Krugman v. Palmer College of Chiropractic
| Decision Date | 13 April 1988 |
| Docket Number | No. 86-896,86-896 |
| Citation | 422 N.W.2d 470 |
| Parties | Bonnie KRUGMAN, Appellant, v. PALMER COLLEGE OF CHIROPRACTIC, Warren Rhodes, and Patrick T. Keefe, Appellees. |
| Court | Iowa Supreme Court |
Paul R. O'Malley of O'Malley and O'Malley, Ltd., Chicago, Ill., and Winstein, Kavensky, Wallace & Doughty, Rock Island, Ill., for appellant.
John J. Carlin and Robert D. Lambert of Carlin, Hellstrom & Bittner, Davenport, for appellees.
Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO and ANDREASEN, JJ.
Plaintiff Bonnie Krugman appeals the trial court's order precluding her from using three of her medical experts at trial and dismissing her petition as a sanction for failing to meet court-ordered discovery deadlines. Additionally, plaintiff asserts error in earlier orders denying her motions for a trial continuance. We believe one issue is determinative of this appeal: whether the trial court abused its discretion by imposing the harsh sanction of dismissing the plaintiff's petition. The court of appeals held that there was an abuse of discretion, reversed the trial court, and remanded for a trial. Finding no abuse of discretion in the trial court's dismissal ruling, we vacate the court of appeals decision and affirm the trial court. Thus, we do not reach the question of plaintiff's use of experts or her motions for continuance.
I. Background facts and proceedings. This case stems from plaintiff's allegation that negligent care she received at the Palmer College of Chiropractic from defendants Warren Rhodes and Patrick T. Keefe on September 3, 1980, directly caused a stroke she suffered the following day. The stroke necessitated major neurosurgery and left her partially paralyzed. Deciding to bring suit, she sought the counsel of Paul R. O'Malley, a Chicago attorney well versed in medical and chiropractic malpractice litigation. O'Malley obtained the services of Winstein, Kavensky, Wallace and Doughty of Rock Island, Illinois, as local counsel for an action in the Iowa district court.
Plaintiff filed her petition in this case on September 1, 1982, only three days before the statute of limitations on her cause of action would have run. See Iowa Code § 614.1(9) (1979). This late filing set the tone for attorney O'Malley's subsequent actions on Krugman's behalf.
After filing their answers, defendants, Palmer College of Chiropractic, Rhodes and Keefe, served plaintiff with a set of interrogatories which included requests for the names of the plaintiff's expert witnesses, the general substance of their opinions, and the facts upon which those opinions were based. See Iowa R.Civ.P. 125(a). Plaintiff responded that those interrogatories could not be answered because no expert had yet been retained.
Over the next six months, defendants made repeated attempts, pursuant to Iowa Rule of Civil Procedure 125(c), to get the plaintiff to supplement her answer to interrogatory number seven concerning plaintiff's medical experts. The court, at defendants' request, entered an order dated May 9, 1983, requiring plaintiff to file a list of experts and answer defendants' interrogatories before filing a certificate of readiness for trial.
On February 1, 1984, seventeen months after the case was first filed, defendants filed a motion for summary judgment. See Iowa R.Civ.P. 237. Their motion, supported by the opinions of two treating neurosurgeons and a chiropractor, argued that there was no causal connection between the chiropractic care plaintiff received and her subsequent stroke and noted that the plaintiff had yet to secure an expert medical witness. In response to defendants' summary judgment motion, plaintiff's attorney obtained a sixty day extension of time to depose four of defendants' medical experts. Although O'Malley did not depose those experts, on May 23, 1984, he filed the affidavit of a Chicago physician, Dr. Neil Allen, stating that Dr. Allen believed there was a causal connection between plaintiff's chiropractic care and her stroke.
No further action occurred in the case until 1985. Then, pursuant to Iowa Rule of Civil Procedure 215.1, the case was scheduled to be dismissed for want of prosecution and notice was sent to all parties. On September 16, 1985, in response to the rule 215.1 strike notice, plaintiff filed a trial certificate of readiness, see Iowa Rule of Civil Procedure 181, stating that the case would be ready for trial on January 10, 1986. A trial setting conference was held the next month on October 22, 1985, at which time all counsel agreed to a trial date of April 28, 1986, and the case was removed from the rule 215.1 strike list.
