Ronald Jordan v. Supreme Enterprises, Inc. (2010)

MEMORANDUM OF DECISION AND ORDER RE MOTION TO DISMISS (113.00)

I. BACKGROUND

In a complaint returnable March 17, 2009 the plaintiff Ronald Jordan sued the defendant Supreme Enterprises, Inc. (Supreme), the owner of a multi-family dwelling at 182 West Main Street, Stamford, Connecticut where Jordan lived, claiming damages resulting from a fall down some stairs between the first and second floors of the dwelling caused by a nail protruding from the stairs.   The fall occurred on December 5, 2008 according to the complaint.   It was alleged that Supreme was negligent in not keeping the stairs in good repair.   A revised complaint, dated July 14, 2009, essentially repeated the allegations.   Supreme answered the revised complaint on July 23, 2009 denying the allegation of negligence, and pleading a special defense of comparative negligence which Jordan subsequently denied.

On November 23, 2009 Supreme moved to dismiss the case on the grounds that Jordan was committing a fraud on the court and the legal system in general because documents obtained by Supreme or provided by the plaintiff in the discovery process showed that Jordan had fallen while playing basketball, and the injuries complained of stemmed from that fall and not the alleged fall down the stairs.

Attached to Supreme's motion papers as exhibits were copies of a number of medical records.   A Stamford Hospital Emergency Department record for Jordan of December 5, 2008 signed by Dr. David Dickerson stated “[left] knee pain/deformity landed ‘wrong’ playing basketball.”   Ex. B. Another Emergency Department record for the same day indicates Jordan explained what happened.   “To ED after playing basketball.   States coming down and landing on leg wrong.   Complains of pain to left knee.   Fell and hit ground.”   Ex. C. A third record for that day electronically signed by Dr. Jayson Podber who evaluated Jordan stated that Jordan “states he had a couple of cocktails while playing some basketball and jumped, heard a pop when he landed, and unable to ambulate ever since.   The record further noted that Jordan had been evaluated by an orthopedic doctor, Dr. Dickerson and x-rays showed a tibial plateau fracture.   Ex. D. Jordan was admitted to the hospital.  Id. Later in the evening a Physician's Assistant, Barbara Woinschenk, confirmed in a signed report that Jordan “felt a popping and cracking sensation in his left knee” while playing basketball.   PA Woinschenk's full history stated:

HISTORY OF PRESENT ILLNESS:  This is a 43-year-old otherwise healthy Stamford Hospital employee here with family members.   The patient was playing basketball when he landed wrong and felt a popping and cracking sensation to his left knee, notable deformity and inability to weight bear since.   No previous history of any injury.   He denies any head, neck or back pain.   He has taken no medications prior to arrival.

Ex. E.

On December 12, 2008, Dr. Dickerson saw Jordan again for a follow up and his signed notes again reflect the history of the fall during a basketball game.   Dr. Dickerson recommended surgery, and it was scheduled for December 15, 2008.   Ex. G. The operation was performed under general anesthesia by Dr. Michael Schwartz assisted by Dr. Dickerson.   Ex. F. Jordan was seen again by Dr. Schwartz on December 29, 2008, January 11, 2009 and February 2, 2009 and the basketball game circumstances of the injury appears to have been reviewed on all three occasions Ex. G.

The next record is of a visit to Dr. Alberto Rivera of Plancher Orthopedics and Sports Medicine on September 3, 2009.   Dr. Rivera reports the fracture occurred on December 5, 2008 “after falling down some stairs.”   Ex. H. Another document prepared by a physical therapist, Rosario Cairo, for the use of the Visiting Nurse Association as a Home health Certification and Plan of Care notes on January 8, 2009 that Jordan “was not very open about sharing information regarding incident.”   Ex. I.

Jordan did not respond in any fashion to the motion to dismiss.   No effort was made to rebut or discredit the medical records, and the motion appeared on the short calendar for December 21, 2009.   Counsel for Supreme was present, and when no one appeared in court to oppose the motion, he waived oral argument and the motion was submitted on the papers.   After reviewing the motion the court sent a notice to all counsel “[b]ecause of the gravity of the arguments contained in the pending motion to dismiss which was submitted on the moving papers only on December 21, 2009 this matter will be set down for oral argument ․”

Oral argument was held on March 19, 2010.   At that time Jordan's counsel, who came into this case after Jordan's original counsel died, appeared and stated that when the hospital records had surfaced the plaintiff Jordan had been requested, in a face to face conversation, to prepare an affidavit stating his version of the accident to oppose the motion to dismiss.   No affidavit was forthcoming.   Counsel also requested Jordan to appear at the March hearing, but he was not present.

