THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No. 2014-0504, Douglas Gibson v. Granite State Electric Company, Inc., the court on May 13, 2015, issued the following order: The plaintiff, Douglas Gibson, appeals an order of the Superior Court (Vaughan, J.) granting summary judgment to the defendant, Granite State Electric Company, Inc., based upon the plaintiff s failure to timely disclose expert witnesses. We reverse and remand. In reviewing an order granting summary judgment, we ordinarily determine whether the evidence submitted on summary judgment, considered in the light most favorable to the nonmoving party, discloses a genuine issue of material fact for trial, and review the trial court s application of law to the facts de novo. See, e.g., Prof. Fire Fighters of N.H. v. State of N.H., 167 N.H. 188, 192 (2014). In this case, however, the basis for the summary judgment motion was the plaintiff s failure to timely disclose expert witnesses, and the plaintiff does not challenge the trial court s legal ruling that expert testimony on causation was required to prove his claims. The trial court has discretion to dismiss a case for the failure of a party to disclose necessary expert testimony pursuant to a pretrial discovery order, see, e.g., Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 673 (2008), and the plaintiff s sole argument on appeal is that the trial court here exceeded its discretion by dismissing the case. Accordingly, we review the trial court s order for an unsustainable exercise of discretion. See id. The trial court has broad discretion to waive the strict application of any rule for good cause and as justice may require, Super. Ct. Civ. R. 1(d), and may waive expert disclosure deadlines entered pursuant to Superior Court Civil Rule 27(a) under this standard, see Whitaker v. L.A. Drew, 149 N.H. 55, 58 (2003). The good cause standard does not explicitly bar relief from all consequences of human neglect, Perron v. Aranosian, 128 N.H. 92, 95 (1986), and contemplates that, in exercising discretion, the trial court will consider whether a sanction short of dismissal is sufficient to remedy a party s noncompliance with a discovery order, see DeButts v. LaRoche, 142 N.H. 845, 847 (1998); Perron, 128 N.H. at 95. A trial court s failure to exercise discretion is itself an unsustainable exercise of discretion. DeButts, 142 N.H. at 847. The plaintiff filed the present case in September 2011, alleging that the defendant, an electric power supplier, caused a condition known as stray voltage to occur on the plaintiff s dairy farm, which in turn caused a loss of dairy production due to electrical shocks experienced by the cattle. The parties waived
the expert report requirements of RSA 516:29-b (Supp. 2014), and the trial court entered an initial case structuring conference order requiring disclosure of the plaintiff s experts by November 15, 2012, and of the defendant s experts by January 30, 2013. Discovery was to be completed by February 28, 2013, and a jury trial was to occur during the month of April 2013. On March 15, 2013, the defendant filed an assented-to motion to continue trial until October 2013. Although discovery had already closed, the defendant asserted that the parties were engaged in discovery and had recently commenced earnest settlement discussions. According to the motion, a continuance was required to allow the parties to complete discovery and continue their settlement negotiations. The parties had not, at that point, disclosed expert witnesses, and the motion was silent as to any new discovery deadlines. The trial court granted the motion, scheduling a trial management conference for September 23, 2013, with a trial to occur in October 2013. Between September 13 and 18, 2013, counsel for the parties engaged in email correspondence indicating that settlement negotiations had been unsuccessful, that they may need to start discovery, that they needed a new discovery schedule, and that they needed to continue the trial management conference and trial. On September 18, the defendant filed an assented-to motion to continue the trial, the trial management conference, and the interim deadlines. In the motion, the defendant asserted that progress had been slower than anticipated due to a sale of the defendant company to another company, and a serious illness involving a family member of the plaintiff s trial counsel. A continuance was required, according to the motion, to allow the parties to complete discovery and continue settlement discussions or engage in mediation. The motion also requested an amendment to the current structuring conference order in order to establish new interim deadlines, including the disclosure of the plaintiff s experts by January 15, 2014, the disclosure of the defendant s experts by April 1, 2014, the completion of discovery by May 1, 2014, mediation by May 15, 2014, and trial by July 2014. The plaintiff s counsel had proposed the expert disclosure deadlines. The trial court granted the motion. The order, in its entirety, states: The defendant s Assented to Motion to Continue Trial, Trial Management Conference and Interim Deadlines i[s] Granted. This matter shall be placed on the trial docket for sometime after July 1, 2014, as the docket permits. No further continuances. Mediation shall be completed in this matter no later than May 1, 2014. Counsel for the plaintiff shall be responsible for filing the ADR report with the Court. The trial court also issued a notice scheduling a trial management conference for June 19, 2014, jury selection for July 8, 2014, and a jury trial for July 2014. 2
The plaintiff s counsel calendared all dates contained within the order granting the motion to continue and the jury trial notice. He did not, however, calendar the expert disclosure deadlines that were in the motion to continue. In an affidavit, he offered the following reasons for why he had failed to calendar those dates: (1) he had not printed a copy of the motion that the defendant s counsel had emailed him, mistakenly believing that he would receive a copy by mail; (2) as a matter of practice, he does not calendar proposed deadlines, but calendars only those deadlines signed by the Judge so as to avoid confusion if the trial court modifies them; (3) the deadlines were labeled interim deadlines, a term that confused him, and were not contained within a separate structuring conference order signed by the trial judge, such as the form order customarily used by the superior court, see Superior Court Form NHJB-2700-S (Oct. 1, 2013), http://www.courts.state.nh.us/forms/nhjb-2700-s.pdf; and (4) when he received the order granting the motion, he did not realize