No. 95-474
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
BILLIE SMITH, Personal Representative of
the Estate of Richard A. Smith, deceased,
and on behalf of Philana V. Smith and
Estelle M. Smith, children of the deceased,
Plaintiff and Appellant,
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BUTTE-SILVER BOW COUNTY, a consolidated , I
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Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas M. Malee, Attorney at Law, Billings,
Montana
For Respondents:
John H. Maynard, Marcia Davenport; Browning,
Kaleczyc, Berry & Hoven, Helena, Montana
Submitted on Briefs: February 1, 1996
Decided: May 6, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
The Estate of Richard A. Smith (Estate) appeals from the
judgment entered by the Second Judicial District Court, Silver Bow
County, on its order dismissing the Estate's complaint with
prejudice. We reverse and remand.
The issue on appeal is whether the District Court abused its
discretion in dismissing the Estate's complaint with prejudice
pursuant to Rule 37 (b)(2)(C), M.R.Civ.P.
This is the second time that this case has been before us on
appeal. The facts underlying the Estate's complaint are set forth
in Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 878 P.2d
870, and need not be repeated here. In Smith, the primary issues
on appeal related to prosecutorial immunity and amendment of
pleadings; we reversed the District Court on the former issue and
affirmed it on the latter. Smith also presented the issue of
whether the District Court erred in dismissing the Estate's action
without prejudice under Rule 37, M.R.Civ.P.,for failure to comply
with its orders compelling discovery and requiring a psychological
examination of Richard Smith's children. Smith, 878 P.2d at 876.
We declined to address the propriety of that dismissal due to the
inadequacy of the record and the court's language indicating that
it dismissed without prejudice in order to facilitate our review of
rulings not appealable under Rule 1, M.R.App.P. Smith, 878 P.2d at
877. We vacated the order of dismissal without precluding the
availability on remand of further proceedings on that issue.
Smith, 878 P.2d at 877.
On remand, Butte-Silver Bow County (County) again moved the
District Court to dismiss the Estate's complaint based on the
alleged discovery abuses which were the basis of the earlier
dismissal. The District Court denied the County's motion on
February 21, 1995, and, in doing so, rejected the County's reliance
on discovery abuses alleged to have occurred prior to the appeal.
The court gave the Estate thirty days from the date of its order
denying the motion to dismiss "to adequately answer or supplement
the discovery requestsr1and required the Estate to ll[plrovide
complete answers to all unanswered interrogatories and fully
disclose all experts, their opinions and the basis for those
opinions in accordance with Rule 26, M.R.Civ.P." The court warned
that " [ilf this order is not fully complied with, then the court
will be left with no other alternative but to dismiss this case
with prejudice or impose other appropriate sanctions."
On February 24, 1995, the Estate moved for an order of
clarification, requesting the District Court to specifically list
"any further evidence" to be provided to the County. Approximately
ten days later, the Estate provided the County with "Plaintiff's
Rule 26(b) (4) Disclosure" stating that the opinions of its expert
witnesses were based on facts and materials set forth in their
depositions.
The District Court issued an order of clarification and
memorandum (hereinafter "clarification order") directing the Estate
to provide to the County:
1. The names of individuals who provided care to the
minor children from January 1, 1989 through June, 1991;
2. Information about Richard Smith's Social Security
Benefit Claim for a leg injury; and
3. Information about [the Estate's1 expert witnesses,
their opinions and basis for them or in the alternative
this Court must reopen the depositions of [the Estate's]
experts to answer questions about the basis of their
opinions.
In response to the clarification order, the Estate provided the
required information regarding the children's caregivers and the
leg injury claim. With regard to the expert witness information,
the Estate stated that:
[the Estatel has previously supplied information about
it's [sic] expert witnesses to the [County]. This may
have been overlooked by the court. The information
previously supplied by [the Estatel complies fully with
Rule 26, MRCP. Another copy of that information is
provided to the court herewith.
In June of 1995, the County moved to dismiss the Estate's
complaint pursuant to Rule 37, M.R.Civ.P., for alleged discovery
abuses. The District Court granted the County's motion and
subsequently entered judgment dismissing the Estate's complaint
with prejudice. The Estate appeals.
