March 10, 2014
THE ESTATE OF LARRY D. MARSH, (DECEASED), BY SHERRY A. MARSH, EXECUTRIX, AND SHERRY A. MARSH, INDIVIDUALLY, Appellant
BOWMAN'S STOVE AND PATIO, INC., Appellee
Appeal from the Order January 28, 2013 in the Court of Common Pleas of Lancaster County Civil Division at No.: CI-10-02155
BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]
Appellant, Sherry A. Marsh, in her own right and as executrix of the estate of her late husband, Larry D. Marsh, appeals from the January 28, 2013 order granting the motion of Appellee, Bowman's Stove and Patio, Inc. (Bowman), to exclude her medical expert testimony, denying her continuance request, and dismissing her complaint. After careful review, we reverse and remand for proceedings consistent with this memorandum.
We summarize the relevant factual and procedural history of this case as follows. On July 2, 2010, Larry Marsh and Appellant filed a complaint against Bowman, alleging that an overhead arbor built of wooden beams collapsed and injured Marsh while he was shopping at Bowman's store on March 8, 2008. On July 23, 2010, Bowman served interrogatories on Appellant, requesting expert reports pursuant to Pennsylvania Rule of Civil Procedure 4003.5. At that time, Appellant provided "[a] final determination of the witnesses to be called at trial ha[ve] not yet been made. At least one medical provider will  be called to testify." Bowman's Motion in Limine, 1/24/13, Exhibit B. Appellant also directed Bowman to view the "medical records and reports already produced." Id.
On November 22, 2011, Appellant filed a pre-trial conference memorandum in which she identified Dr. Perry Argires, Marsh's neurosurgeon, as a witness who would testify as to Marsh's injuries and the treatment he received. Dr. Argires would also opine as to causation. Within the memorandum, Appellant identified a report prepared by Dr. Argires, dated March 13, 2009, as an expert report submitted under Pa.R.C.P. 4003.5. The trial court entered an order directing the parties to complete discovery by July 1, 2012, and subsequently scheduled the trial to begin on January 28, 2013.
On January 15, 2013, 13 days prior to trial, Appellant notified Bowman that she was having issues obtaining the deposition testimony of Dr. Argires. Appellant's Response to Bowman's Motion in Limine, 1/30/13, at 2. Upon receiving such notification, Bowman "declined to reschedule [the trial,] and [Appellant] was forced to try to find another doctor on short notice." Id. On January 16, 2013, Appellant retained a new medical expert, Dr. Bernard Zeliger. Subsequently, on January 17, 2013, Appellant provided Bowman with Dr. Zeliger's curriculum vitae, and Bowman agreed to accept Dr. Zeliger's testimony if a report was provided to its office by Monday, January 21, 2013. Id.; Bowman's Motion in Limine, 1/24/13, at 2. Bowman requested Dr. Zeliger's report by January 21, 2013, because its medical expert, Dr. Joel W. Winer, was being deposed on January 22, 2013.
As Monday, January 21, 2013, was a federal holiday, Appellant did not provide Dr. Zeliger's report to Bowman until Tuesday, January 22, 2013.Appellant's Brief at 13. Bowman received the report at approximately 1:34 p.m., a few hours before Dr. Winer's deposition. Bowman's Reply to Concise Statement, 3/14/13, at 2; Bowman's Motion in Limine, 1/24/13, at 2. Bowman proceeded to conduct Dr. Winer's deposition on January 22, 2013. On January 23, 2013, Appellant conducted Dr. Zeliger's trial deposition, which Bowman attended. Bowman noted its objection to Dr. Zeliger's testimony on the record prior to the commencement of the deposition.
On January 24, 2013, Bowman filed a motion in limine seeking to preclude Dr. Zeliger's testimony, claiming that: 1) Appellant failed to identify Dr. Zeliger as an expert witness in answers to interrogatories or document requests; 2) Appellant did not identify Dr. Zeliger as an expert witness prior to the trial court's July 1, 2012 discovery deadline; and 3) Bowman's medical expert and counsel did not have adequate time to review and respond to Dr. Zeliger's report before Dr. Winer's deposition was conducted. Id. at 3.
