have known of risks associated with the use of NECC supplied compounded medications. See id. ¶ 18.

         The Complaint has four counts: (i) battery; (ii) violations of the Connecticut Products Liability Act (" CPLA" ); (iii) violation of the Connecticut Unfair Trade Practices Act (" CUTPA" ); and (iv) punitive damages. The Court addresses infra additional factual allegations unique to each count.


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible if " the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although " detailed factual allegations" are not required, a complaint must offer more than " labels and conclusions," or " a formulaic recitation of the elements of a cause of action" or " naked assertion[s]" devoid of " further factual enhancement." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

         The Court must accept the allegations in the complaint as true and draw all reasonable inferences in the light most favorable to the non-moving party, In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007), and generally may consider only " the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).


         A. Plaintiff's Failure to Submit Memoranda in Opposition

         Local Rule 7(a)1 provides that " all memoranda in opposition to any motion shall be filed within twenty-one (21) days of the filing of the motion" and that " [f]ailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion." D. Conn. L. Civ. R. 7(a)1. Plaintiff did not file memoranda in opposition to either of Defendants' motions to dismiss. Accordingly, the Court will grant the motions unless the Complaint provides sufficient grounds to deny them.

         B. Applicability of Conn. Gen. Stat. § 52-190a

         " [T]o prevent the filing of frivolous medical malpractice actions," Morgan v. Hartford Hosp., 301 Conn. 388, 398, 21 A.3d 451 (2011), Connecticut law requires any person claiming medical malpractice to include with her complaint a certificate of good faith and a written opinion from a health care provider regarding the evidentiary basis for her claim. Conn. Gen. Stat. § 52-190a provides, in relevant part:

" (a) No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . and shall attach a copy of such written opinion . . . to such certificate. . . .
. . .
(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."

         The Connecticut Supreme Court has " recognize[d] that the written opinion letter, prepared in accordance with the dictates of § 52-190a, like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action." Morgan, 301 Conn. at 398. As a result, failure to include the certificate and written opinion amounts to a failure of service, which deprives the Court of personal jurisdiction. Id. at 395-402. Accordingly, Defendants' motions to dismiss for lack of ...

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