Alt v. Cline, s. 96-3356
| Decision Date | 25 November 1997 |
| Docket Number | 96-3588,Nos. 96-3356,s. 96-3356 |
| Citation | 572 N.W.2d 895,215 Wis.2d 204 |
| Parties | In re the Imposition of Sanctions in Dawn ALT et al v. Richard S. CLINE et al. George BURNETT, Appellant, d v. Dawn ALT, Mark Alt and Cody Alt, Respondents. Dawn ALT, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Plaintiffs-Respondents, Dr. Ernesto L. Acosta, Appellant, d v. Richard S. CLINE, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Defendants. |
| Court | Wisconsin Court of Appeals |
On behalf of the appellants, Dr. Ernesto L. Acosta and George Burnett, the cause was submitted on the briefs of George Burnett of Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay.
On behalf of the plaintiffs-respondents, Dawn Alt, Mark Alt and Cody Alt, the cause was submitted on the brief of George H. Senteney, of Guelzow & Senteney, Ltd. of Eau Claire.
On behalf of the Wisconsin Academy of Trial Lawyers, an amicus curiae brief was filed by Mark L. Thomsen of Cannon & Dunphy, S.C. of Brookfield.
Before CANE, P.J., and HOOVER and WEDEMEYER, JJ.
Ernesto L. Acosta, M.D., and his attorney, George Burnett, each appeal orders entered following plaintiffs' motion to compel discovery and impose sanctions. 1 Acosta seeks reversal or, alternatively, clarification of the trial court's order requiring him to answer questions at deposition as a nonparty expert witness. Burnett contends the trial court erroneously ordered sanctions against him under § 804.12(1) and (2), STATS. We affirm both orders.
This appeal stems from Acosta's July 23, 1996, deposition. The deposition was plaintiffs' second attempt to depose him. Prior to Acosta's deposition, Burnett wrote at least three letters to plaintiffs' counsel attempting to reach an agreement on the type of questions Acosta would answer in his capacity as a nonparty, unretained expert witness. Plaintiffs maintained they were entitled to broad discovery under § 804.01(2)(a), STATS. No agreement was reached, and Burnett did not seek a protective order.
Acosta's deposition proceeded for approximately one hour with little incident. Burnett did object to three questions posed; he instructed Acosta not to answer two of those questions on the grounds the questions called for expert testimony to which plaintiffs were not entitled because they had not retained Acosta as an expert. Attorney James A. Johnson, guardian ad litem for Cody Alt, and Burnett discussed the situation on the record and agreed to adjourn the deposition in light of Burnett's stated position to instruct Acosta not to answer questions requiring, in Burnett's opinion, expert testimony.
Thereafter, on August 6, plaintiffs filed a motion to compel Acosta's testimony, seeking the following:
1. For an Order compelling discovery pursuant to sec. 804.12(1) and 804.12(2), Stats., and accordingly, for an Order permitting plaintiffs to continue the deposition of Dr. Ernesto Acosta and permitting plaintiffs to inquire into Dr. Acosta's opinions insofar as they relate to the issues of this case, without further impediment or interference.
2. For an Order that pursuant to sec. 805.03 and sec. 804.12(2), Stats., the Court find the witness, Dr. Ernesto Acosta, and the defendants ... failed to comply with Wisconsin Statutes governing civil procedure, including sec. 804.05(4), Stats., and have failed to comply with prior orders of this court. Accordingly, in view of this conduct and the prior conduct previously presented to the Court, that the Court impose upon said defendants, the sanctions of sec. 804.12(2)(a), Stats., including the striking of [defendants'] defenses herein.
The motion hearing was held on August 28. The trial court made an oral decision regarding discovery at that time and granted the request for sanctions, instructing plaintiffs' counsel to submit their costs and fees for a determination of the amount of sanctions. Acosta's third deposition was scheduled for November 7, 1996. The trial court issued its written discovery order on November 5 and its order for sanctions on November 7.
