Caron v. Connecticut Pathology Group, P.C. , 187 Conn. App. 555 ( 2019 )

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NORMAND CARON ET AL. v. CONNECTICUT
PATHOLOGY GROUP, P.C.
(AC 40462)
Lavine, Prescott and Harper, Js.
Syllabus
The plaintiffs, C and D, sought to recover damages from the defendant
medical practice for, inter alia, alleged medical malpractice in connec-
tion with the false positive cancer diagnosis of C by pathologists
employed by the defendant. C had undergone an endoscopy at a hospital
during which a biopsy was performed. Tissue samples from the biopsy
were placed on a slide by hospital personnel and sent to the defendant
for analysis. The defendant’s pathologists incorrectly determined that
C had cancer on the basis of their interpretation of a contaminated
sample. In bringing their action, the plaintiffs, pursuant to the statute
(§ 52-190a [a]) that requires a plaintiff in a medical malpractice action
to submit an opinion letter from a similar health care provider as defined
by statute (§ 52-184c [c]), attached to their complaint an opinion letter
authored by R, a board certified clinical pathologist. Thereafter, the
defendant filed a motion to dismiss the action for lack of personal
jurisdiction on the ground that the opinion letter was not authored by
a similar health care provider as required by § 52-190a (a). Specifically,
it argued that because the plaintiffs’ complaint alleged negligence in the
interpretation of the tissue samples for the purpose of diagnosing cancer,
the plaintiffs were required to obtain an opinion letter from an anatomic
pathologist, not a clinical pathologist. The trial court granted the defen-
dant’s motion to dismiss for lack of personal jurisdiction and rendered
judgment thereon. In reaching its decision, the court found that anatomic
pathology and clinical pathology are distinct subspecialties of pathology,
and interpreted the complaint as alleging negligence by the defendant’s
pathologists in their interpretation of the tissue samples, which was
within the province of anatomic pathology. On that basis, the court
concluded that the opinion letter was legally insufficient pursuant to
§ 52-190a (a) because it was not authored by a similar health care
provider. On the plaintiffs’ appeal to this court, held that the trial court
properly granted the defendant’s motion to dismiss for lack of personal
jurisdiction, as that court properly interpreted the plaintiffs’ complaint
as having alleged negligence by the pathologists employed by the defen-
dant in their capacity as anatomic pathologists, and, therefore, R’s opin-
ion letter was not authored by a similar health care provider as required
by § 52-190a (a); because the plaintiffs’ complaint sounded in negligence
predicated on the pathologists’ interpretation of the tissue samples,
which fell within the expertise of anatomic pathologists, the plaintiffs
were required to attach to their complaint an opinion letter authored
by a physician trained, experienced and board certified in anatomic
pathology, and because it was undisputed that R had specialized training
in clinical, but not anatomic, pathology, his opinion letter was not
authored by a similar health care provider as that term is defined in
§ 52-184c, regardless of his ample experience in clinical pathology.
Argued September 20, 2018—officially released January 29, 2019
Procedural History
Action to recover damages for, inter alia, medical
malpractice, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
court, Domnarski, J., granted the defendant’s motion
to dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Gerald S. Sack, with whom, on the brief, was Jona-
than A. Cantor, for the appellants (plaintiffs).
James F. Biondo, with whom, on the brief, was Diana
M. Carlino, for the appellee (defendant).
Opinion
PRESCOTT, J. This appeal arises out of a medical
malpractice action brought by the plaintiffs, Normand
Caron and Donna Caron,1 against the defendant, Con-
necticut Pathology Group, P.C., after a false positive
cancer diagnosis. The plaintiffs appeal from the judg-
ment of the trial court dismissing their complaint
against the defendant for failure to attach to their com-
plaint a legally sufficient opinion letter authored by
a similar health care provider as required by General
Statutes § 52-190a (a). On appeal, the plaintiffs, who
attached to their complaint an opinion letter authored
by a board certified clinical pathologist, claim that the
court found that anatomic pathology is a medical spe-
cialty distinct from clinical pathology and, on the basis
of that finding and the allegations in the complaint,
improperly determined that the plaintiffs were required
to submit an opinion letter authored by a board certified
anatomic pathologist. We disagree and conclude that
the court properly granted the defendant’s motion to
dismiss. Accordingly, we affirm the judgment of the
trial court.
