PA Court Deems Discovery Sanction as Too Harsh (PA)
The Commonwealth Court of Pennsylvania recently vacated and remanded a trial court’s order entering non pros against plaintiffs in a personal injury action. In Khamphouseane v Thornton, the Court determined that the trial court failed to conduct the requisite analysis before dismissing the plaintiffs’ cause of action after their repeated failure to comply with discovery demands.
The lawsuit stems from plaintiffs’ collision with a Southeastern Pennsylvania Transportation Authority (“SEPTA”) bus in which Anong Khamphouseane and Susan Khamphouseane (collectively “Khamphouseane”) sued SEPTA, MV Transportation, Inc., Amica Mutual Insurance Co., and Schnika Thornton. Over the course of discovery, counsel for SEPTA served Khamphouseane with requests for medical record release forms as well as DL-503 forms authorizing the release of Pennsylvania Department of Transportation records. Since plaintiffs did not respond to these requests, counsel for SEPTA filed a Motion to Compel, which was granted on March 22, 2016. As plaintiff still failed to respond to the court’s order, counsel for SEPTA filed a Motion for Sanctions seeking out a judgment of non pros under Pennsylvania Rule of Civil Procedure 4019(c)(3).
On May 19, 2016, the trial court held a hearing on SEPTA’s Motion for Sanctions. Plaintiffs’ counsel only stated that he had a hard time communicating with his clients because they recently moved out of the state and did not speak English, necessitating an interpreter for all communications. The trial court granted the Motion for Sanctions, awarding $1,500.00 in expenses and attorneys’ fees as well as striking plaintiffs’ complaint and entering judgment for non pros.
On appeal, plaintiffs argued that the dismissal of their complaint was too harsh of a sanction because they quickly cured any prejudice to the defendants by providing the requested authorizations after the Motion for Sanctions hearing. Additionally, they asserted that the trial court erred because it did not assess each of the factors necessary when deciding the appropriateness of a sanction under Rule 4019(c). The Commonwealth Court of Pennsylvania deeply analyzed the second issue of plaintiffs’ appeal and stated that “[w]hen a discovery sanction has the effect of terminating the action, a ‘court must consider multiple factors balanced together with the necessity of the sanction.’” The factors include: (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply. Furthermore, the court emphasized that each factor is a “necessary consideration” and not a “necessary prerequisite.”
The Court also emphasized that dismissal of an action is the most severe sanction and should be reserved for only the most extreme circumstances. The Court went on to give examples of types of prejudices that may warrant a sanction based on a delay in responding to discovery which included the fading of witness memories, the disappearance of witnesses, or the loss or destruction of relevant documents. Notably, the defendants in the instant action did not identify any prejudice related to the delayed execution of the plaintiffs’ authorizations, other than the monetary costs associated with pushing the discovery dispute. However, the Court noted that this loss was cured by the monetary award of $1,500.00 which would cover those costs.
As such, the Court concluded that, because there was no clear prejudice, dismissing the complaint appeared to be too harsh of a discovery sanction. However, the Court could not evaluate whether the trial court abused its discretion because it did not address the prejudice or other requisite factors in its opinion. Thus, the matter was remanded to the trial court so that they may consider each factor and explain its rationale sufficiently to enable appellate review.
Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions.