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DOCKET NO. UWY-CV20-6056586-S SUPERIOR COURT
KEVIN MCSWIGGAN Jd. D. OF WATEREBURY
vs. AT WATERBURY
O'BRIEN INSURANCE AGENCY, LLC DECEMBER 14, 2023
DEFENDANT'S REPLY TO PLAINTIFF'S OBJECTION TO MOTION FOR
NONSUIT AND DEFENDANT'S MOTION TO DISMISS AND/OR NONSUIT THE
PLAINTIFF FOR HIS FAILURE TO COMPLETELY AND/OR TRUTHFULLY
RESPOND TO DISCOVERY REQUESTS
Pursuant to Practice Book §13-14, the defendant hereby moves
that the court enter an order of nonsuit and/or dismissal against
the plaintiff, Kevin McSwiggan for his failure to comply
completely and/or truthfully with the October 23, 2020, discovery
requests filed by the defendant in the above-captioned action.
On March 31, 2021, the plaintiff responded to some but not all
of the Interrogatories and Requests for Production and on April
6, 2022, the plaintiff provided Supplemental responses. On
October 11, 2023, the undersigned defendant filed a Motion to
Compel, which was ruled on by the court (Parkinson, J.) on October
25, 2023 (see court order #121 attached hereto as Exhibit YA").
The court's order required the plaintiff to comply with
defendant’s discovery requests by November 24, 2023, or be
subjected to a nonsuit.
In response to defendant's Motion to Compel,
plaintiff filed supplemental responses to discovery on
October 25, 2023, still not completely, and/or truthfully
complying with all of said requests. On November 28,
2023, this defendant filed a Motion for Nonsuit
requesting the court’s order of October 25, 2023, be
enforced.
A.INTERROGATORY NO. 27:
The following interrogatory request was responded to
(See Exbibit “BY,
by the plaintiff on March 31, 2021.
Page No. 27) as follows:
27. If, during 2021, the ten-year period prior to the
date of the incident alleged in the Complaint, were
you under a doctor's care for any conditions which were
in any way similar or related to those identified and
listed in your response to Interrogatory #9? If so,
state the nature of said conditions, the dates on
which treatment was received, and the name of the
doctor or health care provider.
ANSWER: No
At the plaintiff's deposition on July 22, 2021, the
plaintiff Testified that he was involved in a motor vehicle
accident within the ten (10) years prior to the date of the
incident alleged in his complaint and that although he did not
have a recollection of the details of the accident, he did
testify that he was represented by Attorney Matthew Maddox
(See Exhibit wo" of deposition testimony of Kevin McSwiggan,
pages 5,6, 7 of plaintiff's testimony) . In his deposition,
plaintiff further stated that he injured his back as a result of
said accident. To date, the plaintiff has failed to truthfully
respond to said interrogatory.
B. INTERROGATORY NO. 28:
The plaintiff failed to provide an adequate response in the
plaintiff’s responses dated March 31, 2022, (See Exhibit “D",
Int. #28) to the questions posed in the subsequent interrogatory
which reads:
28. If, during the ten-year period prior to the date of the
incident alleged in your Complaint, you were involved in any
incident in which you received personal injuries similar or
related to those identified and listed in your response to
Interrogatory #27, please answer the following with respect to
each such earlier incident:
a on what date and in what manner did you sustain such
injuries?
b. did you make a claim against anyone as a
Result of said accident?
c. if so, provide the name and address of the person or
persons against whom a claim was made;
d if suit was brought, state the name and location of
the court, the return date of the suit, and the docket
number;
e. state the nature of the injuries received in said
accident;
£ state the name and address of each physician who
treated you for said injuries;
g. state the dates on which you were so treated;
state the nature of the treatment received on each such
date;
h. if you are presently or permanently disabled as a
result of said injuries, please state the nature of such
disability, the name and address of each physician who
diagnosed said disability and the date of each such
diagnosis.
ANSWER (a-i): Mr. Mcswiggan does not recall the date, but he
was involved in a rear-end accident within the ten-year
period prior to the accident; no lawsuit was commenced,
however an insurance claim was made and further information
will be provided upon receipt of same.
In plaintiff's
Supplemental Responses dated October 25,
2023, (See Exhibit “D”, Int. #28), the plaintiff responded to
Interrogatory #28 as follows:
ANSWER (a-i}: As previously stated, Mr. McSwiggan does not
recall the date of the incident, but he was involved in a
rear-end incident within a 10 year period prior to the
accident. This incident did not relate to similar injuries as
it involved neck pain. Mr. Mcswiggan was checked out at Danbury
Hospital and made a claim against the other driver's carrier
which he believes was Progressive. He did not have follow up
care.
Furthermore, the defendant has been provided with
information that the plaintiff was possibly involved in two
(2) other accidents in December of 2017 and again on January
il; 2017, neither of which the plaintiff has disclosed.
C. INTERROGATORY NO. 29:
The following interrogatory requested was responded to by
the plaintiff on March 31, 2021, (See Exhibit B, Int. #29):
29. If you were involved in any incident in which you
received personal injuries since the date of the incident
alleged in the Complaint, please answer the following:
a. on what date and in what manner did you sustain said
injuries?
b. did you make a claim against anyone as a result of
said accident?
c. if so, provide the name and address of the person or
persons against whom a claim was made;
d. if suit was brought, state the name and location of
the Court, the return date of the suit, and the docket
number;
e state the nature of the injuries received in said
accident;
f. state the name and address of each physician who
treated you for said injuries;
g. state the dates on which you were so treated;
h state the nature of the treatment received on each
such date;
1 if you are presently or permanently disabled as a
result of said injuries, please state the nature
of such disability, the name and address of each
physician who diagnosed said disability and the date of
each such diagnosis.