The following facts, as alleged in or necessarily
implied from the plaintiffs’ complaint and affidavits sub-
mitted by the plaintiffs and the defendant, and proce-
dural history are relevant to our resolution of the
plaintiffs’ claim. On March 25, 2014, Caron underwent
an endoscopy at Middlesex Hospital in Middletown.
During the endoscopy, a biopsy was performed. Tissue
samples extracted during the biopsy were placed on a
slide by Middlesex Hospital personnel.2 The slide con-
taining the tissue samples was then sent to the defen-
dant for analysis. On the basis of their interpretation
of the samples, physicians employed by the defendant
determined that Caron had cancer. Caron was then
informed of the diagnosis.
From March 25 to August 15, 2014, Caron underwent
medical treatment for cancer. On August 15, 2014,
Caron was informed that the sample upon which his
cancer diagnosis was based had been contaminated and
that he did not, in fact, have cancer.
The plaintiffs commenced the present action on
August 30, 2016. In paragraph 6 of their complaint, the
plaintiffs alleged: ‘‘The conduct of the defendant . . .
its agents, servants, and/or employees, including, but
not limited to, its pathologists and other professional
staff, violated the applicable standard of care . . . in
the following ways: (a) in that pathologists employed
by [the defendant] failed to consider contamination
error in the initial pathology finding or in subsequent
consultations when, in the exercise of reasonable care,
they could and should have done so; (b) in that patholo-
gists employed by [the defendant] failed to diagnose a
contamination error in a timely manner when, in the
exercise of reasonable care, they could and should have
done so; (c) in that pathologists employed by [the defen-
dant] failed to perform or request a nucleic acid identifi-
cation of the tissue from the initial biopsy, when, in the
exercise of reasonable care, they could and should have
done so; and (d) in that pathologists employed by [the
defendant] failed to properly interpret the plaintiff’s
biopsy sample.’’ The plaintiffs alleged that, as a result
of the defendant’s negligence, they incurred expenses
for medical care and medicines and that Caron suffered
physical and emotional injuries.
As required by § 52-190a,3 the plaintiffs attached a
good faith letter and an opinion letter to their complaint.
The opinion letter was authored by Samuel Reichberg,
a board certified clinical pathologist, who opined that
‘‘the erroneous false positive cancer results obtained
in [Caron’s] biopsy was caused by the failure to follow
prevailing standards of care, both in the handling of
the specimen by the staff of [the defendant], and in the
interpretation of the biopsy findings by the [defen-
dant’s] pathologists.’’ (Emphasis added.) Reichberg is
not board certified as an anatomic pathologist.
On October 26, 2016, the defendant filed a motion
to dismiss the action for lack of personal jurisdiction
because the opinion letter that the plaintiffs attached
to their complaint was not authored by a similar health
care provider as required by § 52-190a (a). Specifically,
the defendant argued that because their complaint
alleged negligence in the interpretation of the samples
for the purpose of diagnosing cancer, the plaintiffs were
required to obtain an opinion letter from an anatomic
pathologist, not a clinical pathologist.
In support of the motion to dismiss, the defendant
attached an affidavit from Jonathan Levine, a board
certified clinical and anatomic pathologist, averring:
‘‘Clinical [p]athology and [a]natomic [p]athology are
primary board certifications, each with their own sepa-
rate and distinct training protocol and board examina-
tions. They are not sub-specialties of one another. . . .
Anatomic [p]athology involves the examination of surgi-
cal tissue specimens to diagnose disease. . . . Prior to
becoming eligible to sit for the [a]natomic [p]athology
board examination, a physician must complete special-
ized training in [a]natomic [p]athology. . . . Clinical
pathology involves the direction of divisions of the labo-
ratory which may include the blood bank, clinical chem-
istry, microbiology, hematology, and other special
divisions. . . . Prior to becoming eligible to sit for the
[c]linical [p]athology board examination, a physician
must complete specialized training in [c]linical [p]athol-
ogy. . . . The examination of the tissue samples as set
forth in their [c]omplaint, concerns the examination of
tissue specimens for the purpose of diagnosing cancer,
and thus fall within the field of [a]natomic [p]athology.’’
On December 9, 2016, the plaintiffs filed an objection
to the motion to dismiss. In support of their objection,
the plaintiffs submitted an affidavit from Reichberg.
