Valentine-Bowers v. Retina Group of Washington, P.C.

³⁶⁹ NAZARIAN, J. Appellant Leslie Valentine-Bowers appeals the dismissal by the Circuit Court for Prince George’s County of her medical malpractice case against appellee The Retina Group of Washington (“TRG”) and appellee Nicole Moffett, O.D. (“Dr. Moffett”). The trial court dismissed the case because counsel for Ms. Valentine-Bowers had failed repeatedly to comply with discovery deadlines, including orders of the court. We find no abuse of discretion in that decision and affirm.

I. BACKGROUND Ms. Valentine-Bowers alleged that between February 2006 and August 2008, TRG and Dr. Moffett, among others, failed to monitor a condition in her right eye that ultimately caused her to lose vision in that eye. The appellees dispute the merits of her claim, but the underlying substance doesn’t matter to this appeal. The procedural history does, beginning after Ms. Valentine-Bowers served her Complaint, first on TRG, on November 4, 2011, 1 and second, on Dr. Moffett on December 2, 2011. On December 2, 2011, TRG filed an Answer, along with Interrogatories and a Request for Production of Documents.

Ms. Valentine-Bowers’s responses were due on December 30, 2011 under Maryland Rules 2-421 (b) (with respect to the Interrogatories) and 2-422(c) (with respect to the Request for Production), but she did not file them. Her failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return). ³⁷⁰ But after nearly two more months had passed with no response, TRG’s counsel wrote to counsel for Ms. Valentine-Bowers on February 29, 2012, asking when he intended to provide discovery responses and when Ms. Valentine-Bowers would be available for her deposition. Her counsel again failed to respond, and TRG’s counsel sent a second letter on March 15, 2012. This time around, counsel upped the ante, warning that if he received no response by March 23, 2012, he would file a motion with the court and unilaterally note the deposition.

Neither a response nor a motion followed right away, and counsel for TRG even waited until April 27, 2012 before he called and left follow-up messages for Ms. Valentine-Bowers’s counsel. Again, he received no response. On May 4, 2012, in what he characterized as “an attempt to stir [her] into action,” TRG’s counsel noted Ms. Valentine-Bowers’s deposition for July 6, 2012. Then, on May 7, 2012 TRG filed a Motion to Compel Discovery seeking a court order requiring that Ms. Valentine-Bowers respond to the Interrogatories and Request for Production.

Her counsel neither filed an opposition nor contacted counsel for TRG in response. On May 31, 2012, the circuit court granted TRG’s Motion to Compel and ordered Ms. Valentine-Bowers to “provide” answers to interrogatories and “produce” the requested documents by June 18, 2012—with the express warning that if she failed to do so she “may be subject to sanctions and/or penalties ordered by this Court.” Evidently, however, this motion was not docketed, and counsel for Ms. Valentine-Bowers claims not to have received it. 2 We are prepared to assume for present purposes that counsel never did receive the motion, and that could explain why counsel never complied with the Order. But after more silence followed, TRG filed ³⁷¹ another Motion for Sanctions on June 27, 2012 (a motion counsel indisputably did receive), in which it sought dismissal based on Ms. Valentine-Bowers’s failure to comply with the Order. Dr. Moffett had a similar experience that occasioned a similar series of motions.

She filed an Answer on December 29, 2011 and served Interrogatories and a Request for Production of Documents on December 20, 2011. Dr. Moffett’s counsel wrote to Ms. Valentine-Bowers’s counsel on January 31, 2012 because he had not received any responses. It appears that one conversation took place thereafter, as a March 7, 2012 letter from Dr. Moffett’s counsel referred to a two-week extension based on a discussion between counsel “[a]t the end of January.” Ms. Valentine-Bowers’s counsel apparently did not comply with that extension, and that letter drew no response. Dr. Moffett’s counsel tried calling counsel on May 4, 2012, and again received no response.

