Opinion
No. FST CV 085007415 S
February 22, 2010
MEMORANDUM OF DECISION RE MOTION TO CONSOLIDATE and REQUEST FOR APPORTIONMENT
The plaintiffs commenced this medical malpractice action arising out of the labor of plaintiff Kelly Chieffalo and delivery of her daughter Kori Chieffalo with a return date of May 20, 2008. The defendants are medical doctors practicing obstetrics and gynecology and their professional corporations, or employers, (the obstetrician defendants) and it is alleged in a rather terse and uninformative revised complaint that they committed medical negligence in the time period leading up to a caesarean section and birth on July 23, 2007.
In a separate medical malpractice action in this court, with a return date of November 24, 2009, the same plaintiffs alleged that three defendants, a medical doctor practicing anesthesiology, his employer and Stamford Hospital (the anesthesiologist defendants) were medically negligent in connection with the same labor, caesarean section and birth on July 23, 2007. Chieffalo v. Jankelovits, CV 09 5013159.
The plaintiffs have now moved, pursuant to Practice Book § 9-5, to consolidate the two cases for trial contending that "both cases arise from the same basic set of facts and the injuries and losses being claimed are the same." A motion to consolidate was filed and served in each case. The anesthesiologist defendants in the 2009 case ( Jankelovits, et al) have not filed any response. In the 2008 case the obstetrician defendants ( Hoffman-Olson, et al) consent to consolidation on the condition that they have a right to seek apportionment against the defendants in the 2009 case. Specifically, they seek to have the cases consolidated for discovery, trial and apportionment, but at oral argument, which the court requested, the focus was on apportionment.
General Statutes § 52-102b permits a defendant, in any case to which General Statutes § 52-572h applies, to bring in as a defendant any non-party who may be liable for a proportionate share of the plaintiff's damages by way of an apportionment complaint. Section 52-572h applies to this case and negligence cases in general, and states where damages are proximately caused by the negligence of more than one party, each such party shall be liable only for such party's proportionate share of damages. Section 52-102b states that an apportionment complaint must be served within 120 days of the return date specified in the plaintiffs' original complaint. As noted, the return date in the Hoffman-Olsen case was May 20, 2008.
In Pedro v. Miller, 281 Conn. 112 (2007) the Connecticut Supreme Court reaffirmed that compliance with the 120 days time limit for apportionment complaints was mandatory, absent equitable reasons for excusing compliance, citing Lostrito v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (2004). Pedro v. Miller held that when the legal basis for apportioning liability arises after the 120-day time limit has expired, this constitutes an equitable basis for excusing compliance with the time limit, and ordered the trial court to deny a motion to dismiss an apportionment complaint.
The parties to this action have created a conundrum. The plaintiffs have chosen not to amend their original complaint to add the anesthesiologist defendants, although they concede the two actions arise from the same facts and involve the same injuries. An amended complaint would have attained the goal they now seek through consolidation and eliminated the apportionment issues raised by the obstetrician defendants. Similarly, the obstetrician defendants failed to serve an apportionment complaint within the 120 limit, and have failed to file such a complaint even after the plaintiffs' second action identified the anesthesiologist defendants. Such a complaint might have success under the Pedro v. Miller holding, although the facts are not exactly similar. Finally, the 120 time limit has not expired for the anesthesiologist defendants to file an apportionment complaint against the obstetrician defendants in the second case, and such apportionment complaint might go a long way in resolving some of the issues.
In short, the court is being asked to do what the parties have not yet chosen to do themselves, i.e. consolidate the cases and essentially make them one case where liability will be apportioned among the respective defendants. The court's authority under Practice Book § 9-5 does not extend that far; it only extends to consolidating cases for the purpose of trial. Furthermore, the purpose of consolidation is to reduce duplication and complication, and the court is not convinced that the consolidation of these two cases without the apportionment issue being satisfactorily resolved will make the job of the jury in sorting through the issues any easier, and it possibly may make it more difficult. Thus, the advantages of consolidation have not yet been made apparent and there is no apportionment complaint to rule on.
The court denies the motion to consolidate without prejudice to renewal at a later date when the apportionment status of the two cases is more developed. The court, for the reasons stated herein, will also deny the motion to consolidate filed in CV 09 5013159.