Maccalla v. Am. Med. Response of Conn., Inc.

188 Conn.App. 228

204 A.3d 753

Gordon MACCALLA et al.

v.AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC.

AC 40782

Appellate Court of Connecticut.

Argued November 26, 2018

Officially released March 5, 2019

Mark S. Kliger, New Haven, with whom, on the brief, was Irving J. Pinsky, for the appellants (plaintiffs).

John M. Barr, pro hac vice, with whom, were Carolyn A. Trotta, Hartford and, on the brief, David C. Salazar-Austin, Hartford, for the appellee (defendant).

DiPentima, C.J., and Lavine and Moll, Js.

DiPENTIMA, C.J.

The plaintiffs, Gordon MacCalla, Alexis Scianna, Tyler Grailich, John Cronin, Timothy J. Yurksaitis, and Cate Saidler, appeal from the judgment of the trial court dismissing their action against the defendant, American Medical Response of Connecticut, Inc., as a sanction for the unprofessional and dilatory conduct of the plaintiffs' counsel, Attorney Irving Pinsky, during discovery. On appeal, the plaintiffs claim that the trial court erred in dismissing (1) the plaintiffs' case solely on the basis of counsel's conduct and (2) the claim of MacCalla, who had in fact complied with his discovery obligations and was not named in defendant's motion for nonsuit. We agree with the plaintiffs' second claim and reverse the judgment of dismissal as to MacCalla. We affirm the judgment of dismissal in all other respects.

The following undisputed facts and procedural history are relevant to this appeal. On December 14, 2012, the plaintiffs initiated this action (2012 case) against the defendant. The operative complaint, sounding in promissory estoppel, alleged that the plaintiffs were emergency medical responders employed by the defendant and, prior to their employment, the defendant made a "clear and unambiguous promise" to each of them that they could retain simultaneous employment with Valley Emergency Medical Service, Inc. and/or Danbury Ambulance Service, Inc., while also working for the defendant. The complaint also alleged that, after they were hired, the defendant unilaterally withdrew its approval of simultaneous employment and requested that they either discontinue working for the other ambulance services or resign. The complaint alleged that they came to work for the defendant in reliance on the defendant's promise and that enforcement of this promise was "essential to avoid injustice and detriment." While this case was pending, the plaintiffs initiated a separate action (2016 case) against the defendant on August 11, 2016, alleging damages as a result of the defendant's violation of one or more provisions of the Connecticut Antitrust Act, General Statutes § 35-24 et seq. The 2016 case was consolidated with the 2012 case.

On February 7, 2017, the defendant sent six sets of interrogatories and, purportedly, requests for production to Pinsky's office. On February 16, 2017, each plaintiff filed a motion for extension of time, seeking an additional thirty days in which to respond to the "interrogatories and requests for production"; the defendant did not object. Despite the extension, the plaintiffs failed to submit responses prior to the date they were due.¹ On April 25, 2017, the defendant filed a motion for order of compliance as to each of the six plaintiffs.

Contemporaneously, the defendant sought to schedule depositions of the six plaintiffs. The depositions were noticed originally for May 3 and 4, 2017, in Hartford. The plaintiffs agreed to the dates but requested that the location be moved to New Haven; the defendant assented and resent notice of the depositions accordingly. On April 26, 2017, as a result of the plaintiffs' failure to provide timely discovery responses, the defendant's counsel, Attorney David Salazar-Austin, e-mailed Pinsky, informing him that the depositions would not go forward. The next day, Pinsky replied that the discovery responses would be provided on or before May 12, 2017, and that the plaintiffs were available to be deposed on May 25, 26, and 31, and on June 1, 2017. In response, the defendant noticed the depositions for May 25 and 26, to be held at Pinsky's office in New Haven.

On May 12, 2017, the plaintiffs provided responses and objections to the defendant's interrogatories. In response to the defendant's inquiry as to why the plaintiffs did not respond to the requests for production, Pinsky claimed that he never received any such requests. In an e-mail sent to Pinsky, Salazar-Austin was skeptical of this assertion, contending that the interrogatories and requests for production had been sent as a single document. In the same e-mail, Salazar-Austin asked that the plaintiffs respond promptly to the requests for production and sought to reschedule the plaintiffs' depositions. In his reply e-mail, Pinsky iterated that he had not received the requests for production and indicated that his clients would not be available for depositions until sometime between "very late June and mid-July." Because jury selection was scheduled to begin in early August, the defendant was not amenable to this time frame and filed a request for adjudication of the discovery dispute with the court.

