No. 89-323
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
ARDIS JEROME,
Plaintiff and Appellant,
-vs-
WILLIAM H. PARDIS, D.C., and
PARDIS CHIROPRACTIC CLINIC, P.C.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph C. Engel, 111, Great Falls, Montana
For Respondent:
J. David Slovak and Neil E. Ugrin; Ugrin, Alexander,
Zadick & Slovak, Great Falls, Montana
Submitted on Briefs: Oct. 25, 1989
De.cided: December 6, 1989
Filed:
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
This appeal involves the imposition of sanctions under
Rule 37, M.R.Civ.P. for abuses of discovery. Plaintiff Ardis
Jerome appeals the order of the Eighth Judicial District
Court, Cascade County, granting defendants' , William H.
Pardis and Pardis Chiropractic Clinics, P.C., motion to
dismiss Jerome's cause of action with prejudice. We affirm.
Appellant Jerome raises a sole issue on appeal: Did the
District Court abuse its discretion by dismissing Jerome's
lawsuit on the grounds that she violated Rule 37, M.R.Civ.P.?
Jerome's complaint alleges that during treatment in
early June of 1984, Dr. Pardis negligently caused a
herniation of a disk at the L4/L5 level of her spine. After
filing of the complaint, Pardis served Jerome with several
interrogatories and requests for production. The
interrogatories requested Jerome to identify all persons who
had treated her back condition and to supply information
regarding previous or subsequent injuries, illness or
problems involving her lower back. The requests required
production of all Jerome's medical records.
Jerome was served with the request for production on
July 20, 1987. On December 8, 1987 Jerome produced medical
records from various health care providers, including records
from Dr. Mark T. Stoebe, D.C., the treating chiropractor who
examined Jerome immediately after the visits with Pardis that
allegedly caused her injury. Dr. Stoebe's records included a
letter dated October 8, 1986 to Jerome's counsel, in response
to questions By Jerome's counsel regarding diagnosis of
Jerome's condition and whether Pardis' treatment was
appropriate. This letter produced by Jerome from Stoebe's
records stated:
The following is a response to your letter dated
September 22, 1986. I cannot state with certainty
that Dr. Pardis treatment did in effect cause the
low back condition that Ardis Jerome came to me
complaining of, in that I did not see the patient
prior to her adjustment on 6-7-84, although the
condition that I examined on 6-8-84 was certainly
an acute left lateral grade I1 disc protrusion of
the L4 intervertebral disc. It is my experience
that conditions of this type have some kind of
traumatic history and I see no indication of
previous trauma in Dr. Pardis notes. Also I note
an absence of any orthopedic, neurological, or
x-ray findings. Furthermore, the patient indicated
on 6-8-84 that she had no previous history of sharp
low back pain prior to her visit on 6-7-84.
If you have any further questions. . . .
At the September 1, 1988 deposition of Dr. Stoebe, Pardis
learned that the letter produced by Jerome's counsel was an
apparent rewrite of Dr. Stoebe's original letter of October
8, 1986. The longer version omitted the second to the last
sentence and also included additional language after the
first sentence, damaging to plaintiff's case:
. . . First of all a spondylolisthesis implies a
congenital malformation of the pars inter
articularis. The term applies to an anterior or
forward slipping of the the body of the lower
lumbar vertebrae relative to the pedicles.
Research as of the last six months has pointed to a
possible traumatic cause of this condition,
although it is still speculative at this point.
The reason for this theory is that a
spondylolisthesis has never been found in any
patient under 5 years of age.
- appears as though the adjustments employed by
It
Dr. Pardis on6-7-84 were correct and indicated for
-
his findings, ( t t m t i n u e s n r x
sentence as quoted above. )
At his deposition Stoebe testified that both letters were in
his file and that the entire file was supplied to Jerome's
counsel. Jerome's counsel claims that the original letter
was probably discarded, and did not need to be produced
anyway because it supported and confirmed plaintiff's theory
of liability and thus was not relevant to defendant's case.
Jerome also produced only two pages of a handwritten
three page history prepared by Jerome when she first visited
Dr. Stoebe. The omitted page indicates in Jerome's own
writing that she hurt her back mo~ring and lifting tables
about two weeks prior to visiting Stoebe and before she
visited Pardis, and that she had back trouble for the last 25
years.
