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2 , 0 0 Conn. App. 1

Harvin v. Yale New Haven Health Services Corp.

MARCUS T. HARVIN v. YALE NEW HAVEN HEALTH

SERVICES CORPORATION ET AL.

(AC 46339)

Alvord, Westbrook and Pellegrino, Js.

Syllabus

The plaintiff, who previously had been convicted of various crimes in connection with a drunk driving incident, sought to recover damages from,

inter alia, the defendant hospital, L Co., for its alleged negligence in

disclosing the plaintiff’s confidential health information during his criminal prosecution. The plaintiff claimed that L Co. unlawfully disclosed his

health information by providing certain unspecified confidential health

records to members of the Office of the Chief State’s Attorney and, at

his criminal trial, through the testimony of two of L Co.’s agents, a

physician and a nurse who were employed by L Co. and who had treated

the plaintiff following the incident. L Co. filed a motion to strike, which

the trial court granted in part, striking all counts of the complaint against

L Co. except those sounding in negligence per se and negligent infliction

of emotional distress. Thereafter, L Co. filed a motion for summary

judgment, arguing that it was entitled to summary judgment because,

inter alia, any disclosure of the plaintiff’s protected health information

by L Co. or its agents was made in response to a valid subpoena and

a court order. The trial court denied the motion, stating that L Co. did

not provide an evidentiary foundation as to what information had been

delivered, and in what manner, in response to the subpoena and court

order. Thereafter, L Co. filed a motion to dismiss, arguing that the trial

court lacked subject matter jurisdiction because L Co. had absolute

immunity under the litigation privilege, as any alleged disclosures were

made pursuant to a subpoena and a court order. The trial court denied

the motion, determining that it lacked a sufficient evidentiary basis on

which to determine whether the litigation privilege applied, and L Co.

appealed to this court. Held:

1. The motion to dismiss should have been granted with respect to the

remaining counts of the complaint to the extent that they were premised

on the disclosure of the plaintiff’s health information by L Co.’s agents

during their testimony at the plaintiff’s criminal trial, and, accordingly,

this court reversed that portion of the trial court’s judgment denying L

Co.’s motion to dismiss: the plaintiff’s attorney conceded at oral argument before this court that the litigation privilege applied with respect

to the allegations in the complaint that were premised on the testimony

provided by L Co.’s agents at the plaintiff’s criminal trial, and, in doing

so, he effectively acknowledged that any disclosures by the witnesses
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Harvin v. Yale New Haven Health Services Corp.

of the plaintiff’s health information were relevant to the criminal prosecution; moreover, this court viewed that concession as effectively waiving or abandoning any and all arguments that the litigation privilege did

not bar the plaintiff’s action with respect to the witnesses’ testimony.

2. The trial court’s denial of the motion to dismiss with respect to the

remaining counts of the complaint to the extent that they were premised

on L Co.’s alleged disclosure of confidential health records to the state’s

attorney’s office was not improper, and, accordingly, this court affirmed

that portion of the trial court’s judgment, without prejudice to L Co.

renewing its claim regarding the applicability of the litigation privilege:

the trial court lacked a sufficient evidentiary basis to determine whether

the litigation privilege applied, as the allegations of the complaint, read

broadly and in the light most favorable to the plaintiff, indicated that

L Co. could have potentially disclosed confidential information in excess

of that required under the subpoena, and L Co. did not negate that

possibility simply by providing evidence demonstrating that it produced

sealed medical records in compliance with the subpoena and the accompanying court order; moreover, L Co. never requested an evidentiary

hearing, and it was within the discretion of the trial court to leave the

jurisdictional issue for resolution following additional discovery or a

trial on the merits rather than to resolve the matter by ordering an

evidentiary hearing sua sponte.

Argued January 8—officially released April 30, 2024

Procedural History

Action to recover damages for, inter alia, the defendants’ alleged negligence, and for other relief, brought

to the Superior Court in the judicial district of Hartford,

where the court, Budzik, J., granted the defendants’

motion to strike as to certain counts; thereafter, the

court, Noble, J., granted the defendants’ motion for

summary judgment only with respect to the remaining

counts against the named defendant, and rendered judgment thereon; subsequently, the court, Connors, J.,

denied the motion to dismiss filed by the defendant

Lawrence + Memorial Hospital, and the defendant Lawrence + Memorial Hospital appealed to this court.

Reversed in part; judgment directed.

Michael G. Rigg, with whom, on the brief, was Adam

Maiocco, for the appellant (defendant Lawrence +

Memorial Hospital).
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Harvin v. Yale New Haven Health Services Corp.

Alexander T. Taubes, for the appellee (plaintiff).

Opinion

WESTBROOK, J. In this civil action, the plaintiff,

Marcus T. Harvin, a former inmate, asserts claims of,

inter alia, negligence per se and negligent infliction of

emotional distress against the defendant Lawrence +

Memorial Hospital1 on the basis of its allegedly unlawful

disclosure of his confidential health information during

his criminal prosecution.2 The plaintiff alleges that the

defendant unlawfully disclosed his confidential health

information in two ways. First, he alleges that the defendant unlawfully provided certain unspecified confidential health records, including a psychiatric evaluation,

to members of the Office of the Chief State’s Attorney.

