Dean v. Tucker

In Dean v. Tucker, 182 Mich App 27; 451 NW2d 571 (1990), the Court held as follows: While it is within the trial court's authority to bar an expert witness or dismiss an action as a sanction for the failure to timely file a witness list, the fact that such action is discretionary rather than mandatory necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate. . . . Among the factors that should be considered in determining the appropriate sanction are: (1) whether the violation was willful or accidental; (2) the party's history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice; (5) whether there exists a history of plaintiff engaging in deliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court's order; (7) an attempt by the plaintiff to timely cure the defect; (8) whether a lesser sanction would better serve the interests of justice. This list should not be considered exhaustive. Id. at 32-33.