Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston, Inc.

• Decision Date: 13 September 1988
• Docket Number: INC,No. 87-2055,COCA-COLA,CAIRO-SIKESTO,87-2055
• Citation: 852 F.2d 280
• Parties: James Shannon PATTERSON, a minor, By his father and next friend, John PATTERSON, and John Patterson, individually, Plaintiffs-Appellants, v.BOTTLING COMPANY, the Coca-Cola Company and Chattanooga Glass Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 280

852 F.2d 280

11 Fed.R.Serv.3d 952

James Shannon PATTERSON, a minor, By his father and next

friend, John PATTERSON, and John Patterson, individually, Plaintiffs-Appellants, v. COCA-COLA BOTTLING COMPANY CAIRO-SIKESTON, INC., the

Coca-Cola Company and Chattanooga Glass Company,

Defendants-Appellees.

No. 87-2055.

United States Court of Appeals, Seventh Circuit.

Argued June 13, 1988.

Decided July 15, 1988.

Rehearing Denied Sept. 13, 1988.

Jeanne L. Sathre, Lakin & Herndon, Wood River, Ill., for plaintiffs-appellants.

Frank N. Gundlach, Armstrong, Teasdale, Kramer, Vaughan & Schlafly, St. Louis, Mo., for defendants-appellees.

Before WOOD, Jr., EASTERBROOK and RIPPLE, Circuit Judges.

PER CURIAM.

James Shannon Patterson, a minor, brings this products liability action with his father, seeking damages from defendants ¹ for personal injuries suffered when a soft drink bottle allegedly exploded, causing facial injuries to minor plaintiff. The district court dismissed the case with prejudice for plaintiffs' failure to comply with discovery orders and court deadlines. We affirm.

The injury which is the basis for plaintiffs' complaint occurred in August, 1982. In December, 1983, plaintiffs filed an action in the United States District Court for the Southern District of Illinois, seeking damages for personal injuries allegedly resulting from the "explosion" of a Coca-Cola bottle. In April, 1984, plaintiffs voluntarily dismissed their complaint without prejudice.

In April, 1985, plaintiffs again filed an action against defendants, this time in the Circuit Court of Madison County, Illinois. Defendants jointly removed the case to the United States District Court for the Southern District of Illinois.

On May 28, 1985, Judge Beatty set the case for trial in January, 1987. In his May 28 order, Judge Beatty instructed the parties to disclose experts at least three months prior to the trial date. On June 21, 1985, the case was transferred to the Benton Division of the Southern District of Illinois. In a June 28, 1985 order, Judge Foreman set a new trial date for October 6, 1986, and ordered that discovery be completed by September 8, 1986.

On November 11, 1985, defendant Coca-Cola Company submitted a request for production of the fragments of the bottle which were the subject of the litigation. Defendant Coca-Cola Company filed a motion to compel on April 14, 1986, for plaintiffs' failure to respond to defendants' request for the bottle fragments. Plaintiffs did not respond. On May 2, 1986, the district court entered an order to show cause why plaintiffs had failed to respond to the motion to compel. Plaintiffs again did not respond. As a result, on June 4, 1986, the district court granted defendants' motion to compel. Plaintiffs were ordered to comply with the request for production of the bottle fragments within fifteen days.

Despite the court order, however, plaintiffs failed to produce the bottle fragments. Defendant Coca-Cola Company then filed a motion for sanctions on June 30, 1986, requesting that plaintiffs' complaint be dismissed. On August 8, 1986, the district court entered an order granting defendants' motion for sanctions. In his August 8 order, the district judge stated that plaintiffs' complaint would be dismissed unless plaintiffs complied with the order to produce the bottle fragments within ten days. In late August, 1986, plaintiffs finally complied with the order to produce the bottle fragments for inspection by defendants' experts.

On September 10, 1986, plaintiffs filed a motion to continue discovery and to reset the trial date. The motion was granted on September 22, 1986, and the case was given a new trial date of January 5, 1987. In his September 26 order, Judge Foreman stated that no further continuances would be allowed. On November 28, 1986, plaintiffs filed another motion seeking an additional twenty-one days to complete discovery. This motion was also granted.