Did the District Court abuse its discretion in dismissing
the Estate's complaint with prejudice pursuant to Rule
37(b) (2)(C), M.R.Civ.P.?
It is important at the outset to recognize the salutary
purposes underlying the availability of Rule 37, M.R.Civ.P.,
sanctions for discovery abuses and the respective roles of the
district courts in imposing--and this Court in reviewing--such
sanctions. While trial courts traditionally were reluctant to
impose discovery-related sanctions, concerns relating to crowded
dockets and the overall responsibility for maintaining fair and
efficient judicial administration had reversed that trend by the
1970s. See Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 277-
78, 627 P.2d 1233, 1235. Indeed, since 1981, it has been this
Court's position that dilatory abuse of discovery must no longer be
dealt with leniently and that the transgressors of discovery abuses
should be punished rather than encouraged repeatedly to cooperate.
See Owen, 627 P.2d at 1235. "When litigants use willful delay,
evasive response, and disregard of court discretion as part and
parcel of their trial strategy, they must suffer the consequences."
Owen, 627 P.2d at 1236.
Rule 37, M.R.Civ.P., provides trial courts with a means to
prevent an excessive back-log of cases. See Dassori v. Roy Stanley
Chevrolet Co. (1986), 224 Mont. 178, 180, 728 P.2d 430, 431. More-
over,
[tlhe trial judge is in the best position to know . . .
which parties callously disregard the rights of their
opponents and other litigants seeking their day in
court[] [andl is also in the best position to determine
which sanction is the most appropriate.
Dassori, 728 P.2d at 431. As a result, we generally defer to the
decision of the trial court regarding Rule 37, M.R.Civ.P.,
sanctions. See Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393,
402, 871 P.2d 1313, 1319.
Here, the District Court determined that the Estate failed to
comply with its post-remand orders requiring disclosure of expert
opinion information in compliance with Rule 26(b) (4)(A)(i),
M.R.Civ.P., and dismissed the Estate's complaint with prejudice.
We review a district court's imposition of sanctions for discovery
abuses to determine if the court abused its discretion.
Eisenmenser, 871 P.2d at 1319 (citing First Bank (N.A.)
-Billings v.
Heidema (l986), 219 Mont. 373, 711 P.2d 1384).
DISCOVERY ABUSE
Before discussing the propriety of the District Court's
imposition of sanctions under Rule 37, M.R.Civ.P., it is necessary
to address the Estate's contention on appeal that no discovery
abuse exists in this case. The Estate contends that the only
information not provided to the County was the amount of time one
of its expert witnesses, Dr. Paul F. Cimmino, spent researching for
this case. We disagree.
Rule 26(b) (4)(A)(i), M.R.Civ.P., provides that
[a1 party may through interrogatories require any other
party to identify each person whom the other party
expects to call as an expert witness at trial, to state
the subject matter on which the expert is expected to
testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and
a summary of the grounds for each opinion.
(Emphasis added). In its order of dismissal and accompanying
memorandum, the District Court concluded that "1) [the Estatel did
not provide the substance of facts which [sic] the experts were
expected to testify; and 2) [the Estatel omitted a summary of the
grounds for each opinion" in violation of its order and Rule
The Montana legislature adopted this rule from Rule 26,
Fed.R.Civ.P. See Rule 26, M.R.Civ.P., Compiler's Comments. The
underlying policies of Rule 26 are to eliminate surprise and to
promote effective cross-examination of expert witnesses. See Smith
v. Ford Motor Co. (10th Cir. l98O), 626 F.2d 784, 792-93 (citing 28
U.S.C., Rule 26, Fed.R.Civ.P.,Advisory Committee Notes)
Before an attorney can even hope to deal on cross-
examination with an unfavorable expert opinion he must
have some idea of the bases of that opinion and the data
relied upon. If the attorney is required to await
examination at trial to get this information, he often
will have too little time to recognize and expose
vulnerable spots in the testimony.
