A Michigan plaintiff was injured when his car was struck by a vehicle driven by the defendant in a T-bone crash. Plaintiff brought a third-party case against Defendant and the owner of her car, combined with a first-party claim against Defendant Insurance Company. The third-party case was settled. At issue was the trial judge’s dismissal of Plaintiff’s first-party no-fault case as a sanction for his failure to designate an expert witness and to supplement its production of the medical bills at issue.
The parties engaged in discovery, and in January 2017, Plaintiff submitted answers to the Insurance Company‘s interrogatories and attached a number of unpaid medical bills. Plaintiff promised to “supplement” the filing, but never did so after changing attorneys. Although Plaintiff filed a witness list, he didn’t identify a retained expert. However, his six-page witness list did include the names of physicians who provided him with medical care for his accident-related injuries.
Insurance Company‘s claims adjuster for Plaintiff‘s case compiled a file, and that file was produced for trial. The file included a report written to Insurance Company by an independent medical examiner confirming that Plaintiff‘s injuries were related to his accident.
In response to Insurance Company‘s request for admissions, Plaintiff‘s counsel identified by name the providers who had treated him for accident-related injuries and provided some but not all of their medical bills. Insurance Company filed a motion to strike the bills, contending that they’d been disclosed after discovery closed. Insurance Company also contended that because Plaintiff failed to name any expert witnesses, he should be precluded from doing so. In response, Plaintiff asserted that all of his providers had billed Insurance Company directly, and that Insurance Company‘s claims file contained all of the bills.
The trial court granted Insurance Company‘s motion to strike and to preclude expert testimony, and dismissed Plaintiff‘s case. The court explained its ruling below:
Yeah, the Court does believe that Insurance Company has made a persuasive argument that their relief in terms of striking the medical bills not produced during discovery, certain [sic] preclude individuals not named on the Witness List or in response to the Defense expert interrogatories. Again, I just, this isn’t trial by ambush, we’re on the eve of trial and this case has not been put together on [sic] Plaintiffs by any stretch. So the Court will be granting, for those reasons and as more fully set out in Insurance Company‘s brief.
In a per curiam by Presiding Judge Ronayne Krause and Judges Meter and Gleicher, the Michigan Court of Appeals held that the trial court abused its discretion by failing to consider whether dismissal was an appropriate sanction under governing legal standards, including the availability of lesser and more proportionate sanctions.
“Dismissal is a drastic step that should be taken cautiously,” the panel wrote in its appellate opinion, quoting precedent. It should be reserved for “the most egregious violations of the court rules,” they continued, quoting another Michigan Court of Appeals decision.
“Before imposing such a sanction, the trial court is required to carefully evaluate all available options on the record and conclude that the sanction of dismissal is just and proper,” the panel wrote, quoting an earlier appellate decision. As such, a trial court’s failure to evaluate other options on the record constitutes an abuse of discretion. The Court of Appeals set out a non–exhaustive list of factors that a trial court must consider when dismissing a case:
- if the violation was willful or accidental;
- the party’s history of refusing to comply with previous court orders;
- prejudice to the opposing party;
- if there’s a history of deliberate delay;
- the degree of compliance with other parts of the court’s orders;
- attempts to cure the defect; and
- if a lesser sanction would better serve the interests of justice.
The Court of Appeals panel held that a court should impose the sanction of dismissal “only when there has been a flagrant and wanton refusal to facilitate discovery,” and where the failure has been “conscious or intentional,” rather than “accidental or involuntary,” quoting a 1992 case.
Further, the Court said that the mere fact that a witness list wasn’t timely filed doesn’t, in and of itself, justify the imposition of a sanction of dismissing the case.
Here, the record contained medical bills that were allegedly unpaid and related to Plaintiff‘s accident, as well as the independent medical examiner’s reports. The Court found that these evidentiary items, standing alone, arguably provided Plaintiff with evidentiary support for a prima facie first-party no-fault claim. Regardless of whether the trial court struck bills produced in an untimely fashion, it appears that Plaintiff would’ve been able to present a jury-submissible claim even without the contested bills.
If medical records in Insurance Company‘s possession contained opinions rendered by Plaintiff‘s treating physicians, the trial court was required to weigh whether the plaintiff should be permitted to name the physicians as experts under Rule 2.401(I)(1)(b).
The Court of Appeals held that the trial court must address all of the relevant factors on the record. As a result, the Court of Appeals reversed the dismissal of the case with prejudice and remanded it for further proceedings.