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E-Alert Case Updates

Trial Court Sanctions for Discovery Violation Deemed Too Severe and Abuse of Discretion

John Roe v. Jane Doe
No. 12-CV-970 (D.C. Court of Appeals, August 8, 2013)

by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (

In this recently issued decision from the Court of Appeals for the District of Columbia, the Court vacated the jury’s liability finding and remanded the case for a new trial after holding that discovery sanctions put in place by the trial court judge were overly harsh and amounted to an abuse of discretion.

In 2011, the Plaintiff Jane Doe filed suit in the D.C. Superior Court against John Roe alleging that he transmitted herpes to her during their relationship in 2010. (The parties’ names were kept anonymous due to the sensitive topic and medical information involved). The Plaintiff claimed that prior to engaging in a sexual relationship with the Defendant she did not have herpes, but that in late June 2010 she tested positive for the disease. The Plaintiff sued the Defendant on a variety of theories including negligent transmission of herpes, invasion of privacy, intentional infliction of emotional distress, and fraudulent misrepresentation.

During discovery, the Defendant, who was pro se at the time, was directed by the Court to undergo and provide results for testing for Sexually Transmitted Diseases ("STD"s) by a date certain. The Defendant was late in providing any STD test results; and moreover, only provided test results for Chlamydia and Gonorrhea. The Defendant was ordered to provide test results for herpes and show cause as to why he did not comply properly with the Court's prior Order. The Defendant alleged that he was unaware that the general STD test results would not include herpes. Plaintiff moved for sanctions, and the trial Court granted the motion, finding that the Order was clear about the type of test to which the Defendant needed to submit.

The trial court’s sanction precluded Defendant from offering evidence or arguing to the jury that he did not have herpes during his relationship with the Plaintiff. In fact, the court directed the jury that the question of whether Defendant had herpes in 2009 and 2010 was not an issue at trial and it should be considered true. At the conclusion of trial, the jury found for Plaintiff on the negligent transmission claim, and for Defendant on the remaining counts. The Defendant appealed the ruling arguing that the discovery sanction was too severe for the violation and essentially amounted to a default judgment against him.

The Court of Appeals noted that it is rare to overturn a trial court's ruling on discovery sanctions, and that they will “disturb a discovery sanction on appeal only if the trial judge has abused his or her discretion by imposing ‘a penalty too strict or unnecessary under the circumstances.’” Roe, at *6 (quoting Nolan v. Nolan, 568 A.2d 479, 487 (D.C. 1990)). The Court of Appeals then determined that the Superior Court judge had abused his discretion with this discovery sanction.

The Court noted that its prior precedent holds that “a trial court may impose an “extreme” sanction “only upon a showing of severe circumstances.”” Smith v. Fairfax Village Condo. VIII Bd. of Directors, 775 A.2d 1085, 1091 (D.C. 2001). In evaluating whether severe circumstances exist, the willfulness of the violation and prejudice to the other side are key elements.

The Court disagreed with the Defendant that the sanction amounted to a default, but still found that preventing Defendant from claiming he did not have herpes was an extreme sanction. The Court held that the discovery violation did not appear willful on the part of the Defendant, and moreover, that Defendant’s delay in submitting to the proper test (which confirmed he did have herpes) did not materially affect Plaintiff as the entire premise of her case was that the test would have a positive result. Indeed, the Court of Appeals noted that if the test result were otherwise, Plaintiff’s case would have been defeated. As such the matter was remanded and a new trial ordered.