Opinion
CV166011527S
08-30-2018
Diana HEIDKAMP v. COLBY FAMILY CHIROPRACTIC, LLC
UNPUBLISHED OPINION
OPINION
Farley, J.
Following a lengthy series of discovery compliance motions, hearings and orders, the court grants the defendants’ eleventh motion for sanctions filed on April 9, 2018. The plaintiff’s knowing and willful disobedience of the court’s order that she attend her deposition on April 9, 2018, following her knowing and willful disobedience of a prior court order that she attend her deposition on February 15, 2018, both of which followed months of motions and hearings aimed at obtaining her compliance with written discovery, warrant the dismissal of her case, which she brought pursuant to the accidental failure of suit statute after her first lawsuit was dismissed for lack of compliance with discovery. Although the court enters a judgment of dismissal with this decision, as set forth below the plaintiff is not foreclosed from an opportunity to revive this action by mitigating the prejudice to the defendants. The burden is on her, however, to justify that relief and to accept the imposition of alternative monetary sanctions should she be successful in doing so.
FACTS AND PROCEDURAL HISTORY
On January 17, 2015, this medical malpractice action was originally commenced by the plaintiff, Diana Heidkamp, against the defendants, Colby Family Chiropractic, LLC and Christopher Colby. See Heidkamp v. Colby Family Chiropractic, LLC, Superior Court, judicial district of Tolland, Docket No. CV-15-6009047-S. On September 8, 2015, the defendants filed a motion for nonsuit on the ground that the plaintiff had failed to respond to written discovery. On September 28, 2015, the court, Cobb, Jr., granted the motion for nonsuit because the plaintiff failed to object, comply, or request an extension of time. The plaintiff failed to move to open the nonsuit within four months. See Practice Book § 17-43(a).
On September 28, 2016, the plaintiff commenced the present medical malpractice action against the defendants pursuant to the accidental failure of suit statute, General Statutes § 52-592. On March 3 and 29, 2017, the court denied the defendants’ motions to dismiss, which challenged the applicability of § 52-592 as well as the sufficiency of the opinion letter attached to the complaint pursuant to General Statutes § 52-190a. On March 31, 2017, the defendants served the plaintiff with their first set of interrogatories and requests for production. On June 21, 2017, the defendants served the plaintiff with a supplemental request for production seeking the records of a particular physician. On July 10, 2017, the defendants served the plaintiff with two supplemental requests for production and two supplemental interrogatories.
On May 31, 2017, the defendants filed their first motion for nonsuit in the present action on the ground that the plaintiff had failed to respond to their March 31, 2017 written discovery. On June 14, 2017, the plaintiff filed a notice of compliance claiming that she had complied with the defendants’ discovery by providing an additional copy of "what was provided in 2016" as well as supplemental discovery that had not previously been provided.
On July 10, 2017, the defendants filed a second motion for nonsuit claiming that the records and answers provided by the plaintiff were incomplete. On August 2, 2017, the defendants filed a third motion for nonsuit seeking dismissal of the case or sanctions on the ground that the plaintiff’s June 14, 2017 notice of compliance misrepresented that she had complied with the defendants’ March 31, 2017 discovery requests. Those requests consisted of 103 interrogatories and 20 requests for production seeking information and documents related to the medical malpractice claim. The plaintiff had not responded to those inquiries. Instead she provided responses to the standard form discovery requests designated for certain personal injury actions under Practice Book § § 13-6 and 13-9. In opposing the defendants’ second and third motions for nonsuit, the plaintiff argued that, although she had answered the wrong interrogatories and requests for production, she had nevertheless disclosed "substantially everything requested and required of her that is of assistance in the defense of the action.," along with an affidavit from plaintiff’s counsel asserting that he had engaged in good faith efforts to resolve discovery issues.
This motion for nonsuit was later sealed by the court on December 13, 2017, and the defendants refiled the motion for nonsuit in compliance with that order on December 19, 2017.
