Incardona v. Roer

• Decision Date: 20 August 2013
• Docket Number: No. 18925.,18925.
• Parties: Karen INCARDONA, Administratrix (Estate of Hazel Smart), et al. v. David ROER et al. Karen Incardona, Administratrix (Estate of Hazel Smart), et al. v. Saint Mary's Hospital et al.
• Court: Connecticut Supreme Court

309 Conn. 754

73 A.3d 686

Karen INCARDONA, Administratrix (Estate of Hazel Smart), et al.

v.David ROER et al.

Karen Incardona, Administratrix (Estate of Hazel Smart), et al.

v.Saint Mary's Hospital et al.

No. 18925.

Supreme Court of Connecticut.

Argued May 13, 2013.

Decided Aug. 20, 2013.

Karen L. Dowd, with whom were Brendon P. Levesque, Hartford, and, on the brief, Michael A. D'Amico, Watertown, for the appellants (plaintiffs).

Augustus R. Southworth III, with whom was Todd R. Michaelis, Waterbury, for the appellees (defendant Medical Components, Inc., et al.).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McDONALD and ESPINOSA, Js.

ESPINOSA, J.

The sole issue presented in this certified appeal is whether the Appellate Court properly dismissed, for lack of subject matter jurisdiction, the plaintiffs' interlocutory appeal from the trial court's order imposing monetary sanctions on the plaintiffs, Karen Incardona, in her capacity as the executrix ¹ of the estate of Hazel Smart, and in her capacity as the executrix of the estate of Harold Smart,² for failure to comply with a discovery order.³ The plaintiffs argue that because the imposition of the monetary sanctions will deplete the funds available to them to prosecute their case, the order constitutes an appealable final judgment under both prongs of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Because we conclude that the trial court's order is not a final judgment, we affirm the judgment of the Appellate Court dismissing the appeal for lack of subject matter jurisdiction.

The record reveals the following relevant facts and procedural history. The plaintiffs initially brought two separate actions,⁴ alleging that the plaintiffs' decedent,Hazel Smart, died as a result of a defective catheter used in her dialysis treatment at Greater Waterbury Gambro HealthCare, subsequently known as Davita Greater Waterbury Dialysis center. The trial court subsequently consolidated the two actions, which bring claims sounding in negligence, medical malpractice, loss of consortium and products liability, and name the following as defendants: David Roer, Gregory Buller, Marilyn Olsen, Nephrology & Hypertension Associates, P.C., Gregory David Gersten, Greater Waterbury–Gambro Healthcare, Gambro Healthcare, Inc., Davita Greater Waterbury Dialysis, Davita, Inc., DVA Renal Healthcare, Inc., Saint Mary's Hospital, AngioDynamics, Inc., and Medical Components, Inc.

The trial court's initial scheduling order set a January 31, 2011 deadline for completion of fact witness depositions. The court subsequently granted the motion of the defendants Roer, Buller, Olsen, and Nephrology & Hypertension Associates, P.C., to modify the scheduling order, extending the deadline for fact witness depositions to June 1, 2011. On August 10, 2011, the plaintiffs filed notices of deposition, seeking to schedule depositions of various fact witnesses in September, 2011. The defendants AngioDynamics, Inc., and Medical Components, Inc. (product liability defendants), objected to the noticed depositions on the ground that they were scheduled for dates subsequent to the June 1, 2011 deadline.

Ruling on the product liability defendants' objection, the court first found that the noticed depositions were beyond the deadline established by the modified scheduling order, and that the delay prejudiced the defendants, but the court determined that precluding the depositions would not be an appropriate remedy. Accordingly, the court ordered that the plaintiffs could proceed with the depositions, on the condition that they “shall pay all costs and expenses associated with the depositions, including [the] defendants' attorney's fees for both the preparation for and attendance at each noticed deposition....” The court further scheduled a status conference for October 11, 2011, “to determine whether the depositions have been completed and to consider whether any additional remedies should be crafted by the court.” The plaintiffs' subsequent motion to reargue was denied. The plaintiffs appealed from the order of the trial court to the Appellate Court. Relying on this court's decision in Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 736 A.2d 851 (1999), the product liability defendants filed a motion to dismiss the appeal for lack of subject matter jurisdiction, arguing that the trial court's discovery order was not an appealable final judgment. The Appellate Court granted the motion to dismiss in an order dated January 11, 2012. This certified appeal followed.

