                                         No. DA 06-0058

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 46


SUSAN LINN,

              Plaintiff and Appellant,

         v.

STUART WHITAKER and
ARGUS SERVICES, INC.,

              Defendant and Respondent.



APPEAL FROM:         The District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause DV 03-263,
                     Honorable John S. Henson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Torrance L. Coburn, Tipp & Buley, Missoula, Montana

              For Respondent:

                     Patrick M. Sullivan, Poore, Roth & Robinson, P.C., Butte, Montana




                                                     Submitted on Briefs: October 25, 2006

                                                                Decided: February 21, 2007

Filed:


                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Susan Linn (Linn) appeals the decision of the Fourth Judicial District Court,

Missoula County, dismissing her complaint with prejudice as a sanction for discovery

abuses. We affirm.

¶2    We consider the following issue on appeal:

¶3    Did the District Court abuse its discretion when it dismissed Linn’s complaint with

prejudice as a sanction for discovery abuses?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4    On March 28, 2003, Linn filed an action against Stuart Whitaker (Whitaker) and

Argus Services, Inc. (collectively, “Argus”), seeking damages for personal injuries

allegedly sustained in a pedestrian accident in Missoula County. On April 20, 2001, Linn

was walking across Front Street in a crosswalk upon a green light when Whitaker drove

into her. Linn alleged injuries to her back, hip, shoulder, neck and head, and claimed

general and special damages. Linn named Whitaker’s employer, Argus Services, Inc., for

whom Whitaker was engaged at the time of the accident.

¶5    On May 29, 2003, Argus served its first set of interrogatories and requests for

production. Linn failed to answer these discovery requests within thirty days as required

by M. R. Civ. P. 33 and 34, and on October 29, 2003, Argus filed a motion to compel.

Linn filed a notice of service of discovery on her first set of responses on November 25,

2003, six months after she was served with the requests.




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¶6    In the requests, Argus sought information on Linn’s medical conditions, including

physicians with whom she had treated and information regarding her previous accidents,

including insurers. Linn’s answers were, at best, incomplete, indicating only that “[t]o

the best of [her] memory” she had been insured with Blue Shield for the past ten years,

and she had not sustained any injuries to the same area of her body as injured in the

present accident. She stated that she had been involved in previous accidents, but could

not recall the names of any insurers with whom she had dealt. Linn indicated that she

would supplement her answers, but she failed to do so before her deposition on August

16, 2004—approximately ten months after she submitted her answers. At the deposition,

Linn provided little information and vague answers about prior medical care she had

received, stating that she had previously been treated by a chiropractor, but that she was

unable to recall the chiropractor’s name.     She offered that she would drive by the

chiropractor’s office to obtain the name and provide it to defense counsel, but she failed

to do this or provide other information concerning her prior medical history.

¶7    When further information was not forthcoming from Linn, Argus obtained an

Insurance Service Office (ISO) claims search summary from its own liability insurer that

identified a number of insurance claims previously filed by Linn. The claims summary

indicated that Linn had previously been involved in accidents in which she had sustained

injuries to her neck and back on November 19, 1998, November 20, 1998, July of 2000,

and December of 2000.




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¶8     On February 9, 2005, Argus filed a second motion to compel, requesting that the

court order production of information and documents relating to Linn’s prior medical and

claims history and attaching the ISO claims summary obtained from Argus’s insurer.

Argus also requested sanctions. In response, Linn offered that she could not remember

her prior injuries and treatment, and attached a report of a neuropsychological evaluation

performed in 2002 which indicated that Linn had certain memory deficits. However,

Linn also referenced the ISO claims summary Argus had provided and indicated that

“[n]ow that Plaintiff has the information which [was] kept by the Defendant’s insurance

company Plaintiff will endeavor to obtain the information requested by Defendant.”

¶9     On May 2, 2005, the District Court issued an order which recognized Linn’s

difficulties in recalling specific information and acknowledged that this impairment could

make discovery a more laborious process. Although noting that “[i]t does not appear that

Plaintiff is willfully disrupting the discovery process,” the District Court nonetheless

concluded that a “deadline must be established for Plaintiff to respond to long-standing

discovery requests.” Noting that “Defendants have made Plaintiff’s task easier by virtue

of the claim search it initiated,” the court established a June 30, 2005, deadline for Linn

to answer outstanding discovery.

