Ramsey v. Dodd , 456 S.W.3d 790 ( 2015 )

Cite as 2015 Ark. App. 122
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-751
KENNETH RAMSEY Opinion Delivered February 25, 2015
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. CV-2013-562-I]
DR. LAWRENCE DODD and HOT HONORABLE LYNN WILLIAMS,
SPRINGS BONE & JOINT CLINIC, JUDGE
P.A.
APPELLEES AFFIRMED
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
1
Appellant had sued appellees for these claims once before. That complaint was
nonsuited and dismissed without prejudice by orders of August 28, 2012, and October 3,
2012.
Cite as 2015 Ark. App. 122
8, 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 appellees’ 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
2
The trial court also entered another order on February 26. As the cause of action was
then over four years old and this second complaint had been pending for over seven months,
the second order was a pretrial order. It directed the parties to file pretrial briefs no later than
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On 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
April 28. The briefs were to contain a number of matters, including a summary of the
claims, defenses, supporting facts, and relief sought; all proposed stipulations; the issues of fact
and law expected to be contested; a list and description of exhibits to be offered in evidence;
and the names, addresses, and phone numbers of witnesses who would be called at trial.
Appellees’ ability to fully comply with the pretrial order obviously depended in part on
appellant’s compliance with the discovery order.
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he 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
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to 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; 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; 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). Even then, however, his answers were
far less than “complete and comprehensive.” For example, appellant offered the following
one-sentence response when asked for the names of medical witnesses, subject matter of their
expected testimony, substance of the facts and opinions to which they would testify, and a
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summary of the grounds for each opinion: “Dr. [Kevin] Rudder will testify that Dr. Dodd
did not use the standard of care while providing a service to me when I broke my wrist.”
As to other interrogatories about medical-care providers, appellant gave names and addresses
of two physicians and two facilities. He named another doctor and another facility but
provided no addresses. He failed to respond to requests for phone numbers, the treatment
received, and the dates of treatment. Appellant also failed to give addresses and phone
numbers for several of his former employers and failed to list his duties and supervisors at
those jobs. Despite the fact that appellant claimed over $300,000 in medical expenses, when
asked to produce documents relating to medical expenses and bills and to whom they were
owed or had been paid, he simply said, “This has not been determined at this time.” He
gave the same response to a request that he produce any letters, documents, or opinions
written by any expected expert medical witnesses, despite the fact that he had identified Dr.
Rudder as a standard-of-care witness. Appellant also denied having an affidavit from an
expert medical care provider establishing reasonable cause for having filed the malpractice
action, despite the fact that such an affidavit is required to be filed with the court in order
to establish reasonable cause for filing an action for medical injury due to negligence. See
Ark. Code Ann. § 16-114-209(b) (Repl. 2006).3 The above list is not exhaustive.
3
While our supreme court has struck the statute’s provision for mandatory dismissal
if the affidavit is not filed within thirty days after the complaint, see Summerville v. Thrower,
369 Ark. 231, 253 S.W.3d 415 (2007), section 16-114-209(b) remains valid in other respects.
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It is true that appellant’s attorney attached “revised” interrogatory answers to her
response to appellees’ May 2014 motion for sanctions. However, that was over two months
beyond the deadline for complete responses set by the trial court in its February order on the
motion to compel. Moreover, the answers still were not complete. Finally, according to the
record before us, the revised responses were unsigned and unsworn. See Ark. R. Civ. P.
33(b) (requiring that interrogatories be answered in writing under oath and signed by the
party).
From our review of this record, we cannot conclude that the trial court abused its
discretion. While the dismissal of a complaint with prejudice is obviously a severe sanction,
dismissal is a sanction expressly provided for under Rule 37 when a party fails to comply with
an order to provide discovery, and it is crucial to our judicial system that trial courts retain
the discretion to control their dockets. Calandro, supra. “Appellant, as plaintiff, chose to
utilize the court system to redress wrongs that had allegedly been done to [him]. When
invoking such aid, a plaintiff should be prepared and willing to follow the rules that keep the
system running in an orderly and efficient manner.” Calandro, 333 Ark. at 608, 970 S.W.2d
at 799 (citations omitted). The trial court was in a superior position to judge the actions and
motives of the litigants, and we will not second guess its ruling in this case. See Lake Village
Health Care Center, LLC v. Hatchett, 2012 Ark. 223, 407 S.W.3d 521; Calandro, supra.
Affirmed.
GLADWIN , C.J., and BROWN , J., agree.
Wallace, Martin, Duke and Russell, PLLC, by: Valerie L. Goudie, for appellant.
Malcom Law Firm, by: J. Phillip Malcom and Glenn Ritter, for appellees.
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