Joseph A. Cox, M.D. v. Victoria G. Reyes–D'Arcy, M.D. et al. (2013)

MEMORANDUM OF DECISION RE Requests for Admission

The issues decided here are a result of the plaintiff's totally cavalier approach in responding to Requests for Admission ¹ served upon him.

The plaintiff, Joseph A. Cox, M.D. (Cox) is a pathologist.   The defendants, Victoria G. Reyes–D'Arcy, M.D. (Reyes–D'Arcy), and Joseph C. Benedict, M.D. (Benedict), are also pathologists.   The defendant Pathology Consultants of New London, P.C. (PCNL) is a professional corporation.   Cox, Reyes–D'Arcy, and Benedict were the sole shareholders of PCNL;  each owning one-third of the stock thereof.   See Amended Complaint, dated September 19, 2011, ¶¶ 1–5. [132.]

The operative complaint, which is the amended complaint dated September 19, 2011, has four counts:  (1) breach of fiduciary duty/civil conspiracy, (2) bad faith, (3) employment discrimination based on age, and (4) employment discrimination based on disability.

The plaintiff had an employment contract with PCNL. It contained “a requirement that Dr. Cox maintain his privileges with L & M, as well as a ‘Non–Compete’ restrictive covenant limiting the location where Dr. Cox's (Sic.) could practice pathology services post-termination.”   Amended Complaint, dated September 19, 2011, ¶ 6. [132.]

The Plaintiff alleges in each of the four counts:

7.  At all times mentioned herein, PCNL was a highly-profitable practice which held an exclusive services contract with Lawrence and Memorial Hospital (“L & M”), located in New London Connecticut, to provide pathology and related services to L & M patients.

8. At all times mentioned herein, while Dr. Reyes–D'Arcy served as President of PCNL, she simultaneously served as Chair of the Pathology Department of L & M.

9.  Beginning in March of 2010, Dr.'s (Sic.) Reyes–D'Arcy and Benedict, although individually minority shareholders, began to act in concert for their joint benefit and, collectively, held a majority interest in PCNL.

10.  Despite owing a fiduciary duty to Dr. Cox, the minority shareholder and their business partner, Dr.'s (Sic.) Reyes–D'Arcy and Benedict conspired to force Dr. Cox out of his ownership and employment with PCNL so as to maximize their individual share of the profits derived from PCNL.

11.  In furtherance of this shared scheme, Dr.'s (Sic.) Reyes–D'Arcy and Benedict constructed pretextual and unsubstantiated claims of misconduct so as to threaten ‘for cause’ termination, cast Dr. Cox in a poor light with L & M, and generate ill will within the local medical community.

12. In furtherance of this shared scheme, Dr. Reyes–D'Arcy exploited her position as Pathology Department Chair at L & M, in direct conflict with her fiduciary obligations as President of PCNL, and campaigned for a revocation of Dr. Cox's privileges at L & M, which, in turn, would automatically result in a ‘for cause’ basis for termination.

13. Despite the continued pressure and threat of ‘for cause’ termination, Dr. Cox refused to voluntarily give up his shares of and employment with PCNL.

14.  On or about May 10, 2010, Dr.'s (Sic.) Reyes–D'Arcy and Benedict called to order a meeting of the three PCNL shareholders, acted in concert and voted to terminate Dr. Cox without cause.

15. The result of this vote was predetermined and a product of the joint effort of Dr.'s (Sic.) Reyes–D'Arcy and Benedict to maximize their individual share of the profits derived from PCNL.

Amended Complaint, dated September 19, 2011, ¶¶ 7–15 of Counts 1–4. [132.]

The defendants, Reyes–D'Arcy, Benedict, and PCNL, answered the amended complaint essentially denying same and raising several special defenses.   They also counterclaimed.   See Amended Answer, Special Defenses and Counterclaim, February 29, 2012. [153.]

