Woodson v. Surgitek, Inc.

• Decision Date: 19 July 1995
• Docket Number: No. 94-60008,94-60008
• Citation: 57 F.3d 1406
• Parties: Beverly WOODSON, as Executrix of the Estate of Hayes Hudson, Deceased, Plaintiff-Appellant, v. SURGITEK, INC., Medical Engineering Corp., and Bristol-Myers Squibb Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1406

57 F.3d 1406

Beverly WOODSON, as Executrix of the Estate of Hayes Hudson, Deceased, Plaintiff-Appellant, v. SURGITEK, INC., Medical Engineering Corp., and Bristol-Myers

Squibb Co., Defendants-Appellees.

No. 94-60008

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

July 19, 1995.

Veronica L. Davis, Dallas, TX, for appellant.

W. Wendell Hall, Renee A. Forinash, Fulbright & Jaworski, San Antonio, TX, Mary (Marcy) Hogan Greer, Fulbright & Jaworski, Austin, TX, for Surgitek, Inc.

Appeals from the United States District Court for the Southern District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiff appeals the district court's judgment dismissing the plaintiff's complaint with prejudice. The district court ordered the dismissal under its inherent power as a sanction for delays caused by the plaintiff. Finding that the district court did not abuse its discretion, we affirm.

I.

Unfortunately, to review the sanction of dismissal ultimately imposed by the district court, we must recount the long and tortured course this litigation has taken. On December 4, 1991, the plaintiff, Hayes Hudson, ¹ through his attorney, Veronica Davis, filed suit in the 56th Judicial District Court of Galveston County, Texas. Hudson alleged that the defendants, Surgitek, Inc., Medical Engineering Corporation, and Bristol-Myers Squibb, were guilty of negligence and gross negligence in the manufacturing and marketing of penile prosthetic devices, two of which had been surgically implanted into plaintiff's body and failed. The implantation of these devices was done, apparently, to counteract impotence caused by the advancement of plaintiff's severe diabetes.

On January 15, 1992, the defendants removed the case to federal district court based on diversity of citizenship and it was assigned to Judge Lake of the Southern District of Texas, Houston Division. The case was ordered to proceed under the Cost and Delay Reduction Plan of the Civil Justice Reform Act providing for accelerated discovery. However, the record reflects a conspicuous lack of activity until June 3, 1992, when a joint discovery/management plan was filed. All parties admitted that the accelerated discovery had not occurred. The defendants' counsel claimed inadvertence while the plaintiff's counsel, Veronica Davis, claimed that her personal illness was the reason for noncompliance.

At a scheduling conference held June 10, 1992, Judge Lake granted the plaintiff's unopposed motion to transfer venue, and transferred this case to the Galveston Division of the same district. At the same time, Judge Lake entered a docket control order which, among other things, set December 18, 1992, as the deadline for the completion of discovery. In that status, the case was transferred to the docket of Judge Samuel B. Kent.

After the transfer of venue, the district court entered an order announcing that a scheduling conference would be held on November 5, 1992. Again, the record reflects a complete lack of activity prior to the scheduling conference. A new docket control order was entered, which provided, among other things, that plaintiff would designate his expert witnesses no later than December 18, 1992, that defendants would designate their expert witnesses no later than January 29, 1993, that discovery would be completed by March 5, 1993, and that trial would begin March 22, 1993. Naturally, these events did not come to pass as scheduled.

On January 5, 1993, plaintiff filed a pleading entitled "Request for a Jury Trial and Change of Trial Date," which alleged that plaintiff had suffered medical complications "believed to be the result of prosthetic fluid leaking into the body of the plaintiff," which required additional medical confirmation. Since the alleged leaking fluid was a new development, unknown at the time of the filing of the original complaint, and was possibly "critical to the instant case," plaintiff requested a continuance. On the same day of the filing of the request for continuance, the plaintiff filed a "Motion to Compel" challenging the defendants' asserted objections to her interrogatories and requests for production. This pleading, filed by Ms. Davis, also included allegations of defense counsel's bad faith; it was at this point, according to the district court, that the proceedings began to disintegrate.

