BILLIE SMITH, Personal Representative of the Estate of Richard A. Smith, deceased, and on behalf of Philana V. Smith and Estelle M. Smith, children of the deceased, Plaintiff and Appellant, v. BUTTE-SILVER BOW COUNTY, a consolidated government and the STATE OF MONTANA, Defendants and Respondents.
No. 95-474.
SUPREME COURT OF MONTANA
Submitted on Briefs February 1, 1996. Decided May 6, 1996.
276 Mont. 329 | 916 P.2d 91 | 53 St. Rep. 421
For Respondents: John H. Maynard, Marcia Davenport; Browning, Kaleczyc, Berry & Hoven, Helena.
The Estate of Richard A. Smith (Estate) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order dismissing the Estate‘s complaint with prejudice. We reverse and remand.
The issue on appeal is whether the District Court abused its discretion in dismissing the Estate‘s complaint with prejudice pursuant to
This is the second time that this case has been before us on appeal. The facts underlying the Estate‘s complaint are set forth in Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 878 P.2d 870, and need not be repeated here. In Smith, the primary issues on appeal related to prosecutorial immunity and amendment of pleadings; we reversed the District Court on the former issue and affirmed it on the latter. Smith also presented the issue of whether the District Court erred in dismissing the Estate‘s action without prejudice under
On remand, Butte-Silver Bow County (County) again moved the District Court to dismiss the Estate‘s complaint based on the alleged discovery abuses which were the basis of the earlier dismissal. The District Court denied the County‘s motion on February 21, 1995, and, in doing so, rejected the County‘s reliance on discovery abuses alleged to have occurred prior to the appeal. The court gave the Estate thirty days from the date of its order denying the motion to dismiss “to adequately answer or supplement the discovery requests” and required the Estate to “[p]rovide complete answers to all unanswered interrogatories and fully disclose all experts, their opinions and the basis for those opinions in accordance with
On February 24, 1995, the Estate moved for an order of clarification, requesting the District Court to specifically list “any further evidence” to be provided to the County. Approximately ten days later, the Estate provided the County with “Plaintiff‘s
The District Court issued an order of clarification and memorandum (hereinafter “clarification order“) directing the Estate to provide to the County:
- The names of individuals who provided care to the minor children from January 1, 1989 through June, 1991;
- Information about Richard Smith‘s Social Security Benefit Claim for a leg injury; and
- Information about [the Estate‘s] expert witnesses, their opinions and basis for them or in the alternative this Court must reopen the depositions of [the Estate‘s] experts to answer questions about the basis of their opinions.
In response to the clarification order, the Estate provided the required information regarding the children‘s caregivers and the leg injury
[the Estate] has previously supplied information about it‘s [sic] expert witnesses to the [County]. This may have been overlooked by the court. The information previously supplied by [the Estate] complies fully with
Rule 26, MRCP . Another copy of that information is provided to the court herewith.
In June of 1995, the County moved to dismiss the Estate‘s complaint pursuant to
Did the District Court abuse its discretion in dismissing the Estate‘s complaint with prejudice pursuant to
It is important at the outset to recognize the salutary purposes underlying the availability of
[t]he trial judge is in the best position to know ... which parties callously disregard the rights of their opponents and other litigants seeking their day in court[] [and] is also in the best position to determine which sanction is the most appropriate.
Dassori, 728 P.2d at 431. As a result, we generally defer to the decision of the trial court regarding
Here, the District Court determined that the Estate failed to comply with its post-remand orders requiring disclosure of expert opinion information in compliance with
DISCOVERY ABUSE
Before discussing the propriety of the District Court‘s imposition of sanctions under
[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 the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(Emphasis added). In its order of dismissal and accompanying memorandum, the District Court concluded that “1) [the Estate] did not provide the substance of facts which [sic] the experts were expected to testify; and 2) [the Estate] omitted a summary of the grounds for each opinion” in violation of its order and
The Montana legislature adopted this rule from
Before an attorney can even hope to deal on cross-examination with an unfavorable expert opinion he must have some idea of the bases of that opinion and the data relied upon. If the attorney is required to await examination at trial to get this information, he often will
have too little time to recognize and expose vulnerable spots in the testimony.
Smith, 626 F.2d at 794 (citation omitted).
Review of the Estate‘s
Regarding the “substance of facts” to which its expert witnesses are expected to testify, the Estate provided the following statements:
- Dr. Ruey-Lin Lin ... will testify that the decedent herein was not a hard-core criminal, had a relatively minor history, and would have rehabilitated himself, or been rehabilitated, at or near the age of thirty-five.
- Thomas Rozza ... will testify that the Defendant‘s county attorney failed to meet acceptable corrections standards in protecting the decedent‘s life, and that the Defendant‘s jail failed to meet acceptable corrections standards in protecting the decedent‘s life.