The amended counterclaim had four counts:  breach of contract (employment contract), breach of contract (without cause clause), breach of fiduciary duty and negligent infliction of emotional distress.   Fifty-eight paragraphs were common to and repeated in all four counts of the counterclaim.   Fifteen of these are set forth below since they embrace key elements of the underlying dispute:

10.  L & M entered into the exclusive services agreement with PCNL to provide continuous and uninterrupted coverage of pathology services to its patients, promote better supervision and training of L & M personnel, facilitate the exchange of information among L & M physicians and enhance patient care.

11. Under the exclusive services agreement, PCNL must provide to L & M pathology services, including necessary consultations with other staff members and physicians, in a competent manner, on a continuous, uninterrupted basis, 24 hours per day, 7 days per week, 52 weeks per year.

12. As part of its obligation to provide pathology services 24/7, PCNL physicians are required to work on weekends and take “on call” hours outside of normal business hours.

13. On Saturday, March 13, 2010, Dr. Cox was the on-call pathologist.   He was scheduled to be at L & M until at least noon that day to attend to his clinical duties and then was required to be available for consultation if needed.

14. That morning, tests conducted on a previously healthy patient who visited an off-site walk-in treatment center operated by L & M revealed that the patient had an extremely elevated white blood cell count that was ten times the normal limit and nearly three times the level considered critical and life-threatening.

15. Because of the critical white blood cell count, a laboratory technologist at the walk-in treatment center called L & M's main laboratory to inform staff that a peripheral blood smear slide was being sent over for urgent review by a pathologist in accordance with laboratory procedures.

16. A laboratory technologist in L & M's main laboratory informed Dr. Cox, who was still on site at the time, about the critical white blood cell count and told him that the slide was on its way to the hospital for Dr. Cox's urgent review.

17. Despite being informed about the slide, Dr. Cox left L & M before the slide arrived from the off-site walk-in treatment center.

18. The on-call oncologist at L & M was informed of the patient's critical white blood cell count and also ordered an immediate review of the slide by a pathologist.

19. L & M laboratory staff paged Dr. Cox when they could not reach him by telephone.

20. Dr. Cox returned the page and spoke with another laboratory technologist, who informed him that the L & M on-call oncologist also requested his urgent review of the slide.

21. Dr. Cox said that he could not review the slide that day and told the technologist to save it for review on Monday.

22. The L & M on-call oncologist ultimately traveled to the walk-in treatment center to assess the patient and review the slide himself.   The slide indicated a likely diagnosis of acute leukemia.

23. On the Monday following Dr. Cox's refusal to review the slide, PCNL received complaints about Dr. Cox's behavior from several people, including an L & M physician, the L & M laboratory manager and the PCNL employee who received for review the peripheral blood smear slides that had not been reviewed over the weekend.

24. PCNL conducted a review of the incident that included interviewing witnesses and discussions with Dr. Cox and members of L & M administration.

Amended Answer, Special Defenses and Counterclaim, February 29, 2012, ¶¶ 10–24, pp. 7–9. [153.]

On April 27, 2012, the defendants served forty Requests for Admission on the plaintiff.   On that same date, defendants filed with the court a notice of their serving the Requests for Admission on the plaintiff.  Practice Book § 13–22(b). [166.]

The request for admission procedure is contained in two sections of the Practice Book, §§ 13–22 and 13–23.   The full text of each of these sections is set forth in the appendix at the end of this opinion.

Basically, the party requesting the admissions ² serves the written request upon another party.³  The request is not filed with the court.   However, the requesting party is required to file a notice with the court that (1) the request has been served on another party, (2) identifies that other party, and, states the date of such service.  Practice Book § 13–22(b).

The process is initiated without the actual requests for admission being filed with the court.  Practice Book § 13–22(b).

Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13–22(b) ․ the party to whom the request is directed files ․ [with the court] a written answer or objection addressed to the matter.

