Alysa Irizarry et al. v. M.L. Moskowitz & Co., Inc. et al. (2012)

Memorandum of Decision on Motions to Compel and for Sanctions (No. 300, 304 and 319)

At a hearing before the undersigned on September 7, 2011 regarding outstanding discovery disputes there was a discussion about the standard personal injury defendants' interrogatories and production requests (Practice Book Forms 202 and 205) which had been served on the plaintiffs by the former defendants Ronald and Gloria Thomas, and whether or not the plaintiffs had fully complied with Interrogatory No. 19 ¹ and Production Request No. 2 ² relating to medical treatment of the plaintiffs Alysa Irizzary and Christian Irizzary for conditions similar or related to the toxic mold injuries alleged in the complaint.   Counsel for defendant GMAC represented that, in reviewing the previously disclosed medical reports of treatment of the plaintiffs by the treating physician and disclosed expert witness, Dr. Santilli, for the injuries alleged in the complaint, it was noted that Dr. Santilli made references to other conditions for which Dr. Santilli and/or Dr. Severino had been treating Alysa Irizzary, and that there was also a reference in the disclosed reports of Dr. Santilli that the plaintiff Christian Irizzary was on some unidentified “treatment plan” and was “recently diagnosed at Yale with prim[ary] immune deficiency.” ³  Defendant GMAC claimed that those other conditions and reports relating to them should have been disclosed.

The court ordered verbally on September 7 that (1) the defendant GMAC file its own Form 202/205 Interrogatories and Production Requests since the Thomas defendants were no longer in the case;  (2) that the plaintiff shall disclose in response to the production request No. 2 all the reports and documents that would have been provided to the Thomases if they were still in the case;  (3) with respect to any document that the defendant GMAC has asked for, if the plaintiffs feel it is not called for by the disclosure, plaintiff will at least indicate that the document exists and that plaintiff(s) object to the disclosure;  (4) that defendant GMAC might then move for an order of compliance for production of the identified unproduced documents;  and (5) the plaintiff would submit the documents for in camera review by the court, which would rule on each document as to whether it must be disclosed.

Defendant GMAC did file its own set of Standard Interrogatories and Production Requests shortly after September 7, 2011.   On September 23, 2011 plaintiffs' counsel delivered to the court photocopies of 43 numbered pages from Dr. Santilli's office notes, portions of which were highlighted in yellow.   Included among those notes there are copies of reports from Martha Severino, M.D., Quest Diagnostics, Associated Neurologists, P.C., the Hand Center of Western Connecticut, and the Danbury Hospital Emergency Department.   The various medical reports relate to diagnosis and treatment of the plaintiff Alysa Irizzary from September 2003 through January 2007 which spans a period commencing about two years prior to the alleged mold contamination through the majority of the period of alleged mold contamination.   The copies were accompanied by a single-page cover letter from Attorney Leydon on his firm's letterhead which asked for the court's in camera review of those documents, and further stated:

The Plaintiff has already forwarded to the Defendant those records we are not objecting to at this time.   The enclosed records, particularly the highlighted portions, relate to unrelated conditions dealing with ․ [conditions] ․ that are not pertinent to the underlying claims for toxic mold injuries set forth in the complaint.   Therefore, the plaintiff claims that these records should not be disclosed as they do not relate to the conditions at issue in this case.

The letter has a legend at the bottom of the page:  “cc. (via email w/o enclosures) Kim H. Hunt, Esq.” ⁴ On October 7, 2011 this court entered an electronic order in this case (No. 307) acknowledging receipt of “copies of multiple medical records pertaining to the treatment of the plaintiff' with a cover letter asking for in camera review.   The court inquired if there were any outstanding motions or objections relating to these documents.

