No. 95-474 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

BILLIE SMITH, Personal Representative of 

the Estate of Richard A. Smith, deceased, 

and on behalf of Philana V. Smith and 

Estelle M. Smith, children of the deceased, 

Plaintiff and Appellant, 

,. , . , .-. BUTTE-SILVER BOW COUNTY, a consolidated ,i I *,.- 

government and the STATE OF MONTANA, : .... r: ,.,. J!; !;,4 .<-e-,,> -:,: *>*.,.2:~.,< ,*.,,% * .. '."-g$s$E .~.. . ,. *g-&bidi8i;i';id.if.i ., , 

,"..., Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas M. Malee, Attorney at Law, Billings, 

Montana 

For Respondents: 

John H. Maynard, Marcia Davenport; Browning, 

Kaleczyc, Berry & Hoven, Helena, Montana 

Submitted on Briefs: February 1, 1996 

Decided: May 6, 1996 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court 

The Estate of Richard A. Smith (Estate) appeals from the 

judgment entered by the Second Judicial District Court, Silver Bow 

County, on its order dismissing the Estate's complaint with 

prejudice. We reverse and remand. 

The issue on appeal is whether the District Court abused its 

discretion in dismissing the Estate's complaint with prejudice 

pursuant to Rule 37 (b) (2) (C) , M.R.Civ. P. 

This is the second time that this case has been before us on 

appeal. The facts underlying the Estate's complaint are set forth 

in Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 878 P.2d 

870, and need not be repeated here. In Smith, the primary issues 

on appeal related to prosecutorial immunity and amendment of 

pleadings; we reversed the District Court on the former issue and 

affirmed it on the latter. Smith also presented the issue of 

whether the District Court erred in dismissing the Estate's action 

without prejudice under Rule 37, M.R.Civ.P., for failure to comply 

with its orders compelling discovery and requiring a psychological 

examination of Richard Smith's children. Smith, 878 P.2d at 876. 

We declined to address the propriety of that dismissal due to the 

inadequacy of the record and the court's language indicating that 

it dismissed without prejudice in order to facilitate our review of 

rulings not appealable under Rule 1, M.R.App.P. Smith, 878 P.2d at 

877. We vacated the order of dismissal without precluding the 

availability on remand of further proceedings on that issue. 

Smith, 878 P.2d at 877. 
On remand, Butte-Silver Bow County (County) again moved the 

District Court to dismiss the Estate's complaint based on the 

alleged discovery abuses which were the basis of the earlier 

dismissal. The District Court denied the County's motion on 

February 21, 1995, and, in doing so, rejected the County's reliance 

on discovery abuses alleged to have occurred prior to the appeal. 

The court gave the Estate thirty days from the date of its order 

denying the motion to dismiss "to adequately answer or supplement 

the discovery requestsr1 and required the Estate to ll[plrovide 

complete answers to all unanswered interrogatories and fully 

disclose all experts, their opinions and the basis for those 

opinions in accordance with Rule 26, M.R.Civ.P." The court warned 

that " [ilf this order is not fully complied with, then the court 

will be left with no other alternative but to dismiss this case 

with prejudice or impose other appropriate sanctions." 

On February 24, 1995, the Estate moved for an order of 

clarification, requesting the District Court to specifically list 

"any further evidence" to be provided to the County. Approximately 

ten days later, the Estate provided the County with "Plaintiff's 

Rule 26(b) (4) Disclosure" stating that the opinions of its expert 

witnesses were based on facts and materials set forth in their 

depositions. 

The District Court issued an order of clarification and 

memorandum (hereinafter "clarification order") directing the Estate 

to provide to the County: 

1. The names of individuals who provided care to the 

minor children from January 1, 1989 through June, 1991; 
2. Information about Richard Smith's Social Security 

Benefit Claim for a leg injury; and 

3. Information about [the Estate's1 expert witnesses, 

their opinions and basis for them or in the alternative 

this Court must reopen the depositions of [the Estate's] 

experts to answer questions about the basis of their 

opinions. 

In response to the clarification order, the Estate provided the 

required information regarding the children's caregivers and the 

leg injury claim. With regard to the expert witness information, 

the Estate stated that: 

[the Estatel has previously supplied information about 

it's [sic] expert witnesses to the [County]. This may 

have been overlooked by the court. The information 

previously supplied by [the Estatel complies fully with 

Rule 26, MRCP. Another copy of that information is 

provided to the court herewith. 

