Opinion
CV166062726
04-08-2019
Enrico Vaccaro, Administrator of the Estate of Marie J. Vaccaro v. Christopher Loscalzo, M.D. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS FOR LACK OF DILIGENCE AND AWARD OF COSTS (#117)
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL BACKGROUND
It is important for the court to set forth the chronology of the procedural history in this case in order for the court to determine if this case has been prosecuted with diligence.
On May 26, 2016, the plaintiff, Enrico Vaccaro, Administrator of the Estate of Marie J. Vaccaro (plaintiff) commenced this wrongful death action by service of writ, summons and complaint against the defendants, Christopher Loscalzo, M.D., Cardiology Associates of New Haven, P.C., Yale Medical Group, Yale University School of Medicine and Yale New Haven Hospital (defendants). The return date is June 21, 2016, and the original complaint was returned to court on June 3, 2016. The original complaint contains six counts and alleges the following facts. "Loscalzo is a cardiologist who treated ... [Marie J. Vaccaro (decedent) ] and was a member, agent, servant, and/or employee of the remaining defendants. The defendants undertook the continuous medical care and treatment of the decedent, starting on or about November 9, 2009, through and including the date of the decedent’s death on December 26, 2015. The defendants negligently cared for, treated, and diagnosed the decedent, and negligently monitored and supervised the decedent’s medical treatment. The negligence primarily involved the decision to discontinue a prescription, Coumadin, and replace it with aspirin. As a result of the defendants’ negligence, the decedent suffered a massive stroke and, ultimately, died.
"The plaintiffs divide the six-count complaint into two parallel sets of postmortem and antemortem claims. Counts one through three of the plaintiffs’ complaint assert claims for wrongful death, loss of consortium, and a claim for reimbursement for any liability incurred per § 46b-37 for antemortem or postmortem expenses, relating to the decedent’s treatment, stroke, and death. Counts four through six of the plaintiffs’ complaint assert antemortem claims for medical malpractice, loss of consortium, and a claim for reimbursement for any liability incurred per § 46b-37 for antemortem expenses, relating to the decedent’s treatment and stroke." Vaccaro v. Loscalzo, Superior Court, judicial district of New Haven, Docket No. CV-16-6062726-S (August 24, 2017, Wilson, J.) .
On January 17, 2017, counsel filed a joint scheduling order which was approved by the court on January 19, 2017. The scheduling order included the following filing deadlines:
File Certificate of Closed Pleadings: March 1, 2017
Exchange written discovery requests: April 1, 2017
Exchange discovery responses: June 1, 2017
Complete fact witness depositions: August 1, 2017
Disclose Plaintiff’s experts: October 15, 2017
Depose Plaintiff’s experts: December 15, 2017
Disclose defense experts: March 2, 2018
Depose defense experts: May 1, 2018
Trial management conference: May 21, 2018
Trial: June 5, 2018
Despite these clear deadlines, the plaintiff did not serve any discovery, take any depositions, close the pleadings, disclose any experts or respond to outstanding discovery requests.
Defense counsel attempted to work with plaintiff’s counsel since the beginning of the case. According to defense counsel, the parties discussed certain revisions to the complaint, and after said discussions, defense counsel was under the impression that an amended complaint would be forthcoming. However, after waiting several months for an amended complaint, defense counsel was forced to file a partial motion to strike.
"On February 17, 2017, the defendants filed a motion to strike counts three through six of the plaintiffs’ complaint on the ground that they fail to state claims upon which relief can be granted. The defendants concurrently filed a memorandum of law in support of their motion to strike. The plaintiffs [did not file] an objection." Vaccaro v. Loscalzo, supra, Superior Court, Docket No. CV-16-6062726S.
On August 24, 2017, the court granted the motion to strike counts three, four, five and six of the plaintiff’s complaint. On October 6, 2017, the defendants answered the remaining counts of the complaint. On November 29, 2017, the defendants filed a motion to dismiss (No. 117) for plaintiff’s failure to diligently prosecute the case. This motion appeared on the court’s January 16, 2018 arguable short calendar. Attorney Joseph Gasser appeared for the defendant, however plaintiff’s counsel failed to appear. At oral argument, the court stated that it would give plaintiff’s counsel until February 5, 2018 to respond to the motion to dismiss and would reschedule the matter for argument. F.T.R., 1/16/2018. As of January 16, 2019, the date of oral argument on the motion, plaintiff still had not complied with the scheduling order or defendants’ request for discovery.