that it had incorporated the interim deadlines contained within the motion. The plaintiff s counsel worked on expert disclosures in November and December of 2013, and in January, February, and March of 2014. In December 2013, the plaintiff s counsel reviewed the order granting the motion to continue again in order to determine whether there was an expert disclosure deadline, and believed that, since there was no deadline specified within the order, he just needed to make [the disclosures] timely pre-trial. See RSA 516:29-b, III (allowing expert disclosures to be made ninety days before trial absent a contrary court order or stipulation). On March 6, 2014, the defendant moved for summary judgment, arguing that expert testimony was required for the plaintiff to carry his burden of proof, and that, because he had failed to disclose an expert, he should be precluded from offering expert testimony. In response, on March 14, 2014, the plaintiff disclosed that he would offer testimony from the following witnesses: (1) an electrician who performed electrical testing on his farm both before and after the defendant had replaced a transformer and had made certain improvements to its equipment, and who would testify that he found stray voltage at cow contact points up to 2.8 volts before the improvements, that he found no stray voltage after the improvements, and that the transformer the defendant replaced was very old and rusty ; and (2) an official from the Vermont Department of Agriculture, Food and Markets, who would testify that he also tested the farm for the potential for stray voltage and reviewed the electrician s findings, that stray voltage was present in the plaintiff s milking barn at levels that were sufficient to harm cattle, that the cause of the stray voltage was high electrical impedance of the neutral connections at or in the service transformer, and that the high impedance was from improperly maintained and aging equipment under the defendant s control. The plaintiff also disclosed that he would testify as to all aspects of dairy farming, the losses he suffered to his cattle, and the financial impact of those losses, and itemized the losses he would seek to recover. The plaintiff moved to extend his expert disclosure deadline to March 15, 2014, and 3
the defendant s expert disclosure deadline to June 1, 2014, and opposed the summary judgment motion on the basis that dismissal was too severe a sanction under the circumstances of the case. The defendant objected, arguing that the requested extension would be prejudicial. Specifically, the defendant argued that, because the deadline for completion of discovery was May 1, 2014, extending its disclosure deadline to June 1 would leave it without time to depose [the plaintiff s] experts, complete discovery and prepare for trial, and would not allow the parties sufficient time to engage in mediation. The defendant further argued that the plaintiff s disclosures were deficient. The Trial Court (Bornstein, J.) denied the motion to extend the expert disclosure deadline, finding that the plaintiff had not established good cause, and that the defendant would be prejudiced. Separately, the Trial Court (Vaughan, J.) granted the motion for summary judgment, rejecting the plaintiff s argument that dismissal was too harsh a sanction. This appeal followed. Under the unique facts of this case, we conclude that the trial court unsustainably exercised its discretion. By simply granting the assented-to motion for a continuance, without specifying that the proposed interim deadlines contained within it would be entered as a case structuring order, the order was ambiguous. Indeed, we note that while the order purported to grant the motion, it also stated that mediation shall be completed in this matter no later than May 1, 2014, a date inconsistent with the motion. Although the plaintiff s counsel may have been neglectful in failing to refer to the motion when calendaring the dates contained in the order granting it, as noted above, the good cause standard, unlike the accident, mistake or misfortune standard that we applied in Wong v. Ekberg, 148 N.H. 369, 372-73 (2002), does not explicitly bar relief from all consequences of human neglect, Perron, 128 N.H. at 95. We disagree with the defendant that it would have suffered any significant prejudice by the late disclosure. The plaintiff disclosed his experts nearly four months before the July 8, 2014 jury selection date. See RSA 516:29-b, III (allowing expert disclosures to be made ninety days before trial absent a contrary court order or stipulation). Additionally, he agreed to extend the defendant s expert disclosure deadline until June 1. Although discovery was to be completed by May 1, the trial court could have waived that deadline as to the defendant without necessitating a further continuance in the trial date. See Super. Ct. Civ. R. 1(d). While extending the defendant s deadline to June 1 may have prejudiced the plaintiff, who would have been barred from deposing the defendant s experts under the May 1 completion of discovery deadline, we fail to see how it would have harmed the defendant. Finally, nothing in this record demonstrates that the trial court considered sanctions short of dismissal. DeButts, 142 N.H. at 847. The trial court could have, for instance, required that the plaintiff reimburse the defendant the 4
attorney s fees it incurred in moving for summary judgment and opposing the motion for an extension of the expert disclosure deadlines. See Perron, 128 N.H. at 95. As noted above, it could also have extended the May 1 close of discovery deadline for the defendant, while holding the plaintiff to that deadline. To the extent that the defendant contends that the plaintiff s disclosures were deficient, an argument that the trial court did not rule upon, we note that the parties waived the technical requirements of RSA 516:29-b with respect to the expert reports. We conclude that the disclosures, summarized above, sufficiently notified the defendant of the identity of the plaintiff s experts, the substance of the facts and opinions about which they were expected to testify, and the basis for their opinions. Wong, 148 N.H. at 372. Given our emphasis on justice over procedural technicalities, see Whitaker, 149 N.H. at 59, we conclude that dismissal in this case was a draconian sanction, and that the trial court should have considered lesser sanctions, DeButts, 142 N.H. at 847. Accordingly, we reverse the granting of summary judgment, and remand for the trial court to exercise its sound discretion. DeButts, 142 N.H. at 847. HICKS, CONBOY, and LYNN, JJ., concurred. Reversed and remanded. Eileen Fox, Clerk 5