Seal v. Woodrows Pharmacy

• Decision Date: 19 October 1999
• Docket Number: No. 98-690.,98-690.
• Citation: 988 P.2d 1230,1999 MT 247
• Parties: LaVern SEAL, as Personal Representative of the Estate of LaRell Seal, and Individually, Plaintiff and Appellant, v. WOODROWS PHARMACY, a corporation formed under the laws of the state of Montana, or a partnership formed under the laws of the state of Montana, and Bruce Nelson, individually, and as doing business under the name of Woodrows Pharmacy, Inc., or as a partnership or other form of business entity, Dr. J.T.L., Dr. J.C.M., Dr. D.B.C., And Dr. D.G.H., Defendants and Respondents.
• Court: Montana Supreme Court

988 P.2d 1230

1999 MT 247

LaVern SEAL, as Personal Representative of the Estate of LaRell Seal, and Individually, Plaintiff and Appellant, v. WOODROWS PHARMACY, a corporation formed under the laws of the state of Montana, or a partnership formed under the laws of the state of Montana, and Bruce Nelson, individually, and as doing business under the name of Woodrows Pharmacy, Inc., or as a partnership or other form of business entity, Dr. J.T.L., Dr. J.C.M., Dr. D.B.C., And Dr. D.G.H., Defendants and Respondents.

No. 98-690.

Supreme Court of Montana.

Submitted on Briefs August 26, 1999.

Decided October 19, 1999.

Thomas S. Winsor, Winsor Law Firm, Helena, Montana, For Appellant.

John H. Maynard and Marcia Davenport, Crowley, Haughey, Hanson, Toole and Dietrich, Helena, Montana, For Respondents. Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 LaVern Seal brought this action in the Thirteenth Judicial District Court, Yellowstone County, to recover damages for the wrongful death of his son, LaRell Seal, arising from the alleged negligence of Dr. D.G.H. and other defendants. All defendants except Dr. D.G.H. were dismissed by stipulation of the parties. The District Court granted summary judgment in Dr. D.G.H.'s favor based on Seal's failure to establish a standard of care through admissible expert testimony and facts deemed admitted. From this, Seal appeals. We affirm.

¶ 2 We restate the dispositive issues as follows:

¶ 3 1. Did the District Court abuse its discretion when it prohibited Seal from introducing Dr. Cocozzo's expert testimony into evidence?

¶ 4 2. Did the District Court abuse its discretion when it found Dr. Van Orden unqualified to provide expert testimony regarding the standard of care?

¶ 5 3. Did the District Court err when it granted summary judgment to Dr. D.G.H. based on a fact deemed admitted by operation of Rule 36(a), M.R.Civ.P.?

¶ 6 4. Did the District Court erroneously consider other discovery abuses?

¶ 7 Based on our resolution of Issues 1 and 2, we do not reach Issue 3 in this case.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 LaVern Seal ("Seal") filed a wrongful death and survivorship action and a demand for jury trial, alleging that the negligent acts or omissions of a defendant pharmacist and pharmacy, and John Does 1 through 10, were a proximate cause of the death of his 36-year old son, LaRell Seal. In his complaint, Seal alleged that between June 1988 and May 1992, LaRell received medical treatment for a back injury and was prescribed increasing amounts of narcotic pain medication and other prescription drugs. Seal further alleged that the amount of medication LaRell received was far in excess of what was ordinary, especially since the results of an autopsy revealed that LaRell's use of the medication may have caused his death.

¶ 9 In an amended complaint, Seal named Dr. D.G.H. and three other doctors as defendants. During this case, however, Seal stipulated to a dismissal of all the defendants with prejudice, except Dr. D.G.H. Dr. D.G.H. is a practicing anesthesiologist, certified by the American Board of Anesthesiology, who treated LaRell. Seal alleges that Dr. D.G.H. prescribed increasing amounts of narcotic pain killers to LaRell even after another doctor would not agree to do so.

¶ 10 The procedural history of this case is important. The District Court allowed Seal until April 1, 1997, to file with the Clerk of Court and serve upon each party a list containing the names and addresses of all witnesses he expected to call as experts at trial. The District Court directed Seal to provide in his expert witness list information required by Rule 26(b)(4)(A)(i), M.R.Civ.P., including a statement of the subject matter on which each expert would testify, the substance of the facts and opinions to which each expert would testify, and a summary of the grounds for each opinion. The parties were given until July 1, 1997, to complete discovery, and trial was set for September 8, 1997.

¶ 11 On April 1, 1997, Seal filed his expert witness list. The list included a Dr. Lamb as an expert medical witness. However, when Dr. Lamb was deposed by defense counsel, she revealed that she would not testify at the scheduled trial. Seal, therefore, withdrew Dr. Lamb as an expert witness, moved for a six-month continuance of the trial date, and asked the court to reopen the time to disclose expert witnesses. In his motion, Seal noted that Dr. Lamb's testimony was crucial to his case and that there had been numerous delays for depositions by all parties due to the scheduling conflicts of several defendants.

