Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:02-cv-00718-RNC

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT =========================================X LAURA GUIGLIANO, as Administrator of the Estate of MICHAEL GUIGLIANO, Deceased, and LAURA GUIGLIANO, Individually, Plaintiff(s) -againstDANBURY HOSPITAL, JAMES DEPUY, M.D., F. SCOTT GRAY, M.D., GEORGIANA KNOWLES, P.A., DEANNA WOLFFE, P.A., DAVID OELBERG, M.D., DAVID YUAN, M.D., J. BORRUSSO, M.D., JOSEPH J. CATANIA, M.D., SCOTT B. BERGER, M.D., DANBURY SURGICAL ASSOCIATES, P.C., ARTHUR KOTCH, M.D., IULIA CIRCIUMARA, M.D., ANDREI KOUZNETSOV, M.D., MIHAELA TUDORICA, M.D., MAUREEN BENNETT, R.N., JOANN BROWN, R.N., BETH ANN HOFFMAN, R.N., VANESSA SAIPHER, JOE ROTH and "JANE DOE NO. 1" (full identity unknown, being identified as a DANBURY HOSPITAL employee who was assigned to monitor, supervise and attend to patient MICHAEL GUIGLIANO prior to and during a CT Scan procedure on 2/17/01), Defendants. =========================================X PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR STAY OF TRIAL & FOR ADOPTION AND ISSUANCE OF A REVISED SCHEDULING ORDER. (Dated: May 2, 2005) Submitted by: JOSEPH LANNI, ESQ. (CT 23566) THE LAW FIRM OF JOSEPH LANNI, P.C. Attorneys for Plaintiff LAURA GUIGLIANO 3:02 CV 718 (RNC)(DFM)

ORAL ARGUMENT [IS ___ /IS NOT _X_] REQUESTED FOR THIS MOTION.

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TABLE OF CONTENTS Page No. Preliminary Statement.....................................................................3 Relief Sought................................................................................4 L. Civ. R. 7(b)(2)-(3) Certification........................................................4 Recent Developments in Case & Argument for Relief.....................................................................6 Conclusion....................................................................................8

TABLE OF EXHIBITS

Exhibit 1 ­ Case Management Plan Stipulation & Order, dated May 2, 2005 (Proposed)

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PRELIMINARY STATEMENT

This action, premised on diversity jurisdiction, sounds in medical malpractice and negligence.

On February 7, 2001, plaintiff Michael Guigliano was admitted to defendant Danbury Hospital after sustaining a fractured leg and foot in a fall at work. Mr.

Guigliano underwent surgery to repair these fractures and remained in the hospital for further care. During the postoperative course, Mr. Guigliano developed abdominal

distention and breathing difficulties that worsened over time. On February 17, 2001, Mr. Guigliano was found in cardiorespiratory arrest in the hospital's CT scan room. Though eventually resuscitated after approximately 30 minutes, Mr. Guigliano became severely brain damaged, quadriplegic, ventilator dependent, and semi-comatose. He died from complications of these injuries at the Northeast Center for Special Care on July 14, 2003.

It is alleged that Mr. Guigliano's injuries and death were caused by the medical malpractice and negligence of the defendant Danbury Hospital and the medical personnel caring for him during the first ten (10) days (February 7 ­ 17, 2001) of this hospital admission.

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RELIEF SOUGHT This Memorandum of Law is submitted in support of the plaintiff's motion for the following relief:

1. Pursuant to Fed. R. Civ. P. 6 (b) & L. Civ. R. 7 (b)(2) ­ (3), staying the trial of this action, currently scheduled for June 14, 2005, on the ground that additional time is needed to complete discovery by and from recently joined defendants in this action;

2. Pursuant to Fed. R. Civ. P. 16 (a) (b) & (c), Fed. R. Civ. P. 26 (f), L. Civ. R. 16(a) & (b) and L. Civ. R. 7 (b), adopting and issuing a revised scheduling order (attached hereto as Exhibit 1, "Case Management Plan Stipulation & Order", dated May 2, 2005) governing disclosure by and from newly joined defendants and extending the deadlines in the Case Management Order previously filed with this Court on November 9, 2004, in order to permit all parties to complete discovery by and from newly joined defendants;

and for such other and further relief deemed to be just and proper by this Court under the circumstances.

