Legal Discovery Process to be Respected, Can Lead to Medical Malpractice Case Dismissal

Discovery is a phase of the litigation process that occurs once a complaint has been filed and answered but before the trial occurs. The purpose of discovery is for the litigants in civil matters to exchange information that is pertinent to the case. Each party can request that the other turn over documents, answer interrogatories (written questions), agree to admissions about facts not in dispute, or submit to a deposition. The parties are required to respond to these requests within a certain period of time. There are some importantexceptions to the materials that must be exchanged through discovery (for instance, privileged information is not subject to disclosure), but the intent is to level the playing field so that the parties can adequately prepare for trial.

The failure to respond to discovery requests in a timely manner can have very negative consequences for a litigant. When a party who has been served with a proper discovery request fails to respond, the serving party can ask the court to impose penalties. These include “dismissing the action or proceeding or any part thereof, or rendering a judgment of default against the disobedient party, or [entering] an order assessing costs and attorney fees … against the disobedient party and his attorney or both.” La. C.C.P. Arts. 1471, 1473. The dismissal of a case is “a drastic penalty and should be reserved for extreme circumstances,” but the party seeking to avoid sanctions or dismissal for failure to comply with a discovery order is required to show “that the failure was due to inability and not to willfulness, bad faith, or any fault.” Halley v. Guerriero, 577 So.2d 781 (La. App. 2d Cir. 1991).

The case of Jones v. LSU/E.A. Conway Medical Center (No. 45-410, La. App. 2d Cir. 2010) is illustrative. Rodney Jones was an inmate at the Dixon Correctional Center (“DCC”) in Jackson, Louisiana. On March 25, 2006, Jones allegedly injured his elbow and was admitted to the LSU/E.A. Conway Medical Center (the “Center”) for treatment. The attending orthopedist did not find anything wrong with Jones’s elbow and refused to perform arthroscopic surgery or request an MRI. In December of 2008, Jones filed a medical malpractice lawsuit against the Center which alleged that the Center’s staff deliberately failed to provide him with the medical care he needed for his elbow. Jones did not hire an attorney and represented himself in the matter.

On December 8, 2008 the Center filed a motion to take Jones’s deposition at the DCC at 1:00 p.m. on Thursday, December 11, 2008. The court granted the motion the same day. Jones came to the deposition and complained that he had received the notice of the deposition only the night before, and asserted that he had not been served with a court order granting the Center’s motion to take his deposition. Jones ultimately refused to submit to the deposition, so the Center filed a motion to compel Jones’s deposition on February 17, 2009. The court issued an order the next day requiring Jones to appear for a deposition under penalty of sanctions for his refusal “up to and including dismissal of his lawsuit.” The Center sent two notices of this second deposition, which was scheduled for May 28, 2009, by letters postmarked March 16 and 17. The letters were returned unopened and marked as “refused” by Jones. The Center then filed a motion on April 16, 2009 requesting that Jones’s lawsuit be dismissed for refusal to comply with the court’s discovery order compelling his deposition. Following a hearing on the matter at which Jones did not appear, the court granted the Center’s motion and dismissed Jones’s case. Jones then filed a motion for a new trial, which the trial court denied. Jones appealed this decision.

Louisiana’s courts hold that “a trial court’s wide discretion in determining appropriate sanctions for failure to comply with discovery orders will not be reversed absent a clear showing of an abuse of that discretion.” Magri v. Westinghouse Electric, Inc., 590 So. 2d 830, 831 (La. App. 4th Cir. 1991). Noting that refusal to comply with court-ordered discovery is a serious matter, and that trial judges must have severe sanctions available to them to deter litigants from flouting discovery orders, the Court of Appeal concluded there was nothing in the record to suggest that the trial court had abused its discretion in refusing to grant Jones a new trial:

“By refusing to accept the letters containing the notices of deposition … Jones expressly demonstrated his refusal to comply with the court order to appear and submit to the discovery deposition. A litigant cannot be permitted to thwart the discovery process by refusing mail from the opposing attorney. This constitutes a willful disobedience or flouting of the court order.”

Accordingly, the court upheld the trial court’s refusal to grant Jones a new trial.

Louisiana judges have made it clear that they do not tolerate efforts by litigants aimed at circumventing the discovery process. A plaintiff in particular is at risk of having his suit dismissed at an early stage if he fails to comply with the defendant’s legitimate discovery requests. This does not mean, though, that a plaintiff is required to blindly fulfill the defendant’s every request — the plaintiff can and should dispute any improper discovery requests he receives. Hence, the discovery process is most effectively navigated with the assistance of a competent litigation attorney.

If you have been injured, call the Berniard Law Firm toll-free at 1-866-574-8005 to speak with a trial attorney who can help you through every step of your lawsuit.