TRACY DRAKE V AMY SCHANTZ-RONTAL MD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
TRACY DRAKE, Personal Representative for the
Estate of ROBERT DRAKE, Deceased,
UNPUBLISHED
November 20, 2007
Plaintiff-Appellant,
v
AMY SCHANTZ-RONTAL, M.D., ROLANDO
BEREDO, M.D., DOWNTOWN MEDICAL,
P.L.L.C., VASUDEV ANANTHRAM, M.D.,
SADASIVA REDDY, M.D., JACKSON
RADIOLOGY CONSULTANTS, P.C.,
TIMOTHY MURRAY, M.D.,
CHAKRAVARTHY KANDURU, M.D., and W.A.
FOOTE MEMORIAL HOSPITAL,
No. 270225
Jackson Circuit Court
LC No. 03-001785-NH
Defendants-Appellees.
Before: Talbot, P.J., and Fitzgerald and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting defendant Chakravarthy Kanduru, M.D.’s
motion to dismiss. Plaintiff also challenges a related order for discovery sanctions, which
precluded plaintiff’s expert witnesses from testifying at trial. We affirm.
Plaintiff filed this medical malpractice and wrongful death action against defendants for
failing to timely and properly evaluate, diagnose, and treat the decedent Robert Drake for a
dissecting thoracic aortic aneurysm. Because of problems encountered in scheduling the
depositions of defendants’ and plaintiff’s witnesses, on May 3, 2004 the trial court ordered that
the depositions of plaintiff’s experts were to be completed by December 31, 2004. However,
before those depositions could occur, defendants were granted summary disposition based on
deficiencies in the affidavits of merit submitted. This initial dismissal led to an appeal to this
Court and a stay of proceedings.1
1
Drake v Beredo, unpublished order of the Court of Appeals, entered May 18, 2005 (Docket No.
259680).
-1-
After the stay was lifted, the proceedings reinstated and discovery again commenced,2
Dr. Kanduru, joined by other defendants, sought to compel the deposition of plaintiff’s experts,
asserting that plaintiff was not cooperating in scheduling these depositions. During the hearing
conducted on November 18, 2005, the trial court ordered3 plaintiff to identify in writing the
expert witnesses she intended to call at trial by November 30, 2005. Plaintiff was instructed to
try scheduling the depositions for those experts and to appear on December 2, 2005 prepared to
schedule the depositions if she had been unsuccessful in confirming deposition dates.
Contrary to the trial court’s order, plaintiff failed to submit a written list of the experts
she intended on calling at trial. In addition, plaintiff appeared before the court on December 2,
2005, unprepared to schedule the depositions. The trial court then ordered plaintiff to provide
the list of experts to defendants by 5:00 p.m. that day or risk having her witnesses precluded
from testifying. In response, plaintiff facsimiled correspondence to the trial court stating that she
had complied with the prior order, citing letters dated October 25, 2005 and November 17, 2005.
The referenced letters were sent to defendants and identified possible deposition dates for seven
of the 28 experts included on her witness list. The trial court subsequently granted Dr.
Kanduru’s motion to strike plaintiff’s experts and for dismissal based on her failure to comply
with the discovery orders in accordance with MCR 2.313(B)(2) and MCR 2.504(B). Plaintiff
moved for reconsideration, which the trial court denied, stating in relevant part:
While the Court understands the position of the Plaintiff who suggests that
the Court was misled at the time of the motion and as a result dismissed Plaintiff’s
case, a review of the pleadings of all parties and a review of the Register of
Actions, which alone takes up 22 pages, convinces the Court that it was not
misled into dismissing Plaintiff’s case. The Court well recalls the several motions
that took place over a considerable period of time in which the Defendants tried to
obtain an actual list of the expert witnesses to be called at trial by the Plaintiff so
that their depositions could be obtained. A review of the file and Register of
Actions shows that the Court, on May 3, 2004, entered an Order extending the
discovery time in this cause because the Plaintiff had not made their experts
available for deposition, and at that time the discovery period had expired and
case evaluation was set to take place within a couple of weeks. This of course,
resulted in a new trial date having to be set. The Court subsequently ordered on
or about November 18, 2005, that the Plaintiff was to notify the Defendants which
expert witnesses were to testify at trial by December 2, 2005, and to appear in
Court with dates for the depositions to be taken. On December 2, 2005, the
Plaintiff had not notified Defendants as to the actual expert witnesses that would
testify and no dates for depositions thus had been provided or were available at
the time of the hearing on December 2, 2005, and the Court then ordered that such
a witness list be served upon the Defendants by 5:00 p.m. on that same day or the
experts would not be allowed to testify at the time of trial. On December 16,
2
This Court lifted the stay and denied the application for leave to appeal. Drake v Beredo,
unpublished order of the Court of Appeals, entered August 16, 2005 (Docket No. 259680).
3
The relevant order was entered November 29, 2005.
-2-
2005, the Court found and determined that the Plaintiff had not complied with the
Orders of the Court and was satisfied at that time that the Plaintiff had failed to
act in good faith and dismissed the case.
