Opinion
No. CV-05-5000411S
July 20, 2007
RULING ON DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTION TO REOPEN JUDGMENT OF NONSUIT (#130)
In this case, the plaintiff Rita Cruz (Cruz) alleges she sustained personal injuries to her right arm and shoulder as a result of falling on ice on January 31, 2003 at a North Branford apartment housing complex where she resided. The defendant National Associated Properties, Inc. (National) objects to the plaintiff's motion to open a judgment of nonsuit. National maintains that Cruz has failed to demonstrate that she was prevented from prosecuting her action "by mistake, accident or other reasonable cause," General Statutes § 52-212(a), and thus has not satisfied a statutory prerequisite for opening a judgment of nonsuit. The court agrees.
The following is the relevant procedural history: On September 27, 2005, National filed a motion for order asking for a dismissal of the plaintiff's case for her failure to respond to written discovery dated April 27, 2005. Attached to National's motion were copies of letters sent to plaintiff's counsel on August 11 and 29, 2005 specifying the areas of discovery noncompliance which included, among other things, Cruz's failure to turn over medical records concerning injuries she had sustained in two prior motor vehicle accidents. Rather than granting National's motion outright, the court (Devlin, J.), exercising its discretion pursuant to Practice Book § 13-14, entered an order on October 11, 2005 directing the plaintiff to comply with the discovery request by November 15, 2005 or face the entry of a nonsuit. Cruz neither complied with the court's order nor moved for any extension of time to permit compliance. However, Cruz did object to a motion for nonsuit that National filed on November 17, 2005, but did not claim for the court's consideration, based on her noncompliance with Judge Devlin's order.
The August 11, 2005 letter contained ten paragraphs and paragraphs 2, 3 and 4 specifically asked for records from the 1993 and 1999 motor vehicle accidents. The August 29, 2005 letter asked for records regarding a hip injury sustained in a 1997 fall.
In her objection, filed on November 28, 2005, Cruz stated that "she had fully complied with defendant's discovery request" although there had been no additional disclosure made in compliance with the court's October 11, 2005 order.
On March 15, 2006, National filed a second motion for nonsuit based on Cruz's failure to comply with the court's order, again attaching the August 2005 letters as well as a letter dated December 2, 2005 that also identified specific areas of noncompliance. Cruz did not file any objection to the motion for nonsuit. A judgment of nonsuit was entered by the court (Levin, J.). on April 10, 2006. On August 4, 2006, Cruz filed a motion captioned "Motion to Reopen Judgment of Nonsuit" with an affidavit from counsel in which he averred that "the plaintiff claims rotator cuff injury to her right shoulder as a result of this . . . accident and never injured said body part previous . . . to this accident; [t]he defendant's request for medical information was irrelevant and not related to this claim" and that the plaintiff "has completely and fully complied with the defendant's discovery and . . . has provided the defendant with as much discovery as is possible and medical authorizations."
Specifically, the December 2, 2005 letter directed counsel to paragraphs 5 through 10 of the August 11, 2005 letter. Counsel was also asked to provide physical therapy records related to the 1999 motor vehicle accident in which the plaintiff sustained an injury to her right shoulder.
On May 18, 2006, a co-defendant, Snow Solutions, LLC, also filed a motion for nonsuit based on the plaintiff's failure to produce medical records. This motion was never decided by the court. Two of the letters attached to the motion, dated August 11, 2005 and May 16, 2006, however, sought the 1993 and 1999 treatment records that are at issue here.
These averrals were not accurate. In fact, counsel had failed to provide the notes of Cruz's office visits with her medical providers in connection with two prior motor vehicle accidents, in 1993 and 1999, for which she received permanency ratings, and also failed to provide the amount of the Medicare lien related to the injury she alleged she sustained in this case. Moreover, physical therapy and treatment records, which were finally disclosed on June 15, 2007, reveal injury to and treatment of the right shoulder in 1999 and complaints of bilateral shoulder injury in 1993.
At the June 4, 2007 hearing on the defendant's objection to opening the judgment of nonsuit, the court gave counsel until June 18, 2007 to file a supplemental affidavit regarding the efforts he made between August 11, 2005 and August 4, 2006 to obtain and provide the plaintiff's 1993 and 1999 records. Counsel submitted an affidavit dated June 15, 2007 which does not contain any specific dates. However, counsel averred that the medical records from 1999 were "in my possession in closed files" and that he obtained the 1993 records by contacting Cruz's medical providers. Counsel had represented Cruz in connection with both the 1993 and 1999 accidents. On June 18, 2007, counsel filed a "Supplemental Discovery Response" with the clerk to which he attached treatment records from 1993 and 1999. He apparently had no difficulty in obtaining these records between June 4, 2007 and June 18, 2007 although he had been unable to obtain them during the year that elapsed from August 11, 2005 to August 4, 2006.
