Lowrey v. Glassman, No. 04-CV-323.

• Citation: 908 A.2d 30
• Decision Date: 21 September 2006
• Docket Number: No. 04-CV-323.,No. 04-CV-398.
• Parties: Bruce F. LOWREY, Appellant and Cross-Appellee v. Peter S. GLASSMAN, et al., Appellees and Cross-Appellants.
• Court: Court of Appeals of Columbia District

908 A.2d 30

Bruce F. LOWREY, Appellant and Cross-Appellee v. Peter S. GLASSMAN, et al., Appellees and Cross-Appellants.

No. 04-CV-323.

No. 04-CV-398.

District of Columbia Court of Appeals.

Argued April 7, 2005.

Decided September 21, 2006.

Vanessa Carpenter Lourie, Washington, DC, for Bruce F. Lowrey.

Paul J. Kiernan, Washington, DC, for Peter S. Glassman and Friendship Family, LLC.

Before RUIZ, Associate Judge, and KING and TERRY, Senior Judges.^*

TERRY, Senior Judge:

Appellant Bruce Lowrey filed this suit for injunctive and monetary relief against appellees Peter Glassman and Friendship Family, LLC (collectively "Friendship"). Dr. Glassman is a veterinarian who operates the Friendship Hospital for Animals in Northwest Washington; the property is owned by Friendship Family, LLC. Lowrey's complaint alleged that Friendship violated District of Columbia zoning requirements and created a nuisance through the operation of the clinic. In particular, he asserted that the reconfiguration of the hospital's parking lot violated applicable zoning requirements and caused damage to his property, because cars backing out of the lot came in contact with his home. Lowrey also claimed that the reconfiguration of the parking lot increased the level of noise, pollution, and physical disturbance around his home, thereby creating a private nuisance. Lowrey sought both damages and injunctive relief.

The principal issue before us concerns the trial court's decision to grant Friendship's motion to strike Lowrey's designation of expert witnesses and its contemporaneous grant of summary judgment to Friendship, on the ground that without expert testimony Friendship could not prove its case. We affirm both of those rulings. We reverse, however, the trial court's denial of Friendship's subsequent motion for attorney's fees and remand the case for reconsideration of that motion.

I. FACTUAL BACKGROUND

The trial court entered a scheduling order on August 1, 2003. The order required, among other things, that Lowrey's Rule 26(b)(4) statement¹ be filed by October 1, 2003, and that Friendship's statement be filed by November 1, 2003. In addition, the discovery period was to close on December 1, 2003. Lowrey's Rule 26(b)(4) statement, which he filed on October 1, listed six named individuals and one unnamed "D.C. Zoning Inspector" as experts whom Lowrey "may call" at trial. The statement also outlined the facts as to which each individual "may testify," with the exception of the Zoning Inspector, who the statement said "will testify" to certain zoning violations. Finally, the statement declared that "[a]ll reports will be forwarded promptly upon receipt."

In a letter dated October 6, 2003, counsel for Friendship notified Lowrey's counsel that the Rule 26(b)(4) statement was "inadequate under the Rules" because it failed to provide "the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion." Friendship also requested reports from Lowrey in order to be able to "call a responsive expert and to develop that expert's report." Friendship asked that these reports be delivered no later than October 10. Counsel for Friendship sent similar requests on October 16, 27, and 29, all of which went unanswered. On November 3, 2003, Friendship filed with the court a "Statement Regarding Counter-Designation of Experts," which stated that Friendship was "unable ... to designate expert witnesses in opposition to those purportedly designated by plaintiff" because of the deficiencies in Lowrey's Rule 26(b)(4) statement and his failure to provide expert reports.

On November 18 Lowrey provided Friendship with two expert reports, one from an acoustical engineer (Mr. Beam) and the other from a structural engineer.² The structural engineer's report stated that, "at present, the structure is sound and competent." Lowrey provided no other expert reports and, in particular, no reports related to any actual damages he had incurred.³ At his deposition on November 24, Lowrey admitted that none of the expert witnesses designated in the Rule 26(b)(4) statement had actually been retained and that most of them had not even been contacted.⁴ As a result, Friendship filed a motion to strike Lowrey's designation of expert witnesses on December 16, 2003. Separately, Friendship moved for summary judgment. Lowrey opposed both motions.

