Opinion
No. 2-661 / 01-1511.
Filed December 11, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE BERGESON, Judge.
Plaintiffs' appeal from dismissal of their cause of action. REVERSED AND REMANDED.
Jeffrey S. Carter, Des Moines, for appellants.
Kermit B. Anderson and John D. Hilmes of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., Des Moines, for appellees Central Iowa Hospital Corporation and Samuel Bundz, and for defendant Chris Wagner.
Matthew J. Haindfield and Michael H. Figenshaw of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellee Monsour Jadali.
David L. Brown of Hansen, McClintock Riley, Des Moines, for defendant Broadlawns Medical Center.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
David and Cindy Raye appeal the district court's dismissal of their medical malpractice and consortium claims. Because we find dismissal was too extreme a sanction, we reverse the district court and remand the case for further proceedings.
Background Facts and Proceedings . In September 1996, David Raye went to see Dr. Donald Tesdall. Dr. Tesdall diagnosed Raye's left groin pain as a left inguinal hernia. The notes from the examination stated, "Patient has had a hernia on his left side for some time. He . . . thinks he'd had it probably for several years." On May 23, 1997, Raye was admitted to Broadlawn's Medial Center (Broadlawns) complaining of left groin pain. According to the nursing assessment on the admit report, "Pt. (patient) states he has `a hernia.'" During the surgical consultation, in which he was asked about a family physician, Raye did not mention Dr. Tesdall or his prior diagnosis. He asserted his hernia occurred only in the previous week, while working for A.G. Construction Co. Surgeons at Broadlawns discovered Raye also had a right inguinal hernia, and both sides were repaired.
Following surgery, Raye complained of persistent and debilitating pain. During exploratory and repair surgery of his left side, two staples from the prior surgery at Broadlawns were found and removed. Raye had additional surgery to address chronic inflammation of the right inguinal hernia area.
Raye filed a workers' compensation action against A.G. Construction Co. and its insurance carrier, which was settled in September 1998. In May 1999, Raye and his wife Cindy (the plaintiffs) filed a medical malpractice and loss of consortium suit against the Central Iowa Hospital Corporation d/b/a Iowa Methodist Medical Center, Dr. Mansour Jadali, and Dr. Samuel Bundz. The claims arose out of Raye's initial hernia repair surgery at Broadlawns. Upon a request by the defendants, the plaintiffs provided, as discovery in this case, the file from the workers' compensation action, including Raye's responses regarding past medical treatment and injuries or conditions. The defendants also filed independent discovery requests regarding Raye's previous medical history.
Claims initially brought against two other defendants, Broadlawns Medical Center and Dr. Chris Wagner, were dismissed by the plaintiffs prior to the scheduled trial date.
The discovery responses in the malpractice case appear in the appendix under the caption "Additional Parts of Record Stipulated to by the Parties." We assume this stipulation occurred before the district court.
In both the workers' compensation action and the malpractice suit, the discovery requests specifically sought medical records and information that encompassed the time period of Dr. Tesdall's diagnosis. In both cases the responses generally referenced treatment at Broadlawns, but Dr. Tesdall was not named, and no records from Dr. Tesdall were provided. Additionally, as part of his interrogatory responses in the workers' compensation proceeding, Raye affirmatively asserted he had no serious injuries or conditions beyond "facial cuts and kidney stones" and, in response to a request to list any pre-injury "condition . . . in any of the areas of [the] body as to which injuries are claimed in this action," stated "I have never suffered any injury that caused my type of limitation until this current injury."
During Raye's October 2000 deposition, while he continued to assert he had not had a hernia prior to his current injury, he did name Dr. Tesdall as "a family doctor of ours for years," who was currently handling his pain management. When the defendants specifically requested Dr. Tesdall's medical records, they were provided only those records generated after May 1997. It was only when Dr. Tesdall was deposed, less than a week before trial, that his prior diagnosis of Raye was revealed. Based primarily on their claim Raye had failed to inform them of Dr. Tesdall and his diagnosis and the resulting breakdown in the attorney-client relationship, the plaintiffs' attorneys were allowed to withdraw from representation. Trial was continued to allow the plaintiffs to obtain substitute counsel. New counsel filed a request for an extension of time to prepare for trial, and the defendants filed a request for sanctions.
Contrary to the plaintiffs' suggestion, the record does not demonstrate the defendants' limited their request to those records relevant to Raye's post-operative treatment.
At the hearing on the motions, Raye contended he could not remember having a hernia or a bulge in his abdomen prior to the 1997 work injury, or of even being told he had a hernia until after the surgery was complete. The district court denied the continuance request, finding the request was necessitated by the "exposure of . . . Raye's false statements under oath." It also found dismissal of the plaintiffs' claims was an appropriate discovery sanction, citing the plaintiffs' failure to reveal the pre-existing hernia condition as a willful or bad faith failure to comply with several discovery requests and the prejudice to the defendants if this case were allowed to proceed. The plaintiffs appeal.
Scope of Review . Our review is for correction of errors at law. Iowa R.App.P. 6.4.
