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Zuckerman v. Vane12/19/2002
Argued November 8, 2002
In this suit for personal injury arising from the intersection collision of two motor vehicles, the trial judge dismissed the complaint with prejudice because of plaintiff/appellant Zuckerman's failure to respond to discovery. The primary issues before us are (1) whether Zuckerman's response to interrogatories requesting documentation of the accident and his injuries, medical expenses, and economic damages by offering to make such records available for defendant Vane's inspection satisfied Super. Ct. Civ. R. 33 (d); and (2), if not, whether that default nevertheless was sufficient to justify dismissal with prejudice in the circumstances of this case. We hold that, although Zuckerman did not comply with the duty of specificity imposed by Rule 33 (d), that failure did not justify the "lethal" sanction of dismissal, Solomon v. Fairfax Vill. Condo. IV Unit Owner's Ass'n, 621 A.2d 378, 379 (D.C. 1993) (per curiam), absent clearer evidence that his conduct was willful and that Vane was prejudiced as a result.
I.
In a complaint filed on March 26, 2001, Zuckerman alleged that a motor vehicle driven by Vane had run a red light and struck Zuckerman's car, causing him permanent injury and damage to his car. Vane answered the complaint, and the court issued a scheduling order establishing a series of discovery deadlines, including: August 29 (for discovery requests, the exchange of witness lists, and any Rule 26 (b)(4) expert witness statement by Zuckerman); October 29 (the close of discovery); December 29, 2001 to January 29, 2002 (filing and decision on motions, and alternative dispute resolution); and sixty days thereafter (the pretrial conference). On April 25, 2001, Vane served interrogatories and document requests on Zuckerman but received no response to them, prompting him to send three letters between May and July demanding compliance. Zuckerman replied in late July by asserting that he could not locate the requests and asking for new copies of them. On August 16, still having received no substantive responses, Vane moved the trial court to compel discovery under Rule 37 (a). Zuckerman responded apologetically and stated that he expected to complete his responses by September 17. On September 10, the trial court ordered him to serve his interrogatory answers and responses to the document requests by September 20.
Zuckerman filed his responses on September 20 as ordered. In them, he stated his version of the collision in detail, identified the eyewitnesses he intended to call at trial, described his resultant injuries, and listed the physicians he had consulted for treatment and intended to call as witnesses. But in response to the requests for documentation of his injuries and "expenses and other economic damages," he did not produce any reports or other documents or attempt to summarize their contents. Instead he asserted that all such documentation -- including photographs of the scene, written reports of his doctors, and x-rays and an MRI scan -- were in his possession or the possession of his doctors, and that " ursuant to Rule 33 (d), he would afford efendant reasonable opportunity, at a mutually convenient time and place, to examine . . . or inspect such documents and to make copies, . . . abstracts or summaries."
Unsatisfied with these responses, Vane moved the trial court to dismiss the complaint as a sanction, arguing that Zuckerman's failure to document his injuries with medical reports or substantiate his claim of lost earnings left Vane "still at a complete loss as to what damages the plaintiff is claiming in this matter." Zuckerman replied partly by stating that he had placed all such documents at Vane's disposal unde
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