The Remarkable Tenure of Justice Palmer, 061820 KYWC, 93 CBJ 27
| Author | Thomas A. Bishop, Judge |
| Position | 93 CBJ 27 |
Thomas A. Bishop, Judge [*]
On May 27, 2020, Richard Palmer reached age 70, requiring him to end his twenty-seven years as an associate justice of the Connecticut Supreme Court.1 He was the third longest serving Justice in the Court's history.2 During his time, Justice Palmer authored more than six hundred opinions covering all areas of the law in the matters brought to the Court for review. His significance in the history of the court will likely not be based, however, on either the length of his tenure or the number of opinions he wrote; rather, he is likely to be remembered for the singular impact of his opinions on the development of the law and, where implicated, on social policy and community life. The purpose of this article is to highlight a few of those opinions which, in the view of the author, will make Justice Palmer's legacy endure. The cases cited in this article admittedly reflect the subjective views of the author. For purposes of clarity, Justice Palmer's opinions are discussed in the order in which they were published starting with the most recent.
I. Doe v. Cochran
In 2019, Justice Palmer authored the court's majority opinion in Doe v. Cochran3 in which the court resolved an issue of first impression regarding the duty of a physician to an identifiable third party.[4] The third party and plaintiff in the case, Jane Doe, contemplated having a monogamous sexual relationship with John Smith.[5] As of July, 2013, the plaintiff had tested negative for any sexually transmitted diseases (STDs) and she asked Smith to be similarly tested. Consequently, Smith visited his physician, the defendant, who is a licensed medical doctor practicing in Norwalk. During Smith's visit, the defendant asked Smith why he wanted to be tested again for STDs, as the defendant had tested him just five months earlier. Smith explained that he wanted to be tested again for the protection and benefit of his new, exclusive girlfriend, the plaintiff. The defendant then took a sample of Smith's blood, arranged for it to be tested for STDs, and subsequently reviewed the laboratory test results.
The lab report that the defendant reviewed included a guide for reading the test's results. Smith's test result was significantly above the threshold for a positive herpes diagnosis.
The defendant delegated to a member of his staff the task of informing Smith of the results of his test. Even though the lab report clearly demonstrated a positive herpes diagnosis, the staff member incorrectly told Smith over the phone that his STD test results had come back negative.
The plaintiffs relationship with Smith subsequently became sexual. Thereafter, the plaintiff began to experience herpes outbreaks and was diagnosed with herpes. Upon learning of this, Smith contacted the defendant to inquire further about his test results. The defendant then informed Smith that he had actually tested positive for herpes and apologized for the error.
Thereafter, the plaintiff brought a one count complaint sounding in negligence against the defendant. In response, the defendant moved to strike the complaint on the basis that it was, in fact, a malpractice action and that the defendant owed no duty of care to the plaintiff because she was not his patient. The trial court agreed, precipitating the appeal to the Supreme Court.
Speaking for a bare majority, Justice Palmer acknowledged that the issue presented was one of first impression. Characterizing the complaint as one sounding in ordinary negligence, he likened the claim to one of negligent misrepresentation. Justice Palmer applied the reasoning in such cases—namely, that a misrepresentation of fact, even an innocent one, may make a person liable not only to the person to whom the misrepresentation is made but to an identifiable group of people whom the speaker reasonable knows are likely to rely on it. Because the complaint alleged that Smith had told the defendant he wished to be tested for STDs because he was in a monogamous relationship with the plaintiff, Justice Palmer concluded that the plaintiff was a clearly identifiable victim of the defendant's erroneous report that Smith was free of any STDS. In coming to this conclusion, he distinguished Doe from the court's earlier opinion in Jarmie v. Troncale6 in which the court held that a physician owed no duty of care to an unidentifiable third-party victim. In Jarmie, the defendant physician treated a patient for various ailments but failed to warn her of the dangers of operating a motor vehicle when suffering from those ailments. After leaving the defendant's office, the patient lost consciousness while driving and struck the victim, who subsequently brought a negligence action against the defendant claiming that he should have cautioned the patient not to drive. In navigating to a new common law rule of negligence, Justice Palmer fastened on the notion that in Doe, the victim was identifiable because Smith had told the defendant that he was being tested for the benefit of his new girlfriend, with whom he was in monogamous relationship, whereas in Jarmie, the victim was not identifiable other than being in the general class of motorists. Justice Palmer opined: "This identifiable victim requirement strikes an equitable balance between the interests at stake. Although a health care provider's liability may expand beyond his or her patients, its increased scope would encompass only those third-party victims of whose existence and potential exposure to harm the health care provider had been made aware—or could have become aware—prior to the negligent act."7 Following that reasoning, Justice Palmer concluded that the plaintiff had pleaded a cause of action sounding in ordinary negligence rather than medical malpractice, and as a matter of first impression, the defendant physician owed a duty of care to her.
