ALBERTO VELAZQUEZ AND CARMEN VELAZQUEZ, HIS WIFE, APPELLANTS,
v.
ALAVAR GAITAN, M.D., APPELLEE
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The Velazquezes appealed the dismissal of their medical malpractice action against Dr. Gaitan for violating discovery orders regarding expert witness interrogatories. The appellate court reversed the dismissal, finding that the trial court abused its discretion by imposing the drastic sanction of dismissal for a minor discovery violation and a responsive answer.
The dismissal was an abuse of discretion and was reversed. The six-day delay was minor and caused no substantial prejudice to the defendant, and the plaintiffs' answer that they had no expert witnesses was responsive to the interrogatories and did not violate the discovery order.
[1] Dismissal of a medical malpractice action is an abuse of discretion when the delay in answering expert witness interrogatories is minor and causes no substantial prejudic…
[2] An answer stating that no expert witness has been selected is responsive to an interrogatory seeking identification of expert witnesses, and thus does not violate a disco…
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Join FLexlaw to unlock all legal intelligence“the drastic sanction of dismissal below constitutes an abuse of the trial court's discretion herein”
Establishes the core holding that dismissal was an excessive sanction
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs were six days late in responding to the defendant's expert witness interrogatories in violation of a court order compelling discovery. …
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PER CURIAM.
This is an appeal by the plaintiffs [Alberto and Carmen Velazquez] from a final order dismissing a medical malpractice action. The basis for the dismissal was that (a) the said plaintiffs were six days late in answering the expert witness interrogatories of the defendant [Alavar Gaitan, M.D.] in violation of a court order compelling discovery, and (b) the said plaintiffs had answered these interrogatories by stating that they had selected no expert witness in the case, in alleged violation of the subject court order.
We reverse the order under review upon a holding that the drastic sanction of dismissal below constitutes an abuse of the trial court’s discretion herein; we reach this result for two reasons.
First, although the plaintiffs violated the trial court’s order compelling discovery by being six days late in answering the subject interrogatories, the said violation was minor in nature and the defendant was not substantially prejudiced by this short delay.
Second, the plaintiffs’ answer was responsive to the subject interrogatories when it was stated that the plaintiffs had no expert witnesses, and, therefore, the answer did not violate the trial court’s order compelling discovery in any way. We, therefore, conclude that the drastic sanction of dismissal was totally inappropriate in this case. Santuoso v. McGrath & Associates, Inc., 385 So. 2d 112 (Fla. 3d DCA 1980); Beaver Crane Service, Inc. v. National Surety Corp., 373 So. 2d 88 (Fla. 3d DCA 1979); Goldstein v. Goldstein, 284 So. 2d 225 (Fla. 3d DCA 1973).
The final order of dismissal under review is reversed and the cause is remanded to the trial court for further proceedings.
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Blasco v. State, 680 So. 2d 1052 (Fla. 3d DCA 1996)…la. 5th DCA 1992)(ordering a new trial where the court reporter’s notes of six days of a ten day trial were destroyed by fire, the parties could not agree on a reconstructed record, and the trial judge had no memory of the proceeding); Lee v. State, 499 So. 2d 66 (Fla. 3d DCA 1986)(ordering a de novo hearing on the defendant’s motion to suppress where the record of the original suppression hearing was unavailable; the reconstructed record was deemed inadequate due to the fading memories of the parties and th…
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Vasiliki Zafirakopoulous v. S. Miami Int'l Crabhouse Corp., 513 So. 2d 1353 (Fla. 3d DCA 1987)…bad faith); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (late and incomplete compliance with discovery requests could not support dismissal in absence of showing of bad faith), rev. denied, 511 So. 2d 297 (Fla.1987); Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986) (six-day delay in answering interrogatories insufficient to warrant dismissal of suit); United Servs. Auto. Ass’n v. Strasser, 492 So. 2d 399 (Fla. 4th DCA 1986) (trial court abused discretion in striking defendant’s pleadings and…
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Stimpson Computing Scale Co., Inc. v. The Honorable Francis X. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987)…of willful nonattendance of scheduled depositions); Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986) (late and incomplete compliance with discovery requests could not support dismissal in absence of showing of bad faith); Velazquez v. Gaitan, 499 So. 2d 66 (Fla. 3d DCA 1986) (six-day delay in answering interrogatories insufficient to warrant dismissal of suit); Summit Chase Condominium Ass’n, Inc. v. Protean Investors, Inc., 421 So. 2d 562 (Fla. 3d DCA 1982) (fact that plaintiff’s counsel was laggard…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Santuoso v. McGRATH & Assocs., Inc., 385 So. 2d 112 (Fla. 3d DCA 1980)
- Cummings v. S.C. Ins. Co., 373 So. 2d 88 (Fla. 3d DCA 1979)
- Goldstein v. Goldstein, 284 So. 2d 225 (Fla. 3d DCA 1973)