Reichberg did not contradict the definitions of clinical
and anatomic pathology provided by Levine in his affi-
davit. Rather, he stated a legal conclusion, averring:
‘‘The conduct of the [d]efendant . . . by their patholo-
gists . . . as alleged in [p]aragraph 6 (a)-(c) of the
[p]laintiffs’ [c]omplaint, is not restricted to the subs-
pecialty of [a]natomic [p]athology, but is also the pur-
view of [c]linical [p]athology, a specialty in which both
I and the [d]efendant’s pathologists have board certifi-
cation.’’4 (Emphasis added.)
On January 17, 2017, the court heard oral argument
on the defendant’s motion to dismiss. At oral argument,
the defendant again explained that clinical pathology
and anatomic pathology are separate and distinct spe-
cialties. In response, the plaintiffs argued that there
was nothing beyond Levine’s affidavit to ‘‘delineate dis-
tinctly the differences between [clinical and anatomic
pathology].’’ They did not, however, provide their own
definitions of the specialties. Moreover, neither party
moved for an evidentiary hearing at this point, despite
the fact that the plaintiffs later argued that such a hear-
ing was necessary to the adjudication of the motion.
In fact, the plaintiffs did not move for an evidentiary
hearing until after the court granted the defendant’s
motion to dismiss.
On February 16, 2017, without holding an evidentiary
hearing, the court issued a memorandum of decision
granting the defendant’s motion to dismiss. The court,
relying on Levine’s affidavit and Stedman’s Medical Dic-
tionary, found that anatomic and clinical pathology are
distinct subspecialties of pathology. Specifically, the
court stated: ‘‘Reichberg’s affidavit . . . does not con-
tradict [Levine’s] characterization [of anatomic and clin-
ical pathology]; indeed, these definitions are in line with
those provided in Stedman’s Medical Dictionary. . . .
Stedman’s Medical Dictionary defines anatomic pathol-
ogy in relevant part as ‘the subspecialty of [pathology]
that pertains to the gross and microscopic study of
organs and tissue removed for biopsy . . . and also
the interpretation of the results of such study’ . . .
Stedman’s Medical Dictionary (28th Ed. 2006) p. 1442;
whereas clinical pathology is defined in relevant part
as ‘the subspecialty in [pathology] concerned with the
theoretical and technical aspects (i.e. the methods or
procedures) of chemistry . . . and other fields as they
pertain to the diagnosis of disease.’ . . . Stedman’s
Medical Dictionary, supra, p. 1442.’’ (Citation omitted;
emphasis in original.)
In its memorandum of decision, the court also con-
cluded that the plaintiffs’ complaint alleged negligence
within the province of anatomic pathology, stating:
‘‘What the [plaintiffs] [are] essentially alleging is that
the defendant’s pathologists, in endeavoring to interpret
the samples, failed to recognize and, consequently,
failed to investigate, the possibility that one or more
of the samples may have been contaminated and thus
failed to ultimately conclude that one of the samples
was indeed contaminated. These allegations fall within
the defined province of anatomic pathology.’’ On the
basis of these conclusions, the court granted the defen-
dant’s motion to dismiss.
On February 28, 2017, the plaintiffs filed two motions:
a motion to vacate and/or reargue the judgment of dis-
missal and a motion for an evidentiary hearing.5 On
March 10, 2017, the defendant filed an objection to both
of the plaintiffs’ motions. The plaintiffs filed a reply
to the defendant’s objection on March 31, 2017, and,
ultimately, after holding oral argument on the motions,
the court denied the relief requested by the plaintiffs.
This appeal followed.
On appeal, the plaintiffs claim that the court improp-
erly granted the defendant’s motion to dismiss on the
basis of its determination that the opinion letter was
legally insufficient pursuant to § 52-190a (a) because
it was not written by a similar health care provider.
Specifically, the plaintiffs argue that the court miscon-
strued their complaint as alleging negligence by the
pathologists employed by the defendant in their capac-
ity as anatomic pathologists and that their opinion let-
ter, which was written by a clinical pathologist, was
therefore not authored by a similar health care provider,
as required by § 52-190a.6 We disagree.
We begin with our standard of review and other appli-
cable principles of law. ‘‘A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the court’s
ultimate legal conclusion and resulting [determination]
of the motion to dismiss will be de novo. . . . When
a . . . court decides a . . . question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon
that alone. (Internal quotation marks omitted.) Wilkins
v. Connecticut Childbirth & Women’s Center, 314 Conn.
709, 718, 104 A.3d 671 (2014).
‘‘[I]f the complaint is supplemented by undisputed
facts established by affidavits submitted in support of
the motion to dismiss . . . other types of undisputed
evidence . . . and/or public records of which judicial
notice may be taken . . . the trial court, in determining
a jurisdictional issue, may consider these supplemen-
tary undisputed facts and need not conclusively pre-
sume the validity of the allegations of the complaint.