On September 11, 2017, the court heard argument on the defendants’ first three motions for nonsuit stemming from the plaintiff’s noncompliance with discovery. On that date, the plaintiff also filed objections to the defendants’ March 31, 2017 interrogatories and requests for production, as well as objections to the June 21, 2017 supplemental requests for production. The court heard arguments on those objections as well. At the hearing, the plaintiff’s counsel conceded that although he inadvertently provided answers to the standard form discovery requests, he felt that the defendants had been provided with a substantial portion of the relevant discovery sought. In a series of orders dated September 11, 2017, the court: (1) determined that the plaintiff waived her right to object to the defendants’ discovery served on March 31, 2017; (2) overruled the plaintiff’s objections to the defendants’ discovery served on June 21 and July 10, 2017; and (3) entered a revised scheduling order which directed, in relevant part, that the plaintiff respond directly to all of the defendants’ requested discovery by October 3, 2017. The court further ordered that the plaintiff appear for deposition by November 1, 2017. On September 26, 2017, the plaintiff filed notice that she had complied with the defendants’ written discovery.
On October 3, 2017, the defendants filed a fourth motion for nonsuit seeking dismissal of the case or sanctions on the ground that, despite plaintiff’s September 26, 2017 notice of compliance, the plaintiff had, once again, failed to provide complete compliance with the written discovery. The plaintiff’s answers were: nonresponsive because they merely referenced materials and answers previously provided; inadequate because they lacked requisite detail; incomplete because they omitted a portion of the requested medical records; and improper because they raised relevancy objections.
On October 30, 2017, the court held a second discovery hearing on, inter alia, the plaintiff’s fourth motion for nonsuit relating to the outstanding discovery and the difficulties that the defendants had experienced attempting to schedule the plaintiff’s deposition. At the hearing, the court received an exhibit from each party evidencing the current state of the plaintiff’s discovery compliance. The plaintiff conceded that her discovery responses were inadequate. On that same date, the court ordered the plaintiff to fully comply with the defendants’ initial March 31, 2017 discovery by November 15, 2017, and that the plaintiff attend her deposition by November 28, 2017. The court also granted the defendants’ request for sanctions, ordering that attorneys fees would be awarded at a future date following submission of an affidavit of counsel fees by defendants’ counsel.
On November 3, 2017, the defendants filed a fifth motion for nonsuit on the ground that the plaintiff failed to respond to the supplemental discovery dated June 21 and July 10, 2017. On November 15, 2017, the defendants filed their sixth motion for nonsuit claiming that the plaintiff had still failed to fully respond to any of their discovery requests and had also failed to revise her complaint as ordered by the court. On November 16, 2017, the plaintiff filed a notice of compliance claiming that she had complied with the entirety of the written discovery served by the defendants, and on November 17, 2017, she filed an objection to the defendants’ fifth motion for nonsuit averring that the defendants are "falsely claiming that the plaintiff has not responded to supplemental discovery ..." On November 21, 2017, the defendants supplemented their sixth motion for nonsuit claiming that the plaintiff had failed to provide full responses to discovery because her responses referred to attachments that, in fact, were not attached. The defendants submitted with this motion a copy of the November 15, 2017 discovery responses provided by the plaintiff, as well as certain excerpts of the transcript from the October 30, 2017 hearing in which the court specifically directed plaintiff’s counsel to answer the discovery responses "as if you’re looking at them for the first time and provide a complete response to the question that’s being asked without referencing prior responses ... If the [relevant information is] in a prior response, find it. You have to bring it over into [the new responses]."
This supplemental motion for nonsuit was later sealed by the court on December 13, 2017, and the defendants refiled the supplemental motion for nonsuit in compliance with that order on December 19, 2017.
On January 3, 2018, the court held a third hearing concerning the ongoing discovery dispute as outlined by the defendants’ most recent motions for nonsuit. During the hearing, the court examined the discovery responses submitted by the plaintiff. In contradiction to the court’s explicit direction at the prior hearing, the plaintiff’s responses continued to reference previously sent documentation as well as attachments that were not actually attached. In response to these concerns, the plaintiff counsel acknowledged the deficiencies but maintained that he had misunderstood the court’s prior directive. The plaintiff again maintained that all of the documentation had previously been provided to the defendants. The court once again ordered that the plaintiff fully comply with the defendants’ discovery requests, in accordance with the court’s previous instructions, by January 26, 2018 and the court established yet another deadline of February 28, 2018, for the plaintiff’s deposition.
On January 26, 2018, the plaintiff filed a notice of compliance stating that she had complied with the entirety of the defendants’ discovery. Nevertheless, on February 1, 2018, the defendants filed their seventh motion for nonsuit on the ground that although the plaintiff represented that she sent her responses by mail, the defendants had not received them. On February 5, 2018 the defendants requested an expedited ruling on their seventh motion, indicating that the plaintiff’s deposition was scheduled for February 15, 2018. On February 6, 2018, the defendants filed a notice indicating that they still had not received the plaintiff’s discovery responses. On February 6, 2018, the court ordered that the plaintiff shall be in full compliance with the court’s discovery orders by February 12, 2018 and that the plaintiff’s deposition proceed on February 15, 2018. The court indicated that it would consider imposing sanctions if the plaintiff failed to comply.