ANSWER (a-i): No
After alerting plaintiff's counsel that the judicial court
website indicated that his client had filed another personal
injury action wherein, he was represented by another attorney
(See Mcswiggan v. United Rentals, Docket No. UWY-CV23-6071659S,
the plaintiff supplemented his responses to our discovery on
October 25, 2023, as follows:
29. If you were involved in any incident in which you received
personal injuries since the date of the incident alleged
in the Complaint, please answer the following:
a. on what date and in what manner did you sustain said
injuries?
ANSWER: August 9, 2021
b. did you make a claim against anyone as a result of
said accident?
ANSWER: Yes
Cc if so, provide the name and address of the person
or persons against whom a claim was made;
ANSWER: United Rentals, Inc.
d if suit was brought, state the name and location
of the Court, the return date of the suit, and the
docket number;
ANSWER: Waterbury Superior Court, Docket No. UWY-CV-23-6071659-
s
e. state the nature of the injuries received in said
accident;
ANSWER: Head pain, neck pain, cervical sprain/strain, right
shoulder pain, right arm pain and weakness, cervical
radiculopathy, multiple cuts and bruises, aggravation or
exacerbation of pre-existing right eye condition leading to visual
impairment, pain and suffering, both physical and mental.
f£. state the name and address of each physician who
treated you for said injuries;
ANSWER: To be provided once documents are received from counsel
who is handling this on behalf of the plaintiff.
g state the dates on which you were so treated;
ANSWER: To be provided once documents are received from counsel
who is handling this on behalf of the plaintiff.
h. state the nature of the treatment received on each
such date;
ANSWER: To be provided once documents are received from counsel
who is handling this on behalf of the plaintiff.
i. if you are presently or permanently disabled as a
result of said injuries, please state the nature
of such disability, the name and address of each
physician who diagnosed said disability and the date of
each such diagnosis.
ANSWER: No permanency diagnosis at this time.
Then, in response to defendant’s Motion to Compel,
the plaintiff provided Supplemental responses on December
5, 2023, (See Exhibit YE”, Int. #29) to question number
29 £-h as follows:
f. state the name and address of each physician who
treated you for said injuries;
ANSWER: See attached records from Moore, O'Brien & Foti,
which include records from Advanced Radiology; Orthopaedic
Specialty Group; Neil S. Kalbag, MD of Refocus Eye; Team
Rehab Rehabilitation Specialists; Joseph Franceschina, MD
of Yale Ophthalmology; HSS Radiology & Imaging; Northeast
Radiology; Penn Medicine; Yale New Haven Health.
g-. state the dates on which you were so treated;
ANSWER: See records provided.
h. state the nature of the treatment received on each such
date;
ANSWER: Plaintiff received physical therapy, diagnostic
exams, and treatment to the head and neck as well as
exacerbation pre-existing eye condition.
Along with the above responses, the plaintiff has provided
this defendant with 756 pages of medical records for treatment
received by the plaintiff as a result of his action against
United Rentals which was commenced by a Writ, Summons &
Complaint dated May 31, 2023. If the defendant had not found the
case on the website which was filed in using a different
spelling of the plaintiff's last name (McSwiggan instead of
McSwiggin), the defendant would not have obtained any of the
information requested.
Furthermore, the defendant has since discovered that that
plaintiff filed a worker's compensation action on June 6, 2022,
which the plaintiff has failed to disclose.
D. INTERROGATORY NO. 30
The following interrogatory requested was responded by the
plaintiff on March 31, 2021, (See Exhibit “BY, Int. #30), as
follows:
30. If you claim that as a result of the incident alleged
in your Complaint you were prevented from following your usual
occupation, or otherwise lost time from work, please provide the
following information:
a the name and address of your employer on the date
alleged in the Complaint;
b. the nature of your occupation and a precise
description of your job responsibilities with said
employer on the date of the incident alleged in the
Complaint;
Cc your average, income
weekly earnings, salary, or
received from said employment for the year preceding
the date of the incident alleged in the Complaint;
d. the date following the date of the incident alleged
in the Complaint on which you resumed the
duties of said employment;
e. what loss of income do you claim as a result of the
incident alleged in your Complaint and how is said loss
computed?
£. the dates on which you were unable to perform the
duties of your occupation and lost time from work
as a result of injuries or conditions claimed to
ANSWER: (a) Rockwell Construction Company, Inc. (b) owner of
the construction company performing excavation
services;
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(c) To be provided
(d) 1.5 years
(e) To be provided
(£) 1.5 years
In the plaintiff's supplemental responses dated October 25,
2023, (See Exhibit D, Int. #30) the plaintiff responds as
follows:
30.If you claim that as a result of the incident alleged in your
Complaint you were prevented from following your usual occupation,
or otherwise lost time from work, please provide the following
information:
c. your average, weekly earnings, salary, or income
received from said employment for the year preceding the
date of the incident alleged in the Complaint;
ANSWER: Mr. McSwiggan is self-employed and essentially receives
compensation at year-end. He is working on completing all past
tax returns so he does not have a definitive answer as to the
average weekly earnings and salary relative to the year prior
to this incident.
e. what loss of income do you claim as a result of the
incident alleged in your Complaint and how is said loss
computed?
ANSWER: Mr. McSwiggan was audited relative to his workers'
compensation policy and the workers' compensation carrier utilized
the amount of $60,000 per year. Mr. McSwiggan was unable to perform
his regular duties for approximately 1.5 years. Accordingly, his
lost wages, based upon the audit amount used by the workers
compensation carrier, would be at least $90,000.