Practice Book § 13–23(a), 1st sentence.

The party served with the requests for admission inserts his response (either answers or objections) on the original request for admission document which had been served upon him, the insertion being made immediately below the request for admission being answered.   The requesting party's original request for admission document with the answering party's responses inserted within it is filed with the court and a copy thereof served upon the party who had requested the admissions.  Practice Book § 13–23(a).

The court emphasizes that the actual requests for admission only become a part of the court record when the responding party actually files his response(s) with the court;  the response(s) being inserted within the requesting party's requests for admission document.

The defendants correctly initiated the request for admission process.   The plaintiff has never made any complaint, criticism, or suggestion that the defendants did not.

The Requests for Admission were served on the plaintiff on April 27, 2012.   Plaintiff has not disputed this.

The thirty days expired on May 27, 2012;  May 27, 2012, was a Sunday and the next day was Memorial Day. A response by the plaintiff by Tuesday, May 29, 2012, would have been timely.⁴

The plaintiff did not file any response by Tuesday, May 29, 2012.   Nor did he seek a time extension from the court during the thirty-day period following his being served with the Requests for Admission.

The responding party's (the plaintiff's) answer or objection was to be inserted on the defendants' original Request.  Practice Book § 13–23(a), 2d sentence.

On June 12, 2012, the plaintiff filed with the a court a document he labeled “COVER SHEET RE PLAINTIFF'S RESPONSES TO DEFENDANTS' REQUEST FOR ADMISSIONS.”   The plaintiff's “Cover Sheet” indicated the plaintiff did not object to any of defendants' Requests for Admission.

The opening sentence/paragraph of the “Cover Sheet,” reads:  “Pursuant to Connecticut Practice Book § 13–23, the Plaintiff, Joseph Cox, M.D., hereby submits the instant cover sheet representing that he has filed the following responses to Defendants' Requests for Admissions dated April 27, 2013:”

The “Cover Sheet” then sets forth a column of numbers, 1–40.   Next to each number appeared either “Admitted,” “Denied,” “Unable to admit or deny,” or “Admitted in part, denied in part.”

The “Cover Sheet” ended:  “The proceeding (Sic.) responses are detailed in the Plaintiff's Responses to the Defendants' Requests for Admissions submitted herewith.”

The plaintiff's opening and ending sentences in the “Cover Sheet” misrepresent his actions.   The plaintiff did not file, and, to this date (December 17, 2013), has not filed Responses to the Defendants' Requests for Admissions with the court.

This violated, and is a continuing violation of § 13–23(a).⁵

On June 19, 2012, the plaintiff filed a motion for extension of time, June 19, 2012, to respond to the defendants' Requests for Admission. [172.]  The plaintiff sought an extension to June 13, 2012.   The plaintiff reasoned that if the court granted an extension to June 13, 2012, his June 12, 2012 filing would be timely.   The court denied the motion. [172.01.] The plaintiff's June 12, 2012 filing was not an answer to the Requests for Admission.

Apparently, the plaintiff served his written answers to the forty Requests for Admission on the defendants on June 12, 2012.   The plaintiff did not file his written answers with the court.   The plaintiff did not object to any of the Requests.   By operation of § 13–23(a), the defendants' forty Requests for Admission were deemed admitted by the plaintiff as of May 29, 2012, when the thirty days expired because the plaintiff had not filed his responses with the court within § 13–23(a)'s thirty-day period.

The only clue the court has regarding the text of the defendants' Requests for Admission and the plaintiff's answers thereto are on a document entitled, “Plaintiff's Responses to Defendants' Requests for Admission,” June 12, 2012.   It is on the stationery of the plaintiff's attorneys, Conway, Londregan, Sheehan, & Monaco, P.C. It purports to state the text of defendants' forty Requests for Admission;  the plaintiff's purported answers to each request is typed below the particular request.

The plaintiff did not file this with the court.