Edison shows that on February 7, 2018, the court denied the defendant’s motion to dismiss and issued the following order: "2/28/2018 10:00 A.M. This case is scheduled for a status conference with the Honorable Robin L. Wilson on the date and time shown above. All counsel of record must attend. The court further gives notice that it will hear argument on the record regarding defendant’s pending motion to dismiss. Counsel for the plaintiff must appear at the scheduled status conference and hearing and show cause why this action should not be dismissed and costs awarded for failure to diligently prosecute. Failure to appear may result in entry of dismissal or default. Please report to Judge Wilson’s courtroom at 4C (New Haven Superior Court, 235 Church St., New Haven)." (No. 117.01).
On November 29, 2017, the same date the defendants filed their motion to dismiss, they filed a motion for order of compliance. In that motion, the defendants "move[d] for an order requiring Plaintiff to comply with Defendants’ Interrogatories and Requests for Production dated July 21, 2017 or, in the alternative, for an order of nonsuit. Responses were due by September 21, 2017; Plaintiff has neither responded nor sought an extension of time to respond. Counsel for Defendants attempted to resolve Plaintiff’s non-compliance without consuming judicial resources. See Exhibit A (email dated October 6, 2017). Having received no response from Plaintiff’s counsel, Defendants respectfully request that this Court either order Plaintiff to respond or enter an order of nonsuit against Plaintiff for failure to comply with his discovery obligations." (No. 118). On February 7, 2018, the court ordered the plaintiff to comply with discovery by March 2, 2018.
In accordance with the court’s order issued on February 7, 2018, a status conference was held on February 28, 2018. At the status conference, plaintiff’s counsel acknowledged that compliance with the deadlines set forth in the scheduling order had not been met, nor had discovery been produced in response to defendants’ discovery requests which were due on September 21, 2017. Plaintiff’s counsel relayed to the court and to defense counsel personal reasons why deadlines were not met and discovery compliance had not been met. After discussions with both counsel, the court issued the following order in accordance with the discussions at the status conference: "Pursuant to a status conference held on February 28, 2018 the parties have agreed to file a joint Modified Scheduling Order on or before March 14, 2018. Failure to comply with the court’s order by filing said Modified Scheduling Order on the date herein ordered could result in the entry of a dismissal or default against the noncomplying party." (No. 119). On March 16, 2018, plaintiff’s counsel filed a Modified Scheduling Order signed by both counsel, and the court approved same on March 20, 2018. The Modified Scheduling Order (121.00) included the following deadline dates:
File Certificate of Closed Pleadings: March 31, 2018
Exchange written discovery requests by: June 1, 2018
Exchange responses to discovery requests by: September 1, 2018
Any dispositive motions to be filed by: October 15, 2018
Responses to dispositive motions file by: November 15, 2018
Dispositive motions shall be marked ready no later than: December 3, 2018
Disclose Plaintiff’s experts by: August 15, 2018
Disclose Defendants’ experts by: January 15, 2019
Complete depositions:
Plaintiff’s fact witnesses by: April 30, 2018
Defendants’ fact witnesses by: June 30, 2018
Plaintiff’s experts by: November 1, 2018
Defendants’ experts by: April 1, 2019
Counsel further agreed that plaintiff would respond to defendants’ outstanding written discovery on/or before March 28, 2018. Based upon the filing of the Modified Scheduling Order by the parties, and the court’s approval of same, a trial date was continued to March 19, 2019, from its original date of June 5, 2018, and a Trial Management date was set for March 5, 2019.
On March 15, 2018, seven months after the court’s August 24, 2017 ruling on the defendants’ motion to strike, the plaintiff filed a substituted complaint. The plaintiff’s substituted complaint which was filed a year ago, still contains a non-cognizable statutory claim under General Statutes § 46b-37, which was stricken by this court. In addition, the plaintiff Enrico F. Vaccaro died in May 2016, nearly three years ago and his estate has not been substituted as the proper party in this case.
