DOCKET NO. HHD CV-l6-6073070 S
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`DOROTA WISNIEWSKI, ET AL
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`VS.
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`HARTFORD HEALTHCARE
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`CORPORATION, ET AL
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`SUPERIOR COURT
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`l
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`J. D. OF HARTFORD
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`AT HARTFORD
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`SEPTEMBER 3, 2019
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`MEMORANDUM OF DECISION I
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`In this medical malpractice action, the plaintiffs filed an objection (#135) to the
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`defendants’ July 30, 2019 request for leave to amend their answer (#134) to file a special
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`defense based on the statute of limitations. The objection appeared as a take papers matter on
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`the short calendar for August 26, 2019. This matter is scheduled to commence jury selection on
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`November 5, 2019.
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`“While our courts have been liberal in permitting amendments .
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`.
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`. this liberality has
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`limitations. Amendments should be made seasonably. Factors to be considered in passing on a
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`motion to amend are the length of the delay, fairness to the opposing parties and the negligence,
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`if any, of the party offering the amendment. .
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`.
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`. The motion to amend is addressed .to the trial
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`court’s discretion which may be exercised to restrain the amendment of pleadings so far as
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`necessary to prevent unreasonable delay ofthe trial. .
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`.
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`. Whether to allow an amendment is a
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`matter left to the sound discretion of the trial court.” LaFrance v. Lodmell, 322 Conn. 828,
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`846—47, 144 A.3d 373 (2016).
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`amendment, or to his adversary by granting the motion, with the resultant
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`lay.
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`DuBose v.
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`“In exercising its discretion with reference to a motion for leave to amend, a court
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`should ordinarily be guided by its determination of the quéflfpgayvggm msgreater injustice
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`will be done to the mover by denying him his day in court on the subject maffti’epof the proposed
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`Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971).
`“To justify a refusal to allow an amendment, it must appear that there [is] some sound
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`reason for the trial court’s exercise of its discretion in that manner.” (Internal quotation marks
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`omitted.) Jacob v. Dometz‘c Origo AB, 100 Conn. App. 107, 111, 916 A.2d 872, cert. granted,
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`282 Conn. 922, 925 A.2d 1103 (2007), appeal withdrawn, August 7, 2007. “[U]nless there is a
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`sound reason, refilsal to allow an amendment is an abuse of discretion.” Id. “The essential tests
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`are whether the ruling of the court will work an injustice to either the plaintiff or the defendant
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`and whether the granting of the motion will unduly delay a trial.” (Internal quotation marks
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`omitted.) Id., 113. The absence of significant injustice or prejudice may outweigh any possible
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`inconvenience to the nonmoving party or potential delay. See id., 114.
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`Here, the proposed amendment relates only to a single allegation of medical malpractice.
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`In the complaint, one of the plaintiffs eleven allegations of negligence is that the defendants
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`“failed to warn the Plaintiff that the use of methadone created the risk of damage to the
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`Plaintiff’s teeth[.]” See complaint, second and third counts, fl 5j. In the proposed special
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`defense, the defendants allege that Dr. Taboada saw the plaintiff for an appointment on January
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`28, 2014, and noted that he “spent a large portion of [her] visit discussing oral hygiene
`secondary to the loss ofteeth as a result ofusing methadone. There is no question in my mind
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`that methadone is responsible for the decay in her teeth.” (Internal quotation marks omitted.)
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`The defendants further allege that “[t]his claim is barred by the applicable statute of
`limitations, Conn. Gen. Stat. § 52-584 as it was brought more than two years from the date whe
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`the Plaintiff s injury was first sustained or discovered or in the exercise of reasonable care
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`l Il l
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`should have been discovered.”
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`The plaintiffs argue that defense counsel was well aware of Dr. Toboada’s note when
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`suit was brought in November 2016 and when the answer was filed in March 2017, and there is
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`no valid excuse for failing to timely assert the special defense in the answer. They argue that it
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`would be unfair to allow this defense now since trial is imminent, depositions of the parties hav
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`been conducted, experts have been disclosed, and the plaintiffs’ expert has been deposed.