Second, he alleges that two of the defendant’s agents

disclosed confidential health information during their

testimony at his criminal trial. The defendant appeals

from the judgment of the trial court denying its motion

to dismiss the action for lack of subject matter jurisdiction on the theory that the defendant is entitled to

absolute immunity from suit under the litigation privilege because any and all disclosures of the plaintiff’s

confidential health information, whether by itself or its

agents, occurred in the course of the criminal litigation

and in response to a valid subpoena and court order.3

1 Yale New Haven Health Services Corporation (Yale New Haven) also

was named as a defendant in the underlying action. The court rendered

summary judgment on all counts brought against Yale New Haven, and the

plaintiff did not appeal that ruling. Yale New Haven has not participated in

the present appeal. Accordingly, in this opinion, we refer to Lawrence +

Memorial Hospital as the defendant and to Yale New Haven by name. 2 According to the plaintiff, the alleged disclosure violated General Statutes

(Rev. to 2015) § 52-146d, General Statutes §§ 52-146e (a) and 52-146o (a),

and 45 C.F.R. § 164.512 (e) (2015), a federal regulation promulgated pursuant

to the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C.

§ 1320d et seq. 3 Although the denial of a motion to dismiss ordinarily is an interlocutory

ruling and, thus, not immediately appealable; see, e.g., Harger v. Odlum,

153 Conn. App. 764, 768, 107 A.3d 430 (2014); ‘‘[t]he doctrine of absolute

immunity, known also as the litigation privilege . . . protects against suit
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Harvin v. Yale New Haven Health Services Corp.

The defendant specifically claims that the court improperly determined that it lacked a sufficient evidentiary

basis on which to determine if the litigation privilege

applied under the circumstances of this case.

At oral argument before this court, the plaintiff’s

attorney conceded, and we agree, that the litigation

privilege does bar those portions of the underlying

action premised on the testimony provided by the defendant’s agents at the plaintiff’s criminal trial. We disagree, however, that the defendant demonstrated on

this record that it is entitled to litigation privilege with

respect to the allegations of unlawful disclosure of confidential health information to members of the Office of

the Chief State’s Attorney. Accordingly, for the reasons

that follow, we reverse in part and affirm in part the

judgment of the trial court and remand the case with

direction to grant the motion to dismiss to the extent

that the remaining counts are premised on the testimony given by the defendant’s agents at the plaintiff’s

criminal trial.

The following facts, as alleged in the complaint or

otherwise undisputed in the record,4 and procedural

as well as liability—in effect, against having to litigate at all.’’ (Citations

omitted; emphasis added; internal quotation marks omitted.) Carter v.

Bowler, 211 Conn. App. 119, 122, 271 A.3d 1080 (2022). To vindicate the

right of immunity from suit—as distinguished from a right to immunity from

liability—the denial of a motion to dismiss that raises a colorable claim of

absolute immunity is immediately appealable under the second prong of

the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

See Smith v. Supple, 346 Conn. 928, 941, 293 A.3d 851 (2023); Chadha v.

Charlotte Hungerford Hospital, 272 Conn. 776, 785, 865 A.2d 1163 (2005).

Because there is no dispute that the underlying motion to dismiss raises a

colorable claim of absolute immunity, we have jurisdiction over the present appeal. 4 In reviewing a trial court’s ruling on a motion to dismiss, ‘‘we take the

facts to be those alleged in the complaint, construing them in a manner

most favorable to the pleader.’’ (Internal quotation marks omitted.) Rioux

v. Barry, 283 Conn. 338, 341, 927 A.2d 304 (2007). Nevertheless, given that

the present motion to dismiss was filed after several years of litigation,

which consisted of the adjudication of several dispositive motions, including

two motions for summary judgment, we properly may rely on the record
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Harvin v. Yale New Haven Health Services Corp.

history are relevant to our review of the defendant’s

claim. In 2014, the plaintiff was arrested in connection

with a drunk driving incident that resulted in serious

injuries, and, following a criminal trial, he was convicted of multiple offenses.5 He received a total effective

as a whole in setting forth the operative facts. See Conboy v. State, 292

Conn. 642, 650–51, 974 A.2d 669 (2009) (explaining that, ‘‘depending on the

state of the record at the time the motion [to dismiss] is filed,’’ court properly

may decide motion on basis of ‘‘(1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts’’ (emphasis added; internal quotation marks omitted)). 5 The following facts underlying the plaintiff’s criminal conviction are not

in dispute and were set forth by the trial court in its decision granting in

part and denying in part the defendant’s and Yale New Haven’s joint motion

for summary judgment. ‘‘On May 25, 2014, an officer of the Ledyard Police

Department responded to a call of a stopped vehicle on [Route] 12 with an

adult asleep behind the wheel with two children in the backseat of the car.

