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Click here for the full text of this decision FACTS:Stacy Thompson and Sean Denzil Thompson filed a medical malpractice suit against Drs. James J. Woodruff, Duane L. Larson and Scott Kacy on May 10, 2002. On June 12, 2003, the day before the scheduled hearing on Woodruff’s motion for summary judgment, the Thompsons filed a motion for continuance based upon a life-threatening illness suffered by their attorney of record. The motion alleged that their attorney’s extended hospitalization resulted in her absence from her practice and the loss of most of her support staff. The motion for summary judgment was not heard on the scheduled date, and the Thompsons filed their response to the motion for summary judgment three months later. The Thompsons submitted the affidavit of their expert, Gerald L. Bullock, in a supplemental response filed the day after they filed their response to the motion for summary judgment. Woodruff objected to the untimely submission. The trial court denied the motion for summary judgment without ruling on Woodruff’s objection. Larson filed a motion for summary judgment on Nov. 10, 2003. The Thompsons filed a motion for leave to file a late response to Larson’s motion for summary judgment. The Thompsons’ motion alleged their attorney’s health problems forced the attorney into bankruptcy, that the bankruptcy court had not acted on her motions to release collateral and that she could not obtain the expert’s report until the funds required to obtain the report were released by the bankruptcy court. The Thompsons submitted an unverified report by Bullock. Larson objected to the form of the Thompsons’ summary judgment evidence, but the trial court denied the motion for summary judgment without ruling on Larson’s objection. On April 21, 2004, an agreed scheduling order established a March 1, 2005, discovery request deadline and a trial setting for the following April. On Nov. 17, 2004, Larson filed a motion to compel answers to interrogatories and requests for production. The parties agreed to supplement discovery and reset the hearing on the motion to compel, but the Thompsons failed to comply with the agreement. Finding a pattern of falsely promising to supplement the responses to Larson’s written discovery, the trial court overruled the Thompsons’ objections to Larson’s interrogatories and requests for production, ordered the Thompsons to respond to the interrogatories and to produce the requested records within 14 days, and ordered the Thompsons and their attorney to pay $2,500 as attorneys’ fees. Larson filed a motion for summary judgment based on his limitations defense; the trial court denied the motion. A few days before the April 2005 trial setting, Larson had heart surgery, and the trial had to be reset. In June 2005, the trial court granted Larson’s request for a preferential setting and placed the case third on the September 2005 trial docket. On July 21, 2005, Larson filed a motion to compel answers to requests for admissions and for sanctions and noticed a hearing on the motion for Aug. 31, 2005. According to the motion, Larson served requests for admission on the Thompsons on June 6, 2005, and the Thompsons filed their response on July 11, 2005, a date Larson claimed to be five days late. The Thompsons argued that the operation of rules governing notice by mail and weekend deadlines made their response timely. On Aug. 15, 2005, Larson filed a motion to strike Bullock as an expert and moved for a dismissal with prejudice. Larson’s motion to strike alleged Bullock’s deposition had been noticed for Feb. 1, 2005, that neither Bullock nor the plaintiffs’ attorney appeared for the deposition and that Kacy obtained a certificate of non-appearance. On Feb. 16, 2005, the deposition was again noticed for March 2; on March 1, 2005, the Thompsons’ attorney called to say that she had been subpoenaed to testify at trial on March 2. The subpoena in question had been served on the Thompsons’ attorney on March 1. Attorneys for Larson and Kacy were present for the deposition and obtained another certificate of non-appearance. Another notice was issued on March 15, 2005, for a March 24, 2005, deposition, but Larson’s attorney cancelled the deposition at the request of the Thompsons’ attorney. On July 1, 2005, Larson noticed the deposition for July 13, 2005. For reasons not established in the record, the deposition did not occur. In a notice dated Aug. 12, 2005, Larson added his motion to strike to the matters being heard on Aug. 31, 2005. On Aug. 18, 2005, Kacy filed a motion for summary judgment based upon deemed admissions and a motion to strike Bullock as an expert and to dismiss the Thompsons’ claims with prejudice. According to Kacy’s motion for summary judgment, the Thompsons failed to respond to requests for admissions served June 20, 2005. Kacy’s motion to strike relied upon the same events as those described in Larson’s motion to strike. The Thompsons’ response claimed that the plaintiffs’ attorney had been working with a reduced staff and failed to notice that Larson and Kacy had requested admissions. The Thompsons responded to Kacy’s request for admissions on Sept. 14, 2005. On Aug. 