A trial judge should not have stricken a plaintiff’s expert witnesses as a sanction for violating discovery orders, the Michigan Court of Appeals has ruled, finding that the sanction - which ultimately led to the dismissal of the plaintiff’s medical malpractice case - was too harsh.

In Blackburn v Fabi (Docket No. 336454, unpublished opinion), the Court of Appeals said the decision of Kalamazoo Circuit Judge Gary C. Giguere to strike three of the plaintiff’s expert witnesses was unwarranted. According to the Court, the fact that plaintiff’s counsel did not submit deposition dates for the experts by deadline did not justify the imposed sanction.

“[Plaintiff’s counsel] essentially conceded that he intentionally did not give dates for [the expert] witnesses, but proffered several excuses for not doing so,” the Court of Appeals said. “In any event, merely missing the deadline by itself did not warrant the imposition of the most severe sanction.”

Plaintiff’s counsel did not “engage in the kind of conduct that has been found to warrant dismissal,” the Court of Appeals emphasized. “[He] did not repeatedly violate orders over a significant period of time …. This case … did not involve the kind of egregious conduct that threatened to undermine the integrity of the judicial process itself.”

Medical Malpractice Lawsuit

The plaintiff filed a medical malpractice complaint against the defendants, alleging they failed to diagnose him having a rare disorder that causes the compression of nerves in the lower spine.

Although discovery in the case was contentious, the parties were able to stipulate to certain discovery deadlines. As a result, the trial court ordered that plaintiff’s counsel submit the deposition dates for several of his expert witnesses by the agreed-upon deadline.

When plaintiff’s counsel missed the imposed deadline for certain experts, the trial judge ruled that he “willfully violated” the stipulated order and struck all three of the plaintiff’s experts: neurosurgeon Monte Brian Weinberger, M.D., and Robert Ancell, Ph.D. and Nitin Paranjpe, Ph.D., who were supposed to provide damages testimony.

Because these experts were stricken, the trial court granted summary disposition for the defendants. According to the trial court, the plaintiff could not establish an essential element of his medical malpractice claim without the testimony of one of the stricken experts.

No Willful Discovery Violation

On appeal, the plaintiff argued the trial court erred in striking the three experts as a discovery sanction.  

“After carefully reviewing the record, we agree that the trial court abused its discretion when it in effect dismissed [the plaintiff’s] case as a sanction for violating a discovery order,” the Court said.

Citing Dean v Tucker, 182 Mich App 27 (1990), the Court explained that a trial court must select the “appropriate sanction.” The Court pointed out that, pursuant to Dean, a trial court must consider several factors when determining which sanction to impose, including:

1. whether the violation was willful or accidental;

2. the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses);

3. prejudice to the defendant;

4. actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice;

5. whether there exists a history of the plaintiff's engaging in deliberate delay;

6. the degree of compliance by the plaintiff with other provisions of the court’s order;

7. an attempt by the plaintiff to timely cure the defect; and

8. whether a lesser sanction would better serve the interests of justice.

Although discovery in this case was contentious, the Court noted that discovery did progress and the parties were sometimes able to resolve their disputes by stipulation. “Moreover, the record suggests that much of the delay involved difficulties related to the busy trial schedules of the lawyers involved in this litigation,” the Court pointed out.

Despite this, the trial court found that plaintiff’s counsel willfully violated the discovery order and held that counsel’s failure to comply with the order warranted striking all three experts, which basically had the effect of dismissing the plaintiff’s case, the Court observed. “That is, the trial court felt that [counsel’s] failure amounted to misconduct that warranted dismissing his client’s case. However, it does not appear that [counsel] actually violated the order with regard to all three experts.”

According to the Court, the trial judge misinterpreted an email that plaintiff’s counsel sent defense counsel a few days prior to the imposed deadline. The email requested that Weinberger’s deposition be rescheduled. However, “the trial court found that [plaintiff’s counsel] withdrew the date for Weinberger and did not timely provide a different date, which – in its view – amounted to a violation of the order with regard to Weinberger. Contrary to the trial court’s impression, at no point within this e-mail did [plaintiff’s counsel] formally withdraw the date he earlier provided.”

Rather, the plaintiff’s email “impliedly suggested additional earlier dates and inquired about the availability of counsel for [defendants] Fabi and Bronson on … earlier dates,” the Court said. “Although the e-mail might have been more clearly stated, it does not on the surface appear that [plaintiff’s counsel] was engaging in gamesmanship or otherwise trying to circumvent the stipulated order.”

Therefore, the trial court “clearly erred to the extent that it found that [plaintiff’s counsel] failed to provide a date for Weinberger’s deposition before the deadline and clearly erred to the extent that it found that he formally withdrew the original date in his e-mail …,” the Court concluded.

‘Most Powerful Weapon’ Unwarranted

The Court of Appeals continued by pointing out that certain defense lawyers “might have deliberately exploited the ambiguity” in the email sent by plaintiff’s counsel by choosing to respond to it after the discovery deadline had passed.

“If counsel for [defendants] Fabi and Bronson had understood that [plaintiff’s counsel] had withdrawn the date, he could have responded and informed [plaintiff’s counsel] of his understanding,” the Court wrote. “Had he wished to hold [plaintiff’s counsel] to his original date, he also could have notified [him] of that fact.”
However, defense counsel “chose not to respond” until after the deadline passed, the Court noted. In addition, defense counsel later notified plaintiff’s counsel that he had accepted a deposition date for Weinberger which was earlier than previously provided, the Court pointed out. “Thus, counsel for [defendants] Fabi and Bronson proceeded as though he agreed with the changes only to later move to strike [the plaintiff’s] witnesses and seek the dismissal of his case.”

The Court further emphasized that although plaintiff’s counsel did not timely provide deposition dates for his two economic experts, had the trial court let Weinberger testify there “plainly” would not have been grounds for dismissing the plaintiff’s case.

Upon examining the factors set forth in Dean, the Court concluded the trial court erred in striking the plaintiff’s experts as a sanction. “The record does not support the trial court’s conclusion that it had to use the most powerful weapon in its arsenal to respond to [the] partial failure to comply with a stipulated order for discovery,” the Court wrote.

Because the trial court granted summary disposition on the ground that the plaintiff could not establish an essential element of his claim without the testimony of Weinberger, the Court vacated summary disposition for the defendants.

“We remand this case to the trial court for further proceedings consistent with this opinion,” the Court concluded. “On remand, the trial court may consider - but is not required to consider - whether a lesser sanction might be warranted for the violation of the discovery order at issue in this appeal.”