Smith, 626 F.2d at 794 (citation omitted)
Review of the Estate's Rule 26 disclosure reflects that the
Estate identified each person it expects to call as an expert
witness and stated the general subject matter on which each expert
is expected to testify as required by Rule 26(b) (4)(A)(i),
M.R.Civ.P. The District Court did not conclude, and the County
does not argue, otherwise.
Regarding the "substance of factsn to which its expert
witnesses are expected to testify, the Estate provided the
following statements:
1. Dr. Ruey-Lin Lin . . . will testify that the decedent
herein was not a hard-core criminal, had a relatively
minor history, and would have rehabilitated himself, or
been rehabilitated, at or near the age of thirty-five.
2. Thomas Rozza . . . will testify that the Defendant's
county attorney failed to meet acceptable corrections
standards in protecting the decedent's life, and that the
Defendant's jail failed to meet acceptable corrections
standards in protecting the decedent's life.
3. Dr. Paul Cimmino . . . will testify that, had the
decedent lived, any antisocial aspects of his personality
would have lessened and been brought under control . . .
[and] his abuse of drugs and alcohol would have been
brought under control. He will also testify as to the
loss suffered by the children upon the death of their
father.
4. Dr. John Brower . . . will testify as to the present
value of the earnings the decedent might have expected,
had he lived.
These broad statements indicate the general topics on which the
Estate's experts are expected to testify. They do not, however,
provide the substance of facts to which the Estate's expert
witnesses will testify, as required by Rule 26 (b)(4) (i),
(A)
M.R.Civ.P.
Concerning the bases of its expert witnesses' opinions, the
Estate stated in its Rule 26 disclosure that those opinions are
based upon the "facts and information set forth in [their]
deposition[s] which [are] in the possession of [the County], and
upon [their] training and experience." The Estate also referred
the County generally to the treatises upon which its expert
witnesses relied. The Estate did not provide any further
explanation or information concerning the bases or grounds for its
expert witnesses' opinions.
These statements by the Estate add nothing to "the substance
of the facts" and the "summary of the grounds for each opinion"
which are required to be disclosed by Rule 26(b) (4) (i),
(A)
M.R.Civ.P. Moreover, nothing in Rule 26, M.R.Civ.P., permits a
party to decline to comply with the Rule and a court order
requiring compliance therewith on the basis of that party's belief
or opinion that the opposing party already possesses the required
information.
Having submitted its disclosure, the Estate obtained the
court's clarification order explicitly requiring it to provide its
experts' opinions and the bases for those opinions. The District
8
Court expressly noted therein that " [wlhile [the County] previously
deposed [the Estate's] experts, [the Estate's] attorney at the
depositions of certain experts instructed the experts not to answer
relevant questions about the basis of their opinions."
The Estate did not provide any additional information relating
to its expert witnesses in response to the District Court's
clarification order. Instead, it merely stated that it had
previously supplied the required information regarding those
witnesses to the County and that the information supplied "complies
fully with Rule 26, MRCP[;I1' it referred the court to its "Rule
26 (b)(4) Disclosure."
This final response essentially ignored the clarification
order which the Estate requested and received, and totally failed
to comply therewith. In light of the court's clear awareness that
the expert witness depositions had been taken, and the court's
clear determination that those depositions had not produced the
required information about the bases of the experts' opinions, the
Estate's response appropriately could be characterized--in the
vernacular--as "in your face." Whatever counsel's intent in
framing his client's response to a clear court order may have been-
-whether gamesmanship with the County or disdainful "one-upmanship"
with the District Court--the Estate's response did not comply with
the explicit requirements of the court's clarification order.
We conclude that the Estate's expert-related responses to the
District Court's initial order on remand satisfied neither the
"substance of the facts" requirement nor the "summary of the
grounds for each opinion" requirement of Rule 26 (b)(4) (i),
(A)
M.R.Civ.P. We also conclude that the Estate's response to the
District Court's clarification order totally failed to comply with
the expert witness-related portion of that order. Therefore, we
hold that the Estate committed discovery abuses after remand.
REVIEW OF SANCTIONS
Rule 37 (b)(2), M.R.Civ.P., provides, in relevant part:
If a party . . . fails to obey an order to provide or
permit discovery, . . . 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 . . . .
