Before Steadman and Reid, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Stephen F. Eilperin, Trial Judge)
Carrie B. Dobbs, survivor and next of kin of J.B. Dobbs, deceased, appeals the trial court's dismissal of her medical malpractice case during the course of trial for want of prosecution. The trial court dismissed her case on the second day of trial when Dobbs's remaining witnesses, particularly her expert, were not available to testify. Dobbs's case had been dismissed once already pre-trial for failure to prosecute, although the case was subsequently reinstated and Dobbs ordered to pay fines. Also, the trial court had been clear in its pretrial order that once the trial had started witnesses would be on call at the peril of the calling party and had admonished Dobbs's counsel and struck one of Dobbs's witnesses on the first day of trial when the court had to recess early because Dobbs had no more witnesses available to present. Based on Dobbs's pattern of dilatory conduct both pre-trial and during trial, and the trial court's earlier unsuccessful attempts to remedy the problem with lesser sanctions than dismissal, we conclude that the trial court did not abuse its discretion in dismissing Dobbs's case.
On January 6, 1995, Dobbs filed a medical malpractice action on behalf of her husband's estate against Providence Hospital ("Providence") and Georgetown University Hospital ("Georgetown"), alleging that the hospitals failed to properly diagnose and treat Mr. Dobbs during separate visits to the emergency rooms of each hospital, resulting in Mr. Dobbs's death. On March 5, 1997, the trial court issued a show cause order why Dobbs's case should not be dismissed for failure to prosecute because Dobbs refused to participate in drafting a joint pretrial statement as required by Super. Ct. Civ. R. 16. The trial court dismissed Dobbs's case for failure to prosecute on March 25, 1997. The trial court subsequently granted Dobbs's motion to reinstate the case on April 2, 1997, but conditioned reinstatement upon Dobbs's payment to defendants of a $150 sanction. Upon learning of Dobbs's failure to pay the $150 sanction to defendant Georgetown, the court on July 27, 1997 ordered Dobbs to pay $210 to Georgetown by July 30, or her case against Georgetown would be dismissed.
At the pretrial conference, the trial court limited the witnesses that would be called at trial, providing that, "Plaintiff's witness list is restricted to Carrie Dobbs, Miriam *fn1 Dobbs, Timothy Dobbs, Robert Polk, Clarence McKenzie and Dr. Bergman." The trial court's pretrial order also expressly provided:
"Once the trial begins, witnesses will be put on call at the peril of the calling party. The trial will not be recessed because a witness on call is unavailable except in extraordinary circumstances. The Court will endeavor to accommodate out-of-town and expert witnesses if counsel alerts the Court ahead of time, and counsel may agree among themselves to call witnesses out of order; otherwise, the party calling a witness shall arrange for that witness' presence until cross-examination is completed, including the following trial days if need be. The failure to have a witness present for cross-examination following direct examination is grounds to strike that witness' testimony. (emphasis in original)."
Shortly before 4:15 p.m. on January 12, 1998, the first day of trial, it became apparent that Dobbs's third witness, Timothy Dobbs, was not present to testify, despite the court's earlier warning that he should be present, and the court ruled that he could not be called during the case. As Dobbs had no other witnesses available at that time to testify, the court had to recess early. *fn2 After the jury was excused, Dobbs's counsel apologized for not having more witnesses ready. The court inquired of Dobbs's counsel which witnesses he intended to call when trial resumed at 9:30 a.m. the next morning. Dobbs's counsel indicated that he would present three witnesses in the following order: Robert Polk, followed by Dr. Bergman, followed by Miriam Dobbs. The court admonished Dobbs's counsel to be prepared to proceed promptly the next morning: "We'll continue the case until 9:30 tomorrow morning and you better have a witness to put [on] at 9:30 tomorrow morning." The court also instructed Providence and Georgetown to have witnesses the next day ready to proceed with their case at the close of Dobbs's case.
When trial resumed around 9:50 a.m. *fn3 the next day, Dobbs called Robert Polk as its first witness. After Mr. Polk had completed his testimony shortly before 10:20 a.m., Dobbs had no other witnesses present to testify. Dobbs's counsel explained that one of his witnesses, Miriam Dobbs, had informed him the prior evening that she had been tested for a lump in her breast and that she could not be present in court because she was required to return to her medical provider at that time. The court told Dobbs to put on her next witness, and Dobbs's counsel indicated that he had no other witnesses ready to call. In response to the court's query about where the expert witness was, Dobbs's counsel replied that he was scheduled to arrive on a flight from Boston at 11:30 that morning. The court asked what Miriam Dobbs was going to testify about and, based on counsel's response, concluded that her testimony would be redundant.
The court pressed Dobbs's counsel several times about what time he had instructed the expert to be in court, but Dobbs's counsel refused to provide a precise answer, indicating only that he told the expert to arrive Tuesday morning and that he would be the third witness, but he did not give the expert a time to be present. *fn4 The court noted that with Dr. Bergman's expected arrival time of approximately 11:30 a.m. at National Airport, the earliest that Dr. Bergman could arrive at the courthouse would be 12:00 noon. Dobbs's counsel also then indicated that he had other witnesses among the Dobbs children who were available to testify. These persons were not among the witnesses approved in the pretrial order. The court indicated again its view that such testimony would be cumulative and that the court had been clear the previous afternoon that Dobbs had only three witnesses left: Mr. Polk, Miriam Dobbs, and the expert.
At this point counsel for Georgetown moved to dismiss the case for want of prosecution, and Providence joined in the motion. The hospitals stressed (1) the history and pattern of delay by Dobbs's counsel that had previously resulted in dismissal of the action for failure to comply with Rule 16 requirements; (2) Dobbs's failure to abide by the pretrial order and the court's repeated warnings during trial that Dobbs must have witnesses available to testify; (3) the fact that the previous evening Dobbs's counsel represented that Dr. Bergman was to be his second witness and now argued that he was to be his last; and (4) the prejudice that the hospitals would suffer if their witnesses, emergency room doctors and nurses who had been taken out of their clinical rotations to be available to testify that day, had to rearrange their duty schedules and additional days, if even possible, due to Dobbs's delay.
The court dismissed Dobbs's case for failure to prosecute, emphasizing Dobbs's history of failing to diligently prosecute her case; the express language of its pretrial order directing that "once the trial begins witnesses will be put on call at the peril of the calling party" and that "[t]he trial will not be recessed because a witness on call is unavailable except in extraordinary ...