The investigating police officer found the vehicle stopped with the engine

running and two small children in the rear seat. The present plaintiff was

asleep behind the wheel. He was awakened and informed that the officer

intended to perform a field sobriety test as a consequence of the smell of

alcoholic beverage coming from the car, an observation of bloodshot eyes

and slow slurred speech. The plaintiff . . . identified himself as Donte Harvin, his brother. When the police officer returned to his vehicle to process

the information he was provided by the plaintiff, the plaintiff’s vehicle sped

off at a high rate of speed. Ultimately, the vehicle driven by the plaintiff

was found upside down in the swimming pool of a residence on Baldwin

Hill [Road in] Ledyard . . . . The plaintiff and the two children in the

backseat, ages two and four, his children, were entrapped in the vehicle

due to extensive damage. Further investigation found that the vehicle had

left the road, hit a utility pole, ran through a [Department of Transportation]

traffic control box, over a metal beam guardrail and then came to rest in

the pool. The plaintiff’s two year old child suffered a partially severed right

forearm that was connected by only a small amount of skin. The plaintiff

was taken to [the defendant] where blood and urine samples were collected

and medical treatment [was] rendered.

‘‘Following an arrest . . . and subsequent trial, the plaintiff was found

guilty on March 3, 2016, of assault in the second degree with a motor vehicle

in violation of [General Statutes] § 53a-60d; two counts of risk of injury to

a child in violation of General Statutes § 53-21 (a) (1); two counts of reckless

endangerment in the first degree in violation of General Statutes § 53a-63;

interfering with an officer in violation of General Statutes [Supp. 2014] § 53a167a; reckless driving in violation of General Statutes [Rev. to 2013] § 14-

222; illegal operation of a motor vehicle while under the influence of alcohol
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Harvin v. Yale New Haven Health Services Corp.

sentence of twenty-three years of incarceration, execution suspended after fourteen and one-half years, followed by five years of probation with special conditions. State v. Marcus H., 190 Conn. App. 332, 337, 210

A.3d 607, cert. denied, 332 Conn. 910, 211 A.3d 71, cert.

denied, U.S. , 140 S. Ct. 540, 205 L. Ed. 2d 343

(2019).

As part of the criminal proceedings, the state served

the defendant with a subpoena duces tecum that sought

the plaintiff’s medical records pertaining to his treatment at the defendant’s hospital following his arrest on

May 25, 2014. The subpoena was accompanied by a

court order pursuant to General Statutes § 54-2a (a)

directing the defendant to comply with the subpoena.

On August 14, 2015, the defendant, through its agents,

provided to the prosecuting attorney, Sarah Bowman,

certain sealed medical records. That same day, Attorney

Bowman appeared before the trial court, which issued

an order unsealing these records as to Attorney Bowman and defense counsel. During the subsequent criminal trial, Laura Arre, a registered nurse, and Bernard

Ferguson, a physician, each of whom worked for the

defendant in the hospital’s emergency department,

appeared and provided testimony regarding the plaintiff’s diagnosis, medical treatment and related medical

records.

In July, 2017, following his criminal conviction, the

plaintiff, acting as a self-represented litigant, brought

the underlying civil action.6 The operative amended

and/or drugs in violation of General Statutes [Rev. to 2013] § 14-227a; and

increasing the speed of a motor vehicle in an attempt to escape from a

police officer in violation of General Statutes § 14-223 (b).’’ Harvin v. Yale

New Haven Health Services Corp., Superior Court, judicial district of Hartford, Docket No. CV-17-5045594-S (November 4, 2019). 6 The plaintiff is now represented by counsel, who filed an appearance

in June, 2022, just prior to the filing of the motion to dismiss underlying

this appeal.
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Harvin v. Yale New Haven Health Services Corp.

complaint was filed on December 15, 2017, and contained ten counts, all premised on the allegedly illegal

and unauthorized disclosure of his confidential medical

information by the defendant, Yale New Haven, and/or

their respective agents. Counts one, three, five, seven

and nine were brought against the defendant and

sounded in, respectively, negligence per se, negligence,

negligent supervision and training, negligent infliction

of emotional distress, and invasion of privacy. Counts

two, four, six, eight and ten alleged the same causes

of action but against Yale New Haven on the theory that

it was liable as the parent corporation of the defendant.

On November 5, 2018, the court, Budzik, J., granted

in part a joint motion to strike filed by the defendant and

Yale New Haven and struck all counts of the complaint

except one, two, seven and eight sounding in negligence

per se and negligent infliction of emotional distress.

The plaintiff did not replead, and the court subsequently

rendered judgment against the plaintiff on the

stricken counts.

The defendant and Yale New Haven next filed a joint

motion for summary judgment on the remaining four

counts. Yale New Haven argued that it was entitled to

judgment as a matter of law because it had not become

the parent corporation of the defendant until September

8, 2016, which was after the alleged disclosures of information complained of by the plaintiff.7 Accordingly, it

had no proper role in this matter. The defendant argued

that it was entitled to summary judgment because any

disclosure of the plaintiff’s protected health information

by the defendant or its agents was done in response to

a valid subpoena and court order, none of the statutes,

regulations, or policies cited in support of the negligence per se counts was applicable in this matter, and

7 The plaintiff alleged that his medical records were unlawfully disclosed

on August 14, 2015, and that the testimony disclosing his private medical

information occurred on February 25 and 29, 2016.
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Harvin v. Yale New Haven Health Services Corp.

there was no evidence that the disclosure of protected

health information caused the plaintiff any emotional

distress.

