Briere v. Greater Hartford Orthopedic Group, P.C. ( 2017 )

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BRIERE v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C.—
CONCURRENCE
ROBINSON, J., concurring. I reluctantly agree with
the majority’s decision to affirm the judgment of the
Appellate Court holding that the trial court improperly
denied the request of the plaintiff Donald Briere1 to
amend his complaint to substitute a theory of medical
malpractice premised on the negligent use of a retractor
blade, for the originally pleaded theory of negligent
use of a skull clamp during surgery. Briere v. Greater
Hartford Orthopedic Group, P.C., 158 Conn. App. 66,
75–78, 83–84, 118 A.3d 596 (2015). My reluctance is
based on my concern that amendments late in the litiga-
tion process may well have the effect of unfairly chang-
ing the theory of the case to the detriment of the
defendants in the present case, David Kruger, an ortho-
pedic surgeon, and the Greater Hartford Orthopedic
Group, P.C. Nevertheless, I am constrained to conclude
that the majority’s reasoning is consistent with our past
case law applying the relation back doctrine generally
and, in particular, Dimmock v. Lawrence & Memorial
Hospital, Inc., 286 Conn. 789, 805–806, 945 A.2d 955(2008), Alswanger v. Smego, 257 Conn. 58, 67–68, 776
A.2d 444 (2001), and Gurliacci v. Mayer, 218 Conn. 531,
547–49, 590 A.2d 914 (1991).
I write separately, however, to address the standard
of review under which an appellate court evaluates a
trial court’s application of the relation back doctrine,
particularly in light of the analytical framework articu-
lated by the majority. The majority quotes Sherman v.
Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010), for
the proposition that ‘‘[t]he de novo standard of review is
always the applicable standard of review for resolving
whether subsequent amendments to a complaint relate
back for purposes of the statute of limitations.’’
(Emphasis in original.) This statement of the standard
of review appears to resolve, in a summary manner,
what had been an unsettled point of law prior to the
present case, Sherman notwithstanding.2 See Austin-
Casares v. Safeco Ins. Co. of America, 310 Conn. 640,
660 n.15, 81 A.3d 200 (2013); Grenier v. Commissioner
of Transportation, 306 Conn. 523, 559, 51 A.3d 367(2012). I suggest, however, that the relation back analy-
sis articulated by the majority may require the trial
court to consider factors that go beyond the face of the
pleadings. This would call for the application of a more
deferential standard of review than the de novo stan-
dard articulated in Sherman and adopted by the major-
ity. Accordingly, I write separately to expand on the
proper standard of appellate review.
Prior to Sherman, there had been an apparent con-
flict in this court’s case law about whether the abuse
of discretion or plenary standards of review applied to
the trial court’s relation back inquiry. Compare Dim-
mock v. Lawrence & Memorial Hospital, Inc., supra,
286 Conn. 799 (discussing conflict in detail and noting
that most decisions ‘‘[suggest] a de novo review’’
because they involved comparison of pleadings and did
not state specific standard of review), with Giglio v.
Connecticut Light & Power Co., 180 Conn. 230, 240,
429 A.2d 486 (1980) (suggesting that abuse of discretion
standard applies to relation back inquiry). In Dimmock,
we observed that ‘‘[a]n abuse of discretion standard
would be consistent with the general rule that [t]he
trial court has wide discretion in granting or denying
amendments before, during, or after trial.’’ (Internal
quotation marks omitted.) Dimmock v. Lawrence &
Memorial Hospital, Inc., supra, 799. We then posited
that, ‘‘[o]n the other hand, a de novo standard would
be more consistent with the oft stated rule that [t]he
interpretation of pleadings is always a question of law
for the court and that our interpretation of the pleadings
therefore is plenary.’’ (Internal quotation marks omit-
ted.) Id., 799–800. We also noted that ‘‘[t]he majority of
federal courts appl[y] a de novo standard to their rela-
tion back rule . . . and their relation back rule is akin
to our doctrine.’’ (Citations omitted.) Id., 800. Ulti-
mately, we declined to resolve this question in Dim-
mock, because the appellant in that case could not
‘‘prevail even under de novo review.’’ Id.