So on May 8, 2012, Dr. Moffett filed a Motion to Compel based on Ms. Valentine-Bowers’s failure to respond to the Interrogatories or the Request for Production. The court denied that motion because it lacked the required Rule 2-431 Certificate. 3 Dr. Moffett filed a Second Motion to Compel on June 5, 2012 that attached a proper Certificate; that motion went unopposed and the Court granted it on July 5, 2012. The July 5 Order contained the same directives and warning as the May 31 Order, i.e., that Ms. Valentine-Bowers was to “provide full and complete Answers to Interrogatories and to produce all requested documents,” this time to Dr. Moffett, “by or before July 12, 2012,” or she would be subject to sanctions. Handwritten notations on the Order indicate that the trial judge’s law clerk actually called Ms. Valentine-Bowers’s counsel to make him aware of the Order’s contents, a point counsel acknowledges. ³⁷² The noted deposition date of July 6 arrived, and, although counsel for all defendants appeared at TRG’s counsel’s offices according to the Notice, Ms. Valentine-Bowers and her counsel did not. 4 Accordingly, on July 9, 2012, TRG filed a Supplemental Memorandum in support of the Motion for Sanctions, and cited this additional discovery failure as a reason to dismiss the case.

The trial court’s second compliance deadline, July 12, came and went, and the appellees heard nothing from Ms. Valentine-Bowers. We say “heard nothing from” because according to her counsel, the appellees “were served with” Ms. Valentine-Bowers’s answers to “all outstanding discovery on or about July 12, 2012,” but that’s not quite true. In fact, Ms. Valentine-Bowers’s counsel mailed unexecuted Answers to Interrogatories on July 12, 2012. Counsel for the appellees received the unexecuted answers on July 16, 2012.

Counsel for Ms. Valentine-Bowers mailed the signature page, dated July 13, 2012, on July 17, 2012. After receiving the unexecuted, undated responses, the appellees consolidated all grounds for dismissal in one motion, the “Defendants’ Joint Motion for Sanctions” (the “Joint Motion”), which they filed on July 20, 2012. In support of the Joint Motion, and as a basis for dismissing the case, the appellees cited Ms. Valentine-Bowers’s multiple failures to respond to outstanding discovery, her failure to appear for her deposition, and her failure to comply with the July 5 Order. The trial court held a hearing on October 5, 2012 (“the Hearing”).

TRG’s counsel argued that the case warranted dismissal first, because of Ms. Valentine-Bowers’s failure to comply with the Court’s July 5 Order by failing to provide interrogatory responses by July 12, and second, because of her ³⁷³ failure to appear at her properly noticed deposition. He also cited counsel’s repeated failure to respond to any inquiries about the status of the discovery responses. Counsel for Ms. Valentine-Bowers argued not only that he had complied with all discovery deadlines but also, perhaps on the theory that the best defense is a good offense, that the defendants delayed discovery by waiting to pursue expert depositions and unjustifiably sought the “windfall” of dismissal. Counsel blamed delays on his side mainly on his client, whom he evidently had had difficulty contacting.

The court granted the Joint Motion (clarifying as much at the end of the hearing), which rendered TRG’s and Dr. Moffett’s separate motions moot. The court pointed out that Ms. Valentine-Bowers filed the original Complaint on March 24, 2010, and it then reviewed the chronology of the discovery motions, noting her obligation to communicate with, and remain accessible to, her counsel as a plaintiff in litigation: A look through the file shows that numerous motions to compel ... were filed by [TRG,] all going unanswered. That the Court issued orders in these cases, one on May 31st, 2012, requiring that [Ms. Valentine-Bowers] ... be and hereby is ordered to provide full and complete answers to interrogatories and produce all requested documents to [TRG] by or before [June 18]. The last order that, if [Ms. Valentine-Bowers] fails to provide said discovery to [TRG] by or before the aforementioned date, [she] may be subject to sanctions and/or penalties ordered by the Court.

No discovery was provided by [Ms. Valentine-Bowers] to counsel. Second motions or additional motions to compel were filed by [appellees]. An order again was granted and issued by this Court dated July 5th, 2012. Again, I read from that order.