. . . Rather, those allegations are tempered by the light
shed on them by the [supplementary undisputed facts].
. . . If affidavits and/or other evidence submitted in
support of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings.’’ (Citations
omitted; emphasis omitted; footnote omitted; internal
quotation marks omitted.) Conboy v. State, 292 Conn.
642, 651–52, 974 A.2d 669 (2009).
‘‘The interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary. . . . [W]e long have eschewed the notion that
pleadings should be read in a hypertechnical manner.
Rather, [t]he modern trend, which is followed in Con-
necticut, is to construe pleadings broadly and realisti-
cally, rather than narrowly and technically. . . . [T]he
complaint must be read in its entirety in such a way as
to give effect to the pleading with reference to the
general theory upon which it proceeded, and to substan-
tial justice between the parties. . . . Our reading of
pleadings in a manner that advances substantial justice
means that a pleading must be construed reasonably,
to contain all that it fairly means, but carries with it
the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension. . . . [E]ssential allegations may not
be supplied by conjecture or remote implication . . . .’’
(Citations omitted; internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 536, 51 A.3d 367 (2012).
Turning to the substance of the issue before us, ‘‘[§]
52-190a (a) provides . . . that, prior to filing a personal
injury action against a health care provider, the attorney
or party filing the action . . . [must make] a reasonable
inquiry as permitted by the circumstances to determine
that there are grounds for a good faith belief that there
has been negligence in the care or treatment of the
claimant. . . . To show the existence of such good
faith belief that there has been negligence in the care
or treatment of the claimant. . . . To show the exis-
tence of such good faith, the claimant or claimant’s
attorney . . . shall obtain a written and signed opinion
of a similar health care provider, as defined in [General
Statutes §] 52-184c . . . that there appears to be evi-
dence of medical negligence and includes a detailed
basis for the formation of such opinion. . . . Failure
to attach to the complaint a legally sufficient opinion
letter authored by a similar health care provider man-
dates dismissal because the court lacks personal juris-
diction over the defendant. . . .
‘‘Section 52-184 defines similar health care provider.
Pursuant to that provision, the precise definition of
similar health care provider depends on whether the
defendant health care provider is certified by the Ameri-
can board as a specialist, is trained and experienced in
the medical specialty or holds himself out as a specialist
. . . . Our Supreme Court has construe[d] . . . § 52-
184c (c) as establishing [the qualifications of a similar
health care provider] when the defendant is board certi-
fied, trained and experienced in a medical specialty, or
holds himself out as a specialist . . . .
‘‘If the [plaintiff] [alleges] in his complaint that the
defendant [is a specialist] . . . the opinion letter . . .
ha[s] to be . . . authored by a similar health care pro-
vider as defined by § 52-184c (c) . . . . Pursuant to
subsection (c) of § 52-184c, a similar health care pro-
vider is one who [i]s trained and experienced in the
same specialty; and (2) is certified by the appropriate
American board in the same specialty . . . .
‘‘Our precedent indicates that under § 52-184c (c), it
is not enough that an authoring health care provider
has familiarity with or knowledge of the relevant stan-
dard of care . . . . A similar health care provider must
be trained and experienced in the same specialty and
certified by the appropriate American board in the same
specialty.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) Gonzales v. Langdon,
161 Conn. App. 497, 504–505, 128 A.3d 562 (2015).
In the present case, the court interpreted the com-
plaint as alleging negligence by the defendant in its
interpretation of the tissue samples, which is within
the province of anatomic pathology. We agree and are
unable to see, even construed in the manner most favor-
able to the plaintiffs, how the complaint alleges any-
thing other than negligence in the defendant’s
interpretation of the tissue samples.
The plaintiffs’ complaint clearly revolves around the
defendant’s interpretation of the tissue samples they
received from Middlesex Hospital. The interpretation
of the samples falls within the specialty of anatomic
pathology. Paragraph 2 of the complaint expressly
frames the issue as one of negligent interpretation by
the defendant, stating: ‘‘On or about March 25, 2014,
[Caron] underwent an endoscopy . . . . The biopsy
results from the endoscopy were interpreted by physi-
cians employed by, and acting in the course of their
employment with, [the defendant], as positive for can-
cer. The interpretation of the biopsy samples by the
physicians [employed by the defendant] led [Caron’s]
treaters to conclude that he was suffering from cancer.’’