Due to plaintiff’s counsel’s continued failure to prosecute this case, by failing to comply with scheduling orders, and by failing to respond to the defendants’ request for discovery, defendants again, on October 15, 2018, moved to dismiss the case for lack of diligence. The defendant also filed a motion for summary judgment on grounds that the plaintiff failed to disclose an expert in support of his medical negligence claim and derivative loss of consortium claim and therefore could not meet his burden of proof, thus, entitling the defendants to judgment as a matter of law. Both motions were scheduled for oral argument on December 10, 2018. During oral argument on the motions, counsel for the plaintiff represented that he needed to get out of the case due to health issues and personal issues and requested thirty days to allow the plaintiff to obtain new counsel. Counsel for the plaintiff acknowledged on the record that the case had not moved forward, and that the lack of prosecution of the case was no fault of the plaintiff’s but rather counsel’s fault. Counsel further stated that if the court was going to issue a sanction for failure to prosecute with diligence, it should sanction counsel. Attorney Edwards asked the court for thirty days so that he could assist the plaintiff in obtaining new counsel. The court granted plaintiff’s counsel’s request and gave him until January 9, 2019, to file a withdrawal of appearance in accordance with P.B. § 3-10. The court further ordered that an appearance by new counsel be filed by no later than January 9, 2019. The court rescheduled oral argument on the motion to dismiss (#122) and the motion for summary judgment (#123) for January 14, 2019. The court heard oral argument on January 14, 2019. Plaintiff’s counsel failed to comply with the court’s order of January 9, 2019. At oral argument on January 14, 2019, counsel for the plaintiff stated that the reason he did not file the withdrawal was because he was not comfortable filing the motion to withdraw and "leav[ing] [attorney Vaccaro] hanging." Counsel stated that he had been making attempts to assist attorney Vaccaro in obtaining new counsel, and that he did not want to "abandon" him without assisting him in obtaining new counsel. F.T.R., January 14, 2019.
On January 14, 2019, after the court heard argument, it issued the following order: "Based upon argument before the court on January 14, 2019, the court hereby issues the following order. By no later than February 13, 2019, counsel for the plaintiff shall file a withdrawal of appearance in accordance with Practice Book § 3-10. It is further ordered that by no later than February 13, 2019, plaintiff shall file an appearance as a self-represented party or new counsel shall file an appearance by said date. All expert disclosures shall be filed by no later than February 13, 2019. Oral Argument on the motion to dismiss (#122) and motion for summary judgment (#123) is rescheduled for Monday, February 18, 2019 at 9:30 A.M. in Courtroom 4C. Any supporting or opposing memoranda must be on file no later than the previous Thursday. The plaintiff, attorney Enrico Vaccaro is hereby ordered to appear at oral argument. No continuances will be granted absent compelling reasons and for good cause shown. In light of the court’s ruling above, jury selection in this case is continued to July 12, 2019. A TMC is scheduled for June 28, 2019 at 11:00 A.M. The clerk is directed to schedule oral argument and the new trial and TMC dates in accordance with the court’s order." Docket Entry No. 122.20. At the request of plaintiff’s counsel, and with the consent of defendant’s counsel, oral argument was continued from February 18, 2019 to March 11, 2019.
On March 11, 2019, plaintiff’s counsel and defendants’ counsel appeared. Although the court ordered plaintiff, attorney Enrico Vaccaro to appear, due to a medical condition, the court allowed him to appear by phone. As of March 11, 2019, plaintiff’s counsel failed to comply with the court’s January 14, 2019 order. A new appearance of counsel was not filed on or before February 13, 2019, and had not been filed as of the date of oral argument. Expert disclosures were filed the day after the court ordered deadline without any explanation from counsel of any compelling reason or good cause for missing the court-ordered deadline.
Again, after the court having given plaintiff’s counsel ample opportunity to get this case on track and obtain new counsel for attorney Vaccaro, as promised, he failed to do so. Moreover, attorney Vaccaro vehemently objected to counsel’s motion to withdraw appearance and disputed the representations made to the court by plaintiff’s counsel regarding counsel’s assistance in obtaining new counsel for attorney Vaccaro. Vaccaro further represented that he looked at the Judicial Branch website and noticed that not much was going on with the case. He contacted attorney Edwards and Edwards represented to him, at that time, that he was going to get the case on track. Vaccaro represented that he hired Attorney Edwards in 2016, and that he just learned, in February 2019, of attorney Edwards’ need to withdraw from the case, and the basis of attorney Edwards’ motion to withdraw. Vaccaro further represented that to allow attorney Edwards to withdraw under the circumstances would significantly prejudice his interests. He further argued that attorney Edwards had not established good cause, under rule 1.16 of the professional rules of conduct to withdraw from the case. After hearing argument of all counsel, the court ruled from the bench on plaintiff’s counsel’s motion to withdraw and denied the motion. The court advised the parties that it would take the motion to dismiss under consideration and issue a written decision on the motion.
