author: Peters, C. J. Shea, J.,

text:
    Randy Picketts, Executor (Estate of Linda Ann Picketts), et al. v. International Playtex, Inc., et al.
    (13839)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued April 3
    decision released June 26, 1990

      Michael P. Koskoff with whom was Rosalind J. Koskoff, for the appellants (plaintiffs).

      Stephen D. Chakwin, Jr., with whom were J. Paul Johnson, Sharon A. Fitzgerald and, on the brief,
      W. Patrick Ryan, Holly K. Dustin and William H. Robinson, for the appellees (defendants).
   Peters, C. J.

The sole issue in this appeal is whether the trial court abused its discretion in granting a motion to dismiss on the ground of forum non conveniens. On March 12,1985, Linda Ann Picketts, a thirty-three year old mother of two children, died in British Columbia, Canada of toxic shock syndrome allegedly caused by a defectively designed “super absorbent” Playtex tampon. The plaintiffs, Randy Picketts, individually and in his capacities as both the executor of his wife’s estate and as the next friend of the decedent’s minor children, Leanne and Dean Picketts, all Canadian citizens, subsequently brought an action in Connecticut based on strict liability, negligence and breach of implied warranties against three Playtex companies. The defendants are International Playtex, Inc., a now liquidated Delaware corporation that had its principal place of business in Stamford, Connecticut, Playtex Family Products Corporation, a Delaware corporation with its principal place of business in Stamford, Connecticut, that had assumed the tampon portion of International Playtex, Inc., upon its liquidation, and Playtex, Ltd., a Canadian corporation with its principal place of business in Maltón, Ontario, Canada, that had been a wholly owned subsidiary of International Playtex, Inc., and is presently a wholly owned subsidiary of Playtex Family Products Corporation. The defendants moved to dismiss the complaint on the ground that, despite their corporate presence in this state, which conferred territorial jurisdiction over them here, Connecticut was not a proper forum for the action. The trial court, after a hearing, overruled the plaintiffs’ objections and granted the motion to dismiss the action in its entirety. We transferred to this court, pursuant to Practice Book § 4023, the plaintiffs’ appeal from the forum non conveniens dismissal and now reverse the judgment of the trial court.

The relevant facts may be derived from the plaintiffs’ complaint, the limited discovery conducted subsequent to the motion to dismiss and the affidavits and medical reports filed by the parties to support their evidentiary contentions. The decedent, just prior to her death, had purchased and used Playtex super absorbent tampons in British Columbia, Canada. After experiencing symptoms of persistent vomiting and diarrhea that had progressively worsened over the course of a few days, the decedent was taken by ambulance to Penticton Regional Hospital, in British Columbia. During the trip, she stopped breathing and lost her pulse, at which time the ambulance attendants immediately began cardiopulmonary resuscitation. Upon her arrival at the hospital, emergency room personnel vigorously continued resuscitation efforts until the decedent was pronounced dead approximately two hours later.

Although one of the decedent’s attending physicians theorized in the patient progress notes that “the most likely explanation for the patient’s death [was] asphyxiation, secondary to aspiration of vomitus” that may have been preceded by “[c]ardiac arrhythmia secondary to hyperkalemia,” the autopsy revealed findings consistent with previously reported cases of toxic shock syndrome. On the basis of these autopsy results, the coroner concluded in his judgment of inquiry into the death of Linda Ann Picketts that she had died as a result of toxic shock syndrome. The coroner further indicated that “[t]he source of the fatal infection [was] thought to be the tampon” removed from her body at the autopsy.

Playtex, Ltd., manufactured the super absorbent tampon implicated in the decedent’s death at its facilities in Arnprior, Ontario, and coordinated that tampon’s national distribution in Canada from its marketing headquarters in Malton, Ontario. In Canada, such marketing and distribution fall within the regulatory authority of the Health Protection Branch of the Department of National Health and Welfare, the Canadian analogue to the United States Food and Drug Administration. Significantly, however, the product specifications for the tampons manufactured and distributed in Canada by Playtex, Ltd., originated in the research and development department of International Playtex, Inc., in Paramus, New Jersey. Moreover, the product information disseminated by International Playtex, Inc., included the preparation of consumer warnings and instructions. Although Playtex, Ltd., had modified the tampon design slightly to adapt to Canadian marketing and production needs, it had undertaken such modification only subsequent to direct approval from International Playtex, Inc., Accordingly, International Playtex, Inc., and its successor, Playtex Family Products Corporation, established the standards for both the Canadian and American versions of the Playtex super absorbent tampon.

Despite the different sources of the raw materials used in the Canadian and American versions, and the utilization of discrete machinery to conform to varying specifications as to size and weight, the super absorbent tampons manufactured and marketed by Playtex, Ltd., in Canada were essentially similar to those manufactured by International Playtex, Inc., for United States distribution. The design specifications of the tampon used by the decedent, like its American counterpart, included polyacrylate, a highly absorbent fiber that may have served as the breeding ground for the lethal bacteria that had allegedly developed in the decedent into toxic shock syndrome. In March, 1985, Playtex, Ltd., at the direction of International Playtex, Inc., removed polyacrylate from the fiber composition of its super absorbent tampons. Approximately two weeks after the death of the decedent, Playtex, Ltd., also implemented the product exchange program mandated by the March 29, 1985 decision of International Playtex, Inc., voluntarily to withdraw all Playtex tampons containing polyacrylate from the marketplace.* **

Although International Playtex, Inc., and its successor, Playtex Family Products Corporation, had chosen Stamford as the most convenient place from which to conduct their worldwide enterprises, the defendants nonetheless asserted that Connecticut was an inconvenient forum in which to defend this action brought by Canadian citizens alleging defective design of a product regulated by the Canadian government and manufactured and distributed by their wholly owned Canadian subsidiary, Playtex, Ltd. The defendants made a twofold argument in reliance on the objective of the doctrine of forum non conveniens that litigation of an action should go forward in the most convenient and logical place. They noted, first, that, since neither the decedent nor her family had even visited Connecticut, the mere presence of the Playtex corporate headquarters in Connecticut did not render this forum convenient. The defendants then asserted that, in light of their waiver of any jurisdictional claims that might otherwise be available to them in Canada, a trial located in British Columbia, Canada, would furnish an appropriate alternative forum for the plaintiffs’ cause of action.

In advancing these claims, the defendants acknowledged that the Canadian forum might be less favorable than a Connecticut forum for the plaintiffs’ pursuit of their cause of action. The defendants urged the trial court, however, to concentrate its attention upon the “constellations of hardships” that would befall the defendants should they have to defend the action in Connecticut. In particular, the defendants highlighted the difficulties they would allegedly encounter in mounting an affirmative defense, given that all sources of proof with respect to the decedent’s medical condition and care were beyond the compulsory process of a Connecticut court.

The trial court undertook to weigh the competing private and public interest factors in accordance with the methodology suggested by Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), which this court recently characterized as a useful frame of reference for the law of Connecticut. Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989). The court first determined the availability of British Columbia as an alternate forum. In doing so, the trial court rejected the plaintiffs’ contentions that the procedural limitations on discovery, the denial of a jury trial and the substantive limits on recovery in cases of this nature rendered British Columbia an inadequate alternative. Thereafter, the court undertook to balance the relevant private and public interest factors to select the more appropriate forum.

In balancing the private interest factors, the trial court determined that the location of documentary evidence and the accessibility, in either forum, of those witnesses associated with product development were in equipoise, but that the defendants would be significantly disadvantaged with regard to the accessibility of testimony concerning the decedent’s medical condition and care were the case to be tried in Connecticut. On this basis, the court found that exceptional circumstances warranted dismissal for forum non conveniens.

Although this determination concerning the balance of the private interest factors would alone have warranted granting the defendants’ motion to dismiss, the trial court proceeded as well to consider the public interest factors that might be at stake. The court emphasized that, because Canada regulates tampons as medical devices, Canada, as the locus of injury and the home forum of the plaintiffs, had a particularly strong interest in this product liability litigation. Moreover, unpersuaded by the plaintiffs’ contention that Connecticut has a strong interest in deterring a native corporation from distributing a dangerously defective product into the stream of international commerce, the court further opined that, “[e]ven if it is assumed [that] the production and marketing decisions were made in Connecticut, which the parties dispute, Connecticut would still have a minimal interest . . . and should not impose its own view of the safety, warning, and duty of care required of medical devices upon a Canadian province.” Finally, the trial court noted that, given Connecticut’s “minimal interest” in this product liability litigation, choice of law principles favored the alternative forum because Canadian law should govern this litigation.

