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Segrest v. Gillette12/5/1989
any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule.
Among the allowable sanctions is "an order . . . prohibiting him from introducing designated matters in evidence." N.C.R. Civ. Proc. 37(b)(2)b.
The imposition of sanctions under Rule 37(d) is in the sound discretion of the trial judge. Imports, Inc. v. Credit Union, 37 N.C. App. 121, 124, 245 S.E.2d 798, 800 (1978). See also W. Shuford, N.C. Civil Practice and Procedure, ยง 37-14 (3rd ed. 1988). Defendants Gillette, et al., were properly served with plaintiff's interrogatory about expert testimony, a crucial aspect of this medical malpractice case. The fact that plaintiff's interrogatories were ultimately answered, however late, does not prevent the court from imposing sanctions under Rule 37(d) on plaintiff's motion. See Hayes v. Browne, 76 N.C. App. 98, 331 S.E.2d 763 (1985), cert. denied, 315 N.C. 587, 341 S.E.2d 25 (1986). Defendants Gillette, et al.,
did not respond or object to the interrogatory until after the plaintiff moved for sanctions, long after the thirty days allowed for response under Rule 33. Defendants Gillette, et al., do not argue that their failure to reply was involuntary or beyond their control and offer no explanation for their failure to respond. Under these circumstances, we find no abuse of discretion in the judge's order limiting the number of expert witnesses defendants Gillette, et al., could use at trial.
No error as to defendants Charlotte Memorial Hospital and Medical Center, Inc. and Charlotte-Mecklenburg Hospital Authority.
Reversed and remanded for a new trial as to defendants Gillette, Greenhoot and Southeast Anesthesia Associates, P.A.
Disposition
No error as to defendants Charlotte Memorial Hospital and Medical Center, Inc. and Charlotte-Mecklenburg Hospital Authority. Reversed and remanded for a new trial as to defendants Gillette, Greenhoot and Southeast Anesthesia Associates, P.A.
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