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Car accident victim’s defiant discovery violations justified dismissal of No Fault lawsuit

February 24, 2017 by Steven M. Gursten

Lesson for auto accident attorneys after case of defiant Detroit auto accident victim is dismissed: Plaintiff had previously been ordered to attend insurance-company IMEs and deleted Facebook material after being ordered not to


You may not want to go to a compulsory insurance medical examination. You may regret posting things on Facebook or other social media and want to delete it after a lawsuit has been filed on your behalf because it looks bad for you.

But Michigan car accident victims better be ready to play nice … or they will pay a heavy price.

That’s exactly what happened to one Detroit auto accident victim who dug her heels in and refused to do what the Wayne County judge ordered her – despite multiple orders, warnings and second chances – that her No Fault lawsuit could get thrown out of court.

This is also the important takeaway for all auto accident attorneys after the Michigan Court of Appeals’  ruling that a car accident victim who – for whatever strange, self-destructive reason – decides to engage in “repeated and flagrant defiance” of a judge’s discovery orders will have their case dismissed.

In Gee v. Citizens Insurance Company of America, the court said a Wayne County trial judge did the right thing in dismissing the No Fault “first-party” lawsuit of a car accident victim who:

  • “[D]emonstrated very minimal compliance with attending scheduled IMEs,” necessitating that she “be ordered by the trial court twice to attend these IMEs.”
  • “[D]eleted … sought-after material” “from her Facebook page” “in deliberate defiance of the trial court’s orders” “forbidd[ing]” the deletion of such material.

Acknowledging that “dismissal of an action is a harsh consequence” for discovery violations, the appellate judges explained why it made sense with this motor vehicle accident victim who was suing for No Fault insurance benefits  in Gee:

“Under the circumstances of this case, we are convinced that the trial court’s decision to dismiss plaintiff’s lawsuit was supported by the record, and a lesser sanction would not have better served the interests of justice following plaintiff’s repeated and flagrant defiance of the trial court’s authority … Viewed against the backdrop of repeated discovery violations by plaintiff that caused unnecessary delay in these proceedings and great expense to defendant, the trial court’s decision to dismiss plaintiff’s lawsuit fell within the range of principled outcomes and was not an abuse of discretion.”

Resistance to IMEs

The Court of Appeals agreed that the “record” supported the trial court’s conclusion that:

The automobile accident victim “‘repeatedly refused to appear’ for scheduled independent medical examinations (IMEs), some of which were court-ordered …”

Facebook deletions to ‘evade discovery’

Again, the Court of Appeals agreed with the trial court’s conclusion that the motor vehicle accident victim:

“[D]eleted information from her Facebook account, and … did so in an intentional and deliberate manner to evade discovery.”

The appellate judges found the details of Facebook situation particularly significant:

“[A] close review of the record confirms that plaintiff, although (1) ordered on June 2, 2015 to provide information regarding her Facebook account to defendant, and (2) forbidden by the trial court’s December 18, 2014 protective order from deleting any material from her Facebook page, deleted material in deliberate defiance of the trial court’s orders … [D]efendant produced evidence … showing the difference between plaintiff’s Facebook page on June 25, 2015 and June 26, 2015, confirming that significant deletions had taken place on plaintiff’s Facebook page.”

Warnings and second chances disregarded

Having her lawsuit for unpaid, overdue No Fault PIP benefits dismissed was particularly “reasonable,” the Court of Appeals ruled, because the auto accident victim had plenty of opportunity to comply and do the right thing:

“[T]he trial court gave plaintiff several opportunities to correct her behavior and provide the requested information from Facebook before ultimately dismissing the case. Plaintiff was also warned on more than one occasion that the trial court would dismiss her lawsuit if she did not comply with discovery. Put simply, plaintiff had many opportunities to rectify the issue of not providing requested discovery, and she failed to do so.”

For Michigan auto accident attorneys who subscribe and read my blog, we can all relate with the fact pattern here because we’ve all been there at one time or another. Every attorney who practices personal injury law has had an uncontrollable client at some point in their career who is refusing to comply with insurance company discovery demands.  My own practice involves quite a bit of traumatic brain injury and depression. People with clear frontal lobe damage and disinhibition or who suffer from major depression will be hard to control at times. But the lesson here is clear – play nice with all reasonable defense and insurance company legal discovery requests. When there is disagreement, it must be properly documented to protect the record. Consider filing motions for protective orders with the court if you feel the defense discovery requests are unreasonable or unduly burdensome. But your client doesn’t get to decide what he or she will or will not comply with during legal discovery of any personal injury lawsuit.

The alternative is risking dismissal with prejudice of the case.

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