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MacCalla v. American Medical Response of Connecticut, Inc.

Court of Appeals of Connecticut

March 5, 2019

GORDON MACCALLA ET AL.
v.
AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC.

          Argued November 26, 2018

         Procedural History

         Action, in the first case, to recover damages for, inter alia, promissory estoppel, and for other relief, and action, in the second case, to recover damages for antitrust violations, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, B. Fischer, J., granted the defendant's motion to strike the amended complaint in part in the first case; thereafter, the court, Abrams, J., granted the defendant's motion to consolidate; subsequently, the court granted the defendant's motion to dismiss and motion for an order of nonsuit in the first case and rendered judgment thereon, from which the plaintiffs appealed to this court; thereafter, the court, Nazzaro, J., granted the defendant's motion to dismiss in the second case and rendered judgment thereon; subsequently, the court, Abrams, J., filed an order in response to this court's request for rectification. Reversed in part; further proceedings.

          Mark S. Kliger, with whom, on the brief, was Irving J. Pinsky, for the appellants (plaintiffs).

          John M. Barr, pro hac vice, with whom, were Carolyn A. Trotta and, on the brief, David C. Salazar-Austin, for the appellee (defendant).

          DiPentima, C. J., and Lavine and Moll, Js.

          OPINION

          DIPENTIMA, C. J.

         The plaintiffs, Gordon MacCalla, Alexis Scianna, Tyler Grailich, John Cronin, Timothy J. Yurksaitis, and Cate Saidler, appeal from the judgment of the trial court dismissing their action against the defendant, American Medical Response of Connecticut, Inc., as a sanction for the unprofessional and dilatory conduct of the plaintiffs' counsel, Attorney Irving Pin-sky, during discovery. On appeal, the plaintiffs claim that the trial court erred in dismissing (1) the plaintiffs' case solely on the basis of counsel's conduct and (2) the claim of MacCalla, who had in fact complied with his discovery obligations and was not named in defendant's motion for nonsuit. We agree with the plaintiffs' second claim and reverse the judgment of dismissal as to Mac-Calla. We affirm the judgment of dismissal in all other respects.

         The following undisputed facts and procedural history are relevant to this appeal. On December 14, 2012, the plaintiffs initiated this action (2012 case) against the defendant. The operative complaint, sounding in promissory estoppel, alleged that the plaintiffs were emergency medical responders employed by the defendant and, prior to their employment, the defendant made a ‘‘clear and unambiguous promise'' to each of them that they could retain simultaneous employment with Valley Emergency Medical Service, Inc. and/or Danbury Ambulance Service, Inc., while also working for the defendant. The complaint also alleged that, after they were hired, the defendant unilaterally withdrew its approval of simultaneous employment and requested that they either discontinue working for the other ambulance services or resign. The complaint alleged that they came to work for the defendant in reliance on the defendant's promise and that enforcement of this promise was ‘‘essential to avoid injustice and detriment.'' While this case was pending, the plaintiffs initiated a separate action (2016 case) against the defendant on August 11, 2016, alleging damages as a result of the defendant's violation of one or more provisions of the Connecticut Antitrust Act, General Statutes § 35-24 et seq. The 2016 case was consolidated with the 2012 case.

         On February 7, 2017, the defendant sent six sets of interrogatories and, purportedly, requests for production to Pinsky's office. On February 16, 2017, each plaintiff filed a motion for extension of time, seeking an additional thirty days in which to respond to the ‘‘interrogatories and requests for production''; the defendant did not object. Despite the extension, the plaintiffs failed to submit responses prior to the date they were due.[1] On April 25, 2017, the defendant filed a motion for order of compliance as to each of the six plaintiffs.

         Contemporaneously, the defendant sought to schedule depositions of the six plaintiffs. The depositions were noticed originally for May 3 and 4, 2017, in Hartford. The plaintiffs agreed to the dates but requested that the location be moved to New Haven; the defendant assented and resent notice of the depositions accordingly. On April 26, 2017, as a result of the plaintiffs' failure to provide timely discovery responses, the defendant's counsel, Attorney David Salazar-Austin, e-mailed Pinsky, informing him that the depositions would not go forward. The next day, Pinsky replied that the discovery responses would be provided on or before May 12, 2017, and that the plaintiffs were available to be deposed on May 25, 26, and 31, and on June 1, 2017. In response, the defendant noticed the depositions for May 25 and 26, to be held at Pinsky's office in New Haven.

         On May 12, 2017, the plaintiffs provided responses and objections to the defendant's interrogatories. In response to the defendant's inquiry as to why the plaintiffs did not respond to the requests for production, Pinsky claimed that he never received any such requests. In an e-mail sent to Pinsky, Salazar-Austin was skeptical of this assertion, contending that the interrogatories and requests for production had been sent as a single document. In the same e-mail, Salazar-Austin asked that the plaintiffs respond promptly to the requests for production and sought to reschedule the plaintiffs' depositions. In his reply e-mail, Pinsky iterated that he had not received the requests for production and indicated that his clients would not be available for depositions until sometime between ‘‘very late June and mid-July.'' Because jury selection was scheduled to begin in early August, the defendant was not amenable to this time frame and filed a request for adjudication of the discovery dispute with the court.

         On June 5, 2017, the court held a hearing on the defendant's request for adjudication. At the hearing, the parties agreed that the plaintiffs would provide responses to the requests for production by July 7, 2017, and that the plaintiffs' depositions would be held at Pinsky's office on July 17 and 18, 2017. Although the plaintiffs argue in their brief that this agreement was never adopted as a court order, the hearing transcript clearly indicates otherwise:

‘‘[The Plaintiffs' Counsel]: My understanding is production by July 7 and depositions to be taken . . . [on July 17 and 18]; is that correct?
‘‘[The Defendant's Counsel]: Yes.
‘‘[The Plaintiffs' Counsel]: ...

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