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St. Paul Ins. Co. v. Hayes
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 71
Docket:	Ken-00-618	
  on Briefs:	April 24, 2001	
Decided:	May 4, 2001




	[¶1]  St. Paul Insurance Company, Holly Gerlaugh, David Shinstrom,
and the Maine-Dartmouth Family Practice Residency Program appeal from
the judgment entered in the Superior Court (Kennebec County, Atwood, J.),
dismissing their claim against James P. Hayes.  We conclude that the trial
court did not exceed the bounds of its discretion, and therefore, we affirm
the judgment.
	[¶2]  The pending action, brought in 1993 by the St. Paul Insurance
Company and its insureds-Holly Gerlaugh, David Shinstrom, and the Maine-
Dartmouth Family Practice Residency Program-seeks contribution and/or
indemnification for the amounts paid by St. Paul Insurance Company on
behalf of its insureds in settlement of a medical malpractice claim brought
by Sharon Pratt.  Although dismissed by the Superior Court (Kennebec
County, Marden, J.), the case was reinstated in 1996.  See St. Paul Ins. Co. v.
Hayes, 676 A.2d 510 (Me. 1996).  After the case was remanded to the
Superior Court, Dr. Hayes filed a motion for a summary judgment, which the
Superior Court (Kennebec County, Alexander, J.) denied.  It is from the
denial of his motion for a summary judgment that Dr. Hayes cross-appeals.{1}
	[¶3]  The case was assigned to a prelitigation screening panel
pursuant to 24 M.R.S.A. § 2851 et seq. (1985), and the plaintiffs were
required to make their experts available for deposition by June 30, 1998
and a discovery deadline of August 15, 1998, was established.  On
November 7, 1998, citing "delays in completing discovery," the panel chair
amended the earlier scheduling order and extended the date for completion
of discovery to March 5, 1999.  The case was originally scheduled for
hearing before the panel on May 10, 1999, but the hearing was subsequently
rescheduled for August 5, 1999.  During a telephone conference involving
counsel for the parties and the panel chair on August 2, 1999, plaintiffs
acknowledged that neither Dr. Shinstrom nor Nurse Gerlaugh would be
present to testify at the August 5, 1999 hearing.  Because the key witnesses
were unavailable to testify, the panel concluded that the plaintiffs could not
move forward with their case.  The panel subsequently issued an order
dismissing the notice of claim with prejudice, stating that "this dismissal
shall be deemed to be equivalent to a finding for [Dr. Hayes] in all issues
before the panel."
	[¶4]  After the panel's action, Dr. Hayes's counsel repeatedly
contacted plaintiffs' counsel requesting dates to depose Nurse Gerlaugh and
Dr. Shinstrom.  Notices were served on at least two occasions upon the
plaintiffs, clearly indicating that a deposition of Dr. Shinstrom was desired. 
Dr. Shinstrom failed to appear both times.  The plaintiffs did not object to
the notice of depositions, did not request a discovery conference, did not
request a leave to file a motion for a protective order; Dr. Shinstrom simply
failed to appear for the depositions.  After the first two failed attempts to
take Dr. Shinstrom's deposition, the court issued an order stating in
relevant part:
The plaintiff is ordered to produce Dr. David Shinstrom for
deposition in Maine on July 25, 2000, the plaintiff is ordered
to produce Holly Gerlaugh, N.P., for deposition in Maine
within 60 days of this order.
The plaintiffs did not object to the order, nor did they produce Dr.
Shinstrom for deposition on the appointed day.  Dr. Hayes subsequently filed
a motion to dismiss.  The trial court granted Dr. Hayes's motion, and
dismissed the plaintiffs' action.  This appeal followed.
	[¶5]  The plaintiffs argue that the trial court exceeded the bounds of
its discretion by imposing the "ultimate sanction" when it dismissed their
case.  They argue that the trial court erred in not addressing "the substantial
prejudice to St. Paul Insurance Company by having all its claims against Dr.
Hayes dismissed."  Dr. Hayes argues that, since he had tried on four
different occasions to depose Dr. Shinstrom and since Dr. Shinstrom
violated the Superior Court's order mandating that he appear at the
deposition, the trial court did not exceed the bounds of its discretion in
dismissing the claims.
	[¶6]  Maine Rule of Civil Procedure 37(b) provides for sanctions in
the event that a party fails to obey an order to provide discovery.  The
discovery sanctions may include:
	(A)  An order that the matters regarding which the order
was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
the claim of the party obtaining the order;

	(B)  An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters
in evidence;

