Lead Opinion
delivered the opinion of the Court.
In this аppeal, we decide whether the trial court abused its discretion when it struck plaintiff’s designation of his expert witness for
FACTS AND PROCEEDINGS
Raymond William Walsh filed an amended motion for judgment
Walsh subsequently submitted a Supplemental Designation of Expert Witnesses, naming only Dr. John P. Kostuik as an expert witness.
After a hearing on May 21, 1999, the triаl court denied Dr. Bennett’s motion on the condition that Dr. Bennett have the opportunity to “adequately depose” Dr. Kostuik “by the close of business” on June 4, 1999. Otherwise, the court would grant Dr. Bennett’s motion. Both parties objected to the court’s order.
Prior to the hearing on May 21, Walsh had requested an extension of time in which to complete discovery, or alternatively, a continuance of the scheduled trial date of June 21, 1999. In that request, Walsh asserted that Dr. Kostuik was essentially unavailable for depo
Also on May 26, Dr. Bennett’s counsel noticed the discovery deposition of Dr. Kostuik for June 4, commencing at 1:30 p.m. A representative of Dr. Kostuik’s office then called Dr. Bennett’s counsel and advised that Dr. Kostuik was available only on June 4 for a deposition from 12:30 until 1:30 p.m. The next day, Dr. Bennett again moved to strike Walsh’s designation of his expert witness because of Walsh’s alleged failure to make Dr. Kostuik available for a deposition at a time convenient to Dr. Bennett’s counsel.
At a hearing on June 2, 1999, regarding Dr. Bennett’s motion, Walsh stated that Dr. Kostuik could be deposed from 10:00 a.m. until 1:30 p.m. on June 4.
At that hearing, Walsh also argued that, by making the doctor available for three and one-half hours, he was in compliance with the court’s earlier order to provide an opportunity for Dr. Kostuik to be “adequately depose[d].”
Thereafter, at the same hearing, Dr. Bennett moved the court to dismiss the case on thе ground that, without an expert witness, Walsh’s evidence was insufficient as a matter of law to prove his claim for medical malpractice. Again, Walsh’s only response was “go ahead and dismiss the case.” The trial court granted the motion and entered an order on June 2, 1999, reflecting its decision on both of Dr. Bennett’s motions. We awarded Walsh this appeal.
ANALYSIS
Rule 4:12(b) governs discovery abuses and provides for sanctions against a party who fails to comply with a court’s order to provide or permit discovery. A trial court generally exercises “broad discretion” in determining the appropriate sanction for failure to comply with an order relating to discovery. Woodbury v. Courtney,
The determinаtion whether a trial court has abused its discretion is fact-specific. The facts of the instant case show that the trial court ordered Walsh to make his expert witness available for a deposition on or before the close of business on June 4. However, prior to that date — in other words, before Walsh had exhausted the time during which he could comply or fail to comply with the court’s order — the court struck Walsh’s designation of his expert witness and dismissed the case.
The facts also establish that in the days prior to June 2, Walsh’s counsel had made Dr. Kostuik available for an additional two and one-half hours, some of which was during a time Dr. Bennett’s counsel had on one occasion indicated that she would be available. Although Dr. Bennett’s counsel advised the court at the hearing on June 2 that she could not depose Dr. Kostuik during this addi
Considering these facts, we conclude that the trial court abused its discretion because it deprived Walsh of time, in this case two days, in which to comply with the cоurt’s order and to provide Dr. Bennett with the opportunity to “adequately depose” Dr. Kostuik. The court prematurely imposed a sanction pursuant to Rule 4:12(b)
The trial court’s action before the June 4 deadline also “short circuited” the legal process. We have often warned of the dangers of “short circuiting” litigation because in doing so, a trial сourt “deprives] a litigant of his day in court and deprives] this Court of an opportunity to review a [more] thoroughly developed record on appeal.” Seyfarth, Shaw, Fairweather & Geraldson v. Lake Fairfax Seven Ltd. Partnership,
For these reasons, we will reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion.
Reversed and remanded.
Notes
Walsh initially filed this case in 1997 but later nonsuited it. After hе re-filed his case, the trial court sustained defendants’ demurrers, and Walsh then filed the amended motion for judgment.
The trial court subsequently dismissed all the defendants except Dr. Bennett.
In that supplemental designation, Walsh also stated that he expected to call his treating physicians as witnesses.
In his writtеn request, Walsh stated that Dr. Kostuik was available for deposition only on June 11, 1999.
Walsh’s counsel represented that he had previously informed Dr. Bennett’s counsel that Dr. Kostuik was also available to be deposed from 10:00 a.m. until 12:30 p.m. on June 4. However, Dr. Bennett’s counsel denied having received that infоrmation.