- Dr. Paul Cimmino ... will testify that, had the decedent lived, any antisocial aspects of his personality would have lessened and been brought under control ... [and] his abuse of drugs and alcohol would have been brought under control. He will also testify as to the loss suffered by the children upon the death of their father.
- Dr. John Brower ... will testify as to the present value of the earnings the decedent might have expected, had he lived.
These broad statements indicate the general topics on which the Estate‘s experts are expected to testify. They do not, however, provide the substance of facts to which the Estate‘s expert witnesses will testify, as required by
Concerning the bases of its expert witnesses’ opinions, the Estate stated in its
These statements by the Estate add nothing to “the substance of the facts” and the “summary of the grounds for each opinion” which are required to be disclosed by
Having submitted its disclosure, the Estate obtained the court‘s clarification order explicitly requiring it to provide its experts’ opinions and the bases for those opinions. The District Court expressly noted therein that “[w]hile [the County] previously deposed [the Estate‘s] experts, [the Estate‘s] attorney at the depositions of certain experts instructed the experts not to answer relevant questions about the basis of their opinions.”
The Estate did not provide any additional information relating to its expert witnesses in response to the District Court‘s clarification order. Instead, it merely stated that it had previously supplied the required information regarding those witnesses to the County and that the information supplied “complies fully with
This final response essentially ignored the clarification order which the Estate requested and received, and totally failed to comply therewith. In light of the court‘s clear awareness that the expert witness depositions had been taken, and the court‘s clear determination that those depositions had not produced the required information about the bases of the experts’ opinions, the Estate‘s response appropriately could be characterized--in the vernacular--as “in your face.” Whatever counsel‘s intent in framing his client‘s response to a clear court order may have been--whether gamesmanship with the County or disdainful “one-upmanship” with the District Court--the Estate‘s response did not comply with the explicit requirements of the court‘s clarification order.
We conclude that the Estate‘s expert-related responses to the District Court‘s initial order on remand satisfied neither the “substance of the facts” requirement nor the “summary of the grounds for each opinion” requirement of
REVIEW OF SANCTIONS
If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just and among others the following:
...
(C) An order ... dismissing the action ....
After concluding that the Estate failed to obey its clarification order, the District Court dismissed the Estate‘s complaint with prejudice. We review the District Court‘s dismissal of the Estate‘s complaint pursuant to
Acknowledging both the discretionary nature of a trial court‘s decisions on sanctions for discovery abuse and the availability of the dismissal sanction under
Eisenmenger and Landauer clearly stand for the proposition that we generally defer to the decision of the district court regarding the appropriate sanction for discovery abuses. See Eisenmenger, 871 P.2d at 1319; Landauer, 732 P.2d at 840. Those cases, however, are factually distinguishable from the present case and do not mandate a conclusion that the sanction of dismissal was properly applied here.
In Eisenmenger, a broken suture following surgery caused the plaintiff to have a stroke and suffer other severe complications. The plaintiff filed a medical malpractice claim against the doctor and hospital and a products liability claim against Ethicon, Inc. Eisenmenger, 871 P.2d at 1315. In 1988, Dr. Olcott, who later became Ethicon‘s expert witness, reviewed the Eisenmenger case and generally advised Ethicon‘s counsel of his opinions regarding the doctor and hospital‘s possible culpability in the case based on certain acts and decisions. Eisenmenger, 871 P.2d at 1319.
In June of 1990, Ethicon responded to a detailed discovery request from the plaintiff. Despite the plaintiff‘s request that Ethicon set
Ethicon did not make Dr. Olcott available for deposition until one month after the district court granted summary judgment in favor of the doctor and hospital. Eisenmenger, 871 P.2d at 1321. The plaintiff then deposed Dr. Olcott, and his testimony supported a theory that the doctor or the hospital could have caused the broken suture. Eisenmenger, 871 P.2d at 1315. The plaintiff subsequently moved the district court for sanctions against Ethicon pursuant to
The district court determined that Ethicon made a “knowing concealment” of the expert‘s testimony and stated that, had Dr. Olcott‘s testimony been available, it was “very doubtful” that the doctor and hospital‘s motion for summary judgment would have been granted. Eisenmenger, 871 P.2d at 1315. Concluding that the plaintiff had suffered extreme prejudice due to Ethicon‘s discovery abuses, the district court entered a default judgment against Ethicon on the issue of liability. Eisenmenger, 871 P.2d at 1315.
In reviewing the propriety of the default sanction, we set forth at some length the record before us regarding Ethicon‘s failure to timely disclose Dr. Olcott‘s opinions, update discovery responses or make Dr. Olcott available for deposition. On the basis of that record, we determined that “severe prejudice had already occurred to [the plaintiff], and the [district] court had few options for appropriate and meaningful sanctions against Ethicon.” Eisenmenger, 871 P.2d at 1321. We also determined that the record supported the district court‘s finding that Ethicon‘s failure to respond to discovery requests was willful and in bad faith and caused severe prejudice to the plaintiff on an issue central to the case. Eisenmenger, 871 P.2d at 1321. We held that the district court did not abuse its discretion in entering a default judgment on the issue of liability against Ethicon. Eisenmenger, 871 P.2d at 1321.