Imposition of Discovery Sanction . The discovery sanction will be upheld absent a demonstrated abuse of discretion by the district court. Kendall/Hunt Pub. Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988). Abuse exists if the court exercised its discretion on clearly unreasonable grounds or to a clearly untenable extent. Wagner v. Miller, 555 N.W.2d 246, 249 (Iowa Ct.App. 1996). The court's discretion was not abused if there was substantial evidence in support of its decision. Id. The evidence supporting the district court's decision was substantial if it was adequate for a reasonable mind to reach the same conclusion as the court. Strong v. Rothamel, 523 N.W.2d 597, 600 (Iowa Ct.App. 1994). Because the district court imposed the extreme sanction of dismissal, there must be a sufficient showing the plaintiffs' noncompliance was a result of "willfulness, fault, or bad faith." Wagner, 555 N.W.2d at 249.
The plaintiffs argue it was error for the district court to consider evidence from the workers' compensation proceeding. They contend that, once the contents of the workers' compensation file are excised from the record, there is not substantial evidence to support a finding of noncompliance, much less one of fault or bad faith. For a number of reasons, we cannot agree.
The plaintiffs seem to misapprehend the nature of the discovery responses and other disclosures Raye initially made in the workers' compensation proceeding. They are not wrongfully-admitted prior bad acts evidence. See Iowa R. Evid. 5.404(b). Rather, the file from the workers' compensation proceeding, including Raye's interrogatory and production responses, was made a part of the discovery in this matter when it was requested by the defendants and provided by the plaintiffs. Once the discovery was supplied, the plaintiffs had an ongoing duty to supplement any incomplete, and correct any inaccurate responses. See Iowa R.Civ.P. 1.503(4); Gerace v. 3-D Mfg. Co., Inc., 522 N.W.2d 312, 320 (Iowa Ct.App. 1994). The plaintiffs have not provided, and we have failed to divine, any rule, statute or case that requires us to treat Raye's incorporated workers' compensation responses any differently than the responses the plaintiffs made directly in this case.
See supra footnote 2.
The plaintiffs seem to argue their discovery responses were sufficiently accurate and complete, because the defendants failed to make specific discovery requests or adequately frame their questions. Such contention is simply disingenuous. The defendants' requests clearly covered the information regarding Dr. Tesdall and his diagnosis, and yet the information was not provided. Neither Raye's revelation of Dr. Tesdall at his deposition, nor his production of Dr. Tesdall's post-injury records, were sufficient to come into compliance with the discovery requests. Accordingly, considering the actions of both the plaintiffs and their counsel, the record contains substantial evidence the plaintiffs were in violation of discovery rules. See Iowa R.Civ.P. 1.503(4) (requiring supplementation and correction of discovery); 1.509(1) (requiring interrogatory responses, under oath, unless objected to); 1.512 (requiring response stating when inspection of documents will be permitted, unless objected to); 1.517(1)(c) (equating evasive or incomplete answers with a failure to answer discovery). It is clear that the plaintiffs were subject to sanctions for their behavior. See Suckow v. Boone State Bank Trust Co., 314 N.W.2d 421, 426 (Iowa 1982) (recognizing a court's inherent power to enforce discovery rules, and its discretion to impose sanctions for failure to obey the rules, even in absence of court order).
The plaintiffs argue they cannot be held responsible for their attorneys' failure to produce Dr. Tesdall's records. However, as noted by the Iowa Supreme Court:
When noncompliance is the result of dilatory conduct by counsel, the courts should investigate the attorney's responsibility as an officer of the court and, if appropriate, impose on the client sanctions less extreme than dismissal or default, unless it is shown that the client is deliberately or in bad faith failing to comply with the court's order.
. . .
This is not to say, however, that the district court may never impose sanctions of dismissal or default on a client unless the client has willfully or in bad faith failed to comply with discovery orders of the court. Such an absolute rule would conflict with the well-established rule that clients are responsible for the actions of their lawyers and in appropriate circumstances dismissal or default may be visited upon them because of the actions of their lawyers.Kendall/Hunt Pub. Co., 424 N.W.2d at 241 (citations omitted) (emphasis added).
The record also contains substantial evidence of willfulness or fault by the plaintiffs. They repeatedly failed to disclose, and in at least one instance Raye expressly denied, the preexisting condition. The plaintiffs urge us to consider the form and context of the discovery requests and deposition questions as demonstrating ignorance, forgetfulness, or misunderstanding, rather than willful concealment. However, while some of the plaintiffs' actions are subject to an innocent interpretation, they are equally subject to a culpable one. See Grinnell Mut. Reins. Co. v. Voeltz, 431 N.W.2d 783, 785 (Iowa 1988) (noting evidence is not insubstantial simply because it supports inconsistent conclusions). Although Raye denied any deliberate intent at the sanction hearing, the credibility to be afforded his testimony is a matter best left to the district court, who had an opportunity to view and assess Raye's demeanor. Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001). The evidence in this case was susceptible to the reasonable conclusion that Raye was aware of a preexisting medical condition and the plaintiffs willfully and deliberated failed to disclose either the condition or the diagnosing physician, despite multiple, clear discovery requests. See Grinnell Mut. Reins. Co., 431 N.W.2d at 785.