In his last motion to strike, Dr. Bennett claimed that the court had previously ruled that Dr. Kostuik must be made available for a minimum of three hours for a deposition. However, no statement to that effect appears in any of the court’s orders.
The trial court’s order does not explicitly reference Rule 4:12.
The statements of Walsh’s counsel at the June 2 hearing that the trial court could “go ahead and dismiss the case” did not justify the trial court’s “short circuiting” of the process. Neither did the statements constitute “invited error” under the doctrine enunciated by this Court, most recently in Moore v. Hinkle,
Dissenting Opinion
with whom JUSTICE LACY joins, dissenting.
In my view the trial сourt did not abuse its discretion by striking plaintiff’s designation of his expert witness for failure to comply with an order to provide discovery and thereafter, upon request of the plaintiff, dismissing the case.
There is no transcript of the proceedings before the trial court in this record. Rather, Walsh relies upon a statement of facts pursuant to Rule 5:11(c). The pertinent portion of the statement of facts states:
Counsel for the Plaintiff informed the [cjourt that the June 4, 1999 time frame was the only opportunity Dr. Kostuick [sic] had available for the deposition. When pressed by the [c]ourt for additional information concerning Dr. Kostuick’s [sic] availability, counsel for the Plaintiff replied that the court may as well “go ahead and dismiss the case.” Failing in an attempt to find alternative dates for the deposition of Dr. Kostuick [sic], the [c]ourt granted the Defendant’s motion to preclude Dr. Kostuick’s [siс] testimony as an expert witness at trial. Counsel for the Defendant then moved to dismiss the case on the ground that Plaintiff’s evidence as a matter of law was insufficient to prove medical malpractice without a medical expert. Again, Plaintiff’s only response was “go ahead and dismiss the сase.” The [c]ourt granted the Defendant’s motion and the case was dismissed.
The majority holds that “the trial court abused its discretion because it deprived Walsh of time, in this case two days, in which to comply with the court’s order.” Calling the dismissal a premature sanction under Rule 4:12, the majority suggests that “Walsh hаd not yet failed to obey the terms of the court’s prior discovery order.” The majority further observes that “we do not know whether the schedule of either Dr. Bennett’s counsel or Dr. Kostuik would have again changed between June 2 and the close of business on June 4.”
The majority does not hold that dismissal of the case for failure to comply with a discovery order of the court is an abuse of discretion; rather, the majority is concerned that the dismissal occurred two days before the stated deadline. However, the only evidence before us on the subject is the recitation in the statement of facts that “the June 4, 1999 time frame was the only opportunity Dr. Kostuick [sic] had available for the deposition.” The unavailability of Dr. Bennett’s
Although I believe that it was not error to dismiss the case, if error occurred, it most assuredly was invited errоr that the plaintiff may not successfully assert on appeal. The majority concludes without analysis that the request to “go ahead and dismiss the case” does not satisfy the invited error doctrine. The invited error doctrine is essentially a waiver of the right to assign error under Rule 5:25. See Wright v. Norfolk and Western Railway Co.,
As the statement of facts reveals, this case was originally filed in May of 1997 and was nonsuited prior to argument on a motion for summary judgment based upon plaintiff’s failure to timely designate expert witnesses. After the case was refiled in September of 1998, controversy arose over the adequacy of compliance with the Rules of Court concerning designation of expert witnesses. The trial court gave plaintiff leave to amend his designation. Upon the filing of an amended designation, defendant again filed a “motion to strike the [pjlaintiff’s expert.” The trial court denied the motion; however, the court ordered “that the [djefendant be afforded the opportunity to adequately depose [pjlaintiff’s expert by the close of business on June 4, 1999, or the [cjourt would revisit its decision on the motion to strike.”
At a hearing on June 2, 1999, the court was advised of plaintiff’s lack of compliance with the terms of the order requiring discovery. In аnother display of attempted accommodation of plaintiff, the court “then agreed to extend the June 4, 1999 deadline in order to accom
Faced with plaintiff’s repeated failure to comply with the Rules of Court and discovery orders, the trial court nonetheless tried to provide plaintiff with alternatives other than striking his expert or dismissing his case. For reasons known only to plaintiff, the efforts of the court were resisted. In this context, it was not an abuse of discretiоn for the court to accept plaintiff’s invitation to dismiss the case. Even if the failure to wait two more days to enter the order is characterized as error, under any reasonable interpretation, it was invited error about which plaintiff may not now complain on appeal.
I respectfully dissent from the majority opinion because it elevates form over substance. I would affirm the judgment of the trial court.