Apparently, the plaintiff served the defendants with a document plaintiff titled “PLAINTIFF'S RESPONSES TO DEFENDANTS' REQUEST FOR ADMISSION,” June 12, 2012.   The described document was filed as Exhibit A to the defendants' “Motion for Order that Defendants' Requests for Admission are Deemed Admitted,” June 21, 2012. [174.]  Curiously, it was on stationery printed with the name, address, telephone number, and Juris Number of the plaintiff's lawyers, Conway, Londregan, Sheehan & Monaco, P.C., etc.   Recall, that the rules of practice required the plaintiff to insert his answers on the “original request” that the defendants served on the plaintiff.   Surely, the defendants' “original request” was not on Conway, Londregan, Sheehan & Monaco, P.C. stationery.

It is evident that the plaintiff did not file his noncompliant “PLAINTIFF'S RESPONSES TO DEFENDANTS' REQUEST FOR ADMISSION,” June 12, 2012, with the court even to this date—December 17, 2013.   The court has the plaintiff's noncompliant document only because the defendants chose to file it with their “Motion for Order that Defendants' Requests for Admission are Deemed Admitted,” June 21, 2012. [174.]

The plaintiff's casual style causes another error.

At least fourteen of the defendants' Requests for Admission are addressed to documents attached to and a part of the defendants' Requests for Admission.   According to § 13–22(a), “[c]opies of documents shall be served with the request ․” Practice Book § 13–22(a), 3d sentence.   The court assumes the subject documents were served by the defendants as part of their original Requests for Admission.

In like manner, § 13–23(a) states:

Documents sought to be admitted by the request shall be filed with the response by the responding party only if they are the subject of an answer or objection.

Practice Book § 13–23(a), 4th sentence.

Since the plaintiff has not filed his responses to the defendants' Requests for Admission with the court, the court does not have the subject documents.   Even the plaintiff's “PLAINTIFF'S RESPONSES TO DEFENDANTS' REQUEST FOR ADMISSION,” June 12, 2012 which the defendants filed as an exhibit to their “Motion for Order that Defendants' Requests for Admission are Deemed Admitted,” June 21, 2012[174] does not have a copy of the subject documents.   So, the court does not.

Assuming, but not finding, the plaintiff has accurately repeated the text of the defendants' Requests for Admission regarding the fourteen Requests addressed to documents, it appears to the court that the fourteen documents in issue are the subject of an “answer” made by the plaintiff.   Therefore, the plaintiff should have filed the fourteen documents with his response.   Practice Book § 13–23(a), 4th sentence.

The plaintiff did not.

The plaintiffs' “Rules are Made to be Broken” creed (and/or practice) puts the court in a difficult position.

The fourteen Requests for Admission that call for the admission of a document are set forth below.   Immediately following each Request, the court states its observations about what the plaintiff could have done to enable the plaintiff to admit or deny.

8. The document attached hereto as Exhibit A, Bates stamped PCNL 000497–505, is a true and accurate copy of your first employment contract with PCNL, dated August 24, 1997.

It is hard to imagine why plaintiff is unable to admit or deny this instrument.   It should bear his signature.   A search of the places where the plaintiff keeps (or kept) important documents, e.g., his desk, his office, safe, safety deposit box or the like should produce an exact copy of the original with which he could make a comparison with the document the defendants submitted with their Requests for Admission and determine whether he could admit or deny the request.   If such a search was fruitless, he could call the attorney, if any, who represented him at the time document was negotiated and executed.   This would probably yield a true copy of the August 24, 1997 employment contract, which could be compared and enable an admission or denial.   The plaintiff also could have requested a certified copy of the document from PCNL.

10.  The document attached hereto as Exhibit B, Bates stamped PCNL 000570–581, is a true and accurate copy of your second employment contract with PCNL, effective October 1, 2001.

See preceding observations.   The plaintiff could have requested from PCNL a certified copy of Exhibit B.

