Opinion
No. TTD CV-08-6000326-S
March 11, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO OPEN NONSUIT
This case is a medical malpractice action by the plaintiff, Ronald N. VanAlstyne, complaining about the medical responders who came to his aid at the scene of his automobile accident, and at the hospital where he was taken, on September 22, 2005. In that accident, he hit a parked car and a house after allegedly suffering an epileptic seizure while driving. He was taken by ambulance to Rockville General Hospital. Defendants include, inter alia, Rockville General Hospital and Eastern Connecticut Health Network. A nonsuit entered dismissing plaintiff's lawsuit as to those two defendants due to his repeated failure to respond to defendants' Interrogatories and Requests for Production. Presently pending before the court is plaintiff's Motion to Open that nonsuit. For the following reasons, the motion is denied.
The nonsuit addressed by the pending Motion to Open is the nonsuit conditionally ordered on July 28, 2008, on defendants' Motion for Order of Compliance, Doc. No. 138.00. Plaintiff was also nonsuited by conditional order dated July 14, 2008, with respect to Count Two of the Complaint as to these same defendants. See order on defendants' Motion to Dismiss, Doc. No. 132.00. There has been no motion made by plaintiff to open that nonsuit.
I
Motions to Open Judgments entered on default are governed by General Statutes § 52-212 and Practice Book § 17-43. Under those provisions, in order for a motion to open a judgment of nonsuit to be successful, "[t]he plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause." Biro v. Hill, 231 Conn. 462, 467-68, 650 A.2d 541 (1994). Both tests must be passed before a Motion to Open may be granted. Berzins v. Berzins, 105 Conn.App. 648, 653, 938 A.2d 1281 (2008). Such motions are addressed to the trial court's discretion, and the action of the trial court will not be disturbed unless it acted unreasonably and in clear abuse of discretion. Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).
II
The facts of record show that this suit was commenced by writ, summons and complaint containing two counts served on the defendants on December 31, 2007. The defendants issued Interrogatories and Requests for Production on the plaintiff on January 15, 2008. Under our rules of practice, the plaintiff had thirty days within which to respond. Practice Book §§ 13-7 and 13-10. On March 31, 2008, not having received any responses to their discovery requests, the defendants made a Motion for Order of Compliance. Doc. No. 114.00. The court granted that motion on April 14, 2008, and ordered that unless the plaintiff filed a good faith certificate indicating compliance with the discovery requests by May 7, 2008, a nonsuit would automatically enter. On April 16, 2008, plaintiff filed a Motion for Extension of Time requesting an additional sixty days to respond to defendants' discovery requests. See Motion, Doc. No. 121.00. That was granted on April 28, 2008, allowing plaintiff up to July 7, 2008, to respond to the discovery requests. Still receiving no response, defendants, on July 13, 2008, again moved for an Order of Compliance. Doc. No. 138.00. That motion was granted, on July 28, 2008, ordering an automatic default unless plaintiff filed a good faith certificate of compliance by August 28, 2008. Still no response was received, and no certificate was filed, so, on September 4, 2008, the Clerk's Office issued a notice of default against the plaintiff. In response, plaintiff filed the subject Motion to Open Nonsuit dated November 26, 2008. The Motion was assigned for hearing on January 16, 2009. Plaintiff's counsel who attended that hearing requested additional time to review the file to see what discovery was outstanding before proceeding, and the court permitted a continuance. The matter was rescheduled, and heard on March 6, 2009. To date, plaintiff has not responded to defendants' discovery requests.
Where a plaintiff is in default, a judgment of nonsuit enters; where a defendant is in default, a default enters, but, in order to obtain judgment, the proponent ordinarily must move for judgment. Practice Book §§ 17-31 to 17-43. In the instant case, since the plaintiff was in default, a judgment of nonsuit entered. See Misata v. Con-Way Transp. Services, Inc., 106 Conn.App. 736, 739 n. 3, 943 A.2d 537 (2008).
