Schneller Ex Rel. Schneller v. St. Mary's Hospital Medical Center

455 N.W.2d 250, 155 Wis. 2d 365, 1990 Wisc. App. LEXIS 272

• Court: Court of Appeals of Wisconsin
• Decided: March 15, 1990
• Docket: 89-0541
• Status: Published

Opinions

EICH, C.J.

Daniel Schneller, a minor, and his parents, Thomas and Cheryl Schneller, appeal from an order dismissing their medical malpractice claim against St. Mary's Hospital Medical Center and three doctors (collectively, St. Mary's). The issues are: (1) whether sec. 801.15(2)(a), Stats., which requires a party filing an untimely motion to extend a time deadline to show "excusable neglect" in order to gain an extension of the deadline, is limited to time limits imposed by statute or whether it is equally applicable to limits imposed by court order; and (2) whether the trial court abused its discretion when it declined to permit the Schnellers to name a liability expert after expiration of the time set in the pretrial order for designation of experts.

We conclude that the excusable neglect standard of sec. 801.15(2)(a), Stats., applies to untimely applications for relief from court-ordered deadlines as well as those established by statute or rule and, further, that the court did not abuse its discretion in denying the Schnellers' request to extend the deadline it had set for production of expert witnesses. We therefore affirm the order.

The Schnellers initiated the proceedings leading up to this action in December, 1985, when they filed a claim with the Wisconsin Patients Compensation Panel. In July, 1986, following the panel's abolition, the Schnellers filed an action in circuit court alleging that their son, David, sustained injuries during his birth at St. Mary's on December 30, 1978.

On September 2, 1987, the trial court issued a pretrial order requiring the Schnellers to name all expert witnesses by February 29, 1988. The order warned that failure to comply with its terms "shall be considered cause for imposing sanctions which may include dismissal.. . or barring the presentation of testimony or . . . evidence at trial." A settlement conference was scheduled for September, 1988.

The Schnellers filed an expert witness list on the last day, February 29, 1988. The list included thirteen damages experts but no liability experts. The Schnellers also moved the court to extend the already-expired expert witness deadline an additional thirty to forty-five days. They never pursued the motion, however.

On March 8, 1988, Schnellers' attorney and St. Mary's attorney entered into a courtesy agreement whereby the Schnellers agreed to produce a liability expert for deposition by April 19, 1988. When the Schnellers still had not produced the witness by April 6, St. Mary's counsel warned them that they could not prosecute a malpractice action without a liability expert, and that St. Mary's would move for summary judgment if the deadline was not met. The Schnellers neither named nor produced the witness, and they never applied to the court for further extensions of the time limit.

St. Mary's then moved to preclude the Schnellers from naming additional experts. At the hearing on the motion and with no prior notice to the court or opposing counsel, Schnellers' attorney sought and was granted permission to withdraw from the case, and the trial court postponed the hearing for ten days to allow the Schnel-lers' new counsel to file motions. On May 4,1988, substitute counsel filed a motion which, among other things, requested an additional sixty days to name expert witnesses.

The court heard both parties' motions on June 10, 1988, and, in a lengthy opinion issued a few months later, denied the Schnellers' motion to enlarge time and granted St. Mary's motion to preclude the Schnellers from naming additional witnesses. St. Mary's then moved for summary judgment on grounds that the Schnellers had failed to substantiate their claim with expert medical testimony. The Schnellers did not oppose the motion and the trial court granted it in an order issued on February 1, 1989.

The Schnellers argue that the trial court erred in relying upon the excusable neglect standard set forth in sec. 801.15(2)(a), Stats., when it denied their motion for additional time to name experts. The statute provides that:

When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms .... If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.

The Schnellers contend that sec. 801.15(2)(a) governs the enlargement of time only for "statutorily prescribed time periods" and not enlargement of time deadlines set by court order. We disagree.

When construing a statute, our first resort is to the language of the statute itself. Abraham v. Milwaukee Mutual Insurance Co., 115 Wis. 2d 678, 680, 341 N.W.2d 414, 416 (Ct. App. 1983). The language of sec. 801.15(2)(a), Stats., does not limit its application to statutory deadlines or distinguish in any way between time limits set by statute or by court order. It speaks in broad terms, stating that " [w]hen an act is required to be done at... a specified time, the court may order the period enlarged . . .."

