Freeland v. Amigo

• Decision Date: 10 January 1997
• Docket Number: No. 95-4195,95-4195
• Citation: 103 F.3d 1271
• Parties: Donnie Diane FREELAND; Lyle M. Freeland, Plaintiffs-Appellants, v. Dr. Isidro AMIGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1271

103 F.3d 1271

36 Fed.R.Serv.3d 1481

Donnie Diane FREELAND; Lyle M. Freeland, Plaintiffs-Appellants, v. Dr. Isidro AMIGO, Defendant-Appellee.

No. 95-4195.

United States Court of Appeals Sixth Circuit.

Argued Nov. 13, 1996.

Decided Jan. 10, 1997.

Neil Freund (argued), Lisa A. Hesse (briefed), Freund, Freeze & Arnold, Dayton, OH, for Donnie Diane Freeland.

Neil Freund (argued), Freund, Freeze & Arnold, Dayton, OH, for Lyle M. Freeland.

Kenneth Steven Blumenthal, Joseph Francis Elliott (argued and briefed), Porter, Wright, Morris & Arthur, Columbus, OH, Randall W. Knutti, Ulmer & Berne, Columbus, OH, for Isidro Amigo.

Before: CONTIE, SUHRHEINRICH, and MOORE, Circuit Judges.

CONTIE, Circuit Judge.

Plaintiffs-appellants, Donnie Diane Freeland and her husband Lyle M. Freeland, appeal the district court's grant of summary judgment to defendant-appellee, Dr. Isidro Amigo, in this diversity medical malpractice action.

I.

Plaintiff, Donnie Diane Freeland, presented herself to defendant, Dr. Amigo, on August 23, 1993, complaining of weight loss, nausea, and various other symptoms. Dr. Amigo diagnosed a possible calculus cholecystitis and scheduled a laparoscopy with possible cholecystectomy. Plaintiff was admitted to Selby General Hospital for surgery and consented to "insertion of a scope with a light source into the abdomen, examination of the abdomen, possible excision of the gallbladder, [and] possible abdominal incision."

On September 23, 1993, during surgery, Dr. Amigo performed a laparoscopic cholecystectomy (removal of the gallbladder). After the doctor had removed plaintiff's gallbladder, he proceeded to repair a left inguinal hernia through the laparoscope. Following surgery, plaintiff complained and the nurse noted complaints "of left leg from groin area to knee area numb." On October 19, 1993, plaintiff underwent a electromyogram with an impression given of left femoral nerve neuropathy. Plaintiff also had extensive physical therapy and left femoral cutaneous nerve blocks at the Cleveland Clinic.

On September 9, 1994, plaintiffs filed suit against defendant, Dr. Amigo, alleging Ohio law claims of medical malpractice and battery. Plaintiffs alleged that Dr. Amigo had been negligent in the performance of the surgery on Mrs. Freeland when he permanently injured her left femoral nerve. Plaintiffs also sued Dr. Amigo for battery, alleging that, without any prior discussion or consent, he decided to explore her abdomen and then, without consent, attempted a left inguinal herniorrhaphy with a laparoscopic instrument. As a result, he damaged the femoral nerve, causing Mrs. Freeland to suffer great pain and substantial disability. The Freelands also alleged a derivative loss of spousal services and consortium by Mr. Freeland.

On January 11, 1995, a preliminary pretrial conference was held before the district court. On January 24, 1995, a final pretrial order was filed by the district court, setting a trial date for October 2, 1995, and stating in part:

No depositions may be scheduled to occur after the discovery cutoff date. All motions, requests for admissions, or other filings that require a response must be filed sufficiently in advance of the discovery cutoff date to enable opposing counsel to respond by rule prior to that date.

Counsel may, by agreement, continue discovery beyond the cutoff date. No supervision or intervention by the Court, such as a Rule 37 proceeding, will occur after the cutoff date without a showing of extreme prejudice.

With a trial date set for October 2, 1995, all dispositive motions were to be filed by August 3, 1995, and the cutoff date for discovery was August 31, 1995. A final pretrial conference was scheduled for September 22, 1995. The order indicated that sanctions would be imposed for failure to comply with these dates, stating:

Counsel are expected to comply literally with this pretrial order. The Court will consider the imposition of appropriate sanctions in the event of non-compliance, specifically, failures of counsel to comply with this order could result in sanctions, including limitations on evidence and witnesses permitted at trial, and dismissal of the action.