"The power of a court to set aside a nonsuit judgment is controlled by § 52-212." Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988). General Statutes § 52-212(a) provides, in pertinent part, that a judgment of nonsuit "may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment . . ., and that the plaintiff . . . was prevented by mistake, accident or other reasonable cause from prosecuting the action . . ." "The granting of relief under this statute, when its provisions are properly complied with, lies within the sound discretion of the trial court. But the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause under the statute." Jaquith v. Revson, 159 Conn. 427, 431-32, 270 A.2d 559 (1970). In Jaquith, the Supreme Court affirmed the denial of a motion to open a judgment of nonsuit on the grounds that the moving party "failed to set forth facts showing reasonable cause for not complying with the court order or that she was prevented from by mistake, accident or other reasonable cause from complying." (Emphasis supplied.) Id. at 432. Rather, the court concluded that the moving party's failure to comply was a result of her own negligence and did not satisfy the statute's reasonable cause requirement.
Similarly, Cruz has not demonstrated any reasonable cause for failing to comply with the court's October 11, 2005 order of compliance and she has not demonstrated that she was prevented from complying with that order due to mistake, accident or reasonable cause. To the contrary, it appears that Cruz chose not to comply with the court's order based on counsel's belief that the medical records that National had requested were "irrelevant and not related" to the injury alleged to have been sustained in this case and that counsel had provided everything relevant to National and was under no obligation to do anything more. The actual records, finally disclosed in the plaintiff's June 15, 2007 supplemental discovery response, belie that belief.
Practice Book § 13-2 permits discovery of information or disclosure of records "if the disclosure sought would be of assistance in the . . . defense of the action" or "if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." This is a broad rule. "The discovery rules are designed to facilitate trial proceedings and 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 practicable extent." (Internal quotation marks omitted.) Chief of Police v. Freedom of Information Commission, 52 Conn.App. 12, 16, 724 A.2d 554 (1999), aff'd, 252 Conn. 377, 746 A.2d 1264 (2000).
In this case, Cruz has alleged that she injured her right shoulder. She was obliged to provide discovery to National regarding treatment by a doctor "for any conditions which were in any way similar or related" and regarding prior incidents in which she sustained "similar or related" personal injuries within the ten-year period before January 31, 2003. Practice Book Form 202, ¶¶ 19, 20; Practice Book Form 205 ¶ 2. Thus, National rightfully sought to discover the records of Cruz's 1993 and 1999 accidents which include complaints of injury to the right shoulder. Furthermore, in this case Cruz seeks to be compensated for restrictions in her activities and the diminution of the quality of her life based on permanent injuries. Evidence of prior permanency ratings and prior limitations is relevant to the issue of an award of non-economic damages for any permanent injury sustained in this case. See Fahey v. Clark, 125 Conn. 44, 47, 3 A.2d 313 (1938). Finally, the records of prior treatment to her shoulders may be relevant to the issue of credibility if, for example, Cruz had failed to disclose prior shoulder complaints to her current treaters. Cf. Olkowski v. Dew, 48 Conn.App. 864, 870, 713 A.2d 264, cert. denied, 256 Conn. 901, 717 A.2d 239 (1998).
If counsel believed, as he has averred, that the medical records were irrelevant or that they did not concern a condition or injury that was similar or related, he could have objected pursuant to Practice Book §§ 13-8 and 13-10. However, he could not choose to unilaterally disregard the court's order to provide proper discovery compliance.
The "reasonable cause" standard of General Statutes § 52-212(a) is premised on equitable notions. "Reasonable is a relative term which varies in the context in which it is used, and its meaning may be affected by the facts of the particular controversy . . . It is also synonymous with [e]quitable, fair, just." (Internal quotation marks omitted; internal citations omitted.) Jacobs v. Fazzano, 59 Conn.App. 716, 724, 757 A.2d 1215 (2000). Counsel's decision to disregard the court's order to comply with a proper discovery request for documents that were already in his possession, see footnote 5 supra, was neither fair, just or equitable nor mistaken or accidental. Counsel's failure to provide the requested documents in a timely fashion was negligent. The court is cognizant of the general policy preference to have each case decided on the merits if "that can be brought about with due regard for necessary rules of procedure." See Fedus v. Planning Zoning Commission, 278 Conn. 751, 769-70, 900 A.2d 1 (2006) and cases cited therein. The plaintiff's failure to duly regard the requisite practice rules in this case is blatant and should not be rewarded.
Accordingly, the court concludes that there is no factual basis to find that a mistake, accident or reasonable cause led to the entry of the judgment of nonsuit. The defendant National's objection is sustained.