The Delaware Supreme Court Holds Monetary Penalties Are the Appropriate Sanction for Discovery Violations, Not Dismissal
Delaware – Discovery
- Medical records do not constitute proper expert disclosures under the Delaware Superior Court Civil Rules.
- A party's failure to comply with the court's scheduling order may result in monetary sanctions and, ultimately, dismissal when appropriate.
In Drejka v. Hitchens Tire Service, Inc., 15 A.3d 1221 (Del. 2010), the Delaware Supreme Court concluded that the Delaware Superior Court abused its discretion in dismissing the plaintiffs' personal injury claims as the sanction for discovery violations. The case arose from a motor vehicle accident which occurred in 2005 in Smyrna, Delaware. A loose tractor trailer tire fell off of a concrete truck and struck the plaintiff 's vehicle. She subsequently lost control of her vehicle, crossed the median and struck another vehicle. In April 2007, the plaintiff and her husband filed suit against Hitchens Tire Service, Inc., the company that installed the tire on the truck, as well as the driver and owner of the truck. (The Delaware Superior Court entered summary judgment in favor of the driver and owner of the tractor trailer as there was no evidence that they were in any way responsible for the accident. That ruling was upheld by the Delaware Supreme Court.)
In June 2008, the Superior Court issued a trial scheduling order, which set a deadline of December 19, 2008, for the plaintiffs' expert's reports or Rule 26(b)(4) disclosures, and a January 16, 2009, deadline for the defendant's expert's reports or Rule 26(b)(4) disclosures. In addition, discovery was to be completed by February 13, 2009. Trial was scheduled for July 27, 2009. In October 2008, in response to the defendant's expert's interrogatories, the plaintiffs reserved "the right to call any and all expert witnesses, upon determination thereof." Six months later, the plaintiffs produced an expert report from one of the plaintiff's treating physicians whom they intended to call as a witness at trial. The report was produced four months after the plaintiffs' expert's disclosure deadline. The defendant thereafter filed a motion in limine to exclude the testimony of the plaintiffs' medical expert, arguing that the report was produced "far too late" and would be "severely" prejudiced at trial. In response, the plaintiff argued that she complied with the court's trial scheduling order by producing copies of her medical records from the expert in October 2008. She also attempted to characterize the expert report as a "supplemental" summary of her medical records. Finally, because the defense medical expert had the plaintiff's medical records and an opportunity to conduct an independent medical examination, she argued that the defendant had a reasonable opportunity to prepare its defense for trial and would suffer no prejudice if the plaintiff's expert were permitted to testify.
The Superior Court concluded that the production of the plaintiff's medical records from the expert was insufficient to satisfy her discovery obligations. Specifically, the trial judge noted that the medical records did not contain the expert's opinions regarding causation or permanency. In addition, the expert report, which was produced four months after the applicable expert disclosure deadline and more than two months after the discovery deadline, was the first notification to the defense of the expert's opinions. The defendant, therefore, did not have the ability to rebut the expert's opinions nor to adequately prepare for cross-examination. Citing its "inherent power 'to manage its own affairs and to achieve the orderly and expeditious disposition of its business'," the Superior Court excluded the testimony of the plaintiff's medical expert. In support of its ruling, the court referenced Superior Court Civil Rule 16(f), which states, "If a party or party's attorney fails to obey a scheduling or pretrial order... the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just..."
Since the plaintiff, thus, had no medical expert to testify on her behalf at trial, the Superior Court entered summary judgment in favor of the defendant. The plaintiff filed a motion for reargument, but it was denied by the trial judge. An appeal was subsequently taken to the Delaware Supreme Court.
As a preliminary matter, the Delaware Supreme Court agreed that the trial court properly rejected the plaintiff's argument that the production of the plaintiff's medical records constituted compliance with the court's scheduling order. It determined, however, that the sanction imposed by the trial court for the plaintiff's discovery violations (essentially, the entry of a default judgment against the plaintiff) was too harsh. While the trial court does have discretion in choosing the appropriate sanction for a recalcitrant party, "the sanction of dismissal is severe and courts are and have been reluctant to apply it except as a last resort." The Supreme Court considered the following six factors in determining whether the sanction was appropriate: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
The Supreme Court found that the plaintiff herself was not to blame for her attorney's conduct. In addition, although the expert report was produced late, the defense could have deposed him prior to trial. Third, although plaintiff's counsel had a history of dilatoriness, there was no evidence he was acting in bad faith. Since no other sanctions were imposed throughout the course of the case, there was no reason to believe that lesser sanctions would be ineffective. Finally, as to the merits of the claim, the court noted that the defense's own medical expert agreed with the plaintiff's expert that the plaintiff suffered permanent soft tissue injuries as a result of the accident.
The Supreme Court held that the most effective sanction for litigants who disregard scheduling orders is that of monetary penalties to be paid by the attorneys, not their clients. If monetary sanctions were imposed more frequently, attorneys would likely not delay in obtaining experts. Indeed, if monetary sanctions were imposed multiple times and proved to be ineffective, the ultimate sanction of dismissal would be much more supportable.
*Tracy, a shareholder who works in our Wilmington, Delaware, office, can be reached at 302.552.4304 or firstname.lastname@example.org.
Defense Digest, Vol. 17, No. 3, September 2011