On November 4, 2019, the court, Noble, J., rendered

summary judgment in favor of Yale New Haven as to

the remaining counts against it but denied summary

judgment regarding the two remaining counts against

the defendant. In so doing, the court explained, in relevant part, that ‘‘there was no evidentiary foundation

provided by the [defendant] as to what was delivered

or how it was delivered, in response to the subpoena

duces tecum and court order. While the plaintiff offered

a purported transcript of a hearing on August 14, 2015

. . . in which medical records from [the defendant]

were said to have been ‘just picked up’ by the prosecutor, no direct evidentiary nexus is offered by the [defendant] between those records ‘just picked up’ by the

prosecutor and the records subpoenaed. . . . As an

example of the lack of evidentiary proof for the defendant[’s] assertions, the [defendant] refer[s] the court to

Exhibit C, the court order and subpoena, in order to

advance the proposition that, ‘[p]ursuant [to] the order

and subpoena, [the defendant] sent seventy-nine pages

of sealed medical records to the Criminal Clerk’s Office

at the New London Superior Court.’ . . . Despite having carefully reviewed the defendant[’s] Exhibit C, the

court is unable to find any reference to what was delivered, how it was delivered or . . . of how many pages

it consisted. The court therefore cannot make a finding

of no genuine issue of material fact as to the adequacy

of compliance with any state or federal confidentiality

provisions. Because the propriety of the testimony of

both [Arre] and [Ferguson] flows . . . from the propriety of [the defendant’s] initial disclosure of medical

records, the court is also unable to find a lack of a

genuine issue of material fact.’’ (Citation omitted;

emphasis altered.)
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Harvin v. Yale New Haven Health Services Corp.

In short, the court was unable to determine from the

evidence provided in support of summary judgment

exactly what was in the sealed medical records that

the defendant produced in response to the subpoena

and that were later unsealed by the court and whether

the allegations in the complaint of improperly disclosed

health information were limited to only those documents provided to Attorney Bowman and subsequently

unsealed by the court as evidenced in the transcript

provided. The court thereafter denied the defendant’s

motion to reargue the motion for summary judgment.8

In 2020 and 2021, the defendant filed several additional

potentially dispositive pretrial motions, to no avail.9

On August 22, 2022, the defendant filed the motion

to dismiss that is the subject of the present appeal.

According to the defendant, ‘‘witnesses who provide

testimony and disclosures in a formal judicial proceeding enjoy absolute immunity under the litigation privilege. A witness, and by extension his/her employer, who

8 As noted by the plaintiff, the defendant has raised no claim on appeal

challenging the basis of Judge Noble’s summary judgment ruling. 9 Following the denial of the motion for summary judgment as to the two

remaining counts against it, the defendant, on September 30, 2020, filed a

motion to dismiss the action for lack of subject matter jurisdiction on

the theory that the action was unripe for adjudication. According to the

defendant, the action necessarily implied that the plaintiff’s criminal conviction was somehow invalid and, therefore, unless and until the underlying

conviction was invalidated, the action was not ripe. The court, Schuman,

J., noting that the motion was governed by Taylor v. Wallace, 184 Conn.

App. 43, 51, 194 A.3d 343 (2018), denied the motion to dismiss because

it construed the present action as alleging that the plaintiff had suffered

compensatory damage from the alleged disclosure of his confidential medical information at his criminal trial as opposed to raising any challenge to

his ultimate conviction.

On June 21, 2021, the defendant filed its second motion for summary

judgment in which it argued, among other things, that this matter involved

complex issues that required the plaintiff to present expert testimony and

that the plaintiff had missed his deadline to disclose an expert. The court,

Hon. Jane S. Scholl, judge trial referee, denied the motion for summary

judgment on April 28, 2022.
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Harvin v. Yale New Haven Health Services Corp.

produces records pursuant to a subpoena and court

order enjoys absolute immunity from suit and liability.

Moreover, because [Arre’s] and [Ferguson’s] testimony

during the plaintiff’s criminal trial fit[s] squarely within

the litigation privilege, [the defendant] has absolute

immunity from suit and the case must be dismissed in

its entirety for lack of subject matter jurisdiction.’’ The

plaintiff filed an opposition arguing that the motion to

dismiss was nothing more than a last-minute attempt

to delay trial and that the litigation privilege is inapplicable in actions alleging the unauthorized disclosure of

confidential medical records. According to the plaintiff,

in Byrne v. Avery Center for Obstetrics & Gynecology,

P.C., 327 Conn. 540, 550, 175 A.3d 1 (2018), our Supreme

Court recognized a common-law cause of action against

medical providers for the unlawful disclosure of medical information and it ‘‘cannot be the law’’ that the

litigation privilege would bar such an action simply

because the unauthorized disclosure had occurred in

the context of a judicial proceeding. Neither party

requested an evidentiary hearing on the motion to dismiss.