The trial court, apparently in recognition of the weight ordinarily to be accorded to the plaintiffs choice of forum, attached four conditions to its grant of the defendants’ motion to dismiss. These conditions had previously been accepted by the defendants in a stipulation they had tendered in advance of the court’s ruling. Given the possibility of jurisdictional disputes in the alternative forum as evidenced by the affidavits of the two Canadian legal experts, the court required the defendants to submit to the jurisdiction of the Canadian court and to waive any statute of limitations defense not available at the time this lawsuit was filed in Connecticut. The court also required the defendants to consent to satisfy any judgment rendered against them in Canada. Furthermore, to alleviate any procedural deficiencies because the Canadian forum lacked compulsory process over foreign citizens, the trial court additionally ordered Playtex Family Products Corporation to make its employees available to testify in Canada.*

I

Appellate review of the trial court’s determination that Connecticut was an inconvenient forum for this product liability litigation must proceed from established principles of law. “As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide ‘where trial will best serve the convenience of the parties and the ends of justice.’ Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 67 S. Ct. 828, 91 L. Ed. 1067 (1947); Brown v. Brown, [195 Conn. 98, 108-109 and n.17, 486 A.2d 1116 (1985)].” Union Carbide Corporation v. Aetna Casualty & Surety Co., supra, 319. In our application of the abuse of discretion standard, we must accept the proposition'that “simply to disagree with the [trial] court as if the facts had been presented to this court in the first instance cannot be the basis of our decision.” Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 341 (8th Cir. 1983), cert. denied, 464 U.S. 1042, 104 S. Ct. 708, 79 L. Ed. 2d 172 (1984); Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 670 (9th Cir. 1975). Meaningful review, even from this circumscribed perspective, nonetheless encompasses a determination whether the trial court abused its discretion as to either the facts or the law. Irish National Ins. Co. v. Aer Lingus Teoranta, 739 F.2d 90, 92 (2d Cir. 1984).

Emphasis on the trial court’s discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. ” (Emphasis added.) Gulf Oil Corporation v. Gilbert, supra, 508; Manu Inter national, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981). Although it would be inappropriate to invoke “rigid rule to govern discretion”; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981); it bears emphasis that invocation of the doctrine of forum non conveniens is a “ ‘drastic remedy’ ”; Hemmelgarn v. Boeing Co., 106 Cal. App. 3d 576, 580, 165 Cal. Rptr. 190 (1980); which the trial court must approach with caution and restraint. The trial court does “not have unchecked discretion to dismiss cases from a plaintiff’s chosen forum simply because another forum, in the court’s view, may be superior to that chosen by the plaintiff.” Pain v. United Technologies Corporation, 637 F.2d 775, 783 (D.C. Cir. 1980), cert. denied, 454 U.S. 1128, 102 S. Ct. 980, 71 L. Ed. 2d 116 (1981). Although a trial court “applying the doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other”; id., 784; it cannot exercise its discretion in order to level the playing field between the parties. The plaintiff’s choice of forum, which may well have been chosen precisely because it provides the plaintiff with certain procedural or substantive advantages, “ ‘should be respected unless equity weighs strongly in favor of the defendant.’ ” Corrigan v. Bjork Shiley Corporation, 182 Cal. App. 3d 166, 176, 227 Cal. Rptr. 247 (1986); see Manu International S.A. v. Avon Products, Inc., supra, 65.

“[T]he overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the plaintiff’s chosen forum. The question to be answered is whether [the] plaintiffs chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved.” Carlenstolpe v. Merck & Co., 638 F. Sup. 901, 909 (S.D.N.Y. 1986), appeal dismissed, 819 F.2d 33 (2d Cir. 1987). Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the plaintiffs side of the scale, as a representation of the strong presumption in favor of the plaintiffs chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion.

When, as in the present action, the plaintiffs are foreign to their chosen forum, the trial court must readjust the downward pressure of its thumb, but not remove it altogether from the plaintiffs’ side of the scale. Even though the plaintiffs’ preference has a diminished impact because the plaintiffs are themselves strangers to their chosen forum; Piper Aircraft Co. v. Reyno, supra, 256; Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum; see Carlenstolpe v. Merck & Co., supra, 904; especially in the “somewhat unusual [situation where] it is the forum resident who seeks dismissal.” Schertenleib v. Traum, 589 F.2d 1156, 1164 (2d Cir. 1978); Manu International, S.A. v. Avon Products, Inc., supra, 67. Where a corporation is actually carrying on business in the state and the plaintiffs make an offer of proof concerning the defendant’s in-state activities which supports the allegations that the tortious conduct occurred in the state, the corporate connection with the state is more than tenuous, and weighs against dismissal. See Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 686, 688-89 (Tex. 1990) (Doggett, J., concurring). While the weight to be given to the choice of a domestic forum by foreign plaintiffs is diminished, their entitlement to a preference does not disappear entirely. The defendants challenging the propriety of this choice continue to bear “the burden to demonstrate why the presumption in favor of [the] plaintiffs’] choice, weakened though it may be, should be disturbed.” Carlenstolpe v. Merck & Co., supra; Ayers v. Arabian American Oil Co., 571 F. Sup. 707, 709 (S.D.N.Y. 1983); see also Kontoulas v. A.H. Robins Co., 745 F.2d 312, 315-16 (4th Cir. 1984); Manu International, S.A. v. Avon Products, Inc., supra, 66; cf. Friends For All Children, Inc. v. Lockheed Aircraft Corporation, 717 F.2d 602, 605 n.5 (D.C. Cir. 1983).

Continued deference, even in the case of foreign plaintiffs, to the presumption to be afforded a plaintiffs choice of forum, furthermore, is entirely consistent with our reasoning in Union Carbide Corporation v. Aetna Casualty & Surety Co., supra, 318. We there upheld a trial court’s determination that, despite the corporate presence of the plaintiff in this state, Connecticut was an inconvenient forum for a declaratory judgment action that involved toxic waste disposal activities at various sites throughout the country and in the Commonwealth of Puerto Rico. In Union Carbide Corporation, the plaintiff’s withdrawal of its appeal had obvious significance for our review of the substantive merits of the remaining appellants’ claim of abuse of discretion. Id. When a plaintiff no longer voices a preference for the chosen forum, the presumption in favor of the plaintiff’s choice has effectively eroded. Because, in Union Carbide Corporation, the plaintiff had chosen to level the playing field, our review of the trial court’s exercise of its judicial discretion shifted in its focus, from an inquiry into whether the defendants there had sustained the heavy burden of persuasion that the plaintiff’s choice of forum was inconvenient, to a more evenhanded inquiry into which alternative jurisdiction would furnish the more appropriate forum. Unlike Union Carbide Corporation, the selection of the more appropriate forum is not the proper inquiry in this case.

II

The plaintiffs, as a threshold matter, contend on appeal that the trial court should not have found that British Columbia provided an adequate alternative forum for the litigation of their action. In challenging the trial court’s finding, the plaintiffs rely on the concept of the “clearly unsatisfactory” forum as set forth in Piper Aircraft Co. v. Reyno, supra, 254 n.22. The plaintiffs first take exception, given the difficulty in obtaining a sizeable recovery under the substantive law of British Columbia, to the trial court’s determination that “[t]he potential award in British Columbia is not so paltry that no remedy exists.” They also contend that, because the procedural limitations on discovery in British Columbia are of such magnitude as to eliminate the likelihood that the case will be tried, this court should entertain the novel proposition that differences in procedural law should be factored into the threshold inquiry of the adequacy of the alternative forum. For independent reasons, however, we do not reach this twofold question of whether British Columbia provided an adequate alternative forum.

A

The plaintiffs first urge us to consider the monetary ceilings on any recovery they might obtain under the law of British Columbia as evidence of the legal inadequacy of that forum. Other courts have held that an alternative forum may be found, as a matter of law, to be inadequate when “the invocation of the doctrine [of forum non conveniens] will send the case to a jurisdiction which has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will be tried”; Irish National Ins. Co. v. Aer Lingus Teoranta, supra, 91; Piper Aircraft Co. v. Reyno, supra; see Dow Chemical Co. v. Castro Alfaro, supra, 680, 682-83 (Doggett, J., concurring). We need not address that question here, however, because the choice of law problem may continue to be a viable issue regardless of the choice of forum. Whether this case is tried in Connecticut or in British Columbia, choice of law principles may well require the application of Canadian substantive law imposing monetary ceilings on recovery in products liability cases. We do not resolve that issue now. We hold only that, because any recovery by the plaintiffs in this forum may be limited to that amount permitted under the law of British Columbia, there is no occasion for us to consider in this instance whether such limited recovery precludes a forum non conveniens dismissal.

B

Federal authorities generally limit the threshold inquiry of the adequacy of the alternate forum to those rare instances where the differences in substantive law are so severe that the inadequate remedy provided by the alternative forum effectively precludes any remedy at all. The plaintiffs urge us, however, to expand the relevant inquiry to include as well significant differences in procedural law. The plaintiffs concede that the law of British Columbia recognizes product liability actions based in both tort and contract. They contend, nonetheless, that when the theory of liability is based on a design defect as in this instance, the procedural law of British Columbia, for all practical purposes, deprives them of a remedy.

