Ramsey v. Dodd

2015 Ark. App. 122, 456 S.W.3d 790, 2015 Ark. App. LEXIS 154
CourtCourt of Appeals of Arkansas
DecidedFebruary 25, 2015
DocketCV-14-751
StatusPublished
Cited by6 cases

This text of 2015 Ark. App. 122 (Ramsey v. Dodd) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramsey v. Dodd, 2015 Ark. App. 122, 456 S.W.3d 790, 2015 Ark. App. LEXIS 154 (Ark. Ct. App. 2015).

Opinion

M. MICHAEL KINARD, Judge

| Kenneth Ramsey appeals from an order dismissing with prejudice his medical-malpractice complaint as a sanction for discovery violations. He contends that the trial court abused its discretion in dismissing his claim. We affirm.

Appellee Dr. Lawrence Dodd performed surgery on appellant’s wrist on April 4, 2010. Dr. Dodd allegedly was an employee of appellee Hot Springs Bone & Joint Clinic, P.A. Appellant filed his complaint against appellees on July 22, 2013, asserting medical malpractice. 1 Appellant alleged that Dr. Dodd acted negligently in diagnosing his condition and in performing the surgery, leaving appellant with nerve damage, causing him pain and suffering, and requiring additional medical treatment. Appellees answered and, on August 128, 2013, served appellant with three sets of interrogatories, three sets of requests for production of documents, and requests for authorizations to obtain appellant’s medical, educational, employment, tax, and Social Security records. Although appellant was obliged to answer the discovery requests within thirty days, see Ark. R. Civ. P. 33(b)(2) & 34(b)(2), appellant did not respond to any of the requests or provide the requested authorizations.

Approximately four months later, on December 3, 2013, appellees sent a “good-faith” letter to the attorney for appellant requesting appellant’s responses no later than January 3, 2014. See Ark. R. Civ. P. 37(a)(2). Appellant’s attorney responded with an e-mail stating simply that she was “working on it.” On January 10, over five months after the discovery requests were made and over four months after responses were due, appellees filed a motion with the trial court seeking an order compelling appellant’s compliance. Appellant did not respond to the motion to compel.

On February 26, the trial court ordered appellant to provide “complete and comprehensive” responses to all of appel-lees’ interrogatories and requests for production of documents. It also ordered . appellant to deliver to appellees executed authorizations for appellant’s medical, educational, employment, tax, and Social Security records. Appellant was given ten days to comply. The order specifically stated that appellant’s failure to comply would result in the imposition of sanctions pursuant to Rule 37, including the possibility that appellant’s complaint would be dismissed with prejudice. 2

|3On March 10, appellant provided the requested authorizations and his responses to the discovery requests. Responses to a number of the interrogatories and requests for documents were incomplete at best. Others were not answered at all beyond stating “[t]his has not been determined at this time.” Appellant did not lodge any objections or seek any protective order. On May 12, appellees filed their motion for sanctions under Ark. R. Civ. P. 37, seeking an order dismissing appellant’s complaint. On May 14, appellant responded to the motion for sanctions and attached an unsigned and undated “revised” set of responses to the interrogatories setting forth some, but not all, of the missing information.

On May 28, the trial court entered an order granting the motion for sanctions and dismissed the complaint. The court noted that appellant had failed to provide any responses to appellees’ discovery, requests for a full seven months after they were served. The court pointed out that appellant took no action in response to the appellees’ December 2013 “good-faith” letter and failed to respond to the January 2014 motion to compel. The court further noted that it had warned appellant in the February 2014 order that failure to provide discovery within thirty days would result in sanctions and that those sanctions might include dismissal of the complaint with prejudice. The court ruled that appellant violated the February order by providing answers that were not “complete and comprehensive” when |4he did finally respond. Finding that appellant’s failures were flagrant, and noting that the case had been nonsuited once before, the court made this second dismissal one with prejudice. See Ark. R. Civ. P. 41(b).

On appeal, appellant contends that the trial court erred in dismissing the complaint with prejudice. He concedes that he did not comply for seven months after discovery was requested, ignoring along the way appellees’ “good-faith” letter and motion to compel discovery. However, he argues that he substantially complied after the court issued its order on the motion to compel. He attempts to excuse his failures to answer and incomplete answers thereafter by asserting that he provided all of the information that he then had. In the end, he argues that his failures to provide discovery were not flagrant-and that the trial court should have used a less drastic sanction than dismissal to punish his inaction. We find no reversible error.

If a party fails to answer an interrogatory or fails to respond to a request for inspection or to permit inspection, the discovering party may move for an order compelling an answer or inspection. Ark. R. Civ. P. 37(a)(2). If a party fails to obey an order to provide or permit discovery, the trial court may make such orders as are just, including prohibiting the disobedient party from introducing the designated matters into evidence; striking out pleadings or parts thereof; dismissing the action; rendering judgment by default against the disobedient party; treating the disobedience as contempt of court; and requiring the disobedient party or his attorney to pay the reasonable expenses and attorney’s fees caused by the failure to comply. Ark. R. Civ. P. 37(b). The imposition of sanctions for the failure |sto provide discovery rests in the trial court’s discretion, and our courts have repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998); Terrell v. Hager, 2014 Ark. App. 48, 2014 WL 246947; Graham v. Sledge, 28 Ark. App. 122, 771 S.W.2d 296 (1989). There is no requirement that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with discovery requirements. Terrell, supra. A court commits an abuse of discretion when it acts thoughtlessly, improvidently, or without due consideration. Ross Systems, Inc. v. Advanced Environmental Recycling Technologies, Inc., 2011 Ark. 473, 2011 WL 5437571; Hardesty v. Baptist Health, 2013 Ark. App. 731, 431 S.W.3d 327.

Here, the cause of action arose over four years before the dismissal from which this appeal was taken. The lawsuit had already been dismissed once before. After the case was refiled almost a year later, appellant failed to respond in any way to appellees’ discovery requests for a full seven months. In that time, he also ignored appellees’ “good-faith” letter and failed to respond to the motion to compel.

Appellant’s first attempt to respond to discovery came on the last day to act under the trial court’s order compelling his responses, which was six months after they originally had been due. See Ark. R. Civ. P. 33(b)(2) and 34(b)(2).

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Bluebook (online)
2015 Ark. App. 122, 456 S.W.3d 790, 2015 Ark. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramsey-v-dodd-arkctapp-2015.