DISCUSSION

Supreme's motion to dismiss is premised on the contention that dismissal is the appropriate sanction when a litigant abuses or misuses the court system in the fashion that Jordan purportedly did by alleging his landlord was at fault for his injury.   One could argue that the proper means to seek dismissal in this case is through a motion for summary judgment thereby, if successful, obtaining a judgment on the merits of the case.   However, the defendant is entitled to choose its litigation strategy, and the court considers the motion to dismiss as filed.

At the outset it is clear that courts have the power to protect the judicial system's integrity by the issuance of appropriate sanctioning orders under certain circumstances.   The United States Supreme Court has duly noted that dismissal of a case is “the most severe in the spectrum of sanctions” and it “must be available to the [trial] court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction but to deter those who might be tempted to such conduct in the absence of such a deterrent.”  National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976).   A federal circuit court of appeals has said that “[m]is conduct may exhibit such flagrant contempt for the court and its processes that to allow the offending party to continue to invoke the judicial mechanisms for its own benefit would raise concerns about the integrity and credibility of the civil justice system.”  Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir1993).

Connecticut law recognizes a court's inherent power to impose sanctions.   Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1 (2001) Trial courts have inherent authority to impose sanctions against lawyers and clients in bad faith and harassing litigation even if there has not been a specific rule or order violated.  Id., 9-10 [quoting CFM of Connecticut, Inc. v. Chowduny, 239 Conn. 375, 393 (1996) ].   Now Chief Justice Rogers reviewed many of the instances when the sanction of dismissal had been imposed in Connecticut courts when she imposed that sanction herself in Stanley Shenker & Associates, Inc. v. World Wrestling Federation Entertainment, Inc., 48 Conn. supra, 357, 372-73 (2003).   This court, however, also recognizes that dismissal is the ultimate sanction and is to be imposed only when nothing less is appropriate and the court should be reluctant to employ it except as a last resort.  Millbrook Owners, supra, 16-17.

Based on the record before it, the court finds Supreme's factual presentation and arguments persuasive.   The numerous documents from the records of the hospital and various medical practitioners show convincingly that Jordan related to medical personnel that his injury occurred as a result from a fall while he was playing basketball.   The slight variations and added details in the various reports strongly indicate that Jordan retold his story in front of his family on several occasions in the emergency room, and before and after his surgery.   The only medical record to support the allegation in the complaint about a trip and fall because of a protruding nail on a stairway was created several months after this case had been commenced.

Just as persuasive is the utter failure of Jordan to make any effort to overcome or cast doubt on the reliability of the medical reports that are completely at odds with the allegations in his complaint.   At least two such opportunities were available:  at the time Supreme's motion to dismiss was filed and appeared on the calendar, and again when this court scheduled another argument in March 2010 citing the “gravity” of Supreme's contention of fraud.   The failure to respond in any fashion is inexplicable, unless there was no explanation.

The court is convinced by the medical records and Jordan's ensuing silence, taken together, that the allegations in Jordan's complaint as to the cause of his fall on December 5, 2008 are materially and deliberately false.   Therefore, the case against Supreme is an attempted fraud, and the court system and the procedures which summoned Supreme to court and required it to retain counsel and take steps to defend itself were an unknowing accomplice to this fraud.

The Connecticut Supreme Court has said on more than one occasion that the “sanction of dismissal should be imposed only ․ where it would be the only reasonable remedy available to vindicate the legitimate interest of the other party and the court.”  Usowski v. Jacobson, 267 Conn. 73, 91-92 (2003) [quoting Millbrook Owners, supra, 257 Conn. 16-17].   Both Usowski and Millbrook Owners were cases involving purported abuse of discovery proceedings.   Both cases and recent revisions to the Practice Book discovery rules, see Section 13-14(h), emphasize a desire to reach the merits of cases whenever possible and to tailor sanctions proportionately to the conduct at issue.   In this matter the record shows the conduct at issue is a complaint containing alleged facts that were not true and purported cause of action that did not exist.   The only appropriate sanction for such a meritless action that vindicates the interests of the defendant and the court system is dismissal.   Therefore the motion is granted and the complaint is dismissed.

TAGGART D. ADAMS, J.

SUPERIOR COURT JUDGE

Adams, Taggart D., J.