The plaintiffs contend that such procedural restrictions as are found in British Columbia, given the complexities of a product liability action based on design defect, effectively preclude a meaningful opportunity to prove their case. In light of the defendants’ disclosure in response to an interrogatory that “the number of individuals involved in the design of Playtex Super Plus tampons is large,” the plaintiffs express particular concern with the rule of the court of British Columbia that only one representative of a corporate party may, as a matter of right, be examined for discovery. Given the restrictive nature of Canadian procedural law, the plaintiffs argue that any inquiry into the adequacy of British Columbia as an alternative forum must necessarily take on a “Kafkaesque quality—everyone knows that no witnesses will ever be called to testify.” Irish National Ins. Co. v. Aer Lingus Teoranta, supra, 91; see Dow Chemical Co. v. Castro Alfaro, supra, 680, 682-83 (Doggett, J., concurring).

Because the burden of production and persuasion in their products liability case necessarily rests with them, the plaintiffs maintain that it is only fitting that they be afforded the substantive benefits of our procedural rules. In support of their proposition that the implied distinction drawn by the United States Supreme Court in Piper Aircraft Co. v. Reyno, supra, 254 n.22, between substantive and procedural law elevates form over substance, the plaintiffs proffer as instructive the developments by lower federal courts that give consideration “to procedural differences which do in fact correlate to material inconveniences.” (Emphasis added.) Rudetsky v. O'Dowd, 660 F. Sup. 341, 346 (E.D.N.Y. 1987). The plaintiffs assert that lower federal courts have, in fact, expanded the scope of consideration, in weighing the balance of private and public interests, to give consideration “to the realities of the plaintiffs position, financial and otherwise, and his or her ability as a practical matter to bring suit in the alternative forum.” Lehman v. Humphrey Cayman, Ltd., supra, 346; see Irish National Ins. Co. v. Aer Lingus Teoranta, supra, 91; Manu International, S.A. v. Avon Products, Inc., supra, 67; Rudetsky v. O'Dowd, supra; Hodson v. A.H. Robins Co., 528 F. Sup. 809, 818 (E.D. Va. 1981), aff'd, 715 F.2d 142 (4th Cir. 1983).

We agree that the rules of discovery, by facilitating an intensive search for the truth through accuracy and fairness, provide procedural mechanisms designed to make a “trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); see Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984); K. Sinclair, Federal Civil Practice (2d Ed.) §§ 9.03 through 9.10. Moreover, a liberal interpretation of discovery rules is particularly desirable in products liability cases; Hudock v. Gra-Rock Gingerale Co., 32 Conn. Sup. 94, 96, 340 A.2d 193 (1975); because of the complex nature of the considerable proof required in order successfully to maintain this type of action.

We need not, however, resolve in this instance whether differences in procedural law should, like differences in the substantive law, be factored into the threshold inquiry of the adequacy of the alternative forum. Even if we assume that the trial court correctly determined that British Columbia was an adequate alternate forum, as a threshold matter, the court’s judgment of dismissal can only be sustained if it properly balanced the advantages offered by the two alternatives. We turn to that question now.

Ill

The principal ground for the plaintiffs’ claim of abuse of discretion in this case is their assertion that the trial court lacked a firm evidentiary basis for its conclusion that the balance of private interest factors shifted sufficiently in favor of the defendants to warrant a forum non conveniens dismissal. Underlying this claim of evidentiary insufficiency lies the plaintiffs’ allegation that the trial court, in emphasizing the hardship to the defendants that might ensue from a trial in Connecticut, improperly sought to level the playing field between the parties, instead of giving due weight to the plaintiffs’ choice of forum. The plaintiffs maintain that the trial court, in balancing the comparative advantages of each of the alternative fora, wrongly shifted the burden of persuasion onto the plaintiffs. We agree with the plaintiffs’ contentions.

A

The trial court granted the defendants’ motion to dismiss in large measure because it accepted their contention that a Connecticut forum would seriously inconvenience their access to the damage evidence, particularly to the testimony concerning the decedent’s medical condition and care, all of which evidence is located in British Columbia. The defendants, however, bore the burden of persuasion that the chosen forum is inconvenient to potential witnesses for the defense. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d Cir. 1988). When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required. Piper Aircraft Co. v. Reyno, supra, 259 and n.27. “Rather, the defendants] must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal.” Mowrey v. Johnson & Johnson, 524 F. Sup. 771, 775 (W.D. Pa. 1981). “A party seeking to transfer a case ... for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. Jenkins v. Wilson Freight Forwarding Co., 104 F. Supp. 422, 424 (S.D.N.Y. 1952). The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. National Super Spuds v. New York Mercantile Exchange, 425 F. Supp. 665, 668 (S.D.N.Y. 1977). Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material.” Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147, 167 (Van Graafeiland, J., dissenting), rev’d on rehearing, 169 (2d Cir. 1981). The mere assertion that such evidence is irretrievably located in Canada is, therefore, not adequate to tip the scales in the defendants’ favor on a motion to dismiss for forum non conveniens. See Carlenstolpe v. Merck & Co., supra, 907.

The evidentiary submission in support of the defendants’ contention was limited, in this case, to one affidavit from a physician who was unable, after review of the available medical documents, conclusively to determine whether toxic shock syndrome was the cause of the decedent’s death. With respect to the medical personnel who actually attended the decedent, the defendants submitted no affidavits whatsoever regarding their unavailability despite the defendants’ assertion that these medical witnesses could offer evidence material to the presentation of a defense concerning the decedent’s medical condition and the quality of care. The defendants relied instead on their dissatisfaction with affidavits of availability, voluntarily submitted by the plaintiffs, from two of the decedent’s treating physicians and the pathologist who conducted her autopsy.

The trial court, instead of drawing an adverse inference from the defendants ’ failure to provide the requisite affidavits supporting their claim of hardship generated by the lack of compulsory process for foreign witnesses in Connecticut, impermissibly penalized the plaintiffs for failing to provide affidavits from other treating physicians as well as other medical personnel who attended the decedent at the time of her death. That conclusion stands the applicable burden of proof on its head and totally removes from the balancing process the preference to which the plaintiffs’ choice of forum is entitled. The defendants cannot meet their own evidentiary burden by pointing to alleged deficiences in affidavits that the plaintiffs had no obligation to provide.

The trial court therefore lacked the proper evidentiary basis for its finding that “[cjertainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants”; Gulf Oil Corporation v. Gilbert, supra, 511. The court furthermore lost sight of modem technological innovations since the United States Supreme Court issued its decision in Gilbert in 1947. Just as “ ‘[j]et travel and satellite communications have significantly altered the meaning of “non conveniens” ’ ”; Manu International, S.A. v. Avon Products, Inc., supra, 65, quoting Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir. 1980) (Newman, J., concurring), cert. denied, 449 U.S. 1084, 101 S. Ct. 871, 66 L. Ed. 2d 809 (1981); see Dow Chemical Co. v. Castro Alfaro, supra, 708 (Hecht, J., dissenting), and 684 (Doggett, J., concurring); so too has the advent of the videotaped deposition greatly transformed the meaning of “compulsory process” in a forum non conveniens calculus. “[Videotaped depositions frequently make corporeal transportation of foreign witnesses unnecessary.” Rudetsky v. O’Dowd, supra, 347-48. We conclude, therefore, that the trial court abused its discretion when it found that the private interest factors weighed in favor of the defendants sufficiently to overcome the presumption afforded the plaintiffs’ chosen forum.

B

Despite the trial court’s primary emphasis on balancing the private interest factors in this case, the court buttressed its conclusion that dismissal was warranted by also finding that certain public interest factors supported a Canadian rather than a Connecticut forum. We are not persuaded that, standing alone, these factors support the trial court’s exercise of its discretion in the defendants’ favor.

With respect to the public interest factors identified by the trial court, we note that it is well established that considerations arising out of conflicts of law are not dispositive for the purpose of dismissals for forum non conveniens. Lehman v. Humphrey Cayman, Ltd., supra, 345; Manu International, S.A. v. Avon Products, Inc., supra, 67-68. “[T]he mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before [it].” Hoffman v. Goberman, 420 F.2d 423, 427 (3d Cir. 1970). Connecticut courts are quite capable of applying foreign law when required to do so and it would be improper to invoke the doctrine of forum non conveniens solely to avoid a choice of law analysis. See Rudetsky v. O’Dowd, supra, 348. .