On January 28, 2013, the date scheduled for trial, the trial court held oral argument on Bowman's motion in limine. Following argument, the trial court granted Bowman's motion to exclude Dr. Zeliger's medical testimony. Appellant subsequently requested a continuance of the trial, which the trial court denied. Bowman then moved for a compulsory nonsuit, which the trial court granted, as Appellant conceded that she could not proceed to trial without Dr. Zeliger's testimony. On January 30, 2013, Appellant filed a motion for reconsideration, which the trial court denied on February 25, 2013. On February 26, 2013, this timely appeal followed.
On appeal, Appellant raises the following issues for our review.
(1) Was it [an] error of law and an abuse of discretion to grant [Bowman's] [m]otion in [l]imine to exclude the testimony of Appellant['s] medical expert[, Dr. Zeliger,] on causation?
(2) Was it [an] error of law and an abuse of discretion to deny  Appellant['s] [m]otion for a [c]ontinuance to allow sufficient time for the parties to review the expert testimony of the Appellant['s] late[-]acquired medical expert?
(3) Was it [an] error of law and an abuse of discretion to grant [Bowman's] motion to dismiss because receiving  Appellant['s] expert report a day later than [Bowman] originally wanted allegedly caused incurable prejudice?
Appellant's Brief at 4.
Instantly, Appellant raises three interrelated questions of law. The crux of Appellant's argument is that the trial court erred in imposing a discovery sanction upon Appellant that was the functional equivalent of dismissing her underlying cause of action. Accordingly, we will address Appellant's claims concomitantly.
Where a discovery sanction results in the effective dismissal of a case, it is well settled that our standard of review is stringent. Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 926 (Pa. Super. 2011); see also Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (noting that "although the sanction in question precluded [appellant] from introducing expert testimony, but did not altogether dismiss [its] case, we will review the  appeal as if the trial court dismissed [its] complaint [as t]his Court recently held that such heightened review is appropriate when scrutinizing an order which is tantamount to dismissal in that it leads to  judgment being granted against the sanctioned party"), appeal denied, 717 A.2d 1028 (Pa. 1998); Steinfurth v. LaManna, 590 A.2d 1286, 1288 (Pa. Super. 1991) (concluding that this Court should "strictly scrutinize" the trial court's decision to preclude appellants from introducing expert testimony because such a sanction was tantamount to dismissal of appellants' action).
Generally, imposition of sanctions for a party's failure to comply with discovery is subject to the discretion of the trial court, as is the severity of the sanctions imposed. The trial court's discretion, however, is not unfettered. [W]hen a discovery sanction is imposed, the sanction must be appropriate when compared to the violation of the discovery rules. Because dismissal is the most severe sanction, it should be imposed only in extreme circumstances….
Biddle, supra (bracket in original; citations omitted; emphasis added).
Initially, we turn to Pennsylvania Rules of Civil Procedure 4003.5 and 4019, addressing the discovery of expert testimony and discovery sanctions, respectively. Rule 4003.5 states, in pertinent part, as follows.
Rule 4003.5 Discovery of Expert Testimony. Trial Preparation Material
(a) Discovery of facts known and opinions held by an expert … acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.
(b) An expert witness whose identity is not disclosed in compliance with subdivision (a)(1) of this rule shall not be permitted to testify on behalf of the defaulting party at the trial of the action.
However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.
Pa.R.C.P. 4003.5(a)(1)(a)-(b), (b) (emphasis added). The rule expressed in subsection (b) is restated in Rule 4019, reading, in pertinent part, as follows.
Rule 4019. Sanctions
(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.
Id. at 4019(i) (emphasis added).
Although Rule 4003.5(b) contains language that appears to mandate the exclusion of a late-proffered expert witness, our Supreme Court has concluded that this preclusion is not obligatory. See Feingold v. Se. Pa. Transp. Auth., 517 A.2d 1270, 1273 (Pa. 1986) (holding that, when a violation of Rule 4003.5 occurs, "the presiding court must balance the facts and circumstances of each case to determine the prejudice to each party"); Miller v. Brass Rail Tavern, 664 A.2d 525, 532 n.5 (Pa. 1995) ("not[ing] that the trial court's belief that the sanction authorized by Rule 4003.5 is obligatory, was in error"), citing Feingold, supra.
