Opinion
No. CV 03-0406490 S
June 12, 2007
MEMORANDUM OF DECISION
This matter is a medical malpractice action. Before the court is a motion to set aside judgment, dated April 26, 2007, and a motion to restore a case to the docket, dated May 9, 2007, both filed by the plaintiffs. The central issue of both motions is whether the court can reinstate an action against a defendant after the plaintiff had filed a withdrawal of action as to that defendant.
On September 26, 2003, the plaintiffs, Gerard and Jayne Vasco filed an eight-count complaint sounding in medical negligence and loss of consortium against Douglas R. Smego, M.D., Tyr O. Wilbanks, M.D., Stamford Hospital and Stamford Health System, Inc. The plaintiffs allege negligence in the care and treatment of Gerard Vasco during and following gastric by-pass surgery. The parties engaged in years of discovery, many days of jury selection, and evidence was presented at trial beginning on April 24, 2007.
On January 16, 2007, well before the commencement of jury selection, the plaintiffs withdrew their claims against Dr. Wilbanks. The plaintiffs did so as a result of Dr. Wilbanks testimony at a deposition on April 20, 2006. The crucial testimony at that deposition concerned Dr. Wilbanks knowledge of when a nasogastric (NG) tube was removed and reinserted into the plaintiff, Gerard Vasco in the early morning hours of September 3, 2001. At the deposition, Dr. Wilbanks testified that he did not remember ever being made aware that the nasogastric tube was removed and reinserted by a first year intern, Dr. Hodge. As a result of that deposition testimony, the plaintiff's expert, Dr. Thomas Magnuson, opined that since Dr. Wilbanks did not know of the alleged substandard treatment rendered by Dr. Hodge, he could not find or testify that Dr. Wilbanks breached the standard of care. As a result, the plaintiffs' attorneys filed a withdrawal of action against Dr. Wilbanks.
Specifically, at his deposition, on page 18, Dr. Wilbanks testified as follows:
Q. Now, Dr. Hodge has reinserted the nasal gastric tube?
A. That's what that implies.
Q. Were you made aware of that?
A. I don't remember it at the time. And there is no notation he told me. Nor would I have countenanced it had I been made aware of it . . .
Q. But you were never made aware of it?
A. I do not remember being made aware of it.
Despite the plaintiffs' withdrawal of action against Dr. Wilbanks, the remaining defendants had apportionment complaints remaining against him.
At trial Dr. Wilbanks was called as the plaintiffs' first witness. Recalling the events of September 3, 2001 and the reinsertion of the NG tube, Dr. Wilbanks testified that "I have a memory of having been told by the residents — some residents — that this event occurred overnight.
As a result of the change in testimony by Dr. Wilbanks, the plaintiff moved for a mistrial. This court granted the motion and found that the circumstances of Dr. Wilbanks change in testimony to be fundamentally unfair, and that the plaintiffs were being denied a fair trial. On April 26, 2007, the plaintiffs filed a motion to set aside judgment, and on May 9, 2007 the plaintiffs filed a motion to restore a case to the docket.
I.
While not technically a case of first impression, the facts of this case are certainly unique. The underlying issue presented to this court concerns the circumstances of when an action may be reinstated against a defendant after the plaintiffs have filed a withdrawal of action as to that defendant.
The General Statutes and Practice Book give little guidance as to the effect of a withdrawal of action. C.G.S. § 52-80 states in part: (t)he plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof."
There are appellate cases dealing with the ramifications of filing a withdrawal in a civil case. Withdrawals are analogous to final judgments. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80 is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket." (Citations omitted.) Sicaras v. City of Hartford, 44 Conn.App. 771, 775-76 (1997); cert. denied, 241 Conn. 916 (1997).
In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168 (2005), our Supreme Court discussed the Appellate Courts analysis in Sicaras and held: " `the motion to restore a case to the docket is the vehicle to "open" a withdrawal, while the motion to open is the vehicle to open judgments . . . A motion to restore a case to the docket must have a jurisdictional time limitation in the same way as a motion to open.' Sicaras v. Hartford, supra, 776-77. The Appellate Court thus concluded that `§ 52-212a applies to the restoration of a case to the docket as well as to the opening of judgments.' Id., 778. We agree with both the logic and the conclusion of the Appellate Court in Sicaras that § 52-212a is applicable not only to the opening of a case that has proceeded to judgment but also to the restoration of a withdrawn case." Id. at 196.
Since the Supreme Court has held that the proper motion before the court in this situation is a motion to restore the case to the docket, the court will not consider the motion to set aside judgment, as it is moot.
II.
This court now considers the motion to restore the case to the docket. In doing so, the court must treat this motion as it would a motion to open judgment. With reference to any time limitation, the court considers the limitations as it would in motion to open a judgment. Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. C.G.S. § 52-212a. The motion to restore the case to the docket was timely filed within the four-month limitation, as the plaintiffs withdrew their claim against Dr. Wilbanks on January 19, 2007, and filed the motion to restore the case on May 9, 2007.
The Practice Book § 17-4 also provides in part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent."
There is certainly good cause to compel this court to restore the case to the docket. In viewing Dr. Wilbanks deposition testimony, a fair reading of his testimony at page 18 is that he did not remember being told of Dr. Hodges reinsertion of an NG tube on the plaintiff. While counsel for Dr. Wilbanks urges the court to consider the subtle inferences in other parts of his deposition, he clearly stated that "I do not remember being made aware of it." Those statements were relied upon by the plaintiffs, who filed a withdrawal after their expert opined that he could not hold Dr. Wilbanks responsible for what he did not know.
Dr. Wilbanks testimony at trial could not have been more different, He testified that he had "a memory of having been told by the residents — some residents — that this event occurred overnight." He had this refreshed memory despite testifying that he did little to prepare for his trial testimony.
This change in testimony was more than a slight nuance; it had the potential to make or break the plaintiff's case. The remaining defendants had apportionment complaints against Dr. Wilbanks, and without Dr. Wilbanks in the proceeding, the plaintiffs, if successful in proving medical negligence, had the potential to be without remedy.
Changes in testimony are hardly new in any trial. But in this situation, the plaintiffs relied on the misrepresentations in Dr. Wilbanks' deposition testimony to their detriment. Discovery has a purpose in civil litigation, and the "discovery rules are designed to facilitate trial proceedings and to make a `trial less a game of blindman's [buff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent.' " Perez v. Mount Sinai Hospital, 7 Conn.App. 514, 519 (1986), citing United States v. Procter Gamble Co., 356 U.S. 677, 682 (1958). In this case, Dr. Wilbanks did not supplement his refreshed memory as per P.B. 13-15, despite having nearly nine months to do so prior to the withdrawal being filed. His failed memory at his deposition was, at a minimum, an innocent misrepresentation or mistake by him. But the extent of the plaintiffs' reliance on Dr. Wilbanks misrepresentations and his failure to remedy them compels this court to have him held accountable.
If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, that party shall promptly notify the other party, or the other party's attorney, and file and serve in accordance with Sections 10-12 through 10-17 a supplemental or corrected compliance. P.B. § 13-15.
As such, the plaintiff's motion to restore the case to the docket is granted.