Furthermore, the fact that this product liability action arose in a foreign nation, and involved a regulated industry, does not in and of itself establish the applicability of the law of the foreign nation. See Piper Aircraft Co. v. Reyno, supra, 243; Carlenstolpe v. Merck & Co., supra, 908-909; Lake v. Richardson-Merrell, Inc., 538 F. Sup. 262, 274-75 (N.D. Ohio 1982), motion denied sub nom. Haddad v. Richardson-Merrell, Inc., 588 F. Sup. 1158 (N.D. Ohio 1984); cf. Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 615 (6th Cir. 1984); Harrison v. Wyeth Laboratories, 510 F. Sup. 1, 4-5 (E.D. Pa. 1980), aff'd, 676 F.2d 685 (3d Cir. 1982). The situs of manufacture is not necessarily controlling in assessing the relative public interest involved when the real issue is “not some alleged manufacturing defect but rather the adequacy of the . . . design and testing, and of the basic information package supplied by its creator . . . .” Carlenstolpe v. Merck & Co., supra, 908; see Lake v. Richardson-Merrell, Inc., supra; see Dow Chemical Co. v. Castro Alfaro, supra 686, 688-89 (Doggett, J., concurring). Even if the law of British Columbia is to be applied, the myriad contacts between this jurisdiction and the Canadian version of the super absorbent tampon implicated in the decedent’s death refute the trial court’s finding that this forum has a “minimal interest” or connection to this dispute. We therefore conclude that the defendants have not established so clear a balance of public interests in favor of a Canadian forum as to justify an override of the plaintiffs’ choice of Connecticut as their preferred forum.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion Callahan, Glass and Hull, Js., concurred.

Shea, J.,

dissenting. As the majority recognizes, “the doctrine of forum non conveniens vests discretion in the trial court to decide ‘where trial will best serve the convenience of the parties and the ends of justice.’ ” Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989). “It bears emphasis, however, that these guidelines begin with the proposition that the trial court’s exercise of its discretion may be reversed only upon a showing of clear abuse.” Id.

The majority purports to have found such an abuse of discretion in agreeing with the contention of the plaintiffs “that the trial court, in balancing the comparative advantages of each of the alternative fora, wrongly shifted the burden of persuasion onto the plaintiffs.” This view, however, ignores the several references in the memorandum of decision to the presumption in favor of the plaintiffs, such as the adoption of this quotation from Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947): “[Ujnless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” In summarizing its analysis, the court expressly referred to the presumption: “The inconvenience and burdens of a trial in Connecticut strongly overcome the presumption in favor of the plaintiffs’ preferred forum.”

The majority holds, nevertheless, that the conclusion of the court that several witnesses who attended the decedent are not amenable to compulsory process in Connecticut is somehow flawed by the failure of the defendants to furnish affidavits summarizing their testimony and attesting to their unavailability. There cannot be any dispute, however, over the inability of the defendants to bring these witnesses to Connecticut by compulsory process. There was a sufficient basis in the undisputed facts to support the trial court’s discussion of this subject as follows: “The defendants point out that all sources of proof concerning the decedent’s use of the product, her illness, her medical history, and her treatment are in British Columbia. At least two doctors whom the plaintiffs did not name as willing to come to Connecticut were involved in the care of Linda Ann Picketts at Penticton Hospital in British Columbia. Nurses and other persons in British Columbia may also have information relative to the cause of death. For example, there is an indication that a respirator used during efforts to resuscitate Linda Ann Picketts may have malfunctioned. All these witnesses are beyond the compulsory process of this forum. ‘Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.’ Gulf Oil Corporation v. Gilbert, supra, 511.”

It is an unfounded distortion for the majority to infer from this reasoned analysis that the trial court “impermissibly penalized the plaintiffs for failing to provide affidavits from other treating physicians as well as other medical personnel” and thus stood “the applicable burden of proof on its head.” (Emphasis in original.)

The majority refers also to the advent of such modern technological innovations as jet travel and videotaped depositions as diminishing the force of the doctrine of forum non conveniens, but does not purport to abrogate the doctrine. The availability of air travel undoubtedly facilitates the ability to bring witnesses to court from distant locations, assuming those witnesses are willing to come. Even when such witnesses do appear to testify, however, the payment of their expenses, aside from the financial burden imposed, may often be the subject of cross-examination designed to suggest to a jury partiality or interest on their part as compared to those witnesses who have been subpoenaed. The videotaped deposition, similarly, is not a wholly satisfactory answer to the concern of the trial court over lack of compulsory process. Experienced trial lawyers recognize that the impact of such testimony cannot compare with that of a live witness. Because such testimony is ordinarily obtained before trial, it frequently does not cover significant aspects of a case that develop during a trial.

The majority also appears to challenge the trial court’s assessment of the public interest factors as favoring a trial in British Columbia. The memorandum of decision refers to the fact that the decedent was a life-long resident of Canada, that all medical treatment was rendered in Canada, that the product was manufactured in Canada by a Canadian corporation and that the manufacture, caution labels and distribution of the product were regulated by the Canadian government. These circumstances, the court concluded, as compared with Connecticut’s interest as the site of the corporate headquarters of the defendant, where the product was designed, weighed heavily in favor of a Canadian forum. The court also mentioned “the advantages in having the trial in a forum which is at home with the law which must govern the case” and that “Connecticut should not impose its own view of the safety, warning, and duty of care required of medical devices upon a Canadian province.”

The majority seems to question the applicability of British Columbia substantive law as a factor supporting the trial court’s conclusion that the interest of Connecticut in this litigation was “minimal” by comparison. That question is left hanging, however, to be faced by some unfortunate trial judge. If our law is uncertain in this respect, that circumstance alone would militate strongly in favor of British Columbia as a forum. “The doctrine of forum non conveniens . . . is designed in part to help courts avoid conducting complex exercises in comparative law.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).

“ ‘Wisely it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of [the] remedy [of dismissal for forum non conveniens]. The doctrine leaves much to the discretion of the court to which [the] plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.’ ” Union Carbide Corporation v. Aetna Casualty & Surety Co., supra, 322, quoting Gulf Oil Corporation v. Gilbert, supra, 508. In reviewing this exercise of judicial discretion with such a heavy hand, the majority usurps the function of the trial court and fails to accord reasonable deference to its evaluation of the factors involved.

Accordingly, I dissent.

       Toxic shock syndrome is a rare but serious multisystem disease, the onset of which is acute, that may cause death. Although toxic shock syndrome occurs among nonusers of tampons, it typically occurs around the state of menses in a young woman using tampons. Epidemiologically, toxic shock syndrome has been associated with the introduction of certain brands of hyperabsorbent tampons. Their prolonged intravaginal use, together with the capacity of the materials used in these tampons to bind magnesium, has been associated with increased growth of staphylococcus aureus, an infectious bacterium. Harrison’s Principles of Internal Medicine (11th Ed.) pp. 540-41.

       Playtex Family Products Corporation assumed the tampon portion of International Playtex, Inc., including its wholly owned subsidiary, Playtex, Ltd., on December 27,1986, the date that International Playtex, Inc., was liquidated.

       Hyperkalemia is an abnormally high potassium concentration in the blood, most often due to defective kidney excretion. R. Sloane, The SloaneDorland Annotated Medical-Legal Dictionary p. 354.

       The internal examination conducted as part of the autopsy revealed “bilateral purulent material present in both pleural cavities, foul smelling vaginal secretions and a mottled and cyanotic appearance of the uterus.” Further microscopic examination attested to “wide-spread acute inflammatory changes in the heart, lymph nodes, breasts and liver,” findings “consistent with previously reported cases of fatal toxic-shock syndrome.” Fluids removed from the vaginal and pleural cavities indicated heavy growth of staphylococcus aureas, an organism associated with toxic shock, and beta hemolytic streptococci. In addition, peribronchial inflammation found in the lungs suggested a possible secondary infection.

       The adequacy of a product’s design and testing, and the information supplied to formulate the basic package instructions and warnings provide the operative nucleus for a product liability action. The creative or authoritative source of both design specifications and product testing information is thus of material significance to the assignment of liability. See Carlenstolpe v. Merck & Co., 638 F. Sup. 901, 908 (S.D.N.Y. 1986), appeal dismissed, 819 F.2d 33 (2d Cir. 1987); Lake v. Richardson-Merrell, Inc., 538 F. Sup. 262, 274-75 and n.17 (N.D. Ohio 1982), motion denied sub nom. Haddad v. Richardson-Merrell, Inc., 588 F. Sup. 1158 (N.D. Ohio 1984); see Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 686, 688-89 (Tex. 1990) (Doggett, J., concurring). In addition to the defendants’ disclosure that International Playtex, Inc., not only supplied the product specifications to Playtex, Ltd., but had direct control over any adaptations in design, the defendants have also disclosed that it is the Playtex parent corporations that have been “following and cooperating in the research being developed by the medical profession and various governmental departments with respect to [toxic shock syndrome] and tampon use.” It is also the parent corporations that have sponsored microbiological research with respect tó toxic shock syndrome at various universities and have provided an unconditional grant to Yale University to study the potential for diagnostic bias with respect to toxic shock syndrome.

       On appeal before this court, the defendants maintain that the Canadian product, for purposes of a product liability action, was materially distinguishable from its American counterpart. The trial court, however, expressly found that the two product versions were “essentially similar,” and our review of the record indicates no reason to disturb this finding.