On February 17, 2004, the trial court entered an order granting Friendship's motions. It concluded that "[Lowrey's] discovery violations here are flagrant and repeated." Moreover, the court found that the representations made in Lowrey's Rule 26(b)(4) statement "border on being duplicitous, in that the experts designated therein had for the most part neither been retained, nor even contacted." The court determined that "[n]othing contained in the Rule 26(b)(4) statement was true, or, to put the best plaintiff's gloss on it, none of it was true as of the date the statement was submitted, and very little of it became true as time went on." Thus the court concluded that Lowrey's "extreme violation of the rules ... had to have been intentional, and neither financial considerations time pressures, other obligations, or the like can excuse such a flagrant violation." The court then granted summary judgment in favor of Friendship, ruling that "without expert witness support [Lowrey] simply cannot establish a zoning regulation violation or his own alleged structural property damage." Lowrey filed a timely notice of appeal.

Friendship thereafter filed a motion for an award of costs and attorney's fees. The court denied the motion for fees and partially granted the motion for costs. In so ruling, the court determined that Friendship was not entitled to attorney's fees under either Civil Rule 11 or Civil Rule 16, primarily because it was satisfied that Lowrey did not act in bad faith. From that ruling Friendship noted a cross-appeal, which we consolidated with Lowrey's original appeal.

II. LOWREY'S APPEAL

A. Striking Expert Witnesses

Lowrey argues, essentially, that the sanction imposed by the trial court was too severe under the circumstances because he did not willfully fail to comply with the rule, and the court should therefore have availed itself of a lesser sanction such as a continuance or the re-opening of discovery. We disagree. "The trial court has broad discretion to apply discovery sanctions...." Weiner v. Kneller, 557 A.2d 1306, 1309 (D.C.1989) (citation omitted). Thus "the judgment of the trial court will only be disturbed if this discretion has been abused, and abuse may only be found where the trial judge has imposed `a penalty too strict or unnecessary under the circumstances.'" Id. (quoting Henneke v. Sommer, 431 A.2d 6, 8 (D.C.1981)).

When, as in this case, the trial court is considering the exclusion of evidence (i.e., striking Lowrey's expert witnesses) as a sanction for discovery violations, there are five factors it must consider:

(1) whether allowing the evidence would incurably surprise or prejudice the opposite party; (2) whether excluding the evidence would incurably prejudice the party seeking to introduce it; (3) whether the party seeking to introduce the testimony failed to comply with the evidentiary rules inadvertently or willfully; (4) the impact of allowing the proposed testimony on the orderliness and efficiency of the trial; and (5) the impact of excluding the proposed testimony on the completeness of information before the court or jury.[⁵]

Weiner, 557 A.2d at 1311-1312; accord, Forti v. Ashcraft & Gerel, 864 A.2d 133, 138-139 (D.C.2004). "[A] failure to evaluate all the appropriate factors is likely to warrant reversal." Abell, supra note 5, 697 A.2d at 801 (citation omitted). In addition, "the trial court should also consider whether a less severe sanction ... is warranted." Robinson v. Samuel C. Boyd & Son, Inc., 822 A.2d 1093, 1101 (D.C. 2003).

In this case, we hold, the trial court did not abuse its discretion when it granted Friendship's motion to strike Lowrey's expert witnesses. First, it is clear from the court's order that it considered the gravity of the sanction and the possibility of imposing one less severe. Second, although the trial judge did not explicitly evaluate all of the factors articulated in Weiner, he clearly considered them in making his decision.⁶ The judge stated in his opinion: "Although it might be argued that with respect to factors 1, 2, 4, and 5, the impact on the plaintiff might justify the court's forgiveness of the violation and an order that the discovery process with respect to expert witnesses start all over again, the court has concluded that factor 3 in the Weiner analysis does not permit such a charitable result."

While the trial court was required to consider all of the factors listed in Weiner and similar cases, exclusion of evidence "can be appropriate even when some of the factors are not met." Sheppard v. Glock, Inc., 176 F.R.D. 471, 473 (E.D.Pa. 1997). It is also important to point out that "a finding of willfulness ... would go a considerable way toward supporting the judge's decision to strike...." Abell, 697 A.2d at 803. Here the court concluded that Lowrey's violation "could not have been inadvertent. It had to have been intentional...." The record amply supports that conclusion.⁷ It was therefore not an abuse of discretion to strike the expert witnesses, since the third Weiner factor weighed so heavily in favor of a severe sanction.

Moreover, the first Weiner factor is not without significance here. As Friendship points out, it had no way of counter-designating expert witnesses when it did not know the substance of Lowrey's expert witness testimony. Surprisingly, Lowrey states in his brief that Friendship "never sought any information regarding Lowrey's planned experts or expert reports in his interrogatories or in his request for production of documents, yet [Friendship] claimed...