Background
Multicare Health Center and Groesbeck RX sued Progressive Marathon Insurance Company to recover first-party no-fault benefits for medical treatment provided to Veronica Ginn after an automobile accident. The providers identified Dr. Allan Schwartz, Dr. Zenith Khan, and Ali Saad as witnesses concerning the necessity of treatment, billing practices, and the reasonableness and customariness of the charges.
After delays and communication problems in scheduling the witnesses’ depositions, the circuit court ordered the providers to produce them within 30 days. The depositions did not occur by the deadline. As a discovery sanction, the court barred all three witnesses from testifying. It later granted Progressive summary disposition under MCR 2.116(C)(10), reasoning that without those witnesses, the providers lacked sufficient evidence that the treatment was reasonable and necessary.
The Court’s Holding
The Michigan Court of Appeals held that the circuit court abused its discretion by striking the three witnesses without adequately analyzing the factors set out in Dean v Tucker. Although the circuit court mentioned those factors, its findings that the providers acted willfully, made no effort to cure the problem, and prejudiced Progressive were largely conclusory. The record showed one discovery violation—the failure to comply with the August 6 deposition order—not the repeated discovery violations described by the circuit court.
Because excluding the witnesses effectively led to dismissal, the circuit court was required to conduct a more rigorous analysis and consider lesser sanctions on the record. It did not explain why measures such as attorney fees or costs would be inadequate. The Court of Appeals therefore reversed the witness-striking order, vacated the resulting summary-disposition order, and remanded for further proceedings.
Key Takeaways
- A court must carefully apply the Dean factors before imposing a discovery sanction that effectively ends a case.
- Merely citing the governing factors is insufficient; the court must explain findings such as willfulness, prejudice, and the absence of a timely cure.
- Before excluding essential witnesses, the court must consider lesser sanctions on the record, including possible attorney-fee or cost awards.
Why It Matters
The decision reinforces that witness exclusion requires particular caution when it operates as a case-dispositive sanction. Scheduling failures and poor communication may warrant consequences, but the sanction must be supported by the record and proportionate to the established violation.
For litigators, the opinion underscores both the importance of obeying deposition orders and the need to build a detailed record addressing prejudice, intent, corrective efforts, and less severe alternatives before seeking—or imposing—a sanction that effectively results in dismissal.