       Although the defendants maintain that such product exchange fails to constitute a “ ‘withdrawal from the market,’ as [the] defendants understand the term,” we take judicial notice of the circumstances that prompted the timing of this “voluntary” action. In a wrongful death action alleging that the decedent’s use of tampons caused her death from toxic shock syndrome, a Kansas jury assessed punitive damages in the amount of ten million dollars against International Playtex, Inc. Although the Kansas trial court expressly stated that the punitive award “ ‘does not bother me, nor shock my conscience’ O’Gilvie v. International Playtex, Inc., 821 F.2d 1438, 1448 (10th Cir. 1987), cert. denied, 486 U.S. 1032, 108 S. Ct. 2014, 100 L. Ed. 2d 601 (1988); it nonetheless “assured counsel for Playtex that substantial modification or complete remittitur would be forthcoming if Playtex should decide to remove its super-absorbent tampons from the market.” Id. The trial court extended this invitation on March 21, 1985. International Playtex, Inc., as disclosed in response to an interrogatory filed by the plaintiffs in this case, decided on March 29,1985, immediately to discontinue worldwide sale of its super absorbent tampon containing polyacrylate. The contemporaneous nature of these two events is not coincidental. Upon Playtex’ representations that it had discontinued the sale of its super absorbent product, instituted a program of alerting the public to the dangers of toxic shock syndrome and modified its product warning, the trial court in O’Gilvie subsequently reduced the punitive award to one million, three hundred and fifty thousand dollars. Id., 1440-41. As the Tenth Circuit Court of Appeals noted, in concluding that the trial court’s order of remittitur constituted error, “we are compelled to point out that the court’s order subverts the goals of punishment and deterrence that underlie the assessment of punitive damages in Kansas.” Id., 1450; see Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 687 n.10 (Tex. 1990) (Doggett, J., concurring).

       The defendants maintained before the trial court and renew on appeal their contention that the available medical records raise complex questions concerning both the diagnosis and etiology of the decedent’s death. The defendants’ identified expert, Vincent Spagna, an Ohio physician, attested in an affidavit accompanying the offer of proof of forum non conveniens that he “[could] not form an opinion within a reasonable degree of medical certainty as to the etiology of the decedent’s final illness and the underlying cause of death.” Moreover, the indication that a respirator used during the efforts to resuscitate the decedent may have malfunctioned, according to the defendants, provides additional justification for the attendance at trial of all the health care personnel who treated the decedent immediately prior to her death. Significantly, however, with respect to the alleged malfunction of the respirator, the trial court expressly found that the defendants had failed to indicate a sufficient factual basis for their claim that potentially liable Canadian third parties would have been impleaded, but for their preclusion in a Connecticut forum.

       With respect to the accessibility, in either forum, of those witnesses involved in the development, manufacture and distribution of the Playtex super absorbent tampon, the trial court based its finding of equivalence upon the convenience of modern transportation and the representation of Playtex Family Products Corporation that it would make its employees available to the Canadian forum. It is clear, however, that a Connecticut forum was overall more accessible with respect to the evidence necessary to prosecute this product liability action.

       We note with interest that, in view of the legal uncertainties of maintaining a cause of action in Canada, even the defendants’ identified Canadian legal expert recommended, in an affidavit accompanying the motion to dismiss, “that the action in Connecticut be stayed, pending the outcome of the litigation in British Columbia, rather than dismissed. ” (Emphasis added.)

       As revealed at oral argument, discrepancies may arise as to the meaning of those conditions set forth by the trial court as requisites for a forum non conveniens dismissal. The principal difficulty with any condition attached by a trial court in dismissing a case for forum non conveniens lies in the enforcement. Once the trial court dismisses an action on the ground of forum non conveniens, its jurisdiction ceases. Although the concept of some sort of supervisory jurisdiction to ensure that its mandates are carried out in the alternative forum might theoretically provide some assurance to a trial court, we are not persuaded that the workability of such a concept of shared jurisdictions has been established in this case. See In re Union Carbide Corporation Gas Plant Disaster at Bhopal, 809 F.2d 195,
        205 (2d Cir.), cert. denied sub nom. Executive Committee Members v. Union of India, 484 U.S. 871, 108 S. Ct. 199, 98 L. Ed. 2d 150 (1987).

       In Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 318, 562 A.2d 15 (1989), the only plaintiff in the declaratory judgment action before the trial court was the Union Carbide Corporation. The remaining appellants in that appeal were counterclaimants below, who were aggrieved by thi trial court’s dismissal of their own independent actions.

       Because the doctrine of forum non conveniens is not jurisdictional, any inquiry into its applicability “presupposes at least two forums in which the defendants] [are] amenable to process.” Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 506-507, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). The court, as a threshold matter, must therefore decide whether an adequate alternative forum exists. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981); Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 314, 562 A.2d 15 (1989). Ordinarily, the alternative forum prerequisite will be satisfied simply if the defendants are amenable to service in another jurisdiction. Piper Aircraft Co. v. Reyno, supra; Gulf Oil Corporation v. Gilbert, supra. The United States Supreme Court, however, has identified at least some instances in which mechanical inquiry into the amenability of process in the other forum must surrender to a more meaningful assessment of the suitability of the alternative forum. In Piper Aircraft Co. v. Reyno, supra, the United States Supreme Court noted that, in rare circumstances, where the remedy offered by the other forum is clearly unsatisfactory, such as where the alternative forum does not permit any litigation of the subject matter of the legal controversy, the other forum may not meet the threshold requirement of an adequate alternative.

       In addition to this numerical restriction, under the rules of the court of British Columbia, the corporate party retains the right to apply to the court to substitute another representative for that selected for examination by the party conducting discovery. Moreover, the effectiveness of any cross-examination may be limited by the continual interruptions necessitated so that the corporate representative might inform himself or herself from other persons with the corporation. Finally, discovery through non-party witnesses, such as former employees of International Playtex, Inc., is severely restricted not only because of the lack of compulsory process but due to the inherent limitation on the availability of pretrial depositions of nonparty witnesses. Although the defendants maintain on appeal that the question of the necessity of former Playtex employees, who may have information relevant to the subject matter of this product liability action, was never brought to the trial court’s attention, our examination of the record reveals in fact that it was the defendants themselves who first raised this potential problem in response to the plaintiffs’ interrogatories and requests for production.

       The plaintiffs also note that “elements of procedure express social and political values concurrent with those expressed in substantive legal rules and deemed worthy independently of what the substantive law may be.” F. James & G. Hazard, Civil Procedure (3d Ed.) § 1.1, p. 2.

       The defendants maintain on appeal that the doctors’ affidavits, attesting to their willingness to testify in Connecticut if necessary, are not unequivocal. While the affidavits do indeed premise the doctors’ availability to this forum on the plaintiffs’ willingness adequately to compensate them for their services, we draw no adverse inferences from this acceptable equivocation, as the availability of expert testimony is generally dependent upon compensation for that service.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Nancy L. Sobocinski v. Statewide Grievance Committee et al.
    (13829)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 11
    decision released June 26, 1990

      Barton J. Craig, pro hac vice, with whom was Nancy L. Sobocinski, for the appellant (plaintiff).

      Christine M. Whitehead, for the appellee (named defendant).

      William J. Curran, pro se, the appellee.
   Glass, J.

The dispositive issue in this appeal is whether the statewide grievance committee (SGC) is an administrative agency as defined in General Statutes § 4-166 (l) of our Uniform Administrative Procedure Act (UAPA). The plaintiff, Nancy L. Sobocinski, has appealed, from a decision of the trial court dismissing her appeal from a decision of the SGC. The trial court held that the SGC is not an administrative agency as defined by § 4-166 (1), and, as a result, dismissed the plaintiffs appeal for lack of subject matter jurisdiction. We agree with the trial court’s determination.

The record reveals the following facts. In August, 1984, the plaintiff was injured as a result of a collision between her automobile and an automobile owned and operated by Dennis Edgeworth. The plaintiff retained the services of attorneys Bruce L. Levin and Ernest Teitell, and brought suit against Edgeworth in the federal court in Connecticut. Edgeworth then instituted a negligence action against the plaintiff in Connecticut state court. The Great American Insurance Company, the insurance carrier for the plaintiff, retained attorney William J. Curran to represent its interest and the interest of the plaintiff in the state court negligence action. On February 25,1987, Curran filed an appearance as the plaintiffs attorney in the state court action. Thereafter, Barton J. Craig, who is an attorney and the husband of the plaintiff, wrote Curran requesting that copies of all documents filed in the state court action be forwarded either to the plaintiff or himself. On November 25,1987, the Great American Insurance Company, acting through its adjuster, Charles Vaiciulis, settled the state court action with the attorney representing Edgeworth. Curran then filed a release and withdrawal of the state court action without notifying the plaintiff of the settlement. Curran did, however, notify Levin, her attorney, of the settlement. According to the plaintiff, she first learned of the settlement from Teitell, also her attorney, in December, 1987, on the eve of the jury selection in her action against Edge-worth in the federal court.