L. CIV. R. 7(b)(2)-(3) CERTIFICATION

The undersigned counsel, along with the other counsel involved in this case, seeks a stay of the trial in this action currently scheduled for June 14, 2005, along with adoption

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and issuance of a revised scheduling order (see, attached Exhibit 1) and an extension of the deadlines in the prior Case Management Order. The reason that the above enumerated relief is requested is due to the fact that three new defendants (CATANIA, BERGER and DANBURY SURGICAL ASSOCIATES, P.C.) were recently joined in this action, these newly joined defendants have just returned waivers of service of process and that all parties require additional time to complete discovery by and from newly joined defendants, complete depositions of fact witnesses and take depositions of expert witnesses. The aforementioned reasons demonstrate that it is not reasonably possible to complete discovery as set forth in the prior Case Management Order issued by this Court on November 9, 2004.

I have forwarded letters to all other counsel in this case requesting their input in formulating a revised scheduling order. Opposing counsel have provided me with their thoughts on the provisions of such a revised scheduling order and the undersigned has drafted a revised Case Management Plan Stipulation & Order, dated May 2, 2005 (see, attached Exhibit 1) attempting to accommodate all parties. Consent to an extension of the deadlines contained in the revised Case Management Plan Stipulation & Order, dated May 2, 2005 (see, attached Exhibit 1) has been indicated by counsel for all adverse parties. This is the first submission of a revised scheduling order which provides for an extension of all deadlines in the previously issued Case Management Order, dated November 9, 2004. 1

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Counsel for the parties had previously agreed to extend the deadline for the completion of the depositions of fact witnesses by sixty (60) days to January 1, 2005; however, all other deadlines in the Case Management Order remained unchanged.

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RECENT DEVELOPMENTS IN CASE & ARGUMENT FOR RELIEF On January 21, 2005, the undersigned attorney for plaintiff filed a motion with this Court seeking: (1) leave to join three additional defendants (identified as JOSEPH J. CATANIA, M.D., SCOTT B. BERGER, M.D., and DANBURY SURGICAL ASSOCIATES, P.C.), (2) leave to file and serve a Second Amended Complaint naming CATANIA, BERGER and DANBURY SURGICAL ASSOC. as additional defendants, and (3) issuance of a revised scheduling order governing disclosure by and from the newly joined defendants and permitting the parties to complete discovery in this action.

During a telephone conference with all counsel on March 7, 2005, Magistrate Judge Martinez granted that portion of the plaintiff's motion which sought (1) leave to join the three additional defendants, and (2) leave to file and serve a Second Amended Complaint. That portion of the motion which sought issuance of a revised scheduling order governing disclosure was deferred for decision until the newly joined parties had been served with the Second Amended Complaint and appeared in this action.

On or about March 9, 2005, plaintiff then filed her Second Amended Complaint with the Court and proceeded to serve the same upon the parties, including the additional defendants, CATANIA, BERGER and DANBURY SURGICAL ASSOC. Subsequently, waivers of service of process were received by plaintiff's counsel for defendant CATANIA on or about March 17, 2005, defendant BERGER on or about March 28, 2005, and defendant DANBURY SURGICAL ASSOC. on or about March 22, 2005. Over the next few weeks, appearances by counsel for the newly joined defendants were

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received by the undersigned.

Halloran & Sage appeared as counsel for defendant

CATANIA, Tyler Cooper & Alcorn appeared as counsel for defendant BERGER, and Ryan, Ryan, Johnson & DeLuca appeared for defendant DANBURY SURGICAL ASSOC., P.C. After the appearance of counsel for these defendants, discussions began concerning the amount of additional time needed to complete discovery and the content of the provisions for a revised scheduling order. This motion is being filed at the present time since all parties are now represented by counsel, all counsel have had the opportunity to provide their input with regard to the provisions of the proposed revised Case Management Plan Stipulation & Order, dated May 2, 2005, and the trial of this action is currently scheduled for June 14, 2005.

This Court is respectfully requested to grant the relief sought by this motion to enable the parties to complete necessary discovery in this action. Given the recent developments in this action, the current timetable does not reasonably permit the parties to undertake discovery and prepare for the trial of this action. Under the circumstances, this Court is respectfully requested to stay the trial of this action, currently scheduled for June 14, 2005, pursuant to Fed. R. Civ. P. 6 (b) & L. Civ. R. 7 (b)(2) ­ (3). Under the circumstances, this Court is respectfully requested to issue an order, pursuant to Fed. R. Civ. P. 16 (a) (b) & (c), Fed. R. Civ. P. 26 (f), L. Civ. R. 16(a) & (b) and L. Civ. R. 7 (b), adopting and issuing the attached proposed revised Case Management Plan Stipulation & Order, dated May 2, 2005 (attached hereto as Exhibit 1) governing disclosure by and from newly joined defendants and extending the deadlines in the previously issued Case

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Management Order dated November 9, 2004, to permit all parties to complete discovery in this action, including by and from the newly joined defendants.

CONCLUSION

For the reasons stated above, this Court is respectfully requested to grant the relief sought by this motion in its entirety.