¶ 12 In a new scheduling order, the District Court extended the trial date and provided Seal until March 2, 1998, to file and serve an expert witness list. The defendants were given until April 2, 1998, to do the same. All parties were given until July 1, 1998, to complete discovery, and trial was rescheduled for October 5, 1998. The District Court stated that its "schedule shall not be modified except by leave of Court, upon a showing of good cause."

¶ 13 Seal filed his new list of expert witnesses on March 2, 1998; however, the list did not include the required Rule 26(b)(4)(A)(i), M.R.Civ.P., information. In addition, Dr. D.G.H. alleges that the list was not served on him until two days after the March 2, 1998, deadline.

¶ 14 In response to a motion to compel the necessary information, Seal filed a supplement to his expert witness list on April 14, 1998. Like the previous list, however, the supplement did not meet the Rule 26(b)(4)(A)(i), M.R.Civ.P., requirements. Seal apparently served additional information on June 24, 1998, but it was never filed with the District Court.

¶ 15 Seal also failed to properly respond to Dr. D.G.H.'s discovery requests. On June 23, 1997, Dr. D.G.H. served discovery requests which were identified as "Dr. D.G.H.'s Second Discovery Requests to Plaintiff." Included in these requests were interrogatories, requests for production, and one request for admission. The request for admission stated, "Please admit neither Dr. D.G.H. nor any other Defendant caused or contributed to LaRell Seal's death." Seal concedes that he never responded to Dr. D.G.H.'s request for admission. Apparently, he also failed to respond to other requests in a timely manner.

¶ 16 Dr. D.G.H. moved for summary judgment on the grounds that Seal could not meet his burden of proof on standard of care through admissible expert medical testimony. Dr. D.G.H. later filed a supplement to his motion, adding Seal's failure to comply with his discovery requests.

¶ 17 Dr. D.G.H.'s motion for summary judgment was heard in June 1998 and on September 18, 1998, the District Court entered an order and memorandum in Dr. D.G.H.'s favor. The District Court sanctioned Seal, pursuant to Rule 16(f), M.R.Civ. P., by prohibiting the testimony of a proposed expert medical witness, Dr. Cocozzo, on the basis that Seal failed to file a proper Rule 26(b)(4)(A)(i), M.R.Civ.P., disclosure. The District Court also determined that another proposed expert medical witness, Dr. Van Orden, did not have the necessary qualifications to testify. As a result, the District Court entered summary judgment because Seal did not have a medical expert available to establish a standard of care and a deviation from the standard of care. Another basis for the District Court's summary judgment was Seal's failure to respond to Dr. D.G.H.'s request for admission, which was deemed admitted pursuant to Rule 36(a), M.R.Civ.P.

¶ 18 Seal appeals.

ISSUE 1

¶ 19 Did the District Court abuse its discretion when it prohibited Seal from introducing Dr. Cocozzo's expert testimony into evidence?

¶ 20 In Seal's list of expert witnesses filed on March 2, 1998, Dr. Cocozzo was included as an expert medical witness. As stated previously, however, this list did not include the required Rule 26(b)(4)(A)(i), M.R.Civ.P., information. It stated only Dr. Cocozzo's name, address and qualifications. In a supplement to his expert witness list, Seal added that "Dr. Cocozzo's position is that the standard of care for pain management was not met in this matter, and that the controlled substances prescribed by Dr. D.G.H. were excessive." This did not comply with the District Court's order and Rule 26(b)(4)(A)(i), M.R.Civ.P., either. Seal did not state the substance of the facts and opinions to which Dr. Cocozzo would testify or a summary of the grounds for Dr. Cocozzo's opinion. In addition, the supplement was not timely filed and served. Although Seal subsequently served more information about Dr. Cocozzo's proposed testimony, he did not file it with the District Court. As a result of these violations, the District Court prohibited Seal from introducing Dr. Cocozzo's expert testimony into evidence.

¶ 21 Dr. D.G.H. takes the position that Seal's failure to file an expert witness disclosure in compliance with Rule 26(b)(4)(A)(i), M.R.Civ.P., violated the express terms of the District Court's scheduling order and therefore warrants the Rule 16(f), M.R.Civ.P., sanction the District Court imposed upon Seal.

¶ 22 Pursuant to Rule 16(f), M.R.Civ.P., a party can be sanctioned if he or she "fails to obey a scheduling or pretrial order." In reference to Rule 16(f), M.R.Civ.P., Rule 37(b)(2)(B), M.R.Civ.P., allows a court to "refuse[] to allow the disobedient party to support or oppose designated claims or defenses, or prohibit[ ] that party from introducing designated matters in evidence." We regard with favor such sanctions for failure to comply with the rules of discovery. See McKenzie v. Scheeler (1997), 285 Mont. 500, 506, 949 P.2d 1168, 1171-72

; Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78 (citing Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 279-80, 627 P.2d 1233, 1236). The purpose of these sanctions is to deter parties from being unresponsive to the judicial process regardless of the intent, or lack thereof, behind such...