COA 374501 ERIC BROWN V ALLSTATE INSURANCE COMPANY Opinion - Per Curiam - Unpublished 5/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ERIC BROWN,
Plaintiff-Appellant,
UNPUBLISHED
May 13, 2026
11:19 AM
v No. 374501
Wayne Circuit Court
ALLSTATE INSURANCE COMPANY, LC No. 23-007694-NF
Defendant-Appellee.
Before: BORRELLO, P.J., and M. J. KELLY and ACKERMAN, JJ.
PER CURIAM.
Plaintiff, Eric Brown, appeals as of right the trial court’s order dismissing his claim as a
sanction for failure to comply with discovery. For the reasons stated in this opinion, we affirm.
I. BASIC FACTS
This case arises from a motor-vehicle crash between a truck and a vehicle being operated
as an “Uber.” The truck rear-ended the Uber vehicle and then fled the area. The Uber driver
proceeded to drive Brown, who was a paying passenger, to his destination. Thereafter, Brown
noticed that he had “neck pain,” so he called the police and was sent to the hospital. Brown later
sought medical treatment for physical therapy, pain management, and chiropractic services from
multiple medical providers. Eventually, he filed suit against defendant, Allstate Insurance
Company, seeking personal protection insurance (PIP) benefits under the no-fault act, MCL
500.3101 et seq.
In this case, in August 2023, Allstate moved to compel Brown to provide more specific
discovery responses because he had failed to submit executed medical authorizations, damages
computations, a complete list of medical and other costs and amounts incurred, and specific wage
loss estimates. The trial court entered a scheduling order on September 14, 2023, requiring all
parties to “provide executed medical authorizations for all providers” within 28 days of the order.1
1 MCR 2.401(B)(2) allows courts to adopt their own dates for scheduling orders.

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On December 26, 2023, Allstate moved to compel additional discovery from Brown, alleging that
he had failed to provide a date for a deposition, executed medical authorizations, damages
computations, medical bill amounts, and specific lost wage amounts to defendant. On January 22,
2024, the court entered a stipulated order, requiring Brown to provide Allstate supplemental initial
disclosures, authorizations to obtain medical records, and a date for his deposition by January 26,
2024. The order also required Brown provide responses to Allstate’s interrogatories and requests
for production by February 9, 2024. On January 25, 2024, a deposition date was identified for
Brown, and he provided authorizations to obtain medical records in an e-mail to Allstate’s lawyer.
Thereafter, on May 6, 2024, Allstate moved to dismiss Brown’s complaint based upon his
failure to comply with the January 22, 2024 order requiring him to produce the required
supplemental initial disclosure before January 26, 2024, and because Brown’s responses to
Allstate’s interrogatories were “insufficient.” Brown’s lawyer did not file a response to the
motion, and he also failed to appear at the May 17, 2024 hearing on the motion. At the hearing,
the trial court considered whether sanctions were warranted under MCR 2.313(B)(2). In doing so,
it considered the factors set forth in Dean v Tucker, 182 Mich App 27; 451 NW2d 571 (1990) (the
so-called Dean factors).2 Based upon its analysis, it found that, although severe, dismissal was the
appropriate sanction and that lesser sanctions would be insufficient. Brown moved for
reconsideration, which was denied. This appeal follows.
II. DISCOVERY SANCTIONS
A. STANDARD OF REVIEW
Brown argues that the trial court abused its discretion by dismissing his claim as a
discovery sanction. “Discovery sanctions are reviewed for an abuse of discretion.” Id. at 32. “A
trial court’s dismissal of a case for failure to comply with the court’s orders is also reviewed for
an abuse of discretion.” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
An abuse of discretion occurs when the trial court selects an outcome that falls outside the range
of reasonable and principled outcomes. Id.
B. ANALYSIS
Trial courts have discretion to dismiss an action based upon a party’s failure to comply
with a court order. MCR 2.504(B)(1). They also “possess the inherent authority to sanction
litigants and their counsel, including the right to dismiss an action.” Maldonado, 476 Mich at 376.
In this case, the trial court did not abuse its discretion by determining that the imposition of
sanctions against Brown was proper. The trial court ordered all parties to “provide executed
medical authorizations for all providers” within 28 days of the trial court’s initial scheduling order.
On January 22, 2024, the trial court entered an order requiring Brown to provide Allstate
supplemental initial disclosures, authorizations to obtain medical records, and a date for Brown’s
2 The Dean factors are sometimes referred to as the “Vicencio factors” based upon their
rearticulation in Vicencio v Ramirez, 211 Mich App 501, 507; 536 NW2d 280 (1995). However,
given that Vicencio merely summarizes and repeats the factors first articulated in Dean, we elect
to refer to the factors as the “Dean factors,” rather than the Vicencio factors.

