285 A.3d 23
R.I.2022Background
- In 1995 Devaney bought a house near two churches in Narragansett; beginning in 1999 the churches used electronically amplified bell systems that Devaney alleges create a nuisance causing health harms, reduced property value, and emotional distress.
- Devaney previously sued in federal court; that action was dismissed in 2015 and he filed a state suit in Superior Court in February 2017 seeking an injunction and over $3 million in damages.
- Central to the litigation was Interrogatory No. 6 requiring identification of expected expert witnesses and the substance of their opinions; Devaney repeatedly objected, provided incomplete lists, and delayed full responses despite multiple court orders to compel.
- By April 2019 Devaney identified Bertram Gibbes, Ph.D., as his sole expert, but later admitted that the supplemental interrogatory answers ascribing opinions to Dr. Gibbes were drafted without Dr. Gibbes’ review or adoption and included Devaney’s own observations.
- Defendants moved to preclude experts and to dismiss under Super. R. Civ. P. 37(b); after hearings the trial justice entered final dismissal for discovery noncompliance.
- The Rhode Island Supreme Court reviewed the Rule 37 dismissal for abuse of discretion and affirmed, holding Devaney’s evasive and incomplete expert disclosures justified the drastic sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under Rule 37 was appropriate for failure to comply with expert-disclosure orders | Devaney argued he complied by stating what he "expected" his expert would say and that dismissal was too severe, noting his pro se status | Defendants argued Devaney gave evasive/incomplete answers, the expert never adopted the responses, and defendants were prejudiced in trial preparation | Dismissal affirmed: trial justice did not abuse discretion; evasive/incomplete answers treated as failure to respond under Rule 37 |
| Whether a party may disclose anticipated expert testimony without the expert's review/adoption | Devaney contended Rule 26’s use of "expect" permits disclosure of anticipated testimony | Defendants contended speculation is insufficient; disclosures must reflect the expert's actual opinions to enable preparation | Court held speculation without expert review is impermissible; responses must accurately reflect expert views |
| Whether subpoenaed materials from the expert cured the deficient interrogatory response | Devaney argued subpoenaed records supplemented his answers | Defendants argued the subpoenaed materials did not substitute for a proper, verified expert-disclosure under the court’s orders | Court found subpoenaed material did not cure the deficiency and the disclosure remained inadequate |
| Whether the dismissal motion or the trial justice’s analysis was procedurally defective | Devaney claimed the motion lacked form and the court failed to meaningfully analyze his supplemental responses | Defendants pointed to multiple orders to compel and Devaney’s admissions at deposition showing persistent noncompliance | Court declined to address undeveloped procedural arguments and affirmed dismissal based on the record of noncompliance |
Key Cases Cited
- Flanagan v. Blair, 882 A.2d 569 (R.I. 2005) (Rule 37(b) allows sanctions up to final judgment; sanction decision left to trial justice’s discretion)
- Joachim v. Straight Line Prods., LLC, 138 A.3d 746 (R.I. 2016) (evasive or incomplete discovery responses are treated as failures to respond)
- Aguayo v. D’Amico, 981 A.2d 1016 (R.I. 2009) (an evasive or incomplete answer is a failure to respond for discovery-sanction purposes)
- Mumford v. Lewiss, 681 A.2d 914 (R.I. 1996) (court will affirm dismissal where party persistently fails to comply with discovery obligations)
- EdgengG (Private), Ltd. v. Fiberglass Fabricators, Inc., 272 A.3d 596 (R.I. 2022) (appellate review of Rule 37 sanctions is for abuse of discretion)
- Devaney v. Kilmartin, 88 F. Supp. 3d 34 (D.R.I. 2015) (prior federal action by Devaney dismissed)
- Lisi v. Resmini, 603 A.2d 321 (R.I. 1992) (sanctions for counsel who sign or submit discovery without client/party review)