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NANCY OWENS ET AL. v. EARL E. WHITWELL

JANUARY 15, 1986

NANCY OWENS ET AL.
v.
EARL E. WHITWELL, ET AL.



BEFORE WALKER, ROY NOBLE LEE, and HAWKINS

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Nancy Owens and Jesse J. V. Owens, wife and husband, appeal from a judgment of the Circuit Court of Lee County, Mississippi, requiring them to pay unto Dr. Earl E. Whitwell and Dr. Ben H. Buchanan, appellees, the sum of twenty thousand three hundred ninety dollars ($20,300) as a condition of the court's granting the Owens a continuance. The sum included costs, attorney's fees and lost time of the appellees and was paid by the appellants under protest. Appellants also paid to the Circuit Court Clerk of Lee County, Mississippi, the sum of eleven hundred fifty-four dollars ($1,154.00), pursuant to her statement, for jury costs and personnel costs in organizing the court and setting aside one week for the trial of the case. This appeal does not involve assessment of court costs.

The only question presented follows:

 Did the trial court err in including under the term" costs "legal fees of opposing counsel and expenses incurred by appellees as a result of moneys not earned and in requiring the appellants to pay such" costs "as a condition to granting a continuance?

 Facts

 On February 23, 1981, the appellants filed suit in the Circuit Court of Lee County against Dr. R. H. Franks, North Mississippi Medical Center, Dr. Michael Massey, The Upjohn Company, and appellees, Dr. Earl E. Whitwell and Dr. Ben H. Buchanan. By the trial date, November 29, 1981, the case had been settled as to Dr. R. H. Franks, and dismissed or nonsuited as to North Mississippi Medical Center, Dr. Michael Massey, and The Upjohn Company.

 The suit was founded upon charges of malpractice against the defendants/appellees, which resulted in serious spinal injuries to appellant Nancy Owens. Since there is no appeal from the final judgment on the personal injury question, it will not be necessary to discuss the facts involving those injuries, except insofar as the exclusion of medical testimony is concerned. *fn1

 An order was entered in the lower court by agreement of the parties on September 17, 1982, setting the case for trial on its merits November 29, 1982. The Supreme Court of Mississippi rendered a decision on November 17, 1982, in King v. Murphy, 424 So. 2d 547 (Miss. 1982), holding that Dr. Richard C. Gardner did not qualify as a medical expert in that case competent to testify concerning the standard of medical care owed patients in Tishomingo County, Mississippi. Dr.

 Gardner was the chief expert witness to be relied upon by appellants in the case sub judice and had been listed as an expert witness in answer to interrogatories propounded by the defendant Upjohn. On November 18 and 19, 1982, appellants supplemented answers to interrogatories, stating what Dr. Gardner would testify in response to the Upjohn interrogatories and the Tupelo Orthopedic Clinic interrogatories, the latter a professional association of which Drs. Whitwell and Buchanan were members.

 On Monday, November 22, 1982, appellees Dr. Whitwell and Dr. Buchanan, filed a motion in limine with regard to Dr. Gardner, Dr. Barnett, David Horn, and Dr. Paul Oliver to the effect that they should not be permitted to testify because incomplete and evasive answers had been submitted in response to interrogatories propounded by appellee, Dr. Whitwell. Further, that Dr. Gardner was not qualified to express an opinion as to the standard of care of physicians in Mississippi following King v. Murphy, supra.

 On Wednesday, November 24, 1982, counsel for appellees contacted the trial judge and advised him of their motion in limine and their objection to any testimony from the four witnesses referred to above and specifically directed the court's attention to the decision in King v. Murphy. Counsel requested an immediate hearing as to whether Dr. Gardner was qualified to testify in Mississippi. On the same date, appellants filed their supplementation to Interrogatory No. 25 by appellee Dr. Whitwell stating that the appellants would call two treating physicians, viz, Dr. Houston Franks, a former defendant, who performed the surgery, and Dr. William Gary, a general practitioner, who had seen Mrs. Owens after her discharge from the hospital. The supplementation did not identify the subject matter upon which either of the doctors would testify. The trial judge indicated that a determination should be made at that point as to whether the case would have to be continued. However, appellants' counsel stated that, due to the Thanksgiving holidays, he would be unable to attend such a hearing until the day of trial and that he still planned to call Dr. Gardner as an expert witness.

 On Thursday, November 25, 1982 (Thanksgiving Day); Friday, November 26, 1982; Saturday, November 27, 1982; and Sunday, November 28, 1982; according to appellees, Dr. Whitwell, Dr. Buchanan, their witnesses and counsel engaged in extensive pretrial preparation for what was expected to be a seven- to ten-day trial. On Monday, November 29, 1982, the first day of trial, the lower court heard the motion to exclude the testimony of Dr. Richard C. Gardner, and granted the motion with the following observation:

 All right. Well, gentlemen, I think what it all boils down to is the Court has ruled on the matter. It all boils down to whether or not about two weeks ago, when the Mississippi Supreme Court ruled that Dr. Gardner is not qualified to testify in this state as an expert, in Tishomingo County he was not qualified. It was reversed because they let him testify up there, and it appear [sic] to me that y'all should have known then if he's not qualified to testify in Tishomingo County, he's not qualified to testify in Lee County. And you should have done something about it then. Not come down here the day of the trial and argue that Dr. Gardner should be allowed to testify in Lee County when the supreme court said two weeks ago he's not qualified to testify in Tishomingo County. And to come down here the day of trial and say," Well, he should be allowed to testify in Lee County even though they didn't allow him to testify in Tishomingo, County, "appalls me.

 You should have, in my opinion, started making your preparation to supplement your interrogatories and get some of these other experts ready to testify and notify the other side about them then; not wait until - I'm going to uphold the Mississippi Supreme Court's opinion on Dr. Gardner the day of the trial and then start trying to do it.

 When the motion to exclude the testimony of Dr. Gardner was sustained, the appellants moved for a continuance until the next term of the court. The lower court offered a continuance to the appellants, conditioned upon paying certain costs. The attorneys for appellees, at the instruction of the court, submitted a list of expenses which aggregated thirty-six thousand two hundred dollars ($36,200). The lower court asked to see a list of expenses and then made the following comment:

 However, with the considerable expense that has been incurred by all parties and the Court in coming to the position that we are at at this moment, the Court's of the opinion that a continuance should not be allowed at this time, unless counsel for the plaintiffs pay a reasonable amount to the defendants for the expenses which they have incurred and also a reasonable amount to the county for the expense that the county has incurred in organizing this Court today and bringing in a large jury panel to try this

 case. And in the opinion of the Court, that reasonable amount would be twenty thousand dollars. If counsel for the plaintiffs are willing to pay those expenses, the Court will be inclined to grant the continuance until a later term of court.

 If Counsel for the plaintiffs are not willing to pay those expenses, then the Court feels that the working expense that has been incurred in getting the case to trial today is enough to justify ...


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