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SANCTIONS: TERMINATING SANCTIONS UPHELD FOR FAILURE TO FOLLOW COURT ORDER EXCLUDING EVIDENCE

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As a stark reminder that trial courts have the power to issue terminating sanctions when attorneys fail to heed a court order, the trial court in Osborne v. Todd Farm Service dismissed the plaintiff’s case, with prejudice, after her counsel repeatedly violated the trial court’s orders excluding evidence. Terminating sanctions are a punishment for grossly improper litigation behavior that ends the offending party's participation in the case, usually consisting of a default or dismissal.

The plaintiff in Osborne, a stable maintenance worker, claimed she was injured after falling 11 feet to the ground while trying to move a hay bale from the top of a stack of hay bales. Prior to trial, the defendants filed several motions in limine. One sought to prohibit the plaintiff from testifying that she could determine the supplier of the hay by looking at the color and texture, on the ground that she failed to timely designate herself as an expert witness. Another sought to prohibit the plaintiff from testifying about out-of-court statements and writings purportedly identifying the origin of product because they were hearsay. The trial court granted both motions in limine.

At trial, the plaintiff’s counsel disregarded the court’s rulings. In his opening statement, he referenced the out-of-court statements and writings identifying the supplier of the hay and represented that the plaintiff could tell where the hay came from by the color and texture. The defendants’ counsel objected during the opening statement and the trial court instructed the jury to disregard the statements.

During the plaintiff’s direct examination, over defense counsel’s objections, her counsel repeatedly asked about the statements the plaintiff overheard regarding the origin of the hay. Each time, the trial court warned the that he was violating the court’s order. The plaintiff’s counsel re-argued the motions in limine twice, asking the court to change its prior ruling, which the court denied. Instead, the plaintiff’s counsel continued to ask the plaintiff questions about the origin of the hay, causing the trial court to excuse the jury and admonish the “flagrant misconduct” in violation of the court’s rulings.

Seizing the opportunity, the defendants’ counsel requested the trial court dismiss the case, with prejudice, as to all defendants. The plaintiff’s counsel asked the trial court to instruct the jury to simply disregard the testimony. The trial court ordered the case dismissed as a terminating sanction. The plaintiff appealed.

The court of appeals affirmed the trial court’s judgment of dismissal, reiterating that a trial court has the inherent authority to control proceedings before it. This authority includes the power to impose a terminating sanction upon a party that willfully violates the trial court’s orders. Here, the record was clear that the plaintiff and her counsel repeatedly and knowingly violated the trial court’s orders excluding evidence about the origin of the hay bale involved in the plaintiff’s injury.