Dated: Larchmont, New York May 2, 2005
Digitally signed by Joseph Lanni DN: cn=Joseph Lanni, c=US, [email protected] Date: 2005.05.01 17:07:51 -04'00'

Joseph Lanni

__________________________________________ JOSEPH LANNI (CT 23566) THE LAW FIRM OF JOSEPH LANNI, P.C. Attorneys for Plaintiff LAURA GUIGLIANO 138 Chatsworth Avenue, Suites 6-8 Larchmont, New York 10538 (914) 834-6600

TO:

SACHNER & O'CONNOR Attorneys for Defendants DEPUY, GRAY & WOLFF 765 Straits Turnpike, Bldg. 2, Ste. 1001 P.O. Box 1323 Middlebury, CT 06762-1323 NEUBERT, PEPE & MONTIETH, P.C. Attorneys for Defendants DANBURY HOSPITAL, OELBERG, YUAN, KOTCH, CIRCIUMARA, KUZNETSOV, TUDORICA, BENNETT, BROWN and HOFFMAN 195 Church Street New Haven, CT 06510

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RYAN, RYAN, JOHNSON & DELUCA, LLP Attorneys for Defendant BORRUSO & DANBURY SURGICAL ASSOC., P.C. 80 Fourth Street Stamford, CT 06905 TYLER, COOPER & ALCORN, LLP Attorneys for Defendant BERGER 205 Church Street New Haven, CT 06509-1910 Tel.: (203) 784-8200 HALLORAN & SAGE, LLP Attorneys for Defendant CATANIA One Goodwin Square Hartford, CT 06103 SCOTT F. MORGAN, ESQ. WEINER, MILLO & MORGAN, LLC Co-Counsel for Plaintiff LAURA GUIGLIANO 220 Fifth Avenue, 7th Floor New York, New York 10001

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DECLARATION OF SERVICE PURSUANT TO 28 U.S.C. § 1746 I, JOSEPH LANNI, an attorney duly admitted to practice before this Court, hereby certify, under the penalty of perjury, that the following is true and correct: I am over 18 years of age, I am not a party to the action, and I reside in Westchester County in the State of New York. I served a true copy of the annexed: PLAINTIFFS'MOTION FOR STAY OF TRIAL & FOR ADOPTION AND ISSUANCE OF A REVISED SCHEDULING ORDER (dated May 2, 2005), PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR STAY OF TRIAL & FOR ADOPTION AND ISSUANCE OF A REVISED SCHEDULING ORDER (dated May 2, 2005), and EXHIBIT 1 (CASE MANAGEMENT PLAN STIPULATION & ORDER), on the date of May 2, 2005, by mailing the same via first class mail or the equivalent in a sealed envelope deposited in a post office or receptacle for mail provided by the U. S. Postal Service or via an express delivery courier service to the offices of counsel for the defendants located at the addresses indicated below: TO:
NEUBERT, PEPE & MONTEITH Attorneys for Defendants DANBURY HOSPITAL, OELBERG, YUAN, KOTCH, CIRCIUMARA, KOUZNETSOV (s/h/a KUZNETS), TUDORICA, BURNETT, BROWN, HOFFMAN, DOE NO. 1, DOE NO. 2 & DOE NO. 3 195 Church Street New Haven, CT 23067 Tel.: (203) 821-2000 RYAN, RYAN, JOHNSON & DELUCA, LLP Attorneys for Defendants BORRUSSO & DANBURY SURG. ASSOC., P.C. 80 Fourth Street Stamford, CT 06905 Tel.: (203) 357-9200 HALLORAN & SAGE, LLP Attorneys for Defendants CATANIA One Goodwin Square Hartford, CT 06103 Tel.: (860) 522-6103 SACHNER & O'CONNOR Attorneys for Defendants DEPUY, GRAY, & WOLFFE 765 Straits Turnpike Building 2, Suite 1001 Middlebury, CT 06762-1323 Tel.: (203) 598-7585

TYLER, COOPER & ALCORN, LLP Attorneys for Defendant BERGER 205 Church Street New Haven, CT 06509-1910 Tel.: (203) 784-8200

SCOTT F. MORGAN (CT 23648) WEINER, MILLO & MORGAN, LLP Co-Counsel for Plaintiffs 220 Fifth Avenue New York, New York 10001 Tel.: (212) 213-1220

Executed on May 2, 2005, Larchmont, New York.

Joseph Lanni

______________________________ JOSEPH LANNI (CT 23566)

Digitally signed by Joseph Lanni DN: cn=Joseph Lanni, c=US, [email protected] Date: 2005.05.01 17:08:17 -04'00'

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