December 23, 2020

In its opinion released on December 8, 2020, the Connecticut Appellate Court affirmed the lower court’s dismissal of the plaintiffs’ Connecticut medical malpractice wrongful death lawsuit due to the repeated failures of their attorney to prosecute the case.

The plaintiffs filed their Connecticut medical malpractice wrongful death lawsuit in May 2016, alleging that the defendants’ negligence led to the decedent’s death. Despite various pleadings and motions filed by the defendants, the plaintiffs did not serve any discovery, take any depositions, close the pleadings, disclose any experts, or respond to outstanding discovery requests. Additionally, when one of the two plaintiffs died in May 2016, his estate was never substituted as the proper party in the case.

Eventually, in February 2018, the plaintiffs’ Connecticut medical malpractice lawyer relayed to the trial court personal reasons why deadlines and discovery compliance were not met and represented that he needed to withdraw. Following more continuances, the remaining plaintiff was not able to obtain new counsel, and objected to the plaintiffs’ lawyer withdrawing from the case. In March 2019, the trial court denied the motion to withdraw filed by the plaintiffs’ lawyer and, in April 2019, granted the defendants’ motion to dismiss for failure to prosecute with due diligence.

In their appeal, the plaintiffs claimed that the trial court abused its discretion in rendering a judgment of dismissal. They argued that the sanction of dismissal was disproportionate under the totality of the circumstances, particularly where lesser sanctions were available and appropriate, and the plaintiffs, themselves, were not, in any way, responsible for the status of the case and the failure to comply with discovery.

The Connecticut Supreme Court has identified the following factors as relevant to determining the proportionality of a sanction: the nature and frequency of the misconduct, notice of the possibility of a sanction, the availability of lesser sanctions, and the client’s participation in or knowledge of the misconduct. The Connecticut Supreme Court also noted that these principles reflect that, in assessing proportionality, a trial court must consider the totality of the circumstances, including, most importantly, the nature of the conduct itself.

The Connecticut Appellate Court held in the present case that the trial court did not abuse its discretion in dismissing the plaintiffs’ complaint for failure to prosecute with due diligence and that the court’s sanction of dismissal was proportional to the plaintiffs’ misconduct in that the court carefully set forth a pattern of misconduct by the plaintiffs over the course of three years, the plaintiffs were clearly on notice of the possibility of a sanction as the defendants began requesting a judgment of dismissal as a sanction in November 2017, and the court repeatedly notified the plaintiffs that a dismissal would be forthcoming if they continued their pattern of delays, the court demonstrated the use of alternatives to dismissal by issuing new orders and warnings of dismissal but these alternatives failed and further alternatives were not required, and, although the court squarely put the blame for the repeated violations of its orders on the plaintiffs’ counsel, the record demonstrated that the plaintiffs were aware of the misconduct.

Source Vaccaro v. Loscalzo, AC 42951.

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