SCOVT affirms dismissal for lack of subject matter jurisdiction of a superior court complaint challenging PUC denial of request to submit interrogatories to commissioners concerning their deliberations, holding 3 V.S.A. § 809b allows review when an agency compels discovery – not when the agency denies discovery.

 Administrative Appeals. Discovery. Jurisdiction

1.      Otter Creek Solar LLC v. Vermont Public Utility Commission, 2026 VT 15 [May 8, 2026]

SCOVT reverses imposition of a monetary discovery sanction for lying and obstructing the discovery process where the sanctioned party was in compliance with order compelling discovery.

Sidmond C. Williams & Barbara B. Williams, Co-Trustees v. Town of North Hero, 2018 VT 114 [filed 10/19/2018]

EATON, J. The Town of North Hero appeals the Property Valuation and Review Division hearing officer’s decision to impose a $2000 discovery sanction against the Town in a property-tax-reappraisal appeal brought by the Williams Living Trust. The hearing officer imposed the sanction as a result of a claimed discovery violation by the Town concerning disclosure of an electronic Excel spreadsheet file requested by the Trust. We reverse

After repeatedly being told a file did not exist in the requested format, the Trust filed motion to compel and obtained an ordering requiring the Town to make one last effort to obtain a copy of the file in the requested format . In compliance with the hearing officer’s order, the produced a copy of the Excel spreadsheet file in the format requested to the Trust. The Trust filed a motion describing the Town’s conduct concerning the file request as “blatant misconduct during discovery” and seeking monetary sanctions for the Town’s failure to produce the file earlier.

The hearing officer imposed a monetary sanction against the Town of $2000 for false statements made by Town officials and the “expenses, effort, and time” the Trust spent as a result of the Town’s failure to produce the file until ordered to do so.

This is not a case where a party was in violation of a discovery order. If the hearing officer would lack authority to impose monetary sanctions under Rule 37 of the more formal discovery process of the civil rules, it cannot be said that the authority to do so here. The rule does not permit sanctions when a party has complied with an order compelling discovery. Where the Town had fully complied with the order compelling discovery, the imposition of a monetary sanction against the Town was an abuse of discretion.

Because of our disposition of this case, we need not consider the accuracy of the hearing officer’s findings characterizing the Town’s statements concerning the existence of the file as falsehoods.

Dismissal as discovery sanction affirmed.

Synecology Partners, L3C v. Business RunTime, Inc., 2016 VT 29 ( March 4, 2016)

EATON, J.. In this dispute between two computer software companies, SynEcology Partners, L3C challenges the trial court's order dismissing its complaint against Business RunTime, Inc. stemming from its failure to comply with Business RunTime's discovery requests. For the reasons stated herein, we affirm.

We have held that "where the ultimate sanction of dismissal is invoked it is necessary that the trial court indicate by findings of fact that there has been bad faith or deliberate and willful disregard for the court's orders, and further, that the party seeking the sanction has been prejudiced thereby." Med. Ctr. Hosp. of Vt., Inc., 136 Vt. at 519, 394 A.2d at 1135. "The imposition of the dismissal sanction cannot be imposed merely as punishment for failure to comply with the court's order." Id. Rather, the party's failure must evidence "flagrant bad faith" and "callous disregard of responsibilities counsel owe to the court and to their opponents." Id. at 520, 394 A.2d at 1135

SynEcology's contention that the circumstances called for a less drastic sanction than dismissal is incorrect because the trial court's order includes findings that describe a pattern of conduct that satisfies the standard articulated in Med. Ctr. Hosp. of Vt., Inc., and therefore warrants dismissal. The trial court reviewed the thirty-four month long discovery process, which included multiple requests for supplemental production by Business RunTime and two motions to compel. In drawing the conclusion that SynEcology acted in bad faith, the trial court specifically noted SynEcology's repeated insistence that it had produced all emails from the Comcast account, which it later retracted, without explanation, when that insistence was shown to be false. With regard to its finding that SynEcology acted with deliberate and willful disregard for the court's orders, the trial court noted SynEcology's failure to produce a privilege log, despite promising to do so on at least three occasions and being compelled to do so by a court order. Further, the trial court found Business RunTime was prejudiced by this behavior because: (1) the case was delayed for more than two years; (2) it was required to engage in unneeded motion practice to obtain materials it was properly entitled to; and (3) it suffered increased attorneys' fees. Considering this, combined with SynEcology's repeated failures to comply with the production requests, including its failure to produce a privilege log, its numerous unmet promises to do so, and the production of additional emails without explanation, the trial court properly concluded that SynEcology "purposefully and knowingly, and in bad faith, failed to provide accurate responses to the document requests

