Defense Verdict Clarifies “Ascertainable Loss” Under the Connecticut Unfair Trade Practices Act (CUTPA)

May 13, 2014

New Haven, Connecticut (May 13, 2014) — Neubert, Pepe & Monteith, P.C. Attorney Eric Stockman, assisted by Attorney Corey Fitzgerald, recently prevailed at the Connecticut Appellate court in the appeal of the DiTeresi v. Stamford Health System, Inc. case, obtaining complete affirmation of a summary judgment victory obtained on behalf of Neubert, Pepe & Monteith’s client, Stamford Health System, Inc. (“Hospital”), at the trial court level. First filed in 2006, the case involved allegations that an employee of Stamford Hospital sexually assaulted a 92 year old dementia patient in the middle of a busy workday at the hospital. Plaintiff Santina DiTeresi, the patient, claimed that the Hospital negligently failed to prevent the assault; failed to remove the perpetrator immediately upon discovering the assault in progress; left the patient without care and treatment for the assault for six hours while the Hospital investigated the claims; and failed to tell the patient’s primary care physician and the police for seven hours after the assault. Plaintiff Virginia DiTeresi, Santina’s daughter, claimed that she suffered emotional distress as a result of these actions, including a re-activation of the trauma from an assault she personally suffered some thirty years prior.

The Hospital denied these allegations and defended the case vigorously. After plaintiff’s counsel took more than thirty depositions and disclosed six expert witnesses, Attorney Stockman moved for summary judgment as to the claims made by Virginia DiTeresi on the grounds that the Hospital owed no duty of care to the patient’s daughter and therefore the claims were bystander emotion distress, which is impermissible in Connecticut. The motion was granted in its entirely by Judge Tierney. Plaintiffs appealed, and Attorney Stockman prevailed at the Appellate Court, winning affirmation of the summary judgment decision in its entirety.

Attorney Stockman filed for summary judgment as to eight of eleven counts asserted by Santina DiTeresi, on various grounds. That motion was granted in its entirety. After a three week trial on the merits of the remaining claims the jury returned a verdict in favor of the Hospital in less than two hours.

Plaintiff did not appeal the trial verdict, but rather one of the eight claims that had been dismissed on summary judgment. Plaintiff claimed that the trial court mistakenly decided that emotional distress could not provide the sole basis for a claim under the Connecticut Unfair Trade Practices Act (“CUTPA”). CUTPA is a remedial statute designed to protect consumers who are harmed by an unfair, immoral or unscrupulous business practice. One of the threshold requirements of such a claim is that the plaintiff must have incurred an “ascertainable loss” of money or property. Plaintiff claimed that, despite the lack of actual loss, emotional distress was sufficient enough to constitute ascertainable loss, relying on a smattering of antiquated Superior Court decisions so holding. The Appellate Court disagreed, affirming Attorney Stockman’s position that emotional distress alone is not enough to bring a CUTPA claim. The decision established binding appellate authority in this regard, thereby eliminating the notion that an unfair business practice claim can be levelled by someone who suffered no financial loss as a result.