Washington v. South Georgia Medical Center , 226 Ga. App. 554 ( 1997 )

Andrews, Chief Judge.

Kenneth Washington, Sr., individually, and his wife Cynthia Washington, individually and as next friend of her son, Kenneth Washington, Jr., appeal from an order of the trial court dismissing their action against South Georgia Medical Center (the hospital) on the basis that the Washingtons wilfully failed to attend their depositions.

This is the Washingtons’ second appeal from a dismissal of their claims against the hospital for failure to attend their depositions. As set forth in the previous appeal, “[t]he Washingtons brought this medical malpractice action against Dr. Roy Swindle and [the hospital] asserting that, as a result of the defendants’ negligence, Mrs. Washington and her son were injured during the child’s delivery.” Washington v. South Ga. Med. Center, 221 Ga. App. 640 (472 SE2d 328) (1996). In Washington, supra, the trial court granted separate sanction motions brought by Swindle and the hospital pursuant to OCGA § 9-11-37 (d) seeking dismissal of the Washingtons’ action because of failure to appear for their depositions. The depositions were noticed by Swindle but not by the hospital. The Washingtons appealed from the dismissal of their claims against both Swindle and the hospital. We affirmed the dismissal of the claims against Swindle on the basis that there was evidence supporting the trial court’s determination that the Washingtons received notice of the depositions from Swindle and wilfully failed to appear at the depositions. We reversed the trial court’s order granting the sanction of dismissal as to the hospital. We did so on the basis that the trial court prematurely considered the hospital’s motion for sanctions prior to the expiration of the response period on the motion, and we “remand[ed] so that the trial court may consider the response proffered by the Washingtons and determine what sanctions, if any, are merited.” Washington, supra at 642 (2). All three judges on the panel in Washington concurred in affirming the dismissal as to Swindle and in reversing the dismissal as to the hospital. Id. at 640-643.

However, in dicta in Washington, supra, two judges on the panel further stated that, upon remand, the trial court would be authorized to impose sanctions sought by the hospital against the Washingtons for failure to attend the depositions, despite the fact that Swindle, and not the hospital, was the party who noticed the depositions. The remaining judge on the panel disagreed with this statement citing Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (384 SE2d 202) (1989), and Johnson v. Martin, 137 Ga. App. 312, 314 (223 SE2d 465) (1976), as authority that the hospital could not obtain sanctions for the Washingtons’ failure to attend depositions it did not ask for.

On remand, the trial court reconsidered the hospital’s motion for sanctions pursuant to OCGA § 9-11-37 (d) along with the Washingtons’ response, concluded that the Washingtons wilfully failed to attend the depositions noticed by Swindle, granted the hospital’s motion, and dismissed all claims against the hospital. On appeal from the dismissal order, the Washingtons contend that, because the depositions were noticed to them only by the hospital’s co-defendant, Swindle, the trial court had no authority to dismiss their claims against the hospital for their failure to attend the depositions.

We agree. In Singleton, supra, one of three co-defendants served the plaintiff with interrogatories and a request for production of documents. After the plaintiff failed to timely respond to the requested discovery, the defendant seeking the discovery moved for sanctions. The trial court found the plaintiff’s failure to be wilful and dismissed the complaint as to all three defendants. On appeal by the plaintiff, we affirmed the dismissal as to the defendant seeking the discovery but reversed the dismissal as to the other two defendants. We held: “ ‘(T)here is no authority for a co-defendant to become the beneficiary of a dismissal under (OCGA § 9-11-37 (d)) merely because of a failure of the plaintiff to comply with the other co-defendant’s discovery-actions.’ Johnsonl, supra at] 314. Since the requested discovery was sought only by [one of the three defendants], we are constrained to hold that the trial court erred in ordering dismissal as to the other two defendants. . . .” Singleton, supra at 228 (2).

Although Singleton applied this rule to written discovery requests, we conclude it also applies to discovery sought by deposition upon oral examination. Accordingly, we disagree with and will not adopt the position taken in dicta by two-thirds of the panel in Washington, supra, that Singleton does not apply to deposition discovery. Admittedly, deposition discovery differs from interrogatories and other forms of written discovery in that, when a party serves the deponent with notice of a deposition, all the other parties to the action are entitled to notice of the deposition and may attend and examine or cross-examine the deponent as permitted at the trial under the rules of evidence. OCGA § 9-11-30 (b) (1), (c) (1). Thus, as noted in Washington, supra at 642, a party, like the hospital in the present case, may attend a deposition noticed by another party and incur preparation and attendance expenses when the deponent fails to appear. We conclude, however, that this concern is not a sufficient reason to exclude deposition discovery from the rule established in Singleton. A non-noticing party attending a deposition where the deponent fails to appear may seek reimbursement of reasonable preparation and attendance expenses pursuant to: (1) OCGA § 9-11-30 (g) (2) from the party who noticed the deposition, if no subpoena was served on the deponent, or (2) the inherent power of the court to control the conduct of the parties before it in the exercise of discovery. See Millholland v. Oglesby, 114 Ga. App. 745, 751 (152 SE2d 761) (1966), rev’d on other grounds, 223 Ga. 230 (154 SE2d 194) (1967); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 589 (452 SE2d 159) (1994); OCGA § 15-1-3 (4). Contrary to other concerns expressed in Washington, supra at 642, we do not consider it unreasonable in multi-party litigation to require that, before any party may seek sanctions under OCGA § 9-11-37 (d) for the failure of another party to appear at their noticed deposition, the party seeking the sanctions must have served a deposition notice on the party deponent. Serving a deposition notice provides due process notice of attending parties to a party deponent preparing for a deposition and makes clear to a party deponent who fails to attend which other parties will be entitled to seek the sanctions available under OCGA § 9-11-37 (d) for failure to attend a noticed deposition. This is consistent with our policy of avoiding the harsh application of the drastic sanctions available under OCGA § 9-11-37 (d) and of limiting such sanctions to flagrant cases involving a wilful failure to comply with discovery requests. See Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448) (1972).

We need not address appellants’ remaining enumerations.

Judgment reversed.

McMurrdy, P. J., Beasley, Johnson, Smith and Eldridge, JJ., concur. Birdsong, P. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.