¶10    In spite of the court’s order, Linn produced no more information or documents.

On August 12, 2005, forty-three days after the expiration of the court’s deadline for

producing the requested information, Argus filed a motion to dismiss pursuant to

M. R. Civ. P. 37 on the grounds that Linn had failed to comply with the court’s order, the

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resulting delay had prejudiced the Defendants, and that dismissal of Linn’s complaint

was an appropriate sanction. In response, Linn contended that she had done everything

within her powers to answer the discovery request issued by Argus, including contacting

her former insurance companies to obtain requested information.

¶11    In its order of October 4, 2005, the court noted that Linn had not provided any

documentation from her insurance companies demonstrating her attempts to obtain

information, and that she did not demonstrate any effort had been made to contact her

prior attorney or chiropractor in order to substantiate or compliment the claim

information previously provided by Argus. As a result, the court gave Linn until October

14, 2005, to supplement the record with evidence of her attempts to comply with the

court’s previous order. The order further stated that “[i]f the information is not provided,

or indicates less than a good faith effort to comply with the Order, this matter will be

dismissed with prejudice.” Linn did not supplement the record as directed by the court or

otherwise respond to the court’s order.

¶12    On November 1, 2005, the court ordered Linn’s complaint dismissed with

prejudice, on the grounds that Linn had failed to comply with the court’s previous orders

concerning discovery requested by Argus. Linn appeals.

                               STANDARD OF REVIEW

¶13    “We review a trial court’s imposition of sanctions for abuse of discretion.”

Vermeer of Washington, Inc. v. Jones, 2004 MT 77, ¶ 7, 320 Mont. 435, ¶ 7, 87 P.3d 516,

¶ 7 (citations omitted). “We consider whether ‘the trial court in the exercise of its

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discretion act[ed] arbitrarily without the employment of conscientious judgment or

exceed[ed] the bounds of reason, in view of all the circumstances, ignoring recognized

principles resulting in substantial injustice.’” Culbertson Health Care Corp. v. Stevens,

2005 MT 254, ¶ 10, 329 Mont. 38, ¶ 10, 122 P.3d 431, ¶ 10 (quoting Schuff v. A.T.

Klemens & Son, 2000 MT 357, ¶ 27, 303 Mont. 274, ¶ 27, 16 P.3d 1002, ¶ 27) (citation

omitted). “‘[T]he trial judge is in the best position to know . . . which parties callously

disregard the rights of their opponents and other litigants seeking their day in court. The

trial judge is also in the best position to determine which sanction is the most

appropriate.’” Xu v. McLaughlin Research Institute, 2005 MT 209, ¶ 17, 328 Mont. 232,

¶ 17, 119 P.3d 100, ¶ 17 (quoting Smart v. Molinario, 2004 MT 21, ¶ 8, 319 Mont. 335,

¶ 8, 83 P.3d 1284, ¶ 8) (citations omitted).

                                      DISCUSSION

¶14 Did the District Court abuse its discretion when it dismissed Linn’s complaint
with prejudice as a sanction for discovery abuses?

¶15    “‘The purpose of discovery is to promote the ascertainment of truth and the

ultimate disposition of the lawsuit in accordance therewith.       Discovery fulfills this

purpose by assuring the mutual knowledge of all relevant facts gathered by both parties

which are essential to proper litigation.’” Richardson v. State, 2006 MT 43, ¶ 22, 331

Mont. 231, ¶ 22, 130 P.3d 634, ¶ 22 (quoting Massaro v. Dunham, 184 Mont. 400, 405,

603 P.2d 249, 252 (1979)) (citation omitted). A refusal to provide discovery essentially

prevents the case from progressing and is the precise reason for the availability of court


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imposed sanctions pursuant to M. R. Civ. P. 37. McKenzie v. Scheeler, 285 Mont. 500,

516, 949 P.2d 1168, 1177 (1997).

