REBECCA ANN NICHOLS v. FITZHUGH MULLINS
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RENDERED: October 1, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001854-MR
REBECCA ANN NICHOLS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN CONLIFFE, JUDGE
ACTION NO. 97-CI-06688
v.
FITZHUGH MULLINS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE: Rebecca Nichols (Nichols) appeals an order of
the Jefferson Circuit Court entered June 25, 1998, dismissing her
cause of action against Fitzhugh Mullins, M.D. (Dr. Mullins) with
prejudice for failure to comply with the court's order of May 28,
1998, requiring her to disclose her expert witnesses.
The facts of this case are not in question.
We affirm.
On
November 19, 1997, Nichols filed a complaint against Dr. Mullins
in the Jefferson Circuit Court alleging lack of informed consent
to a medical procedure and medical negligence in her care and
treatment.
On December 3, 1997, Dr. Mullins served
interrogatories and requests for production of documents on
Nichols pursuant to CR 33.01, requesting, among other things,
that she identify her expert witnesses and state the grounds for
their opinions.
Nichols did not provide answers to the interrogatories
within the allotted time.
After the interrogatories were more
than four weeks late, Nichols’s counsel contacted Dr. Mullins’s
counsel and indicated that he would produce the interrogatory
answers shortly.
On February 26, 1998, Dr. Mullins’s counsel
again contacted Nichols’s counsel to inquire about the overdue
interrogatory answers.
Nichols’s counsel informed Dr. Mullins’s
counsel that he would produce the interrogatory answers within
the week.
Dr. Mullins’s counsel specifically requested that the
interrogatory answers be provided before March 12, 1998, the date
of Nichols’s scheduled deposition.1
When Nichols’s counsel did not produce the
interrogatory answers within the week, Dr. Mullins filed a motion
to compel on March 3, 1998.
On March 9, 1998, the trial court
ordered Nichols to provide the interrogatory answers to Dr.
Mullins by March 11, 1998.
However, Nichols’s counsel failed to
comply with the trial court's order and, in fact, canceled the
deposition on March 12, 1998, some two hours before it was to
begin, claiming that he was in trial that day.
On March 18,
1998, Dr. Mullins filed a second motion to compel Nichols to
answer the interrogatories.
1
Nichols deposition was originally scheduled for February 4,
1998, but was rescheduled due to the late interrogatory answers.
-2-
At the April 27, 1998, hearing on the motion, the trial
court ordered Nichols to fully answer the interrogatories by May
11, 1998, or face dismissal of her complaint.
On May 11, 1998,
Nichols finally provided her answers to the interrogatories.
However, Nichols failed to answer interrogatory No. 7, which
required her to disclose the identity of any expert witness who
would testify as to Dr. Mullins’s deviation from the standard of
care.
On May 14, 1998, Dr. Mullins filed a motion to dismiss
for failure to comply with the trial court’s orders of March 9,
1998, and April 30, 1998.
The motion was heard on May 18, 1998,
and the trial court gave Nichols until June 17, 1998, to either
disclose her experts or face dismissal.
Nichols’s counsel did
not attend this hearing and further denies ever receiving a copy
of this order.
18, 1998, order.
Nichols did not comply with the trial court's May
On June 23, 1998, Dr. Mullins filed a motion to
dismiss, which the trial court granted on June 25, 1998.
This
appeal followed.
At the outset we note for the record that the decision
to dismiss an action for failure to answer interrogatories falls
within the discretion of the trial court. Spradling v. Boone
County Planning Commission, Ky., 461 S.W.2d 548 (1970).
In fact,
the Supreme Court of Kentucky has held that "[a] trial court has
wide discretion in applying the penalties provided by CR 37.04
and unless there is a clear abuse of this discretion this court
will not disturb the order of the trial court." Benjamin v. Near
East Rug Company, Inc., Ky., 535 S.W.2d 848 (1976) (emphasis
-3-
added).
Pursuant to CR 37.04, the trial court may apply the
following sanctions for failure to answer interrogatories:
(2) Sanctions by court in which action
is pending.
If a party or an officer, director, or
managing agent of a party or a person
designated under Rule 30.02(6) or
31.01(2) to testify on behalf of a party
fails to obey an order to provide or
permit discovery, including an order
made under Rule 37.01 or Rule 35, the
court in which the action is pending may
make such orders in regard to the
failure as are just, and among others
the following:
(a) An order that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purposes of the
action in accordance with the claim of
the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses, or
prohibiting him from introducing
designated matters in evidence;
(c) An order striking out pleadings or
parts thereof, or staying further
proceedings until the order is obeyed,
or dismissing the action or proceeding
or any part thereof, or rendering a
judgment by default against the
disobedient party; ...
CR 37.02 2(a)-(c) (emphasis added).
Nichols argues that the trial court abused its
discretion in dismissing her complaint for failure to abide by
the May 18, 1998, order.
We disagree.
Nichols ignored not one
but two orders of the trial court with regard to these
interrogatories.
The interrogatories were not answered until
almost two months after the time period set by the trial court.
-4-
The answers to interrogatories were already four months late when
the trial court ordered Nichols to either provide the answers by
May 11, 1998 or face dismissal.
Nichols partially complied with
this order by providing Dr. Mullins with a set of incomplete
answers.
On May 18, 1998, the trial court gave Nichols one last
chance to provide complete answers.
When Nichols ignored this
order, the trial court dismissed the action.
discretion in the trial court's decision.
We see no abuse of
Court orders are not
to be taken lightly and should be adhered to quickly and
diligently.
We note that Nichols claims that she did not receive
the trial court's May 18, 1998, order.
However, we are also
aware that Nichols did not attend the May 18, 1998, hearing
although she was aware of same.
We further note that Nichols did
not inquire into the outcome of the May 18, 1998, hearing.
We do
not believe Nichols’s conduct justifies reversal of the decision
of the trial court in this matter.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. William Bailey, Jr.
Elizabethtown, KY
Cathleen Charters Palmer
Louisville, KY
-5-
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