Kleine v. Fred Meyer, Inc.
| Decision Date | 28 December 1992 |
| Docket Number | No. 19570,19570 |
| Parties | Michael P. KLEINE and Carol Kleine, husband and wife, Plaintiffs-Appellants, v. FRED MEYER, INC., Defendant-Respondent. |
| Court | Idaho Court of Appeals |
William J. Tway, Boise, for plaintiffs-appellants.
Quane, Smith, Howard & Hull, Boise, for defendant-respondent. Eric S. Bailey, argued.
By a complaint filed July 21, 1988, Michael P. and Carol Kleine sought to recover damages against Fred Meyer, Inc., for personal injuries which Michael Kleine allegedly sustained while shopping in a Fred Meyer store on August 5, 1986. By order dated August 23, 1991, the district court dismissed the Kleines' action based on the Kleines' failure to comply with the court's discovery orders. The Kleines appeal from the order of dismissal. We affirm.
On August 5, 1986, the Kleines were shopping in a Fred Meyer store when Michael Kleine (Kleine) slipped and fell. On July 21, 1988, the Kleines filed a personal injury action against Fred Meyer, alleging that Kleine sustained permanent injuries as a result of his fall in the store, and that his fall was caused by the store's negligence in leaving the floor in a slippery condition without posting signs to warn of the floor's dangerous condition.
The district court first scheduled the matter for a jury trial to commence on April 23, 1990. In preparation for trial, Fred Meyer requested discovery of all of Kleine's medical records subsequent to the accident, as well as certain medical records predating the accident. In further preparation for trial, Fred Meyer requested that Kleine undergo an independent medical examination (IME), which he did. However, as a result of the Kleines' failure to produce the medical records requested by Fred Meyer, and their failure to comply with the district court's pretrial order for disclosure of witnesses and exhibits for trial, the parties stipulated to vacate the April 23 trial date. The district court later rescheduled the trial for October 22.
When, by July 26, 1990, the Kleines still had failed to produce the requested medical records, Fred Meyer moved for an order compelling production of the documents. On August 29, the district court granted Fred Meyer's motion ordering the Kleines to produce the requested medical records by September 8. On September 12, Fred Meyer moved the court to vacate the October 22 trial date and to impose sanctions under I.R.C.P. 37, based on the Kleines' continued failure to comply with the court's order to produce Kleine's medical records, and asserting that the Kleines' failure to produce the documents prohibited Fred Meyer from adequately preparing for trial. However, Fred Meyer subsequently withdrew the motion and again agreed to vacate the trial setting in order to provide the Kleines with additional time to obtain the requested medical records.
The district court subsequently rescheduled the trial to commence on June 25, 1991. A pretrial conference was set for May 20, 1991. The Kleines' counsel failed to appear at the May 20 pretrial conference, and on May 22 Fred Meyer again moved to dismiss the Kleines' claim pursuant to I.R.C.P. 16, 37 and 41(b). The district court denied Fred Meyer's motion to dismiss, but stated that if the Kleines failed to produce the requested medical records within ten days, the motion to dismiss would be granted.
The matter was again rescheduled for trial to commence on August 20, 1991. Because of the length of time, about a year and one-half, since Kleine had had the original IME, it was necessary for him to undergo another IME in order to assess his physical condition at the time of trial. Fred Meyer arranged for an IME to take place on July 22, 1991, at the offices of Dr. Richard Wilson. Kleine arrived for the IME with a video camera and tripod so that he could videotape the examination. Doctor Wilson refused to allow Kleine to videotape the examination, and Kleine refused to undergo the examination without videotaping it, so Kleine left and the IME was not performed.
