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MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., and LUTHER A. JASPER v. MRS. MARY WILKERSON

DECEMBER 20, 1989

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., and LUTHER A. JASPER
v.
MRS. MARY WILKERSON, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF WILLIAM TYLER, DECEASED



BEFORE DAN LEE, PRATHER AND ROBERTSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Appellee (plaintiff below) Mary Wilkerson, daughter of William Tyler, the decedent herein, (hereafter Tyler or the decedent), filed a complaint in her own name against the defendants, Motorola Communications and Electronics, Inc. (hereafter Motorola or Appellants) and its employee, Luther A. Jasper (hereafter Jasper or Appellants) on January 30, 1986, for the wrongful death of Tyler as a result of the February 4, 1980, collision between the vehicle driven by defendant Jasper and Tyler as Tyler attempted to cross Highway 80 on foot. The pleadings alleged that defendant Jasper's negligence caused or contributed to Tyler's death.

During discovery appellee learned of the existence of and secured the transcript of a recorded statement taken by an agent of appellant Motorola, George Murphy, from Tyler, on February 26, 1980 after his discharge from the hospital. The statement was taken at Tyler's home where no one was present except Murphy and

 Tyler. A notice of intent to introduce portions of said statement into evidence was hand delivered to appellants on May 6, 1987.

 The trial in this matter was set for June 8, 1987. On May 29, 1987, ten days prior to the trial, appellee supplemented her interrogatories to name Dr. Hill Williams as as expert who would testify at said trial. Appellants filed a motion on June 4, 1987, to exclude Dr. Williams' testimony. The motion was denied.

 The case was tried before judge and jury beginning on June 8, 1987 and a verdict for One Hundred and Fifty Thousand Dollars ($150,000.00) was returned in favor of appellee and judgment entered accordingly. Appellants' Motion For New Trial Or In The Alternative for JNOV, Or In The Alternative For Remittitur was denied. Notice of appeal was duly filed and the following assertions of error assigned:

 1. The trial court erred in allowing the testimony of Dr. Hill Williams because (1) appellee did not seasonably supplement her responses to appellants' interrogatories identifying Dr. Hill Williams as an expert witness appellee expected to call at trial and the substance of his opinions; and (2) in the alternative, Dr. Hill Williams did not testify from an area of expertise, and he was not qualified as an expert to render an opinion.

 2. The trial court erred by (1) allowing into evidence the transcribed recorded interview of the decedent and by (2) allowing into evidence the irrelevant and prejudicial testimony of several witnesses who were friends of the decedent and allowing into evidence personal photographs of the decedent.

 3. The trial court erred in granting Jury Instruction Number P-8 (b) which was a misstatement of the law and erroneous.

 4. The trial court erred in denying appellants' Motion for a Directed Verdict, Peremptory Instruction and Motion for Judgment Notwithstanding the Verdict.

 5. The trial court erred in denying appellants' Motion for a New Trial.

 6. The trial court erred in denying appellants' Request for Remittitur.

 FACTS OF THE CASE

 The date was February 4, 1980. The time of day was approximately 6:00 P.M. or shortly thereafter. The sun had set; it was dark. The weather was clear, but cold. Luther A. Jasper was on his way home after a days' work. He was a zone manager for Motorola and drove about 45,000 to 60,000 miles per year without any prior accidents. Jasper resides in the northern portion of Clinton, Mississippi. On this day he had been to Meridian, MS, to call on some people. He returned to his Jackson office around 4:00 P.M., worked on some paperwork and proceeded home around 5:30 P.M. He normally drove westbound on I-20 to Springridge Road in Clinton, upon which he would continue in a northerly direction, crossing U.S. Highway 80, until arrival at his home. However, on this day Jasper needed to pick up an item at the Jitney Jungle grocery store which necessitated turning right, or in an easterly direction, onto Highway 80 which runs in an east-west direction. The car Jasper was driving was a 1979 four door Chrysler LeBaron sedan owned by Motorola. The car was in excellent condition - the headlights functioned properly and there was no damage to the car.

 Jasper testified he was traveling no more than 30 m.p.h. in an area where the posted speed limit was 45 m.p.h.. He frequently travelled this portion of Highway 80 and was familiar with the business establishments located near the scene of the accident. At this time Highway 80 was a two-lane highway with a third turning lane in the area of the collision discussed herein. The lights on his car were on low beam. Jasper did not know exactly how far he could see in front of his car, but the headlights on the car were aligned properly and functioned properly.

