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Skowronski v. Munson Medical Center6/3/2003
UNPUBLISHED
Plaintiffs appeal by leave granted an order of the circuit court striking their expert witnesses in this medical malpractice action. We affirm.
This appeal concerns discovery sanctions. On January 17, 2001, the court entered a civil scheduling order providing that plaintiffs were to disclose their experts by April 30, 2001. Defendants were allowed to depose plaintiffs' experts and then disclose their experts no later than June 29, 2001. There were typical delays in scheduling depositions. Defendants served plaintiffs with interrogatories for their expert witnesses and subsequently filed a motion to compel answers. The motion was heard on October 15, 2001, and the court ordered that answers be provided by 5 p.m. on October 18, 2001.
Plaintiffs faxed unsigned and incomplete answers to defense counsel on October 19, 2001. They did not provide requested curriculum vitae or written expert reports. The deposition of Dr. James O'Leary was scheduled for October 20 in Asheville, North Carolina. Other depositions were scheduled for October 22 in Naples, Florida, October 29 in Los Angeles, November 1 in Hicksville, New York, and November 7 in Overland Park, Kansas. Trial was scheduled to begin December 11, 2001.
In an October 17 letter, plaintiffs' counsel cancelled the October 22 deposition of Dr. Gatewood, stating that he would be in trial. When plaintiffs did not timely provide interrogatory answers, defense counsel cancelled the October 20 deposition of Dr. O'Leary and moved to strike plaintiffs' experts. The remaining scheduled expert depositions were cancelled.
The court heard argument on the motion on October 29, 2001. Giving plaintiffs the benefit of the doubt regarding the due date for the interrogatory answers, the court still found the substance of the answers was inadequate. The sequence of discovery was clearly set out in the scheduling order. The answers given, even if timely and in correct form, would not have made the depositions meaningful. Plaintiffs displayed a lack of candor in why Dr. Gatewood's deposition was withdrawn, and by withdrawing him at such a late date, it was understood that he would not be a witness. The interrogatory answers were evasive, and they were inconsistent with the court rules and the court's order. The court declined to dismiss the case, but it ruled that the individuals whose interrogatories were to be answered prior to 5 p.m. on October 18, 2001, would not be allowed to testify.
On appeal, plaintiffs argue that the trial court abused its discretion in striking the expert witnesses where the result will be a directed verdict for defendants. Plaintiffs' actions were not willful and were caused by counsel's involvement in another trial. Defendants would have achieved full discovery if they had proceeded with the scheduled depositions.
Defendants respond that the court acted within its discretion in striking plaintiffs' experts where plaintiffs failed to provide meaningful discovery and failed to exercise diligence in pursuing the case. The trial court has broad authority to sanction discovery violations. The repeated serious violations merited the remedy imposed.
This Court reviews a trial court's imposition of discovery sanctions for an abuse of discretion. Bass v Combs, 238 Mich App 16, 26; 604 NW2d 727 (1999). MCR 2.313(B)(2)(b) provides that if a party fails to obey an order to provide or permit discovery, the trial court may order such sanctions as are just, including an order refusing to allow the disobedient party to introduce designated matters into evidence.
Severe sanctions are generally appropriate only when a party flagrantly and wantonly
Page 1 2 Michigan Personal Injury Attorneys
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