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34 ¦ JANUARY 4, 2021 CONNECTICUT OPINIONS

alleged that the falls and resulting injuries were was conflicting testimony from expert witnesses re-
caused by defendant’s failure to provide adequate garding Dr. Esposito’s treatment and the jury was
and proper care, especially since defendant knew allowed to give this testimony whatever weight they
or should have known that Marcell suffered from thought appropriate. Therefore, the court denied
anxiety, depression, and dementia. Defendant plaintiff’s motion to set aside the verdict.
argued that the written opinion filed by plaintiff
was not authored by a similar healthcare provid-
er as required by statute. The court noted that OCCUPATIONAL SAFETY AND HEALTH •
the author of the good faith opinion letter was EMPLOYMENT LITIGATION

a practicing physician with two years of experi- Court Granted Defendant’s Motion to
ence practicing medicine in a nursing home. The
court found the author was a similar healthcare Strike Intentional Tort Count
provider under the law because he was certified
in internal medicine, in good standing with the CASE: Lavette v. Stanley Black & Decker, Inc.
state, trained in the same discipline as defendant, COURT: Hartford J.D. at Hartford
and experienced in nursing home medical care. DOC. NO.: CV-17-6076691
The court also denied defendant’s argument that COURT OPINION BY: Noble
the good faith opinion was insufficient in sub- DATE: December 08, 2020 • PAGES: 15
stantively describing the deviation from the ap-
plicable standard of care, noting that defendant’s From 2014 to 2017, plaintiff worked for defen-
argument focused only on the concluding para- dant as a store attendant with duties including
graph of the opinion and omitted several key fac- painting and cleaning. Plaintiff was given a res-
tors regarding Marcell’s medical history that had pirator to use two weeks into the job to prevent
been included in his medical records. excessive inhalation of toxic chemicals. However,
defendant’s safety manager Kim Derin took the
respirator away from plaintiff one month later.
Plaintiff filed two complaints with OSHA, who
Court Denied Plaintiff’s Motion to fined defendant. Plaintiff was then fired. Plain-
Set Aside the Verdict in Medical tiff filed multiple complaints and the court grant-
Malpractice Lawsuit ed defendants’ motion to strike. Plaintiff filed a
fourth amended complaint. Defendant moved
to strike count one on the ground that plaintiff
CASE: Giambra v. Esposito failed to cure the legal sufficiency of his pleading.
COURT: New Haven J.D. at New Haven
DOC. NO.: CV-14-6047162 The court granted the motion. Count one was a
COURT OPINION BY: Kamp claim of an intentional tort. Plaintiff claimed
DATE: December 09, 2020 • PAGES: 13 that defendant’s conscious decision to allow
Plaintiff alleged that the decedent entered the plaintiff to work with hazardous paint without
emergency room at Milford Hospital complaining proper ventilation, coupled with its awareness of
of abdominal pain. Defendant Dr. Esposito per- the substantial certainty of injury that would re-
formed an angiogram procedure and then an open sult, constituted an intentional tort. Defendant
laparotomy. After the laparotomy, the decedent argued that plaintiff failed to allege sufficient
was transferred to the ICU where he died. Plain- facts to establish Derin’s alter ego status, and
tiff, the administrator of the decedent’s estate, filed therefore failed to bring the claim in count one
a wrongful death and medical malpractice lawsuit within the ambit of the intentional tort excep-
against defendants. The jury found for plaintiff and tion. Plaintiff claimed that Derin had authority
apportioned 92% liability to Milford Hospital and to make and control policy for defendant regard-
8% liability to Dr. Esposito. Plaintiff filed a motion ing safety procedures and had the final author-
to set aside the verdict and the court denied the mo- ity with respect to removing plaintiff’s respirator.
tion. The court first denied plaintiff’s argument that However, the court found that plaintiff did not
she was entitled to a new trial because the court al- allege the level of control required by the instru-
lowed defendant to enter into evidence a medical re- mentality rule or the unity of ownership interest
port from the decedent’s primary care doctor. The required by the identity rule. It ruled that plain-
court found that this report was relevant and pro- tiff’s descriptions of job duties just indicated that
bative because it referenced the decedent’s alcohol Derin exercised no more control than that of any
consumption. Plaintiff also claimed that the jury’s corporate safety manager or HR director, and
apportionment of liability was against the weight that plaintiff did not allege that Derin had any
of the evidence. The court disagreed, finding there ownership interest in defendant.

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