11
The plaintiff has admitted that he has not filed tax returns
since at least 2017 but has been working on it since his initial
responses on March 31, 2021, yet, to date, they have not been
provided. This matter is set down for trial in approximately six
(6) months and this defendant should be able to assess the claims
made against it, including the claim for damages. The entire basis
for the plaintiff’s claim for damages is based on the wages earned
by him and what he would have recovered from a worker’s
compensation claim in the event he was given an opportunity to
file one. The defendant is unable to assess those damages without
the Plaintiff’s tax records. An audit does not necessarily provide
the defendant with the information needed to determine damages.
E. Interrogatory No. 35:
The following interrogatory requested was responded by the
plaintiff on March 31, 2021, (See Exhibit B., Int. #35) as follows:
35. State whether since the date of the incident alleged in your
Complaint, you have made any claims under Workers' Compensation,
and if so, state the nature and dates of such claims.
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ANSWER: No
The defendant has been provided with information that the
plaintiff made another claim for worker’s compensation on June 6,
2022 and has not provided the defendant with said information.
F. Interrogatory No. 45:
The following interrogatory requested was responded by the
“BY, # 45)
plaintiff on March 31, 2021, (See Exhibit Int. as
follows:
45. List each policy of insurance the plaintiff obtained to provide
workers compensation insurance coverage for the interests of the
plaintiff from 2012 to the present, listing for each:
a. the name and address of the insurer;
b. the type of insurance policy obtained;
Cc. the policy number;
d the policy term;
e the policy limits;
£ the name and address of any agent through whom you
procured said policy.
The plaintiff’s March 31, 2021, response was as follows:
ANSWER (a-f): Will provide that information if it can be
determined. Mr. McSwiggan had a fire in his home and many documents
were lost as a result of that fire.
The plaintiff’s subsequent response in his October 25, 2023,
(See Exhibit “D”, Int. #45).
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Supplemental responses is as follows:
ANSWER (a-f): As previously stated, Mr. McSwiggan had a fire in
his home and there are no documents available relative to prior
workers’ compensation insurance.
The Plaintiff should have requested this information from the
office when first requested. Instead, the plaintiff is using a
fire in his home as an excuse to provide the information requested.
This matter has been set down for jury selection and there
are scheduling orders indicating that discovery must be completed
by November 3, 2023. The plaintiff has failed to provide business
records for the plaintiff which is the basis for his claim
of damages in the present action. The plaintiff claims that he
failed to file for Worker's Compensation due to the defendant's
alleged negligence in advising him as to the non-existence of
worker's compensation coverage for the plaintiff employer as a
result of an unwitnessed fall that allegedly occurred while the
plaintiff was allegedly on the job.
G Interrogatory No. 56:
The following interrogatory requested was responded by the
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“BY”, #56)
plaintiff on March 31, 2021, (See Exhibit Int. as
follows:
56. From 2012 through 2019, state the names and addresses of each
employee, agent or independent contractor employed by the
plaintiff or Rockwell Construction Incorporated, specifying for
each such individual:
a. the dates on which said individual performed such
services;
b. the nature, type and duration of any training such
individual obtained;
Cc whether any license or certification was obtained
to perform this specific service, and if so,
please identify the type of license or
certification, and the issuer.
d. the frequency such service was performed;
e. the total amount of compensation paid to such
individual in each calendar year.
ANSWER: (a) Employed from 2006 to the present is Nick
Mallozzi;
The plaintiff failed to respond specifically to the question
and its subparts.
On October 25, 2023, (See Exhibit “D”, Int. #56) the plaintiff
corrected his answer as follows:
ANSWER: (a) *Correction to prior answer as Nick Mallozzi
worked for the plaintiff’s company from 2016 to the present.
Previously Costa Stergue was from 2012 to 2016. The last known
address for Mr. Stergue was Redding Road in Redding, Connecticut.
15
Still, the plaintiff has failed to answer the question and
each of the subparts as to each of the employees. This information
is necessary to assess the claim of damages.
H. Interrogatory No. 64:
The following interrogatory requested was responded by the
plaintiff on March 31, 2021, (See Exhibit “BY, Int. #64) as
follows:
64. Identify each and every accounting professional who performed
services for the plaintiff of Rockwell Construction, Incorporated,
from January 1, 2014, to the present.
ANSWER: Presently no accountant. Will have to determine whether
the accountant in the past who is now retired performed services
during the time period requested.
On October 25, 2023, (See Exhibit “Dp”, Int. #64), the
plaintiff supplements his responses as follows:
ANSWER: Prior to 2015 the plaintiff utilized Jennifer Horvath as
a bookkeeper. However, Ms. Horvath passed away in mid-2015.
Currently, Mr. McSwiggan is utilizing Robert Lyon, JD, CPA, out of
Durham, Connecticut.
I. PRODUCTION REQUEST NO. 6:
The following production request was responded by the
plaintiff on March 31, 2021, (See Exhibit “B”, Int. #6) as follows:
16
6 Complete, true and accurate copies of each and every Form 6 B
document sent or filed with the Workers Compensation Commission by
the plaintiff or his employer from January 1, 2013
to present.
RESPONSE: To be provided if available.
In plaintiff’s supplemental responses dated October 25, 2023,
the Plaintiff responded:
RESPONSE: None in plaintiff's possession.
