Carney v. KMart Corp.

176 F.R.D. 227, 1997 WL 613194
CourtDistrict Court, S.D. West Virginia
DecidedOctober 1, 1997
DocketCiv. A. No. 2:96-2111
StatusPublished
Cited by5 cases

This text of 176 F.R.D. 227 (Carney v. KMart Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carney v. KMart Corp., 176 F.R.D. 227, 1997 WL 613194 (S.D.W. Va. 1997).

Opinion

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is Defendant Can-Am Care Corporation’s (“Can-Am”) motion to dismiss or, alternatively, motion for sanctions against Plaintiffs Carney pursuant to Rule 37(b) or 37(c) of the Federal Rules of Civil Procedure. Plaintiffs filed a responsive memorandum; Can-Am has replied. The issues are ripe for review. For reasons that follow, the Court DENIES in part and GRANTS in part Can-Am’s motion.

I. FACTUAL BACKGROUND

Plaintiffs Carney allege Kenneth Carney was injured while using an allegedly faulty blood glucose test strip known and marketed under the name “Relief Plus.” The original Defendants were Diagnostic Solutions, Inc. (“DSI”), the alleged manufacturer; KMart, the alleged retailer; Scott Cyrus, a KMart pharmacist; AMG Medical, Inc., an alleged distributor; and Can-Am, the alleged distributor of the product.

In January 1997 pursuant to Rule 26(f), the parties suggested a joint discovery schedule that set June 3, 1997 as the deadline for Plaintiffs to disclose their expert witnesses. On February 19 the Court incorporated this deadline into a Scheduling Order, without an objection by Plaintiffs. On April 14 Defendants Can-Am, DSI, and AMG made their initial disclosures. On April 15 the Court dismissed DSI and AMG as defendants.

On June 10, 1997 the Carneys filed a motion for protective order seeking to extend the deadline for disclosing their experts. They grounded it in an argument that they could not disclose their experts until Defendants first produced additional materials. The parties appeared at a hearing on the issue before United States Magistrate Judge Hogg on July 3. Judge Hogg denied the Carneys’ motion, noting that because the Carneys did not challenge the adequacy of such disclosures within thirty days of filing, the Carneys waived them right to challenge its sufficiency. Judge Hogg then mandated July 25 as the deadline for the Carneys’ disclosure.

[229]*229On July 23 the Carneys filed a disclosure of experts listing Kenneth Carney’s treating physicians. On the same day, they also filed a motion to enlarge time for disclosure of experts. On August 12 Judge Hogg denied the motion and awarded Defendants their costs in responding to the motion.

On August 26 the Carneys formally objected to Judge Hogg’s August 12 order. On September 2 this Court affirmed generally Judge Hogg’s August 12 order, but suspended the Carneys’ obligation to reimburse Defendants their costs.

II. DISCUSSION

A. Motion to Dismiss

Can-Am alleges' that under Rule 37(b), the Court should dismiss the case for the Carneys’ failure to comply with the parties’ discovery plan, the Court’s Scheduling Order or Judge Hogg’s July 15 order. Rule 37(b)(2) states:

If a party or an officer, director, or managing agent of a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just____

The rule lists several possible sanctions including prohibiting the offending party from introducing evidence on the designated claim, striking out designated claims from the pleadings; and dismissing the action or parts thereof. Fed.R.Civ.P. 37(b)(2)(B)-(C). The imposition of sanctions under Rule 37(b) is wholly within the trial court’s discretion, but “ ‘[i]t is not ... a discretion without bounds or limits.’ ” Hathcock v. Navistar Internat’l Trans. Corp., 53 F.3d 36, 40 (4th Cir.1995)(quoting Wilson v. Volkswagen of Am., 561 F.2d 494, 503 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768, (1978)). When a court considers dismissal as the sanction, the “range of discretion is more narrow” than for less severe sanctions, id., and a court must consider the following factors:

“(1) whether the noncomplying party act-' ed in bad faith; (2) the amount of prejudice his noncomplianee caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noneompliance; and (4) the effectiveness of less drastic sanctions.”

Daye v. General Motors Corp., 172 F.R.D. 173, 176-77 (M.D.N.C.1997) (quoting Mut. Fed. Sav. & Loan v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir.1989)). Because the Court believes less severe sanctions are effective to punish the Carneys and will deter such behavior in the future, the Court DENIES Can-Am’s motion to dismiss.

B. Motion for Sanctions

Can-Am asks the Court to place sanctions on the Carneys under Rule 37(b) or 37(c). The Court finds Rule 37(c)(1) controls the situation. That rule states:

A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees, caused' by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.

This newly amended section is a “self-executing sanction for failure to make a disclosure required by Rule 26(a),” and is designed to provide a “strong inducement for disclosure.” Fed.R.Civ.P. 37 (Advisory Committee Notes).

The Court is aware of authority that follows an analysis of Rule 37(c)(1) different from the one above, but such authority is non-binding. Accordingly, the Court will apply the rule as written.

Here, the Carneys have not demonstrated their failure to disclose was harmless. The [230]*230Carneys argue Can-Am must have had notice of the danger the strips presented because the Food and Drug Administration had been notified of personal injuries from the use of the strips by the consumer. They argue, therefore, Can-Am knew it would need expert witnesses to defend suits concerning the strips. This argument fails to address the matter at hand: whether Can-Am was prejudiced by the Carneys’ failure to disclose their own expected expert witnesses. Indeed, as Can-Am notes, the failure to disclose was prejudicial because it interfered with Defendants’ ability to select experts to counter the Plaintiffs’ experts’ testimony.

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176 F.R.D. 227, 1997 WL 613194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carney-v-kmart-corp-wvsd-1997.