Elder v. Norton, 96-04749
| Decision Date | 15 April 1998 |
| Docket Number | No. 96-04749,96-04749 |
| Citation | 711 So.2d 586 |
| Parties | 23 Fla. L. Weekly D991 Mary ELDER, individually, and Mary Elder, as parent and natural guardian of Ethan Elder, a minor, Appellant, v. Frank NORTON, M.D., individually and Frank Norton, M.D., P.A.; Carmella Farulla, M.D, individually; Carmella Farulla, as agent and servant of Vaicaitis, Schorr & Richards, M.D., P.A.; and Robert Heller, M.D., individually, Appellees. |
| Court | Florida District Court of Appeals |
Donna S. Koch and Raymond T. Elligett, Jr. of Schropp, Buell & Elligett, P.A.; and
Kenneth W. Mastrilli of Personal Injury Law Center, P.A., Tampa, for Appellant.
Patricia J. Kelly of Harris, Barrett, Mann & Dew, St. Petersburg, for Appellee Frank Norton, M.D.
Susan W. Fox of Macfarlane, Ferguson & McMullen, Tampa, for Appellees Carmella Farulla, M.D. and Vaicaitis, Schorr & Richards, M.D., P.A.
Mary Elder, individually and as parent and natural guardian of Ethan Elder, appeals an order dismissing her medical malpractice claim as a sanction for various discovery abuses. Indeed, the record establishes a four year history of noncompliant conduct on the part of Elder's counsel; nevertheless, because the record bears no evidence of misconduct on the part of Elder personally, we reverse.
The sanction of dismissal is all too drastic and severe when, as in this case, there is no evidence in the record to demonstrate that Elder has played an active role in abusing the discovery process. See e.g., Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993); Walicki v. Waste Management, 703 So.2d 1095 (Fla. 2d DCA 1997) (). The trial attorney, rather than his or her client, must be the object of sanctions in cases such as this. Under these circumstances, trial courts have the discretion to levy monetary sanctions, including attorney's fees and costs arising from discovery abuses, or any other action consistent with the Rules Regulating The Florida Bar. See Martin v. Laidlaw Tree Service, 619 So.2d 435 (Fla. 2d DCA 1993). Such sanctions may be considered on remand in the present case.
The trial court abused its discretion in dismissing Elder's claim absent evidence indicating Elder assumed an active role in abusing the discovery process. We see no utility in punishing a faultless plaintiff when his or her attorney is solely responsible for the abusive conduct. Ac...
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...with prejudice as a sanction for discovery violations resulting solely from the neglect of counsel for plaintiff); Elder v. Norton, 711 So.2d 586 (Fla. 2d DCA 1998) (holding trial court abused its discretion in dismissing claim as a sanction for various discovery abuses absent evidence part......
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...with prejudice as a sanction for discovery violations resulting solely from the neglect of counsel for plaintiff); Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998) (holding trial court abused its discretion in dismissing claim as a sanction for various discovery abuses absent evidence par......
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Ham v. Dunmire
...consider here. The Second District Court of Appeal has reached the same conclusion as that of the Fourth District. In Elder v. Norton, 711 So.2d 586 (Fla. 2d DCA 1998), the district court reversed an order of dismissal emanating from a four-year history of discovery abuses on the part of pl......
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The "big lie".
...and 6) Whether the delay created significant problems of judicial administration. Kozel, 629 So. 2d at 818. Compare Elder v. Newton, 711 So. 2d 586 (Fla. 2d DCA 1998) (dismissal was "too drastic and severe" when there was no evidence that the plaintiff "played an active role in abusing the ......