Where plaintiffs failed to timely produce three of their witnesses for depositions and the trial court sanctioned the plaintiffs by striking these witnesses from testifying at trial., that order must be vacated because the trial court’s consideration of potential lesser sanctions before striking plaintiffs’ witnesses was inadequate.
“In this first-party no-fault action, plaintiffs-appellants, Multicare Health Center (‘Multicare’) and Groesbeck RX (‘Groesbeck’) (collectively, ‘plaintiffs’), appeal the trial court’s order granting summary disposition in favor of defendant-appellee, Progressive Marathon Insurance Company (‘defendant’) under MCR 2.116(C)(10). Due to various delays in communication and scheduling during discovery, defendant ultimately moved the trial court to compel plaintiffs to produce three of their witnesses for depositions. The trial court granted the motion to compel, but plaintiffs failed to timely produce the witnesses. The trial court sanctioned plaintiffs for violating the order to compel by striking these witnesses from testifying at trial. Shortly thereafter, the trial court granted summary disposition to defendants, concluding that without the testimony of the stricken witnesses, plaintiffs failed to produce sufficient evidence to demonstrate an essential element of its claim.
“We reverse the trial court’s striking of plaintiffs’ experts, vacate the trial court’s grant of summary disposition to defendant, and remand for further proceedings. …
“… Though trial court holds the authority to bar witnesses or dismiss an action as a discovery violation sanction, the exercise of that authority is ‘discretionary rather than mandatory [and] necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate.’ Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). …
“… The trial court essentially stated in a conclusory fashion that plaintiffs continuously and willfully failed to comply with discovery, did not attempt to ‘cure the defect,’ and that defendant was prejudiced by these actions. The court did not, however, explain what defect needed to be cured nor how defendant was prejudiced. The court also concluded that no ‘lesser sanction would better serve the interests of justice where discovery has now closed’ but failed to consider any potential lesser sanction on the record. We find this reasoning to be inadequate. …
“We further find inadequate the trial court’s consideration of potential lesser sanctions before striking plaintiffs’ witnesses. While the trial court stated no lesser sanctions would be adequate, it did not state what those sanctions could be. It is not clear to this court why, for example, attorney fees or other cost assessments prove inadequate here. …
“For these reasons, we reverse the trial court’s order striking plaintiffs’ witnesses, vacate the order granting defendant’s motion for summary disposition, and remand this matter for further proceedings consistent with this opinion.”