13.  The document attached hereto Exhibit C, Bates stamped PCNL 000482–92, is a true and accurate copy of your most recent employment contract with PCNL, effective July 16, 2008.

See preceding observations.   The document in question, the employment contract the plaintiff admits was executed on July 16, 2008, will be discussed further below.

15. The document attached hereto as Exhibit D, Bate Stamped PCNL 000527, is a true and accurate copy of a memorandum, effective October 1, 2001, in which you agreed to be bound by the terms of a PCNL Stock Purchase Agreement, effective September 1, 1992.

See preceding observations.   The plaintiff could have requested from PCNL a certified copy of Exhibit D.

16.  The document attached hereto as Exhibit E, Bates stamped PCNL 000519–526, is a true and accurate copy of the PCNL Stock Purchase Agreement, effective September 1, 1992, to which you agreed to be bound.

See preceding observations.   Also, the plaintiff could have requested from PCNL a certified copy of Exhibit E.

17.  The document attached hereto as Exhibit F, Bates stamped PCNL 000014, is a true and accurate copy of the Minutes of the Special Meeting of the PCNL Board of Directors, dated May 10, 2010.

See preceding observations.   Also, the plaintiff could have requested from PCNL a certified copy of Exhibit F.

18.  The document attached hereto as Exhibit G, Bates stamped PCNL 000017–18, is a true and accurate copy of your written notice of termination from PCNL, dated May 10, 2010.

See preceding observations.   Also, the plaintiff could have requested from PCNL a certified copy of Exhibit G.

23.  The document attached hereto as Exhibit H, produced by you in response defendants' requests for production, is a true and accurate copy of a note from your doctor, dated March 30, 2010.

Plaintiff's disagreement with Dr. Kelly's statement(s) in Exhibit H are not sufficient grounds to refuse to admit or deny that Exhibit H is a true and accurate copy of Dr. Kelly's note dated March 30, 2010.   Dr. Kelly's office is less than 500 feet from the L & M Hospital.   If there is a question as to whether Dr. Kelly in fact authored Exhibit H, the plaintiff could easily have gone to Dr. Kelly's office, shown Dr. Kelly Exhibit H and had Dr. Kelly state whether or not Exhibit H is a true copy of a note he wrote and would testify to that effect.   It could well be that the verification could be obtained by a call to Dr. Kelly.

24. The document attached hereto as Exhibit I, Bates stamped PCNL 000076, is a true and accurate copy of a note from your doctor, dated April 6, 2010.

See discussion and observations regarding previous request.

25. The document attached hereto as Exhibit J, Bates stamped PCNL 000071, is a true and accurate copy of a note from your doctor, dated April 10, 2010.

See discussion and observations regarding request # 23.

26. The document attached hereto as Exhibit K, Bates stamped PCNL 000012, is a true and accurate copy of a note from your doctor, dated May 11, 2010.

See discussion and observations regarding request # 23.

27. The document attached hereto as Exhibit L, Bates stamped PCNL 000021, is a true and accurate copy of the PCNL Notice of a Special Meeting of the Board of Directors, dated April 27, 2010.

See preceding observations.   The plaintiff could have requested a certified copy of Exhibit L from PCNL.

28.  The document attached hereto as Exhibit M, Bates stamped PCNL 0000476 is a true and accurate copy of the PCNL Revised Notice of a Special Meeting of the Board of Directors, dated April 30, 2010.

See preceding observations.   The plaintiff could have requested a certified copy of Exhibit M from PCNL.

37.  The document attached hereto as Exhibit N, Bates stamped PCNL 000329, is a true and accurate copy of the minutes of the L & M pathology department, dated March 17, 2010.

See preceding observations.   The plaintiff could have requested a certified copy of Exhibit N from L & M.

The principal problem with the plaintiff's fourteen answers is that they run afoul of § 13–23(a)'s explicit proscription:

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless such party states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable an admission or denial.