¶16    Linn initially contends that she committed no discovery abuse, insisting that she

responded appropriately and as completely as possible to Argus’s discovery requests.

However, we conclude that the District Court correctly determined that Linn’s responses

to Argus’s discovery requests were exceedingly untimely and incomplete.                Despite

repeated assurances to Argus that the requested information would be forthcoming, Linn

failed to provide information regarding prior injuries, treatment, and contacts with

insurance companies. We thus turn to the propriety of the District Court’s dismissal of

the action as a sanction for these abuses.

¶17    M. R. Civ. P. 37(b)(2) provides for sanctions for a party’s failure to comply with a

court order compelling discovery:

       If a party . . . fails to obey an order to provide or permit discovery, . . . the
       court in which the action is pending may make such orders in regard to the
       failure as are just and among others the following:

             ....

       (C) An order . . . dismissing the action . . . .

¶18    Linn argues that if sanctions were warranted in this case, a sanction lesser than

dismissal with prejudice would have been appropriate, because she responded to Argus’s

discovery requests as completely as possible and to the best of her abilities. She notes

that because the District Court recognized her mental limitations and concluded she was



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not willfully disrupting the discovery process, her discovery failures were a less

egregious offense.

¶19    Argus responds by noting our statement that this Court has “adopted [a] policy of

intolerance regarding discovery abuse pursuant to our ‘concern over crowded dockets and

the need to maintain fair and efficient judicial administration of pending cases.’”

Richardson, ¶ 57 (quoting Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 87, 293 Mont.

97, ¶ 87, 973 P.2d 818, ¶ 87). As such, Argus notes that Linn failed to disclose her

medical history even though that information was specifically requested, failed to identify

the medical providers from whom she received treatment for her prior injuries, and even

after Argus provided her a claims summary, failed to produce information pertaining to

her claims history. Argus notes that, despite her claimed memory loss, Linn was able to

recall and communicate effectively about various subjects during her deposition. She

disregarded court orders, including the opportunity given her by the District Court in its

order of October 4, 2005, to avoid dismissal by simply providing evidence of her attempt

to comply with the court’s directives. Thus, Argus insists that the District Court properly

employed its broad discretion to manage discovery when the court dismissed Linn’s

complaint.

¶20    When reviewing discovery sanctions imposed pursuant to M. R. Civ. P. 37(b), we

apply a three-part test:

       We consider whether the consequence inflicted via the sanction: (1) relates
       to the extent and nature of the actual discovery abuse; (2) relates to the
       extent of the prejudice to the opposing party which resulted from the
       discovery abuse; and (3) is consistent with the consequences expressly
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       warned of by the District Court, if a warning was actually issued. Smith v.
       Butte-Silver Bow County (1996), 276 Mont. 329, 339-40, 916 P.2d 91, 97.

Culbertson, ¶ 14.     We also consider a party’s disregard of the court’s orders and

authority. McKenzie, 285 Mont. at 516, 949 P.2d at 1178. We note that Linn has

conceded that the District Court warned her that her complaint was subject to dismissal

with prejudice if she failed to comply with its order. Therefore, analysis of the third

factor is not necessary.

¶21    Addressing the first factor, Linn notes our statement in Hobble-Diamond Cattle

Co. v. Triangle Irr. Co., 272 Mont. 37, 42, 899 P.2d 531, 535 (1995), that “dismissals

should be imposed sparingly and must remain the exception rather than the rule” and

relies heavily on our decision in Smith v. Butte-Silver Bow County, 276 Mont. 329, 916

P.2d 91 (1996).

¶22    In Smith, we reversed a district court’s dismissal of an action because it was too

severe a sanction for the offending party’s noncompliance with the rules and did not

adequately relate to the extent and nature of the actual discovery abuse. Smith, 276 Mont.

at 340, 916 P.2d at 97. We later described the plaintiff’s failure to comply with the

discovery in Smith as “totally insupportable[,]” yet “relatively limited” which “did not

amount to total concealment.” Culbertson, ¶ 16. Our decision in Smith relied on the fact

that the offending party provided enough information about his proposed expert

testimony that the prejudice he caused to the opposing party was relatively limited, and

we noted that the district court had stated in a previous order that noncompliance would

reopen the party’s expert witness depositions, not lead to dismissal.
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¶23    In contrast, we affirmed in Culbertson the trial court’s entry of default judgment

on liability against the defendant as a sanction for discovery abuse. Culbertson, ¶ 21.