The plaintiffs claim that the Appellate Court improperly dismissed the appeal, contending that the trial court's discovery order satisfies both prongs of State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566, because the order terminated a separate and distinct proceeding and because the order so concluded the rights of the parties that further proceedings could not affect them. The product liability defendants respond that the court's discovery and sanctions order is a classic interlocutory order that is “merely a step along the road to final judgment....” (Internal quotation marks omitted.) Abreu v. Leone, 291 Conn. 332, 339, 968 A.2d 385 (2009). Therefore, the product liability defendants contend, the trial court's order does not constitute an appealable final judgment. We agree with the product liability defendants.

“The statutory right to appeal is limited to appeals by aggrieved parties from final judgments.” State v. Curcio, supra, 191 Conn. at 30, 463 A.2d 566. Accordingly, in the absence of a final judgment, this court lacks subject matter jurisdiction over the appeal. Id. In Green Rock Ridge, Inc. v. Kobernat, supra, 250 Conn. at 498, 736 A.2d 851, we summarized the well established general rule that discovery orders are not appealable final judgments: “An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions. Chrysler Credit Corp. v. Fairfield Chrysler–Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980); see also Presidential Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d 794 (1997) ( [t]he general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable). [W]e require that those ordered to comply with discovery be found in contempt of court before we consider an appeal....” (Internal quotation marks omitted.)

The underlying order in Green Rock Ridge, Inc. v. Kobernat, supra, 250 Conn. at 495, 736 A.2d 851, had imposed sanctions for failure to comply with a discovery order. In considering whether we had jurisdiction over the writ of error filed seeking review of the sanctions, we recognized that our prior decisions had only expressly considered the finality of discovery orders themselves and had not directly addressed the finality of any accompanying or related sanctions orders,⁵ but we explained: “We can perceive no reason or policy why we should treat the sanctions order differently, for purposes of finality of judgment, from the discovery procedure of which it is a part. We, therefore, regard it as governed by the same principles of finality as discovery orders.” Id. at 498, 736 A.2d 851. Accordingly, prior to final judgment, we have jurisdiction to hear a challenge to an interlocutory order sanctioning a party for failure to comply with a discovery order only upon a finding of contempt for failure to comply with the order.

In light of the fact specific nature of discovery disputes, however, we have since elaborated on the application of the final judgment doctrine in this context, identifying three considerations that guide our analysis. “First, the court's focus in determining whether there is a final judgment is on the order immediately appealed, not [on] the underlying action that prompted the discovery dispute.... Second, determining whether an otherwisenonappealable discovery order may be appealed is a fact specific inquiry, and the court should treat each appeal accordingly.... Third, although the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources ... there [may be] a counterbalancing factor that militates against requiring a party to be held in contempt in order to bring an appeal from a discovery order.” (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 760–61, 48 A.3d 16 (2012).

Keeping these considerations in mind, we conclude that the trial court's order in the present case falls squarely within the rule of Green Rock Ridge, Inc. v. Kobernat, supra, 250 Conn. at 498, 736 A.2d 851, and does not satisfy either of the exceptions we set forth in Curcio. First, the order did not terminate a separate and distinct proceeding under the first prong of Curcio, which “requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.... If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the first prong of Curcio .... Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial ... does not necessarily render that ruling appealable. It must appear that the interlocutory ruling will not impact directly on any aspect of the [action].” (Citations omitted; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 225–26, 901 A.2d 1164 (2006). The court's order in the present case does not satisfy this test. Rather than terminating a separate and distinct proceeding...