Boop v. Dunlap Family Physicians, Unpublished Decision (6-12-2000)
Boop v. Dunlap Family Physicians, Unpublished Decision (6-12-2000)
Opinion of the Court
OPINION
On July 2, 1998, appellants, Donald and Pauline Boop, filed a medical malpractice complaint against numerous health care providers. The named defendants pertinent to this appeal were Larry D. Sander, M.D., and his employer, appellee, Dunlap Family Physicians. Appellants alleged Dr. Sander negligently cared for Mr. Boop resulting in the amputation of Mr. Boop's right lower leg. Appellants alleged appellee negligently employed Dr. Sander. Mrs. Boop's claim was one for loss of consortium. On June 11, 1999, Dr. Sander and appellee filed a motion for summary judgment. On August 19, 1999, Dr. Sander and appellee filed a motion to exclude appellants' expert testimony. On August 31, 1999, appellants voluntarily dismissed Dr. Sander, rendering his motion for summary judgment moot. By judgment entry filed September 9, 1999, the trial court struck appellants' expert testimony and as a result, granted appellee's motion for summary judgment. Appellants voluntarily dismissed the remaining defendants on September 30, 1999. Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:I. THE TRIAL COURT ERRED WHEN IT STRUCK THE EXPERT AFFIDAVITS OF PLAINTIFFS-APPELLANTS AND EXCLUDED THESE EXPERTS FROM TESTIFYING AT TRIAL.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE.
On June 11, 1999, Dr. Sander and appellee filed their motion for summary judgment. On June 21, 1999, appellants requested an extension of time in order to complete discovery. Said motion was granted and appellants were given until August 17, 1999 to respond, fifteen days after discovery was to be completed. On said date, appellants filed another request for an extension due to just having received a transcript of the deposition of Dr. Dunham, an employee of appellee's. Said deposition was taken on July 26, 1999, prior to the discovery cutoff date, but the transcript was delivered on August 9, 1999. The trial court granted said motion and gave appellants until August 31, 1999 to respond. On August 19, 1999, Dr. Sander and appellee filed a motion to exclude appellants' experts as they had yet to be identified. On August 26, 1999, appellants filed a brief in opposition to this motion incorporating a previously filed opposition brief filed on August 19, 1999 in regard to a similar motion filed by other defendants. Appellants claimed their delay in providing expert reports was occasioned by the delay of some of the defendants in scheduling requested depositions. Appellee was not listed as one of the defendants causing the delay. Also on August 26, 1999, appellants filed their response to the motion for summary judgment. Attached to this response were the affidavits/reports of Hadley Morganstern-Clarren, M.D. and Richard Bloom, D.O. Dr. Bloom's report was dated March 23, 1999. Both reports indicated they reviewed Mr. Boop's medical records (physician and hospital) in order to render their respective opinions that the standard of care had been breached. However, the reports did not allege Dr. Sander, as an employee of appellee's, had been negligent. By judgment entry filed September 9, 1999, the trial court granted the motion to exclude appellants' experts. The trial court found appellants failed to identify their experts by the deadline (January 14, 1999) and failed to file a motion requesting an extension of the deadline. When a party fails to comply with a discovery order, Civ.R. 37(B) permits a trial court to impose various sanctions, including exclusion of evidence and even dismissal of the claims. Management of the discovery process lies solely within the sound discretion of the trial court. Glick v. Marler (1992),
Appellants were ordered to name their experts by January 14, 1999. Discovery was to be completed and dispositive motions were to be filed by August 2, 1999. As of August 19, 1999, when Dr. Sander and appellee filed their motion to exclude experts, appellants had yet to name any. Appellants clearly were in violation of the pretrial order. Appellants never asked for an extension. Appellants argue their failure to identify experts was due "in no small part to delays in fact discovery that were no fault of their own." (Emphasis sic.) Appellants' Brief at 15. Appellants point out they had to file two motions to compel in order to obtain requested discovery. However, these motions to compel did not involve Dr. Sander or appellee. In addition, discovery did not have to be complete in order for appellants to simply identify their experts. While expert affidavits/reports could depend on the completion of discovery, forwarding the names of their experts did not. The pretrial order required appellants to name their experts so that the defendants could prepare for their respective defenses. The defendants did not know if they had to prepare for one expert or one hundred. In fact, this case demonstrates the importance of this requirement. In their response to the motion for summary judgment, appellants attached the affidavit/report of Dr. Bloom. Said affidavit/report alleged a breach in the standard of care, but in no way alleged Dr. Sander was negligent. Instead, Dr. Bloom named another of appellee's employees, Dr. Edward Durham. This report was dated March 23, 1999. Dr. Sander was not voluntarily dismissed until August 31, 1999. From March 23, 1999 to August 31, 1999, Dr. Sander, and appellee as his employer, were actively preparing their defense. Had Dr. Sander and appellee been given the name of Dr. Bloom back in January as required, they may have discovered the March report way before August 31, 1999. Appellants also argue the trial court had granted them two Civ.R. 56(F) motions "to extend discovery and permit plaintiffs-appellants time to complete depositions and obtain expert affidavits." Appellants' Brief at 15. Appellants go on to argue "[b]y striking the affidavits of plaintiffs-appellants' experts utilized in opposition to the defendant-appellee's motion for summary judgment, the trial court effectively reversed its prior orders granting two Rule 56(F) motions." Appellants' Brief at 16. Again, appellants are confusing the issue of simple expert identification with discovery issues. The two motions were made in the context of responding to the motion for summary judgment. Appellants claimed they needed more time to complete discovery i.e., obtain a necessary deposition, before they could respond to the motion. The trial court gave appellants until August 31, 1999 to respond. The trial court may have indirectly extended the discovery cutoff date for purposes of this specific summary judgment motion, but in no way extended the requirement that experts be named by January 14, 1999. Appellants did not identify their experts by January 14, 1999 or file a motion for an extension of time to do so. In effect, appellants totally ignored the requirement in the pretrial order. Appellants did not even name their experts by August 19, 1999, the date on which Dr. Sander and appellee filed their motion to exclude expert affidavits. By this time, appellants were in the process of responding to the motion for summary judgment and were well aware of Dr. Bloom as a potential expert given the fact they used his affidavit/report in their response filed August 26, 1999. Based upon the foregoing, we cannot say the trial court abused its discretion in striking the expert affidavits and in excluding the experts from testifying. Assignment of Error I is denied.
HOFFMAN, P.J. and EDWARD, J. CONCUR.
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