Gocolay v. New Mexico Federal Sav. & Loan Ass'n

• Decision Date: 01 July 1992
• Docket Number: No. 90-2116,90-2116
• Citation: 968 F.2d 1017
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Maria Cecelia GOCOLAY, Special Administrator of the Estate of Antonio K. Gocolay, decedent, Plaintiff-Appellant, v. NEW MEXICO FEDERAL SAVINGS & LOAN ASSOCIATION; Fil-Am Investment Corporation; Manuel D. Gocolay; Robert Morris, in his capacity as President of NM Federal Savings & Loan Association; Beverly Agnew; Dail Bachtel; Raymond Gallegos; James Hester; Henry Holmberg; Arturo Jaramillo; Ben Maestas; Andres Martinez; John Mitchell; Gilbert Ortiz; Ted Ortiz; M.B. Packard; H.D. Woodruff, Col.; Kurt Ziebarth; Frank Morrato; Edwin C. Lineberry; Rosa Ellis; Robert E. Morris, in their capacity as Directors of NM Federal Savings & Loan Association; Jaime Villarino; Resolution Trust Corporation, Defendants-Appellees.

Page 1017

968 F.2d 1017

22 Fed.R.Serv.3d 1201

Maria Cecelia GOCOLAY, Special Administrator of the Estate of Antonio K. Gocolay, decedent, Plaintiff-Appellant, v. NEW MEXICO FEDERAL SAVINGS & LOAN ASSOCIATION; Fil-Am Investment Corporation; Manuel D. Gocolay; Robert Morris in his capacity as President of NM Federal Savings & Loan Association; Beverly Agnew; Dail Bachtel; Raymond Gallegos; James Hester; Henry Holmberg; Arturo Jaramillo Ben Maestas; Andres Martinez; John Mitchell; Gilbert Ortiz; Ted Ortiz; M.B. Packard; H.D. Woodruff, Col. Kurt Ziebarth; Frank Morrato; Edwin C. Lineberry; Rosa Ellis; Robert E. Morris, in their capacity as Directors of NM Federal Savings & Loan Association; Jaime Villarino Resolution Trust Corporation, Defendants-Appellees.

No. 90-2116.

United States Court of Appeals, Tenth Circuit.

July 1, 1992.

Steven S. Scholl (Stanley N. Hatch with him on the briefs), of Hatch, Beitler, Allen & Shepherd, P.A., Albuquerque, N.M., for plaintiff-appellant.

Richard Yeomans of Poole, Kelly & Ramo, P.C. (Joe L. McClaugherty, Cameron Peters, and Jack Eastham with him on the briefs), of Kemp, Smith, Duncan & Hammond, P.C., Santa Fe, N.M., for defendants-appellees.

Before BALDOCK and BRORBY, Circuit Judges, and BELOT, ^* District Judge.

BRORBY, Circuit Judge.

The sole issue on appeal is whether the district court abused its discretion by dismissing Plaintiff's complaint as a discovery sanction for failing to complete a deposition by the ordered deadline because of uncontradicted claims of ill health. We hold the dismissal was improper, vacate the district court's order, and remand.

Plaintiff Antonio Gocolay, a Philippine national, brought suit in September 1987 to recover $653,754.79 allegedly converted from his certificates of deposit by an employee of New Mexico Federal Savings and Loan Association (New Mexico Federal). At the time, Mr. Gocolay was seventy-three years old. In his suit, Mr. Gocolay named as parties a branch manager of New Mexico Federal, the Savings and Loan Association (S & L) itself, as well as the S & L's president and numerous other individuals in their capacity as directors of New Mexico Federal (hereinafter collectively New Mexico Federal). The underlying claims, which included allegations of fraud, forgery, conversion, breach of fiduciary duty and negligence, are not germane to this appeal. ¹

During the pretrial discovery process, Defendant New Mexico Federal scheduled and then cancelled Mr. Gocolay's deposition In September 1988, Mr. Gocolay's deteriorating health prompted his attorney to seek an order allowing Mr. Gocolay to preserve his trial testimony on videotape. Due to Mr. Gocolay's age, frail condition, and possible unavailability at trial, the district court granted the motion. Mr. Gocolay travelled to the United States that same month to receive medical treatment for, among other things, chronic heart, vascular and liver diseases. After five days in a San Francisco hospital and against his physician's advice, he travelled to Albuquerque to attend his deposition. Mr. Gocolay completed a single day's questioning by his attorney on direct examination, yielding 130 pages of transcript. New Mexico Federal cross-examined Mr. Gocolay for the next two days despite objections to the relevance of its line of questioning.

at least four times because it was not prepared to go forward. ²

Mr. Gocolay thereafter sought a protective order to limit the scope of questioning, in part because of his poor health. The district court ruled New Mexico Federal could inquire into most of the sought-after areas related to Mr. Gocolay's financial status and banking knowledge. However, the court stressed "[i]f the doctors say he can't continue ... we are going to quit."