Practice Book § 13–23(a), 8th sentence.

The plaintiff here has not stated that he made reasonable inquiry and that the information readily available to him is insufficient to enable an admission or denial.   The plaintiff's response strongly suggests the plaintiff did not make a reasonable inquiry.   With minimal effort the plaintiff could have obtained enough information to enable a forthright answer.

The titles to the fourteen documents which are the subject of the defendants' fourteen Requests for Admission strongly suggest they are relevant, and indeed, may be central to the case.

Section 13–23(a) states:

A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer or deny only a part of the matter of which an admission is requested, such party shall specify so much of it as is true and qualify or deny the remainder.

Requests for Admission numbered 4, 5, and 6 relate to events which occurred on March 13, 2010.

4. On March 13, 2010, you left L & M to return to your home at or about 12 p.m.

Response:  Denied.

5. On March 13, 2010, before you left L & M to return to your home, you were informed by a laboratory technologist that a peripheral blood smear requiring pathologist review was being transported to L & M from the Pequot Health Center.

RESPONSE:  Denied.

6. On March 13, 2010, after you left L & M to return to your home, you were paged by a laboratory technologist about the peripheral blood smear that was being transported to L and M from an affiliated outpatient clinic.

RESPONSE:  Denied.

If the plaintiff disputes only a part of the statement, say for example, “to return to your home,” but does not deny the remainder of the request, the plaintiff should have admitted all of the particular Request except for the “to return to your home, “ part which is denied.

The rules regarding answers to requests for admission have a built-in good faith component:

A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer or deny only a part of the matter of which an admission is requested, such party shall specify so much of it as is true and qualify or deny the remainder.

Practice Book § 13–23(a), 7th sentence.

This brings us to plaintiff's responses (non-answers) to the employment agreement in effect during 2010 through May 11, 2010.   These are Requests for Admission numbered 13 and 14.   They are repeated here with plaintiff's responses.

13. The document attached hereto Exhibit C, Bates stamped PCNL 000482–92, is a true and accurate copy of your most recent employment contract with PCNL, effective July 16, 2008.

Response:  The Plaintiff does not have sufficient knowledge to determine the truth and/or accuracy of the referenced document.

14. The employment contract executed July 16, 2008 governed the terms of your employment with PCNL as of your termination on May 10, 2010.

Response:  Admitted that it was executed on July 16, 2008 and denied as to the remainder.

Request number 13 seeks an admission that Exhibit C is a true and accurate copy of plaintiff's most recent employment contract with PCNL. It does not seek any admission as to the content or terms of the actual employment contract executed on July 16, 2008.

Request number 14 is similar.   If it is the plaintiff's position that Exhibit C does not govern his employment with PCNL exclusively, because his employment was subject to laws prohibiting employment discrimination based on age, and, employment discrimination based on disability, the plaintiff should have so qualified his answers and otherwise admitted Exhibit C governed the terms of his employment with PCNL.

But, how the plaintiff in any way can question the legitimacy and/or applicability of Exhibit C is truly baffling.

In each of his complaints, plaintiff alleged:

6.  On or about July 31, 2008, PCNL and Dr. Cox executed an Employment Contract (attached hereto as Exhibit 1 ) wherein Dr. Cox agreed to provide his professional medical services to PCNL in return for certain compensation outlined therein.   Said contract also included, inter alia, a requirement that Dr. Cox maintain his privileges with L & M, as well as a “Non–Compete” restrictive covenant limiting the location where Dr. Cox's (sic) could practice pathology services post-termination.

The quoted paragraph 6 was repeated in all four counts of the plaintiff's operative complaint.   See Amended Complaint, dated September 19, 2011. [132.]  The amended complaint states that the employment contract is “(attached hereto as Exhibit 1).”   It is not.   However it is attached as Exhibit 1 to an earlier version of the plaintiff's complaint, namely, the revised complaint, November 29, 2010. [105.]

