Vaccaro v. Loscalzo, 120820 CTCA, AC 42951

Docket Nº:AC 42951
Opinion Judge:BRIGHT, C. J.
Attorney:Paul T. Edwards, with whom was Bruce Jacobs, for the appellants (plaintiffs). Patrick M. Noonan, with whom, on the brief, was Kristianna L. Sciarra, for the appellees (defendants).
Judge Panel:Bright, C. J., and Cradle and Suarez, Js.
Case Date:December 08, 2020
Court:Appellate Court of Connecticut




No. AC 42951

Court of Appeals of Connecticut

December 8, 2020

Argued September 16, 2020

Procedural History

Action to recover damages for, inter alia, the allegedly wrongful death of the named plaintiff's decedent as a result of the defendants' negligence, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Wilson, J., granted the defendants' motion to dismiss and rendered a judgment of dismissal, from which the plaintiffs appealed to this court. Affirmed.

Paul T. Edwards, with whom was Bruce Jacobs, for the appellants (plaintiffs).

Patrick M. Noonan, with whom, on the brief, was Kristianna L. Sciarra, for the appellees (defendants).

Bright, C. J., and Cradle and Suarez, Js.



The plaintiffs, Enrico Vaccaro (Attorney Vaccaro), acting as the administrator of the estate of Marie J. Vaccaro (decedent), and Enrico F. Vaccaro, the now deceased husband of Marie J. Vaccaro, 1 appeal from the judgment of the trial court dismissing for failure to prosecute with due diligence2 their substitute complaint against the defendants, Christopher P. Loscalzo, Cardiology Associates of New Haven, P.C., Yale Medical Group, Yale University School of Medicine, and Yale New Haven Hospital, Inc. The plaintiffs claim that the court abused its discretion in dismissing the substitute complaint. We affirm the judgment of the trial court.

The trial court, in a very thorough memorandum of decision, set forth the following procedural history of this case. ‘‘On May 26, 2016, the plaintiff[s] . . . commenced this wrongful death [and loss of consortium] action by service of writ, summons and complaint against the 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 . . . .

‘‘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 [General Statutes] § 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. . . .

‘‘On January 17, 2017, counsel filed a joint scheduling order [that] 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 the plaintiff[s'] experts: October 15, 2017

‘‘Depose the 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[s] did not serve any discovery, take any depositions, close the pleadings, disclose any experts, or respond to outstanding discovery requests. [The defendants'] counsel attempted to work with the plaintiff[s'] counsel since the beginning of the case. According to [the defendants'] counsel, the parties discussed certain revisions to the complaint, and after said discussions, [the defendants'] counsel was under the impression that an amended complaint would be forthcoming. However, after waiting several months for an amended complaint, [the defendants'] 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. . . .

‘‘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 . . . for the 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 defendants, however the plaintiff[s'] counsel, [Paul T. Edwards], failed to appear. At oral argument, the court stated that it would give the plaintiff[s'] counsel until February 5, 2018, to respond to the motion to dismiss and would reschedule the matter for argument. . . . As of January 16, 2019, the date of oral argument on the motion, [the plaintiffs] still [have] not complied with the scheduling order or the defendants' request for discovery.

‘‘[O]n February 7, 2018, the court denied the defendant[s'] motion to dismiss and issued the following order: [February 28, 2018 10 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 the defendant[s'] pending motion to dismiss. Counsel for the plaintiff[s] 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). . . .

‘‘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 [the plaintiffs] to comply with the 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; [the plaintiffs] [have] neither responded nor sought an extension of time to respond. Counsel for the defendants attempted to resolve [the plaintiffs'] noncompliance without consuming judicial resources. . . . Having received no response from [the plaintiffs'] counsel, the defendants respectfully request[ed] that this court either order [the plaintiffs] to respond or enter an order of nonsuit against [the plaintiffs] for failure to comply with [their] discovery obligations. . . . On February 7, 2018, the court ordered the plaintiff[s] 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, [the plaintiffs'] 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 the defendants' discovery requests which were due on September 21, 2017. [The plaintiffs'] counsel relayed to the court and to [the defendants'] 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. . . . On March 16, 2018, [the plaintiffs'] counsel filed a modified scheduling order signed by both counsel, and the court approved same on March 20, 2018. The modified scheduling order . . . 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 [to be filed] by: November 15, 2018

‘‘Dispositive motions shall be marked ready no later than: December 3, 2018

‘‘Disclose [the plaintiffs'] experts by: August 15, 2018

‘‘Disclose the defendants' experts by: January 15, 2019

‘‘Complete depositions:

‘‘[The plaintiffs'] fact witnesses by: April 30, 2018

‘‘[The defendants'] fact witnesses by: June 30, 2018

‘‘[The plaintiffs'] experts by: November 1, 2018

‘‘[The defendants'] experts by: April 1, 2019.

‘‘Counsel further agreed that the plaintiff[s] would respond to the 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[s] filed a substituted complaint. The . . . substituted complaint, which was filed a year ago, still contains a noncognizable statutory claim under . . . § 46b-37, which was stricken by this court. In addition, the plaintiff Enrico...

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