Nathan Bass Jan. 9, 2013, 7:13pm

DOVER, Del. (Legal Newsline) - The Delaware Supreme Court has upheld the dismissal with prejudice of a plaintiff's lawsuit due to her repeated refusal to comply with the discovery requests of the married couple she sued.

Justice Carolyn Berger wrote the Jan. 2 opinion of the three-judge panel which included Justices Jack B. Jacobs and Henry duPont Ridgely.

According to the opinion, Yaw Aidoo received a text message at 11:16 on the evening of Oct. 1, 2007, that read: "After Ninette goes to sleep, you can sneak over and give me what I really need. It has been a long time."

After the Aidoos called the number back and got no answer, they called the police. The police questioned the Aidoo's neighbor, Ashlee Adams, who admitted it was her cell number but denied sending the message. The police officer arrested Adams for harassment.

On Jan. 21, 2008, Adams filed a complaint against Yaw and Ninette Aidoo alleging 20 tort claims and seeking $21 million in damages.

The Aidoos responded with a counterclaim alleging invasion of privacy, malicious prosecution, abuse of process, and intentional infliction of emotional distress.

"Throughout the discovery process," the opinion states, "Adams refused to comply with basic discovery requests from the Aidoos. On January 29, 2009, the trial court held a hearing on the Aidoos' motion to compel. Adams had objected to almost every interrogatory, so the trial court went through them, number by number, and explained to Adams why she had to respond.

"The trial court went through the same process with respect to the outstanding document request, and entered an order granting the Aidoos' motion to compel."

Adams still failed to comply, according to the opinion, and the Aidoos moved to dismiss her complaint on April 16, 2009. After postponing consideration of the motion to dismiss and giving Adam's an additional three days to comply which she failed to do, the judge scheduled the hearing.

"On May 15, 2009, the trial court held a hearing on the motion to dismiss. Adams was represented by counsel, who agreed that Adams had not complied with discovery, and asked the court to enter a dismissal without prejudice. The court instead entered a dismissal with prejudice."

After the Aidoos' counterclaims were tried in June 2010 and the jury returned a verdict for $250,000, Adams appealed to the state's high court on several issues including that that the trial court had erred in dismissing her case with prejudice for failure to obey scheduling orders.

"In Drejka v. Hitchens Tire Service, Inc., this Court explained," Berger wrote, "the factors to be considered in deciding whether a trial court acts within its discretion in dismissing a claim for failure to obey scheduling orders:

[T]o determine whether the trial court abused its discretion ... we will be guided by the manner in which the trial court balanced the following factors ... and whether the record supports its findings: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

"The trial court correctly balanced those factors in dismissing Adams' complaint.

"First, Adams was personally responsible for her failure to provide discovery ... The trial court carefully explained to Adams that she was not free to ignore those interrogatories that she believed were irrelevant or personally invasive.

"Second, there was a history of dilatoriness. The trial court gave Adams numerous extensions, and Adams had no excuse for her failure to comply with the deadlines.

"Finally, because Adams' refusal to provide discovery was willful, it was apparent that no lesser sanctions would have induced compliance.

"Adams simply did not think she should have to reveal information that she considered to be private and irrelevant. In sum, the trial court balanced and applied the Drejka factors correctly."

Adams also argued that the trial court abused its discretion in admitting certain evidence in the Aidoos' counterclaim trial. Specifically, she claimed that the trial court should have excluded evidence of: (1) prior incidents demonstrating her antagonism toward the Aidoos; (2) the Aidoos' attorneys' fees; and (3) Adams' litigiousness.

"One of the Aidoos' counterclaims was for intentional infliction of emotional distress," Berger wrote, "to which evidence of Adams' harassing behavior was relevant and highly probative.

"The Aidoos' sought reimbursement of their attorneys' fees as part of their damages. Evidence of those fees, therefore, was properly admitted. Even if it was error to allow evidence of fees incurred after Adams' complaint was dismissed, there has been no showing how much those fees were, or whether they contributed to the jury's damage award.

"Finally, evidence that Adams has been a party to numerous lawsuits was admissible to impeach Adams' credibility. In sum, Adams' claims of error with respect to the evidence presented at trial lack merit."

"Based on the foregoing, the judgment of the Superior Court is hereby affirmed."

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