Schneller v. St. Mary's Hosp. Medical Center

• Decision Date: 15 March 1990
• Docket Number: No. 89-0541,89-0541
• Parties: Daniel SCHNELLER, a minor, and his parents, Thomas and Cheryl Schneller, Plaintiffs-Appellants, d v. ST. MARY'S HOSPITAL MEDICAL CENTER, W.C. Mussey, M.D., Defendants-Respondents, Joel Kaufman, M.D. and V.J. Moore, M.D., Defendants.
• Court: Wisconsin Court of Appeals

Page 250

455 N.W.2d 250

155 Wis.2d 365

Daniel SCHNELLER, a minor, and his parents, Thomas and Cheryl Schneller, Plaintiffs-Appellants, d v. ST. MARY'S HOSPITAL MEDICAL CENTER, W.C. Mussey, M.D.,

Defendants-Respondents,

Joel Kaufman, M.D. and V.J. Moore, M.D., Defendants.

No. 89-0541.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 8, 1989.

Opinion Released March 15, 1990.

Opinion Filed March 15, 1990.

Robert J. Gingras and Mary E. Kennelly of Fox, Fox, Schaefer & Gingras, S.C., Madison, for plaintiffs-appellants.

Curtis C. Swanson and Joy L. O'Grosky of Axley Brynelson, Madison, for defendant-respondent, St. Mary's Hosp. Medical Center.

Bonnie A. Wendorff, Bradway A. Liddle, Jr., and Catherine M. Rottier of Boardman, Suhr, Curry & Field, Madison, for defendant-respondent, W.C. Mussey, M.D.

Before EICH, C.J., and GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Daniel Schneller, a minor, and his parents, Thomas and Cheryl Schneller, appeal from an order dismissing their medical malpractice claim against St. Mary's Hospital Medical Center and three doctors (collectively, St. Mary's). The issues are: (1) whether sec. 801.15(2)(a), Stats., which requires a party filing an untimely motion to extend a time deadline to show "excusable neglect" in order to gain an extension of the deadline, is limited to time limits imposed by statute or whether it is equally applicable to limits imposed by court order; and (2) whether the trial court abused its discretion when it declined to permit the Schnellers to name a liability expert after expiration of the time set in the pretrial order for designation of experts.

We conclude that the excusable neglect standard of sec. 801.15(2)(a), Stats., applies to untimely applications for relief from court-ordered deadlines as well as those established by statute or rule and, further, that the court did not abuse its discretion in denying the Schnellers' request to extend the deadline it had set for production of expert witnesses. We therefore affirm the order.

The Schnellers initiated the proceedings leading up to this action in December, 1985, when they filed a claim with the Wisconsin Patients Compensation Panel. In July On September 2, 1987, the trial court issued a pretrial order requiring the Schnellers to name all expert witnesses by February 29, 1988. The order warned that failure to comply with its terms "shall be considered cause for imposing sanctions which may include dismissal ... or barring the presentation of testimony or ... evidence at trial." A settlement conference was scheduled for September, 1988.

1986, following the panel's abolition, the Schnellers filed an action in circuit court alleging that their son, David, sustained injuries during his birth at St. Mary's on December 30, 1978.

The Schnellers filed an expert witness list on the last day, February 29, 1988. The list included thirteen damages experts but no liability experts. The Schnellers also moved the court to extend the already-expired expert witness deadline an additional thirty to forty-five days. They never pursued the motion, however.

On March 8, 1988, Schnellers' attorney and St. Mary's attorney entered into a courtesy agreement whereby the Schnellers agreed to produce a liability expert for deposition by April 19, 1988. When the Schnellers still had not produced the witness by April 6, St. Mary's counsel warned them that they could not prosecute a malpractice action without a liability expert, and that St. Mary's would move for summary judgment if the deadline was not met. The Schnellers neither named nor produced the witness, and they never applied to the court for further extensions of the time limit.

St. Mary's then moved to preclude the Schnellers from naming additional experts. At the hearing on the motion and with no prior notice to the court or opposing counsel, Schnellers' attorney sought and was granted permission to withdraw from the case, and the trial court postponed the hearing for ten days to allow the Schnellers' new counsel to file motions. On May 4, 1988, substitute counsel filed a motion which, among other things, requested an additional sixty days to name expert witnesses.