The plaintiff's motions were referred to a magistrate judge and were heard on January 25, 1993. Because of the plaintiff's apparently poor medical condition, the magistrate postponed ruling on the request for continuance until February 11, 1993. The parties were instructed to initiate a telephone conference on that date to update the Court on the plaintiff's medical status. The magistrate extended the defendants' expert witness designation deadline until February 8, 1993.

The magistrate granted in part and denied in part plaintiff's Motion to Compel and ordered answers to the interrogatories to be made by February 8, 1993, conditioned upon plaintiff's execution of a confidentiality agreement. Because of the nearing trial date, the magistrate scheduled a March 2, 1993 hearing to address, as necessary, any lingering discovery problems. Finally, because plaintiff's jury request was not timely, and was opposed by the defendants, the magistrate solicited a prompt motion from the plaintiff pursuant to Federal Rule of Civil Procedure 39(b).

On January 26, 1993, the defendants filed an opposed motion for leave to amend their original answer to respond more specifically to the allegations of plaintiff's complaint and to clarify and expand the affirmative defenses they wished to assert. The magistrate granted defendants' motion, and the amended answer was filed that same day.

On February 5, 1993, the defendants filed a "Motion to Strike Plaintiff's Late Designated Experts or, in the alternative, to Compel Production of Experts' Reports." The motion also contained a request for continuance. The motion alleged that plaintiff's expert witnesses were designated several days too late and, regardless, that no expert reports had been supplied. The docket control order specifically required that the designation of expert witnesses be accompanied by the contemporaneous tender of each expert's preliminary written report. The magistrate judge immediately attempted to schedule a hearing on the motion by telephone. However, plaintiff's counsel Davis was unavailable at that time and then failed to contact the Court, as ordered, by noon of that day in order to coordinate the hearing. In fact, Davis never contacted the magistrate by phone, electing instead to forward a written response by facsimile to the clerk on February 8, 1993.

The plaintiff's written response stated that expert reports had not been produced because none had been prepared, with the exception of the implantation and explantation reports of Dr. Michael Warren, the surgeon who performed those procedures. Plaintiff's counsel argued that plaintiff should not be required to produce a document that is not in existence. Ms. Davis apparently offered no explanation for the failure to have such reports prepared except that because the plaintiff was still undergoing treatment preparation of such reports would be premature.

The magistrate excused the tardy designation, but required written reports from plaintiff's identified experts, Drs. Warren and Rogers, to be provided no later that February 16, 1993, with the warning that failure to provide the reports would result in the non-complying expert being stricken. The defendants' expert witness designation deadline was extended to March 5, 1993, and discovery was extended to March 17, 1993. The defendants' request for a continuance was denied, but the due date for the joint pretrial order and the date of the pretrial conference were extended. Both parties' requests for sanctions were denied.

On February 9, 1993, the plaintiff filed a "Motion for Protective Order/Motion to Quash Taking of Depositions," complaining that the depositions of Drs. Warren and Rogers and others were scheduled without reasonable notice. The motion also alleged that the plaintiff, health permitting, intended to have Dr. Warren remove the penile device still in plaintiff's body prior to trial and that the defendants had withheld from production the first penile device thereby frustrating plaintiff's ability to determine the cause of his medical problems. Plaintiff's counsel contended that these two problems needed to be solved before the doctors' depositions would be completely meaningful. The motion also challenged the defendants' attempt to take Davis' deposition on the issue of attorneys' fees.

The defendants filed a response to plaintiff's motions the same day. The defendants did not object to the postponement of the scheduled depositions, but alleged that Davis had rebuffed all efforts by defense counsel to confer prior to the filing of the motion regarding alternate mutually convenient depositions dates. The defendants attached as an exhibit to their response a letter from defense counsel to Ms. Davis dated February 8, confirming that the depositions were cancelled and in the process of being rescheduled.

The magistrate held a telephone conference on plaintiff's motion to quash on February 10, 1993. The magistrate quashed the doctors' depositions, subject to same being rescheduled prior to March 5, 1993. The magistrate also quashed the deposition of Davis in favor of submission of a detailed report of her attorney's fees by March 12, 1993. In addition, the magistrate ordered the defendants to produce the first prosthetic device.

On February 16, 1993, the plaintiff tendered an expert report from Dr. Warren. The magistrate held a telephone conference the same day on the defendants' claims that the tendered report was not sufficient. The magistrate ordered that the report be supplemented by the...