518 A.2d 713 | Me. | 1986
Irene E. Clarke, in her capacity as personal representative of the estate of Willis J. Clarke, appeals from a summary judgment entered against her in the Superior Court, Kennebec County, upon her medical malpractice complaint against Garreth O.M. Jones and the Kennebec Valley Medical Center. Clarke was precluded from presenting expert testimony as a sanction for repeated failures to comply with discovery orders. Thereafter, Clarke stipulated that she could not prove her case without such testimony. On appeal, Clarke asserts that the Superior Court erred by imposing such a heavy sanction. We affirm the summary judgment.
The facts are not in dispute. Clarke filed a complaint for medical malpractice on February 28, 1983. From that date to May 24, 1985, more than two years after filing the complaint, Clarke repeatedly failed to com-' ply with the requirements of M.R.Civ.P. 26, missed court-ordered deadlines for complying with Rule 26, and misrepresented her compliance, or lack thereof, to the court.
The record reveals Clarke repeatedly provided incomplete and nonresponsive answers to defendants’ Rule 26 interrogatories addressing Clarke’s expert doctor and Clarke’s expert nurse, failed to obtain an expert until a year-and-a-half after the filing of the complaint and on two occasions scrambled to obtain an expert only the day before or the day of the expiration of the court imposed deadlines.
We confronted a similar issue in Green v. Nemat, 499 A.2d 470 (Me.1985). There, plaintiff failed to respond adequately to defendant doctor’s repeated requests for Rule 26 information over a three year period. Id. at 471. The plaintiff stated that she had an expert when she did not, and furnished names but no substance of facts and opinions. Id. We stated that “serious instances of noncompliance with pretrial procedures can well support a trial court’s determination that dismissal is the appropriate sanction in order to penalize delinquency and to deter like conduct” and that “[i]n light of the systematic and repeated failure of the plaintiff to provide adequate responses to the defendant’s expert witness interrogatories, we cannot say that dismissal was not an appropriate sanction aimed at penalizing a serious delinquency.” Id. at 472. See also Reeves v. Travelers Insurance Companies, 421 A.2d 47, 50 (Me.1980). In light of repeated failures to comply with the discovery rules and the court orders, precluding Clarke from presenting expert testimony was within the discretion of the trial court.
The entry is:
Judgment affirmed.
All concurring.
. Rule 26(b)(4)(A)(i) states:
A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
.- M.R.Civ.P. 37(b)(2) states in part:
If a party ... fails to obey an order to provide or permit discovery ... the court in which the
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(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action- or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
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In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expense, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.