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Flott v. Southeast Permanente Medical Group7/8/2005
sition was scheduled for September 9, 2003. Flott canceled the deposition on September 7, 2003 and rescheduled it for September 30, 2003. On September 8, 2005, Dr. Klemann notified Flott that he was withdrawing as her expert witness. Flott did not inform Appellees of this, but instead canceled the September 30 deposition on the pretext that Dr. Klemann was unavailable for "personal reasons," and suggested extending the discovery period for 60 days "for the purpose of scheduling the deposition of [Flott's] expert." Appellees agreed to an extension of discovery and continued to seek mutually agreeable dates for Dr. Klemann's deposition. Flott still did not inform Appellees of Dr. Klemann's withdrawal.
On January 2, 2004, Appellees informed Flott that they would file a motion to compel if Flott did not provide them with dates for Dr. Klemann's deposition. Appellants filed their motion to compel on January 29, 2004. In her response to the motion to compel, Flott did not mention that Dr. Klemann had withdrawn as an expert witness, instead stating that "Dr. Klemann has been unavailable for the taking of his deposition for personal reasons." The first time Flott suggested that Appellees should subpoena the doctor was in her response to the motion to compel. And even after the motion to compel was granted, Flott did not reveal that Dr. Klemann had withdrawn. Only after Appellees filed a motion to dismiss for failure to comply with the motion to compel did Flott finally admit, ten months after he withdrew, that Dr. Klemann was no longer her expert.
Flott deliberately misled Appellees and, eventually, the trial court about Dr. Klemann's status as an expert witness. She entered into an extension of the discovery period, ostensibly for the taking of Dr. Klemann's deposition, after she knew he would not be giving a deposition. She forced Appellees to file a motion to compel the testimony of a witness who she knew was no longer a witness. And she continued this deceptive behavior for ten months. Her actions justify the trial court's imposition of severe sanctions for discovery abuse.
Flott argues that the trial court erred in dismissing her case because it did not expressly find that Flott acted wilfully. Dismissal is an appropriate sanction for discovery abuse when the abuse is wilful. Willfulness requires "only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance." We will affirm a trial court's dismissal, even if it did not make a specific finding of willfulness, when the evidence supports its ruling. Here, the evidence shows that Flott had numerous opportunities to inform Appellees that their efforts to take Dr. Klemann's deposition were unnecessary. Flott went so far as to respond to a motion to compel the doctor's testimony without mentioning to the trial court that he was no longer a witness. The trial court was authorized to conclude that Flott was intentionally prolonging the discovery process. Thus, the trial court did not abuse its discretion in imposing sanctions, and we affirm its dismissal of the case.
Judgment affirmed. Johnson, P. J., and Barnes, J., concur.
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