Rules of Prof. Conduct, Rule 1.16 provides: "Rule 1.16. Declining or Terminating Representation.
DISCUSSION
Practice Book § 14-3 provides in relevant part: "(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests."
" ‘Practice Book § 14-3 reflects the judicial branch’s interest in having counsel prosecute actions with reasonable diligence. Judges, faced with case flow management concerns, must enforce the pace of litigation coming before the court, rather than allowing the parties to do so.’ (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn.App. 775, 786, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). ‘Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.’ (Internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984). This court has previously established that ‘lengthy periods of inactivity by the plaintiff constitute sufficient grounds for a trial court to determine that the plaintiff has failed to prosecute an action with reasonable diligence. Bobbin v. Sail the Sounds, LLC, 153 Conn.App. 716, 729, 107 A.3d 414 (2014), cert. denied, 315 Conn. 918, 107 A.3d 961 (2015); see Kalb v. Aventis Cropscience, USA, Inc., 144 Conn.App. 600, 604-06, 74 A.3d 470 (affirming trial court’s decision to deny motion to open asbestos litigation that was dismissed for lack of diligence because surviving spouse had failed to take action in case for three and one-half years), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).
" ‘The ultimate determination regarding a motion to dismiss for lack of diligence is within the sound discretion of the court ... Under [Practice Book § 14-3], the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court must determine whether the party’s diligence falls within the reasonable section of the diligence spectrum ... Courts must remain mindful, however, that [i]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible ... and that [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy [if] that can be brought about with due regard to necessary rules of procedure ...’
" ‘A trial court properly exercises its discretion to dismiss for failure to prosecute if the case has been on the docket for an unduly protracted period or the court is satisfied from the record or otherwise that there is no real intent to prosecute ...’ Nickerson v. Gachim, supra, 183 Conn. at 415, 439 A.2d 379; see, e.g., id., at 414-15, 439 A.2d 379 (no abuse of discretion when trial court dismissed case after two years of inactivity, numerous appearances of case on trial list, and party’s failure to answer call regarding case on dormancy list); see also Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. at 31, 34, 474 A.2d 787 (no abuse of discretion when trial court dismissed case following party’s failure to return to court following recess); Kalb v. Aventis Cropscience, USA, Inc., supra, 144 Conn.App. 604, (no abuse of discretion when trial court determined plaintiff lacked diligence on ground that, inter alia, plaintiff took no action in case for three and one-half years), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013); Pereira v. Blau, 2 Conn.App. 377, 378-79, 478 A.2d 1044 (1984) (affirming dismissal and denial of motion to open judgment for failure to prosecute where counsel failed to appear at final jury assignment list), cert. denied, 194 Conn. 810, 484 A.2d 943 (1984)." Bobbin v. Sail the Sounds, LLC, supra, 153 Conn.App. at 726-27, 107 A.3d 414.
The plaintiff commenced the present action in May 2016, nearly three years ago. In the nearly three years since the commencement of this case, the case has barely been advanced. As previously noted, in January 2017, the parties jointly submitted a scheduling order which the court approved. Pursuant to this scheduling order trial was scheduled for June 5, 2018. Despite the clear deadlines set forth in the scheduling order, the plaintiff failed to serve any discovery, take any depositions, close the pleadings, timely disclose any experts or respond to outstanding discovery requests.
In addition, defendants filed a motion to strike, to which the plaintiff failed to object, or, appear at oral argument. The court granted the motion to strike and although the plaintiff filed a substituted complaint, the complaint still contains a non-cognizable statutory claim under General Statutes § 46b-37, which was stricken by the court on August 24, 2017. In addition, the plaintiff, Enrico F. Vaccaro, who has a loss of consortium claim, died in May 2016, nearly three years ago, and his estate has not been substituted as the proper party.
