ABDUL AMIR AL-ISAWI V DANIEL JOSEPH MCCANN
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STATE OF MICHIGAN
COURT OF APPEALS
ABDUL AMIR AL-ISAWI and TAKLIF GHAZI
AL-ARITHY,
UNPUBLISHED
September 21, 2001
Plaintiffs-Appellants,
V
No. 223661
Wayne Circuit Court
LC No. 99-906903-NI
DANIEL JOSEPH McCANN,
Defendant-Appellee.
Before: Cavanagh, P.J., and Markey and Cooper, JJ.
PER CURIAM.
Plaintiffs appeal by right from an order dismissing their third-party no-fault action with
prejudice for failure to provide discovery. We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
“It is within the trial court’s discretion to sanction a party for violating the discovery
rules.” Morinelli v Provident Life & Accident Ins Co, 242 Mich App 255, 265; 617 NW2d 777
(2000). On appeal, plaintiffs argue that the trial court in this case abused its discretion in
dismissing the case with prejudice. Under MCR 2.313(B)(2)(c), a trial court may enter an order
dismissing a proceeding when a party fails to obey an order to provide discovery. Bass v Combs,
238 Mich App 16, 26; 604 NW2d 727 (1999). “Severe sanctions are generally appropriate only
when a party flagrantly and wantonly refuses to facilitate discovery, not when the failure to
comply with a discovery request is accidental or involuntary.” Id. The factors that should be
considered in determining the appropriate sanction include: (1) whether 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) the length of time before trial that the
other party received notice of a witness; (5) whether there is a history of deliberate delay; (6) the
degree of compliance with other provisions of the court’s discovery orders; (7) whether there
was an attempt to timely cure the defect; and (8) whether a lesser sanction would better serve the
interests of justice. Id. at 26-27, quoting Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d
571 (1990).
We find no abuse of discretion on this record. Plaintiffs’ obstruction of discovery was
not limited to a single instance, but rather plaintiffs’ delays and denials of discovery extended
throughout the case. Plaintiffs failed to supply full and complete answers to the interrogatories
as ordered, and their supplemental answers failed to cure most of the defects. They would not
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disclose the nature of their injuries, the names of witnesses, or what serious impairment of body
function they were claiming. They failed to show up for court-ordered medical examinations.
Because of their absences, defendant incurred in excess of $1,000 in doctors’ and translator’s
fees. In short, plaintiffs’ conduct repeatedly frustrated defendant’s attempts to discover
information vital to a proper defense of his case. The court’s less drastic sanction of assessing
$1,000 in costs proved unsuccessful. Further, while plaintiffs now claim that they could not
afford to pay the court-ordered costs, they did not claim indigency when the court entered the
order. Moreover, the costs assessed represented only a portion of the expenses defendant
incurred because of plaintiffs’ course of conduct. Under these circumstances, we find no abuse
of discretion. Oviedo v Ozierey, 104 Mich App 428, 435; 304 NW2d 596 (1981).
We affirm.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Jessica R. Cooper
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