On February 13, 2018, the defendants filed their eighth motion for nonsuit on the ground that they still had not received the plaintiff’s discovery responses that were purportedly mailed on January 26, 2018 and, thus, the plaintiff had failed to comply with the court’s February 6, 2018 order. On February 14, 2018, the defendants filed their ninth motion for nonsuit on the ground that the plaintiff had stated to them that she would not be appearing for her deposition scheduled to be taken on February 15, 2018, notwithstanding the court’s February 6, 2018 order. Also on February 14, 2018, the plaintiff filed a motion for a protective order seeking to reschedule her deposition because she had recently moved out of state and started a new job. The court denied the motion on February 15, 2018.
On February 22, 2018, the defendants filed a supplement to their February 14, 2018 motion for nonsuit arguing that plaintiff’s counsel had been nonresponsive to requests to schedule the plaintiff’s deposition prior to February 28, 2018, as prescribed by the court’s January 3, 2018 order.
On February 28, 2018 the defendants filed their tenth motion for sanctions seeking dismissal of the case for the reason that the plaintiff had failed to appear for her deposition on February 15, 2018 in violation of the court’s orders. On March 19, 2018, the plaintiff filed a lengthy objection to the defendants’ motions for nonsuit and sanctions, the principal focus of which was a personal attack on the actions taken by defendants’ counsel in connection with the ongoing discovery dispute and also, once again, objecting to the breadth of the defendants’ discovery requests, an issue the court had resolved long ago.
On April 2, 2018, the court held a fourth hearing in an attempt to finally resolve the ongoing discovery issues. At the hearing, the plaintiff’s counsel indicated that the plaintiff had declined to appear for her deposition on February 15 because she had recently relocated 250 miles away and had started a new job. The court, of course, had already weighed those facts when it denied the plaintiff’s February 14, 2018 motion for protective order. During the hearing the court stated, on several occasions, that it was going to set a date for the plaintiff’s deposition and that the court would dismiss the case if the plaintiff failed to attend. To accommodate the plaintiff’s out of state residence and work schedule, the court attempted to identify a Friday, the plaintiff’s day off, within the following month upon which counsel were available for the deposition. Unable to identify a Friday, however, the parties agreed on the record and the court ordered that the plaintiff’s deposition was to be taken on April 9, 2018. The court again made. clear on the record that the case would be dismissed if the plaintiff failed to appear. On April 5, 2018, the plaintiff filed a motion to reschedule her April 9, 2018 deposition because she could only come to Connecticut on Fridays with reasonable advanced notice. Again, the court had already considered and ruled upon this issue. On April 6, 2018, the defendants objected to this motion and, on April 6, 2018, the court denied the plaintiff’s motion to reschedule the deposition. The deposition was to proceed on April 9, 2018. This ruling was communicated to the plaintiff by her attorney.
On April 9, 2018, the defendants filed their eleventh motion for nonsuit seeking dismissal of the case or sanctions on the ground that the plaintiff failed to appear for her deposition on April 9, 2018, in direct violation of the court’s April 2, 2018 order.
On May 7, 2018, the court held a fifth hearing on the most recent motion for nonsuit that stemmed from the plaintiff’s failure, for the second time, to appear for a court-ordered deposition. At the outset of the hearing, the parties acquiesced to the court’s consideration of all of the exhibits submitted by the parties relating to the eleventh motion for nonsuit. The defendants’ counsel abandoned the request for attorneys fees that had previously been pursued and simply sought a dismissal of the case due to the plaintiff’s willful disobedience of the court’s order that she attend a deposition on April 9, 2018. The plaintiff’s counsel represented that when he agreed to the April 9, 2018 date for the plaintiff’s deposition he had failed to fully comprehend the necessity of scheduling the plaintiff’s deposition for a Friday, when she did not have to work. The fact that the plaintiff preferred a Friday, however, was known by all at the April 2, 2018 hearing and an unsuccessful effort had been made to accommodate that preference before the April 9, 2018 date was set. It was made clear to the plaintiff at the April 2, 2018 hearing that failure to attend the deposition would result in the dismissal of the case. The plaintiff affirmatively chose to risk that outcome by defying the court’s order that she attend the deposition. The court took the defendants’ eleventh motion for nonsuit under advisement following the May 7, 2018 hearing and now renders it decision on that motion. As discussed further below, the case will be dismissed due to the plaintiff’s willful disobedience of the court’s order that she attend a deposition on April 9, 2018.