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deposition by January 26, 2024. The order also required Brown provide responses to Allstate’s
interrogatories and requests for production by February 9, 2024. Subsequently, a deposition date
was identified for Brown, and authorizations to obtain medical records were sent in an e-mail to
Allstate’s lawyer. However, the trial court found that Brown did not complete all authorizations
requested by Allstate until May 16, 2024. Further, Brown never filed supplemental initial
disclosures, as required by the January 22, 2024 order. In light of the foregoing, it is clear that
Brown failed to comply with multiple court orders related to discovery.
Brown nevertheless argues that dismissal was not an appropriate sanction. Although
permissible, “[d]ismissal is a drastic step that should be taken cautiously.” Vicencio v Jaime
Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d 280 (1995). Before dismissing a case as
a sanction for a discovery violation, the trial court should consider the Dean factors, which require
evaluation as to
(1) whether the violation was wilful 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, and (8) whether a lesser
sanction would better serve the interests of justice. This list should not be
considered exhaustive. [Dean, 182 Mich App at 32-33.]
Further, “the record should reflect that the trial court gave careful consideration to the factors
involved and considered all of its options in determining what sanction was just and proper in the
context of the case before it.” Id. at 32. Here, the trial court recognized that dismissal was a
“drastic step that should be taken cautiously” and that resolution of cases on their “merits is
favored.”
The court then considered the Dean factors. It first found that the violation must have been
“wilful” because there was no evidence that the failure to comply with the court orders was
accidental. See id. In doing so, the court noted the lack of compliance with the January 2024
order, the failure to respond to the motion to dismiss, and the failure of Brown’s lawyer to appear
at the hearing. On appeal, Brown takes issue with the court’s analysis. He maintains that his
failure to attend the hearing or file a response was based upon a “misunderstanding” as to whether
the hearing was going to occur on the date that it was scheduled for or whether it would instead
occur a few weeks later. The court record, however, does not include any indication that the
hearing was adjourned to a later date. Brown also contends that he believed that he had complied
with the order. Yet, “[t]o be willful, the failure need not be accompanied by wrongful intent. It is
sufficient if it is conscious or intentional, not accidental or involuntary.” Edge v Ramos, 160 Mich
App 231, 234; 407 NW2d 625 (1987). Here, Brown’s failure to provide supplemental initial
disclosures cannot be construed as inadvertent. He admitted that he thought providing the initial
disclosures satisfied that part of the January 22, 2024 order. Although mistaken, he still failed to
comply with the order requiring him to submit supplemental initial disclosures. That is, his failure
to comply was not the result of an accident. It was instead a conscious decision to not provide
further disclosures because he did not believe any such disclosures were necessary. The trial court