The court heard both parties' motions on June 10, 1988, and, in a lengthy opinion issued a few months later, denied the Schnellers' motion to enlarge time and granted St. Mary's motion to preclude the Schnellers from naming additional witnesses. St. Mary's then moved for summary judgment on grounds that the Schnellers had failed to substantiate their claim with expert medical testimony. The Schnellers did not oppose the motion and the trial court granted it in an order issued on February 1, 1989.

The Schnellers argue that the trial court erred in relying upon the excusable neglect standard set forth in sec. 801.15(2)(a), Stats., when it denied their motion for additional time to name experts. The statute provides that:

When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms.... If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.

The Schnellers contend that sec. 801.15(2)(a) governs the enlargement of time only for "statutorily prescribed time periods" and not enlargement of time deadlines set by court order. We disagree.

When construing a statute, our first resort is to the language of the statute itself. Abraham v. Milwaukee Mutual Insurance Co., 115 Wis.2d 678, 680, 341 N.W.2d 414, 416 (Ct.App.1983). The language of sec. 801.15(2)(a), Stats., does not limit its application to statutory deadlines or distinguish in any way between time limits set by statute or by court order. It speaks in broad terms, stating that "[w]hen an act is required to be done at ... a specified time, the court may order the period enlarged...."

We consistently have required parties to show excusable neglect for failure to comply with pretrial orders. In Carlson Heating, Inc. v. Onchuck, 104 Wis.2d 175, 311 N.W.2d 673 (Ct.App.1981), we affirmed the trial court's dismissal of a case based on [I]f pretrials are to be of use in expediting court proceedings and assuring proper administration of justice, the trial court must be firm in enforcing its orders. The trial court gave notice to counsel that noncompliance with the pretrial order shall be considered cause for dismissal on the merits. The dismissal of an action where counsel fails to comply with an important term of a pretrial order without justifiable excuse is not an extreme measure if the trial courts are to be encouraged to facilitate and expedite the trials of their cases.

the plaintiff's failure to furnish the defendant with a list of trial witnesses. We recognized that the burden was on the aggrieved party to show a "timely, clear and justifiable explanation" for his or her noncompliance with such an order and concluded that the record supported the trial court's finding that counsel's failure to comply was inexcusable. We explained that:

Carlson, 104 Wis.2d at 181-82, 311 N.W.2d at 677.

In Trispel v. Haefer, 89 Wis.2d 725, 733, 279 N.W.2d 242, 245 (1979), the supreme court affirmed an order dismissing a case for the plaintiff's failure to produce a medical report as required by a pretrial order on grounds that the plaintiff had not shown a clear and justifiable excuse for the failure. In so concluding, the court noted that a clear and justifiable excuse is required because it is the duty of trial courts, independent of statute, to discourage protraction of litigation and to refuse their aid to those who negligently or abusively fail to prosecute their actions. ¹

The Schnellers do not discuss Trispel or Carlson Heating. They suggest instead that other statutes, notably sec. 802.10(3)(b), Stats., dictate a lesser standard, and that the trial court erred in placing "too onerous a burden" on them. Section 802.10 deals with "calendar practice." Subsection (3)(a) requires the court to set the times by which pretrial matters such as default judgment motions, discovery, impleader, amendment of pleadings, and pretrial motions must be completed. Subsection (3)(b) requires those times to be memorialized in a written order and states that "[i]f at any time it appears that such schedules cannot reasonably be met, the judge may amend the order upon timely motion of any party." The Schnellers read sec. 802.10(3)(b) as abrogating any need on the part of a moving party--at any time--to show cause for extending a time limit established by pretrial order. We read it differently.

To construe the statute as the Schnellers do would directly contradict Trispel, Carlson Heating, and similar cases. We read the statutory language as simply giving the court discretion to amend the scheduling order. The manner in which that discretion is exercised, however, is found earlier in the statute: "Any order made under this section may ... upon motion of a party for cause shown, be amended." Sec. 802.10(2), Stats. (emphasis added).

In addition, we consider it significant that sec. 802.10, Stats., concerns motions to amend schedules for the several pretrial matters mentioned in the statute whenever it appears that they "cannot ... be met." The language plainly contemplates pre-expiration amendments and, as we have noted, it expressly states that such amendments may be made only upon a showing of cause. Section 801.15(2), Stats., which deals specifically with the extension of time periods also requires a showing of cause for extension motions made prior to expiration of the deadline, but it imposes a higher standard--excusable neglect--where the motion is made "after ... expiration of the specified time...." If there is any conflict between secs. 802.10 and 801.15--and we see none--the latter, as the more specific statute, should control.

We...