On May 6, 1988, the plaintiff filed a complaint with the SGC alleging a violation by Curran of Rules 1.2, 1.3 and 1.4 of the Rules of Professional Conduct for attorneys. On May 16,1988, pursuant to General Statutes § 51-90e,* ** the plaintiffs complaint was'^ref erred to the grievance panel for the Fairfield judicial district. On June 23, 1988, the Fairfield judicial district grievanee panel filed a determination of no probable cause in regard to the plaintiffs complaint. On October 20, 1988, contrary to the finding of the Fairfield judicial district grievance panel, the SGC made a determination that there was probable cause that Curran had violated Rules 1.2, 1.3 and 1.4 of the Rules of Professional Conduct. On December 14,1988, a reviewing committee of the SGC conducted a hearing based on the probable cause finding of the SGC.* *** At this hearing, the plaintiff and Craig testified in support of the allegations in the complaint, and Curran and Vaiciulis, the adjuster, testified in opposition to the allegations in the complaint. On February 24,1989, the reviewing committee, in its proposed decision, concluded that Cur-ran was responsible for keeping the plaintiff informed about her case and that, by failing to inform the plaintiff or Craig of the settlement, Curran had violated Rule 1.4. The reviewing committee, however, found insufficient proof of violations of Rules 1.2 and 1.3 The reviewing committee then recommended that the SGC reprimand Curran. Thereafter, the plaintiff claims that, unbeknownst to her, Curran filed statements with the SGC opposing the recommendation of the reviewing panel.

On May 1,1989, the statewide bar counsel sent a letter to the plaintiff and Curran informing them that the SGC, at a meeting held on April 20,1989, had decided not to adopt the proposed decision of the reviewing committee, even though the SGC had determined that Curran’s failure to inform the plaintiff of the settlement directly did constitute a violation of the Rules of Professional Conduct. The letter concluded: “[I]n reviewing the entire record, including [Curran’s] good faith disclosure of the settlement to [the plaintiff’s] counsel of record on the federal action, and [Curran’s] recognition of the importance of direct attorney-client communication, the Committee concluded that the imposition of discipline on [Curran] for this matter was not warranted. Accordingly, the complaint is hereby DISMISSED by the Statewide Grievance Committee.”

On June 2, 1989, the plaintiff filed an appeal to the Superior Court from the decision of the SGC, claiming that the SGC is an agency of the state of Connecticut as defined in § 4-166 (1), and that she was therefore entitled to appeal its decision pursuant to § 4-183 (b). The SGC moved to dismiss the plaintiffs appeal, claiming that service on it was improper and that the SGC is not an agency as defined by § 4-166 (1). Curran also filed a motion to dismiss. He claimed that the SGC is an arm of the court and is not an agency as set forth in § 4-166 (1), and that proceedings before the SGC are neither contested nor adversarial, but rather are an investigation by the court into the conduct of one of its officers.

The trial court concluded that the SGC is not an agency under § 4-166 (1). Consequently, the trial court ruled that the plaintiff could not pursue her appeal pursuant to § 4-183, and granted the SGC’s and Curran’s motions to dismiss. The plaintiff appealed to the Appellate Court, and pursuant to Practice Book § 4023, this court transferred the appeal to itself. On appeal, the plaintiff claims: (1) that the trial court should have concluded that §§ “4-166, 4-183 and 51-90 mandate an appeal pursuant to § 4-166 et seq. as the only statutorily approved method by which a citizen may obtain judicial review of an erroneous decision of the [SGC] by means of mailed service of process on the [SGC]”; and (2) that “the trial court’s ruling contravene[d] the public policy motivating the decision of [this] court in Statewide Grievance Committee v. Rozbicki, [211 Conn. 232, 558 A.2d 986 (1989),] which supports [her] claim that a citizen may appeal the dismissal of her meritorious complaint by the [SGC] via the mailed service of process provisions of Connecticut’s Uniform Administrative Procedure Act.”

Because we agree with the trial court that the SGC is not an agency within the definition provided in § 4-166 (1), it is unnecessary to consider the other issues raised by the plaintiff on this appeal.

At the time of this appeal, “[ajgency” under § 4-166 (1) was defined as follows: “ ‘Agency’ means each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general, town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181, authorized by law to make regulations or to determine contested cases.” (Emphasis added.) An administrative agency within the meaning of the UAPA has been defined as “a body in which the legislature has reposed general powers of administration of a particular state program in connection with which it has been given statutory authority to act for the state in the implementation of that program.” Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 467, 489 A.2d 408 (1985).

Judges of the Superior Court possess the “inherent authority to regulate attorney conduct and to discipline the members of the bar.” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983). “It is their unique position as officers and commissioners of the court . . . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” Id., 524. “In exercising their inherent supervisory authority, the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause. See Practice Book § 27B et seq. Further, the judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. See Practice Book § 27M. In carrying out these responsibilities, these bodies ‘act as an arm of the court.’ Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 239, 558 A.2d 986 (1989).” Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167, 575 A.2d 210 (1990). In sum, the SGC is an “arm of the court,” and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program. We therefore hold that the SGC is excluded under the definition of “agency” set forth in § 4-166 (1).

The plaintiff additionally argues that “the public policy motivating” this court’s decision in Statewide Grievance Committee v. Rozbicki, supra, supports her claim that a citizen may appeal, via the UAPA, the dismissal of her meritorious complaint by the SGC. We are unpersuaded. In Rozbicki, the SGC brought a presentment against the defendant attorney charging him with misconduct outside the presence of the court. Id., 234. The trial court granted the defendant attorney’s motion to dismiss the presentment for lack of subject matter jurisdiction because the subcommittee appointed by the SGC to review the charges had not rendered its proposed decision on the complaint within ninety days as specified under General Statutes § 51-90g (c). Id., 237. The SGC then appealed the trial court’s dismissal, and this court held that the SGC had not lost subject matter jurisdiction as a result of the subcommittee’s failure to adhere to the aforementioned time constraint. Id. There is nothing in Rozbicki, however, to support the plaintiffs claim that a complainant may invoke the provisions of the UAPA in order to appeal the dismissal by the SGC of her complaint. Rather, Rozbicki concerns an appeal by the SGC from the trial court’s dismissal, on procedural grounds, of a presentment that was, jurisdictionally speaking, properly before the court.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 51-90. state-wide grievance committee. APPOINTMENT, QUALIFICATIONS AND TERMS OF MEMBERS. There shall be a state-wide grievance committee which shall consist of fifteen persons appointed by the judges of the superior court. At least four of the members shall not be attorneys-at-law and the remainder of the members shall be members of the bar of this state. The judges shall designate one member as chairman and another member as vice-chairman to act in the absence or disability of the chairman. Of the members first appointed prior to October 1, 1988, four members shall serve for a term of one year, four members shall serve for a term of two years and four members shall serve for a term of three years. Of the three new members first appointed on or after October 1, 1988, one member shall serve for a term of one year, one member shall serve for a term of two years and one member shall serve for a term of three years. Thereafter, all members shall serve for a term of three years commencing July first. Any vacancy in the membership of the committee shall be filled by the executive committee of the superior court which shall appoint an attorney-at-law or non-attorney, depending on the position vacated, for the unexpired portion of the term.”

       General Statutes § 4-166 provides in pertinent part: “(1) ‘Agency’ means each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general, town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181, authorized by law to make regulations or to determine contested cases.” This statute was amended effective July 1,1989, by Public Acts 1988, No. 88-817, §§ 1, 107.

       “[Rules of Professional Conduct] Rule 1.2 scope of representation
      “(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify..
      “(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
      “(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
      “(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
      “(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.”
      “Rule 1.3 DILIGENCE
      “A lawyer shall act with reasonable diligence and promptness in representing a client.”
      “Rule 1.4 COMMUNICATION
      “(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      “(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

       “[General Statutes (Rev. to 1987)] Sec. 51-90e. piling of complaint
      ALLEGING ATTORNEY MISCONDUCT. REFERRAL TO GRIEVANCE PANEL, (a) Any person may file a written complaint alleging attorney misconduct. A grievance panel may, on its own motion, initiate and file a written complaint alleging attorney misconduct. A complaint against an attorney shall be filed with the state-wide bar counsel. Within five days of the receipt of a complaint the state-wide bar counsel shall:
      “(1) Forward the complaint to the appropriate grievance panel as determined under rules of court; and
      “(2) Notify the complainant and the respondent, by certified mail, return receipt requested, of the panel to which the complaint was forwarded. The notification to the respondent shall be accompanied by a copy of the complaint.

        “(b) The respondent shall have the right to respond within ten days of receipt of notification to the grievance panel to which the complaint has been referred.
      “(c) The state-wide bar counsel shall keep a record of all complaints filed with him. The complainant and the respondent shall notify the state-wide bar counsel of any change of address or telephone number during the pendency of the proceedings on the complaint.
      “(d) If for good cause shown, a grievance panel declines, or is unable pursuant to sections 51-90 to 51-91b, inclusive, to investigate a complaint referred to the panel, such panel shall forthwith return the complaint to the state-wide bar counsel to be referred by him immediately to another panel. The state-wide bar counsel shall give notice of such referral to the complainant and the respondent by certified mail, return receipt requested.”