We consistently have required parties to show excusable neglect for failure to comply with pretrial orders. In Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 311 N.W.2d 673 (Ct. App. 1981), we affirmed the trial court's dismissal of a case based on the plaintiffs failure to furnish the defendant with a list of trial witnesses. We recognized that the burden was on the aggrieved party to show a "timely, clear and justifiable explanation" for his or her noncompliance with such an order and concluded that the record supported the trial court's finding that counsel's failure to comply was inexcusable. We explained that:

[I]f pretrials are to be of use in expediting court proceedings and assuring proper administration of justice, the trial court must be firm in enforcing its orders. The trial court gave notice to counsel that noncompliance with the pretrial order shall be considered cause for dismissal on the merits. The dismissal of an action where counsel fails to comply with an important term of a pretrial order without justifiable excuse is not an extreme measure if the trial courts are to be encouraged to facilitate and expedite the trials of their cases. Carlson, 104 Wis. 2d at 181-82, 311 N.W.2d at 677.

In Trispel v. Haefer, 89 Wis. 2d 725, 733, 279 N.W.2d 242, 245 (1979), the supreme court affirmed an order dismissing a case for the plaintiffs failure to produce a medical report as required by a pretrial order on grounds that the plaintiff had not shown a clear and justifiable excuse for the failure. In so concluding, the court noted that a clear and justifiable excuse is required because it is the duty of trial courts, independent of statute, to discourage protraction of litigation and to refuse their aid to those who negligently or abusively fail to prosecute their actions.¹

The Schnellers do not discuss Trispel or Carlson Heating. They suggest instead that other statutes, notably sec. 802.10(3)(b), Stats., dictate a lesser standard, and that the trial court erred in placing "too onerous a burden" on them. Section 802.10 deals with "calendar practice." Subsection (3)(a) requires the court to set the times by which pretrial matters such as default judgment motions, discovery, impleader, amendment of pleadings, and pretrial motions must be completed. Subsection (3)(b) requires those times to be memorialized in a written order and states that" [i]f at any time it appears that such schedules cannot reasonably be met, the judge may amend the order upon timely motion of any party." The Schnellers read sec. 802.10(3)(b) as abrogating any need on the part of a moving party — at any time — to show cause for extending a time limit established by pretrial order. We read it differently.

To construe the statute as the Schnellers do would directly contradict Trispel, Carlson Heating, and similar cases. We read the statutory language as simply giving the court discretion to amend the scheduling order. The manner in which that discretion is exercised, however, is found earlier in the statute: "Any order made under this section may . . . upon motion of a party for cause shown, be amended." Sec. 802.10(2), Stats, (emphasis added).

In addition, we consider it significant that sec. 802.10, Stats., concerns motions to amend schedules for the several pretrial matters mentioned in the statute whenever it appears that they "cannot... be met." The language plainly contemplates pre-expiration amendments and, as we have noted, it expressly states that such amendments may be made only upon a showing of cause. Section 801.15(2), Stats., which deals specifically with the extension of time periods also requires a showing of cause for extension motions made prior to expiration of the deadline, but it imposes a higher standard — excusable neglect — where the motion is made "after. . . expiration of the specified time . . .."If there is any conflict between secs. 802.10 and 801.15 — and we see none — the latter, as the more specific statute, should control.

We conclude, therefore, that under sec. 8Q1.15(2)(a), Stats., to succeed on a motion to enlarge time, whether the deadline is set by statute or court order, a party must show "cause" if the motion is timely filed and "excusable neglect" if the motion is filed after the deadline has passed. And the court's findings in this case demonstrate that the Schnellers demonstrated neither in seeking to enlarge the time in which to name expert witnesses:

Plaintiffs' original counsel made no serious attempts to meet the specified deadlines. While plaintiffs' original counsel moved the court for an extension of time, that motion was never pursued. Similarly, plaintiffs' counsel ignored the courtesy agreement between himself and counsel for the defendants wherein he agreed to produce a liability expert witness for deposition by mid-April. Finally, even though plaintiffs' original counsel was aware that [he was] subject to a court imposed deadline for responses to defendants' Motion for Partial Summary Judgment [he] made no effort to respond within the prescribed time period. Thus, to grant plaintiffs' motion would encourage dilatory behavior by counsel.²

The Schnellers also argue that the trial court abused its discretion when it denied their motion because the court "knew" that the denial would likely result in the dismissal of their case, and also that "[St. Mary's] could not possibly be prejudiced" by an extension. According to the Schnellers, the abuse occurred when the court failed to consider and balance their interests in a fair presentation of their case against the likelihood of prejudice to St. Mary's.

