Peter Mager v. Wisconsin Central Ltd.
924 F.3d 831
6th Cir.2019Background
- Peter Mager, a trackman, sued Wisconsin Central Ltd. under FELA for injuries allegedly suffered in July 2013; suit filed June 2016.
- Defendant scheduled a Rule 35 independent medical examination (IME); after disputes, the magistrate ordered Mager to attend an IME that included an interview.
- Mager attended with his attorney James Foley, who secretly audio-recorded the IME; Mager repeatedly refused to answer the examiner’s questions about his condition, medications, and how the injury occurred, referring instead to his deposition.
- Dr. Revord examined Mager, prepared a report noting Mager’s refusals and relying largely on records; defendant moved to dismiss under Fed. R. Civ. P. 37(b) for violation of the Rule 35 order.
- The magistrate recommended dismissal with prejudice as a sanction; the district court adopted the recommendation and dismissed. Mager appealed; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal under Rule 37(b) for violating a Rule 35 order was appropriate | Mager contends he complied by appearing and followed attorney’s instructions; blamed counsel for conduct | WCL argued Mager and his counsel willfully disobeyed the Rule 35 order by refusing the ordered interview and secretly recording | Affirmed: dismissal proper under Rule 37(b) given willful noncompliance and bad-faith conduct |
| Whether plaintiff’s or counsel’s conduct showed willfulness/bad faith | Mager said he merely followed counsel’s advice and was unaware recording was improper | WCL said actions were deliberate attempts to thwart the IME and avoid answering ordered questions | Court found conduct deliberate, concerted, and constituting willfulness/bad faith; factor favors dismissal |
| Whether defendant was prejudiced by the refusals | Mager argued the IME report still issued and was usable | WCL argued incompleteness: key information (medications, injury mechanism, symptoms) was withheld, hampering reliance and creating impeachment risk | Court concluded prejudice existed because examination was deprived of the full interview the court had ordered |
| Whether lesser sanctions or prior warning made dismissal excessive | Mager stressed dismissal is harsh when misconduct is attorney-driven and no explicit warning was given | WCL noted other sanctions were considered and that the misconduct was egregious; the dismissal motion had put plaintiff on notice | Court found lesser sanctions considered but insufficient given bad faith; absence of explicit prior warning did not preclude dismissal here |
Key Cases Cited
- Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (per curiam) (standard of review for dismissal sanctions)
- Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359 (6th Cir.) (reluctance to dismiss solely for attorney misconduct)
- Harmon v. CSX Transp., Inc., 110 F.3d 364 (6th Cir.) (dismissal standards for discovery noncompliance)
- United States v. Reyes, 307 F.3d 451 (6th Cir.) (factors for dismissal sanctions)
- Carpenter v. City of Flint, 723 F.3d 700 (6th Cir.) (definition of contumacious conduct; intent/recklessness standard)
- Bass v. Jostens, Inc., 71 F.3d 237 (6th Cir.) (Rule 37(b) permits dismissal among sanctions)
- Link v. Wabash R.R. Co., 370 U.S. 626 (agency principle: parties bound by attorneys’ acts; dismissal may be appropriate for counsel misconduct)