Additionally, after assurances by Jerome's counsel that
full and complete responses to the production requests and
interrogatories had been supplied, Jerome failed to identify
a number of her past health care providers and subsequent
depositions indicated that only a fraction of the medical
records were supplied. Jerome also indicated in answering
the interrogatories that she had never filed an insurance
claim regarding her back problems. A subsequent deposition
later revealed that a claim was in fact made in 1979.
On October 6, 1988, Pardis filed his motion for
sanctions, alleging that Jerome and her counsel had committed
blatant discovery abuses in violation of Rule 37, M.R.Civ.P.
In its order of February 10, 1989, the District Court found
that the discovery tactics pursued by the plaintiff had
caused substantial prejudice to defendants that could not be
corrected without defendants incurring considerable expense,
particularly in re-deposing physicians who had relied on
incomplete medical records. Because of the totality of the
circumstances regarding the alleged abuses and the severity
of the prejudice suffered by defendants the District Court
dismissed Jerome's claim with prej,udice, resulting in this
appeal.
This Court has followed the rationale of the United
States Supreme Court's holding in National Hockey League v.
Metropolitan Hockey Clubs, Inc. (1976), 427 U.S. 639, 96
S.Ct. 2778, 49 L.Ed.2d 747, in adopting a strict policy of
non-leniency toward discovery abusers and of allowing
sanctions for deterrence purposes. Owen v. F.A. Buttrey Co.
.
(1981), - Mont - , 627 P.2d 1233, 38 St.Rep. 714. The
authority used by the District Court to dismiss Jerome's case
is found at Rule 37 (d), M.R.Civ.P., which is identical to its
federal counterpart, and provides:
Failure of party to attend at own deposition
or serve answers to interrogatories or respond to
request for inspection. If a party or an officer,
director, or managing agent of a party or a person
designated under Rule 30(b) (6) or 31(a) to testify
on behalf of a party fails (1) to appear before the
officer who is to take his deposition, after being
served with a proper notice, or (2) to serve
answers or objections to interrogatories submitted
under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response
to a request for inspection submitted under Rule
34, after proper service of the request, the court
in which the action is pending on motion may make
such orders in regard to the failure as are just,
and among others it may take any action authorized
under paragraphs (A), ( B ) , and (C) of subdivision
(b)(2)of this rule. .. .
Rule 37(d), M.R.Civ.P. The actions authorized by Rule
-
37 (b) (2) (A) (C) include dismissal. Rule 37 (b)(2)(C) .
Rule 37(b) provides for sanctions for failure to comply
with a court order compelling discovery. State ex. rel.
Burlington Northern v. District Court (1989), 779 P. 2d 885,
893, 46 St.Rep. 1625, 1634. Rule 37 (d) authorizes the
imposition of sanctions for 3 specific failures--1) failure
to attend at one's own deposition, 2) failure to serve
answer's to interrogatories, or 3) failure to serve a written
response to a request for production--without first requiring
that the non-responding party be ordered to comply. No
second chance is contemplated. Thus, there is an important
distinction between Rule 37 (b) and Rule 37 (d): under section
(b) sanctions are not available without a previous court
order; under section (d) no order is necessary, however,
sanctions are only authorized for the three enumerated
failures. Burlington Northern, 779 P.2d at 893. We have
acknowledged this distinction in several former cases. - See
First Bank Billings (N.A.) v. Heidema (1986), 219 Mont. 373,
711 P.2d 1384; Dassori v. Roy Stanley Chevrolet Co. (1986),
224 Mont. 178, 728 P.2d 430; Thibodeau v. Uglum (1982), 201
Mont. 260, 653 P.2d 855.
Pardis contends that a prior motion to compel was not
necessary in this case because the sanction of dismissal was
imposed on the grounds of the abuses enumerated in Rule
37(d), rather than the more usual situation of a partial
failure to comply. However, an immediate sanction imposed
under Rule 37(d) generally contemplates a complete failure or
outright refusal to cooperate. - Crowley, William F. ,
See
Montana Pleading and Practice Forms, p. 175, 183, (1983).