In June of 1995, the County moved to dismiss the Estate's 

complaint pursuant to Rule 37, M.R.Civ.P., for alleged discovery 

abuses. The District Court granted the County's motion and 

subsequently entered judgment dismissing the Estate's complaint 

with prejudice. The Estate appeals. 

Did the District Court abuse its discretion in dismissing 

the Estate's complaint with prejudice pursuant to Rule 

37(b) (2) (C), M.R.Civ.P.? 

It is important at the outset to recognize the salutary 

purposes underlying the availability of Rule 37, M.R.Civ.P., 

sanctions for discovery abuses and the respective roles of the 

district courts in imposing--and this Court in reviewing--such 

sanctions. While trial courts traditionally were reluctant to 

impose discovery-related sanctions, concerns relating to crowded 

dockets and the overall responsibility for maintaining fair and 
efficient judicial administration had reversed that trend by the 

1970s. See Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 277- 

78, 627 P.2d 1233, 1235. Indeed, since 1981, it has been this 

Court's position that dilatory abuse of discovery must no longer be 

dealt with leniently and that the transgressors of discovery abuses 

should be punished rather than encouraged repeatedly to cooperate. 

See Owen, 627 P.2d at 1235. "When litigants use willful delay, 

evasive response, and disregard of court discretion as part and 

parcel of their trial strategy, they must suffer the consequences." 

Owen, 627 P.2d at 1236. 

Rule 37, M.R.Civ.P., provides trial courts with a means to 

prevent an excessive back-log of cases. See Dassori v. Roy Stanley 

Chevrolet Co. (1986), 224 Mont. 178, 180, 728 P.2d 430, 431. Moreover, 

[tlhe trial judge is in the best position to know . . . which parties callously disregard the rights of their 

opponents and other litigants seeking their day in 

court[] [andl is also in the best position to determine 

which sanction is the most appropriate. 

Dassori, 728 P.2d at 431. As a result, we generally defer to the 

decision of the trial court regarding Rule 37, M.R.Civ.P., 

sanctions. See Eisenmenger v. Ethicon, Inc. (1994) , 264 Mont. 393, 

402, 871 P.2d 1313, 1319. 

Here, the District Court determined that the Estate failed to 

comply with its post-remand orders requiring disclosure of expert 

opinion information in compliance with Rule 26(b) (4)(A)(i), 

M.R.Civ.P., and dismissed the Estate's complaint with prejudice. 

We review a district court's imposition of sanctions for discovery 
abuses to determine if the court abused its discretion. 

Eisenmenser, 871 P.2d at 1319 (citing First Bank (N.A.) -Billings v. 

Heidema (l986), 219 Mont. 373, 711 P.2d 1384). 

DISCOVERY ABUSE 

Before discussing the propriety of the District Court's 

imposition of sanctions under Rule 37, M.R.Civ.P., it is necessary 

to address the Estate's contention on appeal that no discovery 

abuse exists in this case. The Estate contends that the only 

information not provided to the County was the amount of time one 

of its expert witnesses, Dr. Paul F. Cimmino, spent researching for 

this case. We disagree. 

Rule 26(b) (4) (A) (i), M.R.Civ.P., provides that 

[a1 party may through interrogatories require any other 

party to identify each person whom the other party 

expects to call as an expert witness at trial, to state 

the subject matter on which the expert is expected to 

testify, and to state the substance of the facts and 

opinions to which the expert is expected to testify and 

a summary of the grounds for each opinion. 

(Emphasis added). In its order of dismissal and accompanying 

memorandum, the District Court concluded that "1) [the Estatel did 

not provide the substance of facts which [sic] the experts were 

expected to testify; and 2) [the Estatel omitted a summary of the 

grounds for each opinion" in violation of its order and Rule 

The Montana legislature adopted this rule from Rule 26, 

Fed.R.Civ.P. See Rule 26, M.R.Civ.P., Compiler's Comments. The 

underlying policies of Rule 26 are to eliminate surprise and to 

promote effective cross-examination of expert witnesses. See Smith 
v. Ford Motor Co. (10th Cir. l98O), 626 F.2d 784, 792-93 (citing 28 

U.S.C., Rule 26, Fed.R.Civ.P., Advisory Committee Notes) 

Before an attorney can even hope to deal on crossexamination with an unfavorable expert opinion he must 

have some idea of the bases of that opinion and the data 

relied upon. If the attorney is required to await 

examination at trial to get this information, he often 

will have too little time to recognize and expose 

vulnerable spots in the testimony. 