The Court is satisfied that it has acted with great restraint in extending
time periods for discovery and thus extending the trial dates that were previously
set in order for the Plaintiff to comply with the Court’s Order to notify Defendants
as to the expert witnesses to be called at trial and to allow the parties to take the
necessary resulting depositions. The Plaintiff has failed consistently to comply
with the Court’s Orders. The Court is also satisfied that the only appropriate
remedy at that point was to dismiss the case with prejudice.
Plaintiff argues that the trial court abused its discretion by prohibiting her witnesses from
testifying at trial and dismissing this action. We disagree. A trial court’s decision on whether to
impose discovery sanctions is reviewed for an abuse of discretion. Local Area Watch v Grand
Rapids, 262 Mich App 136, 147; 683 NW2d 745 (2004). An abuse of discretion occurs when the
trial court’s decision is outside the range of reasonable and principled outcomes. Maldonado v
Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
A trial court may order sanctions for failure to comply with a discovery order. MCR
2.313(B). Specifically, a court may preclude a party from introducing expert testimony at trial as
a sanction for disobeying a discovery order. MCR 2.313(B)(2)(b); LaCourse v Gupta, 181 Mich
App 293, 296; 448 NW2d 827 (1989). Severe sanctions, such as dismissing an action, are
generally appropriate “only when there has been a flagrant and wanton refusal to facilitate
discovery and not when failure to comply with a discovery request is accidental or involuntary.”
Traxler v Ford Motor Co, 227 Mich App 276, 286; 576 NW2d 398 (1998) (citation omitted). A
trial court should consider the following non-exhaustive list of factors in determining an
appropriate discovery sanction:
(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 defendant, (4) actual notice to the defendant of the witness
and the length of time prior to trial that the defendant received such actual notice,
(5) whether there exists a history of plaintiff engaging in deliberate delay, (6) the
degree of compliance by the plaintiff with other provisions of the court’s order,
(7) an attempt by the plaintiff to timely cure the defect, and (8) whether a lesser
sanction would better serve the interests of justice. [Dean v Tucker, 182 Mich
App 27, 32-33; 451 NW2d 571 (1990) (footnotes omitted).]
Following a review of the lower court record, we find that the trial court did not abuse its
discretion by prohibiting plaintiff’s experts from testifying at trial and dismissing the cause of
action. Although plaintiff attempted to comply with the May 3, 2004 discovery order, discovery
was not successfully conducted because this action was stayed as a result of the initial grant of
summary disposition and related appellate proceedings. However, this neither diminishes nor
excuses the fact that the May 3, 2004 order arose, in part, because plaintiff failed to produce her
expert witnesses for deposition. Further, plaintiff did not comply with the November 29, 2005
-3-
order because she failed to identify in writing the experts she intended to call at trial and was not
prepared at the December 2, 2005 hearing to schedule their depositions.
While plaintiff argues that the letters dated October 25, 2005 and November 17, 2005,
which were sent to defendants, constitute compliance with the November 29, 2005 order, those
documents do not adequately address the concern that led to the discovery order, i.e., identifying
which of plaintiff’s experts would actually testify in order to permit defendants to adequately
prepare for trial. Plaintiff’s identification in these letters of certain experts and possible dates of
availability for deposition did not comply with the trial court’s order because they failed to verify
whether the named individuals were the only experts plaintiff expected to testify.
Throughout the litigation, plaintiff provided conflicting indications regarding the number
and identity of the named experts who would actually be called to testify. In 2004, plaintiff
identified five experts who presumably she intended to call at trial. However, in later
correspondence, plaintiff identified seven experts who presumably she intended to call at trial.
Plaintiff added to the uncertainty by stating during the November 18, 2005 hearing that she
would call no more than three experts in each area of expertise. Had plaintiff simply provided
the court-ordered list that clearly identified those experts she intended to testify at trial, discovery
sanctions would have been avoided. Additionally, plaintiff violated the trial court’s very clear
directive and was not prepared when she appeared at the December 2, 2005 hearing to schedule
the depositions. Although plaintiff blames miscommunication for this failure, the lack of clarity
in communication among her own counsel does not justify or explain plaintiff’s failure to
comply with the trial court’s order to provide a written list of testifying experts.
The transcripts and lower court record clearly demonstrate that the trial court carefully
considered the circumstances and history of noncompliance, which had occurred throughout the
proceedings before implementing sanctions. See Houston v Southwest Detroit Hosp, 166 Mich
App 623, 629-630; 420 NW2d 835 (1987). The court did not rush to dismiss the case. Rather,
the trial court displayed great patience in providing plaintiff numerous opportunities to comply
with its discovery orders and deadlines.
Plaintiff’s dilatory actions prevented defendants from preparing for trial. Recognizing
that “[d]ismissal is a drastic step that should be taken cautiously,” Vicencio v Ramirez, 211 Mich
App 501, 506; 536 NW2d 280 (1995), we find that the trial court did not abuse its discretion by
prohibiting defendants from calling expert witnesses at trial. Given the nature of the case, not
allowing plaintiff’s experts to testify necessitated dismissal of the action. See MCR
2.313(B)(2)(b); LaCourse, supra at 296.
Affirmed.
/s/ Michael J. Talbot
/s/ Kirsten Frank Kelly
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
