Dolores COMSTOCK, Special Administrator of the Estate of William Gumby, Plaintiff-Appellant, v. UPS GROUND FREIGHT, INC.; Allen Howard, Defendants-Appellees.
No. 13-2773.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 8, 2014. Filed: Dec. 30, 2014.
773 F.3d 990
Ronna D. Kinsella, argued, Memphis, TN, (Robert Andrew Cox, Memphis, TN, on the brief), for Defendants-Appellees.
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Responding to serious misconduct during discovery, the district court1 sanctioned Dolores Comstock by dismissing her lawsuit. Comstock appeals this dismissal, and we affirm.
This suit arose from a nighttime automobile accident in February 2011. After Allen Howard allegedly rear-ended a vehicle driven by William Gumby, Gumby sued Howard and his employer, UPS Ground Freight, Inc. (together, “UPS“). Contending that Gumby‘s health might have contributed to the accident, UPS requested information such as Gumby‘s medical records and the identity of anyone with knowledge concerning this defense. In response to UPS‘s first set of interrogatories, Gumby provided UPS with the names of one physician and one hospital from which he had received pre-accident care.
Gumby died about a year later. Dolores Comstock, Gumby‘s daughter and the administrator of his estate, was substituted as plaintiff. Both Gumby and then Comstock were represented by Jessica Virden. In July 2012, nearly a year after discovery began, Comstock produced documents revealing many more of Gumby‘s medical providers, but even then, Comstock still did not produce all the requested medical information. On August 20, 2012, the court ordered Comstock to complete this production by September 28. She failed to do so. In December 2012, Comstock provided UPS with over 3,000 pages of documents, many of which she had already produced. Among those 3,000 pages, however, were new documents showing that Gumby had a history of vision problems; suffered from dizziness, paranoia, and hallucinations while driving; had been instructed not to drive at night; and had been hospitalized hours before the accident. Indeed, Comstock herself had called law enforcement that night, worried because Gumby, without telling his family, had left Pennsylvania to drive home to Arkansas. This production came well after UPS had deposed Gumby and some of his family members.
The district court noted further misconduct beyond Comstock‘s failure to produce the medical information. For example, Comstock and Virden “strain[ed] credulity” in representing that they did not know of Gumby‘s poor health before the accident. Moreover, Comstock had hired an expert accident reconstructionist, but Comstock did not, as required, produce all the expert‘s test results to UPS. In response to this misconduct, the court found that Comstock had caused “extreme prejudice” to UPS by intentionally violating the August 2012 order and
Dismissal of Comstock‘s lawsuit was available as a discovery sanction because the August 2012 order compelled discovery, and the court found that Comstock intentionally failed to comply with the order, thereby causing prejudice to UPS. Though Comstock argues that the prejudice was curable, she does not contest any aspect of the court‘s finding, including that UPS was prejudiced. We note just one example of this prejudice, that Comstock‘s non-production hampered UPS‘s ability to conduct several depositions, including that of Gumby, who cannot now be re-deposed. See Nat‘l Liberty Corp. v. Wal-Mart Stores, Inc., 120 F.3d 913, 917 (8th Cir. 1997) (finding no clear error in determination that need to retake depositions was prejudicial); see also ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1094-95 (8th Cir. 2011) (noting various ways prejudice can accrue after discovery has begun). Thus, dismissal of Comstock‘s suit was available as a sanction under
With this sanction available, we find no abuse of discretion in the district court‘s decision to dismiss Comstock‘s lawsuit. Given the serious misconduct here—which included non-production of medical information critical to UPS‘s defense, “unbelievable” representations by Comstock and Virden that they were unaware of Gumby‘s pre-existing health problems, and violation of an order requiring production of the expert‘s test results—the court was within its discretion to dismiss Comstock‘s suit. See Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694-95 (8th Cir. 2001) (affirming dismissal in response to perjurious nondisclosure in discovery); Chrysler Corp. v. Carey, 186 F.3d 1016, 1019-22 (8th Cir. 1999) (upholding a default judgment in response to non-production and false denials).
Comstock does not argue that dismissal was wrongfully disproportionate to her misconduct. Rather, she offers two arguments as to why dismissal was improper, the first regarding lesser sanctions and the second regarding non-parties.
First, Comstock argues that the prejudice to UPS could have been ameliorated by sanctions less than dismissal or that the court at least should have considered lesser sanctions. A court dismissing under
For this lesser-sanction argument, Comstock relies primarily on Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469 (D.C. Cir. 1995), which she claims we adopted in Martin v. Daimler-Chrysler Corp., 251 F.3d 691 (8th Cir. 2001). Comstock is correct that Shepherd requires a district court to “articulate a reasoned rejection of lesser sanctions” before dismissing under its inherent authority. 62 F.3d at 1480. But Shepherd concerned only inherent authority, and the court distinguished a prior decision that involved a sanction imposed under
Comstock also argues that with her suit dismissed, creditors and beneficiaries of Gumby‘s estate will lose recovery through no fault of their own. But Comstock cites no cases holding that a court must consider a sanction‘s secondary effects on non-parties, and we are unaware of any such rule. Accordingly, we find no abuse of discretion on this basis.
The judgment of the district court is affirmed.