COURT OF APPEALS DECISION DATED AND RELEASED September 7, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1562
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
RICHARD A. LARSON and
BARBARA LARSON, his
wife,
Plaintiffs-Appellants,
v.
WARREN E. GALL, M.D.,
RICHARD N. SMITH,
M.D.,
and GUNDERSEN CLINIC,
LTD.,
Defendants-Respondents.
APPEAL from a judgment
and an order of the circuit court for La Crosse County: DENNIS G. MONTABON, Judge. Affirmed.
Before Eich, C.J.,
Sundby and Vergeront, JJ.
PER CURIAM. Richard A. Larson and Barbara Larson appeal
from a judgment dismissing their medical malpractice complaint against
defendant physicians Warren E. Gall and Richard N. Smith, and Gundersen Clinic,
Ltd., and from an order denying their motion for reconsideration. The issue is whether the trial court
properly dismissed the complaint after the plaintiffs failed to name an expert
witness by the date set in the scheduling order. We conclude it did. We
affirm.
The complaint alleged
that defendants were negligent in their treatment of Richard Larson. The plaintiffs are married. The scheduling order required plaintiffs to
name their expert witnesses 120 days before the pretrial conference, that is,
by March 28, 1994. On March 29, 1994,
defendants moved to dismiss on the ground that plaintiffs had failed to name an
expert witness. On April 5, 1994,
plaintiffs filed a "Response to Motion of the Defendants" which
sought a ninety-day extension. The
trial court heard argument and dismissed the complaint.
The standards and
procedures governing pretrial calendar orders appear in § 802.10, Stats.
Schneller v. St. Mary's Hosp., 162 Wis.2d 296, 307, 470
N.W.2d 873, 877 (1991). It is within
the trial court's discretion to amend a calendar order if it finds cause to do
so. Id. at 308, 470
N.W.2d at 877. If the court declines to
amend the order and then dismisses the action as a sanction, we must sustain
the dismissal if the trial court had a reasonable basis for determining that
the noncomplying party's conduct was egregious and there was no clear and
justifiable excuse for the noncompliance.
Id. at 310-311, 470 N.W.2d at 878.
The Larsons argue that
the court made no finding of egregiousness in this case. However, an express finding is not necessary
if "the court's discussion of the case makes it clear that its decision
... was motivated by its view that the violation of the scheduling order was
egregious." Id. at
311, 470 N.W.2d at 878-79. The Larsons
argue that their conduct was not egregious because a deposition of a possible
expert was scheduled to occur three weeks after the time for naming experts had
expired. They assert that there was
evidence from earlier statements that this expert would support their complaint. However, they do not offer a convincing
explanation of why this deposition could not have been arranged earlier.
The trial court stated:
"The court finds that the trial order has not been complied with; that
there is no excusable neglect for failure to do so. Basically no effort was made to contact an expert and even see[,]
assuming the most favorable facts[,] if there was a case." We conclude that it is sufficiently clear
from the court's discussion and the record that the court impliedly found the
plaintiffs' conduct egregious, and that such a finding was reasonable.
The Larsons argue that
one of their claims should not have been dismissed because no expert was
required. They describe this as a claim
of "lack of informed consent."
The claim, as described by the Larsons, is that defendants "did not
give [Larson] sufficient information so as to enable him to give an informed
consent to the option of no treatment."
We reject the argument. The
defendants offered no treatment for Larson to consent to, and therefore this
claim is more properly characterized as one for negligence in failing to
diagnose or recommend treatment.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.