Hoock v. SLB Acquisition, LLC

• Citation: 620 S.W.3d 292
• Decision Date: 23 March 2021
• Docket Number: No. ED 108473,ED 108473
• Parties: Katarina HOOCK, Respondent, v. SLB ACQUISITION, LLC d/b/a Scottrade Center, Appellant.
• Court: Court of Appeal of Missouri (US)

620 S.W.3d 292

Katarina HOOCK, Respondent,

v.SLB ACQUISITION, LLC d/b/a Scottrade Center, Appellant.

No. ED 108473

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: March 23, 2021

For Appellant: Portia C. Kayser, 1010 Market St., Ste. 1650, St. Louis, MO 63101.

For Respondent: Todd R. Nissenholtz, 200 S. Hanley Rd., Ste. 1070, St. Louis, MO 63105.

KURT S. ODENWALD, Judge

Introduction

SLB Acquisition, LLC ("SLB") appeals from the trial court's judgment following a jury trial on Katarina Hoock's ("Hoock") personal injury action. SLB raises two points on appeal. Point One argues the trial court lacked authority under Rule 61.01¹ to enter an order of default against SLB for discovery violations because the order improperly expanded the sanction from a prior order that merely struck their pleadings. Point Two contends the trial court abused its discretion in denying SLB's continuance motion due to Hoock's late production of medical records. Because the trial court was free to modify its interlocutory order striking SLB's pleadings, the trial court did not err in entering its order of default against SLB, and we deny Point One. Because the record of medical history disclosures and prior litigation in the case provided SLB ample opportunity to avoid unfair surprise or prejudice arising from trying the case on the date of trial, the trial court did not abuse its discretion in denying SLB's second motion for a continuance the day before trial, and we deny Point Two. Accordingly, we affirm the judgment of the trial court.

Factual and Procedural History

This appeal arises out of a personal injury action filed against SLB by Hoock following her injury at a St. Louis Blues hockey game at the Scottrade Center on January 18, 2016. At that game, an unruly patron fell on Hoock from a higher seating row. Hoock was taken by ambulance to the hospital, where doctors performed a CT scan

and determined she had suffered a closed head injury and cervical strain. Hoock took time off work for recovery and followed up with her primary care physicians. When Hoock complained of memory issues, nausea, and vertigo, she was diagnosed with post-concussive syndrome and was directed to a neurologist. Hoock's medical records indicated short-term memory dysfunction, dizziness, headaches, depression, and fatigue. Hoock filed a personal injury action against the patron and SLB in November, 2016.

As the case was litigated, both parties alleged violations of the rules of discovery against the other. Following Hoock's second motion to compel and to award sanctions, the trial court found a history of delay and obfuscation on the part of SLB and issued an order (the "Sanction Order") finding that SLB's discovery violations constituted contumacious and deliberate disregard of the trial court's authority. The Sanction Order struck SLB's pleadings and affirmative defenses. The Sanction Order also ordered SLB to present its corporate representative for deposition, ordered SLB to produce certain documents and respond to certain interrogatories, and awarded Hoock $5,000 in attorneys’ fees. SLB later moved for leave to file its answer and affirmative defenses following its compliance with the Sanction Order. Hoock opposed the motion, arguing that the sanctions were proper, SLB had not fully complied with the Sanction Order, and Hoock would suffer prejudice if the sanction were vacated. After a change of judge, the trial court heard SLB's motion and argument at two subsequent hearings, and took the sanction matter under submission.

The trial court issued its order (the "Default Order") denying SLB's motion for leave to file an answer and affirmative defenses, and entered a judgment of default against SLB as to liability on Hoock's claim. The trial court explained that SLB was "effectively asking the Court to reconsider its sanctions against it" and denied SLB leave to refile its pleadings. In the Default Order, the trial court found:

Based on the briefs, the arguments of counsel and the Court's review of the file, the Court finds that there is no justification for setting aside or vacating the sanction entered against [SLB] or disturbing the Court's earlier finding that [SLB] exhibited a "contumacious and deliberate disregard of this Court's authority" due to a number of discovery abuses, and that [Hoock] has suffered substantial prejudice as a result thereof. Accordingly, [SLB]’s Motion for Leave to File Answer and Affirmative Defenses is hereby denied.