That pursuant to representation by [Ms. Valentine-Bowers’s] counsel, she be and hereby is ordered to provide full and complete answers to interrogatories and produce all requested documents to [Dr. Moffett] by or before July 12th, 2012. The last order paragraph, that if [Ms. Valentine-Bowers] fails to provide said discovery to [Dr. Moffett] ³⁷⁴ by or before the aforementioned date, [she] may be subject to sanctions and/or penalties as ordered by this Court. And obviously having reviewed the file in the great detail I have, outlining these two order[s] most notably, clearly there’s been a failure to comply by [Ms. Valentine-Bowers]. [Plaintiffs counsel] in his representations to the Court says well, we haven’t complied, we haven’t responded because I just didn’t know where my client was. It certainly appears to the Court that he attempted to reach her by accepting his representations as true.

He’s an officer of the court. That he attempted to reach her, was unable to do so despite his numerous attempts. That finally, at some point he was able to reach her, and you know, inquired as to, you know, what’s going on. Are you interested in this case?

She says yes, and her information is changed and her e-mail however, appeared to remain the same. Certainly the Court recognizes the duty upon [Ms. Valentine-Bowers] to keep herself in contact with her counsel. If her address changes, her numbers change, as this Court is aware of, and the counsels as well. It’s certainly [her] responsibility to keep her counsel informed.

Even though it appeared that at a minimum her e-mail address remained the same and [her] counsel indicates he attempted or many times did send e-mails and had no response. But nonetheless, the requirement is hers to remain in contact with her counsel, and I would concur with [TRG’s counsel’s] representation that an individual who initiated a complaint such as this, remain interested in its pursuit would at a minimum have remained in contact with her counsel. And it appears many months have gone by where she didn’t. And a simple apology isn’t really, while recognized and accepted, is not the remedy of which the Court can rely upon.

Recognize in this case that it’s a medical malpractice action. That it requires discovery. It requires a lot of effort and work be placed on the parties, most notably in this case, [appellees,] to be able to defend against this action. ³⁷⁵ The court then detailed the five factors a trial court should consider in determining whether dismissal is the appropriate sanction for a party’s failure to comply with discovery, see Hossainkhail v. Gebrehiwot, 143 Md.App. 716, 725-26 , 795 A.2d 816 (2002), and concluded that dismissal was justified here: I was provided and have reviewed [Hossainkhail, which] outlines for the Court ... what we should consider in determining whether to impose discovery sanctions. And it outlines [first,] whether the discovery violation was technical or substantial.

And clearly in this case, it was substantial. It was a complete disregard of discovery requests, numerous, as outlined by motions, by a failure to comply with a Court order[. Second,] the timing of the ultimate disclosure. It appears that three to four days after the deadline for the order was, the discovery appeared to be responded, provided.

It was unexecuted answers. So I don’t find that the ultimate discovery was provided. I find that it was incomplete and certainly outside, well outside the orders of this court. [Third, the] reason for the violation as provided, in this case the reason is, they just couldn’t find [Ms. Valentine-Bowers]. They just tried to reach her, couldn’t find her for all these months, didn’t know where she was, and she did not contact her counsel despite knowing that she had filed this medical malpractice [action] against these many defendants.

Despite knowing that she would need to remain in contact with her counsel to be able to participate. [Fourth, the] degree of prejudice of the parties offering or imposing the evidence. In this case, the prejudice to [appellees] is great. There’s case law, and I think one of the ones cited was the Hart case, where it talks about the long delay and what the detriment is to the party seeking the discovery. The memory of witnesses .fade.

The ability to locate witnesses becomes an issue. And so, certainly the Court can find prejudice exists to [appellees] in this case when a long time passes, such as in this case, when [Ms. Valentine-Bowers] has failed to respond to discovery. And [fifth>] ³⁷⁶ whether any resulting prejudice might be cured by a postponement. And I don’t find that a postponement in this case would cure this prejudice.

This matter is scheduled for trial in January. It’s certainly a complex medical malpractice case. It involves many parties. And, the fact that at the last minute [Ms. Valentine-Bowers] sent some unexecuted answers doesn’t in and of itself find that she has tried to remedy the situation.

I also note [Ms. Valentine-Bowers] failed to appear for deposition. [Her counsel] acknowledges that he received that deposition notice, was unable to contact his client, and just assumed [counsel for TRG] would call and say well, are you going to be there. Certainly there is a requirement upon [Ms. Valentine-Bowers] to respond to these requests. I find that it would be fundamentally unfair to allow this continuous disregard for the Court orders. It was a disregard for the scheduling order.

