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Allred v. Board of Regents of University of New Mexico5/28/1997
WECHSLER, Judge.
{1} Plaintiffs appeal two district court orders dismissing their claims against the Board of Regents of the University of New Mexico, Kent Argubright, Elizabeth La Roche, Jeffrey Wicks (the UNM Defendants), and Ragon Thompson. The dismissals resulted from Defendants' motions for dismissal or for summary judgment based on Plaintiffs' violations of the requirements of the rules of discovery. On appeal, Plaintiffs argue that: (1) they did not willfully or in bad faith fail to truthfully answer discovery requests; (2) they did not repeatedly conceal discoverable information; and (3) the real party in interest, Joshua Allred, should not suffer dismissal of the claims since he took no part in any transgressions. Plaintiffs also argue that information relating to a non-witness expert is not discoverable and that the district court did not grant summary judgment, but based its dismissal on Rule 1-037 NMRA 1997. We affirm.
Factual and Procedural Background
The First Appeal--the California Locating Service
{2} In April 1992, Plaintiffs filed their complaint alleging medical malpractice before and during the birth of their twin sons, resulting in one of their twin sons, Joshua, having cerebral palsy. In June 1992, Plaintiffs' first counsel retained a California expert witness locating service. Two months later, on August 4, 1992, Plaintiffs received an anonymous evaluation letter dated July 14, 1992, from the California locating service. The letter expressed the opinion that Thompson and Argubright were negligent, but did not express an opinion about the other Defendants. On August 24, 1992, Plaintiffs served their answers to Dr. Argubright's interrogatories. They answered, "None." to the question asking:
If any person licensed to practice medicine in any state has ever communicated to you, your attorneys and/or agents, or is prepared to testify in this matter that the treatment allegedly provided to you, or not provided to you, by [Argubright] fell below the applicable standard of care . . . please state the name, address and profession of each such person; the date of such communication; and provide a summary of the contents of any such communication . . . .
{3} On November 24, 1992, Sweet, Rose, and Talley, who are not parties to this appeal, filed motions for summary judgment based on Plaintiffs' lack of expert testimony. Two weeks later, Plaintiffs requested an extension of time to respond to these motions. At the December 16, 1992 hearing on this motion, Plaintiffs' attorney stated that the file in this case would be sent to a California locating service "this week."
{4} On December 18, 1992, the UNM Defendants filed motions for summary judgment based on the lack of expert testimony. Three days later, Plaintiffs filed a motion for an extension of time to respond to these motions and represented that it would take sixty days for the California service to locate an expert and have the expert render an opinion. Thompson filed his motion for summary judgment based on the lack of expert testimony on February 10, 1993.
{5} On January 29, 1993, Plaintiffs' second attorney entered a limited appearance on behalf of Plaintiffs in order to ask for more time to evaluate the case before responding to the pending motions for summary judgment and to discovery requests. On February 9, 1993, the district court held a hearing on Plaintiffs' first attorney's motion to withdraw and, on February 23, 1993, the district court entered an order allowing him to withdraw as counsel and granting Plaintiffs an extension of time until May 10, 1993, to respond to the pending motions for summary judgment, thereby making the seco
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