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Newell v. Engel12/15/1994
In this action for medical malpractice, plaintiff, Linda D. Newell, appeals a judgment dismissing her claims against defendant, Tibor Engel, for failing to comply with an order for psychiatric examination. We affirm.
The original complaint, filed in July 1989, asserted claims for relief against three physicians, including defendant Engel and a hospital. Through a series of various motions and hearings spanning a period of approximately two years, all claims, except those against defendant, were ultimately dismissed. The claims against defendant concern an alleged course of treatment and side effects plaintiff claims she suffered as a result of that treatment.
On May 26, 1992, the court, upon motion by defendant, issued an order pursuant to C.R.C.P. 35 for an independent psychiatric examination of plaintiff. Plaintiff was subsequently represented by different attorneys and at times appeared pro se.
On March 12, 1993, ten days prior to the date for which trial was set, defendant filed a motion to dismiss pursuant to C.R.C.P. 37(b)(2), alleging plaintiff had failed to comply with the court-ordered examination. Following a two-day hearing, the court issued a lengthy ruling granting the motion and entered a judgment of dismissal. Plaintiff's subsequent motions for reconsideration were denied.
I.
Asserting various procedural and other alleged errors, plaintiff first contends that the trial court erred in granting defendant's motion to dismiss pursuant to C.R.C.P. 37(b)(2). We disagree.
C.R.C.P. 37(b)(2) provides in pertinent part:
If a party . . . fails to obey an order to provide or permit discovery, including an order made under section (a) of this Rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(C) An order . . . dismissing the action . . . .
Whether to impose sanctions and the nature of the sanctions to be imposed are matters within the sound exercise of the trial court's discretion. A trial court's decision to impose a sanction will not be overturned unless such decision constitutes an abuse of discretion. Nagy v. District Court, 762 P.2d 158 (Colo. 1988). A court should impose a sanction that is commensurate with the seriousness of the disobedient party's conduct. Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672 (Colo. 1987).
The harshest of all sanctions is dismissal or entry of a default judgment, which should be imposed only in extreme circumstances. Nagy v. District Court, supra; see J.P. v. District Court, 873 P.2d 745 (Colo. 1994).
In Nagy, supra, the court held that to impose the sanction of a default judgment against a party for failure to comply with a discovery rule or order, the trial court must make a specific finding of one of three factors on the part of the disobedient party. These factors are:
(1) willfulness or deliberate disobedience of discovery rules; (2) bad faith conduct which is a flagrant disregard or dereliction of one's discovery obligations; or (3) culpable conduct which is more than mere inadvertence or simple negligence but is gross negligence. Nagy v. District, supra, at 161.
A.
Citing the provisions of C.R.C.P. 35 requiring that the order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, plaintiff asserts that the order granting the motion for inde
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