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 ...