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In re Wiley11/10/2004
REVERSED, RENDERED IN PART, AND REMANDED.
Cynthia Wiley's claims against Dr. Paul E. Miller were dismissed because she failed to comply with a judgment ordering her to answer discovery propounded by Dr. Miller. For the following reasons, we reverse.
Facts
This suit arises out of the death of Ms. Wiley's mother, Lillie M. Wiley, a sixty-seven-year-old diabetic and double amputee, who was a patient of Dr. Miller. Dr. Miller, a nephrologist, supervised Lillie's dialysis treatment. Ms. Wiley asserts that her mother developed bedsores while hospitalized for treatment and that the condition progressively deteriorated until she passed away. Suit was filed on Ms. Wiley's behalf by attorney George Flournoy.
Ms. Wiley's claims against Dr. Miller were dismissed by the trial court because she failed to comply with its order compelling her to respond to discovery propounded by Dr. Miller. This court in a previous opinion, In re: Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243, reversed the dismissal and the matter was remanded to the trial court for an evidentiary hearing to determine whether the dismissal was an abuse of discretion as explained in Horton v. McCrary, 93-2315 (La. 4/11/94), 635 So.2d 199.
On remand, the trial court held a hearing at which Ms. Wiley and her attorney testified. Ms. Wiley testified at the evidentiary hearing and acknowledged that she had previously filed a medical malpractice claim on behalf of her father and was familiar with answering discovery requests. She testified that, after this suit was filed, she discharged Mr. Flournoy because her siblings wanted to use another attorney. She acknowledged that Mr. Flournoy forwarded to her discovery requests propounded by Dr. Miller with instructions that she should comply with the requests. Ms. Wiley further testified that she and her siblings contacted attorney Norris Greenhouse to handle the claim. She testified that she believed Mr. Greenhouse was going to associate an attorney in New Orleans. There is no motion to enroll filed by Mr. Greenhouse or any other attorney, and there is no court appearance by any attorney other than Mr. Flournoy. However, in Reasons for Judgment dated March 31, 2003, the trial court stated that a hearing scheduled for December 6, 2002, had been rescheduled to January 3, 2003, "following a phone call by an attorney requesting additional time to review the case and possibly enroll as counsel of record for Cynthia Wiley."
Ms. Wiley had been served with notice of the January 3, 2003 hearing but did not appear. She testified that she started to answer the discovery, then brought everything to Mr. Greenhouse. She also testified that she believed Mr. Greenhouse sent her responses to the attorney in New Orleans who was going to work with him on the case. She did not retain copies of what she forwarded to Mr. Greenhouse, nor did she subpoena him for the hearing.
According to Ms. Wiley, she received a telephone call in January 2003 from her sister telling her to pick up "the papers." Her testimony indicates that she then met with Mr. Greenhouse who told her "there was nothing they could do with the case." As a result, she assumed the case "was over" and did not attempt to hire another attorney. Thereafter, Ms. Wiley was served with a judgment dated January 17, 2003, which ordered her to answer Dr. Miller's discovery requests within fifteen days of her receipt of the judgment or her claims against him would be dismissed. She did not contact Mr. Greenhouse when she was served with the motion to dismiss filed by Dr. Miller.
Mr. Flournoy testified that after Ms. Wiley was served with the motion to dismiss she was in his off
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