 Meanwhile, William Tyler, an 85-year-old black man dressed in dark colored clothing proceeded on foot to cross Highway 80 from the north side to the south side at a location just to the east of its intersection with Mt. Salus Road, which runs north and south. His destination was the Bread House located on the south side of Highway 80. His purpose was to buy a loaf of bread.

 In short, Jasper's car collided with Tyler. It was not a head-on collision. Jasper testified," . . .something struck the side of my car. "Jasper did not have time to apply the brakes on the car or to blow the horn prior to the impact.

 Of course, Tyler was injured. He was taken to the emergency room at Hinds General Hospital where he was examined by Dr. Willford Joel Patterson who had been Tyler's family physician since 1972. Dr. Patterson determined that Tyler had" a contusion or a bruised area and abrasion over the left forehead, ". . . and that he complained of some pain and had bruises in" multiple

 areas. "He also" had a laceration of the right elbow which was structured. ". . . He was admitted to the hospital because of his age and his" head trauma. "" He . . . seemed to do fairly well and was discharged on February the 7th of 1980. He seemed to be doing well. "

 Approximately a month later, on March 5, 1980, Tyler went to Dr. Patterson's office complaining of having trouble using his left leg and his left arm. Upon examination Dr. Patterson confirmed weakness in Tyler's left arm and leg and became concerned that the condition was caused by the damage to Tyler's head in the collision which had not been evident on the prior hospital stay. He had Tyler readmitted to the hospital. Dr. Michael Vise, a Board Certified Neurosurgeon, was brought into the case. Based on Tyler's medical history and examination, including a computer scan of the brain, he diagnosed Tyler's case as chronic bilateral subdural hematomas. Dr. Vise also testified that" [t]he occurrence of the subdural hematomas, which take a long period of time to develop, in this particular case, based upon a reasonable medical probability was causally related to [the February 4, 1980] accident. . . . "Dr. Vise operated on Tyler, placing bur holes - these are drainage holes - in the skull to drain off the fluid. The fluid was drained and he improved. Unfortunately, fluid re-accumulated and a second operation was necessary. Tyler remained hospitalized. Dr. Vise testified," He had made a marginal improvement. "Plans were to move Tyler to a nursing home, but before this could be carried out Tyler had a heart attack and died on April 12, 1980, 68 days after the collision.

 ISSUE #1

 The trial court erred in allowing the testimony of Dr. Hill Williams because (1) appellee did not seasonably supplement her responses to appellants' interrogatories identifying Dr. Hill Williams as an expert witness appellee expected to call at trial and the substance of his opinions; and (2) in the alternative, Dr. Hill Williams did not testify from an area of expertise, and he was not qualified as an expert to render an opinion.

 (1) Dr. Hill Williams, an assistant professor of Health and Physical Education, testified in rebuttal to the contentions of appellants that Tyler was" running "across Highway 80. One of his teaching assignments at Jackson State University is a course in biomechanics, which at the time of trial he had taught for ten years." Biomechanics is an area of physical education which is taught at the graduate level which deals with analyzing motion movement; . . . to see how efficient . . . individuals can move

 and how . . . best [to] move from point A to point B. "His training in this area included the study and research in the area of advanced physiology of muscular exercise. Dr. Williams testified that it was his expert opinion that the maximum speed, over a 10 yard distance, an 85 year old person in average health could travel beginning from a stationary position would be 8 to 10 feet per second. His testimony was based upon reliable studies concerning the agility of senior citizens.

 Appellants assert the trial court committed reversible error when it allowed Dr. Hill Williams to testify as as" expert witness "for appellee. First, a look at how this conflict arose.

 The trial date was set for June 8, 1987. Appellants were under court order requiring appellants to respond to all discovery and requests for admissions directed to them on or before May 26, 1987.

 On or about May 7, 1987, Appellants filed a Demand for Supplementation of all interrogatory answers and other discovery directed to Appellee. Thereafter, Appellee filed various supplementations to discovery responses previously filed in response to Appellants' discovery requests. On or about May 29, 1987, three (3) days after the May 26 deadline and ten (10) days before the actual trial date, Appellee filed a Third Supplemental Response to the First Set of Interrogatories Propounded by Appellants. The Supplement was also hand delivered to Appellants on same May 29, 1987. In this Supplemental Answer, Appellee for the first time identified Dr. Hill Williams as an expert witness whom Appellee intended to call at trial, along with a summary of what his testimony would encompass. On June 4, 1987, four (4) days before the scheduled trial, Appellants filed a Motion To Exclude The Testimony of Dr. Hill Williams which the trial judge denied after hearing oral arguments on June 8, 1987 just prior to the start of the jury trial.