In City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259 (Pa. 2009), our Supreme Court first adopted factors for trial and appellate courts to consider before concluding dismissal constitutes a proper sanction for a discovery violation. In City of Phila., following a discussion of Feingold and its progeny, our Supreme Court concluded trial and appellate courts should consider the following four factors when addressing dismissal sanctions.
(1) [T]he prejudice, if any, endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the noncomplying party's willfulness or bad faith in failing to provide the requested discovery materials; (3) the importance of the excluded evidence in light of the failure to provide the discovery; and (4) the number of discovery violations by the offending party.
Id. at 1270-1271 (emphases added). When adopting this standard, our Supreme Court noted that our Court has "consistently placed greater emphasis on the first two factors[,]" i.e., the prejudice to the non-offending party and the bad faith of the offending party. Id. at 1271. In addition to the aforementioned factors delineated by our Supreme Court, we have concluded that "the nature and the severity of the discovery violation" should also be considered on review. Biddle, supra (citations omitted). "We are mindful that each factor represents a necessary consideration, not a necessary prerequisite." Rohm and Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010), cert. denied, Lin v. Rohm and Haas Co., 132 S.Ct. 852 (2011).
Contrary to our Supreme Court's announcement in City of Phila., the trial court's analysis addressed only the prejudice to Bowman and the willfulness or bad faith of Appellant in committing the discovery violation. Trial Court Opinion, 4/15/13, at 6-8, citing Feingold, supra. Accordingly, we initially conclude the trial court erred as a matter of law as its analysis contradicts City of Phila. Upon further review, we also conclude that the trial court abused its discretion as its analysis of these two factors belies the certified record.
Initially, we will address the prejudice endured by Bowman and Appellant's ability to cure such prejudice. When deciding that Bowman would be fatally prejudiced by Dr. Zeliger's testimony, the trial court reasoned as follows.
First, [Bowman] was, in fact, both prejudiced and surprised by [Appellant's] last minute decision to retain an expert other than [Dr. Argires].
[Appellant] gave [Bowman] no indication that [she] had any difficulty scheduling Dr. Argires['s deposition] … until two weeks before trial, so
[Bowman] had no way of knowing that a different witness would be called to opine on issues not discussed in the original report. [Bowman] is prejudiced because it had already scheduled its witness for trial deposition on January 23, 2013, but it did not receive Dr. Zeliger's report until just hours before on that same day. Moreover, the report of Dr. Zeliger contained opinions and analysis of issues and documents not presented in the report of Dr. Argires.4
[Bowman] likely would not have been able to cure the prejudice it would have suffered had Dr. Zeliger been allowed to testify. [Bowman] states it retained its medical expert six (6) weeks in advance to ensure his availability for the January 23, 2013 trial deposition. It is entirely likely that, even with additional time, [Bowman] and his expert would not have been able to adequately prepare to analyze and rebut Dr. Zeliger's report, which was twice as long as the original report offered by [Appellant] and offered opinions on issues not addressed in Dr. Argires's report.
4 Although [Appellant] argue[s] that Dr. Zeliger's report is within the scope of the report by Dr. Argires, the new discussion of pre-accident injuries and issues of causation and the extensive list of documents reviewed by Dr. Zeliger that were not mentioned in Dr. Argires's report, are significant additions that would prevent [Bowman] from preparing a meaningful response.
Trial Court Opinion, 4/15/13, at 6-7 (citations to transcript and some footnotes omitted). Additionally, the trial court concluded that Bowman sustained prejudice by "incur[ing] counsel and witness fees preparing to address Dr. Argires's original report and anticipated testimony, rather than Dr. Zeliger's report, which differed substantially from the original report." Id. at 8. We do not agree with the trial court's prejudice analysis.