J. PRODUCTION REQUEST NO. 7:
The following production request was responded by the
plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #7), as
follows:
7. All hospital records and bills relating to treatment received
as a result of the alleged incident, and to injuries, diseases
or defects to which reference is made in the answers to
Interrogatories 11 through 15, or 24 through 29, or written
authorization to inspect and make copies of said hospital
records.
RESPONSE: To be provided.
The following production request was responded by the
“Dp”,
plaintiff on October 25, 2023, (See Exhibit Prod. #7), as
follows:
17
RESPONSE: All documents provided. To the extent documents relating
to interrogatory 29, those will be produced upon receipt from
counsel handling that claim for Mr. McSwiggan.
The following production request was responded by the
plaintiff on December 5, 2023, (See Exhibit SEY, Prod. #7) as
follows:
RESPONSE: See attached records received from Moore, O’Brien & Foti.
Additional records will be produced upon receipt.
K. PRODUCTION REQUEST NO. 8:
The following production request was responded by the
plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #8), as
follows:
8. All reports, treatment notes and bills of all doctors and
all other care providers relating to treatment allegedly
received by the Plaintiff (s) as a result of the alleged
incident, and to the injuries, diseases or defects to which
reference is made in the answers to Interrogatories 11 through
16, or 24 through 29 (exclusive of any records prepared or
maintained by a licensed psychiatrist or psychologist), or
written authorization to inspect and make copies of said
reports.
RESPONSE: To be provided.
The following production request was responded by the
plaintiff on October 25, 2023, (See Exhibit “Dp”, Prod. #8), as
18
follows:
RESPONSE: Records in possession have been provided. As to
interrogatory 29, those will be provided upon receipt from counsel.
The following production request was responded by the
plaintiff on December 5, 2023, (See Exhibit MEY, Prod. #8), as
follows:
RESPONSE: See attached records received from Moore, O’Brien & Foti.
Additional records will be produced upon receipt.
L. PRODUCTION REQUEST NO. 10:
The following production request was responded by the
“BY,
plaintiff on March 31, 2021, (See Exhibit Prod. #10), as
follows:
10. If a
claim of impaired earning capacity or lost wages is being
alleged, provide copies of, or written authorization to obtain
copies of, that part of all income tax returns relating to lost
income filed by the Plaintiff(s) and/or Rockwell Construction
Incorporated for a period of three (3) years prior to the date of
the incident and for all years subsequent to the date of the
incident to and including the date hereof.
RESPONSE: To be provided.
The following production request was responded by the
plaintiff on October 25, 2023, (See Exhibit “p, Prod. #10), as
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follows:
RESPONSE: Not available at this time. Mr. McSwiggan is utilizing
an accountant to prepare and file tax returns and once completed,
those will be produced.
M. PRODUCTION REQUEST NO. 12:
The following production request was responded by the
plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #12), as
follows:
12. All medical bills that are claimed to have been incurred as a
result of this incident.
RESPONSE: To be provided.
The following production request was responded by the
plaintiff on October 25, “D", 12),
2023, (See Exhibit Prod. as
follows:
RESPONSE: All medical bills in our possession have been provided.
N. PRODUCTION REQUEST NO. 20:
The following production request was responded by the plaintiff
on March 31, 2021, (See Exhibit “B”, Prod. 20), as follows:
20. Complete, true and accurate copies of any and all documents
submitted or received by the plaintiff or his employer in
connection
20
with any Workers' Compensation audit which occurred from 2012
through the present, as referenced in response to Interrogatory
No. 50.
RESPONSE: See attached documents relative to 2019. Will provide
earlier documents to the extent they can be located.
The following production request was responded by the
(See Exhibit "E",
plaintiff on October 25, 2023, Prod. #20), as
follows:
RESPONSE: All document received relative to the audit have been
produced.
While the plaintiff has failed to either provide responses or
has provided inadequate responses to numerous interrogatory and
production requests as stated herein, most importantly, the
plaintiff's supplemental responses dated October 25, 2023
attached hereto as Schedule A), still indicate that the tax
returns for the three years prior to and up to today's date will
be provided at a later date. This action was initiated by the
plaintiff in September of 2020. Plaintiff's counsel knew or
should have known at the time he initiated the action that the
plaintiff's income is the basis for proving damages
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in this case yet, three (3) years later, the plaintiff is still
unable to produce the same. It is the plaintiff's burden to prove
not only the negligence of the defendant but also the damages
sustained by the plaintiff. Thereafter, the defendant has a right
to assess those damages and have those damages analyzed by an
expert, who would be able to testify at trial. The plaintiff's
failure to produce said records clearly jeopardizes this
defendant's right to defend itself.
WHEREFORE, the defendant hereby moves this honorable court to
grant the defendant's nonsuit for failure to comply with the court
order.
THE DEFENDANT,
O’BRIEN INSURANCE AGENCY, LLC
7 f
By
DENISE
Yo
D. KENNEDY
DEL SOLE & DEL SOLE, LLP
46 SOUTH WHITTLESEY AVENUE
WALLINGFORD, CT 06492
(203) 284-8000
(203) 284-9800 FACSIMILE
JURIS NO. 101674
DDK@DELSOLEDELSOLE.
COM
22
CERTIFICATION
I hereby certify that the foregoing has been mailed
postage prepaid and/or sent via electronic mail and/or sent
via facsimile on this date to the following.
