Opinion
No. CV99-0154900S
July 1, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 130) AND PLAINTIFF'S OBJECTION TO IME (#131)
This is a negligence action brought by the plaintiff for personal injuries he allegedly sustained as a result of a fall down that occurred at the defendants' premises in 1997. At a pretrial conference on this matter on April 13, 2004 before the presiding judge, the plaintiff advised the defendants, for the first time, that he underwent back surgery, in Florida, in connection with the 1997 fall down, in late 2003/early 2004. (As of that April 2004 pretrial conference, the latest medical treatment records provided to defendant, in conjunction with the plaintiff's continuing duty to disclose/update discovery, were dated February 2000.) The presiding judge ordered the plaintiff to produce the medical records of the 03/04 surgery to the defendants within 30 days. The judge assigned a trial date of September 9, 2004. The judge also ordered the plaintiff, now a Florida resident, to return to Connecticut for an independent medical examination. On May 12, 2004, defense counsel reminded plaintiff's counsel in writing of the presiding judge's orders. As of June 1, 2004, the date of Motion 130, the plaintiff has failed to comply with the orders. It was disclosed at oral argument on June 28, 2004 that: the plaintiff had additional allegedly related back surgery late June 2004, and that the plaintiff had forwarded to defense counsel incomplete information regarding February 2004 surgery after the 30 days, mandated by the presiding judge, had expired.
Motion to Dismiss
It is the defendant's belief that the court should impose the sanction of dismissal of the case on the plaintiff because his noncompliance with the presiding judge's discovery orders has prejudiced the defendant's case. In imposing sanctions for failure to comply with discovery, "[t]he 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." Biro v. Hill, 231 Conn. 462, 464-65, 650 A.2d 541 (1994).
As a result of the plaintiff's noncompliance with the discovery request, many medical records concerning the plaintiff's treatment since February 2000 were partially or never timely provided to the defendant. This dilatory practice persisted, despite the presiding judge's clear order over two months ago. The defendant's inability to use the medical records of the plaintiff's treatment over the last four years has irreparably prejudiced that portion of the defendant's preparation of its case for trial in September 2004. Without the four plus years worth of complete medical records, the defendant cannot have its own medical expert review the two 2004 surgeries to determine causation, and cannot cross examine the plaintiff's medical expert on the issue of causation.
The Supreme Court has held that a judgment of dismissal is appropriate "not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to such conduct in the absence of such deterrent." Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 145, 470 A.2d 246 (1984). "Of the available sanctions, the most severe, clearly, is the judgment of dismissal." Asztalos v. Stop Shop Supermarket, supra, 26 Conn. L. Rptr. 17.
The court finds that the plaintiff failed to comply with the defendant's discovery requests in a timely and reasonable manner in violation of Practice Book § 13-14 and that this noncompliance prejudiced the defendant's case. However, the court cannot find that the defendant's case has been irreparably prejudiced, therefore this court will not impose the most severe sanction, a judgment of dismissal. However, an order to preclude the plaintiff using its extensive noncompliance to gain an unfair advantage over the defendant, in preparation for the September 2004 trial, this court orders that the plaintiff is precluded from introducing evidence of medical treatment/procedures/pain and suffering after February 28, 2000.
Practice Book § 13-15 requires parties to comply with the continuing duty to disclose. Where a party fails to comply with its provisions, the court may prohibit that party from introducing designated matters in evidence. See Practice Book § 13-14(b)(4). Our appellate courts repeatedly have stressed the importance of compliance with the rules concerning discovery. "The purpose of [§ 13-14] is to enforce the parties' continuing responsibilities to disclose . . . Moreover, the purpose of the rules of discovery is 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.) Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 50, 634 A.2d 870 (1993).
Plaintiff's Objection to Defendant's Motion to Submit to an IME
The defendant is now a resident of the State of Florida. He has filed an objection to the defendant's request that he submit to an independent medical exam in Hartford. He does not object to the defendant's named physician. It is the plaintiff's position that "traveling to Hartford would pose an undue difficulty to the Plaintiff." At the hearing it was further explained that the plaintiff hopes to stay in the Waterbury area, during his visit back to this state, and would not want to impose on the hospitality of his hosts to ask them to drive him outside that city to a medical exam. Defendant testified that since the 1997 fall down, the plaintiff has treated with multiple doctors in the Waterbury area, thus hampering their ability to locate an independent medical professional in the Waterbury area.
Section 13-11(b) of the Practice Book expands somewhat on the language of § 52-178a of the General Statutes. If a plaintiff objects to a request for an examination, the court "may make such order as is just in connection with the request." If every objection were to be routinely granted with no adverse consequences, then there would be no purpose to the language of the Practice Book. Indeed, most courts which have considered the issue have stated that the court is to consider the nature of the objection in the context of the case to determine whether the objection is reasonable and to determine what consequence, if any, should arise from a failure to attend the examination if the objection is not reasonable. See, e.g., Rosenfield v. Milner's Cafe, 10 Conn. L. Rptr. 454, 1993 Conn.Super. 3148 (1993) (Corradino, J.); Moore v. Mintern, 23 Conn. L. Rptr. 109, 1998 Conn.Super. 2860 (1998) (Silbert, J.).
This court does not believe that the objection in issue is reasonable, in the context of the case. The ground stated, that traveling to Hartford would pose an undue difficulty to the plaintiff, is not sufficient ground for objection. There is no claim that the plaintiff is physically unable to travel the 50-mile round trip; indeed, the plaintiff is traveling from Florida to Connecticut's airport, which is located north of Hartford, on the Massachusetts border. The plaintiff necessarily has to travel through Hartford to reach the Waterbury area. This is not a claim that the physician is in any way incompetent or unethical, or that there is any adverse history between the physician and the patient. Finally, it is disingenuous of the plaintiff to raise the issue of Hartford versus Waterbury at this late date, when the appropriate time to discuss his concerns would have been the pretrial conference with the presiding judge when the IME was ordered.
The plaintiff's objection to the requested examination is overruled, with the understanding that he is not compelled by the court to submit to the examination. If he does not submit to an examination, by Dr. Lantner, the defendant is entitled to cross-examine the plaintiff on the issue, to request an adverse inference, and to an order precluding the plaintiff from offering opinion evidence in the same areas that would have been the subject of the examination.
ALVORD, J.