AUDREY LOGSDON, ADMINISTRATRIX OF THE ESTATE OF JAMES LOGSDON, DECEASED v. PHILIP M. ROSENBLOOM, M.D.
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RENDERED: December 29, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001189-MR
AUDREY LOGSDON,
ADMINISTRATRIX OF THE
ESTATE OF JAMES LOGSDON,
DECEASED
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 94-CI-006315
PHILIP M. ROSENBLOOM, M.D.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER, DYCHE, AND KNOPF, JUDGES.
KNOPF, JUDGE:
This is an appeal from an order of the Jefferson
Circuit Court dismissing a medical malpractice complaint for
failure to prosecute in a timely manner.
Finding no abuse of
discretion, we affirm.
The procedural history of this action is relevant to
this appeal and is not in dispute.
The appellant, Audrey
Logsdon, as administratrix of the estate of James Logsdon, filed
a complaint in Jefferson Circuit Court on December 1, 1994.
complaint alleged that the appellee, Dr. Philip Rosenbloom,
The
committed medical malpractice in rendering treatment to the
deceased, James Logsdon.
Rosenbloom filed his answer to the
complaint on December 19, 1994, generally denying liability.
Interrogatories and requests for production of documents were
propounded by Rosenbloom to Logsdon on December 16, 1994.
On May
16, 1995, Rosenbloom filed a motion to compel responses to the
discovery request.
The trial court sustained the motion and
ordered that Logsdon respond to the discovery requests on or
before June 26, 1995.
Rosenbloom subsequently filed a motion to
dismiss on August 1, 1995, in light of Logsdon’s failure to
respond.
However, the motion was apparently withdrawn after
Logsdon filed discovery responses on August 10, 1995.
On August 16, 1996, the trial court, on its own motion,
noted that no affirmative steps had been taken in the action
during the proceeding six months.1
The court assigned the matter
for a status conference on September 23, 1996, and directed the
parties to show cause why the action should not be dismissed for
want of prosecution.
On the day of the hearing, Rosenbloom filed
a motion for summary judgment pursuant to CR 56.03, citing to
Logsdon’s failure to identify an expert witness in support of her
claim for medical malpractice.
In response, Logsdon stated that
she identified Drs. Rahman, Deshmukh, and Cottrell as her expert
witnesses in her response to the interrogatories.
The trial
court denied the motion for summary judgment, finding that
Logsdon had adequately identified her expert witnesses, and
1
See CR 77.02(2).
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noting that summary judgment is not appropriate as a sanctioning
tool to punish discovery violations.
Prior to the entry of the trial court’s order denying
the motion for summary judgment, Rosenbloom filed a motion to
compel Logsdon to come forward with affidavits from her expert
witnesses which would affirm the representations made in
Logsdon’s response to the motion for summary judgment.
The trial
court sustained the motion to compel, and ordered Logsdon to
submit the affidavits by January 24, 1997.
On March 24, 1997,
Rosenbloom filed a motion to exclude the previously named expert
witnesses because Logsdon had failed to comply with the court’s
order to submit affidavits.
The trial court denied the motion to
exclude on October 8, 1997.
On December 19, 1997, a notice of rehabilitation and an
order staying the proceedings was filed on behalf of Rosenbloom.
Rosenbloom’s liability insurance carrier, the PIE Mutual
Insurance Company, had been placed into liquidation by the Ohio
Department of Insurance.
By order of the Court of Common Pleas
of Franklin County, Ohio, all proceedings in which an insured was
a party were stayed for a period of 90 days.2
Apparently, the stay expired of its own accord, as
there is no additional mention of it in the record.
On June 25,
1998, Rosenbloom filed notices to take the depositions of
Logsdon’s experts.
Rosenbloom subsequently canceled the
depositions, and re-noticed the depositions on August 31, 1998.
2
The stay ordered by the Ohio court was applicable to the present litigation pursuant to
KRS 304.33-170(1).
-3-
The record does not indicate that any depositions were taken, but
Logsdon’s brief states that they were again canceled by
Rosenbloom.