Kevin S. Coyne, Esquire
Coyne, von Kuhn, Brady & Fries, LLC
4 Armstrong Road
Shelton, CT 06484 -
—
DENISE D. KENNEDY
23
EXHIBIT “A”
ORDER 442329
DOCKET NO: UWYCV206056586S SUPERIOR COURT
MCSWIGGIN, KEVIN JUDICIAL DISTRICT OF WATERBURY
AT WATERBURY
O'BRIEN INSURANCE AGENCY, LLC
10/25/2023
ORDER
ORDER REGARDING:
10/11/2023 121.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is hereby:
ORDER:
Compliance is ordered, to the extent it is covered by standard discovery, by 11/24/2023. If the moving
party has not received compliance by that date, it may file an additional motion for default/nonsuit
attesting to that fact and referencing this order. Upon the appearance of that additional motion on the
short calendar, and absent the filing of a notice of compliance by the time of such appear
Preview
DOCKET NO. UWY-CV20-6056586-S SUPERIOR COURT KEVIN MCSWIGGAN Jd. D. OF WATEREBURY vs. AT WATERBURY O'BRIEN INSURANCE AGENCY, LLC DECEMBER 14, 2023 DEFENDANT'S REPLY TO PLAINTIFF'S OBJECTION TO MOTION FOR NONSUIT AND DEFENDANT'S MOTION TO DISMISS AND/OR NONSUIT THE PLAINTIFF FOR HIS FAILURE TO COMPLETELY AND/OR TRUTHFULLY RESPOND TO DISCOVERY REQUESTS Pursuant to Practice Book §13-14, the defendant hereby moves that the court enter an order of nonsuit and/or dismissal against the plaintiff, Kevin McSwiggan for his failure to comply completely and/or truthfully with the October 23, 2020, discovery requests filed by the defendant in the above-captioned action. On March 31, 2021, the plaintiff responded to some but not all of the Interrogatories and Requests for Production and on April 6, 2022, the plaintiff provided Supplemental responses. On October 11, 2023, the undersigned defendant filed a Motion to Compel, which was ruled on by the court (Parkinson, J.) on October 25, 2023 (see court order #121 attached hereto as Exhibit YA"). The court's order required the plaintiff to comply with defendant’s discovery requests by November 24, 2023, or be subjected to a nonsuit. In response to defendant's Motion to Compel, plaintiff filed supplemental responses to discovery on October 25, 2023, still not completely, and/or truthfully complying with all of said requests. On November 28, 2023, this defendant filed a Motion for Nonsuit requesting the court’s order of October 25, 2023, be enforced. A.INTERROGATORY NO. 27: The following interrogatory request was responded to (See Exbibit “BY, by the plaintiff on March 31, 2021. Page No. 27) as follows: 27. If, during 2021, the ten-year period prior to the date of the incident alleged in the Complaint, were you under a doctor's care for any conditions which were in any way similar or related to those identified and listed in your response to Interrogatory #9? If so, state the nature of said conditions, the dates on which treatment was received, and the name of the doctor or health care provider. ANSWER: No At the plaintiff's deposition on July 22, 2021, the plaintiff Testified that he was involved in a motor vehicle accident within the ten (10) years prior to the date of the incident alleged in his complaint and that although he did not have a recollection of the details of the accident, he did testify that he was represented by Attorney Matthew Maddox (See Exhibit wo" of deposition testimony of Kevin McSwiggan, pages 5,6, 7 of plaintiff's testimony) . In his deposition, plaintiff further stated that he injured his back as a result of said accident. To date, the plaintiff has failed to truthfully respond to said interrogatory. B. INTERROGATORY NO. 28: The plaintiff failed to provide an adequate response in the plaintiff’s responses dated March 31, 2022, (See Exhibit “D", Int. #28) to the questions posed in the subsequent interrogatory which reads: 28. If, during the ten-year period prior to the date of the incident alleged in your Complaint, you were involved in any incident in which you received personal injuries similar or related to those identified and listed in your response to Interrogatory #27, please answer the following with respect to each such earlier incident: a on what date and in what manner did you sustain such injuries? b. did you make a claim against anyone as a Result of said accident? c. if so, provide the name and address of the person or persons against whom a claim was made; d if suit was brought, state the name and location of the court, the return date of the suit, and the docket number; e. state the nature of the injuries received in said accident; £ state the name and address of each physician who treated you for said injuries; g. state the dates on which you were so treated; state the nature of the treatment received on each such date; h. if you are presently or permanently disabled as a result of said injuries, please state the nature of such disability, the name and address of each physician who diagnosed said disability and the date of each such diagnosis. ANSWER (a-i): Mr. Mcswiggan does not recall the date, but he was involved in a rear-end accident within the ten-year period prior to the accident; no lawsuit was commenced, however an insurance claim was made and further information will be provided upon receipt of same. In plaintiff's Supplemental Responses dated October 25, 2023, (See Exhibit “D”, Int. #28), the plaintiff responded to Interrogatory #28 as follows: ANSWER (a-i}: As previously stated, Mr. McSwiggan does not recall the date of the incident, but he was involved in a rear-end incident within a 10 year period prior to the accident. This incident did not relate to similar injuries as it involved neck pain. Mr. Mcswiggan was checked out at Danbury Hospital and made a claim against the other driver's carrier which he believes was Progressive. He did not have follow up care. Furthermore, the defendant has been provided with information that the plaintiff was possibly involved in two (2) other accidents in December of 2017 and again on January il; 2017, neither of which the plaintiff has disclosed. C. INTERROGATORY NO. 29: The following interrogatory requested was responded to by the plaintiff on March 31, 2021, (See Exhibit B, Int. #29): 29. If you were involved in any incident in which you received personal injuries since the date of the incident alleged in the Complaint, please answer the following: a. on what date and in what manner did you sustain said injuries? b. did you make a claim against anyone as a result of said accident? c. if so, provide the name and address of the person or persons against whom a claim was made; d. if suit was brought, state