The trial court's decision that a party has not established sufficient cause to extend an ordered time deadline after its expiration involves the exercise of discretion, and we will not disturb that decision "unless an abuse of discretion is clearly shown." Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 470, 326 N.W.2d 727, 732 (1982). Because the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary decisions. Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). This does not mean that discretionary powers are unbridled and unfettered — that trial courts are free to make unexplained choices among alternatives. Argonaut Ins. v. LIRC, 132 Wis. 2d 385, 391, 392 N.W.2d 837, 839 (Ct. App. 1986). Rather, the term contemplates a reasoning process which considers the applicable law and the facts of record, leading to a conclusion a reasonable judge could reach. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16, 20-21 (1981).

We have no doubt that the trial court was well aware, as were the parties and as are we, that, except in exceptional circumstances not present here, failure to produce a liability expert is fatal to a suit for medical malpractice. Indeed, the court began its lengthy memorandum decision by noting the need to measure "the effect of granting or denying the relief," and the "prejudice to the nonmoving party," and recognized that "denying plaintiffs' Motion . . . may lead to the eventual dismissal of this lawsuit. . .." The court then considered the fact that the Schnellers had had nearly three years in which to come up with the necessary expert witness, and yet had "made no serious attempts to meet the specified deadlines," and had never pursued any efforts to extend the deadline — all in the face of an order specifying dismissal as a sanction for violation of the time limits and St. Mary's threat to move for summary judgment dismissing the action upon their failure to produce the witness.

Noting (in another portion of the decision) that Daniel Schneller's injuries had occurred ten years earlier and that throughout the discovery period the Schnellers had "made no effort to respond [to the order] within the prescribed time period" and, further, that despite the passage of more than two years in litigation the Schnel-lers, by failing to locate an expert witness, had yet to put forth any basis for their action, the court stated:

Plaintiffs and their attorneys have a responsibility to each other, to the persons they claim against, to the courts and to . . . society to have some idea and basis for their travels before they get so totally into the process.

That responsibility, in this case, has not been fulfilled.

Although this Court is not only mindful, but also sympathetic to having parties "have their day in court," there does come a time when, after days have stretched to weeks, months and years with no basis for a claim asserted and it is effectually admitted that such a basis has not been found, when, after extention [sic] of time to find such a basis have been [sic] accepted and still no basis found and when, even after the final Court direction to an end date for factual presentations, the plaintiffs attempt to further add to the record, the Court must call a halt.

In Furrenes v. Ford Motor Co., 79 Wis. 2d 260, 255 N.W.2d 511 (1977), the supreme court upheld dismissal of a plaintiffs personal injury action against an automobile manufacturer for violation of a pretrial order directing the production of evidence. The action was commenced in October, 1974, and the order to produce evidence, once extended, required production by June 13, 1975. The order stated that dismissal was a possible sanction for noncompliance. The evidence was not produced and, several days after the deadline had expired, the defendants moved to dismiss. The trial court granted the motion upon a determination that the plaintiffs had "not adequately explained" the failure to comply with the discovery order. Affirming, the supreme court noted the plaintiffs "callous disregard of responsibilities" to the court and the parties in the face of a "warning" that dismissal might follow any failure to comply with the order and concluded: "If the sanction of dismissal is not warranted by the circumstances of this case, then the Court can envisage no set of facts whereby that sanction should ever be applied." Id. at 269, 255 N.W.2d at 516, quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 641 (1976).

In this case, the trial court considered the extreme effect of its decision on the Schnellers, as well as the nature of their conduct and its effect on St. Mary's and on the public interest in the orderly administration of justice. It was a considered decision, based on the facts of record and applicable law, and while it may be that we would have decided the motion differently, that is not the test; it is enough that a reasonable judge could have so concluded and we believe that is the case here.