After concluding that the Estate failed to obey its clarification
order, the District Court dismissed the Estate's complaint with
prejudice. We review the District Court's dismissal of the
Estate's complaint pursuant to Rule 37 (b)(2)(C), M.R.Civ.P., to
determine if the court abused its discretion. Eisenmenqer, 871
P.2d at 1319.
Acknowledging both the discretionary nature of a trial court's
decisions on sanctions for discovery abuse and the availability of
the dismissal sanction under Rule 37, M.R.Civ.P.,the Estate argues
that dismissal was an abuse of the District Court's discretion
under these facts. It relies on the District Court's statement
accompanying the clarification order that, in the event the Estate
failed to provide the expert-related information to the County, the
court would reopen the Estate's expert witness depositions. The
County, on the other hand, relies on Eisenmenqer, and Landauer v.
Kehrwald (1987), 225 Mont. 322, 732 P.2d 839, in urging us to
10
accord proper deference to the District Court' s dismissal with
prejudice. The County also contends that the instant case presents
a more compelling case for the dismissal sanction than Eisenmenqer.
Eisenmenqer and Landauer clearly stand for the proposition
that we generally defer to the decision of the district court
regarding the appropriate sanction for discovery abuses. See
Eisenmenqer, 871 P.2d at 1319; Landauer, 732 P.2d at 840. Those
cases, however, are factually distinguishable fromthe present case
and do not mandate a conclusion that the sanction of dismissal was
properly applied here.
In Eisenmenqer, a broken suture following surgery caused the
plaintiff to have a stroke and suffer other severe complications.
The plaintiff filed a medical malpractice claim against the doctor
and hospital and a products liability claim against Ethicon, Inc.
Eisenmenqer, 871 P.2d at 1315. In 1988, Dr. Olcott, who later
became Ethicon's expert witness, reviewed the Eisenmenger case and
generally advised Ethicon's counsel of his opinions regarding the
doctor and hospital's possible culpability in the case based on
certain acts and decisions. Eisenmenqer, 871 P.2d at 1319.
In June of 1990, Ethicon responded to a detailed discovery
request from the plaintiff. Despite the plaintiff's request that
Ethicon set forth the factors it contended contributed to the
broken suture and the plaintiff's resulting stroke, Ethicon failed
to disclose the opinions provided by Dr. Olcott two years earlier.
Eisenmenqer, 871 P.2d at 1319. Indeed, Ethicon did not disclose
Dr. Olcott as a potential expert witness until August of 1991.
Eisenmenqer, 871 P.2d at 1319. The district court granted summary
judgment in favor of the doctor and hospital approximately six
months later. Eisenmenqer, 871 P.2d at 1320-21.
Ethicon did not make Dr. Olcott available for deposition until
one month after the district court granted summary judgment in
favor of the doctor and hospital. Eisenmenqer, 871 P.2d at 1321.
The plaintiff then deposed Dr. Olcott, and his testimony supported
a theory that the doctor or the hospital could have caused the
broken suture. Eisenmenqer, 871 P.2d at 1315. The plaintiff
subsequently moved the district court for sanctions against Ethicon
pursuant to Rule 37, M.R.Civ.P., for its failure to disclose this
relevant information in discovery requests dating back to 1988.
Eisenmenqer, 871 P.2d at 1315.
The district court determined that Ethicon made a "knowing
concealment" of the expert's testimony and stated that, had Dr.
Olcott's testimony been available, it was "very doubtful" that the
doctor and hospital's motion for summary judgment would have been
granted. Eisenmenqer, 871 P . 2 d at 1315. Concluding that the
plaintiff had suffered extreme prejudice due to Ethicon's discovery
abuses, the district court entered a default judgment against
Ethicon on the issue of liability. Eisenmenqer, 871 P.2d at 1315.
