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Flott v. Southeast Permanente Medical Group7/8/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Nancy Flott appeals the trial court's dismissal without prejudice of her medical malpractice claim against the Southeast Permanente Medical Group, Inc. and Dr. Joseph Schifilliti ("Appellees") for her failure to comply with the trial court's discovery order. For the reasons that follow, we affirm.
After Flott's expert witness, Dr. Klemann, withdrew from the case, Flott concealed this fact from Appellees' counsel and the trial court. Instead, Flott unnecessarily prolonged the discovery process by allowing Appellees to believe Dr. Klemann was still her expert and delaying the scheduling of his deposition. Eventually, after trying to schedule the doctor's deposition for four months, Appellees filed a motion to compel, which was granted. Flott still did not reveal that Dr. Klemann had withdrawn from the case. Appellees subsequently learned from Dr. Klemann himself that he had withdrawn from the case six months earlier. Appellees then filed a motion to dismiss, which the trial court granted.
1. We first address several problems with Flott's brief. First, Flott fails to make proper record citations in her brief. Court of Appeals Rule 25 (c) (3) requires that an enumerated error be supported by specific reference to the record or transcript by page number. Flott's brief contains no citations by page number to the record. Since the record in this case is small, we will address the merits of Flott's appeal.
More troubling is Flott's misrepresentation of the record. In her brief, Flott contends that, some time prior to the filing of the motion to compel, her counsel informed Appellee's counsel "that Dr. Klemann no longer desired to participate in the case as an expert for [Flott]," and cites generally to her response to the motion to compel. Nowhere in the response to the motion to compel, or elsewhere in the record, is there any support for this contention. We caution counsel that misrepresentation of evidence in the record is a violation of State Bar Rules and Regulations and may result in a finding of contempt.
2. A trial court may impose sanctions, including dismissal of a complaint, against a party who does not comply with a discovery order. "Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion."
In her sole enumeration of error, Flott contends that the trial court erred in dismissing her case because Georgia law does not require her to produce a non-party expert witness for deposition. Instead, Flott argues, Appellees were required to serve Dr. Klemann with a deposition subpoena, and, since they did not, the trial court could not compel his deposition. Flott asserts that her case should not have been dismissed because she was not required to comply with the trial court's order. We disagree.
Flott's reliance on the argument that Appellees were required to subpoena Dr. Klemann is disingenuous. The trial court had ample reason to sanction Flott for discovery abuse regardless of whether Dr. Klemann could be compelled to testify absent a subpoena. Flott caused completely unnecessary delay and expense by pretending to cooperate in discovery when she knew that her expert witness was not going to give a deposition because he had withdrawn. And even when the trial court ordered her to cooperate in making Dr. Klemann available, she continued her deception.
Appellees sought to take the deposition of Dr. Klemann at a mutually convenient time - as is commonly done - and requested dates from Flott. Dr. Klemann's depo
Page 1 2 Georgia Personal Injury Attorneys
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