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Smith v. Butte-silver Bow County5/6/1996
t-related information to the County, the court would reopen the Estate's expert witness depositions. The County, on the other hand, relies on Eisenmenger, and Landauer v. Kehrwald (1987), 225 Mont. 322, 732 P.2d 839, in urging us to accord proper deference to the District Court's dismissal with prejudice. The County also contends that the instant case presents a more compelling case for the dismissal sanction than Eisenmenger.
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 forth the factors it contended contributed to the broken suture and the plaintiff's resulting stroke, Ethicon failed to disclose the opinions provided by Dr. Olcott two years earlier. Eisenmenger, 871 P.2d at 1319. Indeed, Ethicon did not disclose Dr. Olcott as a potential expert witness until August of 1991. Eisenmenger, 871 P.2d at 1319. The district court granted summary judgment in favor of the doctor and hospital approximately six months later. Eisenmenger, 871 P.2d at 1320-21.
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 Rule 37, M.R.Civ.P., for its failure to disclose this relevant information in discovery requests dating back to 1988. Eisenmenger, 871 P.2d at 1315.
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 dist
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