(Emphasis added.)
Similarly, the specific instances of negligence alleged
by the plaintiffs in paragraph 6 (a) through (d) of their
complaint all relate to the defendant’s interpretation of
the tissue samples, which is within the province of
anatomic pathology, not clinical pathology. Paragraph
6 (d) of the complaint expressly alleges that the defen-
dant’s pathologists ‘‘failed to properly interpret [Car-
on’s] biopsy sample.’’ (Emphasis added.)
The plaintiffs argue that paragraph 6 (a) through (c)
of their complaint alleges negligence by the defendant
in its operation of the laboratory, which arguably could
be interpreted as falling within the field of clinical
pathology. We are not persuaded. Although these sub-
paragraphs do not expressly use the term interpreta-
tion, the allegations clearly relate to the standard of
care used in analyzing a sample in order to diagnose
the presence, if any, and type of disease after it is placed
on a slide. This function is within the province of ana-
tomic pathology. Similarly, paragraph 6 (a) alleges that
the defendant ‘‘failed to consider contamination error
in the initial pathology finding . . . .’’ Because the
defendant received the tissue samples after they were
handled by Middlesex Hospital, the defendant’s consid-
eration of contamination would necessarily occur as
part of the defendant’s efforts to interpret the slides.
Paragraph 6 (b) alleges that the defendant ‘‘failed to
diagnose a contamination error,’’ which also implicates
negligence by the defendant when analyzing the sam-
ples, namely, the failure to recognize the signs of con-
tamination. Finally, paragraph 6 (c), which alleges that
‘‘pathologists employed by [the defendant] failed to per-
form or request a nucleic acid identification of the tissue
from the initial biopsy,’’ relates to interpretive negli-
gence. This subparagraph essentially alleges that, after
looking at the slide and interpreting it, the defendant
should have ordered additional testing to clarify abnor-
malities in the slide. Ordering subsequent testing to
clarify errors detected while interpreting a slide would
squarely fall within the role of an anatomic pathologist.
Paragraph 6 (a) through (c) of the plaintiffs’ complaint,
therefore, alleges negligence in the defendant’s inter-
pretation of the tissue samples.
Nowhere in their complaint do the plaintiffs allege
that the defendant operated a laboratory or played any
role in the preparation, handling or contamination of
the tissue samples, all of which is conduct related to
clinical pathology. Indeed, at oral argument on the plain-
tiffs’ motion to vacate and/or reargue, the plaintiffs’
counsel stated: ‘‘There’s nothing in the complaint that
I see that directly says that [the defendant ran a labora-
tory].’’ Additionally, at oral argument before this court,
the plaintiffs were unable to point to any part of their
complaint that alleges that the defendant operated a
laboratory and, therefore, breached its duty of care in
the realm of clinical, rather than anatomic, pathology.
Because the plaintiffs’ complaint sounds in negli-
gence predicated on the defendant’s interpretation of
the tissue samples, and the interpretation of samples
falls within the expertise of anatomic pathologists, the
plaintiffs were required to attach to their complaint
an opinion letter authored by an anatomic pathologist.
Specifically, the plaintiffs were required to attach an
opinion letter from a physician (1) trained and experi-
enced in anatomic pathology, and (2) board certified
in anatomic pathology. See, e.g., Bennett v. New Milford
Hospital, Inc., 300 Conn. 1, 14, 12 A.3d 865 (2011). It
is undisputed that Reichberg has specialized training
in clinical, not anatomic, pathology. Reichberg averred
on two occasions that he is ‘‘a board certified clinical
pathologist with forty years of experience in clinical
laboratory medical and managerial direction.’’ He is not,
however, board certified in anatomic pathology.
The plaintiffs argue that Reichberg’s opinion letter is
sufficient because he is qualified to assess the duty
of care of anatomic pathologists. In support of this,
Reichberg averred: ‘‘I am cognizant of the overall
responsibility of the [defendant’s] [d]irector for the
operation of the whole laboratory, regardless of subs-
pecialty, and I [am] well qualified to assess the opera-
tional aspects of the histology laboratory [operated by
the defendant].’’ Again, it is undisputed that Reichberg
is not board certified in anatomic pathology and, there-
fore, regardless of his ample experience in clinical
pathology, he is not a similar health care provider as
that term is defined by § 52-184c.
