MARY ELDER, INDIVIDUALLY, AND MARY ELDER, AS PARENT AND NATURAL GUARDIAN OF ETHAN ELDER, A MINOR, APPELLANT,
v.
FRANK NORTON, M.D., INDIVIDUALLY AND FRANK NORTON, M.D., P.A.; CARMELLA FARULLA, M.D, INDIVIDUALLY; CARMELLA FARULLA, AS AGENT AND SERVANT OF VAICAITIS, SCHORR & RICHARDS, M.D., P.A.; AND ROBERT HELLER, M.D., INDIVIDUALLY, APPELLEES
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The court held that dismissal of a claim as a sanction for discovery abuses is too severe when there is no evidence of misconduct by the party personally, only by their attorney.
Plaintiff's medical malpractice claim was dismissed as a sanction for discovery abuses spanning four years, committed by her attorney. The plaintiff h…
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QUINCE, Judge.
Mary Elder, individually and as parent and natural guardian of Ethan Elder, appeals an order dismissing her medical malpractice claim as a sanction for various discovery abuses. Indeed, the record establishes a four year history of noncompliant conduct on the part of Elder’s counsel; nevertheless, because the record bears no evidence of misconduct on the part of Elder personally, we reverse.
The sanction of dismissal is all too drastic and severe when, as in this case, there is no evidence in the record to demonstrate that Elder has played an active role in abusing the discovery process. See e.g., Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.1993); Walicki v. Waste Management, 703 So. 2d 1095 (Fla. 2d DCA 1997) (plaintiff should not be made to suffer loss of viable claim due to attorney’s malfeasance). The trial' attorney, rather than his or her client, must be the object of sanctions in cases such as this. Under these circumstances, trial courts have the discretion to levy monetary sanctions, including attorney’s fees and costs arising from discovery abuses, or any other action consistent with the Rules Regulating The Florida Bar. See Martin v. Laidlaw Tree Service, 619 So. 2d 435 (Fla. 2d DCA 1993). Such sanctions may be considered on remand in the present case.
The trial court abused its discretion in dismissing Elder’s claim absent evidence indicating Elder assumed an active role in abusing the discovery process. We see no utility in punishing a faultless plaintiff when his or her attorney is solely responsible for the abusive conduct. Accordingly, we reverse.
PARKER, C.J., and BLUE, J., concur.
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HAM v. Dunmire, 891 So. 2d 492 (Fla. 2004)…e actions were willful and deliberate. See id. at 493. The facts in Schlitt were far more egregious than those we consider here. The Second District Court of Appeal has reached the same conclusion as that of the Fourth District. In Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998), the district court reversed an order of dismissal emanating from a four-year history of discovery abuses on the part of plaintiffs counsel. See id. at 587. The district court determined that the sanction of dismissal was far too…1 / 2
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Montage Grp., Ltd. v. Athle-Tech Computer Sys., Inc., 889 So. 2d 180 (Fla. 2d DCA 2004)…f the conduct to be sanctioned. Cf. Jimenez v. Simon, 879 So. 2d 13 (Fla. 2d DCA 2004) (reversing dismissal of action with prejudice as a sanction for discovery violations resulting solely from the neglect of counsel for plaintiff); Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998) (holding trial court abused its discretion in dismissing claim as a sanction for various discovery abuses absent evidence party assumed an active role in abusing the discovery process). We recognize that the sanction imposed by th…
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Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000)…reted Kozel as mandating reversal of such extreme sanctions, as an abuse of discretion, where the actions were the fault of the attorney and not the party. See Cole v. Bayley Prods., Inc., 661 So. 2d 1299 (Fla. 4th DCA 1995); accord Elder v. Norton, 711 So. 2d 586 (Fla. 2d DCA 1998); Walicki v. Waste Management, Inc., 703 So. 2d 1095 (Fla. 2d DCA 1997). Here, Schlitt presented an affidavit swearing to complete ignorance of his attorney’s actions. The issue of Schlitt’s complicity is one of fact. Accordingly,…
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
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Walicki v. Waste Mgmt., Inc., 703 So. 2d 1095 (Fla. 2d DCA 1997)
- Isidro Santiago Pena v. State, 619 So. 2d 435 (Fla. 2d DCA 1993)