Two years later, in Sherman, we observed that the
relation back standard of review was ‘‘not at issue’’ in
that case, but used dictum in a footnote ‘‘to clarify that
the de novo standard of review is always the applicable
standard of review for resolving whether subsequent
amendments to a complaint relate back for purposes
of the statute of limitations.’’ (Emphasis in original.)
Sherman v. Ronco, supra, 294 Conn. 554 n.10. We cited
Dimmock v. Lawrence & Memorial Hospital, Inc.,
supra, 286 Conn. 799–800, for the proposition that ‘‘[t]he
interpretation of pleadings is always a question of law
for the court . . . .’’ (Internal quotation marks omit-
ted.) Sherman v. Ronco, supra, 554 n.10. The dictum
in Sherman did not settle this matter, though, as our
subsequent decisions indicate, consistent with Dim-
mock v. Lawrence & Memorial Hospital, Inc., supra,
799–800, that the question is still open, although they
declined to decide the question as not outcome determi-
native.3 See Austin-Casares v. Safeco Ins. Co. of
America, supra, 310 Conn. 660 n.15; Grenier v. Com-
missioner of Transportation, supra, 306 Conn. 559.
I do not believe that the majority’s citation to our
dictum in Sherman, without further qualification or
elaboration, should be the final word on this issue. I
submit that additional clarification is required given the
case sensitive analysis articulated by the majority to
help guide the trial court’s relation back inquiries. To
the extent that the majority’s analysis requires us to
compare the original and proposed pleadings in order
to determine whether the specific allegations underly-
ing the new cause of action ‘‘pertain to a specific trans-
action or occurrence between the parties that was
identified in the original complaint,’’ I agree that this
interpretation of the pleadings presents a question of
law over which our review is plenary.
The majority’s analysis does not, however, stop there.
The majority also requires the trial court to ‘‘determine
whether the new allegations support and amplify the
original cause of action or state a new cause of action
entirely. Relevant factors for this inquiry include, but
are not limited to, whether the original and the new
allegations involve the same actor or actors, allege
events that occurred during the same period of time,
occurred at the same location, resulted in the same
injury, allege substantially similar types of behavior,
and require the same types of evidence and experts.’’
I believe that these factors, which require consideration
of the unique ‘‘types of evidence and experts’’ present
in the case, call for a more deferential appellate review.
Insofar as this portion of the majority’s approach impli-
cates the fairness of the proposed amendment to the
parties, I believe that our appellate courts should review
trial court decisions applying it for the abuse of discre-
tion. Thus, I emphasize that, beyond simply determining
whether the allegations relate back as a question of
interpreting the pleadings, courts should be cognizant
that our ‘‘liberality [in permitting amendments to the
pleadings] has limitations. Amendments should be
made seasonably. Factors to be considered in passing
on a motion to amend are the length of the delay, fair-
ness to the opposing parties and the negligence, if any,
of the party offering the amendment. . . . The motion
to amend is addressed to the trial court’s discretion
which may be exercised to restrain the amendment of
pleadings so far as necessary to prevent unreasonable
delay of the trial. . . . Whether to allow an amendment
is a matter left to the sound discretion of the trial court.’’
(Internal quotation marks omitted.) Dow & Condon,
Inc. v. Brookfield Development Corp., 266 Conn. 572,
583, 833 A.2d 908 (2003); see also, e.g., Motzer v.
Haberli, 300 Conn. 733, 747, 15 A.3d 1084 (2011); AirKa-
man, Inc. v. Groppo, 221 Conn. 751, 766–67, 607 A.2d
410 (1992).
