Dean v. Tucker

Citations: 451 N.W.2d 571; 182 Mich. App. 27Docket: Docket 104813

Court: Michigan Court of Appeals; January 17, 1990; Michigan; State Appellate Court

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Plaintiff appealed a grant of summary disposition in favor of the defendants in a legal malpractice case, alleging that the defendants' actions led to an inadequate verdict in her personal injury lawsuit. The trial had been scheduled for July 17, 1987, but was adjourned to November 16, 1987. A pretrial conference on July 17 established a deadline of August 6 for filing witness and exhibit lists. However, the plaintiff filed her lists late on August 27 and requested an extension, which was denied. This resulted in the exclusion of her expert witness, R. Scott Vanderford, contributing to the summary disposition in favor of the defendants. 

Defendants contended that the appeal regarding the witness list deadline was improperly raised, as the plaintiff did not appeal the denial of her extension motion but rather appealed the summary disposition. The court clarified that an appeal is permissible only from a final order, which in this case was the summary disposition that resolved all claims. The court concluded that because the plaintiff appealed from the correct final order, she was entitled to raise any issues related to the case, including those concerning the witness list. The court ultimately reversed the summary disposition, allowing the appeal to proceed.

Plaintiff has successfully appealed the order that granted summary disposition, allowing them to contest additional rulings from the trial court, specifically the refusal to extend the deadline for filing a witness list and the resulting exclusion of the plaintiff's witnesses. The summary disposition was based on the plaintiff's inability to present an expert witness, which stemmed from the trial court's denial of an extension to file the witness list and the sanction of striking that list due to tardiness. The core issue of the appeal is whether the trial court abused its discretion in barring the expert witness's testimony. The precedent established in Middleton v. Margulis indicates that discovery sanctions, particularly those leading to the dismissal of a case, must be exercised cautiously, taking into account the specifics of each case. The mere late filing of a witness list does not automatically justify such sanctions; the trial court must consider various factors, including the nature of the violation (wilful or accidental), the party's compliance history, potential prejudice to the defendant, and whether a lesser sanction would suffice. In this case, the trial court provided minimal justification for its decision, claiming that granting the extension would be unfair without elaborating on the grounds for this assertion or explaining why it would necessitate reopening discovery, which had already been completed before the pretrial conference.

The trial court's imposition of a harsh sanction against the plaintiff for failing to timely file a witness list is deemed unjustified. The failure was not willful but rather an inadvertent mistake by counsel regarding the deadline. The defendants were aware of the plaintiff's expert witness, Vanderford, and other witnesses prior to trial, having learned of them during discovery and as early as July 17, 1987. There is no evidence of prior misconduct by the plaintiff that would impede discovery, nor is there any indication that allowing the late filing would delay the proceedings. The defendants' claims of prejudice lack substantiation, given that they received the witness list approximately eighty days prior to trial and had announced readiness for trial on the relevant date. The plaintiff identified her error shortly after the missed deadline and filed a motion to correct it before the defendants sought sanctions. The court concluded that the trial court abused its discretion by denying the plaintiff's motion and striking her witness list, resulting in an erroneous summary disposition against her. While a lesser sanction, such as costs or attorney fees, may have been appropriate, barring the expert's testimony was excessive. The decision is reversed, and the case is remanded for further proceedings, allowing the plaintiff to tax costs.