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

• Decision Date: 05 June 1991
• Docket Number: No. 89-0541,89-0541
• Citation: 162 Wis.2d 296,470 N.W.2d 873
• Parties: Daniel SCHNELLER, a minor, and his parents, Thomas and Cheryl Schneller, Plaintiffs-Appellants-Petitioners, 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 Supreme Court

Page 873

470 N.W.2d 873

162 Wis.2d 296

Daniel SCHNELLER, a minor, and his parents, Thomas and Cheryl Schneller, Plaintiffs-Appellants-Petitioners, 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.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 27, 1991.

Decided June 5, 1991.

Casey A. Nagy, Robert J. Gingras, and Fox, Fox, Schaefer & Gingras, S.C., Madison, for plaintiffs-appellants-petitioners.

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

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

BABLITCH, Justice.

The plaintiffs, Daniel Schneller, a minor, and his parents, Thomas and Cheryl Schneller, (the Schnellers), seek review of a court of appeals' decision affirming the circuit court's grant of summary judgment dismissing their medical malpractice case against the defendants, St. Mary's Hospital Medical Center and three doctors (collectively, St. Mary's), 155 Wis.2d 365, 455 N.W.2d 250. The dismissal of the Schnellers' case was the outcome of the circuit court's order denying the Schnellers' untimely motion to amend the scheduling order to allow them to name liability experts essential to prosecuting their case. The issue is whether the circuit court abused its discretion by denying their motion and precluding them from naming expert witnesses even though the effect of that order was the dismissal of their case. We conclude that the circuit court did not abuse its discretion by denying the Schnellers' motion because the conduct of the Schnellers' initial counsel in failing to comply with the court's scheduling order was without cause. We further conclude that the effective dismissal of the Schnellers' case was not an abuse of discretion because the circuit court had a rational basis for implicitly determining that the Schnellers' initial counsel's conduct was egregious and without a clear and justifiable excuse. Accordingly, we affirm.

The facts of this case are these. Daniel Schneller was born on December 30, 1978. In December, 1984, his parents were advised by Daniel's new pediatrician that it appeared from Daniel's birth records that there may have been some irregularities in Daniel's delivery. After consulting a second doctor, the Schnellers decided to pursue a medical malpractice claim against St. Mary's. On December 10, 1985, the Schnellers filed a Submission of Controversy with the now-abolished Patient Compensation Panel, alleging that St. Mary's had been negligent in the delivery of Daniel Schneller on December 30, 1978, and that this negligence resulted in Daniel's permanent retardation and mental and emotional disability. On July 7, 1986, they transferred their case to Dane County Circuit Court because of the abolition of the Patient Compensation Panel. The defendants were served with the plaintiffs' summons and complaint on August 15, 1986.

Following a pretrial conference on September 2, 1987, the circuit court issued a pretrial order requiring that the Schnellers name expert witnesses by February 29, 1988. The court also scheduled a settlement conference for September, 1988. The pretrial order stated that the case would be controlled by the indicated schedule "unless modified upon motion of a party or the Court for good cause." In addition, the Order warned:

Failure to comply with the terms of this Order shall be considered cause for imposing sanctions which may include dismissal, default judgment, contempt, money terms, orders limiting or barring the presentation of testimony or introduction of evidence at trial, or any combination thereof, or such other added and further sanctions as the Court may deem appropriate under the circumstances.

On February 29, 1988, the Schnellers designated thirteen expert witnesses as required by the court's order. None of these thirteen experts was a liability expert. At this time, the Schnellers also moved the court to enlarge the time to name expert witnesses by 30-45 days. This motion, which was never pursued, stated that additional time was necessary to obtain expert review and response to recently obtained neurological evidence.

On March 8, 1988, the Schnellers and St. Mary's entered into a courtesy agreement to allow the Schnellers until April 19, 1988, to produce a liability expert for deposition. On April 6, 1988, St. Mary's warned the Schnellers that they would move for summary judgment if the Schnellers did not produce a liability expert as agreed by April 19, 1988. The Schnellers neither named nor produced the witness, and they never applied to the court for further extension of the time limit for naming experts.

