Hense v. G.D. Searle & Co.

• Decision Date: 21 March 1990
• Docket Number: No. 88-1429,88-1429
• Citation: 452 N.W.2d 440
• Parties: Cynthia Sue HENSE, Appellant, v. G.D. SEARLE & CO., Appellee.
• Court: Iowa Supreme Court

Page 440

452 N.W.2d 440

Cynthia Sue HENSE, Appellant, v. G.D. SEARLE & CO., Appellee.

No. 88-1429.

Supreme Court of Iowa.

March 21, 1990.

Thomas J. Reilly of the Thomas J. Reilly Law Firm, P.C., Des Moines, for appellant.

Ross H. Sidney and Donna L. Paulsen of Grefe & Sidney, Des Moines, and Charles Q. Socha and Mary A. Malatesta of Tilly & Graves, Denver, Colo., for appellee.

Considered en banc.

NEUMAN, Justice.

This appeal and cross-appeal arise out of a products liability action brought against the manufacturer of an intrauterine contraception device. The controversy centers on the parties' dispute over the method by which plaintiff should conduct discovery of the corporate defendant's 750,000 product-related documents. The wrangling has resulted in six continuances of trial over the six-year life of the litigation.

When plaintiff's request for a seventh continuance was denied on the eve of trial, she invited the court to reconsider its earlier order denying summary judgment for the defendant. Plaintiff now appeals the resulting dismissal of her cause. She claims that it was an abuse of discretion for the trial court to deny the seventh continuance in light of the defendant's repeated discovery abuses. On cross-appeal, the defendant seeks to reverse the trial court's order imposing monetary sanctions for willful failure to compel production of documents. We affirm on both appeals.

I. Background facts and proceedings. In May 1982, plaintiff Cynthia Sue Hense filed this action against defendant G.D. Searle & Co. (Searle) for personal injuries she attributed to the use of Searle's product, the "Copper-7" intrauterine contraceptive device (IUD). Her claimed injuries included pelvic inflammatory disease and resultant sterility. Subsequent amendments to the petition named two physicians involved in prescribing the IUD and thereafter treating Hense. Her claims against these individuals have been settled or otherwise dismissed and are not before us on appeal.

Trial was originally scheduled for late 1983. Over the course of the next five years, the trial court granted six continuances, the first two upon the parties' joint application and the last four at Hense's behest, unresisted by Searle. In December 1983, trial was continued to July 23, 1984; that date was continued to September 1985. Three weeks before trial, Hense was granted a continuance to March 3, 1986. In January 1986, Hense moved for a fourth continuance based on Searle's recalcitrant conduct with respect to discovery depositions of Searle employees. Hense prevailed and trial was rescheduled for November 17, 1986. Two weeks before the scheduled date, plaintiff successfully moved for a fifth continuance. The sixth continuance came in September 1987 when the court ordered trial set for August 1, 1988.

The discovery problem underlying the many delays centered on whether, as plaintiff claims, Searle has been deliberately unwilling to produce documents or, as Searle claims, Hense's discovery requests have been too broad and unspecific to be answered. In repeated response to nearly every document request, Searle asserted that because no master retrieval system to the "universe" of Copper-7 documents existed, the requests were as burdensome to Searle as to the plaintiff. As an alternative to production, Searle suggested that plaintiff visit its corporate headquarters and locate the documents herself. Plaintiff never availed herself of Searle's invitation to visit the document warehouse in Skokie, Illinois, nor was she ever directed to do so by court order.

This simmering discovery conflict boiled over in July 1987, when Searle inadvertently produced the "INDA Summary Index" in connection with its delivery of some 15,000 documents produced pursuant to one of plaintiff's successful motions to compel. The INDA Summary Index is a 136-page document that references a 12,000-page document called the Copper-7 Investigational New Drug Application (INDA), an application submitted to the Food and Drug Administration to gain approval for the testing of a new drug. To plaintiff, the existence of this index belied Searle's repeated assertion that it had no retrieval system with which to find documents.

When plaintiff found the index, she moved for sanctions, including default judgment, under Iowa Rule of Civil Procedure 134(b)(2). In her motion, plaintiff cited fifteen responses made by Searle that denied the existence of any index to the "New Drug Application" (a 45,000-page successor document to the 12,000-page INDA) or to any other Copper-7 documents. Searle resisted the motion on three grounds: (1) the index was attorney work product and, hence, not discoverable, (2) the index referenced an insignificant portion of the mass of Copper-7 documents, and (3) the index was of recent vintage and so had not been available for production during much of the litigation.

