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February 19, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Timothy C. Murphy, Motions Judge); (Hon. Ronald P. Wertheim, Motions Judge)

Before Ferren and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: The principal issue presented on this appeal is whether the trial court erred in dismissing with prejudice appellant's complaint under the Wrongful Death *fn1 and Survival Statutes, *fn2 based on a claim of medical malpractice because appellant failed to designate a medical expert. Preliminarily, appellee argues that this court lacks jurisdiction of this appeal because appellant did not file timely her notice of appeal. As to the latter issue, we hold that appellant's notice of appeal was timely filed because the time to note an appeal in this case was tolled by the filing of a motion to vacate dismissal which was properly one for reconsideration under Super. Ct. Civ. R. 59. We reverse the order dismissing the complaint as improper under Super. Ct. Civ. R. 12 (b)(6) and as an abuse of discretion under Rule 37 (b).


This case commenced on December 5, 1986, when appellant filed a pro se complaint against appellee, Ronald L. Anderson, M.D., an ophthalmologist, who had rendered care to appellant's minor son, Brian Vincent. After retaining counsel, appellant filed an amended complaint on April 22, 1987 under the Wrongful Death and Survival Statutes asserting claims based on negligence, breach of contract, and assault and battery theories. Underlying all of appellant's allegations is the alleged failure of appellee to diagnose, treat, or refer for treatment appellant's son. *fn3 Appellant alleged that appellee's acts and omissions caused the decedent's loss of sight and subsequent death. Specifically, according to appellant's pretrial statement, appellee's liability is premised on medical malpractice, i.e., "negligence in failure to treat and diagnose or refer for treatment and breach of contract."

Appellee filed and served an interrogatory on appellant on September 29, 1987, requesting that appellant identify any witness she intended to call as an expert at trial and to state for each the subject matter, facts, and opinion about which the witness was expected to testify, and a summary of the grounds for each opinion. On November 10, 1987, appellant responded that she had not yet determined who her expert would be, but that she would supplement the answer to the interrogatory. Subsequently, appellee made informal efforts to obtain a response to the interrogatory without success. Therefore, he filed a motion to compel discovery on October 27, 1988. In that motion, appellee sought not only a response to the single interrogatory served on September 29th, but also more complete responses to additional discovery requests which appellee had propounded on March 20, 1988. In the motion appellee contended that appellant's failure to designate an expert witness hindered appellee's trial preparation and that trial was only three months away. By order dated January 25, 1989, the court (per Judge George Mitchell) ordered appellant to provide the additional responses to the discovery.

A pretrial hearing was held on January 12, 1989. In an amended pretrial statement, appellant listed as witnesses the following persons: Gabe Mirkin, M.D., James A. Mutcherson, Jr., M.D., Robert D. Cawley, M.D., David Friendly, M.D., and an "unknown expert witness - ophthalmologist." The court entered a pretrial order requiring appellant to name her experts, if any, no later than March 15, 1989 and rescheduling the trial date to June 19, 1989. The order also provided a schedule for appellee to depose any experts named, to name his own experts, and for appellant to depose appellee's experts. *fn4 When appellant failed to name an expert witness by the deadline, appellee filed a motion on March 29, 1989 to dismiss the complaint. *fn5 The motions Judge (Judge Murphy) granted the motion on May 16, 1989 without opinion. That same date the court also denied appellant's motion for enlargement of time to obtain an expert witness. The court's orders were not docketed until May 26, 1989.

On June 8, 1989, appellant filed a "Motion to Vacate Judgment of Dismissal Pursuant to SCR 59 and R. 60 (b)." The court (Judge Wertheim) entered an order denying the motion on August 14, 1989, which was docketed on August 15, 1989. Appellant noted an appeal from that order on September 14, 1989. *fn6


Appellee argues that this court lacks jurisdiction to entertain the appeal because the notice of appeal was not timely filed. Under D.C. App. R. 4 (a)(1), an appeal in a civil case must be filed within thirty days after the entry of the judgment or order from which the appeal is taken. The order dismissing appellant's complaint was docketed on May 26, 1989. Appellant did not note an appeal until September 14, 1989, which she specified as a notice of appeal from the order denying the motion to vacate the dismissal. Appellee contends that the motion to vacate can only be a Rule 60 (b) motion, which does not toll the time for noting an appeal. Thus, he argues, the merits of the trial court's dismissal of the complaint are not properly before this court.