Thus, in Eisenmenger, the plaintiff was foreclosed from seeking compensation from two potentially responsible parties due to Ethi-
Here, we are not confronted with the extreme and irreparable circumstances which existed in Eisenmenger. Certainly any incidental prejudice to the County due to delay and the necessity of repeated motions does not rise to the level of extreme prejudice suffered by the plaintiff in Eisenmenger. Moreover, unlike Eisenmenger, sanctions other than dismissal were available in this case to remedy the limited prejudice to the County. Indeed, the District Court provided for one such sanction when it stated that it would reopen the Estate‘s expert witness depositions as an alternative to the Estate providing the ordered expert-related information. In addition, upon reopening the depositions, the District Court could have required the Estate to pay the expenses incurred by the County as a result. See
Finally, Ethicon‘s “knowing concealment” in Eisenmenger was far more egregious than the Estate‘s inadequate
In Landauer, the plaintiff filed a claim against the defendant to recover lost rental income. The defendant served requests for production of the plaintiff‘s federal and state income tax returns for specified years. Landauer, 732 P.2d at 839. When the plaintiff did not provide the returns, the defendant filed a motion to compel production. The district court ordered the plaintiff to produce the returns within twenty days and the plaintiff failed to comply. Landauer, 732 P.2d at 840. The defendant again moved the court to compel production. The
Similar to the district court in Landauer, the District Court in this case warned in its initial post-remand order that if the Estate failed to comply, “then the court will be left with no other alternative but to dismiss this case with prejudice or impose other appropriate sanctions.” However, the Estate then moved the District Court to clarify that order and the court issued a clarification order wherein it modified its prior warning, at least with regard to the expert witness information, by requiring that the Estate provide the expert-related information “or in the alternative this Court must reopen the depositions of [the Estate‘s] experts to answer questions about the basis of their opinions.”
The record before us demonstrates that the Estate provided two of the three categories of information set forth in the District Court‘s clarification order; it also provided part of the ordered expert witness information. Notwithstanding its specific warning of the sanction which would result from the Estate‘s failure to provide the ordered expert-related information, however, the District Court dismissed the Estate‘s complaint with prejudice.
Thus, in both Landauer and the present case, the parties were expressly warned of the consequences for failure to comply with the court‘s discovery-related order. In Landauer, the district court imposed the consequence of which it had warned--dismissal with prejudice--and we determined that the court had not abused its discretion. See Landauer, 732 P.2d at 841. In this case, however, the District Court imposed consequences much more severe than those of which it had expressly warned. Landauer does not, therefore, compel a conclusion that the sanction of dismissal with prejudice was appropriate here.
We reaffirm our policy that, in reviewing the imposition of
Here, the Estate‘s failure to comply with ordered discovery was totally insupportable, but relatively limited, as was the prejudice to the County. Thus, the dismissal sanction bears little relationship to the nature and extent of the discovery abuse and the resulting prejudice in this case. Most importantly, the District Court‘s imposition of the ultimate sanction of dismissal was a marked, and significant, departure from the specific consequences of which it had elected to warn the Estate.
Discovery abuse tactics, especially in this era of crowded dockets, deprive other litigants of an opportunity to use the courts as a serious dispute-settlement mechanism. See First Bank (N.A.)-Billings, 711 P.2d at 1386 (quoting G-K Properties v. Redevelopment Agency, Etc. (9th Cir. 1978), 577 F.2d 645, 647).
The District Court‘s frustration with the Estate‘s attorney is evident in its order of dismissal and entirely understandable. This case, only one of hundreds on the District Court‘s docket, has consumed a great deal of the court‘s resources for more than five years and the discovery phase apparently remains uncompleted. Under the record before us, however, we hold that the District Court abused its discretion in dismissing the Estate‘s complaint with prejudice.
Reversed and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER and LEAPHART concur.
* * *
JUSTICE NELSON, specially concurring.
I concur with our conclusion that, under the narrow circumstances here, imposition of the ultimate sanction of dismissal of the Estate‘s cause of action with prejudice was too severe a sanction given the precise nature of the Estate‘s discovery abuses. In my own mind, however, this case presents an extremely close call and I sincerely sympathize with the trial court and opposing counsel who have had to bear the frustration of the Estate‘s attorney‘s approach to discovery and the trial court‘s orders--correctly characterized in our decision as “in your face” and totally insupportable.
Moreover, while perhaps implicit in our opinion, reopening the Estate‘s experts’ depositions at the Estate‘s expense is not the only remaining sanction available to the District Court under
Finally, if, after all this, counsel for the Estate continues to persist in his intransigent approach, I would not preclude the imposition of the sanction of dismissal with prejudice. Further warnings are unnecessary. Accordingly, I specially concur.