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Trella v. Wal-Mart Stores, Inc.

United States District Court, D. Connecticut

March 7, 2017

WENDY TRELLA Plaintiff,
v.
WAL-MART STORES, INC., WAL-MART STORES EAST, INC. & WAL-MART STORES EAST, L.P. Defendants/Third-Party Plaintiffs,
v.
MIDDLESEX HEALTH SYSTEM, INC., D/B/A MIDDLESEX HOSPITAL, Third-Party Defendant.

          RULING ON MOTION TO DISMISS

          Alvin W. Thompson United States District Judge

         Third Party Defendant Middlesex Health System, Inc. d/b/a Middlesex Hospital (“Middlesex Hospital”) has moved to dismiss the Third Party Complaint filed by Walmart Stores, Inc., Wal-Mart Stores East, Inc. and Wal-Mart Stores East, L.P. (collectively “Wal-Mart”). For the reasons set forth below, the motion to dismiss is being denied.

         I. LEGAL STANDARD

         Under Connecticut law, prior to filing a claim for medical malpractice, a plaintiff must first conduct a “reasonable inquiry . . . to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Conn. Gen. Stat. Ann. § 52-190a(a). Furthermore:

[t]he complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment 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.

Conn. Gen. Stat. § 52-190a(a). “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.” Conn. Gen. Stat. § 52-190a(c). The Connecticut Supreme Court has held compliance with this statute is “a precondition to effective service of process for the initiation of a medical malpractice action.” Morgan v. Hartford Hosp., 301 Conn. 388, 400-01 (2011).

         The court sitting in diversity applies Connecticut substantive law and federal procedural law. ‘“The Second Circuit has not yet determined whether the requirement of a certificate of good faith in a medical malpractice action is a substantive or procedural requirement, ”' but “this Court repeatedly has dismissed medical malpractice claims brought under Connecticut state law for failure to comply with Conn. Gen. Stat. § 52-190a.” Gallinari v. Kloth, 148 F.Supp.3d 202, 207 n.1 (D. Conn. 2015) (quoting Cornelius v. ECHN Rockville Gen. Hosp., No. 3:14-cv-00779 (JAM), 2014 WL 2986688, at *3 (D. Conn. July 1, 2014) (quoting Cole v. Greene, No. 3:11-cv-00543 (SRU), 2013 WL 1759571, at *1 (D. Conn. Apr. 24, 2013))). In so doing, courts in this district have treated motions to dismiss for failure to comply with § 52-190a as motions to dismiss for insufficient process under Fed.R.Civ.P. 12(b)(5). See Slocum v. U.S. Dep't Veterans Affairs, No. 3:13-CV-501(SRU), 2014 WL 4161985, at *1 (D. Conn. Aug. 19, 2014) (“[B]ecause the Connecticut Supreme Court has held that the omission of a good faith certificate renders service of process ineffective, the district court should also treat the deficiency as a matter of insufficient service of process.”). Although Middlesex Hospital filed its motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6), it based its argument entirely on the alleged deficiency of service of process under § 52-190a, and accordingly, the court analyzes the motion as one brought pursuant to Rule 12(b)(5).

         In assessing a Rule 12(b)(5) motion, a court must look to Rule 4, which governs the content, issuance, and service of a summons. Under Federal Rule of Civil Procedure 4(m):

If a defendant is not served within 90 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Id. “[W]hen a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (alteration in original) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)).

         II. FACTUAL BACKGROUND

         On September 14, 2013, while Plaintiff Wendy Trella (“Trella”) was shopping at a Wal-Mart store in Wallingford, Connecticut, a display of one-gallon apple juice boxes fell over onto her. Trella suffered the following as a result of this incident: injuries to her cervical, dorsal, and lumbar spine; injuries to her head, left shoulder, right hip, right buttock, and right leg; disc protrusions to her lumbar spine; radiculopathy; posttraumatic headaches; post-concussive syndrome; pain; spasms; weakness; and limited range of motion in her neck, back, head, left shoulder, right hip, right buttock and right leg.

         On or about June 16, 2015, Trella was admitted to Middlesex Hospital to undergo a surgical procedure. Employees of Middlesex Hospital placed Trella on an operating room table and administered sedation. After Trella was sedated, but before the surgical procedure began, she was allowed to fall fully or partially off the operating room table. Trella alleges that as a result of this incident, she sustained a head injury, a concussion, a laceration to the head, cognitive loss, headaches and cognitive impairments.

         Wal-Mart alleges that the injuries Trella suffered as a result of the June 16, 2015 incident were caused by the carelessness and negligence of Middlesex Hospital in that its employees, servants, and/or agents, inter alia, failed to properly secure Trella to the operating room table, failed to adequately monitor her movements, and failed to provide adequate staffing so Trella could be watched after she was sedated. Wal-Mart further alleges that if ...


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