Smith, 626 F.2d at 794 (citation omitted) 

Review of the Estate's Rule 26 disclosure reflects that the 

Estate identified each person it expects to call as an expert 

witness and stated the general subject matter on which each expert 

is expected to testify as required by Rule 26(b) (4) (A) (i), 

M.R.Civ.P. The District Court did not conclude, and the County 

does not argue, otherwise. 

Regarding the "substance of factsn to which its expert 

witnesses are expected to testify, the Estate provided the 

following statements: 

1. Dr. Ruey-Lin Lin . . . will testify that the decedent 

herein was not a hard-core criminal, had a relatively 

minor history, and would have rehabilitated himself, or 

been rehabilitated, at or near the age of thirty-five. 

2. Thomas Rozza . . . will testify that the Defendant's 

county attorney failed to meet acceptable corrections 

standards in protecting the decedent's life, and that the 

Defendant's jail failed to meet acceptable corrections 

standards in protecting the decedent's life. 

3. Dr. Paul Cimmino . . . will testify that, had the 

decedent lived, any antisocial aspects of his personality 

would have lessened and been brought under control . . . [and] his abuse of drugs and alcohol would have been 

brought under control. He will also testify as to the 

loss suffered by the children upon the death of their 

father. 

4. Dr. John Brower . . . will testify as to the present 
value of the earnings the decedent might have expected, 

had he lived. 

These broad statements indicate the general topics on which the 

Estate's experts are expected to testify. They do not, however, 

provide the substance of facts to which the Estate's expert 

witnesses will testify, as required by Rule 26 (b) (4) (A) (i), 

M.R.Civ.P. 

Concerning the bases of its expert witnesses' opinions, the 

Estate stated in its Rule 26 disclosure that those opinions are 

based upon the "facts and information set forth in [their] 

deposition[s] which [are] in the possession of [the County], and 

upon [their] training and experience. " The Estate also ref erred 

the County generally to the treatises upon which its expert 

witnesses relied. The Estate did not provide any further 

explanation or information concerning the bases or grounds for its 

expert witnesses' opinions. 

These statements by the Estate add nothing to "the substance 

of the facts" and the "summary of the grounds for each opinion" 

which are required to be disclosed by Rule 26(b) (4) (A) (i), 

M.R.Civ.P. Moreover, nothing in Rule 26, M.R.Civ.P., permits a 

party to decline to comply with the Rule and a court order 

requiring compliance therewith on the basis of that party's belief 

or opinion that the opposing party already possesses the required 

information. 

Having submitted its disclosure, the Estate obtained the 

court's clarification order explicitly requiring it to provide its 

experts' opinions and the bases for those opinions. The District 

8 
Court expressly noted therein that " [wl hile [the County] previously 

deposed [the Estate's] experts, [the Estate's] attorney at the 

depositions of certain experts instructed the experts not to answer 

relevant questions about the basis of their opinions." 

The Estate did not provide any additional information relating 

to its expert witnesses in response to the District Court's 

clarification order. Instead, it merely stated that it had 

previously supplied the required information regarding those 

witnesses to the County and that the information supplied "complies 

fully with Rule 26, MRCP[;I1' it referred the court to its "Rule 

26 (b) (4) Disclosure. " 

This final response essentially ignored the clarification 

order which the Estate requested and received, and totally failed 

to comply therewith. In light of the court's clear awareness that 

the expert witness depositions had been taken, and the court's 

clear determination that those depositions had not produced the 

required information about the bases of the experts' opinions, the 

Estate's response appropriately could be characterized--in the 

vernacular--as "in your face." Whatever counsel's intent in 

framing his client's response to a clear court order may have been- 

-whether gamesmanship with the County or disdainful "one-upmanship" 

with the District Court--the Estate's response did not comply with 

the explicit requirements of the court's clarification order. 

We conclude that the Estate's expert-related responses to the 

District Court's initial order on remand satisfied neither the 

"substance of the facts" requirement nor the "summary of the 
grounds for each opinion" requirement of Rule 26 (b) (4) (A) (i) , 

M.R.Civ.P. We also conclude that the Estate's response to the 

District Court's clarification order totally failed to comply with 

the expert witness-related portion of that order. Therefore, we 

hold that the Estate committed discovery abuses after remand. 

