Cyrus-Barker et al v. Optimus Health Care Inc. et al

Filing 107

RULING denying 93 Motion to Amend/Correct to file Third Party Apportionment Complaint. Signed by Judge Holly B. Fitzsimmons on 3/27/2015. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MMC PPA,
VONETTA CYRUS-BARKER
JONATHAN MORA-ALPIZAR, AND
VONETTA CYRUS-BARKER, INDIV.
v.
BRIDGEPORT HOSPITAL

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CIV. NO. 3:11CV1733(HBF)

RULING ON DEFENDANT BRIDGEPORT HOSPITAL‟S
MOTION TO AMEND [DOC. #93]
Plaintiffs MMC ppa Vonetta Cyrus-Barker, and Jonathan MoraAlpizar and Vonetta Cyrus-Barker, individually,1 assert claims of
medical malpractice against defendants Optimus HealthCare, Inc.,
Brenda Kulikowski and Bridgeport Hospital arising out of the
prenatal care and delivery of Vonetta Cyrus-Barker‟s daughter.
The United States of America was substituted for defendants
Optimus Health Care, a community health center in Bridgeport,
and Brenda Kulikowski, a midwife at Optimus.

On September 18,

2013, the Court granted defendant United States of America‟s
motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). [Doc. #78]. Plaintiffs sought
reconsideration or, in the alternative, articulation of the
Court‟s ruling [Doc. #80], which the Court granted as to
plaintiffs‟ request for articulation and denied as to
reconsideration. [Doc. #89].
The remaining defendant in this matter, Bridgeport

1

Vonetta Cyrus-Barker brings this action on behalf of her minor child, MMC,
and Vonetta and Jonathan Mora-Alpizar, the child‟s parents, assert individual
claims as well.

Hospital, now seeks to file a third party apportionment
complaint against the United States pursuant to Federal Rule of
Civil Procedure 14(a)(1). [Doc. #93]. The United States opposes
Bridgeport Hospital‟s motion on the grounds that the Court lacks
subject matter jurisdiction because the United States has not
waived its sovereign immunity for apportionment complaints.
[Doc. #97]. Bridgeport Hospital also filed a reply memorandum.
[Doc. #106]. For the reasons articulated below, the Court DENIES
Bridgeport Hospital‟s motion for leave to file an apportionment
complaint. [Doc. #93].
I.

LAW APPLICABLE TO APPORTIONMENT CLAIM
Bridgeport Hospital moves pursuant to Federal Rule of Civil

Procedure 14(a) for leave to file and serve a third party
apportionment complaint against the United States. Rule 14(a)
provides that, “A defending party may, as third-party plaintiff,
serve a summons and complaint on a non-party who is or may be
liable to it for all or part of the claim against it. But the
third-party plaintiff must, by motion, obtain the court‟s leave
if it files the third-party complaint more than 14 days after
serving its original answer.” Fed. R. Civ. P. 14(a)(1).
As this Court has previously stated, it is well settled
that, absent consent, the United States is immune from suit, as
are its agencies and its officers when the latter act in their
official capacities. FDIC v. Meyer, 510 U.S. 471, 475 (1994);
Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005); see also
Rein v. Socialist People‟s Libyan Arab Jamahiriya, 162 F.3d 748,
2

756 n.4 (2d Cir. 1998) (noting that “[] sovereign immunity[] is
an immunity from litigation and not just liability.”
(alterations added)). Therefore, a waiver of sovereign immunity
is a jurisdictional prerequisite to a suit against the federal
government or its officers.
II.

DISCUSSION2
The parties focus their arguments on whether the United

States has waived sovereign immunity for apportionment
complaints, and therefore is immune from liability pursuant to
Connecticut General Statutes section 52-102b(c). After careful
consideration of the parties‟ arguments, and an extensive review
of applicable case law construing both Connecticut Statutes
section 52-102b and the Federal Tort Claims Act (“FTCA”), the
Court DENIES Bridgeport Hospital‟s motion to amend.
Bridgeport Hospital seeks to bring the United States back
into this action through the Connecticut apportionment statute,
which states that,
A defendant in any civil action to which section 52-57h
applies may serve a writ, summons and complaint upon a
person not a party to the action who is or may be liable
pursuant to said section for a proportionate share of the
plaintiff‟s damages in which case the demand for relief
shall seek an apportionment of liability.

