Appeals from the Superior Court of the District of Columbia (CA-2334-01) (Hon. Susan R. Winfield, Trial Judge)
Before Steadman, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
In this suit for personal injury arising from the intersection collision of two motor vehicles, the trial judge dismissed the complaint with prejudice because of plaintiff/appellant Zuckerman's failure to respond to discovery. The primary issues before us are (1) whether Zuckerman's response to interrogatories requesting documentation of the accident and his injuries, medical expenses, and economic damages by offering to make such records available for defendant Vane's inspection satisfied Super. Ct. Civ. R. 33 (d); and (2), if not, whether that default nevertheless was sufficient to justify dismissal with prejudice in the circumstances of this case. We hold that, although Zuckerman did not comply with the duty of specificity imposed by Rule 33 (d), that failure did not justify the "lethal" sanction of dismissal, Solomon v. Fairfax Vill. Condo. IV Unit Owner's Ass'n, 621 A.2d 378, 379 (D.C. 1993) (per curiam), absent clearer evidence that his conduct was willful and that Vane was prejudiced as a result.
In a complaint filed on March 26, 2001, Zuckerman alleged that a motor vehicle driven by Vane had run a red light and struck Zuckerman's car, causing him permanent injury and damage to his car. Vane answered the complaint, and the court issued a scheduling order establishing a series of discovery deadlines, including: August 29 (for discovery requests, the exchange of witness lists, and any Rule 26 (b)(4) expert witness statement by Zuckerman); October 29 (the close of discovery); December 29, 2001 to January 29, 2002 (filing and decision on motions, and alternative dispute resolution); and sixty days thereafter (the pretrial conference). On April 25, 2001, Vane served interrogatories and document requests on Zuckerman but received no response to them, prompting him to send three letters between May and July demanding compliance. Zuckerman replied in late July by asserting that he could not locate the requests and asking for new copies of them. On August 16, still having received no substantive responses, Vane moved the trial court to compel discovery under Rule 37 (a). Zuckerman responded apologetically and stated that he expected to complete his responses by September 17. On September 10, the trial court ordered him to serve his interrogatory answers and responses to the document requests by September 20.
Zuckerman filed his responses on September 20 as ordered. In them, he stated his version of the collision in detail, identified the eyewitnesses he intended to call at trial, described his resultant injuries, *fn1 and listed the physicians he had consulted for treatment and intended to call as witnesses. But in response to the requests for documentation of his injuries and "expenses and other economic damages," he did not produce any reports or other documents or attempt to summarize their contents. Instead he asserted that all such documentation -- including photographs of the scene, written reports of his doctors, and x-rays and an MRI scan -- were in his possession or the possession of his doctors, and that "[p]ursuant to Rule 33 (d), he would afford [d]efendant reasonable opportunity, at a mutually convenient time and place, to examine . . . or inspect such documents and to make copies, . . . abstracts or summaries."
Unsatisfied with these responses, Vane moved the trial court to dismiss the complaint as a sanction, arguing that Zuckerman's failure to document his injuries with medical reports or substantiate his claim of lost earnings left Vane "still at a complete loss as to what damages the plaintiff is claiming in this matter." Zuckerman replied partly by stating that he had placed all such documents at Vane's disposal under Rule 33 (d), but that neither Vane nor his attorney had taken any steps to inspect and copy them. The trial judge initially regarded Vane's motion to dismiss as unopposed, and dismissed the suit "for failure to comply with this Court's Order of September 10, 2001 and failure to oppose the request for dismissal." When Zuckerman informed the court that he had opposed the motion, the court revised its order by stating that the complaint "shall remain dismissed due to plaintiff's failure to comply with his discovery obligations."
In Chapman v. Norwind, 653 A.2d 383 (D.C. 1995), this court summarized the governing principles as follows:
This court will reverse a dismissal only upon a showing of an abuse of discretion by the trial court. The dismissal of a complaint for failure to adhere to a discovery order is among the sanctions available to the trial court under Super. Ct. Civ. R. 37 (b). Normally, a trial court, however, may impose such a heavy sanction only when "severe circumstances" are present. This court considers two factors in determining whether "severe circumstances" exist: "(1) whether the opposing party has suffered any prejudice due to the failure to respond to discovery requests and (2) whether the failure was 'willful' --defined as a conscious or intentional failure to act as opposed to accidental or involuntary noncompliance." Moreover, the trial court must consider less severe sanctions before dismissing a case. Id. at 386 (citations omitted).
Zuckerman first contends that the record contains no indication that the trial court considered lesser sanctions, such as attorneys fees, before dismissing the complaint. Similar to what took place in Chapman, supra, however, the trial court took express note of Vane's motion arguing for dismissal or "[a]lternatively" for lesser sanctions such as a restriction on proof, and of Zuckerman's opposition thereto. Although, as in Chapman, "it would have been preferable that the judge's order itself contain some affirmative indication that [s]he had considered less severe sanctions available under . . . [Rule] 37 (b)," id. at 388, we conclude -- as did the court in Chapman -- that there is sufficient indication in the record that the trial judge believed lesser sanctions to be inadequate.
Zuckerman's weightier argument is that the record does not support the trial court's implied finding that he willfully -- i.e., consciously or deliberately -- disregarded his discovery obligations, in light of his good faith belief that his response complied with Rule 33 (d)'s established means for producing all of the requested documentation in this relatively uncomplicated automobile collision case. He points out that over a month before the scheduled close of discovery, he placed all of the relevant documents at Vane's disposal for examination and copying, but that Vane never availed himself of the opportunity afforded to inspect them at Zuckerman's office. Vane counters that a simple invocation of Rule 33 (d) in response to interrogatories and ...