This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Cassandra Crawford,



Mary Hall Catholic Charities,


Filed June 23, 1998


Klaphake, Judge

Ramsey County District Court

File No. C9-96-6292

Jesse Gant III, 500 Flour Exchange Bldg., 310 Fourth Ave. S., Minneapolis, MN 55415 (for appellant)

Daniel R. Wachtler, Neal T. Buethe, Briggs and Morgan, P.A., W-2200 First National Bank Bldg., St. Paul, MN 55101 (for respondent)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Norton, Judge.



Cassandra Crawford appeals from a judgment dismissing her negligence complaint against respondent Mary Hall Catholic Charities (Catholic Charities) under Minn. R. Civ. P. 37.02(b)(3), for failure to complete an independent medical examination (IME) as ordered. She also appeals a separate judgment assessing $2,500 in costs and fees against her attorney, Jesse Gant, under Minn. R. Civ. P. 37.01(d)(2). Because the district court did not abuse its discretion in ordering either of these sanctions, we affirm.


In January 1997, Crawford was first ordered to participate in a psychiatric IME, after three scheduled IME's were cancelled due to her failure to appear for her deposition. When she arrived at Dr. Terry Zuehlke's office for her IME on March 20, she announced that she could not stay for the entire day and left at 4:00 p.m., despite Zuehlke informing her that the IME was not complete. Catholic Charities thereafter made several attempts to schedule another office visit for Crawford, but she refused and insisted that Zuehlke had told her the exam was complete.

In June 1997, Catholic Charities moved to dismiss Crawford's complaint as a sanction for her violation of the court's January 1997 order requiring her to attend her IME; in the alternative, Catholic Charities requested that Crawford be ordered to complete her IME on a date certain. The district court rejected Crawford's unsupported claim that Catholic Charities was "not pleased with [the] results" of her first IME and merely wanted Zuehlke to repeat the exam so that he could obtain additional "disparaging or detrimental evidence against her." The court concluded that Crawford was attempting to delay the ordinary course of proceedings, ordered her to return to Zuehlke for completion of her IME at a time and date to be set by Catholic Charities, sanctioned her and Gant $500, and established a procedure for Catholic Charities to seek additional relief if she failed to comply.

When Crawford appeared at Zuehlke's office on June 20, she was unresponsive, hostile, and more concerned with getting Zuehlke to admit that he had told her the IME was complete at the first visit on March 20.[1] Zuehlke called the session off because he concluded Crawford would not provide any valid information or allow him to complete the IME. The district court thereafter granted Catholic Charities' renewed motion to dismiss, concluding that Crawford's conduct and her refusal to answer Zuehlke's questions demonstrated an intentional, willful disregard of its order to complete the IME, specifically rejecting the option of issuing a third order to compel because it "would be a futile exercise."


A district court is vested with broad authority to order sanctions under Minn. R. Civ. P. 37. This court will not interfere with a district court's exercise of discretion unless

that discretion is clearly abused or exercised in an arbitrary or capricious manner. In re Welfare of R.L.K., 269 N.W.2d 367, 371 (Minn. 1978); State v. Ri-Mel, Inc., 417 N.W.2d 102, 108-09 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988).


Minn. R. Civ. P. 37.02(b)(3) permits a court to issue an order "striking pleadings * * *, staying further proceedings * * * dismissing the action * * *, or rendering a judgment by default" if a party disobeys an order to provide or permit discovery. The more severe sanctions, such as dismissal, may be imposed when a party's disobedience is willful and prejudicial.[2] See Ri-Mel, 417 N.W.2d at 108-09 ("[a] party who willfully and without justification or excuse fails to comply with discovery orders * * * and continues to refuse to cooperate with the court forfeits the right to a trial on the merits") (citation omitted); David F. Herr & Roger S. Haydock, Minnesota Practice § 37.9 at 198 (1985).

When viewed in the context of her failure to appear for three scheduled IME's, her failure to complete one court-ordered IME, a monetary sanction assessed against her and Gant, and a warning from the district court that her failure to assist in the completion of the IME for a second time would result in appropriate sanctions, Crawford's conduct was deliberate and willful, and she was on notice that dismissal was possible. Under these circumstances, the district court did not abuse its discretion in dismissing Crawford's complaint under rule 37.02. See, e.g., Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976) (dismissal proper where plaintiff failed to obey discovery orders compelling answer to defendant's interrogatories and to submit to deposition); O'Neil v. Corrick, 307 Minn. 497, 497-98, 239 N.W.2d 230, 230 (1976) (default judgment proper where plaintiff failed to comply with order to provide full and complete answers to interrogatories); Williams v. Grand Lodge of Freemasonry, 355 N.W.2d 477, 480 (Minn. App. 1984) (dismissal of complaint warranted where plaintiff repeatedly refused to attend deposition and facts demonstrated plaintiff's awareness that failure to cooperate in discovery could result in dismissal), review denied (Minn. Dec. 20, 1984).


Crawford appeals from a $2,500 sanction entered in January 1997 against Gant, her attorney. While a client does not have standing to appeal an award assessed against an attorney, in the interests of efficiency, we will construe this as a joint appeal by Crawford and Gant. See Radloff v. First American Bank, 470 N.W.2d 154, 156 (Minn. App. 1991) (court allowed attorney's appeal to be joined with client's appeal "to move this protracted litigation along"), review denied (Minn. July 24, 1991).

The district court ordered Gant to pay a $2,500 sanction for a series of failed discovery motions that he brought between October 1996 and December 1996, which the court characterized as "frivolous." This amount was well below the over $5,000 in fees and costs that Catholic Charities claimed by affidavit. After reviewing the record in this case, we conclude that the district court's sanction was proper under Minn. R. Civ. P. 37.01(d)(2) (party or attorney filing unsuccessful motion to compel discovery "shall" pay opposing party's reasonable expenses, including attorney fees "unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust").

We therefore affirm the judgment dismissing Crawford's complaint and the judgment awarding Catholic Charities $2,500 in costs and fees against Gant.


[1] Crawford also revealed to Zuehlke that she had been tape recording the session. A recording restriction had been placed on the IME not by any court order, but by Catholic Charities in a February 1997 letter to Gant scheduling the March 20 IME session. It is unclear whether one party may place such a restriction on an IME. See Minn. R. Civ. P. 35.01 (court order for examination should specify date, location, conditions, and scope of examination). Although Crawford's failure to object to this restriction may be viewed as acquiescence, we prefer to view Crawford's secret taping as evidence of her lack of good judgment, not as a willful violation of any court-ordered restriction.

[2] Crawford does not challenge Catholic Charities' claim that the IME was critical to analyze the existence and causes of her claimed damages for emotional distress. We therefore assume that any failure by Crawford to complete her IME was prejudicial to Catholic Charities.