Due to the plaintiff’s inaction on this case, the defendants filed a motion to dismiss on November 29, 2017. This court denied the motion on February 7, 2018, and scheduled the matter for a status conference on February 28, 2018. The parties appeared for the status conference at which time plaintiff’s counsel requested additional time to comply with discovery, and represented to the court that he would get the case back on track. Based upon counsel’s representations at the status conference, the court ordered counsel to jointly file a modified scheduling order by no later than March 14, 2018. Plaintiff’s counsel filed the modified scheduling order on March 16, 2018, and the court approved same on March 20, 2018. Pursuant to the modified scheduling order, the trial in this case was continued from its original date of June 5, 2018 to March 19, 2019.
Between March 2018 and October 2018, counsel for the plaintiff did absolutely nothing on the case, despite his representations to the court at the status conference held in February 2018, and despite the clear deadlines set forth in the modified scheduling order. On October 15, 2018, the defendants again filed a motion to dismiss for lack of diligence. The court scheduled "a show cause [hearing] ... for Monday, December 10, 2018 at 9:30 A.M. in Courtroom 4C. The plaintiff is hereby ordered to produce the requested discovery by said date or appear and show cause why a dismissal should not be entered for failing to prosecute this case ..." Counsel appeared on December 10, 2018. At the hearing, plaintiff’s counsel represented to the court that he was having personal issues and that he needed to get out of the case and that he wanted thirty days to file a motion to withdraw and to assist attorney Vaccaro in getting new counsel. Attorney Edwards acknowledged that the case had not been prosecuted diligently and that the status of the case was no fault of counsel’s client but due to his own actions. Pursuant to this hearing the court issued an order directing Attorney Edwards to file a motion to withdraw by January 9, 2019, and that new counsel file an appearance by January 9, 2019. The court rescheduled argument on the motion to dismiss and motion for summary judgment for January 14, 2019. Counsel appeared on January 14, 2019, and once again, plaintiff’s counsel failed to comply with the court’s order. Pursuant to the January 14, 2019 hearing, the court ordered counsel for the plaintiff to file a motion to withdraw by no later than February 13, 2019. The court further ordered the plaintiff to file an appearance as a self-represented party or new counsel file an appearance by no later than February 13, 2019. The court rescheduled oral argument on the motions to dismiss and for summary judgment for February 18, 2019. In light of the court’s January 14, 2019 order, the court continued the trial in this matter to July 12, 2019. The court further ordered attorney Vaccaro to appear at the February 18, 2019 hearing. As previously noted, at the request of plaintiff’s counsel, and with the consent of defendants’ counsel, the February 18, 2019 hearing was continued to March 11, 2019.
The court will not reiterate what it has previously noted took place at the March 11, 2019 hearing. As of the date of the March 11, 2019 hearing, there had been zero discovery. The plaintiff had not responded to basic discovery requests which were served back in July 2017. This court had twice ordered the plaintiff to respond to discovery without avail. No depositions have occurred despite defendant’s multiple notices for plaintiff’s deposition. The pleadings have not been closed. Plaintiff has failed to correct defects in his complaint in accordance with the court’s ruling on defendant’s motion to strike, and an estate has not been substituted as the proper party for the plaintiff decedent Enrico F. Vaccaro, who died in May 2016. This court on numerous occasions has provided plaintiff’s counsel with every opportunity to get this case on track, whether it be by way of the granting of a continuance so that counsel could conduct discovery and disclose experts, or whether it was for the purpose of withdrawing from the case and assisting attorney Vaccaro in obtaining new counsel. Counsel simply failed to comply with the court’s orders.
CONCLUSION
Accordingly, for the foregoing reasons, the court concludes that the plaintiff has failed to prosecute this case with diligence, and the defendants have been severely prejudiced as a result of same. The defendants’ motion to dismiss is therefore granted. The court does not award costs.
In light of the court’s ruling on the motion to dismiss, it is not necessary for the court to rule on the motion for summary judgment.
(a) Except as stated in subsection (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) The representation will result in violation of the Rules of Professional Conduct or other law;
(2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) The lawyer is discharged.
(b) Except as stated in subsection (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of the fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. If the representation of the client is terminated either by the lawyer withdrawing from representation or by the client discharging the lawyer, the lawyer shall confirm the termination in writing to the client before or within a reasonable time after the termination of the representation.