REVIEW OF SANCTIONS 

Rule 37 (b) (2) , M.R.Civ. P., provides, in relevant part: 

If a party . . . fails to obey an order to provide or 

permit discovery, . . . the court in which the action is 

pending may make such orders in regard to the failure as 

are just and among others the following: .... 

(C) An order . . . dismissing the action . . . . 

After concluding that the Estate failed to obey its clarification 

order, the District Court dismissed the Estate's complaint with 

prejudice. We review the District Court's dismissal of the 

Estate's complaint pursuant to Rule 37 (b) (2) (C) , M.R.Civ.P., to 

determine if the court abused its discretion. Eisenmenqer, 871 

P.2d at 1319. 

Acknowledging both the discretionary nature of a trial court's 

decisions on sanctions for discovery abuse and the availability of 

the dismissal sanction under Rule 37, M.R.Civ.P., the Estate argues 

that dismissal was an abuse of the District Court's discretion 

under these facts. It relies on the District Court's statement 

accompanying the clarification order that, in the event the Estate 

failed to provide the expert-related information to the County, the 

court would reopen the Estate's expert witness depositions. The 

County, on the other hand, relies on Eisenmenqer, and Landauer v. 

Kehrwald (1987), 225 Mont. 322, 732 P.2d 839, in urging us to 

10 
accord proper deference to the District Court' s dismissal with 

prejudice. The County also contends that the instant case presents 

a more compelling case for the dismissal sanction than Eisenmenqer. 

Eisenmenqer and Landauer clearly stand for the proposition 

that we generally defer to the decision of the district court 

regarding the appropriate sanction for discovery abuses. See 

Eisenmenqer, 871 P.2d at 1319; Landauer, 732 P.2d at 840. Those 

cases, however, are factually distinguishable fromthe present case 

and do not mandate a conclusion that the sanction of dismissal was 

properly applied here. 

In Eisenmenqer, a broken suture following surgery caused the 

plaintiff to have a stroke and suffer other severe complications. 

The plaintiff filed a medical malpractice claim against the doctor 

and hospital and a products liability claim against Ethicon, Inc. 

Eisenmenqer, 871 P.2d at 1315. In 1988, Dr. Olcott, who later 

became Ethicon's expert witness, reviewed the Eisenmenger case and 

generally advised Ethicon's counsel of his opinions regarding the 

doctor and hospital's possible culpability in the case based on 

certain acts and decisions. Eisenmenqer, 871 P.2d at 1319. 

In June of 1990, Ethicon responded to a detailed discovery 

request from the plaintiff. Despite the plaintiff's request that 

Ethicon set forth the factors it contended contributed to the 

broken suture and the plaintiff's resulting stroke, Ethicon failed 

to disclose the opinions provided by Dr. Olcott two years earlier. 

Eisenmenqer, 871 P.2d at 1319. Indeed, Ethicon did not disclose 

Dr. Olcott as a potential expert witness until August of 1991. 
Eisenmenqer, 871 P.2d at 1319. The district court granted summary 

judgment in favor of the doctor and hospital approximately six 

months later. Eisenmenqer, 871 P.2d at 1320-21. 

Ethicon did not make Dr. Olcott available for deposition until 

one month after the district court granted summary judgment in 

favor of the doctor and hospital. Eisenmenqer, 871 P.2d at 1321. 

The plaintiff then deposed Dr. Olcott, and his testimony supported 

a theory that the doctor or the hospital could have caused the 

broken suture. Eisenmenqer, 871 P.2d at 1315. The plaintiff 

subsequently moved the district court for sanctions against Ethicon 

pursuant to Rule 37, M.R.Civ.P., for its failure to disclose this 

relevant information in discovery requests dating back to 1988. 

Eisenmenqer, 871 P.2d at 1315. 

The district court determined that Ethicon made a "knowing 

concealment" of the expert's testimony and stated that, had Dr. 

Olcott's testimony been available, it was "very doubtful" that the 

doctor and hospital's motion for summary judgment would have been 

granted. Eisenmenqer, 871 P.2d at 1315. Concluding that the 

plaintiff had suffered extreme prejudice due to Ethicon's discovery 

abuses, the district court entered a default judgment against 

Ethicon on the issue of liability. Eisenmenqer, 871 P.2d at 1315. 

