Harvin v. Yale New Haven Health Services Corp.

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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 connec-
tion 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 crimi-
nal 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 argu-
ment 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 prose-
cution; moreover, this court viewed that concession as effectively waiv-
ing 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 accom-
panying 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 defen-
dants’ 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 judg-
ment thereon; subsequently, the court, Connors, J.,
denied the motion to dismiss filed by the defendant
Lawrence + Memorial Hospital, and the defendant Law-
rence + 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 defen-
dant unlawfully provided certain unspecified confiden-
tial 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 jurisdic-
tion on the theory that the defendant is entitled to
absolute immunity from suit under the litigation privi-
lege 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 improp-
erly 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 defen-
dant’s agents at the plaintiff’s criminal trial. We dis-
agree, however, that the defendant demonstrated on
this record that it is entitled to litigation privilege with
respect to the allegations of unlawful disclosure of con-
fidential 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 testi-
mony 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 pres-
ent 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 con-
victed 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 com-
plaint supplemented by undisputed facts plus the court’s resolution of dis-
puted 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 Har-
vin, 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] § 53a-
167a; 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, execu-
tion suspended after fourteen and one-half years, fol-
lowed by five years of probation with special condi-
tions. 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 treat-
ment 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 Bow-
man and defense counsel. During the subsequent crimi-
nal 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 plain-
tiff’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 Hart-
ford, Docket No. CV-XX-XXXXXXX-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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complaint was filed on December 15, 2017, and con-
tained 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 infor-
mation 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 negli-
gence 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 rele-
vant 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 prosecu-
tor, no direct evidentiary nexus is offered by the [defen-
dant] between those records ‘just picked up’ by the
prosecutor and the records subpoenaed. . . . As an
example of the lack of evidentiary proof for the defen-
dant[’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 hav-
ing carefully reviewed the defendant[’s] Exhibit C, the
court is unable to find any reference to what was deliv-
ered, 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 propri-
ety 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 docu-
ments 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 proceed-
ing enjoy absolute immunity under the litigation privi-
lege. 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 convic-
tion 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 medi-
cal 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 inapplica-
ble 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 medi-
cal 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 dis-
miss.
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] testi-
mony 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 eviden-
tiary 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 eviden-
tiary basis on which to determine if the litigation privi-
lege 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. Sea-
man, 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 supple-
mented 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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‘‘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 tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . 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 count-
eraffidavits 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 jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . [If] the jurisdic-
tional facts are intertwined with the merits of the case,
the court may in its discretion choose to postpone reso-
lution of the jurisdictional question until the parties
complete further discovery or, if necessary, a full trial
on the merits has occurred.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Cuozzo
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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 exam-
ine 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 privi-
lege.’’ Simms v. Seaman, supra, 308 Conn. 536. The
origin of the privilege is a long-standing common-law
tradition protecting ‘‘communications uttered or pub-
lished 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 quota-
tion 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] privi-
lege 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 situa-
tions the public interest in having people speak freely
outweighs the risk that individuals will occasionally
abuse the privilege by making false and malicious state-
ments. . . . 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 common-
law 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.’’ (Cita-
tions 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 inten-
tional interference with contractual or beneficial rela-
tions arising from statements made during a civil action.
. . . [It has] also precluded claims of intentional inflic-
tion 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 attor-
neys 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 immu-
nity 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 quota-
tion 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 reme-
dies. . . . Assisting in our evaluation of these factors,
to the extent applicable, we have considered as persua-
sive whether federal courts have protected the alleged
conduct pursuant to the litigation privilege. . . . These
factors and considerations, however, are simply instruc-
tive, 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 crimi-
nal 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 aban-
doned 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 ‘‘com-
munications made during and relevant to a judicial pro-
ceeding 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 acknowl-
edged in its decision, there is no doubt that the testi-
mony provided by Arre and Ferguson at the plaintiff’s
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criminal trial ordinarily would be subject to the litiga-
tion privilege so long as their testimonies were suffi-
ciently 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 prose-
cution. The witnesses clearly fall within the class of
persons that the litigation privilege is intended to pro-
tect from retaliatory lawsuits. Our review of the wit-
nesses’ testimony demonstrates there is nothing on
which to conclude that their testimony would fall out-
side our Supreme Court’s broad application of the litiga-
tion privilege to witness testimony.
Accordingly, in exercising de novo review over the
motion to dismiss, we conclude that the motion to dis-
miss 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 infor-
mation 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 deny-
ing 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 negli-
gence per se and negligent infliction of emotional dis-
tress counts are founded on allegations that the defen-
dant 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 hear-
ing.’’ 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 contra-
vene 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 Con-
necticut’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 any-
thing in the Byrne decision precludes application of
the litigation privilege in the present case, most cer-
tainly not in the blanket manner suggested by the plain-
tiff.

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 dis-
tress. Id., 543–44. The plaintiff alleged that the defen-
dant had breached her right to confidentiality in certain
protected health information by disclosing the informa-
tion 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 negli-
gent 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 medi-
cal 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 com-
mon-law duty of confidentiality and that a common-
law 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 confiden-
tial medical information. It has, however, failed to pres-
ent 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 com-
ply 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 com-
plaint, 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 cer-
tainly 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 sub-
poena and accompanying court order, does not, how-
ever, negate the possibility that the defendant also dis-
closed 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 allega-
tions, 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 litiga-
tion 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, includ-
ing 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 dis-
closed, 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 juris-
dictional 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 preju-
dice 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.