On January 21, 1999, Rosenbloom filed a motion to
dismiss for failure to prosecute the claim.3
Rosenbloom
specifically noted Logsdon’s failure to comply with the trial
court’s order of January 14, 1997, requiring production of
affidavits from her expert witnesses.
By order entered on
February 15, 1999, the trial court denied Rosenbloom’s motion,
but directed that Logsdon submit the affidavits within fifteen
days.4
No affidavits were forthcoming, and Rosenbloom filed a
renewed motion to dismiss on March 10, 1999.
The record does not
indicate that any response to the motion was filed.
However, in
her brief on appeal, Logsdon states that the named physicians
refused to provide the affidavits.
On April 19, 1999, the trial
court entered its order dismissing the action for failure to
prosecute, and this appeal followed.
Logsdon argues that the trial court abused its
discretion in dismissing her complaint.
A court may dismiss an
action for failure of a plaintiff to prosecute or to comply with
the civil rules or with any order of the court.
CR 41.02(1).
Application of this rule is a matter for the discretion of the
court.
3
Thompson v. Kentucky Power Co., Ky.
App., 551 S.W.2d
CR 41.01(1).
4
Prior to November 23, 1998, the proceedings in this action
were before Hon. William E. McAnulty, Jr. Following Judge
McAnulty’s election to this Court, Hon. Lisabeth Hughes Abramson
was appointed as his successor in February 1999.
-4-
815, 816 (1977).
However, because of the grave consequences of a
dismissal with prejudice, a dismissal pursuant to CR 41.02 should
be resorted to only in the most extreme cases, and this Court
should carefully scrutinize the trial court's exercise of
discretion in doing so.
Polk v. Wimsatt, Ky.
App., 689 S.W.2d
363, 364-65 (1985).
Each case must be considered in the light of the
particular circumstances involved and length of time is not alone
the test of diligence.
(1970).
Gill v. Gill, Ky., 455 S.W.2d 545, 546
Where the motion is based upon a party’s failure to
comply with discovery orders, the trial court must take care in
analyzing the circumstances and must justify the extreme action
of depriving the parties of their trial.
App., 809 S.W.2d 717, 719 (1991).
Ward v. Housman, Ky.
Adopting the federal test of
Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir. 1984), the Court
in Ward sets forth standards to apply to the circumstances of
each case to determine if a less severe sanction would be
warranted:
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) meritoriousness of the claim;
5) prejudice to the other party; and
6) alternative sanctions.
Id., pp. 875-878.
We find that the trial court acted within its
reasonable discretion in dismissing Logsdon’s complaint.
Logsdon
argues that Rosenbloom had a duty to take the depositions of her
expert witnesses to determine the basis for their opinions.
-5-
However, the trial court denied Rosenbloom’s 1996 motion for
summary judgment based upon Logsdon’s representation that Dr.
Rahman, Deshmuhk, and Cottrell would testify as expert witnesses
on her behalf.
However, the court’s order of January 14, 1997,
directed Logsdon to obtain affidavits from her expert witnesses
verifying that they had been contacted and had agreed to be
expert witnesses for her in the litigation, and summarizing the
basis for their opinions that Rosenbloom violated an applicable
standard of care.
We conclude that Rosenbloom was not obligated
to take the depositions of the physicians until Logsdon complied
with the court’s order and confirmed that the expert witnesses
had agreed to testify on her behalf.
The trial court gave Logsdon ample opportunity to
comply with this order, but she failed to do so.
Without the
expert testimony, it is unlikely that Logsdon could have
prevailed on the merits of her claim.
Furthermore, even
discounting the time lost under the stay, Logsdon had failed to
move forward on her complaint for nearly two years at the time
the trial court dismissed the action.
We agree with the trial
court that the delay was unreasonable and worked to Rosenbloom’s
prejudice.
Under the circumstances, we find no abuse of
discretion.
Accordingly, the judgment of the Jefferson Circuit
Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. William Bailey
Bailey Law Office
Elizabethtown, Kentucky
Craig L. Johnson
Whonsetler & Associates PSC
Louisville, Kentucky
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