In reviewing the propriety of the default sanction, we set 

forth at some length the record before us regarding Ethicon's 

failure to timely disclose Dr. Olcott's opinions, update discovery 

responses or make Dr. Olcott available for deposition. On the 

basis of that record, we determined that "severe prejudice had 
already occurred to [the plaintiff], and the [district] court had 

few options for appropriate and meaningful sanctions against 

Ethicon." Eisenmenqer, 871 P.2d at 1321. We also determined that 

the record supported the district court's finding that Ethicon's 

failure to respond to discovery requests was willful and in bad 

faith and caused severe prejudice to the plaintiff on an issue 

central to the case. Eisenmenqer, 871 P.2d at 1321. We held that 

the district court did not abuse its discretion in entering a 

default judgment on the issue of liability against Ethicon. 

Eisenmenqer, 871 P.2d at 1321. 

Thus, in Eisenmenqer, the plaintiff was foreclosed from 

seeking compensation from two potentially responsible parties due 

to Ethicon's "knowing concealment" of Dr. Olcott's opinion. As a 

result of Ethicon's egregious conduct, the plaintiff was severely 

prejudiced. See Eisenmenser, 871 P.2d at 1321. Under such extreme 

circumstances, no other sanction could have remedied the severe 

prejudice suffered by the plaintiff. 

Here, we are not confronted with the extreme and irreparable 

circumstances which existed in Eisenmenqer. Certainly any 

incidental prejudice to the County due to delay and the necessity 

of repeated motions does not rise to the level of extreme prejudice 

suffered by the plaintiff in Eisenmenqer. Moreover, unlike 

Eisenmenqer, sanctions other than dismissal were available in this 

case to remedy the limited prejudice to the County. Indeed, the 

District Court provided for one such sanction when it stated that 

it would reopen the Estate's expert witness depositions as an 
alternative to the Estate providing the ordered expert-related 

information. In addition, upon reopening the depositions, the 

District Court could have required the Estate to pay the expenses 

incurred by the County as a result. See Rule 37(b), M.R.Civ.p. 

Finally, Ethicon's "knowing concealmentt1 in Eisenmenser was 

far more egregious than the Estate's inadequate Rule 26 disclosure 

and response to the District Court's clarification order in this 

case. In Eisenmenqer, Ethicon totally concealed Dr. Olcott's 

opinion (see Eisenmenser, 871 P.2d at 1321) and, as a direct 

result, the plaintiff was foreclosed from pursuing a viable claim 

against the doctor and hospital. Here, the Estate disclosed the 

identity of its expert witnesses and the general topics on which 

they are expected to testify at trial. Thus, although the Estate's 

conduct in this case clearly violated the court's order of 

clarification and is strongly disapproved, it does not rise to the 

level of discovery-related misconduct present in Eisenmenser. 

Since neither the nature or extent of discovery abuse nor the 

resulting prejudice is of the magnitude of that present in 

Eisenmenqer, Eisenmenser does not compel a conclusion that 

imposition of the dismissal sanction was appropriate here. 

In Landauer, the plaintiff filed a claim against the defendant 

to recover lost rental income. The defendant served requests for 

production of the plaintiff's federal and state income tax returns 

for specified years. Landauer, 732 P.2d at 839. When the 

plaintiff did not provide the returns, the defendant filed a motion 

to compel production. The district court ordered the plaintiff to 
produce the returns within twenty days and the plaintiff failed to 

comply. Landauer, 732 P.2d at 840. The defendant again moved the 

court to compel production. The court ordered the plaintiff to 

provide the returns within ten days and warned that failure to 

comply would result in dismissal of his complaint with prejudice. 

Landauer, 732 P.2d at 840. The plaintiff timely produced his 

federal, but not his state, returns and the district court 

dismissed the plaintiff's complaint with prejudice pursuant to Rule 

37(b), M.R.Civ.P. Landauer, 732 P.2d at 840. We determined that, 

under those circumstances, the district court did not abuse its 

discretion in dismissing the plaintiff's complaint. Landauer, 732 

P.2d at 841. 

Similar to the district court in Landauer, the District Court 

in this case warned in its initial post-remand order that if the 

Estate failed to comply, "then the court will be left with no other 

alternative but to dismiss this case with prejudice or impose other 

appropriate sanctions. " However, the Estate then moved the 

District Court to clarify that order and the court issued a 

clarification order wherein it modified its prior warning, at least 

with regard to the expert witness information, by requiring that 

the Estate provide the expert-related information "or in the 

alternative this Court must reopen the depositions of [the 

Estate's] experts to answer questions about the basis of their 

opinions." 

