Preview:

REED V. FURR'S SUPERMARKETS INC., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603
ARLENE REED, Plaintiff-Appellant/Cross-Appellee,
vs.
FURR'S SUPERMARKETS, INC.,
Defendant-Appellee/Cross-Appellant.

Docket No. 19,993
COURT OF APPEALS OF NEW MEXICO
2000-NMCA-091, 129 N.M. 639, 11 P.3d 603
August 22, 2000, Filed
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY. W. Daniel Schneider, District Judge.
Released for Publication October 23, 2000. Certiorari Denied, No. 26,562, October 11, 2000.
COUNSEL
Alexander A. Wold, Jr., Wold & Hart, P.A., Albuquerque, NM, for Appellant/Cross-Appellee.  
Josh A. Harris, Beall & Biehler, P.A., Albuquerque, NM, for Appellee/Cross-Appellant.  

JUDGES
JAMES J. WECHSLER, Judge. WE CONCUR: A. JOSEPH ALARID, Judge, MICHAEL D. BUSTAMANTE, Judge. AUTHOR: JAMES J. WECHSLER

OPINION
{*641} WECHSLER, Judge.
{1} Plaintiff Arlene Reed appeals the district court's order dismissing her lawsuit against Furr's Supermarkets, Inc. (FSI), with prejudice. The district court dismissed Plaintiff's lawsuit as a sanction for discovery violations. FSI cross-appeals the district court's order denying FSI its costs. We affirm.  
{*606} {*642} Facts
{2} Plaintiff filed her complaint against FSI on April 2, 1996. In her complaint, Plaintiff alleged that she fell and sustained injuries while shopping at a Furr's supermarket in Albuquerque. FSI answered the complaint and the parties thereafter began the discovery phase of the lawsuit.
{3} FSI made several requests to depose Plaintiff, beginning February 18, 1997. FSI also sought answers to interrogatories. FSI's attempts to take the deposition were thwarted by Plaintiff's claims that she was unable to withstand the physical and emotional demands of a deposition. After several attempts to obtain answers to interrogatories and releases for Plaintiff's medical and other records and to make arrangements to take Plaintiff's deposition, FSI filed a motion to compel Plaintiff to produce documents and answer interrogatories. The district court held a hearing on the motion and entered an order compelling Plaintiff to comply with certain portions of FSI's discovery requests.  
{4} FSI ultimately deposed Plaintiff and received applicable documents. It then moved the district court to dismiss Plaintiff's lawsuit as a sanction for her failure to comply with discovery. FSI alleged that Plaintiff had withheld information from FSI and had misrepresented the nature of her preexisting medical conditions. FSI specifically alleged that Plaintiff had misrepresented her past medical conditions by denying that she (1) kept a pain diary; (2) experienced daily headaches; (3) had prior incidents of fatigue; (4) was diagnosed with psychological disorders; (5) suffered from extreme stress; (6) suffered from lower back pain; (7) suffered from chronic illnesses and pain; (8) suffered from extreme anxiety; (9) had a history of fevers; (10) experienced pelvic and abdominal pain, heart palpitations, and dizziness; and (11) had difficulty walking and climbing stairs. FSI also alleged that Plaintiff misrepresented portions of her employment history; namely, that she denied having had employment privileges taken away.  
{5} In response, Plaintiff filed an affidavit which stated her explanations for the apparent discrepancies between the answers she gave in her depositions and interrogatories and the information revealed in her medical and employment records. In her affidavit, Plaintiff explained that any differences between her answers and the information in her medical records and employment history were due to the fact that she interpreted the meaning of the questions more narrowly than FSI had expected. In general, Plaintiff's affidavit provided detailed explanations as to each allegation in FSI's motion. She explained, for instance, that when she was asked about a pain diary, she thought that her simple notes on paper did not qualify as a diary. Another example of the type of explanations Plaintiff submitted was that she interpreted the questions about past pelvic pain to exclude pelvic pain arising from "female problems."  
{6} The district court held a hearing on FSI's motion to dismiss at which both FSI and Plaintiff presented arguments to the court. The district court granted the motion to dismiss, stating:
   I think what there's been here is an intentional pattern of deception with respect to past medical history. I don't think any one item standing alone would do it, but we have item after item after item, and then, in addition to that, there's a ten-page affidavit that gets quite specific as to times [and] dates . . . which explains or tries to explain away all of the previous misrepresentations.  
   I just think that the whole process goes right to the integrity of the function of a trial court. If we can't have honesty in discovery, then we're not going to have an honest result. I'm going to grant the motion, with prejudice[,] for abuse of the discovery process.  