21, 2005, Woodruff scheduled Bullock’s deposition for Aug. 22, 2005. On Sept. 1, 2005, Woodruff filed a motion to strike Bullock as the Thompsons’ expert and to dismiss the case with prejudice. The trial court conducted a hearing on Aug. 31, 2005. The Thompsons’ attorney failed to appear. The trial court noted that the Thompsons’ attorney had to attend a proceeding in a court in another county, that the case with the conflicting setting had been continued just that morning and that the Thompsons’ attorney could not get to Jefferson County for the scheduled hearing. Taking the case on submission without a hearing, the trial court granted Larson’s motion and in a single order prohibited Bullock from providing testimony and dismissed with prejudice all claims against Larson. The Thompsons filed a motion for reconsideration on Sept. 8, 2005. The motion alleged that their attorney traveled to Austin on Aug. 19, 2005, and was in trial in Austin from Aug. 22, 2005, through Aug. 25, 2005. The motion also alleged that their attorney was required to appear in court in Galveston beginning Aug. 29, 2005, that she notified opposing counsel of the conflict by telephonic document transmission, and that she called the court on Aug. 31, 2005, to discover the hearing had proceeded without her. The motion alleged that the Thompsons’ attorney had been unable to pay past fees owed to Bullock but that she was in the process of obtaining a substitute attorney to “fund Bullock’s employment.” The Thompsons requested a 90-day continuance. The trial court heard Kacy’s and Woodruff’s motions on Sept. 14, 2005, along with the Thompsons’ motion to reconsider Larson’s motions. Stacy Thompson appeared at the hearing, but her attorney arrived late. The Thompsons also asked to substitute counsel. The Thompsons’ attorney informed the trial court that she had been trying to secure another attorney to pay Bullock but that the defendants set the deposition without calling her ahead of time about the date. On the day of the hearing, the trial court granted the Thompsons’ motion to substitute counsel of record but continued previous counsel as “designated as lead counsel for trial.” The following day, the trial court granted Kacy’s and Woodruff’s motions, prohibited Bullock from providing testimony in the case and dismissed the Thompsons’ claims with prejudice. The trial court also granted Kacy’s motion for summary judgment. Later, the trial court signed an order dismissing the case for want of prosecution. HOLDING:Reversed and remanded. The Thompsons argued that the trial court erred in striking Bullock as an expert witness and dismissing the Thompsons’ claims. The dismissal of the Thompsons’ claims against the three doctors occurred as the direct result of discovery abuse, the court stated. Discovery sanctions require the application of the following two-part test: 1. a direct relationship must exist between the offensive conduct and the sanction imposed; and 2. just sanctions must not be excessive. There was no dispute, the court stated, that the Thompsons’ failure to timely respond to requests for admissions and to produce their expert for deposition was entirely attributable to their attorney. Although the failure to answer Kacy’s and Larson’s requests for admissions, the court stated, appeared to be nothing more than an inadvertent oversight, the trial court could have found some of the attorney’s conduct surrounding the taking of Bullock’s deposition to be an intentional avoidance of the defendants’ right to conduct discovery. For instance, the court stated, the Thompsons’ counsel admitted that she did not produce Bullock for deposition, because she personally lacked the funds to hire him. Rather than admit that she lacked the financial resources to pursue the suit on behalf of her clients, the attorney contacted opposing counsel shortly before the deposition was to occur and presented a scheduling conflict as an excuse for non-appearance. These unfortunate circumstances, the court stated, reflected on the competence of the Thompsons’ attorney but did not indicate that the Thompsons’ claims lacked merit. Even when an attorney exhibits callous disregard for the responsibilities of discovery, the court stated, lesser sanctions must first be tested to determine whether they are adequate to secure compliance, deterrence and punishment of the offender. In this case, the court stated, the trial court punished the Thompsons for the conduct of their attorney without first imposing lesser sanctions. Thus, the trial court abused its discretion in striking the Thompsons’ expert witness and in dismissing their claims with prejudice. In addition, the court stated, the record did not support a finding that the Thompsons or their attorney consciously failed to respond to Kacy’s request for admissions. Accordingly, the trial court erred in refusing to allow the Thompsons to withdraw the deemed admissions and in granting summary judgment based solely upon the deemed admissions, and in striking the Thompsons’ expert witness and dismissing all of the Thompsons’ claims with prejudice. OPINION:McKeithen, J.; McKeithen, C.J., and Gaultney and Kreger, JJ.

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