Pappalardo v. Lloyd

Hammond, C. J., delivered the opinion of the Court. The appeal is from dismissal of a malpractice suit in the Circuit Court for Montgomery County against a doctor and a hospital for failure of the plaintiffs Angelo Pappalardo and Grace, his wife, to depose as ordered. On March 6, 1966, a deposition notice was given the plaintiffs for April 6. Defendants were advised that the husband was in the foreign service in Greece and the wife in the hospital in Boston, and it was agreed that upon her discharge from the hospital she would depose.

However, on June 6 plaintiffs’ counsel wrote defendants’ counsel that the wife was going to Greece on June 10 directly from Boston and could not return to Washington so that the deposition would have to await her return from overseas. The case was scheduled for trial on December 14, 1966. Plaintiffs sought a year’s delay to a time when they would be in this country. Defendants moved to require plaintiffs to submit to depositions or have their case dismissed.

Plaintiffs’ request for delay in trial and defendants’ motion as to dismissal were argued together. Judge Anderson, on January 4, 1967, ordered that the case stand dismissed on April 1, 1967, if the plaintiffs failed to submit to depositions in Montgomery County on or before that date or, in the alternative, if they failed to appear in the American Embassy in Athens prior to that date, that they deposit $2,000 as security for payment of costs including the cost of taking the depositions in Greece. On March 27 plaintiffs filed a suggestion of removal, and an order removing the case to Garrett County was signed on April 3, 1967. Plaintiffs moved the Circuit Court for Garrett ¹²³ County on April 19 to modify the order of January 4, by extending the time within which depositions could be taken to August 1, 1967.

A supporting affidavit recited that plaintiffs had been unable to comply with the order of January 4 “and seek relief * * * from this Court, since they are scheduled to return to the country at the end of June and will then be available for depositions taken in the ordinary manner,” and it also said: “detailed interrogatories and answers thereto have been filed [on November 9, 1966]. Plaintiffs have given defendants authorizations to obtain all applicable medical records, and defendants have substantial records of their own. There is no reason why defendants cannot proceed with depositions of other individuals involved, the names of whom have all been disclosed in the answers to the interrogatories. When plaintiffs return to this country in June of this year, trial preparations will be that much further along. “Plaintiffs have incurred substantial medical expense * * *.

To burden them with a Grecian trip for counsel would be grossly unfair, and counsel is advised and represents to the Court that the plaintiffs cannot afford this expense.” Judge Hamill granted the motion ex parte on April 19, amending the order of January 4 by setting aside the dismissal of the cause on April 1, 1967, and by extending the time for depositions to August 1, 1967. After defendants on May 9 had filed a motion opposing the modification of the order