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In re Pedestrian Walkway Failure9/20/2005
of sanctions under Rule 37 "is in the sound discretion of the trial judge and cannot be overturned absent a showing of abuse of that discretion." Bumgarner v. Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992). An abuse of discretion may arise if there is no record evidence which indicates that defendant acted improperly, or if the law will not support the conclusion that a discovery violation has occurred. See Cloer v. Smith, 132 N.C. App. 569, 573, 512 S.E.2d 779, 782 (1999) (discussing a trial court's findings with respect to discovery violations and holding that "the deposition transcript supports the trial court's findings that counsel for [one of the parties] refused to allow [the party] to answer some questions, and, in other instances, 'told [the party] what to say'"); King v. Koucouliotes, 108 N.C. App. 751, 754, 425 S.E.2d 462, 464 (conducting a legal analysis to determine "whether . . . trial witnesses and trial exhibits are discoverable"), disc. review improvidently allowed, 335 N.C. 164, 436 S.E.2d 132 (1993). Further, " he choice of sanctions under Rule 37 is within the trial court's discretion" and is reviewable only for an abuse of discretion. Brooks v. Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239 (1992), aff'd, 334 N.C. 303, 432 S.E.2d 339 (1993).
1.
Mrs. Hepler contends that Judge Spainhour was compelled to find that she had shown good cause for allowing Dr. Bederka to testify despite his late identification as an expert witness. As already indicated, CMOs Nos. 1 and 2 required a brief identification of all experts to occur on 15 March 2002 and more detailed information on each identified expert to be provided on 29 March 2002. CMO No. 1 further provided that " ny expert witness not identified in accordance with the terms and conditions. . . shall not be permitted to testify at trial absent a showing of good cause." Mrs. Hepler admits that she did not provide any information concerning Dr. Bederka on the 15 March deadline. However, she insists that the failure was due to inadvertence on her attorney's part, that she ultimately identified Dr. Bederka on the 29 March deadline, and that his eventual disclosure, although untimely, still occurred more than two years prior to the trial of the case in which Dr. Bederka was supposed to testify. It follows, Mrs. Hepler insists, that there was necessarily good cause to allow Dr. Bederka to testify notwithstanding her technical failure to abide by the CMOs.
However, the record is replete with information which reveals the importance of the deadlines in each of the pedestrian walkway cases and with admonitions by Judge Spainhour that the parties should strictly and completely comply with rules and orders governing discovery. On the facts of this case, we are unpersuaded that Judge Spainhour was compelled to find that there was good cause to permit Dr. Bederka to testify, and we discern no abuse of discretion in the decision to exclude Dr. Bederka's testimony.
2.
Mrs. Hepler further argues that, even if she did not make a showing of good cause, defendants waived their right to object to the late designation of Dr. Bederka. "Waiver 'is always based upon an express or implied agreement. There must always be an intention to relinquish a right, advantage, or benefit. The intention to waive may be expressed or implied from acts or conduct thatnaturally lead the other party to believe that the right has been intentionally given up.'" Patterson v. Patterson, 137 N.C. App. 653, 667, 529 S.E.2d 484, 492 (citation omitted), disc. review denied, 352 N.C. 591, 544 S.E.2d 783-84 (2000).
Mrs. Hepler notes that Tindall waited approximately two years after the late identification before bring
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