On January 17, 2013, 11 days prior to the commencement of trial, Bowman agreed to the submission of Dr. Zeliger's report in substitution for Dr. Argires's report. At that time, Bowman only gave issue to the timing of the production of Dr. Zeliger's report. Bowman's Motion in Limine, 1/24/13, at 2. Specifically, Bowman wanted to receive the report one day prior to the scheduled deposition of its medical expert. Yet, Bowman now claims that such substantial prejudice befell upon it by receiving Dr. Zeliger's report approximately half of a day later than requested, and that Dr. Zeliger's testimony should be precluded and Appellant's case dismissed. We cannot agree. Bowman's agreement to Dr. Zeliger's testimony behooves any allegation of prejudice instantly asserted. In light of Bowman's agreement and the brief delay in production, we cannot conclude that Bowman sustained prejudice so substantial to support the trial court's dismissal of Appellant's cause of action. Accordingly, we conclude the trial court abused its discretion when it concluded such prejudice resulted from Appellant's approximate 12-hour delay in production.
As to Appellant's willfulness or bad faith in failing to provide Dr. Zeliger's report, the trial court opined as follows.
Finally, there is the issue of "bad faith." While there does not appear to be any intentional delay or misleading in this case, the rules, and the courts interpreting them, impose sanctions, including the preclusion of witness testimony, in situations where one party procrastinates and delays at the expense of the other, whatever the motivation may be. Where, as here, [Appellant] blatantly ignored the trial date by waiting until the last minute to find a medical expert, thereby demonstrating "willfulness in failing to comply with the court's order," they should not be allowed an exemption from the rule that was intended to prevent just that.
Trial Court Opinion, 4/15/13, at 8 (emphasis added; some footnotes omitted). As illustrated above, the trial court conceded that Appellant did not act willfully or in bad faith. Id.
Additionally, the trial court's finding that Appellant "wait[ed] until the last minute to find a medical expert" contradicts the record. Id. Herein, Appellant identified Dr. Argires as her medical expert in the pre-trial conference memorandum she submitted to the trial court on November 22, 2011. Attached to that memorandum was the expert report of Dr. Argires, dated March 13, 2009. However, Appellant met resistance when she attempted to secure the deposition testimony of Dr. Argires. Specifically, on January 14, 2013, Appellant discovered that Dr. Argires was unavailable to testify. Appellant's Brief at 5. Appellant immediately disclosed this information to Bowman, who would not concur in a continuance request. Accordingly, Appellant retained Dr. Zeliger, whose testimony Bowman agreed to accept. Yet, the trial court contended that Appellant "wait[ed] until the last minute to find a medical expert[.]" Trial Court Opinion, 4/15/13, at 8. We conclude the record supports Appellant's contention that she retained an expert who became unavailable, through no fault of Appellant, prior to trial. In light of these facts, we cannot agree with the trial court's assertion that Appellant waited until the eve of trial to find a medical expert. Accordingly, we conclude the trial court abused its discretion when it found Appellant committed her discovery violation willfully or in bad faith.
The remaining City of Phila. factors, i.e., the importance of the excluded evidence and the number of Appellant's discovery violations, also fail to support the trial court's dismissal sanction. As the preclusion of Dr. Zeliger's testimony resulted in the dismissal of Appellant's complaint, the testimony was of the utmost importance to Appellant's underlying cause of action. Furthermore, the trial court did not reference any earlier discovery violations committed by Appellant, and the certified record contains no such violations. The record is also devoid of any preceding continuance requests. Therefore, we conclude that the City of Phila. factors fail to support the trial court's dismissal of Appellant's cause of action.
