United States District Court, D. Connecticut
Susan Gallinari, Plaintiff: Neal Lewis Moskow, LEAD ATTORNEY,
Ury & Moskow, Fairfield, CT.
David S Kloth, M.D., Connecticut Pain Care, P.C., Defendants:
Richard A. O'Connor, Sachner & O'Connor, Crossroad
West, Middlebury, CT.
Danbury Hospital, Ridgefield Surgical Center, LLC,
Defendants: Michael G. Rigg, O'Brien, Tanski & Young,
LLP, Rocky Hill, CT.
ON MOTIONS TO DISMISS
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
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
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).
RSC, and the Hospital are healthcare providers. Compl. ¶
¶ 2, 5. Dr. Kloth is a licensed physician employed by
CPC. Id. ¶ 4.
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.
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.
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.
STANDARD OF REVIEW
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).
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).
Plaintiff's Failure to Submit Memoranda in
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
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
" (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."
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 ...