Orlando v. Boyd

Decision Date01 November 1995
Docket NumberNo. 24370,24370
Citation320 S.C. 509,466 S.E.2d 353
PartiesErnestine ORLANDO and Louis M. Orlando, Appellants, v. Richard C. BOYD, M.D., Bruce W. White, Jr., M.D., Raymond L. Thomas, M.D., Florence Radiological Associates, P.A., and J. Stovall King, M.D., of whom Richard C. Boyd, M.D., Bruce W. White, Jr., M.D., Raymond L. Thomas, M.D., and Florence Radiological Associates, P.A. are Respondents. . Heard
CourtSouth Carolina Supreme Court

O. Fayrell Furr, Jr., of Furr & Henshaw, Myrtle Beach, for appellants.

Donald V. Richardson, III, Charles E. Carpenter, Jr., and Deborah Harrison Sheffield, Richardson, and Plowden, Grier & Howser, Columbia, for respondents.

MOORE, Justice:

Appellants appeal the trial judge's order excluding an expert witness from testifying. We reverse.

FACTS

In 1988, appellant Ernestine Orlando was diagnosed with a brain tumor. During surgery it was discovered she did not have a tumor. Appellants Ernestine and Louis Orlando filed this medical malpractice claim against respondents on October 2, 1991. Dr. Robert Peyster was named as an expert for the Orlandos on December 3, 1991.

The trial judge issued a scheduling order on June 24, 1992. The scheduling order provided in pertinent part: "Plaintiffs must make their experts available for deposition by August 3, 1992." Dr. Peyster was not deposed prior to August 3rd. On August 7, 1992, respondents moved to dismiss for failure to prosecute. On September 9, 1992, the Orlandos moved to extend the time to depose Dr. Peyster. This motion was denied.

As a sanction for failure to abide by the scheduling order, the trial judge ruled the Orlandos could not use Dr. Peyster as an expert witness. The trial judge also denied the Orlandos' motion to extend the deadline to allow them to name and depose another expert. These rulings precluded the Orlandos from having any expert witness. The trial judge then granted the respondents' summary judgment motion because without Dr. Peyster or another medical expert, the Orlandos could not establish a deviation from the proper standard of care.

The Orlandos appealed and the Court of Appeals affirmed in part, vacated in part, and remanded. Orlando v. Boyd, Op. No. 93-UP-311 (S.C.Ct.App. filed November 22, 1993). The Court of Appeals vacated the part of the trial judge's order which precluded the Orlandos from using Dr. Peyster. The court then remanded for the trial judge to make findings of willful disobedience or gross indifference to respondents' rights as required by Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). On remand, the trial judge found the Orlandos were willfully disobedient of the order and grossly indifferent to the respondents' rights.

ISSUE

Did the trial judge abuse his discretion in precluding Dr. Peyster from testifying?

DISCUSSION

The Orlandos contend the trial judge abused his discretion in precluding Dr. Peyster from testifying. We agree. After excluding Dr. Peyster, the trial judge then granted summary judgment. Thus, in essence, he sanctioned the Orlandos and dismissed the case for failure to follow the scheduling order. The exclusion of a witness is a sanction under Rule 37, SCRCP, which should never be lightly invoked. Furthermore, "[w]here the effect will be the same as granting judgment by default or dismissal, a preclusion order may be made only if there is some showing of wilful disobedience or gross indifference to the rights of the adverse party." Baughman, 306 S.C. at 108, 410 S.E.2d 537 (citing 4A Moore's Federal Practice p...

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    • United States
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    ...Grading & Clearing, Inc. v. Tire Serv. Equip. Mfg. Co., 334 S.C. 193, 198, 511 S.E.2d 716, 718 (Ct.App.1999) (citing Orlando v. Boyd, 320 S.C. 509, 466 S.E.2d 353 (1996)). Thus, “[w]here the sanction would be tantamount to granting a judgment by default, the moving party must show bad faith......
  • McComas v. Ross
    • United States
    • Court of Appeals of South Carolina
    • February 21, 2006
    ...for failure to prosecute, there must be some showing of indifference to the rights of the defendant. E.g., Orlando v. Boyd, 320 S.C. 509, 511, 466 S.E.2d 353, 355 (1996) (holding that precluding a witness from testifying was an abuse of discretion without a showing of willful disobedience w......
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    ...Grading & Clearing, Inc. v. Tire Serv. Equip. Mfg. Co., 334 S.C. 193, 198, 511 S.E.2d 716, 718 (Ct. App. 1999) (citing Orlando v. Boyd, 320 S.C. 509, 466 S.E.2d 353 (1996)). Thus, "[w]here the sanction would be tantamount to granting a judgment by default, the moving party must show bad fai......
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