In reviewing the propriety of the default sanction, we set
forth at some length the record before us regarding Ethicon's
failure to timely disclose Dr. Olcott's opinions, update discovery
responses or make Dr. Olcott available for deposition. On the
basis of that record, we determined that "severe prejudice had
already occurred to [the plaintiff], and the [district] court had
few options for appropriate and meaningful sanctions against
Ethicon." Eisenmenqer, 871 P.2d at 1321. We also determined that
the record supported the district court's finding that Ethicon's
failure to respond to discovery requests was willful and in bad
faith and caused severe prejudice to the plaintiff on an issue
central to the case. Eisenmenqer, 871 P.2d at 1321. We held that
the district court did not abuse its discretion in entering a
default judgment on the issue of liability against Ethicon.
Eisenmenqer, 871 P.2d at 1321.
Thus, in Eisenmenqer, the plaintiff was foreclosed from
seeking compensation from two potentially responsible parties due
to Ethicon's "knowing concealment" of Dr. Olcott's opinion. As a
result of Ethicon's egregious conduct, the plaintiff was severely
prejudiced. See Eisenmenser, 871 P.2d at 1321. Under such extreme
circumstances, no other sanction could have remedied the severe
prejudice suffered by the plaintiff.
Here, we are not confronted with the extreme and irreparable
circumstances which existed in Eisenmenqer. Certainly any
incidental prejudice to the County due to delay and the necessity
of repeated motions does not rise to the level of extreme prejudice
suffered by the plaintiff in Eisenmenqer. Moreover, unlike
Eisenmenqer, sanctions other than dismissal were available in this
case to remedy the limited prejudice to the County. Indeed, the
District Court provided for one such sanction when it stated that
it would reopen the Estate's expert witness depositions as an
alternative to the Estate providing the ordered expert-related
information. In addition, upon reopening the depositions, the
District Court could have required the Estate to pay the expenses
incurred by the County as a result. See Rule 37(b), M.R.Civ.p.
Finally, Ethicon's "knowing concealmentt1in Eisenmenser was
far more egregious than the Estate's inadequate Rule 26 disclosure
and response to the District Court's clarification order in this
case. In Eisenmenqer, Ethicon totally concealed Dr. Olcott's
opinion (see Eisenmenser, 871 P.2d at 1321) and, as a direct
result, the plaintiff was foreclosed from pursuing a viable claim
against the doctor and hospital. Here, the Estate disclosed the
identity of its expert witnesses and the general topics on which
they are expected to testify at trial. Thus, although the Estate's
conduct in this case clearly violated the court's order of
clarification and is strongly disapproved, it does not rise to the
level of discovery-related misconduct present in Eisenmenser.
Since neither the nature or extent of discovery abuse nor the
resulting prejudice is of the magnitude of that present in
Eisenmenqer, Eisenmenser does not compel a conclusion that
imposition of the dismissal sanction was appropriate here.
In Landauer, the plaintiff filed a claim against the defendant
to recover lost rental income. The defendant served requests for
production of the plaintiff's federal and state income tax returns
for specified years. Landauer, 732 P.2d at 839. When the
plaintiff did not provide the returns, the defendant filed a motion
to compel production. The district court ordered the plaintiff to
produce the returns within twenty days and the plaintiff failed to
comply. Landauer, 732 P.2d at 840. The defendant again moved the
court to compel production. The court ordered the plaintiff to
provide the returns within ten days and warned that failure to
comply would result in dismissal of his complaint with prejudice.
Landauer, 732 P.2d at 840. The plaintiff timely produced his
federal, but not his state, returns and the district court
dismissed the plaintiff's complaint with prejudice pursuant to Rule
37(b), M.R.Civ.P. Landauer, 732 P.2d at 840. We determined that,
under those circumstances, the district court did not abuse its
discretion in dismissing the plaintiff's complaint. Landauer, 732
P.2d at 841.
Similar to the district court in Landauer, the District Court
in this case warned in its initial post-remand order that if the
Estate failed to comply, "then the court will be left with no other
alternative but to dismiss this case with prejudice or impose other
appropriate sanctions." However, the Estate then moved the
District Court to clarify that order and the court issued a
clarification order wherein it modified its prior warning, at least
with regard to the expert witness information, by requiring that
the Estate provide the expert-related information "or in the
alternative this Court must reopen the depositions of [the
Estate's] experts to answer questions about the basis of their
opinions."