On June 5, 2017, the court held a hearing on the defendant's request for adjudication. At the hearing, the parties agreed that the plaintiffs would provide responses to the requests for production by July 7, 2017, and that the plaintiffs' depositions would be held at Pinsky's office on July 17 and 18, 2017. Although the plaintiffs argue in their brief that this agreement was never adopted as a court order, the hearing transcript clearly indicates otherwise:

"[The Plaintiffs' Counsel]: My understanding is production by July 7 and depositions to be taken ... [on July 17 and 18]; is that correct?

"[The Defendant's Counsel]: Yes.

"[The Plaintiffs' Counsel]: Yes. Okay.

"The Court: Okay. That's now an order of the court."

Consistent with the parties' agreement and the court's order, the plaintiffs, with the exception of Saidler, provided complete responses to the defendant's requests for production, and their depositions, starting with MacCalla, were scheduled for July 17, 2017. On that date, Salazar-Austin and Attorney John M. Barr arrived at Pinsky's office to conduct the depositions on behalf of the defendant. Accompanying them was the defendant's corporate representative, William Schietinger. Upon learning that Schietinger would be attending the depositions, the plaintiffs' counsel, Attorney Mark Kliger, objected on the ground that the Practice Book required the defendant to provide prior notice. Following a review of the Practice Book, the parties agreed that notice was required only if the deposition was to be held by remote electronic means.² Nonetheless, at the start of MacCalla's deposition, the following colloquy occurred:

"[Barr]: Before we get started, opposing counsel wants to make an objection on the record. So please go ahead. Did you want to object?

"[Kliger]: Yes, I want to put something on the record. On behalf of Mr. MacCalla, Attorney Mark Kliger from Irving Pinsky's office.

"Mr. Schietinger from [American Medical Response of Connecticut, Inc.] is present here at the deposition. He's sitting at the table where the deposition is being conducted. Counsel for [American Medical Response of Connecticut, Inc.] did not tell us in advance that Mr. Schietinger would be attending the deposition. My client, Mr. MacCalla, has indicated he feels a sense of intimidation by Mr. Schietinger's presence, and so we're going to preserve any right we have to object to Mr. Schietinger's presence.

"We quoted Section 13-30 in support of our position, and there may be other Practice Book provisions as well which apply specifically to the fact that we were not given notice in advance of Mr. Schietinger's attendance at the deposition, and we did not consent to it, and also again bearing in mind Mr. MacCalla has indicated to me that he feels a sense of intimidation by Mr. Schietinger's presence.

"Again, we want to preserve all rights we have with regard to an objection to this deposition and the way it's being conducted. That's it."

Despite Kliger's objection, Schietinger was present at MacCalla's deposition. MacCalla testified that he did not feel physically threatened by Schietinger and, although he indicated that he was intimidated "[s]lightly" by Schietinger's presence, did not object to proceeding with the deposition. After MacCalla's deposition, the parties took a lunch break and then reconvened for the deposition of Yurksaitis. During Yurksaitis' deposition, Kliger stated the following:

"[Kliger]: Okay. Also on that subject, Mr. Pinksy has asked me to place on the record as part of the objection that since Mr. Schietinger was not invited on Mr. Pinsky's property, that Mr. Pinsky considers Mr. Schietinger to be a trespasser.

"[Barr]: Well, then we need to leave because if Mr. Pinsky considers him to be a trespasser, I'm not going to put my client at risk of arrest, and we'll just have to take it up with the judge. You better go talk to Mr. Pinsky really fast, because if my client is a trespasser, I am not having him subject to arrest."

When Kliger returned after speaking with Pinsky, he stated the following:

"[Kliger]: Okay. I've checked with Mr. Pinsky, and his position is if Mr. Schietinger is going to be—he considers Mr. Schietinger to be a trespasser, someone who's not invited on the property and was not invited to participate in the deposition."

After a short discussion, in which Yurksaitis stated that he did not feel physically intimidated by Schietinger, the defendant's counsel suspended the deposition, and the two attorneys for the defendant and Schietinger left Pinsky's office. Later that day, Salazar-Austin sent Pinsky an e-mail that attempted to resolve the issue regarding Schietinger's presence at the plaintiffs' depositions. In the e-mail, Salazar-Austin indicated that if the plaintiffs' counsel was "willing to drop [his] insistence that [American Medical Response of Connecticut, Inc.'s] designated representative is...