the name and location of the Court, the return date of the suit, and the docket number; e state the nature of the injuries received in said accident; f. state the name and address of each physician who treated you for said injuries; g. state the dates on which you were so treated; h state the nature of the treatment received on each such date; 1 if you are presently or permanently disabled as a result of said injuries, please state the nature of such disability, the name and address of each physician who diagnosed said disability and the date of each such diagnosis. ANSWER (a-i): No After alerting plaintiff's counsel that the judicial court website indicated that his client had filed another personal injury action wherein, he was represented by another attorney (See Mcswiggan v. United Rentals, Docket No. UWY-CV23-6071659S, the plaintiff supplemented his responses to our discovery on October 25, 2023, as follows: 29. If you were involved in any incident in which you received personal injuries since the date of the incident alleged in the Complaint, please answer the following: a. on what date and in what manner did you sustain said injuries? ANSWER: August 9, 2021 b. did you make a claim against anyone as a result of said accident? ANSWER: Yes Cc if so, provide the name and address of the person or persons against whom a claim was made; ANSWER: United Rentals, Inc. d if suit was brought, state the name and location of the Court, the return date of the suit, and the docket number; ANSWER: Waterbury Superior Court, Docket No. UWY-CV-23-6071659- s e. state the nature of the injuries received in said accident; ANSWER: Head pain, neck pain, cervical sprain/strain, right shoulder pain, right arm pain and weakness, cervical radiculopathy, multiple cuts and bruises, aggravation or exacerbation of pre-existing right eye condition leading to visual impairment, pain and suffering, both physical and mental. f£. state the name and address of each physician who treated you for said injuries; ANSWER: To be provided once documents are received from counsel who is handling this on behalf of the plaintiff. g state the dates on which you were so treated; ANSWER: To be provided once documents are received from counsel who is handling this on behalf of the plaintiff. h. state the nature of the treatment received on each such date; ANSWER: To be provided once documents are received from counsel who is handling this on behalf of the plaintiff. i. if you are presently or permanently disabled as a result of said injuries, please state the nature of such disability, the name and address of each physician who diagnosed said disability and the date of each such diagnosis. ANSWER: No permanency diagnosis at this time. Then, in response to defendant’s Motion to Compel, the plaintiff provided Supplemental responses on December 5, 2023, (See Exhibit YE”, Int. #29) to question number 29 £-h as follows: f. state the name and address of each physician who treated you for said injuries; ANSWER: See attached records from Moore, O'Brien & Foti, which include records from Advanced Radiology; Orthopaedic Specialty Group; Neil S. Kalbag, MD of Refocus Eye; Team Rehab Rehabilitation Specialists; Joseph Franceschina, MD of Yale Ophthalmology; HSS Radiology & Imaging; Northeast Radiology; Penn Medicine; Yale New Haven Health. g-. state the dates on which you were so treated; ANSWER: See records provided. h. state the nature of the treatment received on each such date; ANSWER: Plaintiff received physical therapy, diagnostic exams, and treatment to the head and neck as well as exacerbation pre-existing eye condition. Along with the above responses, the plaintiff has provided this defendant with 756 pages of medical records for treatment received by the plaintiff as a result of his action against United Rentals which was commenced by a Writ, Summons & Complaint dated May 31, 2023. If the defendant had not found the case on the website which was filed in using a different spelling of the plaintiff's last name (McSwiggan instead of McSwiggin), the defendant would not have obtained any of the information requested. Furthermore, the defendant has since discovered that that plaintiff filed a worker's compensation action on June 6, 2022, which the plaintiff has failed to disclose. D. INTERROGATORY NO. 30 The following interrogatory requested was responded by the plaintiff on March 31, 2021, (See Exhibit “BY, Int. #30), as follows: 30. If you claim that as a result of the incident alleged in your Complaint you were prevented from following your usual occupation, or otherwise lost time from work, please provide the following information: a the name and address of your employer on the date alleged in the Complaint; b. the nature of your occupation and a precise description of your job responsibilities with said employer on the date of the incident alleged in the Complaint; Cc your average, income weekly earnings, salary, or received from said employment for the year preceding the date of the incident alleged in the Complaint; d. the date following the date of the incident alleged in the Complaint on which you resumed the duties of said employment; e. what loss of income do you claim as a result of the incident alleged in your Complaint and how is said loss computed? £. the dates on which you were unable to perform the duties of your occupation and lost time from work as a result of injuries or conditions claimed to ANSWER: (a) Rockwell Construction Company, Inc. (b) owner of the construction company performing excavation services; 10 (c) To be provided (d) 1.5 years (e) To be provided (£) 1.5 years In the plaintiff's supplemental responses dated October 25, 2023, (See Exhibit D, Int. #30) the plaintiff responds as follows: 30.If you claim that as a result of the incident alleged in your Complaint you were prevented from following your usual occupation, or otherwise lost time from work, please provide the following information: c. your average, weekly earnings, salary, or income received from said employment for the year preceding the date of the incident alleged in the Complaint; ANSWER: Mr. McSwiggan is self-employed and essentially receives compensation at year-end. He is working on completing all past tax returns so he does not have a definitive answer as to the average weekly earnings and salary relative to the year prior to this incident. e. what loss of income do you claim as a result of the incident alleged in your Complaint and how is said loss computed? ANSWER: Mr. McSwiggan was audited relative to his workers' compensation policy and the workers' compensation carrier utilized the amount of $60,000 per year. Mr. McSwiggan was unable to perform his regular duties for approximately 1.5 years. Accordingly, his lost wages, based upon the audit amount used by the workers compensation carrier, would be at least $90,000. 