The scope of our review depends upon the nature of appellant's motion to vacate. To resolve the jurisdictional question, we must determine first whether appellant's motion was one filed pursuant to Super. Ct. Civ. R. 59 (e) *fn7 or 60 (b). *fn8 A timely motion filed pursuant to Super. Ct. Civ. R. 59 (e) tolls the time for noting an appeal until the motion is acted upon. Wallace v. Warehouse Employees Union No. 730, 730, 482 A.2d 801, 803 n.5 (D.C. 1984); Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 47 (D.C. 1978); De Levay v. Marvins Credit Inc., 127 A.2d 554 (D.C. 1956). Appellee argues correctly that a Rule 60 (b) motion does not. Smith v. Canada, 305 A.2d 521, 522 (D.C. 1973). Although a motion in the nature of a motion for reconsideration filed pursuant to Rule 59 (e) is not an appealable order, appeals purporting to be from such orders allow us to view the appeals as being taken from the final order for which reconsideration was sought. Coleman, 388 A.2d at 46. The record reflects that appellant's motion was filed timely within ten days of the docketing of the court's dismissal order. Therefore, if indeed the motion was one cognizable under Super. Ct. Civ. R. 59 (e), this court may consider appellant's challenge to the underlying order dismissing her claims.

Appellant designated her motion as one proceeding under both Super. Ct. Civ. R. 59 (e) and 60 (b). However, the nature of a motion is not determined by its caption, but rather by the nature of the relief sought. Friend v. Friend, 609 A.2d 1137, 1138 (D.C. 1992); Wallace, supra, 482 A.2d 801 at 804; Coleman, supra, 388 A.2d 44 at 46. In her motion, appellant sought to have the court vacate the order of dismissal for the following reasons: (1) she had found an expert witness; (2) as previously indicated, she intended to present other treating physicians who had the requisite expertise to prove her case, and she planned to rely on the testimony of appellee, a medical expert; (3) she had at all times been diligent; (4) the sanction of dismissal is extreme; (5) appellee could show no prejudice; (6) an expert witness was not needed to prove every count of the complaint. Appellee had supported his motion to dismiss with references to Rules 12 (b)(6), 26, 37, the pretrial order and the record. Appellant's request to vacate the order was premised, in part, on a claim that the trial court failed to adhere to the applicable legal standards required in imposing sanctions for violation of these rules of discovery.

The trial court is empowered to impose sanctions for violation of discovery orders. In the exercise of its discretion in doing so, it must act in accordance with established standards, which include that dismissal should be granted under only the most severe circumstances and that the sanction should fit the offense. Nolan v. Nolan, 568 A.2d 479, 487 (D.C. 1990); Vernell v. Gould, 495 A.2d 306, 311 (D.C. 1985). In determining what constitutes severe circumstances the court must consider whether noncompliance was willful or prejudicial to the other side. Nolan, 568 A.2d at 487; Vernell, 495 A.2d at 311. Appellant argued in the motion to vacate that the sanction of dismissal was extreme, that the transgression did not prejudice appellee and that her conduct was not willful. Appellant also contended that the dismissal was improper where she had other competent evidence to support her complaint.

We are persuaded that appellant's motion could be considered properly under either rule. On the one hand, appellant sought relief from what she contended to be an improper application of the law. Appellant claimed that the trial court erred as a matter of law in granting dismissal for failure to designate an expert witness where one was not legally required. She also argued that the legal requirements for dismissal for violation of discovery orders were not met. Where, as here, movant seeks relief from alleged legal errors ...

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