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From: Robert Swotinsky MD
Password: orange
Date: 27 Feb 2008
Time: 15:04:44 -0800
Remote Name: 71.233.246.147
See Stapleton v. Concentra Health Services. Superior Court of CT, Hartford. CV064021332. August 1, 2007: The clinic reported an on-site, PCP-positive drug test without confirmation because "that's what the client wanted." The donor was fired and sued the clinic for various charges. The clinic asked the court for summary judgement dismissal of all charges, and the court agreed to dismiss some of charges but allowed that the donor had a legitimate suit in his claim of defamation.
Here's the opinion in its entirety:
Lyndon Stapleton v. Concentra Health Services
CV064021332
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HARTFORD AT HARTFORD
2007 Conn. Super. LEXIS 1984
July 30, 2007, Decided
August 1, 2007, Filed
JUDGES: [*1] Jerry Wagner, Judge Trial Referee.
OPINION BY: Jerry Wagner
OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this four-count second revised complaint, plaintiff alleges that he was
required to take a urine drug test at defendant's laboratory; that a "quick
test" showed traces of PCP which was reported to his employer C&M Warehouse;
that as a result he was terminated the same day but later reinstated after an
arbitration proceeding; that it was inappropriate for the defendant to inform
plaintiff employer of the drug test results and that the test results were
inaccurate. The first count alleges defamation; the second count alleges
violation of privacy by way of publicity that placed him in a false light; the
third count alleges intentional infliction of emotional distress; the fourth
count alleges negligent infliction of emotional distress.
By motion dated February 28, 2006 defendant moved to strike the second and third
counts, as well as the second, third and fourth claims for relief.
I.
The Connecticut Supreme Court has adopted a two-prong test for a cause of action
in false light: "(a) false light in which the other was placed would be highly
offensive to a reasonable person, and (b) the actor had knowledge [*2] of
or acted in reckless disregard as to the falsity of the publicized matter and
the false light in which the other would be placed."
Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131, 448 A.2d
1317 (1982), quoting 3
Restatement (Second), Torts § 652E, p. 394
(1977).
A finding of reckless disregard requires "sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth
of his publication."
Woodcock v. Journal Publishing Co., 230 Conn. 525, 546, 646 A.2d 92 (1994),
cert. denied,
513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995).
The plaintiff alleges that the defendant's technician acted wholly improperly
when he disclosed the test results to the plaintiff's employer because the
results "were not based upon sound scientific practices and/or procedures and
were inaccurate." On the other hand, the plaintiff fails to allege that the
defendant knew that the results were false, nor does the plaintiff allege any
possibility of recklessness on the part of the defendant in his complaint.
In Herring v. Radding Signs,
Superior Court, judicial district of New Haven, Docket No. CV 99-0427523
(February 9, 2000, Alander, J.), [*3] the court, citing
Woodcock v. Journal Publishing Co., supra, 230 Conn. 525,
found that "[t]he standard governing the tort of false light invasion of privacy
is similar to the standard governing the tort of defamation concerning a public
official or public figure." Id.
The court in Herring
granted the defendant's motion to strike on the ground that the plaintiff failed
to allege any facts that showed that the defendant knew that the published
material concerning the plaintiff was false or that it published the material
with reckless disregard for its falsity.
II.
Furthermore, a cause of action in false light requires allegations that the
words were published. See
Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131;
3 Restatement (Second) Torts, Invasion of Privacy
§
652D, comment (a), pp. 384-85 (1977).
According to 3 Restatement (Second) Torts, Invasion of Privacy
§
652D, comment (a), pp. 384-85 (1977), whereas
"'publication' includes any communication by the defendant to a third person[,]
'[p]ublicity' … means that the matter is made public, by communicating it to the
public at large, or to so many persons that the matter must be regarded as
substantially certain to [*4] become one of public knowledge. The
difference is not one of the means of communication … It is one of a
communication that reaches, or is sure to reach, the public … The distinction …
is one between private and public communications … Therefore, 'publication' can
involve communication that is made in private or public. But, 'publicity' can
only involve communication that is made in public. Where a plaintiff fails to
allege facts relating to publicity, the complaint will fail for insufficiently
pleading a cause of action for invasion of privacy by false light … While there
is no 'magic number' of persons which constitute a public audience for purposes
of invasion of privacy causes of action, there must be some claim that false and
highly offensive information about the plaintiff was made in public, and not
merely that it was published." Kindschi v. Meriden,
Superior Court, judicial district of New Haven,
Docket No. CV 06-4022391 (November 28, 2006, Robinson, J.).
Here, the plaintiff alleges that the information was released to one person,
Giordano.
At least one Superior Court decision has granted a motion to strike where
plaintiff has failed to allege the requisite element of publicity. [*5]
Senior v. Hartford Financial Services Group, Inc., Superior
Court, judicial district of Hartford, Docket No. CV 01-0808241, 2002 Conn.
Super. LEXIS 180 (January 14, 2002, Peck, J.) (31 Conn. L. Rptr. 268).
It is concluded that the allegations in the second count are insufficient to
sustain a cause of action for "false light."
III.
The third count, alleging intentional infliction of emotional distress is
insufficient because it fails to allege that defendant intended to inflict
emotional distress on the plaintiff and because the conduct alleged cannot be
considered extreme or outrageous.
Appleton v. Board of Education, 254 Conn. 205, 210, 757
A.2d 1059 (2000).
Motion to strike second and third counts is granted.
IV.
Plaintiff's second, third and fourth claims for relief have no basis in
Connecticut law and are therefore stricken.
Wagner, Judge Trial Referee