11 The plaintiff has admitted that he has not filed tax returns since at least 2017 but has been working on it since his initial responses on March 31, 2021, yet, to date, they have not been provided. This matter is set down for trial in approximately six (6) months and this defendant should be able to assess the claims made against it, including the claim for damages. The entire basis for the plaintiff’s claim for damages is based on the wages earned by him and what he would have recovered from a worker’s compensation claim in the event he was given an opportunity to file one. The defendant is unable to assess those damages without the Plaintiff’s tax records. An audit does not necessarily provide the defendant with the information needed to determine damages. E. Interrogatory No. 35: The following interrogatory requested was responded by the plaintiff on March 31, 2021, (See Exhibit B., Int. #35) as follows: 35. State whether since the date of the incident alleged in your Complaint, you have made any claims under Workers' Compensation, and if so, state the nature and dates of such claims. 12 ANSWER: No The defendant has been provided with information that the plaintiff made another claim for worker’s compensation on June 6, 2022 and has not provided the defendant with said information. F. Interrogatory No. 45: The following interrogatory requested was responded by the “BY, # 45) plaintiff on March 31, 2021, (See Exhibit Int. as follows: 45. List each policy of insurance the plaintiff obtained to provide workers compensation insurance coverage for the interests of the plaintiff from 2012 to the present, listing for each: a. the name and address of the insurer; b. the type of insurance policy obtained; Cc. the policy number; d the policy term; e the policy limits; £ the name and address of any agent through whom you procured said policy. The plaintiff’s March 31, 2021, response was as follows: ANSWER (a-f): Will provide that information if it can be determined. Mr. McSwiggan had a fire in his home and many documents were lost as a result of that fire. The plaintiff’s subsequent response in his October 25, 2023, (See Exhibit “D”, Int. #45). 13 Supplemental responses is as follows: ANSWER (a-f): As previously stated, Mr. McSwiggan had a fire in his home and there are no documents available relative to prior workers’ compensation insurance. The Plaintiff should have requested this information from the office when first requested. Instead, the plaintiff is using a fire in his home as an excuse to provide the information requested. This matter has been set down for jury selection and there are scheduling orders indicating that discovery must be completed by November 3, 2023. The plaintiff has failed to provide business records for the plaintiff which is the basis for his claim of damages in the present action. The plaintiff claims that he failed to file for Worker's Compensation due to the defendant's alleged negligence in advising him as to the non-existence of worker's compensation coverage for the plaintiff employer as a result of an unwitnessed fall that allegedly occurred while the plaintiff was allegedly on the job. G Interrogatory No. 56: The following interrogatory requested was responded by the 14 “BY”, #56) plaintiff on March 31, 2021, (See Exhibit Int. as follows: 56. From 2012 through 2019, state the names and addresses of each employee, agent or independent contractor employed by the plaintiff or Rockwell Construction Incorporated, specifying for each such individual: a. the dates on which said individual performed such services; b. the nature, type and duration of any training such individual obtained; Cc whether any license or certification was obtained to perform this specific service, and if so, please identify the type of license or certification, and the issuer. d. the frequency such service was performed; e. the total amount of compensation paid to such individual in each calendar year. ANSWER: (a) Employed from 2006 to the present is Nick Mallozzi; The plaintiff failed to respond specifically to the question and its subparts. On October 25, 2023, (See Exhibit “D”, Int. #56) the plaintiff corrected his answer as follows: ANSWER: (a) *Correction to prior answer as Nick Mallozzi worked for the plaintiff’s company from 2016 to the present. Previously Costa Stergue was from 2012 to 2016. The last known address for Mr. Stergue was Redding Road in Redding, Connecticut. 15 Still, the plaintiff has failed to answer the question and each of the subparts as to each of the employees. This information is necessary to assess the claim of damages. H. Interrogatory No. 64: The following interrogatory requested was responded by the plaintiff on March 31, 2021, (See Exhibit “BY, Int. #64) as follows: 64. Identify each and every accounting professional who performed services for the plaintiff of Rockwell Construction, Incorporated, from January 1, 2014, to the present. ANSWER: Presently no accountant. Will have to determine whether the accountant in the past who is now retired performed services during the time period requested. On October 25, 2023, (See Exhibit “Dp”, Int. #64), the plaintiff supplements his responses as follows: ANSWER: Prior to 2015 the plaintiff utilized Jennifer Horvath as a bookkeeper. However, Ms. Horvath passed away in mid-2015. Currently, Mr. McSwiggan is utilizing Robert Lyon, JD, CPA, out of Durham, Connecticut. I. PRODUCTION REQUEST NO. 6: The following production request was responded by the plaintiff on March 31, 2021, (See Exhibit “B”, Int. #6) as follows: 16 6 Complete, true and accurate copies of each and every Form 6 B document sent or filed with the Workers Compensation Commission by the plaintiff or his employer from January 1, 2013 to present. RESPONSE: To be provided if available. In plaintiff’s supplemental responses dated October 25, 2023, the Plaintiff responded: RESPONSE: None in plaintiff's possession. J. PRODUCTION REQUEST NO. 7: The following production request was responded by the plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #7), as follows: 7. All hospital records and bills relating to