These concerns of prejudice and delay are just as
salient in the context of those aspects of the relation
back analysis that concern the nature of the proof and
fairness to the parties. Thus, I recognize that, ‘‘[i]n exer-
cising its discretion in granting or denying a request to
amend a complaint during or after trial, the trial court
has its unique vantage point in part because it is inter-
preting the plaintiff’s allegations not in a vacuum, but
in the context of the development of the proceedings
and the parties’ understanding of the meaning of those
allegations. Similarly, prior to trial, in light of discovery,
pretrial motions or conferences, a trial court may have
a different context for the allegations than what is evi-
dent to an appellate court.’’ Dimmock v. Lawrence &
Memorial Hospital, Inc., supra, 286 Conn. 799 n.4.
Particularly given the holistic approach articulated
by the majority, this more nuanced approach to the
standard of review in relation back cases is consistent
with that of the United States Court of Appeals for the
Second Circuit, which, in resolving an apparent conflict
in its case law on this point, elected to engage in plenary
review of the district courts’ relation back determina-
tions under rule 15 (c) (2) of the Federal Rules of Civil
Procedure. See Slayton v. American Express Co., 460
F.3d 215, 226–28 (2d Cir. 2006). In choosing de novo
review, the Second Circuit described the relation back
inquiry as a question of law involving the interpretation
of the pleadings, akin to determining whether a com-
plaint is subject to dismissal for failure to state a claim
for which relief could be granted. Id., 227. The court
then contrasted the relation back determination with
other amendment decisions that would remain subject
to review for abuse of discretion because they involve
fairness considerations, such as decisions to add a party
under rule 15 (c) (3).4 See id. Significantly, the court
emphasized that ‘‘whether to allow amendment . . .
and whether an amended complaint relates back . . .
are often closely related issues. A court may deny leave
to amend based wholly or partially on its belief that
any amendment would not relate back. . . . If the dis-
trict court committed an error of law in its relation
back analysis and denied leave to amend on that basis,
we would reverse for abuse of discretion. . . . Never-
theless, the standards of review for these types of deci-
sions are distinct.’’ (Citations omitted.) Id., 226 n.11.
In the present case, I do not view the defendants’
claims on appeal as implicating any discretionary
aspects of the relation back analysis articulated by the
majority. Specifically, the defendants do not argue in
their brief that the timing of the proposed amendment,
or the nature of the proof required to support the retrac-
tor theory, supported the trial court’s exercise of its
discretion to deny the amendment proposed by the
plaintiff. Accordingly, I believe that the majority prop-
erly analyzes this pleadings based appeal as a pure
question of law.
I, therefore, concur in the majority’s decision to
affirm the judgment of the Appellate Court.
1
I note that Donald Briere’s wife, Nancy Briere, is also a plaintiff in the
present action. See footnote 2 of the majority opinion. For the sake of
simplicity, however, I refer to Donald Briere as the plaintiff.
2
Although the parties agree that the de novo standard of review applies,
the defendants alert us to the potential conflict in our case law. The defen-
dants argue that they would prevail even if we examine the trial court’s
denial of the plaintiff’s motion to amend de novo, rather than under the
abuse of discretion standard, which is more advantageous to them.
3
I note that the Appellate Court has followed the plenary standard
announced by the dictum in Sherman ‘‘absent some further clarification’’
from this court. DiMiceli v. Cheshire, 162 Conn. App. 216, 233–34 and n.9,
131 A.3d 771 (2016); see also Briere v. Greater Hartford Orthopedic Group,
P.C., supra, 158 Conn. App. 74.
4
The Second Circuit emphasized that abuse of discretion review is suitable
for cases involving ‘‘equitable considerations of matters specific to the con-
duct of the particular action’’ because ‘‘[i]n such matters, a district court
has a comparative advantage over an appellate court. A district court has
a familiarity with the whole case and a refined sense of the legitimate needs
of the parties, and is therefore better able than an appellate tribunal to
choose among multiple reasonable but incompatible results.’’ Slayton v.
American Express Co., supra, 460 F.3d 227.