Johnson v. Laurencin9/17/2002
. Archie N. Johnson, pro se, appeals from the circuit court's order dismissing his medical malpractice action against Denis L. Laurencin, M.D., and the Wisconsin Patients Compensation Fund. He argues that the court erred in concluding that he had no justifiable excuse for his violation of the scheduling order. We affirm.
I. BACKGROUND
. On July 1, 1998, Johnson, pro se, filed a complaint against Dr. Laurencin. On February 16, 1999, Johnson filed an amended complaint, adding the Wisconsin Patients Compensation Fund as a defendant. The circuit court entered a scheduling order on August 10, 1999, with a deadline for naming witnesses, and for submitting expert reports, a permanency report, and an itemized list of damages. Johnson then moved for an extension of this deadline and for leave to file a second amended complaint. The court granted the motion for an extension, establishing March 7, 2000 as the new deadline, but denied the motion for leave to file a second amended complaint.
Johnson timely filed his witness list; however, he did not file expert reports, a permanency report, or an itemized list of special damages. Dr. Laurencin filed a motion in limine on April 11, 2000, requesting that the circuit court enter an order precluding Johnson from introducing evidence of special damages and permanency and from calling any expert witnesses. Johnson filed a response opposing the motion, advising the circuit court of the circumstances hindering his ability to meet the court's prior deadlines in a timely fashion.
Dr. Laurencin's motion was scheduled for a hearing before Judge Dominic S. Amato on April 24, 2000. Johnson, who had been transferred to a correctional facility in Wisconsin on March 31, 2000, was available by telephone but was not contacted. A hearing was held and on May 3, 2000, the circuit court entered an order dismissing the case for Johnson's failure to follow the court's previous orders "in good faith." The circuit court denied Johnson's motion for reconsideration and he appealed.
On March 14, 2001, we summarily reversed the circuit court's dismissal of Johnson's action and remanded for proper consideration under the standards of Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 275, 470 N.W.2d 859 (1991). On remand, the case was assigned to Judge William A. Haese, who held a hearing on September 24, 2001, and found that Johnson's "violations of the scheduling order in respect to naming witnesses, by failing to provide expert reports, a permanency report, a list of itemized damages, and by requesting leave of court to amend pleadings, does not constitute excusable neglect." Nevertheless, Judge Haese issued another scheduling order, giving Johnson a second chance to comply. The order provided, in detail, that Johnson was required to submit the names of expert witnesses, expert reports, a permanency report, and an itemized statement of damages on or before November 24, 2001. Johnson failed to comply. Thus, on December 17, 2001, the circuit court issued a written decision dismissing Johnson's action and, on March 5, 2002, the court entered the final order from which Johnson appeals.
II. DISCUSSION
A. Standard of Review
A circuit court may dismiss a plaintiff's action for noncompliance with discovery or scheduling orders where the conduct is either egregious or in bad faith and where there is no "clear and justifiable excuse." See Johnson, 162 Wis. 2d at 275 (quoted source omitted). Such a decision is committed to the sound discretion of the circuit court and will not be reversed by this court unless the circuit court erroneously exercised discretion. See id. at 273. A discretionary decision w
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