Before continuing the deposition, Mr. Gocolay suffered severe chest pains. A cardiologist warned the deposition should not continue and ordered Mr. Gocolay back to San Francisco for treatment. Both parties' counsel agreed to interrupt the deposition and reconvene later. However, doctors in both Manila and San Francisco warned stress associated with the continued deposition might result in Mr. Gocolay's death. Once stabilized, Mr. Gocolay returned to the Philippines without completing the deposition.

Due to Mr. Gocolay's condition, the district court heard argument on limiting further discovery and ordered that "counsel ... be guided by the directions of Antonio Gocolay's treating physicians in continuing the deposition so as to protect [his] health while still affording the Defendants an opportunity for complete discovery."

During the next four months, efforts at rescheduling the deposition failed as Mr. Gocolay's personal physician, a cardiologist in Manila, recommended against long distance air travel. The physician insisted Mr. Gocolay's chronic illnesses made him a "walking time bomb" and additional time was necessary to stabilize his condition. The parties scheduled a deposition in Hawaii for mid-April 1989, but the location was changed to San Francisco when counsel learned Mr. Gocolay had to return to the United States for urgent medical treatment. Two weeks prior to his arrival, Mr. Gocolay was hospitalized in the Philippines with pneumonia and heart problems. Treating physicians notified counsel any travel might threaten Mr. Gocolay's life. New Mexico Federal refused to vacate the deposition setting and noted Mr. Gocolay's non-appearance on the record.

Thereafter, New Mexico Federal filed a motion to dismiss Mr. Gocolay's action, claiming he had repeatedly failed to cooperate in the discovery process. In opposition, Mr. Gocolay's attorney provided the court with an affidavit from Dr. James Tan, a cardiologist in Manila, who recommended against continuing the deposition until a later date. Dr. Tan stated Mr. Gocolay's overall condition worsened "in large part because of the high level of stress he experienced during his [earlier] deposition," and further questioning posed a "grave danger" to his already fragile health.

During a hearing on the motion to dismiss, New Mexico Federal stated it was skeptical of the severity of Mr. Gocolay's alleged health problems and told the court any independent physical examination in the Philippines would be suspect. The In response, Mr. Gocolay's attorney filed an affidavit by Dr. Coleman Ryan, chief cardiologist at Seton Medical Center near San Francisco, confirming Mr. Gocolay's poor health and acknowledging he had ordered a halt to the original deposition.

                court agreed.   The court also commented that Mr. Gocolay's physicians probably never would advise he was strong enough to complete the deposition.   In his personal view, the judge surmised Mr. Gocolay did not "want to give his deposition and [was] hiding behind his health."   Nevertheless, the court noted if Mr. Gocolay's health prevented further deposition, then "that's just the breaks of the game."   Taking the motion under advisement, the court demanded Mr. Gocolay provide the court with some evidence of his ill health other than Dr. Tan's opinion.
                

Attempts to bring Mr. Gocolay to the United States failed in June, July and August. On October 30, 1989, a magistrate judge ordered Mr. Gocolay to "submit himself for the completion of his deposition on or before February 28, 1990, in Hawaii or on the west coast of the United States at the direction of [his] doctors." The parties scheduled the deposition for mid-January, but Mr. Gocolay again suffered congestive heart failure and was hospitalized in the Philippines on December 26, 1989.

Mr. Gocolay filed a motion to modify the magistrate judge's deadline order and attached Dr. Tan's affidavit stating Mr. Gocolay's condition had worsened and "air travel ... would be ... life threatening." Nevertheless, the magistrate judge denied both Mr. Gocolay's motion to extend the deposition deadline and his combined motion for a protective order to hold the remaining deposition in the Philippines.

Unable to travel to the United States, Mr. Gocolay renewed his request to extend the deadline on February 28, 1989. New Mexico Federal submitted a memorandum in support of its motion to dismiss. Soon thereafter, and against his physician's advice, Mr. Gocolay flew to the United States with his doctor, arriving in San Francisco on March 13. However, Mr. Gocolay's health deteriorated during the trip and he was again immediately hospitalized to stabilize his condition. His attorney filed another motion asking the court to substantially restrict any further attempts to depose Mr. Gocolay. Attached to the motion was a second affidavit from Dr. Ryan attesting to Mr. Gocolay's life-threatening condition upon his arrival in the United States. Dr. Ryan noted Mr. Gocolay's desire to complete the deposition but advised he "should not be deposed now or ever...." Dr. Ryan explained Mr. Gocolay had, in all probability, less than six months to live and stated nothing miraculous existed about Mr. Gocolay's travel to the United States "except perhaps that he survived the trip." Dr. Ryan noted that if allowed to continue, the deposition should be strictly limited,...