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August 13, 1998



Before Schwelb and Reid, Associate Judges, and Greene, Associate Judge of the Superior Court of the District of [715 A2d Page 912] Columbia.[fn*] [fn*] Sitting by designation pursuant to D.C.Code § 11-707(a) (1995).

The opinion of the court was delivered by: Schwelb, Associate Judge:

This action was brought by the mother of Tariq Haqq, a minor, on Tariq's behalf for personal injuries sustained by Tariq, then seven years old, when he was struck by an automobile operated by Barbara Jean Dancy-Bey. Prior to trial, the motions judge issued an order precluding Tariq from presenting the testimony of his accident reconstruction expert, Gregory Manning. Counsel for plaintiff had proposed to call Manning to show that the defendant was operating her vehicle at approximately 50 m.p.h. in a posted 25 m.p.h. zone, and that the defendant's speeding and inattention proximately caused the accident.

When the case went to trial, the plaintiff proceeded without an accident reconstruction expert. Ms. Dancy-Bey presented evidence that she was driving within the speed limit and that Tariq darted in front of her car without looking out for traffic. The jury returned a verdict in the defendant's favor. *fn1 The plaintiff now appeals, alleging that Manning should have been permitted to testify.


The motions judge's preclusion order was based on what the judge found to be willful violations by Tariq's trial counsel of Rules 11 and 37 of the Superior Court's Rules of Civil Procedure. In his statement of expected expert testimony filed pursuant to Super. Ct. Civ. R. 26(b)(4), the plaintiff's counsel had identified Manning as his expert witness on the circumstances and cause of the accident, and Ms. Dancy-Bey's attorney promptly noticed Manning's deposition. Upon receiving the notice, however, Manning telephoned the defense attorney and advised the attorney that he (Manning) had not been retained by plaintiff's counsel and that he had not received from Tariq's attorney any information regarding the accident. Tariq's attorney subsequently did retain Manning, but Manning had not completed his investigation prior to the expiration of the time for discovery.

The matter came before the motions judge on the plaintiff's request for an extension of discovery and the defendant's motion for sanctions. The judge refused to extend discovery and held that Manning would not be permitted to testify. In a five-page written order dated August 28, 1994 (Order No. 1), and again in a forty-five page order dated November 1, 1995 denying reconsideration (Order No. 2), the trial judge set forth in detail the reasons for her ruling. In Order No. 1, the judge found, inter alia, that counsel for plaintiff had filed a false Rule 26(b)(4) statement, in violation of Rule 11, and she declined to extend discovery because an extension would "reward the entirely inappropriate and unprofessional conduct of the [p]laintiff's counsel." In Order No. 2, the judge reaffirmed all of her initial findings and further found that Tariq's trial counsel, in defending what the judge found to be indefensible conduct, had made a number of additional false or misleading statements to the court. Our review of the record satisfies us that there is evidentiary support for the judge's findings with respect to counsel's misconduct, and that those findings are therefore binding upon us pursuant to D.C.Code § 17-305(a) (1997).


In Order No. 2, the motions judge explained her choice of sanction:

This [c]ourt is aware that the sanction of exclusion is a serious and harsh one. But, the [c]ourt has considered lesser sanctions and none would serve the interests of justice and ensure the efficient administration of this case as well as the exclusion of Mr. Manning's testimony. A monetary sanction imposed on the [p]laintiffs or on [their counsel] would not satisfactorily sanction the behavior that [counsel] has demonstrated in this case so far. It would simply allow [counsel], in return for a payment of money, to set his own scheduling deadlines [715 A2d Page 913]

and force the [c]ourt and the defense to wait until he is ready to prepare this case. For the deliberate and willful actions involved in this case, that would be as good as no sanction at all.

In this [c]ourt's view, it is a better solution to exclude Mr. Manning from testifying in this case. Such a sanction would reinforce to the [p]laintiffs, their counsel, and other members of the bar that attempts to thwart the rules and orders of this [c]ourt by the use of false statements will not be tolerated and will result in serious adverse consequences.

The foregoing passage demonstrates that the motions judge carefully considered the various sanctions available to her and that she made a conscientious effort to exercise appropriately her considerable discretion in that regard. See, e.g., Perry v. Sera, 623 A.2d 1210, 1217-18 (D.C. 1993) (discussing trial court's discretion with respect to sanctions for discovery violations); Park v. Sandwich Chef, Inc., 651 A.2d 798, 802 (D.C. 1994) (applying abuse of discretion standard to trial court's imposition of Rule 11 sanctions). Our standard of review is therefore deferential, and in the absence of a showing of abuse of discretion or legal error, it is our duty to sustain the motions judge's disposition.

"Judicial discretion must, however, be founded upon correct legal principles." Park, supra, 651 A.2d at 802 (citations omitted). Our examination of the record and of the motions judge's written orders leaves us in some doubt as to whether, in precluding Mr. Manning from testifying, the judge included in her ...

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