Oliveras et al v. Castildi et al

Filing 34

RULING (see attached) granting 31 Defendants' Motion to Compel. Signed by Judge Joan G. Margolis on 7/1/2014. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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JOSE OLIVERAS ET AL.
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V.
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JASON CASTILDI ET AL.
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3:12 CV 858 (JGM)

DATE: JULY 1, 2014

RULING ON DEFENDANTS' MOTION TO COMPEL
On June 11, 2012, plaintiffs commenced this diversity action against defendants,
arising from a multi-vehicle collision on I-95 North in Darien, Connecticut, on June 19, 2010
(Dkt. #1); an Amended Complaint was filed on February 28, 2013. (Dkt. #19). On January
28, 2014, the parties consented to trial before this Magistrate Judge. (Dkt. #25). Under the
present scheduling order, all fact discovery is to be completed by August 1, 2014, all expert
discovery is to be completed by October 1, 2014, and all dispositive motions are to be filed
by November 3, 2014. (Dkt. #28, ¶¶ 1, 3-4).
On May 21, 2014, defendants filed the pending Motion to Compel (Dkt. #31),1 as to
which plaintiffs filed their brief in opposition on June 10, 2014 (Dkt. #32); defendants filed
their reply brief two days later. (Dkt. #33).2
As set forth in defendants' motion, defendants served discovery requests upon
plaintiff Jose Oliveras ["plaintiff"] on November 7, 2012, which were not answered until June
24, 2013; in his sworn answers, plaintiff averred that he had no other physical injuries
subsequent to this motor vehicle accident. (Dkt. #31, at 1-2; see also Dkt. #33, at 1-2 &

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An affidavit from defense counsel, sworn to that day, is attached.

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The following four exhibits were attached: copy of plaintiff Jose Oliveras' Responses to
Interrogatory Requests, sworn to June, 2013 (Exh. A); and copies of correspondence between
counsel, dated December 4, 2013 with fax cover sheet (Exh. B), March 20, 2014 with fax cover
sheet (Exh. C), and April 16, 2014 letter with fax cover sheet (Exh. D).

Exh. A). Defendants further contend that the June 2013 responses were inadequate, in that
they only provided HIPAA authorizations and not copies of plaintiff's medical records; when
defense counsel received medical records from "Doctors United" on December 4, 2013,
pursuant to plaintiff's HIPAA release, he learned "[f]or the first time" that plaintiff had fallen
down stairs at his employment on December 13, 2011, resulting in neck and back injuries
(as at issue in this lawsuit), for which he has been found to be temporarily totally disabled.
(Dkt. #31, at 2).

According to defense counsel, the first medical records to mention this

December 2011 fall were dated June 17, 2013, some eighteen months later, leading defense
counsel to surmise that "[t]here must be other records from the period of time between the
fall and June 17, 2013[.]" (Id. at 2-3). As defense counsel further points out, the December
2011 fall was mentioned in defendants' Status Report, filed January 2, 2014 (Dkt. #22, at
1-3), during the telephonic status conference with this Magistrate Judge on February 10,
2014 (Dkt. #27), and in letters sent by facsimile machine in March and April 2014. (Dkt.
#22, at 3; see also Dkt. #33, at 2 & Exhs. B-D).
In light of this "excessive" delay and plaintiff's "illusory[]" responses, defendants seek
the following remedies: (1) for plaintiffs to produce updated and accurate written responses
to the interrogatories within fifteen days, and for plaintiffs' counsel to certify that he has met
with his clients, reviewed their answers and ensured that his clients understood the requests,
and have his clients notarize that the responses are complete and true; (2) for plaintiffs to
provide all medical records not yet received concerning the subject accident within thirty
days, and such compliance to be made by providing the records, not through the provision
of releases; and (3) for plaintiff Jose Oliveras to provide all medical records from his slip and
fall injury sustained subsequent to the subject accident within sixty days, again with such

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compliance to be made by providing the records, not through the provision of releases.
(Dkt. #31, at 3-4).
In their brief in opposition, plaintiffs argue that defendants' Requests for Production
explicitly permitted them to provide a HIPAA release and not copies of the medical records
themselves, that plaintiffs provided HIPAA compliant authorization for three known medical
providers, and that plaintiffs' counsel is equally "frustrated by delayed and incomplete
compliance by medical providers." (Dkt. #32, at 1-3). Plaintiffs indicated that they have "no
objection to sending to defense counsel copies of the medical records in [their]
possession[,]" and further represent that plaintiffs' counsel "was unaware of [the December
2011 fall] until recently informed of this by defense counsel." (Id. at 3). Plaintiffs advised
that "[u]pon inquiry," they learned that plaintiff was treated for the December 2011 fall by
Dr. John Mitamura and Doctors United, have "yet to receive records from Dr. Mitamura," and
will provide a HIPAA compliant authorization to defendants. (Id.).
In their reply brief, defendants represent that plaintiffs' brief was "the first time" that
defendants learned about Dr. Mitamura, question the representation of plaintiffs' counsel that
he "recently" learned about the December 2011 injury in light of the previous letters sent to
him (characterizing this statement as "mislead[ing]" and "beyond comprehension"), and
contend that plaintiff Jose Oliveras "seems to have committed perjury when he swore under
a notary's seal that he did not have any subsequent injur[i]es." (Dkt. #33, at 1-3 & Exhs.
A-D).
Under these circumstances, defendants are more than entitled to the remedies that
they seek, namely (1) on or before July 18, 2014, plaintiffs shall produce updated and
accurate written responses to the interrogatories, and plaintiffs' counsel shall certify that he

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has met with his clients, reviewed their answers and ensured that his clients understood the
requests, and have his clients notarize that the responses are complete and true; (2) on or
before July 31, 2014, plaintiffs shall provide all medical records not yet received
concerning the subject accident, and such compliance to be made by providing the records,
not through the provision of releases; and (3) on or before August 29, 2014, plaintiff
Jose Oliveras shall provide all medical records from his slip and fall injury sustained
subsequent to the subject accident, again with such compliance to be made by providing the
records, not through the provision of releases.

If plaintiffs fail to comply with these

deadlines, defendants are, of course, free to file a motion for appropriate sanctions.3
In light of this ruling, the deadlines are postponed as follows: all fact discovery is to
be completed on or before September 30, 2014, all expert discovery is to be completed
on or before November 14, 2014, and all dispositive motions are to be filed on or
before December 12, 2014.
Dated at New Haven, Connecticut, this 1st day of July, 2014.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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The Court is greatly concerned about the actions, and inactions, of plaintiffs and their
counsel in this case to date.

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