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HENRY L. HARRIS v. GENERAL HOST CORPORATION d/b/a LITTLE GENERAL STORE #339

NOVEMBER 12, 1986

HENRY L. HARRIS
v.
GENERAL HOST CORPORATION d/b/a LITTLE GENERAL STORE #339



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal arises from the fact that a defendant in a civil action was obligated under our familiar discovery rules to disclose in advance of trial the name of a medical expert witness but didn't. The Circuit Court nevertheless allowed the expert, who was a physician, to be called as a witness, apparently on the theory that the physician was a" rebuttal witness. "For the reasons set forth below this was error. We reverse and remand for a new trial.

 This matter arises from Henry L. Harris' April 19, 1982, encounter with the double entrance/exit doors of the Little General Store on Chico Street in Pascagoula, Mississippi. Harris claims that the right door functioned improperly and slammed against him, striking him in the shoulder and neck on his right side, inflicting personal injuries. Immediately thereafter Harris went to the emergency room at a local hospital where he was seen and treated by Dr. Charles H. Allen, Jr., the medical expert witness no doubt unwittingly thrust to center stage in this appeal.

 On December 7, 1982, Harris commenced this civil action by filing his complaint in the Circuit Court of Jackson County, Mississippi, naming as Defendant General Host Corporation, d/b/a Little General Store #339. Thereafter, pursuant to Rules 26(b) and 33, Miss. R. Civ. P., Harris

 propounded interrogatories to General Host requesting, inter alia, that General Host disclose in writing

 2. Names, addresses and telephone numbers of every person that you intend or might call at the trial of this cause and a brief statement as to what each witness will testify to.

 3. Names of all expets you intend to call.

 In response to the interrogatory concerning experts, General Host answered on February 23, 1983,

 As to interrogatory numbered three (3.), this has not been determined at this time.

 No doubt in recognition of a duty to supplement its discovery responses, on April 17, 1984, General Host advised Harris that it would call as an expert witness Christopher E. Wiggins, M.D., Doctors Plaza, Hospital Road, Pascagoula, Mississippi 39567. No further expert witnesses were listed by General Host, nor was Dr. Allen ever listed in response to Interrogatory No.2.

 On April 23, 1984, this matter came on for trial. After the Plaintiff Harris had rested, General Host called two lay witnesses and then called Dr. Allen. Harris' attorney objected immediately on grounds that Dr. Allen's name had not been disclosed in answer to interrogatories. Counsel for General Host responded that Dr. Allen was a" rebuttal witness "and as such General Host had no obligation to name him in answer to interrogatories. The Circuit Court overruled the objection and allowed Dr. Allen to testify. Dr. Allen proceeded to relate to the jury that he saw Harris at approximately 10:45 p.m. on April 18, 1982, in the Singing River Hospital, that he listened to Harris' complaints, gave him the standard physical examination including x-rays and, in the end, stated that he was unable to find much wrong with Harris.

 Following the testimony of other witnesses not pertinent to this appeal, the matter was submitted to the jury for decision, and on April 25, 1984, the jury returned a verdict in favor of General Host and against Harris. The Circuit Court thereupon entered final judgment dismissing Harris' complaint. Thereafter, Harris filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new

 trial, one of the grounds of which was the suggestion that the Circuit Court had erred in allowing Dr. Allen to testify when his name had not been disclosed in answers to interrogatories. On May 11, 1984, the motion for a new trial was overruled and denied. This appeal has followed, ...


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