On September 4, 1987, the trial court ruled that the index, though labeled "Attorney Work Product-Confidential," displayed no other characteristics supporting its allegedly protected status. Moreover, the court ruled that rather than denying the summary's existence, Searle should have informed the court that it existed and sought a protective order, if necessary, based on an in camera inspection by the court. Searle's lack of candor prompted the court's finding that Searle "willfully failed to obey the previous court's order regarding discovery." The court imposed a sanction of $54,706.95 against Searle for its discovery abuse. Searle's cross-appeal challenges this monetary sanction.

In addition to imposing a sanction, the court's September 1987 order also continued the trial until August 1, 1988. The court reasoned that plaintiff needed additional time to utilize the new-found index to formulate additional discovery requests. Six months before trial, however, another dispute arose. After conferring with other attorneys engaged in litigation with Searle over the Copper-7 IUD, counsel for plaintiff sought the production of approximately 4000 pages of expert deposition transcripts. Searle agreed to produce the transcripts on condition that: (1) plaintiff advance the cost of duplication, or (2) plaintiff obtain copies from the original court reporting service, or (3) Searle would arrange for a copying service at plaintiff's expense, or (4) plaintiff could review the material at Searle's offices in Chicago. In response, plaintiff claimed the proposed twenty-cent-per-copy fee was exorbitant. She moved in March 1988 to compel production of the documents by Searle at no cost.

Before the trial court ruled on the motion to compel, plaintiff learned of a second index which Searle had not earlier revealed. Hense applied to the court for an in camera review. This index, which the parties concede to be no more than a list of labels appearing on boxes of documents, was produced to plaintiff in early May 1988. Upon its receipt, plaintiff urged the court to continue the August trial date on the ground that Searle's failure to produce the list earlier had prevented plaintiff from framing further document requests prior to the discovery deadline of May 1. The court summarily overruled plaintiff's motion.

The court did not rule on plaintiff's March 1988 cost payment squabble until June 1988, six weeks prior to trial. Plaintiff was ordered to prepay the copy costs as Searle had suggested. The court admonished plaintiff that "the trial date is not in jeopardy," reasoning that if she had wanted the documents badly enough, she could have obtained them at her own cost and sought reimbursement from Searle. Searle produced the copies within two days of the ruling.

Ten days later, in spite of the trial court's admonition, plaintiff moved for the eighth time to continue the trial. She claimed insufficient time to digest the 4000 pages of testimony produced in mid-June and asserted that the delay caused by the copy cost dispute was not her fault. The trial court ruled against her, finding that she had "ample time" to obtain whatever material was necessary to prepare for trial. It is this final denial of continuance that plaintiff challenges on appeal.

Meanwhile, on June 24, 1988, Searle moved for summary judgment on the ground that plaintiff had no expert to establish the causal link between Searle's product and plaintiff's medical injuries. The motion was denied. Then, on the day before trial was scheduled to begin, plaintiff moved the court to reconsider its earlier denial of summary judgment for Searle. Admitting such a move was "unorthodox," plaintiff claimed she sought such relief "in the interest of justice and judicial harmony." This appeal followed.

II. Plaintiff's appeal. Plaintiff contends that the trial court abused its discretion when it twice denied her request to continue the trial for a seventh time. This court denied interlocutory appeal from these rulings. Iowa Rule of Appellate Procedure 1, however, permits the appeal of interlocutory rulings as part of an appeal from a final judgment.

Having been denied the continuance she wanted and finding herself unprepared on the eve of trial, plaintiff invited the trial court to grant Searle's motion for summary judgment in a strategic attempt to avoid a potentially disastrous proceeding and obtain immediate review by this court. The dispositive question before us, therefore, is not whether plaintiff's challenge to the continuance ruling has merit, but whether she may appeal at all from a final judgment to which she has consented.

This court has consistently held that the payment of a judgment signals a litigant's acquiescence in the court's ruling and operates as a waiver of the right to appeal. See Ames Gen. Contractors, Inc. v. Iowa Employment Sec. Comm'n, 200 N.W.2d 538, 541 (Iowa 1972); Bates v. Nichols, 223 Iowa 878, 884, 274 N.W. 32, 35 (1937). This court has never considered, however, whether consent to an adverse judgment--standing alone--will...