Beach v. State Farm Mutual Automobile Insurance , 216 Mich. App. 612 ( 1996 )

Michael J. Kelly, J.

(concurring in part and dissenting in part). I concur in part and dissent in part. I join in the majority opinion in parts i, in, iv, v, VI, vn, and vm, but dissent with respect to part n, with regard to which I would affirm the decision of the trial court.

In finding an abuse of discretion for failure to sanction plaintiffs counsel, the majority cites a delay of little more than two weeks’ time between receipt by plaintiff’s counsel of Dr. Shiener’s report, November 18, 1993, and the furnishing of that report to defense counsel on December 2, 1993. In the course of preparing for trial, such a delay is not unreasonable and does not evidence bad faith that warrants sanctions. Despite the report’s receipt in proximity to the trial, defendant had ample time to review the information and proceed as scheduled.

The majority cites MCR 2.302(E)(l)(a)(ii) as supporting its finding that Dr. Shiener’s testimony should have been excluded under the sanctions of MCR 2.313(B). However, under MCR 2.302(E)(1)(a), a party has a “duty seasonably to supplement” responses; otherwise, under MCR 2.302(E)(2), upon finding a failure to do so, the court “may enter an order as is just,” including the sanctions of MCR 2.313(B) that may exclude the testimony. (Emphasis added.) Although the court “shall” impose reasonable expenses, including attorney fees, upon the noncomplying party, the mandatory imposition of expenses is struck upon the trial court’s finding that such a failure to seasonably supplement is “substantially justified or other circumstances make an award of expenses unjust.” MCR 2.313(B)(2). (Emphasis added.) .

Both cases cited by the majority involved the imposition of sanctions following a long history of egregious discovery violations not found in the case at bar. The first featured a plaintiff who, months after the expiration of the local court rule deadline, had not filed a witness list and additionally failed to answer interrogatories about any witness for more than one year. LaCourse v Gupta, 181 Mich App 293; 448 NW2d 827 (1989). Unlike the court’s finding in LaCourse that the defendant was unable to conduct a defense because of the plaintiff’s “extreme and extraordinary neglect,” in this case, because plaintiff did supplement his answers in advance of trial (only two weeks after receiving this information himself), no court rules were defied, nor were orders to compel issued before supplementation was received; moreover, any such delay would not have posed any unusual hardship upon defendant in preparing for trial. Id. at 295.

The second case relied upon by the majority dealt with dismissal of an action because of the plaintiff’s violation of a direct order of the court involving discovery matters. Barlow v John Crane-Houdaille Inc, 191 Mich App 244; 477 NW2d 133 (1991). The trial court there noted how the defendant was significantly prejudiced by the late receipt of materials necessary for mediation hearings and summary disposition motion deadlines. Id. at 252. Clearly, no court orders were violated here, and the majority’s skepticism of plaintiff’s motives for this short delay is merely speculative.

I find no abuse of discretion and hence would affirm. The trial court is in the best position to evaluate the modest delay regarding disclosure of the proposed testimony of Dr. Shiener, and, since that court has already done so, there is no need for any remand.