Finally, we note that much of the Schnellers' brief is devoted to a discussion of Alexander v. Riegert, 141 Wis. 2d 294, 414 N.W.2d 636 (1987), where the supreme court ruled that the trial court abused its discretion when it denied a motion to amend a scheduling order to allow additional witnesses and reopen discovery after the deadlines had passed. That case, characterized as "unusual" by the supreme court, centered around a last-minute substitution of counsel after the trial court ruled that the plaintiffs original attorney had to be disqualified because of a conflict of interest. The trial date was can-celled and the court denied the substitute attorney's request that he be allowed to name additional expert witnesses.

Reversing, the supreme court ruled that the trial court had abused its discretion by failing to consider several factors, which the court described only very generally as "plaintiffs' rights in presenting their case." Alexander, 141 Wis. 2d at 301, 414 N.W.2d at 639-40. Our reading of the full opinion indicates that the Alexander court was primarily concerned with the degree to which the prior attorney's conflict of interest had "tainted" the plaintiffs case. Id. at 299, 414 N.W.2d at 639. As here, the plaintiff had filed a witness list, which the supreme court characterized as containing, among other things, "an unexplained conflict between the doctors'opinions. . Id. Disagreeing with the trial court's determination that the first attorney's conflict of interest did not affect his "effective representation" of their interests, the supreme court felt that inadequate consideration had been given to the effect of that conflict on the rights "to which all litigants are entitled: the single-minded representation of an advocate devoted exclusively to their interests." Id. at 300, 414 N.W.2d at 639. Fearing that prior counsel’s conduct may have "tainted the choice and extent of witnesses or the . . . proper evaluation of the plaintiffs' case," id. at 299, 414 N.W.2d at 639, the court reversed.

Here, there is no suggestion of any conflict of interest on the part of the Schnellers' first attorney, and they do not suggest that the substitution of counsel was anything other than voluntary. Indeed, the trial court remarked in its memorandum decision that "counsel was voluntarily substituted when the heat became not only apparent but real" and expressed concern that at that stage in the proceedings, and when faced with a "disposi-tive" motion, the plaintiffs should not be permitted to "salvage a lawsuit by mere substitution of counsel. . Thus, the substitution here has none of the implications that motivated the Alexander court. The prejudice to the Schnellers — the dismissal of their action — was due to their failure to meet the ordered deadlines and the fact that, a decade after the alleged negligent conduct and nearly three years into the lawsuit, they still had not come up with the medical testimony so essential to their claim.

This is not, as was Alexander, an "unusual" case involving a wholly "new situation . . . not contemplated in the original scheduling order." Id. at 299, 414 N.W.2d at 639. It is one involving, as the trial court found, an unexplained and persistent failure to comply with an order that went to the very heart of the Schnellers' case, and we do not see Alexander as at all persuasive. And to the extent, as the Schnellers stress, that the case requires consideration of the effects of its ruling on the plaintiffs' case, we are satisfied that the trial court adequately assessed that factor.

By the Court. — Order affirmed.

1 The Schnellers rely on Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982), and Oostburg State Bank v. United Savings & Loan, 125 Wis. 2d 224, 372 N.W.2d 471 (Ct. App. 1985), aff'd, 130 Wis. 2d 4, 386 N.W.2d 53 (1986), for the proposition that sec. 801.15(2)(a), Stats., applies only to statutorily prescribed time periods. We note that in neither of those cases did the court discuss whether sec. 801.15(2)(a), Stats., applied to court-ordered deadlines, thus we do not consider them to be dispositive.

2 While not specifically argued by the Schnellers, we note that Trispel and other cases suggest that because dismissal — the practical result of the court's denial of the Schnellers' motion — is a harsh sanction, it will be granted for failure to obey pretrial orders only in "extreme circumstances" or in cases of "egregious conduct." Trispel v. Haefer, 89 Wis. 2d 725, 732, 279 N.W.2d 242, 245 (1979). The record and the trial court's findings and reasoning satisfy us that, even if made, any argument that the Schnel-lers' failure to comply with such an essential order was neither extreme nor egregious would necessarily fail.