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`The plaintiffs note that plaintiff Dorota Wisniewski’s deposition was conducted in June
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`2018, and, if the basis of the defense is information obtained then, as suggested in the
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`defendants’ reply, the defendants waited over one year to file the proposed defense. Also, they
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`state that, after that deposition, other discovery was conducted, in particular the deposition of
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`Dr. Toboada, and argue that since they were not on notice of the statute of limitations defense
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`when other discovery was conducted, no inquiries were made regarding the factual basis of the
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`defense, potentially prejudicing their ability to rebut the defense at trial. The plaintiffs also
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`challenge the legal validity of the special defense, contending that the continuing course of
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`treatment doctrine is applicable.
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`The defendants assert that they will be prejudiced iftheir defense is not allowed and the
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`plaintiffs have not identified .any prejudice to them that would result from permitting the
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`amendment. They assertthat the issue presented by the special defense was explored in
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`discovery, during Ms. Wisniewski’s deposition, and no further discovery would be necessary.
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`Il
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`“[R]equests to amend cannot be denied based on the sufficiency of the proposed
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`[pleading]. .
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`.
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`. [E]ven if a proposed pleading is alleged to be insufficient, a [party]‘ should be
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`permitted to file [the amended pleading], so that the issues arising under it may be determined i
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`proceedings properly adapted to that end.” (Citation omitted; footnote omitted; internal
`quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256—157, 905 A.2d
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`1165 (2006). Thus, the court may not consider the plaintiffs’ challenge to the legal validity of
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`the special defense.
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`I
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`As was the situation in Jacob V. Dometic Origo AB, supra, 100 Conn. App. 107,
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`although the defendants’ proposed amendment could have been presented earlier, this case was
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`not scheduled for trial until three months after the amendment was offered. See id., 114. Also,
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`the issue was apparently addressed in Ms. Wisniewski’s deposition.
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`The plaintiffs have not shown that they would be unable to rebut the new defense at trial.
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`In the exercise of its discretion, the court concludes that denial of the proposed amendment
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`would work an injustice to the defendants, since it would deprive them of the opportunity to
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`assert a defense to part of the plaintiffs’ claims, which outweighs any inconvenience to the
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`plaintiffs or any potential delay. To mitigate any prejudice that would result, the plaintiffs are
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`authorized to re-depose Dr. Toboada, limited to the issue raised by the statute of limitations
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`defense.
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`Accordingly, for the reasons stated above, the plaintiffs’ objection to the defendants’
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`request to amend. is overruled.
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`BY THE COURT
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`ROBERT .SHA IRO
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`JUDGE TRIAL REFEREE
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`Case Detail — HHD-CV16-6073070-S
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`Page 1 of 4
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`'HHD-CV1-
`6073070-8
`Prefix: HD5
`
`WISNIEWSKI, DOROTA Et Al v.‘HARTFORD HEALTHCARECORPORATION Et Al
`File Date: 11/17/2016
`
`‘ Return Date: 12/13/2016
`Case Type: T28;
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`Case Type: T28 - Torts - Malpractice - Medical
`Court Location: HARTFORD JD
`List Type: No List Type
`Trial List Claim:
`Last Action Date: 08/30/2019 (The "last action date" is the date the information was entered'In the system)
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`P-02
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`JERRY WISNIEWSKI
`Attorney:
`(2 HOWARD KOHN SPRAGUE & FITZGERALD (028160) File Date. 11/17/2016
`PO BOX 261798
`HARTFORD, CT 061261798
`D-01 HARTFORD HEALTHCARE CORPORATION
`REMOVED
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`
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`D-02
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`JONATHAN A. KOST, NI.D., LLC
`Attorney:
`:2 DANAHERLAGNESE PC.(101685)
`CAPITOL PLACE/STE 7oo
`21 OAK STREET
`HARTFORD, CT 06106
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`D-03 RICARDO TABOADA, M.D.
`Attorney: 9 DANAHERLAGNESE PC (101685)
`CAPITOL PLACE/STE 700
`21 OAK STREET
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`HARTFORD. CT 06106
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`File Date: 12l15/2016
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`File Date: 12l15l2016
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`Defendant
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`Defendant
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`P-01 DOROTA WISNIEWSKI
`Attorney:
`11’ HOWARD KOHN SPRAGUE & FITZGERALD (028160) File Date: 11/17l2016
`PO BOX 261798
`HARTFORD, CT 061261798
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`i Information U-dated as of: 09/03/2019
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