The court's November 5 discovery order consists of the following:
THIS MATTER having come on the Motion of the plaintiffs ... and all parties and Dr. Ernesto L. Acosta, appearing by counsel as noted in Page 2 of the attached transcript, and the Court having heard oral argument on August 28, 1996, the Court makes the Findings and Order consistent with those in the transcript of the Decision hearing of August 28, 1996, which is attached hereto and incorporated in total to this Order.
The fourteen-page transcript of the August 28 hearing is attached to the November 5 order, which incorporates the court's verbal order that Acosta's third deposition be taken and that Burnett's law firm pay the costs of the July 23 deposition, as well as the costs associated with bringing the motion seeking relief. The court also commented that the following question was the type that should have been answered by the doctor:
The November 7 order directed Burnett to pay "total costs and expenses imposed as sanctions" in the amount of $897.55 to plaintiffs' attorneys, Guelzow and Senteney, Ltd. Regarding attorney fees, the court also ordered Burnett to pay $1,000 for both the deposition and the motion hearing. The sum of $7,503.55 had been requested. In addition, $438 was imposed as a sanction against Burnett payable to Attorney Johnson. The total sanction imposed against Burnett was $2,335.55.
We view this case as presenting two issues: first, whether the trial court reasonably exercised its discretion when imposing sanctions against Burnett for instructing the witness, Acosta, not to answer specific questions at the deposition; and second, whether the trial court's discovery order for the next deposition was a reasonable exercise of discretion.
Burnett contends the trial court erroneously exercised its discretion by ordering monetary sanctions against him, arguing that his decision to instruct Acosta not to answer certain questions was substantially justified and was the only effective method of protecting privileged, non-discoverable information. We are not persuaded.
The trial court has both statutory and inherent authority to impose sanctions for failure to follow procedural statutes or obey discovery orders. See Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 273-74, 470 N.W.2d 859, 863-64 (1991). Whether sanctions are warranted and, if so, the particular sanction imposed are matters within the trial court's discretion. Johnson v. Allis-Chalmers Corp., 155 Wis.2d 344, 350, 455 N.W.2d 657, 659 (Ct.App.1990), aff'd, 162 Wis.2d 261, 470 N.W.2d 859 (1991). A discretionary decision will be upheld if the record reveals the trial court has considered the relevant facts, applied correct standards of law and, using a demonstrated rational process, reached a conclusion a reasonable judge could reach. Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130, 132 (Ct.App.1992).
Plaintiffs' motion to compel discovery asks for an order under § 804.12(1) and (2), STATS. The November 7 discovery order does not specify under which section the sanctions were ordered. Based on our review, however , we conclude ordering Burnett to pay expenses is a proper exercise of discretion under either section.
When a deponent refuses to answer a question, § 804.12(1)(a), STATS., allows the discovering party to seek an order compelling an answer. Section 804.12(1)(c), STATS., addresses the award of expenses if the motion is granted. It provides in part 1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis added.)
Additionally, if a party fails to obey a discovery order, § 804.12(2)(a), STATS., allows the court to make "such orders in regard to the failure as are just," including striking defenses. Section 804.12(2)(b), STATS., provides:
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis added.)
The motion to compel was filed because on two separate occasions Burnett instructed Acosta not to answer specific questions at the July 23 deposition. The questions were:
Q. We know that she was admitted to the hospital at approximately 7:50 p.m. And if you were the OB that was treating this woman at that time knowing that there had been an ultrasound done and wanting to see that report, what would you have done?
....
Q. No matter what the cause, a patient with a history of a term pregnancy and a gush of blood that's abnormal?
In addition, the 1994 order for discovery was in effect and was not complied with at the July 23 deposition. Prior to terminating the deposition, Johnson read the following excerpt from the 1994 discovery order:
Therefore this is an entirely appropriate area of inquiry. Dr. Acosta's deposition shows that Attorney Grimstad...
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Imposition of Sanctions in Alt v. Cline
...Burnett. ¶12 Dr. Acosta and Burnett appealed, and the court of appeals affirmed both circuit court orders. Burnett v. Alt, 215 Wis.2d 204, 214, 216, 572 N.W.2d 895 (Ct.App.1997). ¶13 Burnett and Dr. Acosta petitioned this court for review. Plaintiffs also petitioned this court for a supervi......