Mills v. Davis, 211 W. Va. 569

Summary

The Supreme Court of Appeals of West Virginia held that dismissing the plaintiffs' tort action with prejudice was an unduly harsh sanction for a single failure to attend an independent medical examination. The court emphasized that dismissal under Rule 37 generally requires a prior order compelling discovery and must be proportionate to the misconduct. The judgment was reversed, and the action was reinstated and remanded for consideration of appropriate sanctions.

Holdings

1. Dismissal with prejudice was an excessively harsh and disproportionate sanction under the circumstances, where the failure was isolated, mitigating circumstances existed, and the record did not show a pattern of wrongdoing or flagrant bad faith.
2. In the absence of an order compelling discovery granted pursuant to a party's motion, it is an abuse of discretion to dismiss an action with prejudice for a single or isolated failure to comply with a discovery request.

Questions Presented

1. Whether the circuit court abused its discretion by dismissing the action with prejudice as a sanction for a single failure to attend an independent medical examination.
2. Whether dismissal under West Virginia Rule of Civil Procedure 37(b) was permissible absent a prior motion to compel and order specifically requiring the discovery.

Disposition

reversed_and_remanded