	(C)  An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient

	(D)  In lieu of any of the forgoing orders or in addition
thereto, an order treating as a contempt of court the failure
to obey any orders except an order to submit to a physical or
mental examination;

	(E)  Where a party has failed to comply with an order
under Rule 26(g) or Rule 35(a) requiring that party to
produce another for examination, such orders as are listed in
paragraphs (A), (B), and (C) of this subdivision, unless the
party failing to comply shows that that party is unable to
produce such person for examination. 
	. . . .
M.R. Civ. P. 37(b)(2)(A-E) (emphasis added).
	[¶7]  We "review the imposition of sanctions for discovery violations
for an abuse of discretion, but will more closely scrutinize sanctions such as
dismissal or default."  Harris v. Soley, 2000 ME 150, ¶ 9, 756 A.2d 499, 504
(citing Saucier v. State Tax Assessor, 1998 ME 61, ¶ 6, 708 A.2d 281, 283). 
The narrower discretion of the trial court in imposing a sanction of
dismissal "reflects the constitutional implications in dismissing an action
without affording a party the opportunity to be heard on the merits of his
case."  Fallon v. Casco-Northern Corp., 462 A.2d 53, 56 (Me. 1983) (citing
Ireland v. Galen, 401 A.2d 1002, 1004 (Me. 1979)).  Although we closely
scrutinize discovery sanctions such as dismissals, generally, we "'will not
lightly overrule the trial court's decision.'"  Harris, 2000 ME 150, ¶ 9, 756
A.2d at 504 (quoting Orlandella v. O'Brien, 637 A.2d 105, 106 (Me. 1994)).
	[¶8]  In determining whether a dismissal was an appropriate
sanction, the trial court should consider the following factors:  (1) the
specific purpose of the discovery rules; (2) the party's conduct throughout
the proceedings; (3) the party's bona fides in its failure to comply with the
discovery rules; (4) prejudice to the other parties; and (5) the need for the
orderly administration of justice.  Baker's Table, Inc. v. City of Portland,
2000 ME 7, ¶ 17, 743 A.2d 237, 243 (citations omitted).  Our Rules of Civil
Procedure are to "be construed to secure the just, speedy and inexpensive
determination of every action."  M.R. Civ. P. 1.  Liberal discovery is one way
to achieve the purposes of the Maine Rules of Civil Procedure.  Employee
Staffing of Am., Inc. v. Travelers Ins. Co., 674 A.2d 506, 508 (Me. 1996)
(citation omitted).  The purpose of the discovery rules is to "'eliminate the
sporting theory of justice and to enforce full disclosure'" between the
parties.  Id. (quoting Shaw v. Bolduc, 658 A.2d 229, 235 (Me. 1995)).  
	[¶9]  Dr. Hayes attempted to depose Dr. Shinstrom for nearly 28
months.  Because the complaint alleges that, "[a]s a result of Defendant, Dr.
Hayes' [sic] negligence, the instant Plaintiffs relied upon his pathology
report, to their ultimate detriment . . . [,]" it is likely that Dr. Shinstrom's
deposition testimony was critical to Dr. Hayes's defense.  Indeed, the trial
court could have considered that the failure to produce Dr. Shinstrom for a
deposition had "seriously and irreparably affected [Dr. Hayes's] ability to
proceed to a fair resolution of the claims against him."  Pelletier v. Pathiraja,
519 A.2d 187, 190 (Me. 1986).{2}  Finally, the conduct of one party to a suit
causing the other party to spend two and one-half years trying to obtain a
deposition does not lead to the "just, speedy and inexpensive determination
of every action" envisioned by our Rules of Civil Procedure.
	[¶10]  We next consider plaintiffs' conduct throughout the
proceedings and the plaintiffs' bona fides in failing to comply with the
discovery rules.  Baker's Table, Inc., 2000 ME 7, ¶ 17, 743 A.2d at 243. 
Other than the assertion that Dr. Hayes could have deposed Dr. Shinstrom in
Washington State, the record is devoid of any evidence regarding the
conduct of the parties over the years.  The trial court could have concluded
that plaintiffs' conduct throughout this litigation has been contemptuous of
the discovery rules.  Dr. Shinstrom is a named plaintiff in this case.  He
never sought a protective order from the trial court,{3} nor did he seek other
related relief to relieve him from the duty to appear at his scheduled
depositions.  Given Dr. Hayes's persistence in seeking the deposition of Dr.
Shinstrom, the trial court could have concluded that the plaintiffs were not
engaged in a good faith effort to move the discovery process along.  
	[¶11]  The plaintiffs argue that "[t]he trial court in its Order of
Dismissal did not address the substantial prejudice to St. Paul Insurance
