Valentine-Bowers v. Retina Grp. of Wash., P.C.

217 Md.App. 366

92 A.3d 634

Leslie VALENTINE–BOWERS

v.The RETINA GROUP OF WASHINGTON, P.C., et al.

No. 2117, Sept. Term, 2012.

Court of Special Appeals of Maryland.

May 29, 2014.

Garett V. Williams, Washington, D.C., for Appellant.

Ronald G. Guziak (Keith M. Bonner, Andrew Butz, Bonner, Kiernan, Trebach & Crociata, LLP, on the brief), Washington, D.C., for Appellee.

Panel: BERGER, NAZARIAN and JOHN C. ELDRIDGE ^* (Retired, Specially Assigned), JJ.

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).

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 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 notationson 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.

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 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] 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]. [Plaintiff's counsel] in his representations to the Court says well, w...