The court, Connors, J., issued a decision on January

17, 2023, denying the motion to dismiss. The court, after

setting forth relevant legal principles, concluded: ‘‘Even

assuming that the litigation privilege applies to the types

of claims that the plaintiff alleges . . . the court has

no basis to conclude that the litigation privilege applies

in the present matter. In particular, although [any] testimony at the plaintiff’s criminal trial would generally be

subject to the litigation privilege . . . the defendant

failed to submit any evidentiary foundation to show that

Arre[’s] and Ferguson’s testimonies were sufficiently

relevant to the issues involved in the plaintiff’s criminal

trial so as to qualify for the litigation privilege. . . .

‘‘The defendant similarly failed to provide any evidentiary foundation to show that the alleged production of
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Harvin v. Yale New Haven Health Services Corp.

the plaintiff’s health records to members of the Office

of the State’s Attorney was relevant to the issues

involved in the plaintiff’s criminal trial or made in

response to a subpoena. The defendant merely refers

to a memorandum of decision where the court, Noble,

J., took judicial notice of a court order and a subpoena

duces tecum. . . . The court also noted, however, that

there was no evidentiary foundation provided by [the

defendant] as to what was delivered or how it was

delivered, in response to the subpoena duces tecum

and court order. . . . In this motion to dismiss, the

defendant has again provided no evidence to show that

its production of the plaintiff’s medical records was in

response to said subpoena, and the same cannot be

inferred from the complaint. Thus, the court has no

basis to conclude that the litigation privilege applies to

the alleged production of the plaintiff’s health records.’’

(Citations omitted; internal quotation marks omitted.)

On the basis of that reasoning, the court denied the

defendant’s motion to dismiss. The defendant filed a

timely motion to reargue, which the court denied. This

appeal followed.

The defendant claims on appeal that the trial court

improperly determined that it lacked a sufficient evidentiary basis on which to determine if the litigation privilege applied in this case. Given that the plaintiff now

concedes that the litigation privilege bars his action, at

least to the extent that it is premised on the testimony

provided by the defendant’s agents at his criminal trial,

we agree that the motion to dismiss should be granted

in part with respect to both remaining counts of the

complaint. We nevertheless agree with the trial court’s

conclusion that it lacked a sufficient evidentiary basis

on which to grant the motion to dismiss with respect

to the allegations of unlawful disclosure of confidential

medical records to members of the state’s attorney’s

office.
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Harvin v. Yale New Haven Health Services Corp.

We begin our analysis by setting forth our standard

of review and other governing legal principles. In an

appeal from a court’s denial of a motion to dismiss,

‘‘[w]e review the trial court’s ultimate legal conclusion

and its resulting denial of dismissal de novo. . . . In

conducting this review, we [generally] take the facts to

be those alleged in the complaint, construing them in

a manner most favorable to the pleader. . . . We are

mindful that the doctrine of absolute immunity, also

referred to as the litigation privilege, implicates the

court’s subject matter jurisdiction . . . and that every

presumption favoring jurisdiction should be indulged.’’

(Citations omitted; internal quotation marks omitted.)

Deutsche Bank AG v. Vik, 214 Conn. App. 487, 496, 281

A.3d 12, cert. granted, 345 Conn. 964, 285 A.3d 388

(2022). Whether absolute immunity is applicable under

the facts of a particular case presents ‘‘a question of

law over which our review is plenary.’’ Simms v. Seaman, 308 Conn. 523, 530, 69 A.3d 880 (2013).

‘‘Trial courts addressing motions to dismiss for lack

of subject matter jurisdiction pursuant to [Practice

Book § 10-30] may encounter different situations,

depending on the status of the record in the case. . . .

[L]ack of subject matter jurisdiction may be found in

any one of three instances: (1) the complaint alone;

(2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution

of disputed facts. . . . When a trial court decides a

jurisdictional question raised by a pretrial motion to

dismiss on the basis of the complaint alone, it must

consider the allegations of the complaint in their most

favorable light. . . . In this regard, a court must take

the facts to be those alleged in the complaint, including

those facts necessarily implied from the allegations,

construing them in a manner most favorable to the

pleader. . . .
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Harvin v. Yale New Haven Health Services Corp.

‘‘In contrast, if the complaint is supplemented by

undisputed facts established by affidavits submitted in

support of the motion to dismiss . . . other types of

undisputed evidence . . . and/or public records of

which judicial notice may be taken . . . the trial court,

in determining the jurisdictional issue, may consider

these supplementary undisputed facts and need not

conclusively presume the validity of the allegations of

the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary

undisputed facts]. . . . If affidavits and/or other evidence submitted in support of a defendant’s motion to

dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion

with counteraffidavits . . . or other evidence, the trial

court may dismiss the action without further proceedings. . . . If, however, the defendant submits either no

proof to rebut the plaintiff’s jurisdictional allegations

. . . or only evidence that fails to call those allegations

into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint,

but may rest on the jurisdictional allegations therein.

...

‘‘Finally, where a jurisdictional determination is

dependent on the resolution of a critical factual dispute,

it cannot be decided on a motion to dismiss in the

absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court

cannot resolve the jurisdictional question without a

hearing to evaluate those merits. . . . [If] the jurisdictional facts are intertwined with the merits of the case,

the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties

complete further discovery or, if necessary, a full trial

on the merits has occurred.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Cuozzo
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Harvin v. Yale New Haven Health Services Corp.

v. Orange, 315 Conn. 606, 615–16, 109 A.3d 903 (2015);

see also Lampasona v. Jacobs, 209 Conn. 724, 728, 553

A.2d 175 (‘‘[i]n some cases . . . it is necessary to examine the facts of the case to determine whether it is

within a general class that the court has power to hear’’),

cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed.