As for the first requirement for opening judgments of nonsuit, there is no dispute as to whether the plaintiff has demonstrated a good cause of action. This requirement is satisfied. The plaintiff, by affidavit of counsel, explains the basis for the complaint. The explanation is sufficient. The defendants do not contest its sufficiency. This part of the test is satisfied.
As for the second requirement, defendants argue that the plaintiff's excuses for not answering defendants' discovery requests are insufficient. The court agrees. This requirement is not satisfied. Plaintiff explained that his failure to answer the Interrogatories and Requests for Production on time was due to an innocent mistake in mis-calendaring, office staff changes, and counsel's absence from the office after his wedding, but that the discovery was answered by September 15, 2008. Defendants pointed out, however, in their opposing memoranda dated December 4, 2008, that the discovery requests that plaintiff answered were not their discovery requests, but the discovery requests of the apportionment defendants American Medical Response and Ian Brierly. After further personnel changes at the law offices of plaintiff's counsel, a different attorney from the firm asked for the continuance at the January 16, 2009 hearing, and he attended the rescheduled hearing on the Motion to Open on March 6, 2009, arguing that discovery was answered on January 5, 2009. However, it was pointed out that the January 5, 2009 answers were in response to discovery requests by other parties, the defendants Town of Tolland and Tolland Fire Department. Plaintiff had no further explanation for not answering the January 15, 2008 discovery requests by the defendants Rockville General Hospital and Eastern Connecticut Health Network.
Thus it is clear that despite two orders of the court requiring plaintiff to respond to the January 15, 2008 discovery requests by certain deadlines, and despite several extensions and continuances, plaintiff has still not responded. The earlier personnel changes and innocent mistakes may have excused the earlier omissions, but plaintiff has no further excuses and the court cannot imagine any either. The court cannot find mistake, accident or reasonable cause. Under such circumstances, the Motion to Open must be denied. See, e.g., Biro v. Hill, supra, 231 Conn. 464; Baris v. Southbend, Inc., 68 Conn.App. 546, 553-54, 791 A.2d 713 (2002); Conway v. Hartford, 60 Conn.App. 630, 634, 760 A.2d 974 (2000).
Dismissal of a case is a severe consequence for a discovery violation. Certain standards must be met. "[T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the interests of" the other party and the court. Pietraroia v. Northeast Utilities, 254 Conn. 60, 75, 756 A.2d 845 (2000). "In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction must be proportional to the violation." Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1, 17, 776 A.2d 1115 (2001). The Practice Book gives the trial court discretion to impose sanctions for the failure to comply with discovery requests "as the ends of justice require." Practice Book § 13-14(a). "The factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct." (Citation omitted.) Biro v. Hill, supra 321 Conn. 464-65.
All of these standards have been met. Plaintiff has repeatedly failed to provide discovery responses to the defendants' initial set of Interrogatories and Requests for Production. Those discovery requests were aimed at specific information pertaining to the events, including plaintiff's particular claims of medical malpractice against the defendants and his claimed injuries. Nothing could be more basic and necessary for the defendants to have to give them a fair chance of defending themselves at trial. The "rules of discovery are designed to make a trial . . . more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." (Internal quotation marks omitted; citation omitted.) Wexler v. DeMaio, 280 Conn. 168, 188-89, 905 A.2d 1196 (2006). "The overall aim of the discovery process . . . is not only to prevent `trial by ambush' but also . . . to provide all parties with the information they need to explore settlement before trial." Sherman v. Axelrod, 49 Conn.Sup. 265, 271, 873 A.2d 277 (2005) [ 38 Conn. L. Rptr. 721]. Plaintiff was clearly ordered to respond to the discovery requests by certain dates, twice, and he failed to comply even after several additional extensions and continuances were permitted. Yet, he has not complied. Moreover, his non-compliance, at this point, cannot be attributed to inability or any other excusable circumstance. He has failed to provide discovery responses with no expectation of future compliance. This prejudices defendants' ability to defend themselves. A nonsuit in this circumstance is available, appropriate and no other alternative would be just.
III
For all of the foregoing reasons, the plaintiff's Motion to Open Nonsuit is denied.