                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-1-2002

Ciaverelli v. Stryker Med
Precedential or Non-Precedential:

Docket 0-2873




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Ciaverelli v. Stryker Med" (2002). 2002 Decisions. Paper 141.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/141


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                              IN THE UNITED STATES COURT OF APPEALS
                                      FOR THE THIRD CIRCUIT

                                             - - -

               THERESA CIAVERELLI,             :       NO. 00-2873
                           Appellant           :
                                               :
                        v.                     :       Philadelphia,
Pennsylvania
                                               :       February 4, 2002
               STRYKER MEDICAL, a division     :       Civ. No.99-cv-04745
               of STRYKER CORPORATION,         :
               CONSTA CARE, JOHN DOE BED           :
               MANUFACTURER, JOHN DOE BED      :
               DISTRIBUTOR                     :
               . . . . . . . . . . . . . . .   .

                                          BENCH OPINION
                              BEFORE: HONORABLE EDWARD R. BECKER, CHIEF
JUDGE
                                  UNITED STATES COURT OF APPEALS
                                   HONORABLE THEODORE A. McKEE
                              UNITED STATES COURT OF APPEALS JUDGE
                               THE HONORABLE MARYANNE TRUMP BARRY
                              UNITED STATES COURT OF APPEALS JUDGE

                                             - - -

               APPEARANCES:

                        DEBBIE A. CARLITZ, ESQUIRE (ARGUED)
                        Carlitz & Eisenberg
                        826 Bustleton Pike, Suite 104
                        Feasterville, PA 19053
                        -- Counsel for Appellant

                        JOSEPH M. PROFY, ESQUIRE (ARGUED)
                    ROBERT A. NICHOLAS, ESQUIRE
                        Reed Smith Shaw & McClay
                        2500 One Liberty Place
                        1650 Market Street
                        Philadelphia, PA 19103
                        -- Counsel for Appellee
                                           - - -

               Transcribed by:    Geraldine C. Laws, CET

               (Proceedings recorded by electronic sound recording;
               transcript provided by AAERT-certified transcriber.)
2

             1             (The following occurred in open court:)

             2             THE HONORABLE JUDGE BECKER:   The panel has
conferred

             3    and concluded that we are in as good a position to decide

             4    this case now as we will ever be.   There is nothing here

             5    which requires a precedential opinion; the case simply

             6    involves the application of the facts of record to
settled

             7    principles, so there would be no point to our writing an

             8    opinion for publication.   Accordingly I will now deliver
the

             9    opinion and judgment of the Court from the bench.    And
under

             10   our practice this will be sent to a reporter and it will
be

             11   transcribed and ultimately filed of record in written
form.

             12            This is an appeal from an order of the District

             13   Court dated August 29th, 2000 which states only that
"Upon

             14   consideration of defendant's motion to dismiss for
failure to

             15   comply with court orders compelling discovery, and
following

             16   telephone conference call in this matter on July 18th,
2000,

             17   and the expiration of a 30-day extention of time given to

             18   plaintiff at that time, it is hereby ordered that the

             19   defendant's motion to dismiss is granted and plaintiff's
          20   Complaint is dismissed in its entirety with prejudice.
See

          21   Federal Rule of Civil Procedure 37(b)(2)(C)."

          22            It is the considered judgment of the panel that
this

          23   articulation does not satisfy the rigorous standards

          24   established by this Court for sanctions dismissals.    We
have

          25   made it clear that dismissal with prejudice is an extreme




3

          1    sanction for only the most egregious cases.   See, e.g.,

          2    Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
866

          3    (3rd Cir. 1984).   We have said that "dismissal is a
drastic

          4    sanction and should be reserved for those cases where
there

          5    is a clear record of delay or contumacious conduct by the

          6    plaintiff.   Donnelly v. Johns-Manville Sales Corp., 677
F.2d

          7    339, 342 (3rd Cir. 1982)."

          8             Now, we understand that we review the order of
the

          9    District Court for abuse of discretion which means that
our

          10   review is deferential.   But in deciding whether or not a

          11   District Court has abused its discretion, we are guided
by
            12   the manner in which the Court balanced the Poulis factor,
and

            13   whether the record supports its finding.     Poulis laid out
six

            14   factors to be considered by District Court in determining

            15   whether to dismiss pursuant to Rule 37.     I need not
burden

            16   the record by listing the six factors, because all of us
are

            17   familiar with them.