treatment received as a result of the alleged incident, and to injuries, diseases or defects to which reference is made in the answers to Interrogatories 11 through 15, or 24 through 29, or written authorization to inspect and make copies of said hospital records. RESPONSE: To be provided. The following production request was responded by the “Dp”, plaintiff on October 25, 2023, (See Exhibit Prod. #7), as follows: 17 RESPONSE: All documents provided. To the extent documents relating to interrogatory 29, those will be produced upon receipt from counsel handling that claim for Mr. McSwiggan. The following production request was responded by the plaintiff on December 5, 2023, (See Exhibit SEY, Prod. #7) as follows: RESPONSE: See attached records received from Moore, O’Brien & Foti. Additional records will be produced upon receipt. K. PRODUCTION REQUEST NO. 8: The following production request was responded by the plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #8), as follows: 8. All reports, treatment notes and bills of all doctors and all other care providers relating to treatment allegedly received by the Plaintiff (s) as a result of the alleged incident, and to the injuries, diseases or defects to which reference is made in the answers to Interrogatories 11 through 16, or 24 through 29 (exclusive of any records prepared or maintained by a licensed psychiatrist or psychologist), or written authorization to inspect and make copies of said reports. RESPONSE: To be provided. The following production request was responded by the plaintiff on October 25, 2023, (See Exhibit “Dp”, Prod. #8), as 18 follows: RESPONSE: Records in possession have been provided. As to interrogatory 29, those will be provided upon receipt from counsel. The following production request was responded by the plaintiff on December 5, 2023, (See Exhibit MEY, Prod. #8), as follows: RESPONSE: See attached records received from Moore, O’Brien & Foti. Additional records will be produced upon receipt. L. PRODUCTION REQUEST NO. 10: The following production request was responded by the “BY, plaintiff on March 31, 2021, (See Exhibit Prod. #10), as follows: 10. If a claim of impaired earning capacity or lost wages is being alleged, provide copies of, or written authorization to obtain copies of, that part of all income tax returns relating to lost income filed by the Plaintiff(s) and/or Rockwell Construction Incorporated for a period of three (3) years prior to the date of the incident and for all years subsequent to the date of the incident to and including the date hereof. RESPONSE: To be provided. The following production request was responded by the plaintiff on October 25, 2023, (See Exhibit “p, Prod. #10), as 19 follows: RESPONSE: Not available at this time. Mr. McSwiggan is utilizing an accountant to prepare and file tax returns and once completed, those will be produced. M. PRODUCTION REQUEST NO. 12: The following production request was responded by the plaintiff on March 31, 2021, (See Exhibit “BY, Prod. #12), as follows: 12. All medical bills that are claimed to have been incurred as a result of this incident. RESPONSE: To be provided. The following production request was responded by the plaintiff on October 25, “D", 12), 2023, (See Exhibit Prod. as follows: RESPONSE: All medical bills in our possession have been provided. N. PRODUCTION REQUEST NO. 20: The following production request was responded by the plaintiff on March 31, 2021, (See Exhibit “B”, Prod. 20), as follows: 20. Complete, true and accurate copies of any and all documents submitted or received by the plaintiff or his employer in connection 20 with any Workers' Compensation audit which occurred from 2012 through the present, as referenced in response to Interrogatory No. 50. RESPONSE: See attached documents relative to 2019. Will provide earlier documents to the extent they can be located. The following production request was responded by the (See Exhibit "E", plaintiff on October 25, 2023, Prod. #20), as follows: RESPONSE: All document received relative to the audit have been produced. While the plaintiff has failed to either provide responses or has provided inadequate responses to numerous interrogatory and production requests as stated herein, most importantly, the plaintiff's supplemental responses dated October 25, 2023 attached hereto as Schedule A), still indicate that the tax returns for the three years prior to and up to today's date will be provided at a later date. This action was initiated by the plaintiff in September of 2020. Plaintiff's counsel knew or should have known at the time he initiated the action that the plaintiff's income is the basis for proving damages 21 in this case yet, three (3) years later, the plaintiff is still unable to produce the same. It is the plaintiff's burden to prove not only the negligence of the defendant but also the damages sustained by the plaintiff. Thereafter, the defendant has a right to assess those damages and have those damages analyzed by an expert, who would be able to testify at trial. The plaintiff's failure to produce said records clearly jeopardizes this defendant's right to defend itself. WHEREFORE, the defendant hereby moves this honorable court to grant the defendant's nonsuit for failure to comply with the court order. THE DEFENDANT, O’BRIEN INSURANCE AGENCY, LLC 7 f By DENISE Yo D. KENNEDY DEL SOLE & DEL SOLE, LLP 46 SOUTH WHITTLESEY AVENUE WALLINGFORD, CT 06492 (203) 284-8000 (203) 284-9800 FACSIMILE JURIS NO. 101674 DDK@DELSOLEDELSOLE. COM 22 CERTIFICATION I hereby certify that the foregoing has been mailed postage prepaid and/or sent via electronic mail and/or sent via facsimile on this date to the following. Kevin S. Coyne, Esquire Coyne, von Kuhn, Brady & Fries, LLC 4 Armstrong Road Shelton, CT 06484 - — DENISE D. KENNEDY 23 EXHIBIT “A” ORDER 442329 DOCKET NO: UWYCV206056586S SUPERIOR COURT MCSWIGGIN, KEVIN JUDICIAL DISTRICT OF WATERBURY AT WATERBURY O'BRIEN INSURANCE AGENCY, LLC 10/25/2023 ORDER ORDER REGARDING: 10/11/2023 121.00 MOTION FOR ORDER The foregoing, having been considered by the Court, is hereby: ORDER: Compliance is ordered, to the extent it is covered by standard discovery, by 11/24/2023. If the moving party has not received compliance by that date, it may file an additional motion for default/nonsuit attesting to that fact and referencing this order. Upon the appearance of that additional motion on the short calendar, and absent the filing of a notice of compliance by the time of such appear