Since the May 7, 2018 hearing, a new scheduling order has been entered and the defendants have moved for summary judgment.
DISCUSSION
The defendants seek the sanction of dismissal, pursuant to Practice Book § 13-14, due to the plaintiff’s repeated defiance of court orders that she appear for her deposition. § 13-14 provides, "If any party ... has failed to appear and testify at a deposition duly noticed ... the judicial authority may, on motion, make such order as the ends of justice require." Such orders may include a judgment of dismissal.
"A trial court properly exercises its discretion in imposing a sanction for a violation of a court order when (1) the order to be complied with is reasonably clear, (2) the record establishes that the order was in fact violated, and (3) the sanction imposed is proportionate to the violation." Ridgaway v. Mount Vernon Fire Insurance Company, 328 Conn. 60, 71, 176 A.3d 1167 (2018) citing Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 14-15, 776 A.2d 1115 (2001). The proportionality of a sanction to the violation of a court order may be measured by consideration of several factors: the nature of the conduct at issue; the frequency of the party’s discovery misconduct; the extent to which the party had notice of the potential sanction; the availability of lesser sanctions; and the party’s knowledge of or participation in the misconduct. Ridgaway, supra, 328 Conn. 73. "Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority ... the court should be reluctant to employ the sanction of dismissal except as a last resort ... The sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Millbrook, supra, 257 Conn. 16-17.
In this case, the court’s order was clear. After the plaintiff defied one court order to attend a deposition on February 15, 2018, on April 2, 2018 the court ordered the plaintiff to attend a deposition on April 9, 2018. Before she refused to obey the order, on April 5, 2018, the plaintiff moved to be excused from complying with the order for the same reasons she ultimately chose not to obey the order. The court denied the motion on April 6, 2018 and ordered that the deposition go forward as scheduled. There was no ambiguity in the order and the plaintiff knew about the order. Nor is there any doubt that the order was violated. The only question is whether dismissal of the case is the appropriate sanction. The circumstances of this case, based on an analysis of the factors identified in Ridgaway, lead the court to conclude that dismissal is the appropriate sanction.
The plaintiff has been a persistent violator of the rules of discovery. The defendants have been forced to go to great lengths to obtain compliance with discovery and the court has had to conduct numerous hearings in the process. In that context, the court must view the plaintiff’s open defiance of court orders to attend a deposition with considerable concern. There was nothing inadvertent or accidental about the plaintiff’s failure to obey either of the court’s orders that she appear for her deposition on a certain date. The only explanation offered by the plaintiff is that the dates established for the deposition were inconvenient for her. Even the plaintiff’s attorney, however, recognized and acknowledged at the April 2, 2018 hearing that, after having indulged the plaintiff on multiple occasions through the course of discovery, the convenience of the plaintiff had to yield to the interests of the court in getting discovery completed and the right of the defendants to obtain significant discovery in a timely fashion. The court’s indulgence of the plaintiff included multiple changes in the scheduling order as the court struggled to extract proper responses to the defendant’s written discovery. The court also overlooked the plaintiff’s unilateral decision not to comply with the first order that the plaintiff attend a deposition on February 15, 2018. The court considered the plaintiff’s reasons for not wanting to attend the deposition on April 9, 2018 when it denied the plaintiff’s April 5, 2018 motion and determined that they did not warrant a modification of the order in light of the very difficult history of discovery compliance in the case. The plaintiff’s refusal to comply with the court’s order cannot be seen as anything less than a deliberate and contumacious disregard of the court’s authority.
Not only did the plaintiff refuse to comply with the court’s orders that she attend a deposition, the plaintiff had a history of noncompliance with discovery extending back to the original action brought in January 2015. The cumulative effect of the plaintiff’s failure to comply with written discovery inflicted considerable prejudice upon the defendants, who had to make multiple court appearances in pursuit of the discovery to which they were entitled. On numerous occasions, the plaintiff’s deposition was scheduled based upon a presumption that the plaintiff would comply with court orders to properly respond to the defendants’ written discovery. When she failed to do so, those depositions had to be rescheduled. After nearly a year devoted to obtaining proper discovery responses from her, the plaintiff then disobeyed two court orders that she attend a deposition on dates certain.
