January 15, 2019
to recover damages for personal injuries sustained as a
result of the defendants' alleged negligence, and for
other relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Shapiro, J.,
denied the defendants' motion to compel; thereafter, the
court, Sheridan, J., issued certain orders
pertaining to trial; subsequently, the court, Shapiro,
J., denied the defendants' motion for reargument and
reconsideration of its ruling denying the defendants'
motion to compel; thereafter, the court, Noble, J.,
granted the plaintiff's motion for a continuance, granted
the defendants' motion for reargument and reconsideration
of the denial of their motion to compel, and issued certain
orders pertaining to discovery; subsequently, the court,
Noble, J., denied the plaintiff's motion for
reargument and reconsideration of its orders pertaining to
discovery; thereafter, the court, Hon. Constance L.
Epstein, judge trial referee, granted the
defendants' motion for an order of compliance;
subsequently, the court, Hon. A. Susan Peck, judge
trial referee, denied the defendants' motion for a
judgment of nonsuit and issued certain orders pertaining to
discovery; thereafter, the court, Hon. A. Susan
Peck, judge trial referee, issued an order of nonsuit
and rendered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Jennifer B. Levine, with whom was Harvey L. Levine, for the
William J. Melley III, for the appellees (defendants).
Alvord, Prescott and Eveleigh, Js.
plaintiff, Michelle Levine, appeals from the trial
court's judgment of nonsuit rendered in favor of the
defendants, Randall Hite and Tanya Hite, as a result of the
plaintiff's failure to comply with three previous orders
of the court regarding discovery. On appeal, the plaintiff
claims that (1) the court, Noble, J., improperly
raised and considered a prior ruling of the court,
Shapiro, J., without affording her a fair
opportunity to respond, (2) the plaintiff's failure to
comply with discovery orders did not warrant the rendering of
a judgment of nonsuit by the court, Hon. A. Susan
Peck, judge trial referee, and (3) Judge Peck improperly
declined to consider the plaintiff's motion for sanctions
against the defendants' counsel prior to rendering the
judgment of nonsuit. We affirm the judgment of the trial
review of the following somewhat complicated procedural
history is necessary to our resolution of the issues on
appeal. In December, 2012, the plaintiff commenced a personal
injury action against the defendants claiming that she was
operating her vehicle on or about December 6, 2010, when it
was struck by another vehicle operated by Randall Hite and
owned by Tanya Hite. The matter was scheduled for trial with
jury selection to commence on December6, 2016. Because
ofscheduling issues raised by the plaintiff's counsel and
the defendants' counsel, the parties discontinued jury
selection after one day, and the court continued the trial to
January 4, 2017.
selection commenced on January 5, 2017. On January 6, 2017,
the defendants filed a ‘‘Motion to Compel And/Or
Preclude'' (motion to compel) in response to a Blue
Cross/Blue Shield printout, evidencing medical payments that
the plaintiff had provided to the defendants on January 4,
2017. In the motion to compel, the defendants claimed that
the plaintiff had failed to produce certain designated
records. They requested that the court order her to produce
those records at least twenty-four hours prior to the start
of evidence or else be precluded from entering any evidence
of her physical injuries at trial.
selection was completed on January 11, 2017, and the trial
was scheduled to commence on January 18, 2017. On January 12
and 13, 2017, Judge Shapiro heard arguments on the
defendants' motion to compel and the defendants'
objections to the plaintiff's proposed exhibits that were
being premarked by counsel for trial. On January 18, 2017,
Judge Shapiro informed the parties that four of the eight
jurors selected had written letters to the court requesting
that they be excused from serving on the jury. Judge Shapiro
stated that the presiding judge had excused those jurors,
which left the parties without a jury for trial. Because the
case could not proceed at that time, Judge Shapiro indicated
that he would put on the record his rulings on the matters
previously argued by counsel.
respect to the defendants' motion to compel, Judge
Shapiro concluded that the motion was
‘‘untimely'' and denied the motion for
the following reasons: ‘‘The return date in this
matter was January 8, 2013. The plaintiff is proceeding on
the original complaint dated November 20, 2012. The
plaintiff's deposition was taken in January, 2015.
October 7, 2015, the court entered a scheduling order.
Therein it was stated that written discovery was done and
the-all depositions were to be completed by November 15,
that same date, October 7, 2015, which is obviously over a
year ago, the court-not this court but a court officer-held a
pretrial conference. It's undisputed that at that
pretrial conference, as part of her written presentation, the
plaintiff presented a printout of her medical expenses.
See Plaintiff's Exhibit 1 to the January 12,
printout lists dates and services, types of services, and
names of medical providers of the plaintiff beginning in
December, 2010. The names of providers and dates of services
were provided to the defendants, and the bulk of the dates of
records they complain of not receiving were made known to
them at that time.
the defendants wanted more information or records, they could
have taken steps to obtain them before jury selection began.
For example, they could have asked the plaintiff to provide
the additional records well in advance of the trial. They
already had a medical authorization to obtain records and
could have used it or asked for another from the plaintiff.
The defendants could have sought to redepose the plaintiff. .
in their motion, the defendants provided no exhibits, such as
the plaintiff's previous responses to their written
defendants could have timely filed a motion to compel long
before trial saying that previous discovery compliance was
incomplete, that the plaintiff had failed to disclose her
medical condition and treatment. They could have asked for a
status conference to discuss issues they have belatedly
raised in their motion. The court's docket reflects that
no motion to compel was filed until January 6, which was
after jury selection had begun.
court finds that the defendants were on notice in October,
2015, of issues which they are raising now in their motion,
more than a year later. The defendants' presentation is
January 20, 2017, the court, Sheridan, J., entered
the following order in this case:
selection will commence on March 14, 2017. This is a firm
trial date. Both counsel are responsible for ensuring that
they and their clients and witnesses are ready for trial on
the scheduled date. NO FURTHER CONTINUANCES OF THE TRIAL DATE
WILL BE PERMITTED, absent compelling ...