Oliveras et al v. Castildi et al

Filing 38

RULING ON DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO COMPLY WITH COURT ORDER (see attached). Defendants' Motion to Dismiss (Dkt. #35) is denied, but the Court imposes orders as stated in the Ruling. Signed by Judge Joan G. Margolis on 8/22/2014. (Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------------------------X
:
JOSE OLIVERAS ET AL.
:
:
V.
:
:
JASON CASTILDI ET AL.
:
-------------------------------------------------------X

3:12 CV 858 (JGM)

DATE: AUGUST 22, 2014

RULING ON DEFENDANTS' MOTION TO DISMISS
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 established in this Magistrate Judge's Ruling on Defendants' Motion
to Compel, filed July 1, 2014 (Dkt. #34)["July 2014 Ruling"], all fact discovery is to be
completed by September 30, 2014, all expert discovery is to be completed by November 14,
2014, and all dispositive motions are to be filed by December 12, 2014. (At 4).
On May 21, 2014, defendants filed their Motion to Compel (Dkt. #31), which
concerned defendants' discovery requests upon plaintiff Jose Oliveras ["plaintiff"], served on
November 7, 2012 but not answered until June 24, 2013 (at 1); in his sworn answers,
plaintiff averred that he had no other physical injuries subsequent to this motor vehicle
accident. (At 2).

In that motion, defendants further contended that the June 2013

responses were inadequate, in that they only provided HIPAA authorizations and not copies
of plaintiff's medical records, and 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 (at issue in this lawsuit), for which he has been
found to be temporarily totally disabled. (At 2-3).
In light of this "excessive" delay and plaintiff's "illusory[]" responses, defendants
sought 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 compliance to be made by providing the records, not through the provision
of releases. (Dkt. #31, at 3-4).1
The July 2014 Ruling held that "[u]nder these circumstances, defendants [were]
more than entitled to the remedies that they [sought]," namely that (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 has met with his clients, reviewed their answers

1

In their brief in opposition, plaintiffs' counsel represented that he "was unaware of [the
December 2011 fall] until recently informed of this by defense counsel." (Dkt. #32, 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 represented that plaintiffs' brief was "the first time" that
defendants learned about Dr. Mitamura, questioned 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 contended 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)(emphasis omitted).

2

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. (At 3-4)(emphasis
omitted). The July 2014 Ruling continued that "[i]f plaintiffs fail to comply with these
deadlines, defendants are, of course, free to file a motion for appropriate sanctions." (At
4)(footnote omitted).
On July 25, 2014, defendants filed the pending Motion to Dismiss (Dkt. #35), on the
grounds that plaintiffs failed to produce the updated and accurate written responses to the
interrogatories, and plaintiffs' counsel failed to provide the certification by July 18, 2014, as
required by the July 2014 Ruling. On August 15, 2014, plaintiffs filed their brief in opposition
(Dkt. #36),2 in which they represented that the delay was occasioned by plaintiff Jose
Oliveras' visit with family in Puerto Rico from the beginning of July until mid-August,
plaintiff's counsel certified that he met with plaintiff Jose Oliveras and reviewed with him the
Interrogatories propounded by defendants and responded to them, that to the best of
counsel's knowledge plaintiff Jose Oliveras understood the requests and indicated that his
responses were complete and true, and they attached 111 pages of medical records from
Doctors United and six pages of medical records from Dr. John Mitamura. (At 1-2 & Exhs.

2

Attached is the affidavit of plaintiff Jose Oliveras, sworn to August 15, 2014, as well as the
following three exhbitis: copy of Second Response to Interrogatory Requests, dated August 14,
2014 (Exh. A); copies of medical records from Doctors United (Exh. B); and copies of medical
records from Dr. John Mitamura (Exh. C).

3

A-C). Three days later, defendants filed their reply brief (Dkt. #37), in which they complain
that plaintiffs are still in violation of the July 2014 Ruling in the following requests: (1) no
updated interrogatory responses were received from plaintiffs Myrna Oliveras or Jelisa
Oliveras; and (2) the updated interrogatory responses received from plaintiff Jose Oliveras
are "not accurate" – in a December 23, 2011 report from Doctors United, "apparently the
first report from this provider after the December 11, 2011 subsequent fall," reference is
made to x-rays taken by a chiropractor, Dr. Ferrar, on December 19, 2011, but Dr. Ferrar "is
not listed on the interrogatory responses identifying providers for the subsequent injury." (At
2, citing Dkt. #36, Exh. B, at 36). Defense counsel appropriately laments that he has been
"constantly required" to point out deficiencies in discovery responses and then request
additional records from plaintiffs' counsel. (Dkt. #37, at 2). Defendants continue to ask that
this entire lawsuit be dismissed.
At this juncture, the Court will not impose the harsh remedy of dismissal, but instead
imposes the following orders: (1) plaintiffs Myrna Oliveras and Jelisa Oliveras shall file
updated interrogatory responses on or before September 15, 2014; (2) defense counsel
shall notify plaintiffs' counsel as to any additional deficiencies he notices in plaintiff Jose
Oliveras' compliance to date, and plaintiff Jose Oliveras shall provide corrected, complete
and accurate responses on or before September 19, 2014; (3) if plaintiffs fail to
comply with these deadlines, defendants are, of course, free to file a motion for appropriate
sanctions; and (4) defendants may file a Motion for Attorney's Fees with respect to filing its
Motion to Compel and briefs (Dkts. ##31 & 33), and this Motion to Dismiss and briefs (Dkts.
##35 & 37).

4

Dated at New Haven, Connecticut, this 22nd day of August, 2014.

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

5