Opinion
2018 CA 0224
09-21-2018
ERIC RABY v. ORKIN, LLC, ROLLINS, INC., & LYNDON GEORGETOWN
Chase Tettleton Stephen Babcock Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, Eric Raby Kevin S. Frederick Lafayette, Louisiana Attorney for Defendants/Appellees, Lyndon Georgetown and Orkin, LLC
NOT DESIGNATED FOR PUBLICATION On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 649,993 Honorable Timothy E. Kelley, Judge Presiding Chase Tettleton
Stephen Babcock
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant,
Eric Raby Kevin S. Frederick
Lafayette, Louisiana Attorney for Defendants/Appellees,
Lyndon Georgetown and Orkin, LLC BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
The plaintiff, Eric Raby, appeals a trial court judgment granting a motion for sanctions in favor of defendants, Lyndon Georgetown and Orkin, LLC. For the reasons that follow, we reverse in part and remand.
FACTS AND PROCEDURAL HISTORY
Mr. Raby filed a petition for damages on July 20, 2016, against Lyndon Georgetown and his employer, Orkin, LLC, for injuries he received as a result of a July 31, 2015, automobile accident. Mr. Raby alleged that his injuries included his back, mid-back, neck, radiculopathy, right arm, hand, carpal and cubital tunnel release, dysesthesia, and spinal cord. On March 22, 2017, the defendants filed a motion for an order compelling an independent medical examination ("IME"). According to the motion, Mr. Raby was deposed on January 11, 2017, at which time he complained of ongoing pain and functional limitations in his right hand, wrist and elbow, and his cervical spine and mid-back. The defendants scheduled an IME with Dr. Kelly Scrantz, a neurosurgeon, on April 10, 2017. According to the defendants' motion, Mr. Raby advised that he was not available on that date, and further that he would not voluntarily attend an examination by Dr. Scrantz because his two treating physicians were orthopedic surgeons. The matter was not heard by the court; rather, the parties entered into a consent order whereby Mr. Raby agreed to submit to an IME by Dr. Scrantz on May 1, 2017 at 9:00 a.m. The scope of the IME was to include the examination and evaluation of Mr. Raby's injuries and treatment of his right wrist, right elbow, and cervical spine and mid-back. The consent order was signed by the trial court on April 12, 2017.
On June 1, 2017, the defendants filed a motion for sanctions pursuant to La. C.C.P. art. 1471, alleging that Mr. Raby violated the April 12, 2017 court order by failing to submit to the IME. The matter came for hearing on July 10, 2017. In support of their motion for sanctions, the defendants introduced into evidence a series of e-mails. According to the e-mails, on May 1, 2017, at approximately 5:00 p.m., counsel for Mr. Raby advised counsel for the defendants that Mr. Raby went to the IME at the scheduled time and was not seen, so he left after an hour and forty-five minutes of waiting. The e-mail further advised that Mr. Raby attempted to reschedule the IME but was unable to do so, as the IME had been set-up and paid for by the defendants. Counsel for Mr. Raby further advised that Mr. Raby planned to proceed with previously scheduled wrist surgery the following day.
Mr. Raby testified at the hearing. According to Mr. Raby, he appeared for the IME with paperwork that had been provided by counsel for the defendants, but he was told by Dr. Scrantz's staff that additional paperwork was required. He stated that the additional paperwork requested information regarding payment for the visit and other information that he did not believe he should have to fill out. According to Mr. Raby, Dr. Scrantz's staff would not accept the forms that he had completed and would only accept the fully completed paperwork that they gave to him. Mr. Raby testified that he took off of work for the IME and intended to proceed with same but that after he addressed the issue regarding the paperwork with the staff, he was already twenty to twenty-five minutes into the time of his scheduled IME, Dr. Scrantz had other appointments scheduled after him, and the office could not work him back into the schedule. Mr. Raby stated that he waited an hour and forty-three minutes before he left, and he attempted to reschedule the IME, but the appointment could only be rescheduled by the defendants. At the time of the hearing, the IME was rescheduled for July 12, 2017.
Mr. Raby testified that he was a claims administrator, and that he was familiar with the IME process. He further stated that while he was not a practicing attorney, he had completed law school.
Mr. Raby acknowledged that after May 1, 2017, he had surgery to his left hand, and that his left wrist was altered by the surgery. He denied that he had any surgery to his right hand, wrist, or elbow since May 1, 2017.
