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BRIERE v. GREATER HARTFORD ORTHOPEDIC GROUP, P.C.—

CONCURRENCE

ROBINSON, J., concurring. I reluctantly agree with

the majority’s decision to affirm the judgment of the

Appellate Court holding that the trial court improperly

denied the request of the plaintiff Donald Briere1

to

amend his complaint to substitute a theory of medical

malpractice premised on the negligent use of a retractor

blade, for the originally pleaded theory of negligent

use of a skull clamp during surgery. Briere v. Greater

Hartford Orthopedic Group, P.C., 158 Conn. App. 66,

75–78, 83–84, 118 A.3d 596 (2015). My reluctance is

based on my concern that amendments late in the litigation process may well have the effect of unfairly changing the theory of the case to the detriment of the

defendants in the present case, David Kruger, an orthopedic surgeon, and the Greater Hartford Orthopedic

Group, P.C. Nevertheless, I am constrained to conclude

that the majority’s reasoning is consistent with our past

case law applying the relation back doctrine generally

and, in particular, Dimmock v. Lawrence & Memorial

Hospital, Inc., 286 Conn. 789, 805–806, 945 A.2d 955

(2008), Alswanger v. Smego, 257 Conn. 58, 67–68, 776

A.2d 444 (2001), and Gurliacci v. Mayer, 218 Conn. 531,

547–49, 590 A.2d 914 (1991).

I write separately, however, to address the standard

of review under which an appellate court evaluates a

trial court’s application of the relation back doctrine,

particularly in light of the analytical framework articulated by the majority. The majority quotes Sherman v.

Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010), for

the proposition that ‘‘[t]he de novo standard ofreview is

always the applicable standard of review for resolving

whether subsequent amendments to a complaint relate

back for purposes of the statute of limitations.’’

(Emphasis in original.) This statement of the standard

of review appears to resolve, in a summary manner,

what had been an unsettled point of law prior to the

present case, Sherman notwithstanding.2 See AustinCasares v. Safeco Ins. Co. of America, 310 Conn. 640,

660 n.15, 81 A.3d 200 (2013); Grenier v. Commissioner

of Transportation, 306 Conn. 523, 559, 51 A.3d 367

(2012). I suggest, however, that the relation back analysis articulated by the majority may require the trial

court to consider factors that go beyond the face of the

pleadings. This would call for the application of a more

deferential standard of review than the de novo standard articulated in Sherman and adopted by the majority. Accordingly, I write separately to expand on the

proper standard of appellate review.

Prior to Sherman, there had been an apparent conflict in this court’s case law about whether the abuse

of discretion or plenary standards of review applied to
the trial court’s relation back inquiry. Compare Dimmock v. Lawrence & Memorial Hospital, Inc., supra,

286 Conn. 799 (discussing conflict in detail and noting

that most decisions ‘‘[suggest] a de novo review’’

because they involved comparison of pleadings and did

not state specific standard of review), with Giglio v.

Connecticut Light & Power Co., 180 Conn. 230, 240,

429 A.2d 486 (1980) (suggesting that abuse of discretion

standard applies to relation back inquiry). In Dimmock,

we observed that ‘‘[a]n abuse of discretion standard

would be consistent with the general rule that [t]he

trial court has wide discretion in granting or denying

amendments before, during, or after trial.’’ (Internal

quotation marks omitted.) Dimmock v. Lawrence &

Memorial Hospital, Inc., supra, 799. We then posited

that, ‘‘[o]n the other hand, a de novo standard would

be more consistent with the oft stated rule that [t]he

interpretation of pleadings is always a question of law

forthe court and that ourinterpretation of the pleadings

therefore is plenary.’’ (Internal quotation marks omitted.) Id., 799–800. We also noted that ‘‘[t]he majority of

federal courts appl[y] a de novo standard to their relation back rule . . . and their relation back rule is akin

to our doctrine.’’ (Citations omitted.) Id., 800. Ultimately, we declined to resolve this question in Dimmock, because the appellant in that case could not

‘‘prevail even under de novo review.’’ Id.

Two years later, in Sherman, we observed that the

relation back standard of review was ‘‘not at issue’’ in

that case, but used dictum in a footnote ‘‘to clarify that

the de novo standard of review is always the applicable

standard of review for resolving whether subsequent

amendments to a complaint relate back for purposes

of the statute of limitations.’’ (Emphasis in original.)

Sherman v. Ronco, supra, 294 Conn. 554 n.10. We cited

Dimmock v. Lawrence & Memorial Hospital, Inc.,

supra, 286 Conn. 799–800, forthe proposition that ‘‘[t]he

interpretation of pleadings is always a question of law

for the court . . . .’’ (Internal quotation marks omitted.) Sherman v. Ronco, supra, 554 n.10. The dictum

in Sherman did not settle this matter, though, as our

subsequent decisions indicate, consistent with Dimmock v. Lawrence & Memorial Hospital, Inc., supra,

799–800, that the question is still open, although they

declined to decide the question as not outcome determinative.3 See Austin-Casares v. Safeco Ins. Co. of

America, supra, 310 Conn. 660 n.15; Grenier v. Commissioner of Transportation, supra, 306 Conn. 559.

I do not believe that the majority’s citation to our

dictum in Sherman, without further qualification or

elaboration, should be the final word on this issue. I

submit that additional clarification is required given the

case sensitive analysis articulated by the majority to

help guide the trial court’s relation back inquiries. To

the extent that the majority’s analysis requires us to

compare the original and proposed pleadings in order
to determine whether the specific allegations underlying the new cause of action ‘‘pertain to a specific transaction or occurrence between the parties that was

identified in the original complaint,’’ I agree that this

interpretation of the pleadings presents a question of

law over which our review is plenary.