St. Mary's moved the court to preclude the Schnellers from naming any additional experts. At the scheduled hearing on this motion on April 28, 1988, the Schnellers' attorney requested permission to withdraw from the case. The circuit court granted his request, postponed the hearing on St. Mary's motion, and granted the Schneller's new counsel ten days to file motions.

On May 4, 1988, the Schneller's new counsel moved to extend the period of time for naming experts by sixty days. On May 5, 1988, the Schnellers named two doctors as liability experts. On May 10, 1988, the Schnellers submitted an affidavit in support of its motion to enlarge time which introduced a report from one of the proposed liability experts outlining his preliminary opinion that St. Mary's had committed various acts of negligence in Daniel's delivery.

At the hearing on both parties' motions on June 10, 1988, the Schnellers emphasized that their new counsel had taken prompt remedial action to name liability experts and that these experts' depositions could be taken in plenty of time for the September, 1988 settlement conference to take place as scheduled. St. Mary's emphasized that the Schnellers' motion should not be granted because they had not presented any reason whatsoever for not naming liability experts by the ordered date of February 29, 1987, or within the forty-five day extension they had requested.

In an order dated October 3, 1988, the circuit court denied the Schnellers' motion seeking to extend the time for naming experts and granted the defendants' motion to preclude the Schnellers from naming additional experts. The circuit court found that the Schnellers' May 4, 1988 motion to enlarge time was untimely and determined that under sec. 801.15(2)(a), Stats., the Schnellers' motion should not be granted because they had failed to state any cause or to establish excusable neglect for their failure to meet the court-ordered deadlines for naming expert witnesses. The court also found that it was in the interests of justice to deny the Schnellers' motion because of the dilatory behavior of the Schnellers' original counsel, the prejudice to St. Mary's caused by the ten year gap since the alleged negligent acts had occurred, and the interference with the orderly administration of justice that is caused when parties fail to comply with scheduling orders.

The court also emphasized its view that the Schnellers and their attorneys, by not having procured a liability expert in the years since initiating their action, had violated "a responsibility to each other, to the persons they claim against, to the courts and to the whole fabric of society to have some idea and basis for their travels before they get so totally into the process."

Subsequently, St. Mary's moved for summary judgment on the ground that the Schnellers had failed to substantiate their medical malpractice claim with expert medical testimony. The Schnellers responded to that motion with a letter to the court conceding that summary judgment was appropriate in view of the court's refusal to allow the Schnellers to formally name liability experts. The circuit court granted St. Mary's motion for summary judgment and dismissed the Schnellers' case. The court of appeals affirmed.

The primary issue in this case is whether the circuit court abused its discretion by precluding the Schnellers from naming expert liability witnesses even though the effect of that order was the dismissal of the Schnellers' case. The Schnellers also raise the issue of whether the effective dismissal of their cause of action by the circuit court unfairly deprived them of their fundamental due process right to prosecute their case.

The decision of whether a scheduling order will be modified is within the circuit court's discretion, and its decision will only be reversed for an abuse of discretion. Alexander v. Riegert, 141 Wis.2d 294, 298, 414 N.W.2d 636 (1987). Similarly, the circuit court's decision to dismiss an action is discretionary and will not be disturbed unless the party claiming to be aggrieved establishes that the circuit court has abused its discretion. Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, ----, 470 N.W.2d 859. A discretionary decision will be sustained if the circuit court has examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175 (1982). The test is not whether this court as an original matter would have denied the motion; it is whether the circuit court abused its discretion in doing so. Johnson at ----, 470 N.W.2d at 863.

We hold that the circuit court did not abuse its discretion by denying the Schnellers' motion to enlarge time to name experts. The court had a rational basis for concluding that the Schnellers had not shown cause for their failure to name experts in accordance with the scheduling order. We also hold that it was within the circuit court's discretion to effectively dismiss the Schnellers' case because there was a rational...