Marcia Shawuang Gee v. Citizens Insurance Company of America
329990
| Mich. Ct. App. | Feb 21, 2017Background
- Plaintiff (Gee) filed a first-party no-fault action against Citizens Insurance Company of America in Wayne Circuit Court.
- Defendant moved to dismiss after discovery abuses by plaintiff, including failure to attend court-ordered independent medical examinations (IMEs) and refusal to provide requested discovery.
- Court issued protective order forbidding deletion of Facebook material and later ordered plaintiff to produce Facebook information; evidence showed significant deletions between June 25–26, 2015.
- Plaintiff was twice ordered to attend IMEs and repeatedly failed to appear; she submitted an affidavit denying deletion but defendant produced evidence of deletions.
- Trial court warned plaintiff that dismissal could follow, afforded opportunities to cure, and ultimately dismissed the action as a sanction for discovery violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was an abuse of discretion as a sanction for discovery violations | Gee argued dismissal was excessive and the court should not have dismissed without an evidentiary hearing on who deleted Facebook content | Citizens argued Gee willfully violated court orders (failing IMEs, deleting Facebook material) and dismissal was justified after warnings and lesser sanctions | Court held dismissal was within the trial court's discretion and not an abuse of discretion |
| Whether plaintiff willfully violated discovery orders | Gee asserted deletions were not proven or required an evidentiary hearing | Citizens relied on record comparisons of Facebook pages and court-ordered nondeletion directive | Court found record-supported, deliberate deletions and no authority requiring an evidentiary hearing |
| Whether lesser sanctions would suffice | Gee contended lesser sanctions should have been used | Citizens noted repeated noncompliance, expense, and prejudice, and that court had given chances to comply | Court concluded lesser sanctions would not serve justice given repeated, flagrant defiance |
| Whether prejudice to defendant warranted dismissal | Gee disputed prejudice or excused noncompliance (e.g., transportation) | Citizens documented costs and delay from missed IMEs and missing Facebook evidence | Court found prejudice and delay sufficient to justify dismissal |
Key Cases Cited
- Jilek v. Stockson, 297 Mich. App. 663 (Mich. Ct. App. 2012) (standard of review for discovery sanction is abuse of discretion)
- Zantop Int’l Airlines, Inc. v. Eastern Airlines, 200 Mich. App. 344 (Mich. Ct. App. 1993) (factors to consider before dismissing as a discovery sanction)
- Dean v. Tucker, 182 Mich. App. 27 (Mich. Ct. App. 1990) (list of factors for dismissal sanction analysis)
- Houston v. Southwest Detroit Hosp., 166 Mich. App. 623 (Mich. Ct. App. 1988) (consideration of less drastic sanctions before dismissal)