A side-by-side comparison by the court of Exhibit 1, numerously cited in the plaintiff's complaint, is impossible because the plaintiff chose not to abide by the rules and file Exhibit C (which is the subject of Requests for Admission numbered 13 and 14) with the court.   While the plaintiff's complaint refers to the employment contract as being executed “[o]n or about July 31, 2008,” lo and behold, Exhibit 1 to the complaint was executed on the “16th day of July 2008;” Exhibit 1 also contains provisions as alleged in the complaint, e.g., namely, “the requirement that Dr. Cox maintain his privileges with L & M,” as well as a “ ‘Non–Compete’ restrictive covenant limiting the location where Dr. Cox's (sic) could practice pathology services post-termination.”   And, Exhibit 1 seems to be executed by James A. Cox, M.D.

Exhibit 1 appears to be the very same employment contract which is described in and is the subject of defendants' Requests for Admission numbered 13 and 14.   It is most unlikely that two employment contracts were executed (signed) on July 16, 2008.

Well, so much for good faith!

The defendants' Request for Admission numbered 29:

After you were terminated, PCNL paid you more than $140,000.

RESPONSE:  Unable to admit or deny without additional facts.

The plaintiff seems to admit he was terminated on May 10, 2010, effective May 11, 2010.   See Requests for Admission 11 and 12 and the plaintiff's purported responses.

The plaintiff supposedly sent above Responses to Requests for Admission numbers 11 and 12 to the defendants' counsel on June 12, 2012.   The court does not know much about the plaintiff's wherewithal.   But the court knows most people would not consider $140,000 chump change.

Thus, plaintiff's not being able to determine whether PCNL paid him “more than $140,000” during the period May 11, 2010, and June 12, 2012 (–25 months) strains.

The plaintiff could have denied Request for Admission numbered 29 outright if he was not paid anything by PCNL. But, if he was paid some amount, candor and good faith required the plaintiff to admit payment of the amount paid, and if that amount was less than $140,000 deny payment of the difference between the amount received and $140,000.

The defendants' Requests for Admission numbered 35 and 36 and the plaintiff's responses are set forth below.

35. You did not ask to be considered for the role of PCNL president when former president Curtis Johnston resigned in 2009.

RESPONSE:  Unable to admit or deny without further information.

36. You did not ask to be considered for the role of Chair of the Pathology Department when former chair Curtis Johnston resigned in 2009.

RESPONSE:  Unable to admit or deny without further information.

Most people would think the information needed to admit or deny these Requests for Admission would come from Dr. Cox's memory.   We do not know what “further information” the plaintiff needs and which the lack thereof prevents his memory from enabling a forthright answer to what appear to be two straightforward Requests for Admission.

The plaintiff's responses to Requests for Admission 13 and 14 demonstrate a theme that pervades the plaintiff's treatment of the request for admission phase of this case and are repeated here with emphasis added:

13.  The document attached hereto as Exhibit C, Bates stamped PCNL 000482–92, is a true and accurate copy of your most recent employment contract with PCNL, executed July 16, 2008.

RESPONSE:  The Plaintiff does not have sufficient knowledge to determine the truth and/or accuracy of the referenced document.

14. The employment contract executed on July 16, 2008 governed the terms of your employment with PCNL as of your termination on May 10, 2010.

RESPONSE:  Admitted that it was executed on July 16, 2008 and denied as to the remainder.

The plaintiff's inability to admit Exhibit C is a true and accurate copy of his employment agreement as stated in his response to Request 13, but which document he admits was executed on July 16, 2008, when responding to Request 14, demonstrates a mental dexterity which pervades his responses to the Requests for Admission.

The plaintiff's responses to the defendants' Requests for a Admission evince a studied evasivness.