2d 590 (1989).

‘‘Generally speaking, it often will be prudent to defer

action on a motion to dismiss raising issues that are

interrelated or inextricably intertwined with the merits

of a dispute . . . .’’ 307 White Street Realty, LLC v.

Beaver Brook Group, LLC, 216 Conn. App. 750, 770,

286 A.3d 467 (2022). Although our Supreme Court has

left to the discretion of the trial court whether to hold

an immediate evidentiary hearing or to defer ruling on

a motion to dismiss until after a full trial on the merits,

‘‘[w]hether the court properly exercises that discretion

in a given case . . . is not beyond our review.’’ Id.

‘‘Discretion means a legal discretion, to be exercised

in conformity with the spirit of the law and in a manner

to subserve and not to impede or defeat the ends of

substantial justice. . . . The salient inquiry is whether

the court could have reasonably concluded as it did.

. . . In determining whether there has been an abuse

of discretion, much depends upon the circumstances of

each case.’’ (Emphasis added; internal quotation marks

omitted.) Id.

Turning to the substance of the motion to dismiss,

‘‘Connecticut has long recognized the litigation privilege.’’ Simms v. Seaman, supra, 308 Conn. 536. The

origin of the privilege is a long-standing common-law

tradition protecting ‘‘communications uttered or published in the course of judicial proceedings . . . so

long as they are in some way pertinent to the subject

of the controversy’’ and barring the recovery of damages

on the basis of defamatory statements. (Internal quotation marks omitted.) Id., 537. As our Supreme Court has
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recognized, however, ‘‘[i]n recent decades, Connecticut

attorneys have tested the limits of the [litigation] privilege with respect to alleged misconduct other than

defamatory statements during judicial proceedings,

with mixed results.’’ Id., 540.

‘‘The purpose of affording absolute immunity to those

who provide information in connection with judicial

and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely

outweighs the risk that individuals will occasionally

abuse the privilege by making false and malicious statements. . . . Put simply, absolute immunity furthers the

public policy of encouraging participation and candor

in judicial and quasi-judicial proceedings. This objective

would be thwarted if those persons whom the commonlaw doctrine was intended to protect nevertheless faced

the threat of suit. In this regard, the purpose of the

absolute immunity afforded participants in judicial and

quasi-judicial proceedings is the same as the purpose

of the sovereign immunity enjoyed by the state. . . .

As a result, courts have recognized absolute immunity

as a defense in certain retaliatory civil actions in order

to remove this disincentive and thus encourage citizens

to come forward with complaints or to testify.’’ (Citations omitted; internal quotation marks omitted.) Rioux

v. Barry, 283 Conn. 338, 343–44, 927 A.2d 304 (2007).

As acknowledged in Dorfman v. Smith, 342 Conn.

582, 592, 271 A.3d 53 (2022), courts in this state have

‘‘recognized that absolute immunity extends to an array

of retaliatory civil actions beyond claims of defamation

. . . .’’ By way of examples, our Supreme Court has

‘‘concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statements made during a civil action.

. . . [It has] also precluded claims of intentional infliction of emotional distress arising from statements made

during judicial proceedings on the basis of absolute
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immunity. . . . Finally, [it has] . . . applied absolute

immunity to bar retaliatory claims of fraud against attorneys for their actions during litigation. . . . In

reviewing these cases, it becomes clear that, in

expanding the doctrine of absolute immunity to bar

claims beyond defamation, [our Supreme Court] has

sought to ensure that the conduct that absolute immunity is intended to protect, namely, participation and

candor in judicial proceedings, remains protected

regardless of the particular tort alleged in response

to the words used during participation in the judicial

process. Indeed . . . [c]ommentators have observed

that, because the privilege protects the communication,

the nature of the theory [on which the challenge is

based] is irrelevant.’’ (Citations omitted; internal quotation marks omitted.) Bruno v. Travelers Cos., 172 Conn.

App. 717, 726–27, 161 A.3d 630 (2017).

Our Supreme Court in Dorfman recently ‘‘identified

the following factors as relevant to any determination

of whether policy considerations support applying

absolute immunity to any particular cause of action:

(1) whether the alleged conduct subverts the underlying

purpose of a judicial proceeding in a similar way to how

conduct constituting abuse of process and vexatious

litigation subverts that underlying purpose; (2) whether

the alleged conduct is similar in essential respects to

defamatory statements, inasmuch as the privilege bars a

defamation action; and (3) whether the alleged conduct

may be adequately addressed by other available remedies. . . . Assisting in our evaluation of these factors,

to the extent applicable, we have considered as persuasive whether federal courts have protected the alleged

conduct pursuant to the litigation privilege. . . . These

factors and considerations, however, are simply instructive, and courts must focus on the issues relevant to

the competing interests in each case in light of the

particular context of the case. . . . We are not required
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to rely exclusively or entirely on these factors, but,

instead, they are useful when undertaking a careful

balancing of all competing public policies implicated

by the specific claim at issue and determining whether

affording parties this common-law immunity from this

common-law action is warranted.’’ (Citations omitted;

footnotes omitted; internal quotation marks omitted.)

