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Traylor v. State

Supreme Court of Connecticut

August 27, 2019

SYLVESTER TRAYLOR
v.
STATE OF CONNECTICUT ET AL.

          Argued December 13, 2018

         Procedural History

         Action seeking a judgment declaring, inter alia, that a certain medical malpractice statute is unconstitutional, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the case was transferred to the judicial district of Danbury and then to the judicial district of Hartford, Complex Litigation Docket; thereafter, the court, Moll, J., granted the motions to dismiss filed by the named defendant et al. and the motion for summary judgment filed by defendant Bassam Awwa et al., and rendered judgment thereon for the defendants, from which the plaintiff appealed. Affirmed.

          Sylvester Traylor, self-represented, the appellant (plaintiff).

          Jane R. Rosenberg, former solicitor general, with whom, on the brief, was George Jepsen, former attorney general, for the appellees (named defendant et al.).

          William L. Stevens, for the appellees (defendant Advanced Telemessaging, LLC, et al.)

          Donald E. Leone, Jr., with whom, on the brief, was Anthony D. Sutton, for the appellees (defendant Bas-sam Awwa et al.)

          Robinson, C. J., and Palmer, Kahn, Ecker and Stevens, Js.

          OPINION

          STEVENS, J.

         This appeal arises from the most recent in a series of civil actions that the plaintiff, Sylvester Traylor, has brought in state and federal court relating to the suicide of his wife, Roberta Mae Traylor (Roberta). The plaintiff, who is self-represented, brought the present case against the defendants, who are (1) the state of Connecticut, numerous current and former Superior Court judges, [1] and the Appellate Court (state defendants); (2) Roberta's treating psychiatrist, Bassam Awwa, and his employer, Connecticut Behavioral Health Associates, P.C. (Awwa defendants); and (3) Robert Knowles and Neil Knowles, and their business, Advanced Telemessaging (Knowles defendants). The plaintiff now appeals[2] from the judgment of the trial court, Moll, J., [3] rendered in accordance with its granting of the defendants' motions to dismiss and for summary judgment. On appeal, the plaintiff claims that General Statutes § 52-190a, [4] which requires a plaintiff to append a good faith certificate and supporting opinion letter to the complaint in cases of medical negligence, is unconstitutional. Although the plaintiff fully briefed his attack on the constitutionality of § 52-190a, we cannot reach the merits of that claim because of his failure to challenge the trial court's threshold conclusions that his claims against all of the defendants are barred by, inter alia, the doctrines of res judicata and collateral estoppel. Accordingly, we affirm the judgment of the trial court.

         The record reveals the following facts relevant to the plaintiff's claim on appeal, [5] as pleaded in his complaint, [6]and the complex procedural history of this case. Beginning in 2002, Awwa and his employer, Connecticut Behavioral Health Associates, P.C., provided psychiatric treatment to Roberta. In 2002, the plaintiff attended a treatment session with Roberta, at which time Awwa became aware of her suicidal thoughts. In early 2004, Awwa prescribed medication for Roberta to treat her major depressive disorder, despite the existence of manufacturers' warnings that (1) the medications should not be prescribed to anyone with suicidal thoughts, (2) ‘‘the possibility of a suicide attempt is inherent in depression and may persist until [a] significant remission occurs, '' and (3) ‘‘[c]lose supervision of high risk patients should accompany initial drug therapy.'' Awwa changed Roberta's medication on several occasions during the period of time leading up to March 1, 2004. The plaintiff contacted the Awwa defendants on nine different occasions to inform them that Roberta was having adverse reactions to the medications that Awwa had prescribed. Roberta also sent Awwa a letter dated December 23, 2003, to that effect. Awwa did not return the plaintiff's telephone calls or otherwise indicate that he appreciated the danger of the situation. On March 1, 2004, Roberta tragically committed suicide.

         On June 2, 2006, the plaintiff, acting as a self-represented party, filed a medical malpractice action in New London Superior Court against the Awwa defendants in his own name and as administrator of Roberta's estate, claiming wrongful death, medical malpractice, loss of chance, and loss of consortium. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV-06-5001159-S (2006 action).At the time the plaintiff filed the complaint, he had not attached the certificate of good faith and written opinion of a similar health care provider, which are required by § 52-190a. On July 27, 2006, the Awwa defendants moved to dismiss the 2006 action for lack of personal jurisdiction; the trial court, Hon. D. Michael Hurley, judge trial referee, denied that motion on December 14, 2006. Subsequently, on October 19, 2006, the plaintiff filed a certificate of good faith and supporting written opinion letter authored by Howard Zonana, a professor of psychiatry at Yale University Schoolof Medicine, opining that there was a good faith basis for the action.

         On December 26, 2006, the plaintiff, now represented by counsel, filed a request to amend the complaint pursuant to Practice Book § 10-60. On December 29, 2006, the Awwa defendants objected to the request, and Judge Hurley sustained their objection on January 16, 2007. On January 8, 2007, the Awwa defendants moved to dismiss the 2006 action, claiming that the complaint as originally filed lacked the certificate of merit and written opinion of a similar health care provider required by § 52-190a. Subsequently, on June 1, 2007, Judge Hurley denied that motion to dismiss and thereafter issued numerous discovery orders.