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did not abuse its discretion when it found the first Dean factor weighed in favor of dismissal.
Dean, 182 Mich App at 32.
Next, the court considered Brown’s history of refusing to comply with previous court
orders and discovery requests. See id. In doing so, it referenced the history of his compliance that
had been discussed earlier in the hearing, including Brown’s failure to make his initial disclosures,
the need for Allstate to move to compel discovery, Brown’s failure to comply with the court order
that compelled discovery by certain dates, Brown’s failure to respond to the motion to dismiss,
and Brown’s failure to appear at the hearing on the motion. On appeal, Brown maintains that only
the January 2024 order was violated, but considering that the record plainly reflects the other
violations of the court order and discovery requests that were cited by the court, we discern no
abuse of discretion in the court’s determination that the second Dean factor also favored dismissal
as a sanction. See id.
The court also considered prejudice, recognizing that there was “obviously . . . prejudice.”
The court did not specify whether it found that there was prejudice to Brown or to Allstate.
Regardless, prejudice is only one of the Dean factors. See id. at 32-33. As such, the court’s failure
to specify which party it found to be prejudiced does not mean that the court’s decision to dismiss
was an abuse of discretion.
Next, the court also determined that, considering the case’s history, the delay could not be
construed as “other than deliberate.” See id. at 33. Brown argues that there was no history of
deliberate delay. However, Allstate sought the January 22, 2024 order specifically because of
Brown’s delay in providing authorizations, supplemental initial disclosures, and a deposition date
in violation of the trial court’s initial scheduling order. After Allstate moved to compel, the trial
court entered the January 22, 2024 order, but Brown once again was not fully compliant. Given
this repeated history of delay, the court did not abuse its discretion by weighing the fourth Dean
factor in favor of dismissal. The same facts contribute to the trial court’s analysis of the fifth Dean
factor, which considers the plaintiff’s degree of compliance with other court orders. Id. Despite
Brown’s contention that his compliance with court orders was “substantial,” the record instead
shows that he failed to comply with the trial court’s initial scheduling order, which ultimately led
to the entry of the January 22, 2024 order, which Brown also failed to fully comply with.
The sixth Dean factor requires the trial court to consider any attempts made to cure defects.
See id. Brown argues that the trial court relied on misrepresentations by Allstate regarding his
attempts to cure any defects and that he had adequately attempted to cure defects by providing the
outstanding medical authorizations and financial records. The trial court stated that the January
22, 2024 order was Brown’s opportunity to timely cure any defects. Notably, Brown’s lawyer
failed to appear at the hearing or respond to the motion to dismiss, leaving the trial court with only
the information from Allstate to consider whether dismissal was appropriate. Brown cannot shift
his self-advocacy responsibility to the lawyer for the opposing party. See Clark v Al-Amin, 309
Mich App 387, 400; 872 NW2d 730 (2015). Even if the trial court was not provided information
or guidance from Brown’s lawyer, the trial court properly relied upon the record before concluding
that Brown’s failure to cure defects through the January 22, 2024 order weighed in favor of
dismissal. The court, therefore, did not abuse its discretion by weighing the sixth Dean factor in
favor of dismissal. Dean, 182 Mich App at 33.

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Finally, regarding the seventh Dean factor, see id., the trial court carefully considered
whether dismissal was an appropriate sanction or whether an alternative sanction would be
appropriate. The trial court stated:
[T]here have been adequate opportunities for [Brown’s lawyer] to rescue [Brown].
I can only conclude that [Brown] is, for want of a better term again, ghosting. I am
relying on the case [Dean, 182 Mich App at 31-33], as well as its progeny . . . .
I also could award attorney fees that were incurred as a result of this pattern
of repeated noncompliance with discovery obligations. For now I think this will be
my way of helping any appellate court and [Brown] to understand that I have the
ability to cause even more significant consequences. But in the interest of trying to
bring closure to this matter and not withstanding the request by [Allstate’s lawyer],
I believe I’m going to stop short of that mark.
I do adopt the well reasoned and careful arguments presented by [Allstate’s
lawyer]. I appreciate and understand the frustration. Here it’s my view that striking
the [Brown’s] household replacement services claim and/or attendant care claim
and/or wage loss claim are insufficient. Yet another opportunity by issuance of an
order compelling [Brown] to provide supplemental initial disclosures within seven
days and/or to provide any additional relief, including adjourning the present
scheduling order dates and deadlines from Track Two to Track Three is insufficient.
Thus, based upon the record, it is clear that the court considered potential sanctions that were both
less severe and harsher. It then determined that dismissal was the appropriate sanction in light of
its full analysis of the Dean factors. That decision was not an abuse of discretion.
Affirmed. Allstate may tax costs as the prevailing party. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ Matthew S. Ackerman

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