Propriety of Dismissal
Sanctions for False Answers to Interrogatories or Deposition Questions
{7} Rule 1-037(D) NMRA 2000 authorizes the district court to impose sanctions upon a party for failure to attend a deposition or to answer interrogatories. The type of sanctions available to the district court are authorized by Rule 1-037(B)(2). Dismissal is among the sanctions available. See id. This {*643} Court has previously held that false answers to interrogatories were equivalent to, if not worse than, failing to answer at all. See Sandoval v. Martinez, 109 N.M. 5, 8, 780 P.2d 1152, 1155 . As a result, dismissal can be an appropriate sanction for false answers to interrogatories under Rule 1-037(D). See Sandoval, 109 N.M. at 11-12, 780 P.2d at 1158-59.
{8} Although we have held that false answers to interrogatories warrant the sanction of dismissal in appropriate circumstances, this Court has not specifically held that false answers to deposition questions may be subject to sanctions under Rule 1-037(D). See Bustillos v. Construction Contracting, 116 N.M. 673, 676-77, 866 P.2d 401, 404-05  ("We leave to another day the issue of whether [dismissal as a sanction] applies to a false answer to a deposition question."). The premise for allowing the district courts to impose sanctions for false answers during depositions would follow the rationale allowing sanctions for false answers to interrogatories; that is, a false answer in a deposition is akin to a "failure . . . to attend a . . . deposition." Rule 1-037(D); see also Sandoval, 109 N.M. at 8, 780 P.2d at 1155 (a false answer to an interrogatory "is worse than no response"). Both forms of discovery abuse undermine the discovery process and demonstrate either "a willful, intentional and bad faith attempt to conceal evidence or a gross indifference to discovery obligations." Medina v. Foundation Reserve Ins. Co., 117 N.M. 163, 166, 870 P.2d 125, 128 (1994). Thus, for the purpose of sanctions under Rule 1-037(D), we do not see any reason to distinguish false answers to deposition questions from false answers to interrogatories. See Sandoval, 109 N.M. at 9, 780 P.2d at 1156 ("District courts have a duty to enforce compliance with rules of discovery, and they should not shirk from imposition of the sanction of dismissal."). We will not analyze the answers to the deposition questions in this case differently from the answers to the interrogatories.  
   Standard for Dismissal  
{9} Dismissal is an appropriate sanction for false answers during discovery when a party's misrepresentations are made willfully or in bad faith. See Medina, 117 N.M. at 166, 870 P.2d at
128. "A willful violation of [Rule] 1-037 occurs when there is a conscious or intentional failure to comply with the rule's requirements." Id. "When a party has displayed a willful, bad faith approach to discovery, it is not only proper, but imperative, that severe sanctions be imposed to preserve the integrity of the judicial process and the due process rights of the other litigants." United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 241, 629 P.2d 231, 317 (1980).  
{10} We review a district court's dismissal of a plaintiff's case for discovery violations for abuse of discretion. See Medina, 117 N.M. at 166, 870 P.2d at 128; see also United Nuclear Corp., 96 N.M. at 239, 629 P.2d at 315 (reviewing propriety of a default judgment against the defendant for discovery abuse). Dismissal is a severe sanction, but the district court is justified in imposing the sanction and does not abuse its discretion "when a party demonstrates flagrant bad faith and callous disregard for its [discovery] responsibilities." Medina, 117 N.M. at 166, 870 P.2d at 128. Furthermore, despite the severity of dismissal as a sanction, the district court is "not required to impose lesser sanctions before it imposes the sanction of dismissal." Id.

District Court's Application of the Standard in this Case
{11} FSI sought Plaintiff's answers to interrogatories and attendance at depositions on many occasions. Plaintiff continually rebuffed FSI's efforts. FSI then sought the district court's assistance in gaining Plaintiff's participation in the discovery process by filing a motion to compel. The district court granted the motion in part. FSI then sought dismissal after a comparison between Plaintiff's answers to deposition questions and interrogatories and her medical and employment records revealed discrepancies. FSI explained these discrepancies to the district court in its motion to dismiss. Plaintiff attempted to explain her discovery answers in the affidavit she submitted to the court.  
{12} {*644} The district court was not persuaded by the explanations in Plaintiff's affidavit. Plaintiff's explanations did no more than describe her understanding of the questions and present her rationale for the inconsistencies between her answers and the information provided in her medical records. Her misperception of the depth of the questions was inadequate to refute FSI's allegations that she misrepresented her health and employment history.  
{13} The design of the discovery process is to avoid surprise in trial preparation and promote the opposing party's ability to "obtain the evidence necessary to evaluate and resolve [the] dispute." 6 James Wm. Moore, Moore's Federal Practice

Download 2000-NMCA-091.pdf

New Mexico Law