John v. Medical Center Hospital of Vermont, Inc., 209-77

• Decision Date: 31 October 1978
• Docket Number: No. 209-77,209-77
• Court: Vermont Supreme Court
• Parties: Isaac JOHN v. MEDICAL CENTER HOSPITAL OF VERMONT, INC., Associates in Radiology, Inc., and University Associates in Neurology.

Page 1134

394 A.2d 1134

136 Vt. 517

Isaac JOHN v. MEDICAL CENTER HOSPITAL OF VERMONT, INC., Associates in

Radiology, Inc., and University Associates in Neurology.

No. 209-77.

Supreme Court of Vermont.

Oct. 31, 1978.

Richard E. Davis and Brian J. Grearson of Richard E. Davis Associates, Inc., Barre, for plaintiff.

Michael B. Clapp and Spencer R. Knapp of Dinse, Allen & Erdmann, Burlington, for Medical Center Hospital.

William H. Quinn of Pierson, Affolter & Wadhams, Burlington, for Associates in Radiology.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BILLINGS, Justice.

This is an appeal by the plaintiff-appellant from an order of the Washington Superior Court dismissing his complaint with prejudice. The ground was that the plaintiff had failed to provide the defendants with certain information sought through discovery, relating especially to plaintiff's proposed expert witnesses.

On December 8, 1975, the defendant Associates in Radiology, Inc. (Associates) and on January 22, 1976, the defendant Medical Center Hospital of Vermont, Inc. (Hospital), filed interrogatories and requests to produce. On March 15, 1976, both defendants sought an order to compel discovery pursuant to V.R.C.P. 37(a). Upon agreement of the parties, no hearing was held on this motion, and on August 11, 1976, the plaintiff filed partial responses to the interrogatories filed by Associates. Plaintiff, however, avoided response to defendant Associates' expert interrogatories by answering as follows:

Plaintiff is in the process of obtaining the information sought by this interrogatory. It is assembling the pertinent medical literature inquired about. When said information is prepared and available, it will be provided to defendant's attorney. Plaintiff recognizes his obligation under rule 26(e)(1) (B) to update the response to this interrogatory.

At no time here material did plaintiff respond to the interrogatories filed by defendant Hospital.

On March 1, 1977, Associates filed a second motion to compel and as a result, the trial court ordered plaintiff to answer by April 1, 1977. On April 7, 1977, Associates filed a motion for sanctions, and on April 18, 1977, an unrecorded hearing was held. As a result, the trial court ordered plaintiff to provide the names of his experts within sixty days or suffer dismissal. Defendant Hospital did not file a second motion to compel nor a motion for sanctions. Plaintiff made no response to the court's order, and on June 27, 1977, the trial court, without making findings of fact, ordered the plaintiff's complaint dismissed with prejudice. The following day plaintiff answered the expert interrogatory by stating plaintiff would call Dr. Wallmann, who had already been deposed, Dr. Ring, an employee of defendant Associates, and "such other experts as the plaintiff may engage."

V.R.C.P. 37(b)(2) provides for sanctions of various degrees of severity. Their imposition is necessarily a matter of judicial discretion. Discretionary rulings are not subject to appellate review unless it is clearly shown that such discretion has been abused or withheld. Bonfanti v. Ayers, 134 Vt. 421, 365 A.2d 268 (1976). In the present case, however, the record does not reveal what factors guided the court's discretion in dismissing plaintiff's complaint. Because there were no findings of fact, we are unable to say that the court's exercise of discretion was consistent with a correct view of the law pertaining to sanctions under Rule 37(b)(2).

We hold that where the ultimate sanction of dismissal is invoked, it is necessary that the trial court indicate by findings of fact...