Toney v. Berkemer ( 1983 )

J. P. Celebrezze, J.

The issue presented here is whether the trial court abused its discretion in granting the default judgment in favor of appellees.

Civ. R. 37(A) and (B) provide broad discretion to the trial court to impose sanctions for failure to comply with the trial court’s discovery orders. However, the United States Supreme Court has held that the harsh remedies of dismissal and default should only be used when the “* * * failure to comply has been due to * * * willfulness, bad faith, or any fault of petitioner.” Societe Internationale v. Rogers (1958), 357 U.S. 197, 212. A trial court’s imposition of the sanction of dismissal cannot be disturbed unless the dismissal was an abuse of the trial court’s discretion. See Ward v. Hester (1973), 36 Ohio St. 2d 38 [65 O.O.2d 181].

Our examination of appellant’s answers to the interrogatories and appellant’s response to the document request reveals the following. This is basically an assault and battery action. Hence, the information sought by the interrogatories and document request, pertaining to the alleged injuries, alleged aggravation of prior injuries and alleged loss of wages, which information is relevant for the purpose of satisfying the discovery rules and is also of considerable weight in determining whether a default judgment sanction is appropriate here. However, the information sought by the other interrogatories and document request, although relevant for the purpose of satisfying the discovery rules, is not so sufficiently relevant to the conduct of the instant case that the appellant must respond or face the drastic sanction of default judgment. Dunbar v. United States (C.A. 5, 1974), 502 F. 2d 506. Hence, with regard to the aforementioned essential information (alleged injuries, etc.) requested by appellees, we are of the opinion that appellant has complied with the trial court’s discovery order to the extent necessary so as not to prejudice appellees’ case for trial. Edgar v. Slaughter (C.A. 8, 1977), 548 F. 2d 770, 772-773.

In addition, appellant, through his counsel, gave valid health reasons for the brief delay in responding to appellees’ interrogatories and document request; gave a valid reason for the brief delay in submitting his verification to the answers to the interrogatories; and gave a valid reason for the brief delay in submitting Dr. Halas’ six-page medical report covering the injuries which form the basis of the lawsuit. Appellant offered to provide appellees with his authorization so that they could obtain his medical records. Moreover, appellant demonstrated his willingness to aid the trial court by informing the court that he would provide additional information if requested.

Based upon the foregoing, we find that the trial court abused its discretion in granting the default judgment in favor of appellees. The record, reveals mitigating factors for appellant’s brief delay in answering the interrogatories and responding to the document request. The record does not show that appellant willfully or in bad faith failed to answer the essential interrogatories (alleged injuries, etc.) or respond to the essential request for the production of documents. If the appellant failed to submit damage documentation (medical bills and lost wages), then the appropriate sanction here is the preclusion of evidence on these subjects rather than the harsh remedy of default judgment.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. Holmes, J., concurs in judgment only. W. Brown and Locher, JJ., dissent.