STAPLETON V. SHOWER, M.D.
CIVIL PROCEDURE: Trial judge’s dismissal of pro se medical negligence claim for failure to answer discovery reversed and remanded by COA for failure to make findings of fact
PUBLISHED: VACATING AND REMANDING
PANEL: THOMPSON PRESIDING; CAPTERTON, LAMBERT CONCUR
DATE RENDERED: 04/11/2008
Patient and her husband filed a pro se medical malpractice action against doctor and clinic who moved at trial to dismiss due to patient’s failure to respond to discovery requests. Trial court dismissed. COA vacated and remanded.
Although the circuit court has broad discretion when applying the “civil death penalty,” that is, dismissal with prejudice, it should be resorted to only in the most extreme cases and, when resorted to should be carefully scrutinized by an appellate court.
In Toler, the Court further emphasized that the trial court is to consider the factors set forth in Ward, 809 S.W.2d 717, when making a determination as to whether to order dismissal pursuant to CR 41.02. Those factors include: “(1) the extent of the party’s personal responsibility; (2) the history of dilatoriness; (3) whether the attorney’s conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions.” Id. at 351 (citing Ward, 809 S.W.2d at 719).
These same factors are equally relevant when dismissal is imposed as a sanction for failure to comply with discovery requests. In Ward, the fact underlying the basis for the dismissal was the plaintiff’s failure to timely respond to a discovery request and, consequently, the identification of an expert witness. Thus, the law set forth in Ward and, as clarified in Toler, is controlling when the court considers the issue of involuntary dismissal with prejudice.
In this appeal, the COA noted there was absolutely no reference to any of the Ward factors. As such, it is virtually impossible for this court to determine whether the dismissal was based solely on a single dilatory act or whether the trial court made its determination after considering the relevant factors set forth in Ward.
The COA held that the Circuit Court’s failure to make findings of fact required vacatur.
By Michael Stevens