While an important inroad into the notion that a physician has no duty of care beyond that owed to a patient, time will tell whether the door opened in Doe to impose liability on a health care provider for negligence harming identifiable non-patients will have any durable effect.
II. Soto v. Bushmaster Firearms International, LLC
On December 14, 2012, Adam Lanza smashed his way into the Sandy Hook Elementary School in Newtown, Connecticut, where he then, in a matter of very few minutes, shot to death twenty first graders and six staff members, and wounded an additional two staff persons, all with a Bush-master semi-automatic rifle. The horror of this massacre was likely to bring notoriety to any litigation stemming from this terrible event. When a trial judge struck the complaint brought by the administrators of the estates of the deceased students and faculty against Bushmaster and other arms defendants on the basis that their multi-count complaint did not set forth legally-valid causes of action, the plaintiffs sought appellate review where Justice Palmer was assigned to write the opinion.8
In the trial court, the plaintiffs had made several legal claims. One of them, premised on the Connecticut Unfair Trade Practices Act (CUTPA), alleged that the defendants' marketing of assault rifles such as the rifle used by Lanza was inherently unreasonable and dangerous and that the defendants had marketed and promoted the sale of the rifle in an unethical, oppressive, immoral and unscrupulous manner. The trial court had struck this particular claim on the basis of federal legislation known as the Protection of Lawful Commerce in Arms Act9 (PLCAA) which generally immunizes weapons manufacturers and sellers from civil liability arising from the criminal or unlawful use of their products by third parties. Writing for the court, Justice Palmer noted that the PLCAA contained one exception pertinent to the case at hand. That exception permits civil actions alleging that a manufacturer or seller of a firearm knowingly violated a State or Federal statute applicable to the sale or marketing of the firearm and that the violation proximately caused the harm for which relief is sought. In finding for the plaintiffs on this issue, Justice Palmer concluded that CUTPA was such a statute and, furthermore, that the plaintiffs' complaint set forth facts and claims based on CUTPA that, if proven, would not be protected by the immunity provisions of the PLCAA.
While Justice Palmer's opinion by no means ended this litigation, it is significant for the fact that it left standing a civil action against Bushmaster, exposing the defendant to the rigors of pretrial discovery and the potential of ultimate liability should the matter, in time, reach a jury.10
III. State v. Skakel, Skakel v. State, and Skakel v. Commissioner of Correction
On October 31, 1975 fifteen-year-old Martha Moxley was found bludgeoned to death near her home in the Belle Haven section of Greenwich. No one was charged with her murder until twenty-five years later, when Michael Skakel, who was fifteen years old at the time of the murder, was arrested and charged with the crime. After a jury trial, Skakel was convicted of murder and sentenced to prison. Thereafter, Skakel appealed his conviction, filed a petition for a new trial and, lastly, filed a writ of habeas corpus. Each of these matters ultimately came to the Supreme Court where the Court affirmed Skakel's conviction,11 affirmed the trial court's denial of his petition for a new trial,12 and affirmed the trial court's grant of his habeas petition.[13] Justice Palmer authored the majority opinions in the direct appeal and in the habeas matter. He issued a dissenting opinion in the new trial petition.
Because of Skakel's age at the time of the crime...
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