Smith v. Butte-Silver Bow County, BUTTE-SILVER

• Decision Date: 06 May 1996
• Docket Number: BUTTE-SILVER,No. 95-474,95-474
• Citation: 276 Mont. 329,916 P.2d 91
• Parties: Billie SMITH, Personal Representative of the Estate of Richard A. Smith, deceased, and on behalf of Philana v. Smith and Estelle M. Smith, children of the deceased, Plaintiff and Appellant, v.BOW COUNTY, a consolidated government and the State of Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 91

916 P.2d 91

276 Mont. 329

Billie SMITH, Personal Representative of the Estate of

Richard A. Smith, deceased, and on behalf of Philana v. Smith and Estelle M. Smith, children of the deceased, Plaintiff and Appellant, v. BUTTE-SILVER BOW COUNTY, a consolidated government and the

State of Montana, Defendants and Respondents.

No. 95-474.

Supreme Court of Montana.

Submitted on Briefs Feb. 1, 1996.

Decided May 6, 1996.

[276 Mont. 330] District Court of the Second Judicial District, in and for the County of Silver Bow, the Honorable James E. Purcell, Judge presiding.

Thomas M. Malee, Attorney at Law, Billings, for Appellant.

John H. Maynard, Marcia Davenport; Browning, Kaleczyc, Berry & Hoven, Helena, for Respondents.

GRAY, Justice.

The Estate of Richard A. Smith (Estate) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order dismissing the Estate's complaint with prejudice. We reverse and remand.

The issue on appeal is whether the District Court abused its discretion in dismissing the Estate's complaint with prejudice pursuant to Rule 37(b)(2)(C), M.R.Civ.P.

This is the second time that this case has been before us on appeal. The facts underlying the Estate's complaint are set forth in Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 878 P.2d 870, and need not be repeated here. In Smith, the primary issues on appeal related to prosecutorial immunity and amendment of pleadings; we reversed the District Court on the former issue and affirmed it on the latter. Smith also presented the issue of whether the District Court erred in dismissing the Estate's action without prejudice under Rule 37, M.R.Civ.P., for failure to comply with its orders compelling discovery and requiring a psychological On remand, Butte-Silver Bow County (County) again moved the District Court to dismiss the Estate's complaint based on the alleged discovery abuses which were the basis of the earlier dismissal. The District Court denied the County's motion on February 21, 1995, and, in doing so, rejected the County's reliance on discovery abuses alleged to have occurred prior to the appeal. The court gave the Estate thirty days from the date of its order denying the motion to dismiss "to adequately answer or supplement the discovery requests" and required the Estate to "[p]rovide complete answers to all unanswered interrogatories and fully disclose all experts, their opinions and the basis for those opinions in accordance with Rule 26, M.R.Civ.P." The court warned that "[i]f this order is not fully complied with, then the court will be left with no other alternative but to dismiss this case with prejudice or impose other appropriate sanctions."

                examination of Richard Smith's children.  Smith, 878 P.2d at 876.   We declined to address the propriety of [276 Mont. 331] that dismissal due to the inadequacy of the record and the court's language indicating that it dismissed without prejudice in order to facilitate our review of rulings not appealable under Rule 1, M.R.App.P.  Smith, 878 P.2d at 877.   We vacated the order of dismissal without precluding the availability on remand of further proceedings on that issue.  Smith, 878 P.2d at 877
                

On February 24, 1995, the Estate moved for an order of clarification, requesting the District Court to specifically list "any further evidence" to be provided to the County. Approximately ten days later, the Estate provided the County with "Plaintiff's Rule 26(b)(4) Disclosure" stating that the opinions of its expert witnesses were based on facts and materials set forth in their depositions.

The District Court issued an order of clarification and memorandum (hereinafter "clarification order") directing the Estate to provide to the County:

1. The names of individuals who provided care to the minor children from January 1, 1989 through June, 1991;

2. Information about Richard Smith's Social Security Benefit Claim for a leg injury; and

3. Information about [the Estate's] expert witnesses, their opinions and basis for them or in the alternative this Court must reopen the depositions of [the Estate's] experts to answer questions about the basis of their opinions.

In response to the clarification order, the Estate provided the required information regarding the children's caregivers and the leg injury claim. With regard to the expert witness information, the Estate stated that:

[the Estate] has previously supplied information about it's [sic] expert witnesses to the [County]. This may have been overlooked by the court. The information previously supplied by [the Estate] complies fully with Rule 26, MRCP. Another copy of that information is provided to the court herewith.