Following the hearings the trial court granted the defendants' motion and ordered that Mr. Raby would not be allowed to support or oppose any claims for personal injuries that occurred or that he claimed to have occurred with regard to the accident. The trial court also ordered that Mr. Raby would be prohibited from introducing any evidence, including medical records, showing that such injuries occurred. The court added:
[T]he court understands that this is a drastic, drastic remedy. The history of this case however has been one where the plaintiff has not in good faith participated in these proceedings, and has caused this to be a tremendously expensive litigation, and the history of the case leads me to make this ruling. I am absolutely shocked that someone who practices in this field for an insurance company as a claims person would do what he did and fail to comply with the court's order. He of all people understands how these proceedings go forward and understands the import of complying with court orders regarding discoveries and I.M.E.'s, and it is for that reason, together with the difficulty the plaintiff has caused in allowing the case to go forward through the course of this matter, that I am imposing [La. C.C.R art.] 1471(A)2 as the sanction on it.A judgment was signed on July 25, 2017, which granted the defendants' motion for sanctions and further provided that:
Louisiana Code of Civil Procedure art. 1471 provides, in pertinent part: A. If a party ... fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, including any of the following:
1. Mr. Raby would not be allowed to support his claims for personal injuries associated with the motor vehicle accident on July 31, 2015;
2. Mr. Raby would be prohibited from introducing evidence, including medical records, to prove his claims for personal injuries associated with the motor vehicle accident on July 31, 2015;
3. Mr. Raby pay the amount of $2,244.00 for expenses and costs caused by his failure to obey the court's order to submit to the IME on May 1, 2017; and
4. All costs of court associated with the motion for sanctions be taxed to Mr. Raby.
Mr. Raby appeals, arguing that the trial court erred when it imposed drastic discovery sanctions, effectively dismissing his personal injury action, without first imposing less draconian sanctions; when it ordered that Mr. Raby was precluded from supporting his claims for personal injuries associated with the motor vehicle accident on July 31, 2015, as a discovery sanction; and when it ordered that Mr. Raby was precluded from introducing evidence, including medical records, to prove his claims for personal injuries associated with the motor vehicle accident on July 31, 2015, as a discovery sanction.
LAW AND DISCUSSION
When a party fails to obey an order to provide or permit discovery, he is susceptible to the serious sanctions listed in La. C.C.R art. 1471, which include, but are not limited to, an "order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence." La. C.C.R art. 1471(A)(2). JP Morgan Chase Bank, N.A. v. Boohaker, 2014-0594 (La. App. 1 Cir. 11/20/14), 168 So. 3d 421, 429. The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling will not be reversed absent an abuse of discretion. Lirette v. Babin Farm, Inc., 2002-1402 (La. App. 1 Cir. 4/2/03), 843 So. 2d 1141, 1143. The ultimate sanction for a recalcitrant plaintiff who fails to comply with discovery orders is dismissal of the suit. Skidmore v. Salvadras, 496 So. 2d 435, 437 (La. App. 1 Cir. 1986). However, dismissal is a draconian penalty that should be applied only in extreme circumstances. Horton v. McCary, 93-2315 (La. 4/11/94), 635 So. 2d 199, 203. A sanction of dismissal involves property rights and, therefore, should be reserved for the most culpable conduct. Id.
Before taking the drastic action of dismissal for a discovery violation, a court should consider the following four factors: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party's trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Hutchinson v. Westport Insurance Corporation, 2004-1592 (La. 11/8/04), 886 So. 2d 438, 440. The record must contain sufficient evidence of plaintiff's willful disobedience, bad faith, or fault, in order to justify dismissal. Lirette, 843 So. 2d at 1143.
In the instant case, the trial court did not specifically order the dismissal of Mr. Raby's suit. However, the effect of its ruling that Mr. Raby would not be able to support his claims for personal injuries associated with the motor vehicle accident of July 31, 2015, and would not be able to introduce evidence, including medical records, to prove his claims for personal injuries associated with the motor vehicle accident of July 31, 2015, is equivalent to a dismissal of his cause of action altogether. See Skidmore, 496 So. 2d at 438.
The record shows that Mr. Raby appeared for the IME, the scope of which was limited to the examination and evaluation of Mr. Raby's right wrist, right elbow, and cervical spine and mid-back. Mr. Raby had completed the paperwork that was forwarded to him by the defendants, and questioned the additional paperwork that was required by Dr. Scrantz's staff. By the time that the issue was satisfactorily addressed, the time of his scheduled IME had passed. Although Mr. Raby waited at Dr. Scrantz's office for an hour and forty-three minutes, the office could not work him back into the schedule. By the time of the hearing on July 10, 2017, the IME had been rescheduled for July 12, 2017. Mr. Raby acknowledged that he proceeded to have surgery on his left hand, but there is no evidence that such surgery prejudiced the defendants' ability to obtain evidence of Mr. Raby's injuries and treatment of his right wrist and elbow, or of his cervical spine and mid-back.
We find that the record does not contain sufficient evidence of Mr. Raby's willful disobedience, bad faith, or fault, or of prejudice to the defendants' trial preparation, to justify the prohibition against Mr. Raby presenting support for his claims for personal injuries associated with the motor vehicle accident of July 31, 2015, and introducing evidence, including medical records, to prove his claims for personal injuries associated with the motor vehicle accident of July 31, 2015. Therefore, that portion of the judgment will be reversed.
CONCLUSION
For the foregoing reasons, we reverse the portions of the July 25, 2017 judgment providing that the plaintiff, Eric Raby, would not be allowed to support his claims for personal injuries associated with the motor vehicle accident on July 31, 2015; and that he would be prohibited from introducing evidence, including medical records, to prove his claims for personal injuries associated with the motor vehicle accident on July 31, 2015. We remand this matter for further proceedings consistent herewith. Costs of this appeal are assessed equally to plaintiff, Eric Raby, and defendants, Lyndon Georgetown and Orkin, LLC.
JUDGMENT REVERSED IN PART; REMANDED.
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(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.