Defense counsel, after repeated attempts to depose Dr. Allen, then filed a motion to compel his production for a deposition. A deposition was finally obtained in late December 1985, over eighteen months after Dr. Allen's affidavit was filed.
The following month, the defendants also filed a motion for scheduling order with the court noting that the previous order of May 9, 1983, which required plaintiff to list her expert witnesses and supplement her interrogatory answers before filing a certificate of readiness, had not been honored. See Iowa R.Civ.P. 125(c) and 136(b). A scheduling order was entered on January 28, 1986. 1 In that order, plaintiff was required to list her expert witnesses by February 28 and defendants were required to list their experts by March 14. Discovery was to be concluded by both sides on April 14.
Two days later, on January 30, attorney O'Malley participated in a pretrial conference in an Illinois action. He agreed to try the Illinois case beginning April 14. O'Malley expected that case to last only two weeks, allowing him to be free for the Krugman trial date of April 28. Opposing counsel in the Illinois case, however, expected the case to take a minimum of three weeks.
By agreement of the parties on February 19, Dr. Kassell, one of the neurosurgeons who treated Krugman, was to be deposed in St. Louis, Missouri, on March 14. Dr. Kassell was deposed on that date by defendants' attorneys, but O'Malley failed to appear to cross-examine or to take a separate discovery deposition he had scheduled with Dr. Kassell.
Plaintiff submitted a letter to defense counsel on February 28 listing three new experts, but the letter did not divulge the opinions they might offer at trial or the facts upon which their opinions would be based. The letter added that "other [unnamed] treating physicians disclosed through discovery" might be called to offer expert testimony at trial. Defendants then filed their list of experts which included the names of two new experts not previously listed along with eleven other experts of whom plaintiff was previously made aware.
April saw a flurry of motions, hearings and rulings in this case. Defendants sought court ordered supplementation of their original interrogatories, particularly interrogatory number seven relating to plaintiff's experts and their opinions and exclusion of any expert witness not properly identified. See Iowa R.Civ.P. 125(c) and 134(a). That order was granted on April 1. In addition to compelling plaintiff to supplement her answers by April 4, the order required that plaintiff make her experts available for deposition prior to trial or risk Iowa Rule of Civil Procedure 134(b) sanctions. Plaintiff mailed a supplemental answer to interrogatory seven on April 4. It arrived and was filed April 7, one working day late.
The following day, at a motion for summary judgment hearing, attorney O'Malley filed a motion for continuance. He stated to the court for the first time that he was involved in a complex medical malpractice trial in Illinois that would interfere with his ability to properly prepare for Krugman's trial and would overlap the trial dates then slated for Krugman's trial. O'Malley also sought continuation of the final pretrial conference date in the Krugman case because he had scheduled an important deposition in his Illinois action on the same date.
On April 9, Judge Briles overruled the motion for continuance; and, because another date could not be agreed upon which would not conflict with O'Malley's Illinois commitments, the final pretrial conference was canceled. Additionally, the court ordered plaintiff to file the documents required by court rule 7.1B of Iowa's seventh judicial district on or before April 21 (those documents were the exhibit list, pretrial brief, proposed jury instructions, and negligence action checklist including a detailed itemization of damages). We quote relevant sections of the court's ruling which explain its decision:
No good cause is shown for a continuance. All fault and neglect in this case has been by the plaintiff. It is obvious to the Court that by the failure of the plaintiff to file a supplemental answer to Interrogatory No. 7 of the Palmer College interrogatories, the plaintiff never intended to be ready for trial on the 28th of April, 1986. The plaintiff has taken no move to take evidentiary depositions of her own experts, although her attorney advises that he does plan to present the testimony of some, if not all of them, by evidentiary deposition. It is clear that the attorney for the plaintiff has known since February that he was planning to use these doctors. The failure to file the answers to the interrogatories designating these persons as experts and supplying the other information required appears to have been a deliberate ploy to avoid the trial date which had been set October 22, 1985.
Counsel complains that he has to try a three-week complex medical malpractice case in Rock Island, Illinois, beginning on April 14, 1986. This [the Illinois] case, however, was set only three months ago, and counsel does not pretend that he ever told the Illinois judge that he had this conflict and that if that case could not be tried in two weeks he would not be able to try it.
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