A disregard of the order that was granted as to the motion to compel. And we look at the purpose behind requiring the parties to comply -with these order[s], to reply [to] the discovery requests. And certainly, it is to discourage violations of discovery deadlines. And, in the case provided to the Court, certainly the Court took great length in addressing the fact of the fault.

How did this discovery violation occur. In this case, the fault is squarely on [Ms. Valentine-Bowers]. It was a complete disregard of the Court order. All actions or inactions were done at the direction of [Ms. Valentine-Bowers].

And nothing has been presented to the Court to persuade this Court that prejudice would not exist to [appellees] to deny their request for sanctions today. That nothing’s been presented to the Court to show good cause has been demonstrated for [Ms. Valentine-Bowers’s] failure to comply with the Court’s order. And so for all of those reasons, I grant the [appellees’] request for sanctions and the matter is dismissed. ³⁷⁷ Ms. Valentine-Bowers filed a Motion for Reconsideration on October 15, 2012, and the court denied that motion on November 29, 2012. 5 She filed a timely notice of appeal.

II

DISCUSSION Newton’s Third Law of Motion posits that “[f|or every action, there is an equal and opposite reaction.” E.D. Hirsch, Jr., et al., The Dictionary of Cultural Literacy 457 (1988). Not so here: nearly every action on the part of TRG’s counsel, Dr. Moffett’s counsel, or the court, whatever their means of communication and on an impressive number of occasions, 6 induced no reaction at all from Ms. Valentine-Bowers. Her counsel ignored letters, phone calls, notices filed with the court, and court orders, and her brief on appeal neglects to mention these facts. As counsel for TRG put it, perhaps most tellingly, the Hearing marked “the first time that our office has ever heard [Ms. Valentine-Bowers’s] counsel’s voice, and we’re three months, well, two months from the trial date in this matter.” 7 And while perhaps some of the delays might have been excusable, the circuit court, in its discretion, properly analyzed the relevant factors and ordered dismissal.

Ms. Valentine-Bowers attacks that decision on three separate grounds that we address below, but the reply to each is that ³⁷⁸ the circuit court did not abuse its discretion in deciding to dismiss the case after repeated discovery failures and an unambiguous warning from the court. Maryland Rule 2-33 (a)(3) gives trial courts broad discretion to impose sanctions for discovery violations. The available sanctions range from striking out pleadings to dismissal, id, and the decision whether to invoke the “ultimate sanction” is left to the discretion of the trial court. See Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880 (1972) (“Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that [the trial judge’s] discretion was abused.”).

There need not be “wilful or contumacious behavior” by a party to justify imposing sanctions. Warehime v. Dell, 124 Md.App. 31, 44 , 720 A.2d 1196 (1998) (quoting Beck v. Beck, 112 Md.App. 197, 210 , 684 A.2d 878 (1996)). As we explained in Sindler v. Litman, 166 Md.App. 90 , 887 A.2d 97 (2005), “[o]ur review of the trial court’s resolution of a discovery dispute is quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery.” Id. at 123 , 887 A.2d 97 (emphasis added). Differently put, in order to reverse a trial court’s decision, it must be “ ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.’ ” Wilson v. John Crane, Inc., 385 Md. 185, 198-99 , 867 A.2d 1077 (2005) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 313 , 701 A.2d 110 (1997) (internal citations omitted)).

The trial court here decided that Ms. Valentine-Bowers’s failure to comply with discovery deadlines warranted dismissal after reviewing the five factors we articulated in Hossainkhail : (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be ³⁷⁹ cured by a postponement and, if so, the overall desirability of a continuance. The factors often overlap and do not lend themselves to a compartmental analysis. 143 Md.App. at 725-26 , 795 A.2d 816 (citations omitted). The trial court noted and analyzed each factor, and pointed generally to counsel’s “complete disregard of discovery requests,” and his “failure to comply with a Court order,” because the only discovery counsel even arguably provided by the court’s deadline consisted of unexecuted Answers to Interrogatories. Although the court acknowledged that counsel may have had problems finding Ms. Valentine-Bowers to execute the interrogatories, it