Conn. Gen. Stat. §52-102b(a). The apportionment statute also
provides that,
No person who is immune from liability shall be made an
apportionment defendant nor shall such person‟s liability
be considered for apportionment purposes pursuant to
section 52-57h. If defendant claims that the negligence of
2

The Court presumes familiarity with the factual background of this matter,
which is set forth in its ruling on the United States‟ motion to dismiss.
[Doc. #78, 2-4].
3

any person, who was not made a party to the action, was a
proximate cause of the plaintiff‟s injuries or damage and
the plaintiff has previously settled or released the
plaintiff‟s claims against such person, then a defendant
may cause such person‟s liability to be apportioned by
filing a notice specifically identifying such person by
name and last known address and the fact that the
plaintiff‟s claims against such person have been settled or
released.

Conn. Gen. Stat. §52-102b(c). Despite the Court‟s efforts, scant
authority exists which directly addresses the issue of the
United States‟ sovereign immunity under §52-102b.3
Nevertheless, at least one Connecticut Superior Court case
has addressed “the question of whether, in a negligence suit, a
defendant can seek statutory apportionment against the United
States and two federal employees, all of whom were previously
dismissed from the case.” Hurdle v. Somanath, No.
X02CV03176929S, 2004 WL 1050873, at *1 (Conn. Super. Ct. Feb.
25, 2004). There, plaintiff filed a medical malpractice action
against eight defendants as a result of her son‟s death. Two of
the defendants contended that they should be deemed federal
employees and removed the case to federal court. The district
court granted a motion to substitute the United States as
defendant, and later dismissed the case against the United
States due to plaintiff‟s failure to exhaust administrative
remedies under the FTCA. The district court then remanded the
case to state court as to the remaining six private defendants.
Id. Two of those private defendants filed a “notice of intent to
3

Interestingly, the Court‟s exhaustive review of this issue did reveal a 2005
action in which Bridgeport Hospital essentially argued that the United States
enjoys sovereign immunity with respect to apportionment complaints. See Cruz
v. United States, Case No. 05-cv-374 (JBA), slip. op., Doc. #69 at 5-7. The
Court, however, did not reach this issue in its ruling.
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seek apportionment” against the two federal employees and the
United States. The plaintiff moved to strike the apportionment
claim(s). Hurdle, 2004 WL 1050873, at *1.
Noting that, “[a]pportionment is solely a creature of
statute,” the Superior Court “construe[d] the apportionment
statutes strictly and recognize[d] only those alterations of the
common law [providing for joint and several liability with no
contribution among tortfeasors] that are clearly expressed in
the statutes‟ language.” Id. (citations omitted (alterations
added)). In so doing, the Superior Court addressed section 52572h4, governing the liability of multiple tortfeasors for
damages in negligence actions, to reject the private defendants‟
argument that section 52-572h permitted them to seek
apportionment against the federal defendants regardless of their
status as dismissed parties. In its discussion, the Superior
Court noted that subsections (f) and (n) of 52-572h,
set(s) forth two classes of persons whose negligence may be
considered by the trier of fact: [] the „parties‟ to the
action; and „settled or released persons,‟ as that term is
illuminated in subsection (n). The federal defendants do
not fit into either of these classes. Instead they belong
to a third class, one of persons or entities who are no
longer parties because of their dismissal. The statute does
not include this class of persons as potential targets of
apportionment.

Hurdle, 2004 WL 1050873, at *2 (internal citation omitted;
emphasis and alterations added). The Superior Court then
concluded that,
4

This section is specifically cited by the Connecticut apportionment statute
Bridgeport Hospital seeks to invoke. See Conn. Gen. Stat. §52-102b(a) (“A
defendant in any civil action to which section 52-572h applies[…]”
(alterations added)).
5

This omission was apparently no oversight. On the contrary,
in § 52-102b(c), the legislature specifically provided
that, “[n]o person who is immune from liability shall be
made an apportionment defendant nor shall such person‟s
liability be considered for apportionment purposes pursuant
to section 52-572h.” Because many immune persons brought
into lawsuits will normally obtain relief by way of a
motion to dismiss, it seems clear that the legislature did
not seek to have parties that were dismissed from lawsuits
brought back in by way of apportionment complaints,
notices, or verdicts. Thus, there is no statutory authority
for the defendants’ apportionment claims.