Additionally, we deem the severity of Appellant's violation to be minimal. See Biddle, supra at 926-928 (concluding that the trial court abused its discretion when it denied appellant's motion to extend discovery, effectively terminating its case, based upon appellant's filing of the motion eight days late, because the violation was minor and neither severe nor egregious); cf. Rohm and Haas Co. v. Lin, supra at 144 (Pa. Super. 2010) (concluding that the trial court did not err by entering default judgment against appellant as a discovery sanction because appellant's "actions [over the course of five years] demonstrated a willful defiance of the court's discovery orders and disregard for the myriad less severe sanctions"); Croydon, supra at 629-630 (reasoning that the trial court's preclusion of appellant's expert testimony was an appropriate sanction because "[appellant] repeatedly and willfully failed to comply with court orders respecting discovery[,]" including its failure to submit an expert report for over one year). Consequently, we cannot conclude that the aforementioned facts reveal a set of extreme circumstances that justify the dismissal of Appellant's complaint pursuant to City of Phila. and Biddle. The grant of a continuance request could have cured any prejudice Bowman sustained by the introduction of Dr. Zeliger's testimony. See Pa.R.C.P. 4003.5(b), 4019(i). Accordingly, we conclude the trial court committed an error of law and abused its discretion when it precluded the testimony of Appellant's medical expert, denied her continuance request, and dismissed her complaint. See City of Phila., supra at 1270-1271; Biddle, supra at 926.
Based upon the foregoing, we conclude Appellant's issue is meritorious. Therefore, we reverse the trial court's January 28, 2013 order and remand for proceedings consistent with this memorandum.
Because I believe that the trial court did not abuse its discretion in granting Appellee's motion to exclude medical expert testimony, denying Appellant's continuance request, and dismissing Appellant's complaint, I respectfully dissent.
First, I am constrained to disagree with the Majority's conclusion that the trial court's analysis of the prejudice and willfulness or bad faith factors lacks support in the certified record, (see Majority Memorandum, at 10). With respect to prejudice, Appellant retained Dr. Zeliger just twelve days before trial when the trial date had been set for more than a year. (See id. at 3; Trial Court Opinion, 4/15/13, at 4). Appellee incurred counsel and witness fees preparing to address the report and anticipated testimony of the expert Appellant originally identified, Dr. Argires, rather than Dr. Zeliger's report, which differed substantially from Dr. Argires's report. Most significantly, Appellant failed to provide Dr. Zeliger's report to Appellee until mere hours before the trial deposition of its own medical expert, Dr. Joel W. Winer, leaving counsel and Dr. Winer with inadequate time to prepare. (See Majority Memorandum, at 3; Motion in limine, 1/24/13, at 2).
With respect to the willfulness or bad faith factor, Appellant, despite a looming trial date set fourteen months in advance, did not attempt to schedule Dr. Argires's deposition in a timely manner, and began calling his office only a few weeks before trial. Further, I cannot fully agree with the Majority's statement that "the trial court conceded that Appellant did not act willfully or in bad faith." (See Majority Memorandum, at 12). To the contrary, the trial court made an express finding of willfulness:
Finally, there is the issue of bad faith. While there does not appear to be any intentional delay or misleading in this case . . . [Appellant] blatantly ignored the trial date by waiting until the last minute to find a medical expert, thereby demonstrating willfulness in failing to comply with the court's order [to complete discovery by July 1, 2012.]
(Trial Ct. Op., at 8) (quotation marks omitted) (emphases added).
I also believe that the trial court did not abuse its discretion in denying Appellant's motion for a continuance. The court denied the continuance because Appellant's medical expert problems were attributable to counsel's procrastination in scheduling depositions, and delay in the trial would have prejudiced Appellee. Appellee and its witnesses were prepared to proceed to trial, Appellee had incurred fees and costs associated with trial preparation, and a continuance to accommodate Appellant would have caused it to incur additional expenses.
Finally, I believe that the trial court did not err in granting Appellee's motion to dismiss the complaint. After the trial court precluded Dr. Zeliger's testimony, Appellant conceded her inability to proceed because, without expert testimony, she "really [did not] have a case to prove damages." (N.T. Trial, 1/28/13, at 4). The trial court noted Mr. Marsh's numerous prior injuries and explained that expert medical testimony was necessary to prove that this incident, not any of the prior injuries, caused his symptoms. (See Trial Ct. Op., at 9-10).
Because in my view there was no abuse discretion on the part of the trial court in this matter, I would affirm its order. Accordingly, I respectfully dissent.