Michigan Court of Appeals; Docket # 344397; Unpublished
Judges Ronayne Krause, Meter, and Gleicher; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Discovery in Auto Liability Cases
SUMMARY:
This appeal followed a trial court’s dismissal of a first-party action as a sanction for the plaintiff’s failure to (1) produce all his unpaid medical bills before discovery closed and (2) identify any retained expert witness who could testify that the plaintiff’s injuries were related to the subject motor vehicle collision. During discovery, the plaintiff provided some, but not all, of his medical bills, and a witness list that included the names the names of the physicians that had treated him for his injuries. He did not, however, identify a retained expert. Meanwhile, the defendant’s claims adjuster compiled a file that included medical bills totaling more than $148,000, and a written report from an independent medical examiner confirming that the plaintiff’s injuries were related to the subject motor vehicle collision. After discovery closed, in response to the defendant’s request for admissions, the plaintiff again submitted some, but not all, of his medical bills and again identified his treatment providers. The defendant filed a motion to strike the bills and preclude the plaintiff from calling any expert witnesses, because these disclosures were made only once discovery closed. The trial court granted the defendant’s motion, and dismissed the case altogether, finding that the plaintiff had not done a sufficient job of “putting the case together.” The Court of Appeals determined that this was an abuse of discretion because the trial court failed to adequately consider whether dismissal was the appropriate sanction as opposed to any lesser, more appropriate sanctions, especially in light of the fact that the plaintiff could have supported his first party action based solely on the bills he had submitted during discovery and the bills and reports in the claims adjuster’s file.
The plaintiff was involved in a motor vehicle collision and brought both a third-party claim against the owner of the other vehicle and a first-party claim against his no-fault insurer. The third-party case settled, and the third-party case proceeded to discovery. The plaintiff responded to the defendant’s interrogatories and attached some, but not all, of his unpaid medical bills. He also filed a witness list with the names of his treating physicians, but did not identify a retained expert. He promised to supplement his filing later on, but after changing attorneys, never did so.
At the same time, the defendant’s claims adjuster compiled a file that was produced to the court that included more than $148,000 in unpaid medical bills and a written report by an independent medical examiner confirming that the plaintiff’s injuries were related to ther subject motor vehicle collision. Later, in response to the defendant’s request for admissions, the plaintiff’s new counsel again identified the physicians who had treated him for his collision-related injuries and again provided some, but not all, of his medical bills. The defendant filed a motion to strike the bills, “contending that they had been disclosed after discovery closed . . . [and] also contended that because [the plaintiff] had failed to name any expert witnesses, he should be precluded from doing so.” The plaintiff responded that “all of his providers had billed [the defendant] directly, and that [the defendant’s] claims file contained all of the bills.”
The trial court granted the defendant’s motion to strike the bills and preclude expert testimony, and dismissed the plaintiff’s case altogether. In doing so, the court argued explained that, “this isn’t trial by ambush, we’re on the eve of trial and this case has not been put together on [sic] Plaintiffs by any stretch.”
The Court of Appeals determined that the trial court abused its discretion by failing to consider whether dismissal was the appropriate sanction or whether there were any lesser and more proportionate sanctions. The Court discussed the numerous factors that a trial court must consider when dismissing a case, and noted that in the present case, the trial court considered none. Moreover, the trial court failed to consider whether the plaintiff could have supported his first-party case based solely on the information that was submitted in a timely fashion, and based on the information included in the adjuster’s claim file.
(1) whether the violation was willful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice. [Id., citing Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990).]
. . .
This Court has emphasized that a trial court should give “careful consideration” to the Dean factors on the record, as well as options for just punishment of a discovery violation short of dismissal. See Duray Dev LLC v Perrin, 288 Mich App 143, 164-166; 792 NW2d 749 (2010). The record nowhere substantiates that the circuit court considered any of the Dean factors. Most notably, the trial court failed to consider whether Medina could support his first- party case based on the information that had been produced.
The record contains medical bills that are allegedly unpaid and related to Medina’s accident. Further, the record includes Dr. Pollina’s reports. These evidentiary items, standing alone, arguably provide Medina with evidentiary support for a prima facie first-party no-fault claim. Regardless of whether the trial court struck bills produced in an untimely fashion, it appears that Medina would have been able to present a jury-submissible claim even without the contested bills. If medical records in MIC’s possession contain opinions rendered by Medina’s treating physicians, the trial court must consider whether the plaintiff should be permitted to name the physicians as experts under MCR 2.401(I)(1)(b).
The Court thus reversed the trial court’s dismissal and remanded the case back to the trial court.