Defendant GMAC then filed its Motion to Compel and For Sanctions dated October 13, 2011 (No. 300), supplemented on October 19, 2011 (No. 304) asking for an order compelling the plaintiff Alysa Irizzary to produce all medical reports and other documentation from Dr. Severino for the last ten years, including any documentation as to any drug and alcohol dependency, depression, and obesity, including, and not limited to, tests, diagnosis, treatment, counseling, history, reports, and records.   The motion also asked that plaintiff be sanctioned for noncompliance with the court's order of September 7, 2011 by the entry of an order precluding the plaintiffs from presenting or producing at trial any medial evidence or opinions by documentation or by testimony or otherwise.   A second Motion for Compliance and for Sanctions was filed by GMAC on November 9, 2011 (No. 319) asking essentially for the same relief, with an additional ground for the request for sanctions that the plaintiff had also failed to comply with an order entered by the presiding judge (Mintz, J.) on November 4, 2011 (No. 300.86) requiring the parties to comply with my order of September 7. The plaintiff objects to both motions to compel and for sanctions.   The court heard argument on both motions and objections thereto on November 30, 2011.   This memorandum will be the court's decision on the documents submitted for in camera review only.   Plaintiff has indicated that all other requested compliance has been provided.   If GMAC does not agree, further motion practice may be necessary

A. Motions to Compel Production

The plaintiff's theory of liability as to GMAC is mold contamination in plaintiffs' condominium unit caused by mold conditions in an adjoining unit owned or controlled by GMAC from July 2005 “until well into 2007” ․ Plaintiff Alysa Irizzary and her son Christian Irizzary both claim toxic mold injuries.   The operative complaint (Revised Complaint of November 26, 2008, No. 132) alleges injuries allegedly suffered by both plaintiffs as follows:

11.  Both plaintiffs have suffered severe debilitating personal injuries as a result of the toxic conditions of their residence, including chronic allergic rhinitis, sinusitis, asthma, and upper airway disease, as well as the destruction or damaging of their personal property and additional damages as a result of having to vacate their unit.

13. As a result of the aforementioned Defendant's negligence, plaintiffs have suffered personal injury and resulting pain and suffering, disability, loss of capacity for the enjoyment of life, expense of medical treatment, and loss of ability to earn money.   The damages are either permanent or continuing and Plaintiffs will continue to suffer damages in the future.

Practice Book § 13–2 provides that “[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or other person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.   It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”   Standard Form Interrogatory No. 202(19) calls for disclosure of treatment for conditions other than the claimed injuries if they “were in any way similar or related to [the claimed injuries].”   When the claimed injuries are alleged broadly, such as “inability to participate in his usual activities” (which both plaintiffs have in effect claimed in ¶ 13 when they allege “loss of capacity for enjoyment of life”), then the plaintiff opens the door to further inquiry by the defendant into the plaintiff's past and present medical health/condition to test the veracity of that claim and the allegation that defendant's conduct is a proximate cause of the incapacity or inability to participate in or enjoy life's activities.   In Ramos v. Ramos, 80 Conn.App. 276 (2003), cert. denied, 267 Conn. 913 (2004) the plaintiff was a passenger in an automobile struck by the defendant's vehicle.   The plaintiff claimed that defendant's negligence caused him to suffer strain/sprain injuries to his shoulder and spine and pain and suffering both mental and physical.   He also sought damages for being “unable to participate in and enjoy his mental and physical.”   He also sought damages for being “unable to participate in and enjoy his usual activities.”   His medical records noted the presence of hepatitis B core antibody and antibody to hepatitis A in his blood (which could be suggestive of transmission by injection of illicit drugs).   Those records were accidentally faxed to defendant's counsel just prior to trial.   Plaintiff moved to preclude admission of the hepatitis evidence.   The trial court ruled that the evidence was more prejudicial than probative and kept it out in the absence of expert testimony regarding its effect on the plaintiff's life expectancy.   The defendant then moved for a continuance for time to find such an expert, which was denied.   The issues on appeal were the trial court's ruling on admissibility and the denial of the continuance.   The Appellate Court reversed and ordered a new hearing in damages, finding the denial of continuance to be an abuse of discretion, and saying, in dictum ⁵ with regard to the hepatitis evidence:

The evidence at issue here, namely that the plaintiff had at some time been infected with hepatitis B, was relevant to a fair determination of his damages.   The plaintiff put his state of health into issue by seeking compensation for being unable to partake in his “usual activities.”   The plaintiff's medical history prior to the accident was highly probative and necessarily had to be disclosed so that the jury could determine accurately how his life and health may have been affected by the defendant's conduct ․ The trier of fact must determine what impact, if any, the plaintiff's medical history has on the overall award of damages.  (Citations omitted.)