Hurdle, 2004 WL 1050873, at *2 (emphasis added). The Superior
Court then addressed plaintiff‟s argument that the federal
defendants are immune from liability, and therefore exempt from
apportionment under 52-102b(c). Id. at 3. Although the court‟s
discussion is not entirely relevant to the issues for this
Court‟s determination, it is worth noting the Superior Court‟s
statement that, “it makes no sense to bar the addition of
apportionment parties based on a simultaneous finding of
immunity, but to allow apportionment against parties that have
already obtained a judicial determination of immunity or
dismissal from suit.” Id. (emphasis added).
The Court is persuaded by the sound reasoning of the Hurdle
court‟s ruling that the Connecticut legislature did not seek to
have parties that were dismissed from lawsuits brought back in
by way of apportionment complaints. The facts and procedural
history of Hurdle are more analogous to that at issue here than
the cases otherwise cited by Bridgeport Hospital which, on their
face, do not indicate that the United States was dismissed as a
party to the action prior to a third party-plaintiff seeking to
apportion the United States back into the case.
6

For example, in DeGrenier v. Joly, plaintiff sued a
property owner for a slip and fall on a stairway outside of a
United States Post Office. No. Civ.A. 301CV1012CFD, 2002 WL
31106386, at *1 (D. Conn. Aug. 9, 2002). The property owner then
filed a third party apportionment complaint against the United
States, which the United States sought to dismiss both on the
grounds of sovereign immunity and the property owner‟s failure
to exhaust administrative remedies. Id. Judge Droney denied the
United States‟ motion to dismiss, but did not address the
sovereign immunity argument. Regardless, and relevant to the
analysis here, the Joley plaintiff did exhaust her
administrative remedies against the United States, and at the
time of Judge Droney‟s ruling, the United States sought to
consolidate the apportionment action and plaintiff‟s direct suit
against it. Id. *1-2, n. 2-3.
Similarly, in Montanez ex rel. Rosario v. Hartford
Healthcare Corp., No. 3:03CV1202(GLG), 2003 WL 22389355, at *1
(D. Conn. Oct. 17, 2003), a federally subsidized medical clinic
moved to substitute the United States in its place as the
apportionment defendant and also to dismiss the complaint for
lack of subject matter jurisdiction on the basis that it was not
timely served under the Connecticut apportionment statute or,
alternatively, was immune from suit. Again, the Court denied the
motion to dismiss but limited its analysis to the timeliness of
the action and whether the third-party plaintiff was required to
exhaust administrative remedies. Id. at *3-6. Again, and
7

important to the Court‟s analysis here, in Montanez, plaintiffs
did not directly sue the federal health clinic; rather it was
brought into the suit by other defendants “as an apportionmentdefendant for the limited purpose of reducing plaintiffs‟
recovery, if any, [from the other defendants].” Montanez, 2003
WL 22389355, at *1. Accordingly, because Joley and Montanez do
not implicate the dismissal of the United States from an action,
and then an attempt to apportion it back into the lawsuit, the
Court finds these cases distinguishable from the issue before
the Court. Therefore, based on the sound reasoning of Hurdle,
and the circumstances of this case, the Court finds no statutory
authority for Bridgeport Hospital‟s apportionment claim against
the United States.5
Because the Court finds no statutory authority for
Bridgeport Hospital‟s apportionment claim based on the United
States dismissal from this action, it need not reach the issue
of sovereign immunity.6

5

Bridgeport Hospital also argues that it can assert a claim for equitable
apportionment even if the apportionment statute is unavailable. However, the
Court finds that invoking equitable apportionment would defeat the intent of
the legislature to prevent dismissed parties from being brought back into
litigation by way of apportionment complaints.
6

Nevertheless, the Court notes two recent district court cases, which suggest
in dicta, that apportionment claims are cognizable under the FTCA. In W.
Holding Co., Inc. v. AIG Ins. Co., Civil No. 11-2271 (GAG), 2014 WL 3592082,
at *2 (D. Puerto Rico July 21, 2014), the court states that apportionment
claims are cognizable under the FTCA, and cites to various First Circuit
cases in support of this statement. Similarly, in Cabales v. Morgan, No.
3:14-CV-00161-JWS, 2015 WL 999100, at *4 (D. Alaska March 6, 2015), the court
notes that it previously rejected an argument that the court did not have
subject matter jurisdiction over an apportionment complaint against the
United States, without further elaborating the court‟s rationale. This
authority is not binding upon the Court and is not persuasive as the
procedural and factual background of these cases are distinguishable from the
present case much like that of Joley and Montanez.
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III. CONCLUSION
For the reasons stated, Bridgeport Hospital‟s motion to
amend [Doc. #93] is DENIED.
This is not a recommended ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. #49] on
October 4, 2012 with appeal to the Court of Appeals.
SO ORDERED at Bridgeport this 27th day of March 2015
_______/s/
______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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