We disagree with SynEcology's claim that the dismissal of the action without a hearing on the motion for contempt was error.As reflected by the record, neither party requested a hearing with respect to the motion for contempt pursuant to Rule 78(b)(2).the trial court informed Synecology that before ruling upon the contempt motion, it would allow time for substitute counsel and supplemental pleading. This is exactly what the trial court did. Synecology's new counsel filed the supplemental pleading, but did not request a hearing on the motion. Rule 78(b)(2) authorizes a court to dispose of a motion without argument, and the decision to do so is within the discretion of the court. Bandler v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115, ¶ 11, ___ Vt. ___, ___ A.3d ___

Discovery. Experts. SCOVT holds general expert disclosure insufficient to reveal “substance” of opinion, by not answering detailed time, place and manner follow-up questions.

Stella v. Spaulding, 2013 VT 8 (Skoglund, J.)  (Robinson, J., joined by Dooley J., dissenting.)

In this medical malpractice action, plaintiff appeals the court’s entry of judgment in defendants’ favor following the court’s discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants’ negligence as was requested in Interrogatories 64 and 71. Because of the sanction plaintiff could not oppose summary judgment, which the court granted in defendants’ favor. On appeal, plaintiff claims its disclosure was adequate and that no further information was required under the applicable rule. We affirm.

Interrogatory 64 requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Plaintiff responded by identifying a traeting physiciaon who would testify the defendant new or should have known that the patient had developed an infection at the site of her surgical incision but failed to aggressively treat the infection with antibiotics in breach of the standard of care

Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. Plaintiff failed to answer this question with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death, other than the treating physician’s medical record.

The critical and limited issue here is whether interrogatory 71 sought to obtain more than what was required by Rule 26(b)(4). Did the court abuse its discretion in concluding that plaintiff had failed to provide “the substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(i). Interrogatory 71 asked about plaintiff’s specific theory of the case. We hold the court did not abuse its discretion; the incidents of negligence committed, the dates of those acts and how those acts deviated from the standard of care lies within the bounds of what the rule requires to be disclosed.

We reject the dissent’s assertion that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal. When a trial court imposes the ultimate sanction of dismissal, we require findings of fact to show bad faith or deliberate and willful disregard of the court’s orders, as well as prejudice to the opposing party. But in this instance no no dismissal was imposed. Because the sanction in this case precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.


ROBINSON, J., (joined by Dooley J., dissenting.) The issue in this case is whether defendants were entitled to get the reqauest infomraiotin by the particular tool of expert interrogatories pursuant to Vermont Rule of Civil Procedure 26(b)(4)(A)(i). In affirming the trial court, the majority applies a far more exacting standard than the Rule supports. Moreover, the trial court’s sanction for the purported discovery violation, which was tantamount to dismissal of plaintiff’s case on the merits, exceeded the trial court’s broad discretion.

Dr. Stickney was a treating physiciian and is an “event witness.” To the extent that the facts he knows and opinions he holds were not acquired or developed in anticipation of litigation, but, rather, arise from his own participation in the case, plaintiff was not obligated to make expert disclosures for Dr. Stickney pursuant to Rule In fact, in the context of a medical malpractice case, this Court has held that the defendant hospital did not run afoul of Rule 26(b)(4) when it introduced opinion testimony from treating physicians without having disclosed them as expert witnesses. Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) 26(b)(4). However plaintiff waived this point.

The question presented by this case is whether plaintiff’s expert disclosures were sufficient to give defendant “notice of the basic arguments” plaintiff intended to pursue at trial. This is the disclosure:

"The refusal of [defendants] to treat [decedent’s infection] caused her to develop sepsis which led to her death. Specifically, [defendants] knew or should have known that [decedent] had developed a[n] . . . infection at the site of her surgical incision and that she should have been treated with antibiotics. This failure to aggressively treat [decedent’s infection] with antibiotics was a breach of the standard of care. In addition, [defendants], when contacted by Dr. Stickney, refused to allow Dr. Stickney to prescribe [decedent] antibiotics for her [infection] claiming that she was their patient and her post surgicaltreatment was their responsibility. The refusal of [defendants] to allow Dr. Stickney to treat [decedent] with antibiotics was a breach of the standard of care."