On July 23, 1991, Fred Meyer renewed its motion to dismiss and for sanctions based on Kleine's refusal to participate in the IME scheduled for July 22. A hearing on the motion was conducted on July 29, 1991. After the hearing, the district court IT IS HEREBY ORDERED that Plaintiff is required to participate in an independent medical examination to be conducted by Dr. Richard Wilson on August 12, 1991, if an examination time is available on that date, and provided that Dr. Wilson can prepare a report prior to trial;
[124 Idaho 46] denied the motion to dismiss, but issued the following order:
IT IS FURTHER ORDERED that Plaintiff Michael Kleine is to pay Dr. Wilson's charges [for the prior failed IME] in the amount of $530.00 and the attorney fees incurred by counsel for Defendant in the amount of $976.00 by August 12, 1991, as condition precedent to permitting this action to go forth. In the event Plaintiff fails to pay Dr. Wilson's fees and Defendant's attorney fees by August 12, 1991, and/or fails to attend a medical examination if such can be arranged, this action will be dismissed with prejudice.
The district court also stated at the July 29 hearing that if Kleine wanted to videotape the IME, he would have to make arrangements with Dr. Wilson.
Fred Meyer was able to arrange another IME with Dr. Wilson for August 12, which schedule would allow Dr. Wilson enough time do the exam and prepare his report before the August 20 trial date. However, when Kleine arrived at Dr. Wilson's office, he had with him a video camera and someone to operate the camera without having made prior arrangements with the doctor. When Dr. Wilson refused to allow the IME to be videotaped without some verification that the camera operator was an experienced videographer, Kleine and the videographer left Dr. Wilson's office to get one of the videographer's cards. Kleine and the videographer did not return with the card until only thirty minutes of the ninety minute time period scheduled for the IME remained. At that point, Dr. Wilson informed Kleine that the exam could no longer be performed, and Kleine left.
On August 15, Fred Meyer again moved for dismissal with prejudice, asserting that "the Plaintiffs violated the Court's oral Order of July 29, 1991." In support of its motion, Fred Meyer asserted that Kleine had failed to pay Dr. Wilson's fee for the previous aborted exam by August 12 as ordered by the court, because the check which Kleine issued to Dr. Wilson was insufficiently funded. Fred Meyer also asserted that the August 12 IME did not occur as scheduled because Kleine refused to participate as ordered by the court. At the hearing on the motion to dismiss, Fred Meyer also argued that Kleine had been instructed by his attorney that, should he be prohibited from videotaping the exam, he should nevertheless submit to the exam because otherwise he could face sanctions, including possible dismissal of the case.
In opposition to the motion to dismiss, Kleine asserted that he had complied with the district court's order because he had "made arrangements" to pay Dr. Wilson's fee by August 12th and because even though he brought a professional videographer with him to the IME, Dr. Wilson refused to allow the exam to be videotaped.
After the hearing, the district court made no express finding as to whether Kleine had paid Dr. Wilson's fee by August 12 as he was ordered. However, the district court granted Fred Meyer's motion for dismissal, stating:
Well, I think the bottom line is that the defendants are entitled to a current independent medical examination in order for them to have a fair trial in the case ...
....
... and I think the failure of the examination is due to the plaintiff's shenanigans, and I think I cautioned him about that on the 29th. I don't see how he could have misunderstood how I felt about it. I even directly ordered him to pay for what happened the previous time. Surely, he should have understood that was his fault.
....
[T]he bottom line is if we go to trial the 20th, there's no way [the defendants] can have their independent medical examination and there's no way they can have a fair trial, and under all the circumstances I don't think it's their fault. And, therefore The Kleines have appealed from the order dismissing their case. For the reasons stated below, we affirm.
[124 Idaho 47] I think the plaintiff's to blame and that the motion has to be granted.
The Kleines' appeal requires us to determine whether the district court abused its discretion in granting Fred Meyer's motion to dismiss. Neither the motion for dismissal nor the order granting the motion specify the procedural rule upon which this sanction of dismissal was granted. However, the grounds specified by Fred Meyer in its motion were for Kleine's failure to comply with the district court's prior order requiring Kleine to pay the costs associated with the prior missed IME and to participate in the IME arranged for August 12. The imposition of sanctions for failure to comply with discovery orders is governed by I.R.C.P. 37(b). A district court's decision to dismiss a case for failure to comply with pretrial discovery orders under I.R.C.P. 37(b)(2)(C) and (e) is discretionary and will not be overturned on appeal unless an abuse of that discretion is shown. Ashby v. Western Council, 117 Idaho 684, 686, 791 P.2d 434, 436 (1990).
Because we review the...
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