Dorfman v. Smith, supra, 342 Conn. 592–94. With these

principles in mind, we turn to the claims on appeal.

I

We begin with a brief discussion of what is no longer

at issue in the present case. As previously indicated,

the plaintiff’s attorney conceded at oral argument

before this court that the litigation privilege applies

with respect to those allegations in the complaint that

the defendant may be found liable on the basis of the

testimony provided by its agents at the plaintiff’s criminal trial. Although we generally are not bound by the

concessions of the parties regarding matters implicating

subject matter jurisdiction, we nonetheless view the

concession of the plaintiff’s attorney at oral argument

before this court as having effectively waived or abandoned any and all arguments that the litigation privilege

does not bar the plaintiff’s action with respect to the

witnesses’ testimony.

Our Supreme Court consistently has held that ‘‘communications made during and relevant to a judicial proceeding are afforded immunity because [w]itnesses and

parties to judicial proceedings must be permitted to

speak freely, without subjecting their statements and

intentions to later scrutiny by an indignant jury, if the

judicial process is to function.’’ (Internal quotation

marks omitted.) Id., 601. As the trial court acknowledged in its decision, there is no doubt that the testimony provided by Arre and Ferguson at the plaintiff’s
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criminal trial ordinarily would be subject to the litigation privilege so long as their testimonies were sufficiently relevant to the issues involved in the plaintiff’s

criminal trial. The plaintiff, by conceding before this

court that the litigation privilege applies with respect

to the witnesses’ testimony, effectively acknowledges

that any disclosures by the witnesses of the plaintiff’s

health information were relevant to the criminal prosecution. The witnesses clearly fall within the class of

persons that the litigation privilege is intended to protect from retaliatory lawsuits. Our review of the witnesses’ testimony demonstrates there is nothing on

which to conclude that their testimony would fall outside our Supreme Court’s broad application of the litigation privilege to witness testimony.

Accordingly, in exercising de novo review over the

motion to dismiss, we conclude that the motion to dismiss should be granted with respect to all remaining

counts of the complaint to the extent that they are

premised on the disclosure of the plaintiff’s health information by the defendant’s agents during their testimony

at his criminal trial. See Paragon Construction Co. v.

Dept. of Public Works, 130 Conn. App. 211, 221 n.10, 23

A.3d 732 (2011) (appellate courts may order dismissal

of only portions of counts of complaint). We therefore

reverse that portion of the trial court’s judgment denying the defendant’s motion to dismiss.

II

We now turn to the remainder of the defendant’s

claim, namely, that, to the extent the plaintiff’s negligence per se and negligent infliction of emotional distress counts are founded on allegations that the defendant unlawfully disclosed confidential health records

to the state’s attorney’s office, the court improperly

denied the motion to dismiss on the ground that it
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lacked a sufficient evidentiary basis to determine if the

litigation privilege applied. We are not persuaded.

Unlike with statements made by witnesses during

testimony, our jurisprudence regarding the application

of the litigation privilege in the context of the disclosure

of documents is not as well developed. Nevertheless,

our Supreme Court has stated that ‘‘[t]he privilege

extends to pleadings and other papers made a part of

a judicial or quasi-judicial proceeding, as long as the

statements relate sufficiently to issues involved in a

proposed or ongoing judicial proceeding . . . with the

test for relevancy described as generous . . . . This is

true even if the communications are false, extreme,

outrageous, or malicious.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Dorfman v.

Smith, supra, 342 Conn. 601–602. Moreover, in Bruno

v. Travelers Cos., supra, 172 Conn. App. 727, 729, this

court concluded that the defendants, who had produced

documents and provided testimony specifically in

response to a duly issued subpoena, were protected by

the doctrine of absolute immunity as applied to the

litigation privilege. In reaching that conclusion, the

court noted that ‘‘the defendants are not alleged to have

acted outside of the subpoena or to have done anything

more than answer questions and produce documents

that were asked or requested of them during the hearing.’’ Id., 727.

The plaintiff nonetheless argues that the litigation

privilege should not be applied by courts in lawsuits

alleging the unlawful disclosure of confidential medical

records because its application would somehow contravene our Supreme Court’s decision in Byrne v. Avery

Center for Obstetrics & Gynecology, P.C., supra, 327

Conn. 550–51, in which the court recognized that Connecticut’s common law included a cause of action

against medical providers for the unlawful disclosure
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of medical information. We are not convinced that anything in the Byrne decision precludes application of

the litigation privilege in the present case, most certainly not in the blanket manner suggested by the plaintiff.

In Byrne, the plaintiff had initiated a civil action

against the defendant health care provider asserting

various causes of action, including counts sounding in

negligence and negligent infliction of emotional distress. Id., 543–44. The plaintiff alleged that the defendant had breached her right to confidentiality in certain

protected health information by disclosing the information in response to a subpoena without her consent.

