Plaintiff Who Runs Out of Witnesses in Mid-Trial Can Be Dismissed for Failure to Prosecute

Dobbs v. Providence Hospital, __ A.2d __ (D.C. 1999). Opinion by Steadman, joined by Reid and Gallagher.

FACTS: Dobbs filed a medical malpractice case for her husband's death against Providence and Georgetown hospitals, alleging improper emergency room treatment. After plaintiff refused to participate in drafting a joint pretrial order, trial court dismissed for failing to prosecute, then reinstated the case conditioned on plaintiff paying a fine. At pretrial conference, court issued an order stating, "Once the trial begins, witnesses will be put on call at the peril of the calling party." On first day of trial, plaintiff ran out of witnesses one-half hour before the scheduled end of the day's testimony. Plaintiff's counsel indicated he would have two more fact witnesses and his expert testify the following morning. On the second day (plaintiff's counsel was 15 minutes late), plaintiff's first witness finished at 10:20 and plaintiff had no other witnesses ready to call. Plaintiff's counsel advised court that expert was due to arrive at National Airport at 11:30 a.m. Counsel would not tell the court when precisely he had told the expert to appear. Defendants then moved to dismiss for failure to prosecute, and court granted motion.

OUTCOME: Dismissal AFFIRMED.

HOLDING: A pattern of dilatory conduct can warrant the sanction of dismissal for failure to prosecute, especially when delays in the middle of trial impact on the court, jury members, witnesses, opposing parties and counsel. Trial court did not abuse discretion in failing to impose a lesser sanction since it had used lesser sanctions in response to earlier delays.

QUOTE: "Dr. Bergman [the expert] was retained and paid by Dobbs and was appearing at Dobbs's discretion, and it was Dobbs's obligation to ensure that her expert was present when required."

Trial Courts Owe No Special Duty to Pro Se Litigants in Malpractice Cases

MacLeod v. Georgetown Univ. Hosp., __ A.2d __ (D.C. 1999). Opinion by Steadman, joined by Schwelb and Farrell.

FACTS: Pro se plaintiff alleged permanent ear damage from negligent ear wax removal at Georgetown. Plaintiff filed Rule 26(b)(4) statement on time naming four experts, but did not disclose their anticipated testimony. Defendant then obtained affidavits from each of plaintiff's named experts stating that no breach of the standard of care had occurred or caused the plaintiff's injuries. Defendant moved for summary judgment. Plaintiff in opposition stated that he would prove his case through cross-examination of the four doctors who submitted affidavits, plus he would use his own treating physicians, but he refused to divulge the substance of the opinion testimony he hoped to elicit nor did he attach any affidavits from the experts themselves. Trial court granted summary judgment.

OUTCOME: Summary judgment for defendant AFFIRMED.

HOLDING: Trial court had no obligation to advise pro se litigant that he must produce affidavits from his proposed expert witnesses to avoid summary judgment. While courts often give special leeway to pro se litigants in technical rules such as service of process and timeliness of filings, a pro se litigant must obey substantive rules just like anyone else. Nor did the plaintiff here fall into any of the other special categories of pro se litigants deserving extra consideration: prisoners or civil rights plaintiffs. This was "ordinary civil tort litigation seeking monetary damages."