       “[General Statutes] Sec. 51-90g. review of panel’s determination BY SUBCOMMITTEE OR STATE-WIDE GRIEVANCE COMMITTEE, (a) The statewide grievance committee may designate at least three members of the committee, including at least one-third who are not attorneys, to serve as a reviewing subcommittee for each determination made by a panel on a complaint. The committee shall regularly rotate membership on reviewing subcommittees and assignments of complaints from the various judicial districts. The state-wide grievance committee or the subcommittee, if any, shall hold a hearing concerning the complaint if the panel determined that probable cause exists that the attorney is guilty of misconduct. If the grievance panel determined that probable cause does not exist that the attorney is guilty of misconduct, the committee or subcommittee shall review the determination of no probable cause, take evidence if it deems it appropriate and, if it determines that probable cause does exist that the attorney is guilty of misconduct, shall thereafter hold a hearing concerning the complaint. An attorney who maintains his office for the practice of law in the same judicial district as the respondent may not sit on the reviewing subcommittee for that case.
      “(b) Any hearing held by the committee or subcommittee shall be public and on the record. The complainant shall be entitled to be present at all hearings on the complaint and to have counsel present. At such hearing the respondent shall have the right to counsel, to be heard in his own defense and to present evidence and witnesses in Ms behalf. At the conclusion of the evidence, the complainant and the respondent shall have the opportunity to make a statement either individually or through counsel. The committee or subcommittee may request oral argument.
      “(c) The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown. If the subcommittee does not complete its action on a complaint within the period of time provided in this section, the state-wide grievance committee shall, on motion of the complainant or the respondent or on its own motion, inqmre into the delay and determine the appropriate course of action. The failure of the subcommittee to complete its action on a complaint within the period of time provided in this section shall not be cause for dismissal of the complaint.
      “(d) If the subcommittee finds probable cause to believe the attorney has violated the criminal law of this state it shall report its findings to the statewide grievance committee.
      “(e) The subcommittee may propose in its decision to dismiss the complaint, reprimand the attorney or present the attorney to the superior court for reprimand, suspension or disbarment.
      “(f) The subcommittee shall submit its proposed decision to the statewide grievance committee, with copies to the complainant and respondent. The proposed decision shall be a matter of public record.
      “(g) When the committee conducts the hearing or hearings under this section, it shall render its decision not later than four months from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The state-wide grievance committee may dismiss the complaint, reprimand the respondent or direct the state-wide bar counsel to file a presentment against the respondent.”

       “[General Statutes] Sec. 4-183. appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”
      This statute was amended effective July 1, 1989, by Public Acts 1988, No. 88-317, §§ 23, 107.


author: Covello, J. Shea, J.,

text:
    TLC Development, Inc. v. Planning and Zoning Commission of the Town of Branford et al.
    (13874)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 28
    decision released July 3, 1990

      Norbert W. Church, Jr., with whom, on the brief, was Marion Malafronte, for the appellant (named defendant).

      John W. Barnett, for the appellee (plaintiff).
   Covello, J.

This appeal involves the criteria to be considered by the Branford planning and zoning commission in determining an application for site plan approval. We agree with the trial court’s conclusion that, in light of the terms of the applicable zoning regulations, the impact on offsite traffic was not an appropriate reason for denying such an application.

The relevant facts are undisputed. The plaintiff TLC Development, Inc., holds an option to purchase 14.8 acres of undeveloped land abutting United States Route 1 in Branford. On August 1,1988, the plaintiff applied to the defendant planning and zoning commission of the town of Branford (commission) for approval of a site plan incident to its proposal to build a 152,000 square foot shopping center on the optioned premises. The tract lies entirely within the “Local Business BL District” zone. The plaintiff’s proposed development is a permitted use in such a zone but is subject to the submission and approval of a site plan to aid the commission in determining the conformity of the proposed building and use with the specific provisions of the zoning regulations.

On September 15, 1988, the commission conducted a public hearing concerning the plaintiff's site plan application. On October 6,1988, the commission denied the plaintiff’s application. The commission cited as its reasons for denial the increased traffic on Route 1, increased traffic on local streets in the vicinity, and the “inconveniently” located rear parking area.

The plaintiff appealed the commission’s decision to the Superior Court. On June 28, 1989, the trial court, Clark, J., sustained the plaintiffs appeal and ordered the site plan approved. The trial court concluded, inter alia, that the commission lacked the authority to consider offsite traffic impact when determining whether to approve or deny the plaintiffs site plan application. The commission appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023. We conclude that the language of the Branford zoning regulations does not permit off-site traffic considerations to serve as the basis for denying a site plan application and therefore affirm the judgment of the trial court.

The use of site plans in zoning matters is authorized by General Statutes § 8-3 (g). It provides in part: “The zoning regulations may require that a site plan be filed with the commmission ... to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. . . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . .regulations.”

Branford’s zoning regulations are set out in five chapters. Chapter III is entitled “Site Plans and Special Uses.” Section 31.2 of Chapter III states: “The purpose of this process is to review development plans to insure that they meet the stated purpose of the District [zone] as well as the general and specific standards of these regulations.” Chapter III contains § 31.5, entitled “Site Plan Standards.” It provides: “In reviewing the Site Plan, the Commission shall take into consideration the public health, safety and general welfare and, as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific standards contained herein as well as to assure the accomplishment of the following general objectives. . . .” Thereafter the regulations set forth the general objectives: § 31.5.1, entitled “Public Safety,” § 31.5.2, entitled “Traffic and Pedestrian Access,” § 31.5.3, entitled “Circulation and Parking, ” and § 31.5.7, entitled “Character and Appearance.” These are the provisions that served as the authority for the commission’s rejection of the plaintiff’s site plan application. See footnote 1, supra.

Although the text of § 31.5 makes it clear that the general objectives are to serve solely as the basis for requiring a modification of the proposed site plan, the commission used these general objectives as the basis for denying the application altogether. To the extent that the content of these general objectives deals with offsite traffic considerations, our review discloses no similar provisions elsewhere in the Branford zoning regulations. Thus, offsite traffic considerations should not have served as the basis for denying the plaintiffs site plan application. Inasmuch as the first four reasons given by the commission all dealt with offsite traffic considerations, we conclude that they could not, by reason of the language contained in § 31.5 of the zoning regulations, constitute a permissible basis for the commission’s denial of the site plan application.

Furthermore, with respect to the reasons based on offsite traffic considerations, the commission’s decision was inconsistent with the fact that the plaintiff’s application was for site plan approval of a use that concededly was already fully permitted under the Branford zoning regulations. This being the case, the result here comports with our earlier stated proposition: “The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.” Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979).

As its last reason for denying the plaintiffs site plan application, the commission stated “Rear parking area not conveniently located.” As authority for this very general statement, the commission again referred to §§ 31.5.1, 31.5.2, 31.5.3 and 31.5.7. These sections set out the “general objectives” referred to in § 31.5. Specifically, § 31.5.3 provides “[t]hat the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion, within the site and on the street.” (Emphasis added.) As a “general objective,” such a consideration could not serve as the basis for denying the plaintiffs application but could only have served as a reason for requiring a modification.

The commission finally argues that the trial court erred in denying its motion to open the judgment and reconsider the matters before it. We do not agree. Once a judgment has been rendered it is to be considered final and it “should be left undisturbed by post-trial motions except for a good and compelling reason.” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). We are unable to detect such compelling “ ‘ “cause for which the court acting reasonably would feel bound in duty to [open and reconsider the judgment].” . . . ’ ” Id., 711. A motion to open and vacate a judgment is addressed to the discretion of the trial court, and we will not disturb the action of the trial court on appeal unless it acted unreasonably and in clear abuse of its discretion. Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990); Jaconski v. AMF, Inc., 208 Conn. 230, 237-38, 543 A.2d 728 (1988).

The judgment is affirmed.

In this opinion, Peters, C. J., Callahan and Glass, Js., concurred.

Shea, J.,

dissenting. In affirming the judgment of the trial court, the majority advances three grounds: (1) the Branford site plan regulations provide in § 31.5 only for “such modifications of the proposed plans as [the commission] deems necessary to comply with the specific standards contained [in those regulations],” and, therefore, do not authorize the denial of an application to approve a site plan “altogethér”; (2) “the language of the Branford zoning regulations does not permit offsite traffic considerations to serve as the basis for denying a site plan application”; and (3) in reviewing a site plan, a zoning commission may not consider the effect that a proposed shopping center will have upon offsite traffic as a basis for disapproving the plan. I disagree.

I

The view of the majority that, in reviewing an application for site plan approval, the Branford zoning commission, having determined that the plan does not comply with the site plan regulations, may only require modifications in the plan but may not disapprove the plan altogether is contrary to our previous holdings that an administrative agency is not “bound to make suggestions to [applicants] as to how their plans should be changed, or to grant the permit upon condition that they be changed.” Piccolo v. West Haven, 120 Conn. 449, 454, 181 A. 615 (1935). “It requires no citation of authority to say that regulation may in many instances result in prohibition. . . . The plaintiffs asked for the designation of a specific channel as described in their application. . . . The commission was not under a duty to make suggested changes or to grant a rehearing for that purpose.” Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959).

Even if the language of § 31.5 can be construed to preclude the absolute denial of site plan approval for failure to comply with the regulations, it would certainly require the applicants to modify the site plan in order to comply with those regulations that were properly found to have been violated upon its first presentation to the commission. At most, the phraseology of § 31.5 would entitle the applicant to a rehearing upon a revised plan. The majority’s affirmance of the judgment directing that the plaintiff’s site plan be approved unquestionably would be a complete frustration of the legitimate purpose of § 31.5 if the commission’s conclusion that the regulations have been violated is sound.

II

The conclusion of the majority that “the language of the Branford zoning regulations does not permit off-site traffic considerations to serve as the basis for denying a site plan application” wholly ignores the following provisions of the site plan regulations, which are part of the zoning regulations:

“[Section] 31.5.2 Traffic and Pedestrian Access: That all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street.

* * *

“[Section] 31.5.3 Circulation and Parking: That the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion, within the site and on the street. At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:

“(a) The effect of the proposed development on traffic conditions on abutting streets. . . .

“(c) The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets. . . .”

These regulations, as well as § 31.4.7, requiring a “traffic analysis” to be submitted with an application, certainly indicate that “offsite traffic considerations” are a significant factor in approval of a site plan. If the provisions made in the plan of the plaintiff for “traffic and pedestrian access” and for “circulation and parking” were not adequate in the light of offsite traffic conditions to ensure the safety of the public, the commission under these regulations would have been authorized to reject the plan.

Ill

The majority also apparently takes the position that, regardless of the language of the regulations, the enabling act for site plan regulations, General Statutes § 8-3 (g), by virtue of an amendment adopted in 1978, does not authorize zoning regulations that make off-site traffic conditions a basis for refusing to approve a site plan. This enactment, Public Acts 1978, No. 78-104, § 4, made several changes in the statute, including the insertion of the following sentence: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”

The majority accepts the contention of the plaintiffs that this amendment was intended by the legislature to overrule Goldberg v. Zoning Commission, 173 Conn. 23, 30, 376 A.2d 385 (1977), in which this court approved the “concern of the commission as to the impact of traffic upon the area and the overburdening” of a town road as a basis for refusing to approve a site plan for a shopping center. There is, however, no legislative history to support this view, as the plaintiffs concede, nor does the language of the amendment address the question of whether offsite traffic concerns may properly be included in site plan regulations as part of the zoning regulations. In both Goldberg and this case, the regulations concerning offsite traffic considerations were “requirements already set forth in the regulations,” as the amendment provides. The only basis advanced by the plaintiffs for claiming that the amendment signifies legislative disapproval of Goldberg is that it was enacted about one year after that decision. It is probable, however, as the majority suggests in footnote 2, that the amendment was intended to overrule the Goldberg dictum allowing a zoning commission in reviewing a site plan to go outside the zoning regulations to consider “conditions necessary to protect health, safety, convenience and property values”; id., 28-29; by precluding reliance upon criteria not set forth in the regulations. The failure of the amendment to prohibit consideration of the impact of a proposed structure on offsite traffic, when the regulations so provide, nevertheless, is some indication of legislative approval of such regulations.

The problem with the majority’s view that a site plan for a permitted use may not be disapproved on the basis of the impact of that use on offsite traffic, even if the regulations so provide, is that it assumes such a consideration was fully explored at the time the zone permitting such a use was created. That assumption is faulty for two reasons: (1) conditions often change between the time a zone was created and the presentation of a site plan for a specific use; and (2) when a permitted use is open-ended, as in this case where the zone in which the proposed shopping center is situated requires that it contain a minimum of 100,000 square feet but prescribes no maximum, the effect on offsite traffic cannot be adequately visualized until the scope of the permitted use is known. This problem can be resolved, of course, by the adoption of special provisions for such uses as shopping centers, which commonly allow consideration of the effect of a specific proposal upon offsite traffic. I am not aware of anything in § 8-3 (g), however, that bars a town from similarly fine-tuning its zoning determinations through its site plan regulations in the light of specific proposals.

Accordingly, I dissent.

       The reasons cited by the commission in denying the plaintiffs application were the following:
      “1. Commissioner’s concerns regarding the failure to address all aspects of Sections: 31.5.1 ‘Public Safety’ — 31.5.2 ‘Traffic & Pedestrian Access’ — 31.5.3 ‘Circulation and Parking’ — 31.5.7 ‘Character and Appearance.’
      “A. The Commission stated that ‘D’ is not an acceptable level of service (‘LOS’).
      “B. A decline in level of service to unacceptable levels would occur at the main entrance to Site, at the intersection of East Main and North Main, and on the Northbound and Southbound legs of Chestnut Street at North Main.
      “C. Traffic on East Main Street in front of the Site would approximately double.
      “D. The increase in traffic on Route 1 between East Main Street and Exit 55 was not adequately addressed.
      “E. Rear parking area not conveniently located.”

       In Goldberg v. Zoning Commission, 173 Conn. 23, 376 A.2d 385 (1977), we sustained the zoning commission’s denial of a site plan application even though the proposed shopping mall there in issue was a permitted use in the zone in question. We there stated that, in assessing the propriety of the site plan application, the “total project must satisfy standards set forth in the zoning regulations themselves as well as conditions necessary to protect health, safety, convenience and property values. General Statutes § 8-2.” (Emphasis added.) Id., 28-29. Thereafter, the General Assembly amended General Statutes § 8-3 (g) through its enactment of Public Acts 1978, No. 78-104, effective October 1,1978, to specify that site plans could be modified or denied only if they failed to comply with requirements already set forth in the zoning regulations. By thus narrowing the scope of the commission’s inquiry by eliminating considerations that were not specifically articulated in the zoning regulations, we conclude that Public Act 78-104 effectively overruled our earlier holding in Goldberg.

       The commission’s reasons referred to § 31.41, entitled “Public Safety.” We are unable to find such a section and conclude that the correct reference was to § 31.5.1. Section 31.5.1 states: “Public Safety: That all buildings, structures, uses, equipment or material are directly accessible for fire, police and ambulance services. Plans shall comply with the Town’s Fire Ordinance and the State Building Code.”
      Section 31.5.2 provides: “Traffic and Pedestrian Access: That all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street. All circulation and parking plans shall be evaluated to determine conformity to these objectives:
      “(a) The number, location and dimensions of vehicular and pedestrian entrances, exits, drives and walkways.
      “(b) The width, grade and alignment of entrances and exits.
      “(c) The distance of entrances and exits from street corners, places of public assembly and other accessways.
      “(d) The visibility in both directions at all exit points of the site and the visibility of a vehicle entering or exiting the site to the driver of a vehicle traveling on the street.
      “(e) Adequacy of emergency access.”
      Section 31.5.3 provides: “Circulation and Parking: That the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion, within the site and on the street. At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:
      “(a) The effect of the proposed development on traffic conditions on abutting streets.
      “(b) The patterns of vehicular and pedestrian circulation both within the boundaries of the development and in relation to the adjoining street and sidewalk systems.
      “(c) The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets.
      “(d) The interconnection of parking areas via access drives within and between adjacent lots or uses, in order to maximize efficiency, minimize curb cuts and encourage safe and convenient circulation.
      “(e) The adequacy of vehicular stacking lanes and/or distances.
      “(f) The adequacy of pedestrian drop-off areas for visitors, car pools or transit buses.
      “(g) The location, arrangement and adequacy of off-street parking and loading facilities.
      “(h) The location, arrangement and adequacy of handicapped facilities such as ramps, depressed curbs and reserved 15 foot wide parking spaces.

        “(i) The location and design of vehicle maneuvering areas, backaround areas and fire lanes.
      “(j) The physical identification of entrances, exits, one-way drives, small car spaces, handicapped spaces and fire lanes.
      “(k) The provision of bumper guards, guard rails, wheel stops, speed bumps, traffic signs, islands, crosswalks and similar safety devices necessary to protect life and property.”
      Section 31.5.7 provides: “Character and Appearance: That the location, size and design of any proposed building structure or use, as well as the nature and intensity of operations involved in or conducted in connection therewith, their location on the site in relation to streets, parking and adjacent residences and their relationship to the natural terrain, watercourses, waterbodies, wetlands and vegetation, will be compatible and harmonious with the character and appearance of the surrounding neighborhood, and will not be hazardous or otherwise detrimental to the appropriate and orderly development or use of any adjacent land, buildings or structure.”