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AUDREY ELLIS HAPGOOD v. BILOXI REGIONAL MEDICAL CENTER AND MALCOLM L. LATOUR

FEBRUARY 22, 1989

AUDREY ELLIS HAPGOOD
v.
BILOXI REGIONAL MEDICAL CENTER AND MALCOLM L. LATOUR, M. D.



BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The plaintiff below, Audrey Ellis Hapgood, brought this action in the Circuit Court of Jackson County alleging false imprisonment and negligence against Malcolm L. Latour, the admitting and treating doctor, and Biloxi Regional Medical Center, treatment hospital. She alleged that the co-defendants had submitted her to hospitalization, psychiatric evaluation and electroshock treatments against her will. The trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact, and on a motion to dismiss, the plaintiff's failure to comply with discovery. The plaintiff now perfects this appeal and assigns as error the following:

I. The Trial Court Erred in Sustaining the Appellee Malcolm L. Latour's Motion to Dismiss the Appellant's Cause of Action Based on the Appellant's Failure to Comply with Discovery.

 II. The Trial Court Erred in Sustaining the Appellee Biloxi Regional Medical Center's Motion to Dismiss the Appellant's Cause of Action Based on the Appellant's Failure to Comply with Discovery.

 III. The Trial Court Erred in Sustaining the Appellee Malcolm L. Latour's Motion for Summary Judgment Based on the Ground that

 there was No Genuine Issue as to Any Material Fact.

 IV. The Trial Court Erred in Sustaining the Appellee Biloxi Regional Medical Center's Motion for Summary Based on the Ground that there was No Genuine Issue as to Any Material Fact.

 I.

 On August 30, 1981, Audrey Ellis Hapgood was admitted to the psychiatric ward of the Biloxi Regional Medical Center by Dr. Malcolm L. Latour, M. D. The appellant was admitted to the hospital against her will where she remained for approximately two and one-half months at the request of her husband, William Hapgood, and with the approval of Dr. Latour. Dr. Latour diagnosed the appellant as having a schizophrenic reaction of the acute paranoid type. During her stay at the hospital, it is undisputed that she received fifteen electroconvulsive treatments. Although allowed to leave the hospital periodically with a pass from Dr. Latour, the appellant was not officially discharged until November 14, 1981.

 The appellant filed this complaint on August 29, 1983. William Hapgood was deceased at the time of filing suit. Extensive discovery was then undertaken by all parties to the lawsuit. In a hearing held on September 14, 1984, the trial court imposed sanctions on the appellant in the amount of $500 as to each of the appellees for her failure to comply with discovery or" to do anything "and further ordered her to respond to all discovery requests by October 5, 1984. The appellees filed a motion for summary judgment, supported by affidavits from Dr. Latour, Dr. William Martin Wood, Dr. Claudell Brown and Dr. Henry A. Maggio, all psychiatrists. On October 4, 1984, the appellant filed an answer to Dr. Latour's motion for summary judgment with attached affidavits from herself, Dr. Joseph Tramontana, Ph.D., and Dr. Gray Hilsman, M. D. In response to interrogatories requesting a description of records that supported her allegations, the appellant listed the personal diaries and journals of William Foss Hapgood, her former and now deceased husband. In response to a request for production by the appellees, the appellant attached copies of portions of the spiral-bound diaries of William Hapgood.

 On October 5, 1984, the court heard the motions to dismiss and for summary judgment. The court found that the appellant's false imprisonment allegations were barred by the

 statute of limitations, Miss. Code Ann. 15-1-35 (1972, as amended) and both appellees were granted partial summary judgment on that issue. No other rulings were made at that time.

 On May 15, 1985, a separate request for production of documents was filed by Dr. Latour requesting that the appellant produce the originals of all journals and/or diaries of William Hapgood. The appellant had produced copies of the diaries, which were objected to by the appellees because they were not the original diaries. The court granted a continuance to all parties on August 19, 1985. On October 7, 1985, the appellant filed an answer to the request for production of documents as propounded by Dr. Latour.

 In her answer, she alleged that she could not produce the originals of all journals and/or diaries of William Hapgood because they were no longer in her care, custody or control, but that she had produced true and correct copies of all such documents. The court ordered the appellant to produce the original diaries by January 25, 1986. On January 27, 1986, the appellant filed a motion to suspend the court's order compelling discovery, alleging that the diaries were no longer in her possession and control, and that it would be dangerous for her to travel to Ireland to retrieve them.

 On February 13, 1986, the court overruled the appellant's motion to reconsider its previous order compelling her to produce the original diaries of William Hapgood, and ordered her to produce the diaries on or before March 4, 1986, or the appellant's cause would be dismissed with prejudice. The appellant filed another motion to suspend the order on February 26, 1986, alleging by affidavit that she was unable to travel to Ireland because of physical problems, financial hardship and the theft of her passport. She also reasserted the dangers of travel in that country, and asserted the availability to the appellees of copies of the spiral-bound diaries.

 A hearing was conducted by the court on the second motion to suspend on February 28, 1986. The appellant testified that she had given the diaries to an unidentified third party in Mississippi to be delivered to an unidentified member of her family in Ireland. The diaries were sent to Ireland prior to the initiation of the lawsuit, because the appellant claimed her ex-husband had threatened to kill her to get the diaries back. She also testified that she had requested a return of the diaries by telephone, but her family refused to return them because they feared for

 the appellant's safety if she were found in possession of the diaries. The appellant further testified that she could not afford to go to Ireland, that her health would be endangered if she travelled there, and that her family had also advised her that they would not give her the diaries if she came looking for them.

 The court overruled the appellant's motion and ordered her to produce the original diaries of William Hapgood by March 3, 1986, or suffer dismissal. However, the court stated that the deadline would be extended until May 1, 1986 if the appellant provided the court with an affidavit of her intent to produce the diaries. The appellant filed this affidavit on March 3, 1986, indicating that she intended to travel to northern Ireland to retrieve the diaries.

 On the May 1 deadline, the appellant's attorney of record at the time filed a motion to withdraw and substitute the appellant's current attorney of record as counsel. On May 12, 1986, the appellees filed motions to dismiss for failure to respond to discovery, or in the alternative for summary judgment. The appellant filed an answer to these motions, stating by affidavit that she had travelled to northern Ireland to retrieve the diaries, but was unable to do so because her sister refused to divulge the whereabouts of the diaries or to return them to the appellant. A hearing was held on May 21, 1986, and the court ruled that the case had been dismissed with prejudice pursuant to the court's previous order which was self-executing. An order was entered in May 21, 1986, allowing the appellant's present attorney of record to be substituted as counsel.

 On May 23, 1986, the court entered an order setting aside all orders dismissing the cause and staying all further proceedings pending a hearing to determine the competency of the appellant. On June 27, 1986, an order was issued which held that the appellant was competent. On August 22, 1986, a reinstatement of the judgment of dismissal was entered by the court on the grounds that the discovery had not been complied with by the appellant and that there was no genuine issue as to any material fact.

 II.

 DID THE TRIAL COURT ERR IN SUSTAINING THE APPELLEE MALCOLM L. LATOUR'S MOTION TO DISMISS THE APPELLANT'S CAUSE OF ACTION BASED ON THE APPELLANT'S FAILURE TO COMPLY WITH DISCOVERY?

 Rule 37 of the Miss.R.Civ.Proc. addresses the imposition of sanctions for failure to make or cooperate in discovery. Following a party's motion for an order to compel discovery, the trial court may in its discretion impose sanctions on the non-cooperative party. Rule 37 (b) ...


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