Id. 283.

The court also noted that there was no duty on the plaintiff's part to disclose his hepatitis infection because it was not related to the injuries he claims to have sustained in the accident.   When a plaintiff makes a claim for damages on the basis of his inability to participate in his usual activities, any medical condition that has any potential bearing on his health prior to the accident should be disclosed.

Id. 285.

The “any potential bearing on his health” language from the Ramos dictum is not reflected in the Practice Book standard interrogatories for personal injury cases, although inability to enjoy life's activities is often alleged in such cases.   Interrogatory 202(19) calls for disclosure of doctor's care “for any conditions which were in any way similar or related to those identified and listed in response to Interrogatory No. 2 [each injury alleged in the complaint].”   Superior Court cases are in agreement that when a plaintiff has claimed an inability to perform his normal activities “it is not unreasonable to allow some inquiry by the defendant as to whether or not the plaintiff has received treatment in the past.”   Schramm v. Stelly, Superior Court, Judicial District of Litchfield, Docket No. CV00–0081681S (June 25, 2001, Cremins, J.), 2001 Conn.Super. LEXIS 1718, *7 [30 Conn. L. Rptr. 41], subject, however, to “some safeguards ․ for purposes of relevancy, patient confidentiality, and to prevent a ‘fishing expedition’ by the defendant.”   Id. The allegation of inability to perform normal activities “does not open up to the defendant's scrutiny her entire medical history, with the invasion of privacy and trespass on sensitive and privileged material inherent in such an examination.   To be permitted such access the defendant must point to something he has learned in the course of preparing and investigating the case that gives him some reason to believe the file contains material bearing on the subject matter of the plaintiff's allegations.”   Gjika v. Cummings, Superior Court, Judicial District of New Britain, Docket No. CV10–6005867S (Shortall, J., July 13, 2011), 2011 Conn.Super. LEXIS 1783, *3 [52 Conn. L. Rptr. 255], 4. In ruling on motions such as this, it has been said that “the court is obligated to take a reasoned and logical approach to the relevant contest between the parties.”   Hackey v. Popp, Superior Court, Judicial district of New Haven at Meriden, Docket No. CV07–5002241S (November 28, 2008, Rubinow, J.), 2008 Conn.Super. LEXIS 3048 *10 [46 Conn. L. Rptr. 745], citing Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7–8 (2003).

Applying these principles, and mindful that the defendant did become aware of the possibility of other treatment for related conditions by its review of Dr. Santilli's chart as disclosed by the plaintiffs, the court rules that all of the medical records submitted by plaintiffs' counsel for in camera review shall be disclosed to defendant GMAC but with two redactions as follows.   On page 14 of Dr. Santilli's chart these six words may be redacted from the asterix comment in the lower left-hand corner of the page:  “She understands she _.” And at page 113 which is page 2 of the patient summary of the Hand Center of Western Connecticut, under the heading “Review of Sytems,” the third entry” G_;  _/_, _, “may be redacted.   Production of documents, as redacted, shall be made by February 10, 2012.

B. Motion for Sanctions

In this court's Memorandum of Decision on Outstanding Motions dated March 14, 2011 (No. 233), I found defendant GMAC guilty of “duplicitous reliance on the scheduling order when it has been cavalier about its own timely responses to interrogatories and production requests” (id. 7), but no sanctions were imposed because there was no prejudice found.   In maintaining a balanced approach to the seemingly endless discovery disputes in this case, the court will likewise not sanction plaintiffs here for their failure to comply strictly with my order of September 7, 2011 or Judge Mintz's order of November 4, 2011.   Although plaintiff's counsel did not, as ordered, previously identify to the defendant the documents it was withholding pending in camera review, there was substantial compliance with the September 7, 2011 order in that plaintiff did submit the contested documents to the court for in camera review.   The court finds that a copy (without enclosures) of Attorney Leydon's transmittal letter to the court of September 23, 2011 was sent by e-mail to Atty. Hunt, so that letter was not an impermissible ex parte communication.