Company by having all its claims against Dr. Hayes dismissed."  In support of
this argument, they assert that the discovery dispute "involved only Dr.
Shinstrom[,]" suggesting that the plaintiffs have been unfairly sanctioned for
the behavior of its insured.  Dr. Hayes argues that "Dr. Shinstrom and the
other Plaintiffs chose to invoke the jurisdiction of the Maine courts in their
effort to recover money from Dr. Hayes.  In so doing, they must be presumed
to have understood that it was very likely that each Plaintiff would be called
upon to testify in Maine, both at deposition and at trial."
	[¶12]  There is no dispute that the plaintiffs were prejudiced when
the Superior Court dismissed all of their claims against Dr. Hayes.  They
have, however, only themselves to blame for the dismissal of their case; they
blatantly violated a court order when they failed to produce Dr. Shinstrom to
be deposed. 
	[¶13]  This case, including the underlying action, has been pending
for nearly 17 years.  The plaintiffs knew in April 1998 that it would need to
produce Dr. Shinstrom, a plaintiff in this case, for hearings and depositions. 
Despite the notices and court order, Dr. Shinstrom did not make himself
available.  We have noted that "'[c]onduct of counsel or his clients that
frustrates the beneficent purposes of . . . discovery orders must be
appropriately penalized.'" Employee Staffing of Am., Inc., 674 A.2d at 508
(Me. 1996) (quoting Spickler v. York, 566 A.2d 1385, 1388 (Me. 1989)
(ellipsis in the original)).  The plaintiffs contend that in other cases, "where
a sanction of dismissal or default has been upheld by the appellate court, the
sanctioned party had numerous opportunities to comply with the Court
orders, and in many cases, had been specifically warned that failure to
comply would result in dismissal or default." (citing Employee Staffing of
Am., Inc., 674 A.2d at 508 (Me. 1996); Hatch v. Maine Tank Co., 666 A.2d
90, 93 (Me. 1995); Colony Cadillac and Oldsmobile, Inc. v. Yerdon, 558 A.2d
364, 365-67 (Me. 1989); Pelletier v. Pathiraja, 519 A.2d 187, 188-89
(Me. 1986)).  The plaintiffs' arguments are unpersuasive.
	[¶14]  The plaintiffs were not entitled to a "warning" that their
blatant violations of the discovery rules could result in the dismissal of their
action.  We have never said that the trial court must "warn" a party before
sanctioning that party with dismissal or default.  See Harris, 2000 ME 150,
¶ 16, 756 A.2d at 506, ("[a] party to a lawsuit has a duty to comply with the
rules regarding discovery throughout the litigation.").   As we have noted, "a
party's failure to cooperate in discovery prior to the entry of a court order
compelling compliance constitutes 'conduct throughout the proceeding'
that may be considered by a court in determining an appropriate sanction
for purposes of M.R. Civ. P. 37(b)."  Harris, 2000 ME 150, ¶ 17, 756 A.2d at
506 (citing Baker's Table, Inc., 2000 ME 7, ¶ 17, 743 A.2d at 234).
  	[¶15]  There is no question that the plaintiffs failed to comply with
both the rules of discovery and the trial court's order compelling them to
produce Dr. Shinstrom.  The plaintiffs' behavior has caused needless
additional expense to the litigants and further delayed an already
contentious and lengthy litigation between these parties.  
	[¶16]  Given the plaintiffs' actions, the trial court acted well within
the bounds of its discretion when it entered a judgment in favor of Dr. Hayes
as a discovery sanction.
	The entry is:

Judgment affirmed.

Attorneys for plaintiffs: Robert O. Newton, Esq. Christopher D. Nyhan, Esq. Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 Attorneys for defendant: Wendell G. Large, Esq. Anne H. Cressey, Esq Richardson, Whitman, Large & Badger, P.C. P O Box 9545 Portland, ME 04112-9545
FOOTNOTES******************************** {1} . Since we affirm this dismissal, we do not reach Dr. Hayes's cross-appeal from the court's denial of his motion for a summary judgment. {2} . Considering that the plaintiffs concede that the original slide Dr. Hayes made in 1983 had been misplaced, Dr. Shinstrom's absence at the scheduled depositions does, in all likelihood, seriously and irreparably affect Dr. Hayes's ability to defend himself against the claims asserted in the complaint. See Pelletier v. Pathiraja, 519 A.2d 187, 190 (Me. 1986). {3} . M.R. Civ. P. 26(c) states in pertinent part: (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, any justice or judge of the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including. . . . M.R. Civ. P. 26(c) (emphasis added).