Malpractice claim dismissed after Plaintiff's standard of care expert is stricken
Jennifer Gagern sued Dr. Ian McLaren and Providence Hospital for malpractice. The Defendants' attorneys immediately hounded her attorneys for a date to depose her expert witness. She did not immediately comply and the defense attorneys went to court in three consecutive months seeking sanctions and an order to compel. The deposition was set, however, Gagern's attorneys apparently bungled a partial payment to the expert, who then failed to appear for his scheduled deposition. The defense then asked the Court to strike the expert and to summarily dispose of the malpractice case--which now had no supporting expert witness.
The trial judge granted summary disposition and Gagern appealed. She argued that she had made legitimate and reasonable efforts to comply with discovery demands, and that the expert's sudden non-compliance should not prejudice her claim. The Court rejected Gagern's arguments, and in stark contrast to a recent decision involving the Auto Club, the judges held that she was accountable for the expert's failure to appear. The judges ruled that Gagern's history of failing to immediately provide the expert's deposition on demand, coupled with his failure to appear at the delayed deposition, demonstrated "willful" non-compliance. Therefore, he was properly stricken as a witness and the case was properly dismissed. In a contemporaneous case, the Court of Appeals overturned a verdict for the injury claimaint against the Auto Club because the trial judge had refused to allow the non-compliant Auto Club expert to testify, after the expert doctor refused to comply with a valid subpoena.