In the case at bar, the abuses complained of do not
constitute an outright refusal to comply with discovery
rules. Rather, Jerome has simultaneously complied with
Pardis' discovery requests on a partial level while actively
withholding relevant information and documents in an attempt
to conceal her medical history. Pardis apparently did not
move for an order compelling discovery because it was not
clear the information was being withheld until depositions
were taken and the prejudice and taint of the abuses already
complete.
In its order dismissing Jerome's case, the District
Court relied on G.K. Properties v. Redevelopment Agency (9th
Cir. 1978), 577 F.261 645, where the Ninth Circuit Court of
Appeals held:
Where it is determined that counsel or a party has
acted willfully - - - faith in failing to
or in bad
comply with the rules of discovery - -
or with court
orders enforcing the rl
u; or in flagrant disregard
of those rules or order?, it is within the
discretion of the trial court to dismiss the action
or to render judgement by default against the party
responsible for non-compliance. Fed.R.Civ.P.
.
37 (b) (Emphasis added.)
577 F.2d at 647. The trial judge based his decision on Rule
37(d), however, the Ninth Circuit' decision in -- G.K.
Properties is actually based on subdivision (b) of the Rule.
As we noted earlier, this case does not involve one of the
three complete failures to comply with discovery enumerated
in Rule 37 (d). Furthermore, we decline to adopt the "bad
faith" rationale of G.K. Properties as authority for imposing
sanctions under Rule 37(b) without a prior court order in
this case. Rather, we affirm the ruling of the District
Court on the basis of Rule 26(g), M.R.civ.P.
In cases where a trial judge sits without a jury and no
testimony is taken, the scope of review on appeal is much
broader, and this Court is free to make its own examination
of the entire case and to make a determination in accordance
with its findings. Shimsky v. Valley Credit Union (1984),
208 Mont. 186, 189-190, 676 P.2d 1308, 1310. We will also
uphold the result reached below if correct, regardless of the
reasons given for the conclusion. Shimsky, supra, Steadman v.
Halland (1982), 197 Mont. 45, 52, 641 P.2d 448, 452. The
result reached by the District Court is correct on the basis
of Rule 26(g), M.R.Civ.P. The Rule wa.s enacted in 1984 a l m s
with the amendments to its parallel, Rule 11, M.R.Civ.P,
which governs abuses in pleadings and motion practice. Rule
26 (9) provides:
Rule 26 (g) Signing of discovery requests,
responses, and objections. Every request for
discovery or response or objection thereto made by
a party represented by an attorney shall be signed
by at least one attorney of record in his
individual name. ... The signature of an attorney
or party constitutes a certification that he has
read the request, response, or objection, and that
to the best of his knowledge, information, and
belief formed after a reasonable inquiry it is (1)
consistent with these - rules a n d warranted by
existinq law or a qood faith arsument for the
extension, modificat~on, or reversal of existing
law; (2) not interposed for any improper purpose,
such as to harass or to cause unnecessary dely or
needless increase in the cost of litigation; and
(3) --
not unreasonable or unduly burdensome or
P
expensive, given the needs of the case, the amount
in controversy, and the importance of the issues at
stake in the litigation. . . .
If a certification is made in violation of
this rule, the court, upon motion or upon its own
initiative, shall impose upon the who made
the certification, the party on whose behalf the
request, response, or objection is made, or both,
an appropriate sanction. . . . (~mphasisadded.
Rule 26 (g) M.R.Civ.P. By signing responses to the discovery
requested by Pardis, Jerome and her counsel certified that
the responses were (1) consistent with the rules of
discovery, (2) not interposed for for any improper purpose,
and (3) not unreasonable or unduly burdensome. The
certification fails on all three counts. The responses
attempted to mislead Pardis by concealing information
material to his defense. The responses would create an
unreasonable burden and increased expense to Pardis in
re-deposing witnesses whose prior testimony was given without
the benefit of the improperly withheld information. Finally,
withholding of this information by the plaintiff is clearly
not consistent with the rules and spirit of discovery.
Dismissal with prejudice is an appropriate sanction in this
case. The District Court did not abuse its discretion.
AFFIRMED .