            18            The problem with the order of the District Court
in

            19   this case is that there has been no articulation by the

            20   District Court of the Poulis factors.     And in similar

            21   situations where there has been no articulation, we have

            22   required a remand to the District Court.     See, e.g.,
Titus v.

            23   Mercedes Benz of North America, an opinion that I
authored,

            24   695 F.2d 746, 749 and 50 (3rd Cir. 1982).

            25            Judge Joyner is a very able member of the
District




4

            1    Bench, a man whom we all admire and respect.     But just as
it

            2    was said of the great Homer, that Homer nods, in this
case
            3     Judge Joyner nodded and acted a little precipitously.     I
note

            4     that the panel is not certain that he had all the facts

            5     before him in terms of what plaintiff's counsel had done.

            6     And indeed we have serious doubt that a clear balancing
of

            7     the Poulis factors would have justified a dismissal,

            8     especially in light of the concession that counsel for

            9     appellee was constrained to make at oral argument this

           10     morning that there really is no information other than
the

           11     matter of the correct serial number of the bed, to which
I

           12     will turn in a moment, that the defendant does not now
have.

           13              Now, we will surely not pin any medals on

           14     plaintiff's counsel for celerity or diligence in getting
the

           15     material to the defense.   She acted here more like the

           16     tortoise than the hare, but ultimately she did get them
what

           17     they needed.

           18              With respect to the serial number of the bed, it

            19    appears from our colloquy this morning that
notwithstanding

           20     the defense remonstration that it has been five years and

           21     that she had all of this time, plaintiff's counsel

           22     represented that they fairly believed to have the correct

           23     serial number and were pursuing the location of the bed
with

           24     the officials at St. Mary's Hospital, that they had made
               25   requests for information, but were stonewalled and did
not




5

               1    have an opportunity to pursue it by discovery because the

               2    sanctions dismissal intervened.

               3             We have some doubts under the circumstances as
to

               4    whether the history of dilitoriness would justify
sanctions.

               5    There does not appear to us to be willfulness and bad
faith

             6      on the part of the plaintiff's counsel or real
responsibility

               7    on the plaintiff.   While we're not sure the Complaint is

               8    meritorious because we don't know what will happen with
the

               9    bed, we certainly cannot resolve this issue at this
point.

               10            At all events, if plaintiff fails to locate the
bed

               11   after discovery, this will be an appropriate matter for
the

               12   Court to take up on summary judgment.

               13            Accordingly, we conclude that our cases
constrain us

               14   to conclude that the District Court abused its discretion
in

               15   ordering the case dismissed as a sanction.   It made no
            16   findings, it did not do the balancing, and it indeed did
not

            17   conclude that lesser sanctions would better serve the

            18   interests of justice which is another of our
requirements.

            19   Whether or not lesser sanctions are in order in this case
is

            20   a matter that we leave to the District Court on remand.

            21   Appellee's counsel has pointed out that some of the cases

            22   that plaintiff has cited and that I have adverted to in
this

            23   bench opinion were cases where the dismissal was sua
sponte,

            24   but those opinions nonetheless clearly set forth Circuit
law

            25   and have been adopted in cases where the dismissal was
not




6

            1    sua sponte.

            2             Accordingly, the order of the District Court
will be

            3    reversed and the case remanded to the District Court for

            4    further proceedings.   Costs will be taxed against the

            5    appellee.   This constitutes the opinion and judgment of
the

            6    Court, but the formal opinion and judgment will follow.

            7             Judge McKee, do you have anything to add or do
you
        8    concur in the opinion as delivered?

        9             HONORABLE JUDGE McKEE:    I concur; nothing to
add.

        10            HONORABLE JUDGE BECKER:   Judge Barry?

        11            HONORABLE JUDGE BARRY:    I concur; nothing to
add.

        12            HONORABLE JUDGE BECKER:   Very well.

        13            Thank you, and the crier will notify whoever is
in

        14   charge of processing bench opinions.   Thank you very
much.

        15            (Conclusion of bench opinion)
                    _________________________

TO THE CLERK:

     Please file the foregoing Opinion.

                             BY THE COURT:



                                  /s/ Edward R. Becker
                             Chief Judge
