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LLC v. Robb

United States District Court, D. Connecticut

September 30, 2017

JOHN M. ROBB, Defendant.


          Robert N. Chatigny United States District Judge.

         Pending is plaintiffs' motion for summary judgment on their breach of contract and CUTPA claims and Dr. Robb's counterclaims. Pls.' Mot., ECF No. 268.[1] Judge Martinez has recommended that the motion be denied. Recc. Ruling, ECF No. 335. Plaintiffs have objected to the recommended ruling. Pls.' Obj., ECF No. 336. Familiarity with the recommended ruling and objection is presumed.

         Since the recommended ruling was filed, the record has been supplemented to include the Memorandum of Decision of the Board of Veterinary Medicine of the Connecticut Department of Health issued in disciplinary proceedings against Dr. Robb on February 1, 2017. Pls.' Mot. Leave File Suppl. Materials Ex. A, ECF No. 344-2. Familiarity with the memorandum is also presumed.

         Plaintiffs contend that the Board's decision requires entry of summary judgment in their favor on the claims and counterclaims arising from the termination of Dr. Robb's franchise. I agree. I also conclude that plaintiffs are entitled to summary judgment on Dr. Robb's counterclaim for negligent infliction of emotional distress.


         Plaintiffs have demonstrated that issue preclusion prevents Dr. Robb from relitigating the issues determined by the Board.

         The Board's decision can have preclusive effect in this case. When “a state agency ‘acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, ' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.” Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (citation omitted) (quoting Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)).

         In order for issue preclusion to apply, the issue must have been fully and fairly litigated, it must have been actually decided, and the decision must have been necessary to the judgment. Lafayette v. Gen. Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1, 9 (2001). All three elements are satisfied with regard to the issues of consequence to this action.

         Dr. Robb argues that the issues decided by the Board differ from the issues in this case. But plaintiffs seek to invoke issue preclusion only to the extent there is an identity of issues.

         Dr. Robb states that the Board did not “find facts on the science” but instead “mechanically applied the statute and rule” and did so without regard to his “ethical convictions.” Def.'s Mem. Opp'n 4-5, ECF No. 347. I cannot agree with that description of the Board's decision. The decision states:

[Dr. Robb's] misconduct of under-vaccinating animals for rabies endangered their lives and those around them. The Department's expert stated that under-vaccination could potentially provide the vaccinated animals with less protection, which “could result in the animal getting a zoonotic disease that's potentially fatal to people.” Tr. 3/27/2015, p. 11. In the situation when an animal is suspected of having contracted rabies, the Board notes that the animal must be quarantined and may be killed in order to examine whether it did in fact contract rabies. See, Conn. Gen. Stat. § 22-359(a) and (b).
Therefore, due to the serious consequences that could result from under-vaccination for rabies, and [Dr. Robb's] ardent belief that under his Aesculapian authority he does not have to vaccinate animals in accordance with state laws and regulations (Tr. 1/27/2016, p.p. 49, 122; Tr. 2/23/2016, pp. 130, 132-33), the Board orders that [his] license to practice veterinary medicine be place[d] on probation for a period of twenty-five (25) years under the terms and conditions listed below.

Pls.' Mot. Leave File Suppl. Materials Ex. A, at 10, ECF No. 344-2.

         The decision prohibits Dr. Robb from administering rabies vaccinations to any animal for the entire probationary period of twenty-five years. No doubt the Board imposed this condition because it was concerned that Dr. Robb's ethical convictions do not permit him to vaccinate animals as required by state law and regulations.

         Dr. Robb contends that the interests served by issue preclusion are outweighed by the interest in having a jury consider the issues in this particular case. Because the elements of issue preclusion are satisfied, however, Dr. Robb is not entitled ...

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