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

Filing 134

RULING granting over objection 132 Motion for Leave to File Sur-Reply Brief. The United States will file its sur-reply forthwith. To the extent that Bridgeport Hospital wishes to respond to the C.G.S. §52-572h(c) argument(s) raised in the sur-reply, it may do so within seven (7) days of this ruling. Signed by Judge Sarah A. L. Merriam on 8/5/2015. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
MMC PPA,
:
VONETTA CYRUS-BARKER AND
:
JONATHAN MORA-APLIZAR; AND
:
VONETTA CYRUS-BARKER, INDIV.
:
:
v.
:
:
BRIDGEPORT HOSPITAL
:
:
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Civ. No. 3:11CV1733(SALM)

DATE: August 5, 2015

RULING ON UNITED STATES’ MOTION FOR LEAVE
TO FILE SUR-REPLY [DOC. #132]
Pending before the Court is a motion by limited intervenor
United States of America for leave to file a sur-reply memorandum.
[Doc. #132]. Bridgeport Hospital objects to this motion. [Doc.
#133]. For the reasons stated below, the Court GRANTS the United
States’ motion for leave to file a sur-reply memorandum.
1. Background
The Court presumes familiarity with the factual background of
this matter which is set forth at length in Judge Holly B.
Fitzsimmons’ ruling on the United States’ motion to dismiss.1 [Doc.
#78, at 2-4]. However, to further inform the ruling that follows,
the Court will briefly address the procedural background leading to
the present motion.

1

On April 7, 2015, this matter was transferred to the undersigned for all
further proceedings in light of Judge Fitzsimmons’ retirement. [Doc. #108].

1

Plaintiffs MMC ppa Vonetta Cyrus-Barker, and Jonathan MoraAlpizar and Vonetta Cyrus-Barker, individually,2 brought this action
asserting 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, Judge Fitzsimmons granted then defendant United
States of America’s motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). [Doc. #78].

The remaining

defendant in this matter, Bridgeport Hospital, then sought to file
a third party apportionment complaint against the United States
pursuant to Federal Rule of Civil Procedure 14(a)(1) [Doc. #93],
which Judge Fitzsimmons denied on March 27, 2015 [Doc. #107].
On April 29, 2015, Bridgeport Hospital filed a motion for
leave to file a third party complaint against the United States,
alleging causes of action for contribution and indemnification.
[Doc. #115]. With the Court’s permission, the United States
intervened in this matter for the limited purpose of opposing the
motion for leave [Doc. ##117, 119], and filed its memorandum in
opposition on June 29, 2015 [Doc. #121]. Bridgeport Hospital filed

2

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

2

a reply brief [Doc. #130], to which the United States now seeks
leave to sur-reply [Doc. #132].
2. Discussion
In its motion for leave to file a sur-reply, the United States
submits that it seeks to respond to a new argument raised in
Bridgeport Hospital’s reply; namely, that the Court should grant
the pending motion for leave to file a third party complaint based
upon Bridgeport Hospital’s interpretation of Connecticut General
Statutes (“C.G.S.”) section 52-572h(c). The United States further
submits that Bridgeport Hospital takes the position that, “Conn.
Gen. Stat. §52-572h(c) operates to impose potential liability upon
it for the allegedly negligent acts of the United States.” [Doc.
#132, at p. 2]. Bridgeport Hospital responds that it made the
opposite argument in reply and in fact stated that this statute
does not apply. [Doc. ##130, 133]. Accordingly, because there is no
disagreement on this point, Bridgeport Hospital urges the Court to
deny the United States’ motion and disregard the proposed sur-reply
in its entirety.
Although in its reply brief Bridgeport Hospital does in fact
state that C.G.S. §52-572h(c) does not apply to the issues under
consideration, the reply’s “Preliminary Statement,” which addresses
C.G.S. §52-572h(c), essentially presents a position concerning the
fairness of this statutory scheme to Bridgeport Hospital’s current
circumstances. A fair reading of the preliminary statement lends
itself to an implied argument further supporting why the Court
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should grant Bridgeport Hospital’s motion for leave to amend; that
is, if the motion is not granted, in light of this statutory
scheme, Bridgeport Hospital will be left in the unenviable position
of facing liability for the totality of plaintiff’s injuries.
Although not couched as an argument per se, it nevertheless serves
a persuasive point, to which the United States should be provided
an opportunity to respond. See, e.g., Guadagni v. New York City
Transit Auth., 387 F. App'x 124, 125-26 (2d Cir. 2010) (noting our
Circuit’s holding that, “reply papers may properly address new
material issues raised in the opposition papers so as to avoid
giving unfair advantage to the answering party.” (quoting Bayway
Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27
(2d Cir. 2000))).
Therefore, the United States’ motion for leave to file a surreply is GRANTED. The United States will file its sur-reply
forthwith. To the extent that Bridgeport Hospital wishes to respond
to the C.G.S. §52-572h(c) argument(s) raised in the sur-reply, it
may do so within seven (7) days of this ruling.
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 New Haven this 5th day of August, 2015
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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