         The Awwa defendants did not comply with Judge Hurley's discovery orders. Eventually, counsel for the Awwa defendants stated in court that his clients had destroyed all relevant medical and telephone records that were within their exclusive possession and control, despite their knowledge of their obligation to preserve those records given a pending or impending civil action dating back to Roberta's death in March, 2004. Similarly, the Knowles defendants, acting at the direction of the Awwa defendants, destroyed relevant records in their possession. The plaintiff and his expert witnesses never had an opportunity to examine those records. Subsequently, the case was reassigned to Judge Thomas F. Parker, judge trial referee, who the plaintiff later named as a defendant in the present case. See footnote 5 of this opinion.

         On July 12, 2010, the plaintiff, represented by counsel, filed an amended complaint that became the operative complaint in the 2006 action, adding claims of spoliation and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., arising from the destruction of the records.[7] On July 16, 2010, the Awwa defendants moved to dismiss the amended complaint on the ground that the plaintiff's original June 1, 2006 complaint initiating the action failed to comply with § 52-190a because the required certificate of good faith and opinion letter had not been attached. Judge Parker granted the Awwa defendants' motion, concluding that, although Judge Hurley had denied an earlier motion to dismiss filed by these defendants, that denial preceded the Appellate Court's decisions in Rios v. CCMC Corp., 106 Conn.App. 810, 943 A.2d 544 (2008), and Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).[8] See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV-06-5001159-S, 2010 WL 3584285, *3-4 (August 11, 2010). Relying on Rios and Votre, Judge Parker concluded that the plaintiff's failure to obtain and file the written opinion letter required by § 52-190a (a) at the initiation of the 2006 action was not remedied by the eventual filing of Zonana's letter, and that Judge Hurley's ruling to the contrary was inconsistent with this appellate precedent. Id., *5.

         Judge Parker next determined that Judge Hurley's earlier decision was not entitled to preclusive effect under the doctrines of law of the case or collateral estoppel. Id., *5-6. Judge Parker then concluded that other specifications in the complaint against Connecticut Behavioral Health Associates, P.C., were barred by the statute of limitations in General Statutes § 52-555 (a). Id., *9-10. Accordingly, on August 11, 2010, Judge Parker rendered judgment dismissing counts one through six of the complaint in the 2006 action. Id., *10.

         On August 27, 2010, the plaintiff appealed from the judgment of dismissal to the Appellate Court under docket number AC 32641; the Appellate Court subsequently granted the Awwa defendants' motion to dismiss the appeal for lack of jurisdiction on January 5, 2011.[9]

         In a subsequent memorandum of decision, Judge Parker rendered judgment dismissing the two remaining counts in the 2006 action, namely, spoliation and CUTPA violations, concluding that the earlier dismissal of the underlying medical malpractice claims for failure to file a good faith certificate and opinion letter meant that the defendants had rebutted the presumption that the plaintiff could have prevailed on those claims in the absence of the acts of spoliation. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV-06-5001159-S, 2011 WL 1025029, *9-10 (February 15, 2011). Accordingly, Judge Parker rendered judgment for the defendants in the 2006 action. Id., *10.

         On February 23, 2011, the plaintiff, as a self-represented party, appealed from that judgment to this court under docket number S.C. 18754; that appeal later was transferred to the Appellate Court pursuant to Practice Book § 65-4. The Appellate Court docketed the plaintiff's appeal under docket number AC 33038, along with another appeal, docket number AC 33039, which had been filed by the plaintiff's then attorney in this case on behalf of the estate. The appeal in docket number AC 33039 subsequently was withdrawn as derivative. After the plaintiff's counsel was granted leave to withdraw from the case on June 30, 2011, the Awwa defendants subsequently moved to dismiss the appeal for lack of a justiciable controversy between the parties, on the ground that the plaintiff's claims were derivative of those of the estate, with the estate's appeal having previously been dismissed.[10] The Appellate Court granted that motion to dismiss on December 16, 2011. On December 29, 2011, the plaintiff filed a petition for certification to appeal from that judgment of dismissal, which this court denied on January 25, 2012. Traylor v. Awwa, 303 Conn. 931, 36 A.3d 242 (2012).

         In 2011, the plaintiff filed a new action in New London Superior Court against the Awwa and Knowles defendants, their attorneys and insurers, then Attorney General Richard Blumenthal, court officials, and several New London prosecutors. Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV-11-5014139-S (first 2011 action). The first 2011 action, which was later removed to federal court, included in its fifteen count complaint a claim that § 52-190a violated the state and federal constitutions. See Traylor v. Awwa, Docket No. 3:11CV00132 (AWT), 2014 WL 555358, *1 (D. Conn. February 10, 2014). In a ...


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