What more need plaintiff say to put defendants on notice of its theory of malpractice? Plaintiff in this case was not required to answer by interrogatory the litany of detailed follow-up questions posed by defendant. Plaintiff was not required to facilitate an expert-deposition-by-interrogatory. The fact that some questions posed by defendant remain unanswered, or unanswered to defendant’s satisfaction, does not mean that plaintiff has failed to comply with its obligations pursuant to Rule 26(b)(4)(A)(i). Plaintiff’s disclosure as to the substance of Dr. Stickney’s opinions was more than sufficiently detailed to put defendant on notice of the arguments plaintiff intended to press at trial.

Discovery sanction that led to dismissal affirmed even though no finding of bad faith or prejudice, because the sanction was not technically a dismissal.

 State v. Howe Cleaners, Inc. et al. (2009-110) (06-Aug-2010) 2010 VT 70 ( BURGESS, J.)

The State appeals from the dismissal of its civil enforcement action to hold prior and past owners liable for its costs of responding to and cleaning up a hazardous waste contamination site. We affirm.

The State argues that the trial court erred in granting summary judgment to Banknorth based on a litigation-ending discovery sanction against the State by not considering a lesser penalty. Imposition of sanctions under this Rule 37 “is necessarily a matter of judicial discretion” that is “not subject to appellate review unless it is clearly shown that such discretion has been abused or withheld.” John v. Med. Ctr. Hosp. of Vt., 136 Vt. 517, 519, 394 A.2d 1134, 1135 (1978); accord State v. Lee, 2007 VT 7, ¶ 15, 181 Vt. 605, 924 A.2d 81 (mem.)

Notwithstanding this broad discretion, however, we have held “that where the ultimate sanction of dismissal is invoked, it is necessary that the trial court indicate by findings of fact that there has been bad faith or deliberate and willful disregard for the court’s orders, and further, that the party seeking the sanction has been prejudiced thereby.” John, 136 Vt. at 519, 394 A.2d at 1135; accord Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2008 VT 99, ¶ 12, 184 Vt. 355, 965 A.2d 460 Accordingly, we have reversed trial court orders dismissing cases or entering default judgments as discovery sanctions when the orders did not set forth findings indicating the existence of bad faith on the part of the recalcitrant party and prejudice to the other side. See John, 136 Vt. at 519, 394 A.2d at 1135;see also In re Houston, 2006 VT 59, ¶¶ 13-16, 180 Vt. 535, 904 A.2d 1174 (mem.) (reversing dismissal order as discovery sanction because order was not supported by findings demonstrating bad faith and prejudice); Manosh v. First Mountain Vt., L.P., 2004 VT 122, ¶¶ 1, 10, 177 Vt. 616, 869 A.2d 79 (mem.) (same).

We find the State’s reliance on John unavailing. However similar in its effect, no ultimate sanction was actually imposed here. Although the sanction order led to the adverse judgment against the State, there was no outright dismissal or default. This case is similar to Lee, where the trial court sanctioned the offending party for discovery violations by accepting facts and allegations in the complaint as established and precluding the offending party from presenting a defense. 2007 VT 7, ¶ 6. As here, the trial court later granted summary judgment to the other side, and the sanctioned party argued to this Court that “the superior court was required to make findings [of bad faith and prejudice] on the record prior to imposing such sanctions.” Id. ¶ 17. We acknowledged that such findings are necessary when the “trial court imposes the ultimate sanction of dismissal,” but concluded that “dismissal was not ordered.”

Rather than sanction the State by dismissing or defaulting its case, the court here tailored the sanction to fit the violation by precluding the State “from using at trial evidence that should have been provided in accordance with” the June 2006 order requiring the State’s representative(s) to be available for Banknorth’s noticed deposition. By its terms, the court’s order was the neutralizing evidentiary remedy contemplated by Rule 37(b)(2)(B) (authorizing trial court to prohibit disobedient party “from introducing designated matters in evidence”)—not a dismissal under Rule 37(b)(2)(C) (authorizing trial court to dismiss action). This sanction order required no special findings of bad faith, prejudice, or lack of enforcement alternatives.