We noted that the defendant’s unresponsiveness during discovery prevented the plaintiff

from assessing the merits of the proffered defenses and building its case-in-chief, thereby

forcing the plaintiff to incur mounting litigation costs while proceeding under a “cloud of

uncertainty.” Culbertson, ¶ 18. Likewise, in Schuff, we affirmed the court’s entry of a

default judgment on liability against the defendant as a sanction for discovery abuses,

reasoning that the defendant’s inadequate responses prohibited the plaintiff from

conducting meaningful follow-up discovery. Schuff, ¶ 78.

¶24    Similar to the defendants in Schuff and Culbertson, Linn has continuously failed to

fully respond to Argus’s discovery requests and has ignored the court orders which gave

her opportunities to do so. The District Court compensated for Linn’s asserted memory

loss, giving her additional time and noting the assistance provided by the ISO claim

search from Argus’s insurer. Despite this, Linn still failed to produce the requested

information, or to document her efforts to request the information. By the time the

District Court dismissed Linn’s complaint, two years and five months had elapsed since

Argus had requested the information. Linn’s discovery failures cannot be regarded as

insignificant, and the District Court’s sanction properly related to the extent and nature of

her actions.

¶25    Secondly, the District Court’s dismissal of Linn’s complaint must relate to the

extent of the prejudice suffered by Argus, an issue addressed in part by the above

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discussion.   Linn asserts that Argus demonstrated that it had some access to the

information it was seeking and therefore suffered only minimal prejudice. She argues

that requiring her to reimburse Argus for expenses incurred in obtaining the requested

information would have been a more appropriate sanction.

¶26    In Schuff, we affirmed the district court’s imposition of a default judgment against

the defendant on the issue of liability, as a sanction for discovery abuses, because the

defendant’s inadequate discovery responses prohibited the plaintiff from conducting

meaningful follow-up discovery. Schuff, ¶¶ 78, 82. Similarly, Linn’s unresponsiveness

prevented Argus from conducting meaningful discovery. Linn acknowledged during her

deposition that she received pre-accident chiropractic treatment for her neck and back,

but she never produced those medical records or the name of the chiropractor who treated

her. Although Argus was aware from its claim search that Linn had previously claimed

injuries, it needed to determine the extent of those injuries and whether the subject

accident had aggravated an old injury or caused a new one. Without such information

and medical evidence, Argus was prevented from assessing the validity of Linn’s claim

and developing a defense, thereby requiring it to proceed under a “cloud of uncertainty.”

Culbertson, ¶ 18. As we have noted, “the failure to comply with discovery procedures, in

itself, is prejudicial to the other party.” Xu, 328 Mont. at 238, 119 P.3d at 104-05 (citing

McKenzie, 285 Mont. at 516, 949 P.2d at 1177).           Moreover, “nothing in Rule 26,

M.R.Civ.P., permits a party to decline to comply with the Rule and a court order

requiring compliance therewith on the basis of that party’s belief or opinion that the

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opposing party already possesses the required information.” Smith, 276 Mont. at 335,

916 P.2d at 94. Accordingly, we determine that the dismissal of Linn’s complaint

sufficiently related to the extent of the prejudice suffered by Argus.

¶27    Lastly, we consider whether a party has disregarded the court’s orders and

authority. McKenzie, 285 Mont. at 516-17, 949 P.2d at 1178. Here, the District Court

was patient in the face of Linn’s noncompliance and understanding of her purported

difficulties. Yet, provided with ample opportunities to comply, Linn still failed to do so.

¶28    We conclude that the District Court did not abuse its discretion in dismissing

Linn’s complaint with prejudice.

¶29    Affirmed.



                                                  /S/ JIM RICE

We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER




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