Dismissal . The plaintiffs further argue that, despite any willfulness or bad faith, dismissal was an excessive sanction. In part, they rely on the rule that dismissal as a discovery sanction is generally used only when a party has violated a court order and that when no court order has been violated, a lesser sanction may be appropriate. Suckow, 314 N.W.2d at 426. We find this to be a less than persuasive argument, particularly under the facts of this case.
First, nothing in the foregoing general principle precludes dismissal for violation of a rule. See H S Ltd. v. Andreola, 363 N.W.2d 592, 596 (Iowa Ct.App. 1984) (recognizing Suckow as delineating permissive, rather than mandatory, guidelines). Second, and more importantly, the plaintiffs' own concealment interfered with the defendants' capacity to seek an order compelling discovery, the willful violation of which clearly would have been subject to a dismissal sanction. See Iowa R.Civ.P. 1.517(2)(b)(3). The plaintiffs should not be allowed to escape an otherwise appropriate fate by misleading the defendants into believing discovery had been provided.
The plaintiffs also rely on their assertion that Raye's preexisting condition was irrelevant to the question of malpractice. While we cannot agree the prior diagnosis was wholly irrelevant to the claims in this matter, the record made by the parties does indicate no more than a marginal relevance. The only evidence relating the preexisting condition to the alleged surgical complications was an affidavit from Dr. Chris Wagner, one of Raye's surgeons whom the plaintiffs initially sued then dismissed out of the case. Far from asserting that knowledge of the prior hernia diagnosis would have affected or altered Raye's medical treatment, Dr. Wagner claimed only that Dr. Tesdall's opinion would have been sought when setting the course of treatment.
According to Dr. Wagner:
The identity of Mr. Raye's physician and the history of his hernia was requested to enable us to obtain his prior medical records and contact his usual physician about our recommendation for surgery.
Our knowledge of a longstanding previously diagnosed hernia and the identity of Mr. Raye's doctor would have resulted in our solicitation of his doctor's participation in medical/surgical decision making on such issues as whether, when and by whom surgery would be performed and in post-operative follow-up with the goal of assuring continuity of care for Mr. Raye.
Dismissal "should be the rare judicial act." Kendall/Hunt Pub. Co., 424 N.W.2d at 241 (citation omitted). Before such an extreme sanction is imposed, it is incumbent upon a court to determine whether a lesser penalty, such as the imposition of fees and costs, "would be a more just and effective sanction." Id. While sanctions do seek deterrence of inappropriate behavior, they also seek "to insure that a party will not profit from its failure to comply." Id. at 242. In such regard, the severity of a sanction should bear a relationship not only to the action it is meant to penalize, but also the impact of that action on the underlying litigation. Based on the record below, we fail to see evidence of prejudice to the defendants sufficient to warrant dismissal of the plaintiffs' claims.
Nor do we take up the defendants' offer to uphold the dismissal because the plaintiffs' conduct constituted fraud upon the court. The facts of this case simply would not warrant such action. See, e.g., Fierro v. Johnson, 197 F.3d 147, 154 (5th Cir. 1999) (noting that generally only the most egregious behavior, such as bribery or fabrication of evidence, will constitute fraud on the court, while lesser actions, such as failing to disclose allegedly pertinent facts, will not); Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998) (requiring sanction "must be one that a reasonable jurist, appraised of all the circumstances, would have chosen as proportionate to the infraction"); Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1472 (D.C. Cir. 1995) (approving entry of default judgment as a sanction only where there is clear and convincing evidence the "abusive behavior" occurred, and where a lesser sanction would not offer sufficient punishment and deterrence while still allowing for a fair trial on the merits); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir. 1994) (defining fraud on the court as "that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication.") (internal quotation marks omitted).
Denial of Continuance. The plaintiffs also claim the district court abused its discretion when it denied their continuance request. We review this claim for an abuse of discretion by the district court. Ragan v. Petersen, 569 N.W.2d 390, 392 (Iowa Ct.App. 1997). A court may grant a continuance if the cause for the continuance request did not stem from the fault or negligence of the moving party, and if continuing the matter more nearly obtains substantial justice. Iowa R.Civ.P. 1.911(1).
As already noted, there is substantial evidence to support a finding the plaintiffs willfully concealed Raye's prior diagnosis. In denying the continuance the district court found Raye's concealment of his prior hernia was the motivating force behind counsels' withdrawal, which then necessitated substitute counsel and the request for additional time to prepare for trial. The court further found a continuance would force the defendants to suffer an extended delay in a case which, at that time, had been on file for over two years. Under the circumstances, we cannot find the court abused its discretion when denying the plaintiffs' continuance request. Conclusion . Because the district court abused its discretion when it imposed dismissal as a discovery sanction, we reverse the dismissal of the plaintiffs' claims. We therefore remand this matter to the district court for the imposition of appropriate sanctions, and the setting of a new trial date.
We recognize that more than a year has passed since the district court's decision dismissing the case and denying the continuance, effectively providing the plaintiffs the desired additional time to prepare their case.