Further, based on the arguments presented in the briefs and at the hearing, the Court finds it would be beneficial to clarify its earlier Sanction Order. In the Sanction Order, by striking [SLB's] entire answer and its affirmative defenses, the Court's intention was to foreclose all argument regarding and [sic] need for Plaintiff to prove [SLB]’s liability at trial, leaving the extent of [Hoock]’s damages as the only issue for trial with respect to [Hoock]’s claims against [SLB]. While the Court believes that its earlier Sanction Order was sufficient to accomplish this goal, in order to avoid any confusion at trial, the Court hereby enters an interlocutory judgment of default against [SLB] as to liability on [Hoock]’s claims against [SLB].

Trial was set for June 3, 2019. SLB moved for a continuance, which the trial court granted. SLB acknowledged in its subsequent motion for sanctions and to compel that its first motion for a continuance had been granted so that SLB could depose Dr. Susan Davis ("Dr. Davis"). Hoock was treated by Dr. Davis in December 2017 and again in 2019 at the same facility as Hoock's other primary-care practitioners but had not been disclosed prior to SLB's expert's review of the case.

The day before trial, which had been reset for August 26, 2019, SLB filed a second motion for sanctions and trial continuance (the "Continuance Motion"), alleging a continuance and other sanction-based remedies were needed due to Hoock's late production of relevant medical records. Prior to filing this motion, SLB had moved for sanctions and/or to compel production of various medical records for delayed disclosure, which SLB incorporated into its Continuance Motion by Rule 55.12. Following hearings, the trial court had denied SLB's motion for sanctions but ordered Hoock to execute additional authorizations to facilitate the production of various medical records, including records from Dr. Joel Koenig ("Dr. Koenig").

The parties presented written and oral arguments before the trial court on the Continuance Motion. The Continuance Motion claimed Hoock had engaged in a pattern of concealment about her medical condition before and after the incident. The Continuance Motion alleged Hoock produced new, relevant medical records less than two weeks before trial. Specifically, SLB alleged Hoock produced new records from 2006 to 2012 (the "2006-2012 Records"), including records involving Dr. Koenig's treatment of Hoock when she was in middle school between 2006 and 2007. These records evidenced treatment for depression, headaches, dizziness, difficulty concentrating, anxiety, and photophobia, all occurring prior to Hoock's disclosed 2012 concussions from sports injuries and a car accident.² SLB also claimed Hoock produced new records of a December 2017 visit with a late-disclosed medical provider (the "Davis Records"). Additionally, the Continuance Motion averred that after corrected authorizations were executed by Hoock earlier that month, SLB received records from other practitioners a few days before trial, including a record from Dr. Sonali Jain ("Dr. Jain"), an obstetrics and gynecology physician who had treated Hoock for postpartum depression

in 2017.

The Continuance Motion maintained that a continuance was necessary because the newly produced records of head-related treatment were relevant to Hoock's claims for damages, and SLB's expert witness was unavailable to opine on the new records in time for trial because he was out of the country. In the attached affidavit, SLB's expert witness Dr. Todd B. Silverman ("Dr. Silverman") stated that he was on vacation and unavailable, that the Davis Records had not been provided when he offered his expert opinion on the case, and that Hoock had only attested to a history of headaches and not of migraines as mentioned in the new records. The Continuance Motion argued that the newly produced 2006-2012 Records and Davis Records were relevant to impeaching Hoock's position that, except for her disclosed 2012 concussions, she was asymptomatic prior to the hockey game incident. SLB claimed the new records showed Hoock had an unexplained increase in her antidepressant medication and was suffering from the same head injuries

of which she then complained prior to the hockey game incident, including headaches, depression, and dizziness. The records also referenced a loss of consciousness in 2010 and a closed head injury in 2011. SLB argued it would suffer prejudice if the trial were not continued because Dr. Silverman was unavailable to review the original records of Hoock's earlier medical treatment and that such records were necessary to opine on the interaction between Hoock's preexisting conditions and her injury at the hockey game. SLB asserted that Dr. Silverman's testimony was relevant to the amount of damages Hoock was seeking.

In oral argument on the Continuance Motion before the trial court, Hoock countered that the records were not new. In particular, Hoock explained that the Davis Records had been part of the record for months and had been the reason the trial court granted SLB's first request for continuance. Hoock asserted that SLB chose not to pursue deposing Dr. Davis prior to the rescheduled trial date. Regarding the 2006-2012 Records, Hoock argued that SLB had access to the records months earlier and had already deposed a witness who testified about Hoock's six-month depressive episode

when she was in middle school in 2006-2007. Also concerning the 2006-20...