Due to a continuance of the trial date to May 12, 2012 as granted by the presiding judge, defendant GMAC will receive production of redacted documents, as ordered herein, approximately three months before trial, which is adequate time to review and assimilate the same and arrange for any evidence occasioned by the discovery of these documents.   In other words, plaintiffs' less than literal compliance with the court orders will ultimately not prove prejudicial in terms of trial preparation, and no sanction will therefore be imposed.

SO ORDERED

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Interrogatory No. 19 asks, “If, during the ten year period prior to the date of the incident alleged in the complaint, you were under a doctor's care for any conditions which were in any way similar or related to those identified and listed in response to Interrogatory No. 2 [each injury claimed to have been sustained as a result of the incident alleged in the Complaint] state the nature of said conditions, the dates on which treatment was received, and the name of the doctor or health care provider.”.  FN1. Interrogatory No. 19 asks, “If, during the ten year period prior to the date of the incident alleged in the complaint, you were under a doctor's care for any conditions which were in any way similar or related to those identified and listed in response to Interrogatory No. 2 [each injury claimed to have been sustained as a result of the incident alleged in the Complaint] state the nature of said conditions, the dates on which treatment was received, and the name of the doctor or health care provider.”

FN2. Production Request No. 2 seeks, in part:  “All reports and records of all doctors and all other care providers relating to treatment allegedly received by the Plaintiff(s)as a result of the alleged incident, and to the injuries, diseases, or defects to which reference is made in the answers to Interrogatories # 19, # 20, # 21, and # 22 ․”.  FN2. Production Request No. 2 seeks, in part:  “All reports and records of all doctors and all other care providers relating to treatment allegedly received by the Plaintiff(s)as a result of the alleged incident, and to the injuries, diseases, or defects to which reference is made in the answers to Interrogatories # 19, # 20, # 21, and # 22 ․”

FN3. At oral argument on November 30, 2011, counsel for the plaintiff conceded that those records pertaining to the plaintiff Christian Irizzary should have been produced and handed copies thereof to GMAC's counsel during the argument..  FN3. At oral argument on November 30, 2011, counsel for the plaintiff conceded that those records pertaining to the plaintiff Christian Irizzary should have been produced and handed copies thereof to GMAC's counsel during the argument.

FN4. Attorney Hunt is a named partner of Hunt, Liebert, Jacobson, P.C., counsel for defendant GMAC. At a hearing of November 30, 2011 Atty. Hunt stated to the court that he never received a copy of Atty, Leydon's cover letter of September 23, 2011, but, when reminded that his copy was certified as sent by email, he conceded that he could have missed it when checking his computer, or words to that effect..  FN4. Attorney Hunt is a named partner of Hunt, Liebert, Jacobson, P.C., counsel for defendant GMAC. At a hearing of November 30, 2011 Atty. Hunt stated to the court that he never received a copy of Atty, Leydon's cover letter of September 23, 2011, but, when reminded that his copy was certified as sent by email, he conceded that he could have missed it when checking his computer, or words to that effect.

FN5. The actual basis of reversal was the Appellate Court's conclusion that the failure to grant a continuance to seek expert testimony as to the effect of the hepatitis on the plaintiff's life expectancy was an abuse of discretion.  Id. 280, 285.   There was no contested issue as to the right to discovery under Practice Book § 13–2.   The medical records in question had been faxed to the defendant by accident..  FN5. The actual basis of reversal was the Appellate Court's conclusion that the failure to grant a continuance to seek expert testimony as to the effect of the hepatitis on the plaintiff's life expectancy was an abuse of discretion.  Id. 280, 285.   There was no contested issue as to the right to discovery under Practice Book § 13–2.   The medical records in question had been faxed to the defendant by accident.

Jennings, Alfred J., J.T.R.