Jerome v. Pardis
| Decision Date | 04 January 1990 |
| Docket Number | No. 89-323,89-323 |
| Parties | Ardis JEROME, Plaintiff and Appellant, v. William H. PARDIS, D.C., and Pardis Chiropractic Clinic, P.C., Defendants and Respondents. |
| Court | Montana Supreme Court |
Joseph C. Engel, III, Great Falls, for plaintiff and appellant.
J. David Slovak and Neil E. Ugrin, Ugrin, Alexander, Zadick & Slovak, Great Falls, for defendants and respondents.
This appeal involves the imposition of sanctions under Rule 37, M.R.Civ.P. for abuses of discovery. Plaintiff Ardis Jerome appeals the order of the Eighth Judicial District Court, Cascade County, granting defendants', William H. Pardis and Pardis Chiropractic Clinics, P.C., motion to dismiss Jerome's cause of action with prejudice. We affirm.
Appellant Jerome raises a sole issue on appeal: Did the District Court abuse its discretion by dismissing Jerome's lawsuit on the grounds that she violated Rule 37, M.R.Civ.P.?
Jerome's complaint alleges that during treatment in early June of 1984, Dr. Pardis negligently caused a herniation of a disk at the L4/L5 level of her spine. After filing of the complaint, Pardis served Jerome with several interrogatories and requests for production. The interrogatories requested Jerome to identify all persons who had treated her back condition and to supply information regarding previous or subsequent injuries, illness or problems involving her lower back. The requests required production of all Jerome's medical records.
Jerome was served with the request for production on July 20, 1987. On December 8, 1987 Jerome produced medical records from various health care providers, including records from Dr. Mark T. Stoebe, D.C., the treating chiropractor who examined Jerome immediately after the visits with Pardis that allegedly caused her injury. Dr. Stoebe's records included a letter dated October 8, 1986 to Jerome's counsel, in response to questions by Jerome's counsel regarding diagnosis of Jerome's condition and whether Pardis' treatment was appropriate. This letter produced by Jerome from Stoebe's records stated:
The following is a response to your letter dated September 22, 1986. I cannot state with certainty that Dr. Pardis treatment did in effect cause the low back condition that Ardis Jerome came to me complaining of, in that I did not see the patient prior to her adjustment on 6-7-84, although the condition that I examined on 6-8-84 was certainly an acute left lateral grade II disc protrusion of the L4 intervertebral disc. It is my experience that conditions of this type have some kind of traumatic history and I see no indication of previous trauma in Dr. Pardis notes. Also I note an absence of any orthopedic, neurological, or x-ray findings. Furthermore, the patient indicated on 6-8-84 that she had no previous history of sharp low back pain prior to her visit on 6-7-84.
If you have any further questions....
At the September 1, 1988 deposition of Dr. Stoebe, Pardis learned that the letter produced by Jerome's counsel was an apparent rewrite of Dr. Stoebe's original letter of October 8, 1986. The longer version omitted the second to the last sentence and also included additional language after the first sentence, damaging to plaintiff's case:
... First of all a spondylolisthesis implies a congenital malformation of the pars inter articularis. The term applies to an anterior or forward slipping of the body of the lower lumbar vertebrae relative to the pedicles. Research as of the last six months has pointed to a possible traumatic cause of this condition, although it is still speculative at this point. The reason for this theory is that a spondylolisthesis has never been found in any patient under 5 years of age.
It appears as though the adjustments employed by Dr. Pardis on 6-7-84 were correct and indicated for his findings.... (Letter continues with second sentence as quoted above.)
At his deposition Stoebe testified that both letters were in his file and that the entire file was supplied to Jerome's counsel. Jerome's counsel claims that the original letter was probably discarded, and did not need to be produced anyway because it supported and confirmed plaintiff's theory of liability and thus was not relevant to defendant's case.
Jerome also produced only two pages of a handwritten three page history prepared by Jerome when she first visited Dr. Stoebe. The omitted page indicates in Jerome's own writing that she hurt her back moving and lifting tables about two weeks prior to visiting Stoebe and before she visited Pardis, and that she had back trouble for the last 25 years.
Additionally, after assurances by Jerome's counsel that full and complete responses to the production requests and interrogatories had been supplied, Jerome failed to identify a number of her past health care providers and subsequent depositions indicated that only a fraction of the medical records were supplied. Jerome also indicated in answering the interrogatories that she had never filed an insurance claim regarding her back problems. A subsequent deposition later revealed that a claim was in fact made in 1979.
On October 6, 1988, Pardis filed his motion for sanctions, alleging that Jerome and her counsel had committed blatant discovery abuses in violation of Rule 37, M.R.Civ.P. In its order of February 10, 1989, the District Court found that the discovery tactics pursued by the plaintiff had caused substantial prejudice to defendants that could not be corrected without defendants incurring considerable expense, particularly in re-deposing physicians who had relied on incomplete medical records. Because of the totality of the circumstances regarding the alleged abuses and the severity of the prejudice suffered by defendants the District Court dismissed Jerome's claim with prejudice, resulting in this appeal.
This Court has followed the rationale of the United States Supreme Court's holding in National Hockey League v. Metropolitan Hockey Clubs, Inc. (1976), 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747, in adopting a strict policy of non-leniency toward discovery abusers and of allowing sanctions for deterrence purposes. Owen v. F.A. Buttrey Co. (1981), --- Mont. ----, 627 P.2d 1233, 38 St.Rep. 714. The authority used by the District Court to dismiss Jerome's case is found at Rule 37(d), M.R.Civ.P., which is identical to its federal counterpart, and provides:
Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule....
Rule 37(d), M.R.Civ.P. The actions authorized by Rule 37(b)(2)(A)--(C) include dismissal. Rule 37(b)(2)(C).
Rule 37(b) provides for sanctions for failure to comply with a court order compelling discovery. State ex. rel. Burlington Northern v. District Court (1989), 779 P.2d 885, 893, 46 St.Rep. 1625, 1634. Rule 37(d) authorizes the imposition of sanctions for 3 specific failures--1) failure to attend at one's own deposition, 2) failure to serve answer's to interrogatories, or 3) failure to serve a written response to a request for production--without first requiring that the non-responding party be ordered to comply. No second chance is contemplated. Thus, there is an important distinction between Rule 37(b) and Rule 37(d): under subsection (b) sanctions are not available without a previous court order; under subsection (d) no order is necessary, however,...
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