The majority’s analysis does not, however, stop there.

The majority also requires the trial court to ‘‘determine

whether the new allegations support and amplify the

original cause of action or state a new cause of action

entirely. Relevant factors for this inquiry include, but

are not limited to, whether the original and the new

allegations involve the same actor or actors, allege

events that occurred during the same period of time,

occurred at the same location, resulted in the same

injury, allege substantially similar types of behavior,

and require the same types of evidence and experts.’’

I believe that these factors, which require consideration

of the unique ‘‘types of evidence and experts’’ present

in the case, call for a more deferential appellate review.

Insofar as this portion of the majority’s approach implicates the fairness of the proposed amendment to the

parties, I believe that our appellate courts should review

trial court decisions applying it for the abuse of discretion. Thus, I emphasize that, beyond simply determining

whether the allegations relate back as a question of

interpreting the pleadings, courts should be cognizant

that our ‘‘liberality [in permitting amendments to the

pleadings] has limitations. Amendments should be

made seasonably. Factors to be considered in passing

on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any,

of the party offering the amendment. . . . The motion

to amend is addressed to the trial court’s discretion

which may be exercised to restrain the amendment of

pleadings so far as necessary to prevent unreasonable

delay of the trial. . . . Whether to allow an amendment

is a matterleft to the sound discretion of the trial court.’’

(Internal quotation marks omitted.) Dow & Condon,

Inc. v. Brookfield Development Corp., 266 Conn. 572,

583, 833 A.2d 908 (2003); see also, e.g., Motzer v.

Haberli, 300 Conn. 733, 747, 15 A.3d 1084 (2011); AirKaman, Inc. v. Groppo, 221 Conn. 751, 766–67, 607 A.2d

410 (1992).

These concerns of prejudice and delay are just as

salient in the context of those aspects of the relation

back analysis that concern the nature of the proof and

fairness to the parties. Thus, I recognize that, ‘‘[i]n exercising its discretion in granting or denying a request to

amend a complaint during or after trial, the trial court

has its unique vantage point in part because it is interpreting the plaintiff’s allegations not in a vacuum, but

in the context of the development of the proceedings

and the parties’ understanding of the meaning of those

allegations. Similarly, prior to trial, in light of discovery,

pretrial motions or conferences, a trial court may have
a different context for the allegations than what is evident to an appellate court.’’ Dimmock v. Lawrence &

Memorial Hospital, Inc., supra, 286 Conn. 799 n.4.

Particularly given the holistic approach articulated

by the majority, this more nuanced approach to the

standard of review in relation back cases is consistent

with that of the United States Court of Appeals for the

Second Circuit, which, in resolving an apparent conflict

in its case law on this point, elected to engage in plenary

review of the district courts’ relation back determinations under rule 15 (c) (2) of the Federal Rules of Civil

Procedure. See Slayton v. American Express Co., 460

F.3d 215, 226–28 (2d Cir. 2006). In choosing de novo

review, the Second Circuit described the relation back

inquiry as a question of law involving the interpretation

of the pleadings, akin to determining whether a complaint is subject to dismissal for failure to state a claim

for which relief could be granted. Id., 227. The court

then contrasted the relation back determination with

other amendment decisions that would remain subject

to review for abuse of discretion because they involve

fairness considerations, such as decisions to add a party

under rule 15 (c) (3).4 See id. Significantly, the court

emphasized that ‘‘whether to allow amendment . . .

and whether an amended complaint relates back . . .

are often closely related issues. A court may deny leave

to amend based wholly or partially on its belief that

any amendment would not relate back. . . . If the district court committed an error of law in its relation

back analysis and denied leave to amend on that basis,

we would reverse for abuse of discretion. . . . Nevertheless, the standards of review for these types of decisions are distinct.’’ (Citations omitted.) Id., 226 n.11.

In the present case, I do not view the defendants’

claims on appeal as implicating any discretionary

aspects of the relation back analysis articulated by the

majority. Specifically, the defendants do not argue in

their brief that the timing of the proposed amendment,

orthe nature of the proofrequired to support the retractor theory, supported the trial court’s exercise of its

discretion to deny the amendment proposed by the

plaintiff. Accordingly, I believe that the majority properly analyzes this pleadings based appeal as a pure

question of law.

I, therefore, concur in the majority’s decision to

affirm the judgment of the Appellate Court.

1

I note that Donald Briere’s wife, Nancy Briere, is also a plaintiff in the

present action. See footnote 2 of the majority opinion. For the sake of

simplicity, however, I refer to Donald Briere as the plaintiff.

2 Although the parties agree that the de novo standard of review applies,

the defendants alert us to the potential conflict in our case law. The defendants argue that they would prevail even if we examine the trial court’s

denial of the plaintiff’s motion to amend de novo, rather than under the

abuse of discretion standard, which is more advantageous to them.

3

I note that the Appellate Court has followed the plenary standard

announced by the dictum in Sherman ‘‘absent some further clarification’’

from this court. DiMiceli v. Cheshire, 162 Conn. App. 216, 233–34 and n.9,

131 A.3d 771 (2016); see also Briere v. Greater Hartford Orthopedic Group,
P.C., supra, 158 Conn. App. 74.

4 The Second Circuit emphasized that abuse of discretion review is suitable

for cases involving ‘‘equitable considerations of matters specific to the conduct of the particular action’’ because ‘‘[i]n such matters, a district court

has a comparative advantage over an appellate court. A district court has

a familiarity with the whole case and a refined sense of the legitimate needs

of the parties, and is therefore better able than an appellate tribunal to

choose among multiple reasonable but incompatible results.’’ Slayton v.

American Express Co., supra, 460 F.3d 227.