In June of 1995, the County moved to dismiss the Estate's complaint pursuant to Rule 37, M.R.Civ.P., for alleged discovery abuses. The District Court granted the County's motion and subsequently entered judgment dismissing the Estate's complaint with prejudice. The Estate appeals.

Did the District Court abuse its discretion in dismissing the Estate's complaint with prejudice pursuant to Rule 37(b)(2)(C), M.R.Civ.P.?

It is important at the outset to recognize the salutary purposes underlying the availability of Rule 37, M.R.Civ.P., sanctions for discovery abuses and the respective roles of the district courts in imposing--and this Court in reviewing--such sanctions. While trial courts traditionally were reluctant to impose discovery-related sanctions, concerns relating to crowded dockets and the overall responsibility for maintaining fair and efficient judicial administration had reversed that trend by the 1970s. See Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 277-78, 627 P.2d 1233, 1235. Indeed, since 1981, it has been this Court's position that dilatory abuse of discovery must no longer be dealt with leniently and that the transgressors of discovery abuses should be punished rather Rule 37, M.R.Civ.P., provides trial courts with a means to prevent an excessive back-log of cases. See Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 180, 728 P.2d 430, 431. Moreover,

than encouraged repeatedly to cooperate. See Owen, 627 P.2d at 1235. "When litigants use willful delay, evasive response, and disregard of court discretion as part and parcel of their trial strategy, they must suffer the consequences." Owen, 627 P.2d at 1236.

[t]he trial judge is in the best position to know ... which parties callously disregard the rights of their opponents and other litigants seeking their day in court[ ] [and] is also in the best position to determine which sanction is the most appropriate.

Dassori, 728 P.2d at 431. As a result, we generally defer to the decision of the trial court regarding Rule 37, M.R.Civ.P., sanctions. See Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393, 402, 871 P.2d 1313, 1319.

Here, the District Court determined that the Estate failed to comply with its post-remand orders requiring disclosure of expert opinion information in compliance with Rule 26(b)(4)(A)(i), M.R.Civ.P., and dismissed the Estate's complaint with prejudice. We review a district court's imposition of sanctions for discovery abuses to determine if the court abused its discretion. Eisenmenger, 871 P.2d at 1319 (citing First Bank (N.A.)--Billings v. Heidema (1986), 219 Mont. 373, 711 P.2d 1384).

DISCOVERY ABUSE

Before discussing the propriety of the District Court's imposition of sanctions under Rule 37, M.R.Civ.P., it is necessary to address the Estate's contention on appeal that no discovery abuse exists in this case. The Estate contends that the only information not provided to the County was the amount of time one of its expert witnesses, Dr. Paul F. Cimmino, spent researching for this case. We disagree.

Rule 26(b)(4)(A)(i), M.R.Civ.P., provides that

[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(Emphasis added). In its order of dismissal and accompanying memorandum, the District Court concluded that "1) [the Estate] did not provide the substance of facts which [sic] the experts were expected to testify; and 2) [the Estate] omitted a summary of the grounds for each opinion" in violation of its order and Rule 26(b)(4), M.R.Civ.P.

The Montana legislature adopted this rule from Rule 26, Fed.R.Civ.P. See Rule 26, M.R.Civ.P., Compiler's Comments. The underlying policies of Rule 26 are to eliminate surprise and to promote effective cross-examination of expert witnesses. See Smith v. Ford Motor Co. (10th Cir.1980), 626 F.2d 784, 792-93 (citing 28 U.S.C., Rule 26, Fed.R.Civ.P., Advisory Committee Notes).

Before an attorney can even hope to deal on cross-examination with an unfavorable expert opinion he must have some idea of the bases of that opinion and the data relied upon. If the attorney is required to await examination at trial to get this information, he often will have too little time to recognize and expose vulnerable spots in the testimony.

Smith, 626 F.2d at 794 (citation omitted).

Review of the Estate's Rule 26 disclosure reflects that the Estate identified each person it expects to call as an expert witness and stated the general subject matter on which each expert is expected to testify as required by Rule 26(b)(4)(A)(i), M.R.Civ.P. The District Court did not conclude, and the County does not argue, otherwise.

Regarding the "substance of facts" to which its expert witnesses are expected to testify, the Estate provided the following statements:

1. Dr. Ruey-Lin Lin ... will testify that the decedent herein was not a hard-core criminal, had a relatively minor history, and would have rehabilitated himself, or been rehabilitated, at or near the age...