On the basis of the foregoing, we conclude that the
court properly interpreted the plaintiffs’ complaint to
allege negligence by the pathologists employed by the
defendant in their capacity as anatomic pathologists
and that the opinion letter, therefore, was not authored
by a similar health care provider, as required by § 52-
190a. Accordingly, the court properly dismissed this
action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For convenience, all references to Caron in this opinion are to Nor-
mand Caron.
2
The plaintiffs first brought an action against Middlesex Hospital in April,
2016, on the basis of the hospital’s handling of the tissue samples. See Caron
v. Middlesex Hospital, Superior Court, judicial district of Middlesex, Docket
No. CV-XX-XXXXXXX-S. Specifically, the plaintiffs alleged that Middlesex Hospi-
tal and its employees violated the applicable standards of care by contaminat-
ing the slide that contained tissue samples extracted during Caron’s biopsy.
The same opinion letter used in the present case was attached to the com-
plaint in this prior action. The plaintiffs ultimately settled their case against
Middlesex Hospital.
3
General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action
. . . shall be filed to recover damages resulting from personal injury or
wrongful death . . . in which it is alleged that such injury or death resulted
from the negligence of a health care provider, unless the attorney or party
filing the action . . . has made a reasonable inquiry as permitted by the
circumstances to determine that there are grounds for a good faith belief
that there has been negligence in the care or treatment of the claimant. The
complaint . . . shall contain a certificate of the attorney or party filing the
action . . . that such reasonable inquiry gave rise to a good faith belief
that grounds exist for an action against each named 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, as defined in section 52-184c, which similar health care provider
shall be selected pursuant to the provisions of said section, that there appears
to be evidence of medical negligence and includes a detailed basis for the
formation of such opinion. . . .’’
4
We are not bound by Reichberg’s interpretation of the plaintiffs’ com-
plaint because the construction of pleadings is a question of law over which
this court has plenary review. See, e.g., Grenier v. Commissioner of Trans-
portation, 306 Conn. 523, 536, 51 A.3d 367 (2012). Contrary to Reichberg’s
interpretation, our reading of the complaint reveals that it does not implicate
the defendant’s handling of the tissue samples.
5
In support of their motion for an evidentiary hearing, the plaintiffs argued
that the affidavits from Reichberg and Levine were contradictory and, there-
fore, that the court was faced with a factual dispute that needed to be
resolved before it could render judgment on the motion to dismiss. Although
evidentiary hearings may be necessary when deciding motions to dismiss
that involve factual disputes; see Conboy v. State, 292 Conn. 642, 651–54,
974 A.2d 669 (2009); see also Roberts v. Roberts, 32 Conn. App. 465, 475,
629 A.2d 1160 (1993) (‘‘when the exercise of the court’s discretion depends
on issues of fact which are disputed, due process requires that a trial-like
hearing be held, in which opportunity is provided to present evidence and
cross-examine adverse witnesses’’ [internal quotation marks omitted]); such
a hearing was not required in the present case because there were no
material facts in dispute. In making the factual finding that clinical and
anatomic pathology are distinct specialties, the court relied on Levine’s
affidavit and the definitions in Stedman’s Medical Dictionary, neither of
which were contested by the plaintiffs until after the court decided the
motion to dismiss.
6
The plaintiffs on appeal have not challenged the court’s denial of their
motion for an evidentiary hearing. Furthermore, there is a question as to
whether the plaintiffs waived the right to an evidentiary hearing by failing
to request one in a timely manner. See Angersola v. Radiologic Associates
of Middletown, P.C., 330 Conn. 251, 273, 193 A.3d 520 (2018); Marcus v.
Cassara, 142 Conn. App. 352, 357, 66 A.3d 894 (2013) (‘‘[i]t is unfair to the
court to leave it with the impression that counsel is in agreement with the
court’s preference to decide the motion on the papers and then argue on
appeal that the court abused its discretion by failing to schedule an eviden-
tiary hearing’’). In the present case, the plaintiffs had ample opportunity to
request such a hearing, including at the time the court held oral argument
on the motion to dismiss. They did not do so, however, until after the court
granted the defendant’s motion to dismiss.
We caution, however, that when courts are faced with genuine factual
disputes in deciding motions to dismiss, an evidentiary hearing is required.
See, e.g., Conboy v. State, 292 Conn. 642, 652–54, 974 A.2d 669 (2009) (‘‘where
a jurisdictional determination is dependent on the resolution of a critical
factual dispute, it cannot be decided on a motion to dismiss in the absence
of an evidentiary hearing to establish jurisdictional facts’’).