The record before us demonstrates that the Estate provided two
of the three categories of information set forth in the District
Court's clarification order; it also provided part of the ordered
expert witness information. Notwithstanding its specific warning
of the sanction which would result from the Estate's failure to
provide the ordered expert-related information, however, the
District Court dismissed the Estate's complaint with prejudice.
Thus, in both Landauer and the present case, the parties were
expressly warned of the consequences for failure to comply with the
court's discovery-related order. In Landauer, the district court
imposed the consequence of which it had warned--dismissal with
prejudice--and we determined that the court had not abused its
discretion. See Landauer, 732 P.2d at 841. In this case, however,
the District Court imposed consequences much more severe than those
of which it had expressly warned. Landauer does not, therefore,
compel a conclusion that the sanction of dismissal with prejudice
was appropriate here.
We reaffirm our policy that, in reviewing the imposition of
Rule 37 sanctions, we generally must defer to the decision of the
district court. See Eisenmenser, 871 P.2d at 1319. When parties
fail to comply with court orders enforcing the rules of discovery,
they must suffer the consequences. See Owen, 627 P.2d at 1236.
The extent of the "consequences1'imposed by a district court,
however, should relate to the extent and nature of the actual
discovery abuse and the extent of the prejudice to the opposing
party which results therefrom. Moreover, where a court expressly
warns of the consequences to follow from a party's failure to
comply, the court should impose sanctions accordingly.
Here, the Estate's failure to comply with ordered discovery
was totally insupportable, but relatively limited, as was the
prejudice to the County. Thus, the dismissal sanction bears little
relationship to the nature and extent of the discovery abuse and
the resulting prejudice in this case. Most importantly, the
District Court's imposition of the ultimate sanction of dismissal
was a marked, and significant, departure from the specific
consequences of which it had elected to warn the Estate.
Discovery abuse tactics, especially in this era of crowded
dockets, deprive other litigants of an opportunity to use the
courts as a serious dispute-settlement mechanism. First Bank
(N.A.)-Billinas, 711 P.2d at 1386 (quoting G-K Properties v.
Redevelopment Agency, Etc. (9th Cir. 1978), 577 F.2d 645, 647) .
Rule 37, M.R.Civ.P.,provides a necessary tool for district courts
to manage crowded dockets. Dismissal of an action with prejudice,
however, is the "most severe in the spectrum of sanctions provided
by statute or rule[;] . . . [it1 must be available to the district
court in appropriate cases . . . . " National Hockey League et al.
v. Metropolitan Hockey Club, Inc., et al. (1976), 427 U.S. 639,
643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747, 751 (emphasis added).
Such a severe sanction is inappropriate where, as here, the court
has stated in its order that the sanction for noncompliance will be
something other than dismissal.
The District Court's frustration with the Estate's attorney is
evident in its order of dismissal and entirely understandable.
This case, only one of hundreds on the District Court's docket, has
consumed a great deal of the court's resources for more than five
years and the discovery phase apparently remains uncompleted.
Under the record before us, however, we hold that the District
Court abused its discretion in dismissing the Estate's complaint
with prejudice
Reversed and remanded for further proceedings consistent with
this opinion
We concur: A
-
Chief Justice
Justice James C. Nelson, specially concurring.
I concur with our conclusion that, under the narrow
circumstances here, imposition of the ultimate sanction of
dismissal of the Estate's cause of action with prejudice was too
severe a sanction given the precise nature of the Estate's
discovery abuses. In my own mind, however, this case presents an
extremely close call and I sincerely sympathize with the trial
court and opposing counsel who have had to bear the frustration of
the Estate's attorney's approach to discovery and the trial court's
orders--correctly characterized in our decision as "in your face"
and totally insupportable.
Moreover, while perhaps implicit in our opinion, reopening the
Estate's experts' depositions at the Estate's expense is not the
only remaining sanction available to the District Court under Rule
37(b) ( 2), M.R.Civ.P. To the contrary, there are a variety of
sanctions under the Rule which the trial court might
discretionarily impose.
Finally, if, after all this, counsel for the Estate continues
to persist in his intransigent approach, I would not preclude the
imposition of the sanction of dismissal with prejudice. Further