The plaintiff had ample notice that her decision not to attend the April 9, 2018 deposition would very likely result in the dismissal of her case.
Lesser sanctions than dismissal would not be effective, in the court’s judgment. Before the plaintiff’s refusal to attend a deposition became an issue, the court had already determined that monetary sanctions were appropriate based upon the plaintiff’s failure to comply with multiple orders that she provide proper responses to the defendants’ written discovery. Yet that did not deter the plaintiff from boldly disobeying the court’s orders concerning her deposition. There is no reason to believe that additional monetary sanctions will change the plaintiff’s behavior. See Forster v. Gianapoulos, 105 Conn.App. 702, 713 n.11, 939 A.2d 1242 (2008) The only other alternative- precluding the plaintiff’s testimony at trial- would be tantamount to dismissal and would only exacerbate the prejudice already imposed upon the defendants in the course of the litigation.
While the plaintiff’s attorney bears a substantial responsibility for the grueling nature of the written discovery process, the plaintiff alone is responsible for her decision to defy two court orders that she attend a deposition on certain dates. She argues in opposition to dismissal that she is willing to attend a deposition. She has not, however, lived up to similar representations in the past. She was fully aware of the consequences that would follow her decision not to attend the deposition on April 9, 2018. She chose a dismissal of her case rather than compliance with the court’s order.
In Associated Investment Company Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 645 A.2d 505 (1994), the court upheld the trial court’s denial of the defendants’ motion for judgment of dismissal and for a default on the defendants’ counterclaim premised upon the plaintiff’s failure to attend a duly noticed deposition. The trial court denied the motion because the defendants delayed filing the motion until two days prior to the commencement of trial and because there was no evidence that the failure to appear was willful or that the defendant had been prejudiced. In contrast, in Skyler Ltd. Partnership v. S.P. Douthett and Co., Inc., 18 Conn.App. 245, 557 A.2d 927 (1989), the court upheld the entry of a default against a defendant who knowingly failed to appear for a deposition that had been noticed four times. The circumstances here are more closely analogous to those in Skyler. In other similar cases, trial courts have stopped short of a default or dismissal, or have otherwise left open a path to mitigating the harm caused by a party’s noncompliance and refusal to comply with court orders. Noll v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. X04-CV-02-4034702-S (September 26, 2008) (entering a default on a defendant’s intentional failure to attend a deposition, but allowing the defendant an opportunity to comply and move the court to set aside the default); Celentano v. Sachs, Superior Court, judicial district of New Haven, Docket No. CV-95-0380613-S (January 14, 1999) (declining to dismiss a case, despite a plaintiff’s unjustified refusal to participate in a deposition). The restraint exercised by the courts reflects a judicial policy that favors bringing about a trial on the merits, where it can be done without imposing an injustice upon other parties and without undermining the legitimate interests of the court in enforcing the rules of practice.
In this case, for the reasons set forth above, there is no effective remedy short of a judgment of dismissal for the plaintiff’s refusal to attend a court-ordered deposition. A judgment of dismissal, however, is not an outcome the plaintiff must accept as a final one. Of course she is free to appeal the judgment of dismissal, but she also has the opportunity to persuade the court to exercise its discretion to set aside the dismissal pursuant to General Statutes § 52-212a and Practice Book § 17-4. Under the circumstances of this case, the prejudice to the defendants must be fully mitigated before the court would grant such a motion. Moreover, the burden of pursuing the satisfaction of the plaintiff’s discovery obligations must be shifted from the defendants to the plaintiff. Thus, the plaintiff must submit to a deposition and answer all questions posed by the defendants at a time and place that is convenient for the defendants before the court will consider setting aside the judgment. The defendants are ordered to propose three such dates between the date of this decision and sixty days thereafter and the plaintiff is ordered to accept one of those dates and appear for her deposition as ordered. Upon completion of that deposition, the court will consider a motion to set aside the judgment of dismissal. In the event that the court does set the dismissal aside, the court will also substitute monetary sanctions to mitigate the economic harm caused to the defendants associated with the plaintiff’s failure to attend the prior depositions and to properly comply with the defendants’ written discovery. Further, in the event that the judgment of dismissal is set aside, the court will consider the defendants’ motion for summary judgment before setting new dates for trial.
So ordered.