Plaintiff's

1. Motion for Reconsideration, November 16, 2012[194];

2. Motion for Articulation, November 16, 2012[195];  and

3. Motion for Withdrawal of Admissions, November 15, 2012, [196], are DENIED.

Parker, J.T.R.

APPENDIX

“Sec. 13–22.  Admission of Facts and Execution of Writings;  Requests for Admission. (a) A party may serve in accordance with Sections 10–12 through 10–17 upon any other party a written request, which may be in electronic format, for the admission, for purposes of the pending action only, of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the existence, due execution and genuineness of any documents described in the request.   The party serving a request for admission shall separately set forth each matter of which an admission is requested and unless the request is served electronically as provided in Section 10–13 and in a format that allows the recipient to electronically insert the answers in the transmitted document, shall leave sufficient space following each request in which the party to whom the requests are directed can insert an answer or objection.   Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying.   The request may, without leave of the judicial authority, be served upon any party at any time after the return day.   Unless the judicial authority orders otherwise, the frequency of use of requests for admission is not limited.

(b) The party serving such request shall not file it with the court but shall instead file a notice with the court which states that the party has served a request for admission on another party, the name of the party to whom the request has been directed and the date upon which service in accordance with Sections 10–12 through 10–17 was made.

Sec. 13–23.  Answers and Objections to Requests for Admission. (a) Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13–22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.   Any such answer or objection shall be inserted directly on the original request.   In the event that an answer or objection requires more space than that provided on a request for admission that was not served electronically and in a format that allows the recipient to electronically insert the answers in the transmitted document, it shall be continued on a separate sheet of paper which shall be attached to the response.   Documents sought to be admitted by the request shall be filed with the response by the responding party only if they are the subject of an answer or objection.   If objection is made, the reasons therefore shall be stated.   The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.   A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer or deny only a part of the matter of which an admission is requested, such party shall specify so much of it as is true and qualify or deny the remainder.   An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless such party states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable an admission or denial.   A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request;  the party may deny the matter or set forth reasons why he or she cannot admit or deny it.   The responding party shall attach a cover sheet to the response which shall comply with Sections 4–1 and 4–2 and shall specify those requests to which answers and objections are addressed.

(b) The party who has requested the admission may move to determine the sufficiency of the answer or objection.   No such motion shall be placed on the short calendar list until an affidavit by either counsel is filed certifying that bona fide attempts have been made to resolve the differences concerning the subject matter of the motion and that counsel have been unable to reach an accord.   Unless the judicial authority determines that an objection is justified, it shall order that an answer be served.   If the judicial authority determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.   The judicial authority may, in lieu of these orders, determine that final disposition of the request be made at a designated time prior to trial.

FOOTNOTES

FN1. Hereinafter, “Requests for Admission” will refer to the Requests for Admission filed in this matter..  FN1. Hereinafter, “Requests for Admission” will refer to the Requests for Admission filed in this matter.

FN2. Here, the defendants..  FN2. Here, the defendants.

FN3. Here, the plaintiff..  FN3. Here, the plaintiff.

FN4. Section 7–17 of the Practice Book provides in part:  “If the last day for filing any matter in the clerk's office falls on a day on which such office is not open ․ then the last day for filing shall be the next business day upon which such office is open.”.  FN4. Section 7–17 of the Practice Book provides in part:  “If the last day for filing any matter in the clerk's office falls on a day on which such office is not open ․ then the last day for filing shall be the next business day upon which such office is open.”

FN5. Section 13–23(a) provides the matter is admitted unless “the party to whom the request is directed files [with the court] ․ a written answer ․ addressed to the matter, signed by the party or by his attorney.”  Practice Book § 13–23(a), 1st sentence..  FN5. Section 13–23(a) provides the matter is admitted unless “the party to whom the request is directed files [with the court] ․ a written answer ․ addressed to the matter, signed by the party or by his attorney.”  Practice Book § 13–23(a), 1st sentence.

Parker, Thomas F., J.T.R.