Ortiz-Lopez v. Sociedad Espanola

Decision Date05 March 2001
Docket NumberET,ORTIZ-LOPE,No. 00-1278,00-1278
Citation248 F.3d 29
Parties(1st Cir. 2001) JOSE ANTONIOAL., Plaintiffs, Appellants, v. SOCIEDAD ESPANOLA DE AUXILIO MUTUO Y BENEFICIENCIA DE PUERTO RICO, ETC., Defendant, Appellee. Heard
CourtU.S. Court of Appeals — First Circuit

John Ward-Llambas with whom Ricardo Ruiz-Diaz and Ward & Ward were on brief for appellants.

Jeannette M. Lopez-de-Victoria for appellee.

Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Selya, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Plaintiffs sued Sociedad Espanola de Auxilio Mutuo Y Beneficencia de Puerto Rico (hereinafter the "hospital") in the district court under, inter alia, the Emergency Medical Treatment and Active Labor Act (EMTALA), the "anti-dumping statute."1 EMTALA requires the hospital to "appropriately screen" and "stabilize" the patient before transferring her to another facility. See 42 U.S.C.A. § 1395dd(a) and (b). Plaintiffs are the family of deceased Rosa Rivera, who died after succumbing to an allegedly self-inflicted overdose of painkillers after arriving at the emergency room of the hospital. Plaintiffs allege in their complaint that the way Rivera was treated by defendant's staff fell short of EMTALA's requirements.

Plaintiffs, however, never reached trial on their EMTALA claim. On the day scheduled for trial, the court found that plaintiffs had committed serious discovery abuses by withholding information they were required to furnish, including information relative to their proposed expert witness. As a sanction, the court ruled that plaintiffs' expert witness would not be allowed to testify. Thereafter, it granted defendant's motion to dismiss2, concluding that plaintiffs could not prove their EMTALA claim without the excluded evidence. This appeal followed.

In the course of the year preceding the scheduled trial, the defendant filed three motions to compel under Rule 37(a) and (b).3 The district court acted on these motions immediately prior to the time the jury trial was scheduled to begin, January 24, 2000. Defendant's allegations in those motions to compel were two-fold.

First, defendant alleged (and the district court later found) that for nearly three years plaintiffs had failed to fully and truthfully answer interrogatories concerning the deceased's medical history as repeatedly requested by the defendant and as required by the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 26(e) (subsection of rule requiring the supplementation of automatic discovery, such as interrogatory answers, when the disclosing party learns "that in some material respect the information disclosed is incomplete or incorrect"). When asked at which hospitals and when and by whom the deceased had been treated in the past, plaintiffs answered by naming only three hospitals but without providing any further information. They claimed not to have any more specific information. When defendant again requested information about Rosa Rivera's prior medical treatment, asking specifically for medical documents and information, such as names of treating physicians and the dates of such treatment (to which plaintiffs had exclusive access), the plaintiffs did not respond.4 As it turns out, the deceased had been hospitalized for five months in 1991 (for what seems to have been a combination of mental health problems and cervical cancer) and was afterwards in and out of hospitals for cancer treatment. Not until the day of trial, during settlement negotiations, did the defendant learn of this from the plaintiffs, although defendant had requested information of this type all along.

During the hearing on the motions to compel, the district court determined that plaintiffs' withholding of this information was in bad faith. "They [the plaintiffs] know when their sister, . . . his wife was hospitalized and they have kept you [their counsel] in the dark as to all of this because certainly five months hospitalization, it certainly is of such magnitude that a husband or a sister or mother would know and would have told you . . . [in the course of] answering interrogatories . . . . I am not implying that you [plaintiffs' counsel] are at fault. It is your client. They have tried to keep defendants in the dark as to your client's problems . . . ."

While the court found purposeful evasion in failing to reveal Rosa Rivera's medical history, supra, this was not the finding that led directly to the dismissal of plaintiffs' case. Defendant's second allegation contained in their last two motions to compel was the basis for the exclusionary ruling that ultimately ended the case. Defendant complained that plaintiffs had failed to comply with the automatic expert disclosure requirements of Rule 26(a)(2)(B), to wit, providing the names of court cases in which their designated expert had previously testified. Defendant successfully argued that this omission should cost plaintiffs the use of their expert without whom they would be unable to make out a case.

Plaintiffs' response to this allegation, in writing and at argument before the district court, was that it had been impossible to produce the required information because their expert did not "keep his records" that way (allegedly the plaintiffs' expert did not keep a list of all the cases in which he testified and only remembered the attorneys' names). Plaintiffs further responded that they had fulfilled Rule 26(a)(2)'s requirement by providing to the defendant the names of some of the attorneys with whom the expert had previously worked.

After hearing arguments on all outstanding motions to compel and, after recessing for a time in which the parties could negotiate further and the court could conduct some independent research into the motions pending, the court thereupon granted defendant's motion to exclude plaintiffs' expert witness. Plaintiffs protested that they would have no way to admit relevant documents other than through their expert witness. The court noted that that being the case, plaintiffs might not be able to make out their EMTALA claim. The court informed both parties they had the afternoon and evening to discuss the matter and recessed until the following morning when the jury would be brought in for opening arguments.

The next day, January 25, 2000, in an attempt to get the court to reverse its previous ruling excluding their expert witness, plaintiffs' counsel produced to defendant and the court -- contrary to their earlier arguments that such information was unavailable -- a list of all the court cases in which their expert witness had previously testified. Calling plaintiffs' belated proffer both "an insult" and "a shame", the district court refused plaintiffs' list and then invited both parties to present arguments as to why the case should or should not be dismissed for failure to state a claim or, in the alternative, for lack of subject matter jurisdiction, the plaintiffs having lost their chance to present evidence as to their one remaining claim. Thereupon defendant renarrated the lengthy story of its frustrating attempts to obtain discovery. At the conclusion of defendant's story, to which plaintiffs had little relevant to add, the district court announced its dismissal of the plaintiffs' case with prejudice.

Plaintiffs say little in their appellate briefs and argument by way of justifying their failure to have provided the above-described discovery. Instead, plaintiffs contend that the district court misapplied the law of this circuit when it excluded the expert evidence as a discovery sanction without first having made a finding that plaintiffs were in violation of a court order to compel. Plaintiffs point to Rule 37(b)(2), which provides:

(b) Failure to Comply With Order

If a party or an officer, director, or managing agent of a party . . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule . . . 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:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

Fed. R. Civ. P. 37(b)(2) (emphasis added). Plaintiffs cite case law from this circuit holding that "[Rule 37]'s language clearly requires two things as conditions precedent to engaging the gears of the rule's sanction machinery: a court order must be in effect, and then must be violated, before the enumerated sanctions can be imposed." R.W. International Co. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991).

Plaintiffs' argument fails because the district court did not act here under Rule 37(b)(2)(B), the provision at issue in Welch Foods. Rule 37(b)(2)(B) does indeed contemplate a threshold determination by the court that the offending party has failed to comply with a court order issued under Rule 37(a). But the same is not true where automatic discovery provisions of Rule 26(a) and 26(e) are violated, triggering subsection (c) of the same Rule 37. See Fed. R. Civ. P. 37(c). Subsection (c) of Rule 37 provides, in relevant part, that should a court find that

a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) [, that party] shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on...

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