Id., 542–43. The trial court granted summary judgment

in favor of the defendant on the negligence and negligent infliction of emotional distress counts, determining

that ‘‘no courts in Connecticut, to date, recognized or

adopted a common-law privilege for communications

between a patient and physicians.’’ (Internal quotation

marks omitted.) Id., 548. The plaintiff appealed. Id., 549.

After transferring the appeal to its docket; id., 541 n.2;

our Supreme Court recognized a common-law cause of

action for breach of the duty of confidentiality in the

physician-patient relationship by the disclosure of medical information, unless the disclosure was otherwise

allowed by law. Id., 572–73. It reversed the trial court’s

summary judgment, agreeing with the plaintiff that the

defendant health care provider owed the plaintiff a common-law duty of confidentiality and that a commonlaw action was not barred or preempted by General

Statutes § 52-146o or the Health Insurance Portability

and Accountability Act of 1996, 42 U.S.C. § 1320d et

seq., and its implementing regulations. Id., 542, 550. The

issue of immunity from suit under the litigation privilege

was not presented to, considered by, or addressed by

our Supreme Court in Byrne. Consequently, we agree
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with the defendant that the plaintiff’s reliance on Byrne

is entirely misplaced.

The defendant, in its most recent motion to dismiss,

seeks to use the litigation privilege to bar the present

action premised on the negligent disclosure of confidential medical information. It has, however, failed to present the court with evidentiary support for its varying

arguments as to why this matter should not proceed to

trial. Unlike in Bruno, in which there was no indication

that the defendants had done anything other than comply with a valid subpoena issued as part of judicial

proceedings; see Bruno v. Travelers Cos., supra, 172

Conn. App. 727–28; here, the allegations of the complaint, read broadly and in the light most favorable to

the plaintiff, indicate that the defendant could have

potentially disclosed confidential information in excess

of that required under the subpoena. The burden certainly will be on the plaintiff at trial to produce evidence

in support of such an allegation. The defendant, simply

by virtue of evidence demonstrating that it produced

sealed medical records in compliance with the subpoena and accompanying court order, does not, however, negate the possibility that the defendant also disclosed other records to the state’s attorney.

As the plaintiff notes in his appellate brief, despite

six years of litigation, the defendant has not filed an

answer to the complaint admitting or denying his allegations, which, in the context of a motion to dismiss, we

must accept as true. Furthermore, there has never been

an evidentiary hearing in this matter. We, like the trial

court, cannot, on the basis of the scant factual record

developed thus far, conclude that the plaintiff’s claims

should be barred by absolute immunity under the litigation privilege. Accordingly, we reject the defendant’s

claim that the court improperly denied its motion to

dismiss on the basis of evidentiary insufficiency.
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Although the policy considerations that underlie the

litigation privilege could, under the right circumstances,

support its application to lawsuits alleging the unlawful

disclosure of confidential medical information, including by the production of documents in response to a

subpoena duces tecum and court order, we leave that

issue to be decided in the first instance by the trial

court in this matter on a more complete record and in

accordance with the guidance provided by our Supreme

Court in Dorfman v. Smith, supra, 342 Conn. 592–94.

Finally, although we conclude that a determination

regarding the applicability of the litigation privilege can

be made only after developing the necessary record,

including precisely what documents and information

were disclosed, what evidence the plaintiff has that the

defendant exceeded its obligations under the subpeona,

and how, to whom and when documents were disclosed, we are not persuaded that the court abused its

discretion by not conducting, sua sponte, an evidentiary

hearing to resolve these factual issues. Whether the

litigation privilege applies in the present case largely

turns on whether the defendant disclosed records that

were not covered by the subpoena and court orders,

which is an issue that is clearly intertwined with the

merits of the action. See Conboy v. State, 292 Conn.

642, 653–54, 974 A.2d 669 (2009). Furthermore, the

defendant never requested an evidentiary hearing,

despite the court having indicated, when it denied the

defendant’s summary judgment motion, that issues of

material fact existed regarding the facts surrounding

the disclosure of documents in this matter. It was well

within the discretion of the court not to resolve a jurisdictional issue by ordering an evidentiary hearing but

to leave the matter for resolution following additional

discovery or a trial on the merits. See id. The defendant

is not precluded from renewing its claim—either at trial

or in a renewed motion to dismiss based on a more
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fulsome record—that liability, if it exists on these facts,

should be barred by the litigation privilege.10

The judgment is reversed with respect to the two

remaining counts to the extent that they are premised

on the testimony given by the defendant’s agents at the

plaintiff’s criminal trial and the case is remanded with

direction to grant the motion to dismiss in part; the

judgment is affirmed in all other respects without prejudice to the defendant renewing its claim regarding the

applicability of the litigation privilege.

In this opinion the other judges concurred.

10 We are cognizant that, at this stage of the proceedings, the defendant

effectively has lost its right to protection against suit. The applicability of

the litigation privilege, however, was raised late in these proceedings, the

defendant failed to provide the court with an adequate record for review

of its claims, and it did not request an evidentiary hearing prior to the court

ruling on the motion to dismiss. The trial court, however, may yet conclude

that the privilege is applicable and thus provide relief by barring liability

against the defendant.