The record before us demonstrates that the Estate provided two 

of the three categories of information set forth in the District 
Court's clarification order; it also provided part of the ordered 

expert witness information. Notwithstanding its specific warning 

of the sanction which would result from the Estate's failure to 

provide the ordered expert-related information, however, the 

District Court dismissed the Estate's complaint with prejudice. 

Thus, in both Landauer and the present case, the parties were 

expressly warned of the consequences for failure to comply with the 

court's discovery-related order. In Landauer, the district court 

imposed the consequence of which it had warned--dismissal with 

prejudice--and we determined that the court had not abused its 

discretion. See Landauer, 732 P.2d at 841. In this case, however, 

the District Court imposed consequences much more severe than those 

of which it had expressly warned. Landauer does not, therefore, 

compel a conclusion that the sanction of dismissal with prejudice 

was appropriate here. 

We reaffirm our policy that, in reviewing the imposition of 

Rule 37 sanctions, we generally must defer to the decision of the 

district court. See Eisenmenser, 871 P.2d at 1319. When parties 

fail to comply with court orders enforcing the rules of discovery, 

they must suffer the consequences. See Owen, 627 P.2d at 1236. 

The extent of the "consequences1' imposed by a district court, 

however, should relate to the extent and nature of the actual 

discovery abuse and the extent of the prejudice to the opposing 

party which results therefrom. Moreover, where a court expressly 

warns of the consequences to follow from a party's failure to 

comply, the court should impose sanctions accordingly. 
Here, the Estate's failure to comply with ordered discovery 

was totally insupportable, but relatively limited, as was the 

prejudice to the County. Thus, the dismissal sanction bears little 

relationship to the nature and extent of the discovery abuse and 

the resulting prejudice in this case. Most importantly, the 

District Court's imposition of the ultimate sanction of dismissal 

was a marked, and significant, departure from the specific 

consequences of which it had elected to warn the Estate. 

Discovery abuse tactics, especially in this era of crowded 

dockets, deprive other litigants of an opportunity to use the 

courts as a serious dispute-settlement mechanism. First Bank 

(N.A.)-Billinas, 711 P.2d at 1386 (quoting G-K Properties v. 

Redevelopment Agency, Etc. (9th Cir. 1978), 577 F.2d 645, 647) . 

Rule 37, M.R.Civ.P., provides a necessary tool for district courts 

to manage crowded dockets. Dismissal of an action with prejudice, 

however, is the "most severe in the spectrum of sanctions provided 

by statute or rule[;] . . . [it1 must be available to the district 

court in appropriate cases . . . ." National Hockey League et al. 

v. Metropolitan Hockey Club, Inc., et al. (1976), 427 U.S. 639, 

643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747, 751 (emphasis added). 

Such a severe sanction is inappropriate where, as here, the court 

has stated in its order that the sanction for noncompliance will be 

something other than dismissal. 

The District Court's frustration with the Estate's attorney is 

evident in its order of dismissal and entirely understandable. 

This case, only one of hundreds on the District Court's docket, has 
consumed a great deal of the court's resources for more than five 

years and the discovery phase apparently remains uncompleted. 

Under the record before us, however, we hold that the District 

Court abused its discretion in dismissing the Estate's complaint 

with prejudice 

Reversed and remanded for further proceedings consistent with 

this opinion 

We concur: A 

- 

Chief Justice 
Justice James C. Nelson, specially concurring. 

I concur with our conclusion that, under the narrow 

circumstances here, imposition of the ultimate sanction of 

dismissal of the Estate's cause of action with prejudice was too 

severe a sanction given the precise nature of the Estate's 

discovery abuses. In my own mind, however, this case presents an 

extremely close call and I sincerely sympathize with the trial 

court and opposing counsel who have had to bear the frustration of 

the Estate's attorney's approach to discovery and the trial court's 

orders--correctly characterized in our decision as "in your face" 

and totally insupportable. 

Moreover, while perhaps implicit in our opinion, reopening the 

Estate's experts' depositions at the Estate's expense is not the 

only remaining sanction available to the District Court under Rule 

37(b) (2), M.R.Civ.P. To the contrary, there are a variety of 

sanctions under the Rule which the trial court might 

discretionarily impose. 

Finally, if, after all this, counsel for the Estate continues 

to persist in his intransigent approach, I would not preclude the 

imposition of the sanction of dismissal with prejudice. Further