On December 22, 1986, at what was to have been a final pretrial conference, the district court granted plaintiffs' request for a continuance from the January 5, 1987, trial date. Plaintiffs' counsel told the court that the case was dependent upon expert testimony and that he had not yet secured an expert witness for trial. In its December 22 order granting the continuance, the district court ordered plaintiffs to identify their expert witness within forty-five days. At this same conference, the district judge made it clear that if plaintiffs did not identify an expert within this forty-five day period, the district court would dismiss the case with prejudice. Also at this conference, plaintiffs' counsel requested that the bottle fragments be returned to him by defendants, although he did not state the bottle fragments were needed in order to secure an expert witness.

Under the terms of the December 22 order, plaintiffs were instructed to identify their expert by February 5, 1987. Plaintiffs failed to do so. Instead, on February 9, 1987, plaintiffs filed a motion for an additional fourteen days within which to disclose expert witnesses. Plaintiffs claimed that they had been unable to find an expert because of defendants' failure to promptly return the bottle fragments. ² The district court denied the motion for an extension on February 26, 1987. The district judge ordered that plaintiffs be barred from introducing expert testimony and gave plaintiffs ten days to file a response showing why the case should not be dismissed with prejudice. In its order, the district court noted that, by plaintiffs' own admission, the case could not survive without expert testimony.

Plaintiffs filed a motion on March 3, 1987, in an attempt to persuade the district court not to dismiss the case. In its motion to vacate the February 26 order, plaintiffs alleged that the bottle fragments had been returned in a damaged condition. On March 19, 1987, plaintiffs filed a motion for sanctions against defendants for the alleged damage to the bottle while it was in defendants' care.

On May 22, 1987, the district court denied plaintiffs' motion for reconsideration and dismissed plaintiffs' case with prejudice. The district judge stated:

In conclusion, this Court probably should have dismissed this case for plaintiffs' blatant failure to adhere to this Court's Order back in August of 1986. Plaintiffs were totally uncooperative in the discovery procedures. This Court definitely should have dismissed this case when plaintiffs failed to meet the Court's extended deadline for finding and disclosing their expert witness. Counsel for plaintiffs has missed every deadline imposed by this Court and only now sees the import of working this file. The Court will not now miss its chance to correct its earlier overabundance of patience.

Plaintiffs filed a motion to reconsider on June 1, 1987, which was denied on June 12, 1987. Plaintiffs now take this appeal.

The sole issue is whether the district court abused its discretion in precluding plaintiffs from introducing expert testimony and in dismissing their action for failure to comply with discovery orders and deadlines.

Rule 37 of the Federal Rules of Civil Procedure states, in pertinent part:

Failure to Make or Cooperate in Discovery: Sanctions

(b) Failure to Comply with Order.

(2) Sanctions by Court in Which Action is Pending. If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party ...

FED.R.CIV.P. 37(b).

In National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976), the United States Supreme Court set forth the standard of review for an order of dismissal under Rule 37 of the Federal Rules of Civil Procedure. In National Hockey League, the Court held that such dismissals will be affirmed unless the district court abused its discretion. 427 U.S. at 642, 96 S.Ct. at 2780. Similarly, this court has held that a district court's action in dismissing a case with prejudice should not be reversed unless there has been an abuse of discretion. Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir.1984). This court will not set aside a trial court's discretionary order unless it is clear that no reasonable person could concur in the trial court's assessment of the issue under consideration. 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987).

Although plaintiffs argue that a dismissal should only be affirmed where the record shows the party acted "due to willfulness or bad faith," this court has indicated that the element of fault on the part of the noncomplying party will also be considered. Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1179 (7th Cir.1987). Thus, (unlike a Rule 41(b) dismissal) a Rule 37(b) dismissal requires both a failure to comply with a discovery order and a showing of willfulness, bad faith, or fault. Id.

Plaintiffs maintain that Fox v. C.I.R., 718 F.2d 251, 254 (7th Cir.1983), holds that the discretion of a district court to dismiss with prejudice for failure to comply with discovery orders is not very broad. Plaintiffs contend that unless there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing, a dismissal with prejudice should not be ordered. Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir.1983).

This court has recognized, however, that a district court's discretion in this area is "broad." Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469, 472 (7th Cir.1984). The sanction of dismissal is "essential to the district courts' ability to manage...