On February 1, 1995, defendants made a motion for continuance of the trial, which the district court never ruled on. On March 31, 1995, plaintiffs disclosed a list of their witnesses, including expert witnesses. On April 25, 1995, mediation was scheduled for June 21, 1995. Although plaintiffs attempted to depose Dr. Amigo earlier, Dr. Amigo was not available for deposition until two days before the mediation date. On June 20, 1995, defendant's attorney filed a motion for cancellation of mediation. The magistrate granted this motion and rescheduled mediation for December 1995.

On June 30, 1995, Dr. Amigo filed his disclosure of expert and lay witnesses. During June, July, and August 1995, Dr. Amigo's counsel made numerous telephone calls and wrote five letters to plaintiffs, requesting the scheduling of depositions for plaintiffs' expert witnesses before August 31, 1995, the discovery cutoff date. Plaintiffs' attorney did not respond to these requests.

Plaintiffs' attorney, Mr. Wolske, conceded that he did not respond to defendant's requests to depose plaintiffs' expert witnesses by August 31, 1995, but alleged that on prior occasions, he had worked with defendant's law firm and frequently had scheduled depositions, by agreement, beyond the court's deadlines. Wolske alleged that communications with defendant's attorney about an agreeable date for the deposition of plaintiffs' expert witnesses continued after the discovery cutoff date of August 31, 1995, indicating to him that there was an agreement to depose beyond the court's deadline. The record indicates that defendant agreed to depose two of plaintiffs' expert witnesses on September 25, 1995. Plaintiffs alleged that contrary to the ongoing discussions, defendant's attorney subsequently decided to revoke his agreement to continue discovery after the August 31st deadline.

On September 8, 1995, defendant notified plaintiffs that he was going to file a motion for summary judgment, and although he would continue to try to schedule depositions, he was not waiving a summary judgment motion. On the same day, defendant filed a motion for leave to file a motion for summary judgment beyond August 3, 1995, which was the cutoff date for dispositive motions specified in the court's pretrial order of January 24, 1995. On September 15, 1995, defendant filed a motion for a protective order to preclude plaintiffs from deposing defendant's expert witness and a motion for an order to preclude the testimony of plaintiffs' expert witnesses at trial because of plaintiffs' alleged failure to meet discovery deadlines.

Originally, the pretrial conference was scheduled for Friday, September 22, 1995. On September 8, 1995, the district court rescheduled the conference for Wednesday, September 20th. Plaintiffs contended that they received notice of this change on September 11, 1995. A joint final pretrial statement was due one week before the pretrial conference. Thus, the joint pretrial statement became due on September 13, 1995, two days after plaintiffs received notice of the schedule change.

Plaintiffs' attorney, Wolske, alleged that he made efforts to assist in the preparation of a joint pretrial statement, but defendant was uncooperative. Defendant's attorney, Mr. Elliott, alleged that Wolske made no attempt to discuss a joint pretrial statement with him prior to the due date. Because Elliott did not hear from Wolske in time, he decided to file a separate pretrial statement for defendant on September 13, 1995, the date it was due. Wolske submitted a separate pretrial statement for plaintiffs at the pretrial conference on September 20, 1995.

At the pretrial conference, the district court indicated that plaintiffs' pretrial statement was not timely filed, and, therefore, defendant's timely filed pretrial statement would govern the trial. Mr. Elliott urged the court to dismiss the case for plaintiffs' failure to comply with the court's pretrial order of January 24, 1995, which had specified a discovery cutoff date of August 31, 1995, and stated that a joint pretrial statement was due one week before the final pretrial conference.

Plaintiffs' attorney argued that he had been led into a trap by defendant's attorney. Wolske argued that the January 24, 1995 order allowed the parties to waive the discovery cutoff date by agreement and that Mr. Elliott had agreed to continue discovery beyond the August 31st cutoff date. Wolske contended that defendant's attorney then revoked his prior agreement in order to get the case dismissed on the basis of plaintiff's alleged failure to meet the August 31, 1995 discovery deadline.

The district court made no ruling about whether the discovery cutoff date had been waived. The court indicated that it would not accept plaintiffs' untimely filed pretrial statement, but that it would allow the testimony of plaintiffs' expert witnesses at trial because they had been listed on defendant's timely filed pretrial statement. The court then scheduled a hearing for the following day to decide on the three pending motions which had been filed by defendant.

The next day at the September 21st hearing, the court reversed its position of the previous day and stated it had decided to preclude plaintiffs' expert witnesses from testifying at trial as a sanction for Wolske's discovery abuses. The court orally simultaneously granted four motions of defendant: (1) a motion to preclude expert testimony; (2) a motion for a protective order; (3) a motion for leave to file summary judgment; and (4) a motion for summary judgment.

In granting the motion to preclude the testimony of plaintiffs' expert witnesses, the district court relied on Wolske's failure to provide a list of expert witnesses and exhibits in a final pretrial statement by the...