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Smith v. Butte-silver Bow County5/6/1996
rict court's finding that Ethicon's failure to respond to discovery requests was willful and in bad faith and caused severe prejudice to the plaintiff on an issue central to the case. Eisenmenger, 871 P.2d at 1321. We held that the district court did not abuse its discretion in entering a default judgment on the issue of liability against Ethicon. Eisenmenger, 871 P.2d at 1321.
Thus, in Eisenmenger, the plaintiff was foreclosed from seeking compensation from two potentially responsible parties due to Ethicon's "knowing concealment" of Dr. Olcott's opinion. As a result of Ethicon's egregious conduct, the plaintiff was severely prejudiced. See Eisenmenger, 871 P.2d at 1321. Under such extreme circumstances, no other sanction could have remedied the severe prejudice suffered by the plaintiff.
Here, we are not confronted with the extreme and irreparable circumstances which existed in Eisenmenger. Certainly any incidental prejudice to the County due to delay and the necessity of repeated motions does not rise to the level of extreme prejudice suffered by the plaintiff in Eisenmenger. Moreover, unlike Eisenmenger, sanctions other than dismissal were available in this case to remedy the limited prejudice to the County. Indeed, the District Court provided for one such sanction when it stated that it would reopen the Estate's expert witness depositions as an alternative to the Estate providing the ordered expert-related information. In addition, upon reopening the depositions, the District Court could have required the Estate to pay the expenses incurred by the County as a result. See Rule 37(b), M.R.Civ.P.
Finally, Ethicon's "knowing concealment" in Eisenmenger was far more egregious than the Estate's inadequate Rule 26 disclosure and response to the District Court's clarification order in this case. In Eisenmenger, Ethicon totally concealed Dr. Olcott's opinion (see Eisenmenger, 871 P.2d at 1321) and, as a direct result, the plaintiff was foreclosed from pursuing a viable claim against the doctor and hospital. Here, the Estate disclosed the identity of its expert witnesses and the general topics on which they are expected to testify at trial. Thus, although the Estate's conduct in this case clearly violated the court's order of clarification and is strongly disapproved, it does not rise to the level of discovery-related misconduct present in Eisenmenger. Since neither the nature or extent of discovery abuse nor the resulting prejudice is of the magnitude of that present in Eisenmenger, Eisenmenger does not compel a conclusion that imposition of the dismissal sanction was appropriate here.
In Landauer, the plaintiff filed a claim against the defendant to recover lost rental income. The defendant served requests for production of the plaintiff's federal and state income tax returns for specified years. Landauer, 732 P.2d at 839. When the plaintiff did not provide the returns, the defendant filed a motion to compel production. The district court ordered the plaintiff to produce the returns within twenty days and the plaintiff failed to comply. Landauer, 732 P.2d at 840. The defendant again moved the court to compel production. The court ordered the plaintiff to provide the returns within ten days and warned that failure to comply would result in dismissal of his complaint with prejudice. Landauer, 732 P.2d at 840. The plaintiff timely produced his federal, but not his state, returns and the district court dismissed the plaintiff's complaint with prejudice pursuant to Rule 37(b), M.R.Civ.P. Landauer, 732 P.2d at 840. We determined that, under those circumstances, the district court did not abuse its discretion in dismissing the plaintiff's complaint
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