Michigan Court of Appeals; Docket # 343980; Unpublished
Judges Fort Hood, Servitto, and Boonstra; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Discovery Sanctions in First-Party Cases
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s dismissal of the plaintiffs’ first-party action to recover no-fault PIP benefits because the plaintiffs failed to cooperate in discovery. Specifically, the plaintiffs failed to appear at their own depositions and to submit to multiple independent medical examinations. The Court of Appeals found that although dismissal was perhaps warranted, such a severe sanction can only be imposed if (1) the trial court has first considered, on the record, all the factors laid out in Dean v. Tucker, 182 Mich. App. 27 (1990) for determining the appropriateness of a particular discovery sanction, and (2) the trial court has explained, on the record, why all other lesser sanctions would not be appropriate. In this case, the trial court did neither, and thus the order of dismissal was vacated and the case remanded.
In October 2017, the plaintiffs were involved in a motor vehicle collision and both sustained injuries. They brought a first-party complaint against their automobile insurer to recover no-fault PIP benefits, and in November 2017, the defendant scheduled physical medicine and neurosurgery independent medical examinations for both. After failing to appear, the defendant moved for dismissal. The trial court instead ordered that each of the plaintiffs undergo both IMEs within 60 days. Shortly thereafter, the defendant attempted to also schedule orthopedic surgery IMEs, but the plaintiffs informed the defendant of numerous scheduling conflicts. The defendant eventually did reschedule the orthopedic and neurosurgery IMEs, but the plaintiffs’counsel responded by arguing that the orthopedic and neurosurgery IMEs were redundant and that he would not inform his clients of any IME appointments until the defendant agreed to cancel one or the other. The plaintiffs also rescheduled their own depositions three times, but ultimately failed to appear on the final agreed upon date. After filing a second motion to dismiss “on the ground that plaintiffs had willfully obstructed discovery,” the trial court dismissed the case and denied the plaintiffs’ motion for reconsideration.
The Court of Appeals vacated the trial court’s dismissal, even though the Court agreed that such a sanction may be warranted considering the fact that the plaintiffs failed to appear for a combined three depositions and 10 IMEs. The plaintiffs had a statutory duty and were court ordered to submit to the IMEs, and the plaintiff’s counsel had no authority to unilaterally modify either.
In this case, at the very outset of discovery, plaintiffs had to be compelled to respond to written discovery requests. Plaintiffs then failed to appear at their first set of physical medicine and neurosurgery IMEs despite being under a statutory duty to do so. See MCL 500.3151 (“When the mental or physical condition of a person is material to a claim . . . for past or future personal protection insurance benefits, the person shall submit to mental or physical examination by physicians”). The trial court entered an order directing plaintiffs to “appear for their IMEs . . . by March 13, 2018.” Plaintiffs appeared at one IME, but instead of appearing at the court ordered neurosurgery IMEs or the orthopedic surgery IMEs that defendant later requested, plaintiffs’ counsel sent a letter stating that his clients would only attend either a neurosurgery IME or an orthopedic IME, not both. Plaintiffs’ counsel had no authority to unilaterally modify plaintiffs’ statutory duty or the court order to appear at the neurosurgery IMEs; only the court could do so with an order, under MCL 500.3159, “to protect against annoyance, embarrassment or oppression.” Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 194; 732 NW2d 88 (2007) (holding that even a court “may not impose conditions on [an IME]” if “an insured fails to demonstrate good cause that submission to particular examination will cause annoyance, embarrassment, or oppression.”) In any event, plaintiffs never attended another IME of any variety.
Furthermore, plaintiffs rescheduled their own depositions three times—once by agreement, once by canceling the depositions two days before the scheduled date due to an asserted scheduling conflict, and once so that Felix could undergo further medical examinations for his seizure. Plaintiffs never explained why Felix—who was allegedly too occupied with neurological testing to be deposed—could not be examined by defendant’s neurosurgeon. And plaintiffs never offered an excuse for plaintiff Suzanne Ciminelli (Suzanne)’s failure to appear for her IMEs and deposition.
At the hearing on defendant’s motion to dismiss, defense counsel informed the court that plaintiffs had missed three depositions and a combined 10 IMEs. Plaintiffs’ counsel admitted that he had demanded that defendant choose between a neurosurgery and orthopedic surgery IME. The trial court stated that “[b]ecause of the failure to appear at all these [depositions and IMEs] the Court will grant the motion.”
The Court of Appeals ultimately concluded, however, that the trial court abused its discretion by not fully vetting its decision to dismiss the case. In Dean v. Tucker, 182 Mich. App. 27 (1990), the Court of Appeals established eight factors that must be considered, on the record, in determining the appropriateness of a discovery sanction:
[W]hether the violation was wilful or accidental; (2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the [other party]; (4) actual notice to the [other party] of the witness and the length of time prior to trial that the [other party] received such actual notice; (5) whether there exists a history of [the party’s] engaging in deliberate delay; (6) the degree of compliance by the [party] with other provisions of the court’s order; (7) an attempt by the [party] to timely cure the defect, and (8) whether a lesser sanction would better serve the interests of justice.
Moreover, the Court of Appeals affirmed that a trial court must consider, on the record, all other, lesser sanctions and explain why they would not be appropriate.
We conclude that the trial court abused its discretion by imposing the sanction of dismissal without considering, on the record, any of the factors listed above or explaining how other, lesser sanctions were not proper. . See Bass, 238 Mich App at 26-27; Duray Dev, 288 Mich App at 165. Although plaintiffs’ conduct may indeed warrant the imposition of the sanction of dismissal,1 “[o]ur legal system favors disposition of litigation on the merits[,]” Vicencio, 211 Mich App at 507, and a trial court seeking to impose dismissal as a sanction for discovery violations must do so in a deliberate and explicit way, on the record, that is amenable to appellate review. Kalamazoo Oil Co, 242 Mich App at 87-88. In this case, the trial court abused its discretion by failing to place its reasoning and consideration of alternative sanctions on the record, and as a result we must vacate its order and remand for further proceedings consistent with this opinion. Vicencio, 211 Mich App at 506-507.
