Judge Gary Sharpe
Toborg alleged her husband’s death stemmed from careless and negligent treatment by a Veterans Affairs medical center. Toborg never responded to the government’s repeated discovery demands, nor did she file her expert disclosure. A May 30 response by Toborg’s counsel to the government’s May 4 summary judgment motion averred fulfillment of discovery obligations since May 4. The court granted the government judgment only to the extent it sought to sanction discovery noncompliance. It noted that “diligence” on the part of Toborg’s counsel was lacking. Despite four discovery requests, neither the government nor the court received any communication from Toborg’s counsel until May 4, the date the government moved for summary judgment. Counsel’s affidavit was silent as to steps taken to comply with the discovery schedule. Thus Toborg’s counsel was not entitled to a modification of the discovery schedule, and he alone should reimburse the government for expenses it incurred as a result of his conduct. Noting that it was counsel, and not Toborg, who disregarded the discovery orders, the court determined that Toborg would suffer the consequences of her attorney’s shortcomings if her complaint was dismissed.