 Appellants insist that Dr. Williams' testimony should not have been allowed for three reasons.

 First, appellee did not seasonably supplement her interrogatories identifying Dr. Williams as an expert witness she expected to call at trial. Rule 26 (f) of the Mississippi Rules of Civil Procedure requires that all interrogatory responses be seasonably supplemented. Appellant claims this is true" particularly where the interrogatory asks for disclosure of expert witnesses. "Harris v. General Host Corp., 503 So. 2d 795, 797 (Miss. 1986). Furthermore, when interrogatory responses are not seasonably supplemented to identify witnesses, as in the instant case, the trial court should exclude the witnesses' testimony. See e.g., Jones v. Hatchett, 504 So. 2d 198 (Miss. 1986), Harris v. General

 Host Corp., 503 So. 2d 795 (Miss. 1986).

 In the instant case, Appellants argue that appellee waited until five working days, the" eleventh hour, "before identifying Dr. Williams as an expert witness in the area of muscular movement. Applying Rule 26 (f), which Appellants remind this court" must be taken seriously, "appellants contend that the trial court should have excluded the testimony of Dr. Williams, again citing Harris, supra.

 Second, in the alternative, Appellants claim the" expert "testimony should have been excluded because Dr. Williams did not testify from an area of his expertise. Furthermore, the testimony of Dr. Williams was not helpful to the trier of fact.

 Third, Dr. Williams was not qualified as an expert witness to render an opinion on muscular movement. Dr. Williams, appellants contend, was not qualified as as expert by his knowledge, skill, experience or training. He had received his doctorate in education. The testimony of Dr. Williams only prejudiced the defendants. See Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So 2d 1320 (Miss. 1986).

 Appellee responds to appellants' arguments in convincing and reasoned fashion. She begins from the premise that this Court has recently impliedly instructed on the critical question of what is a reasonable time by which the identity of an expert witness and a summary of the testimony he/she is expected to give must be divulged to the opposing side prior to the date of the trial. In Brown v. McQuinn, 501 So. 2d 1093, 1096-97 (Miss. 1986), the issue was raised by attorneys for appellee in the case at bar. This Court refused to establish a specific time period before the trial for such discovery to be complete, instead opting to refer this matter for study to the Supreme Court Advisory Committee on Rules in the State of Mississippi. Id. at 1097. By doing so, this Court left intact its prior ruling that such discovery deadline must be a reasonable time before trial. See Ladner v. Ladner, 436 So 2d 1366 (Miss. 1983), construing Miss. Code Ann. 13-1-226 (b)(4)(A), which statute merely requires that experts be named" seasonably "before trial.

 So, the pertinent question to be answered is: Was ten (10) days prior to the trial soon enough for plaintiff to inform appellants of Dr. Hill Williams' testimony? The trial court responded in the affirmative reasoning that

 [I]n light of the fact that this testimony is on a very narrow issue and that the expert lives here in Jackson and is available and the issue appears to be one to which a number of persons would be qualified to give

 testimony, the Court will find that the interrogatories were seasonably - the answers to interrogatories were seasonably supplemented for this purpose.

 Appellee refutes appellants' claim that appellants were notified of Dr. Williams' planned testimony, in actuality," five business days "before the trial. Appellee responds," And, as this court well knows, Saturdays and Sundays are working days as far as lawyers are concerned and Judges also. "We would agree with this statement but would emphasize that its importance is misleading. That is, it's a matter of" how much "must be accomplished in whatever limited time is available to the short-noticed party prior to trial. For example, if the expert witness plans to testify on complex matters or on an issue that may be the turning factor in a case, then it is important that the necessary time be allotted prior to trial to depose said expert, transcribe the deposition, meticulously study the testimony and, if necessary, solicit a rebuttal expert witness to refute the former expert's planned testimony. If this be the case, additional time will be needed to prepare same rebuttal expert witness.

 Therefore, it is not so much a matter that lawyers and judges often work on Saturdays, Sundays and holidays (particularly just prior to a trial) but that a sufficient amount of time is allotted before trial to completely deal with the scope of the planned testimony of an" eleventh hour "expert witness. In the case at bar, the learned trial judge made this distinction and concluded as stated above that the issue upon which Williams was to testify was narrow and impliedly could be quickly and easily dealt with within the ten days preceding the trial date. Using this line of reasoning, appellee stresses another reason to uphold this ruling which in short is: appellants failed to demonstrate why this should be an issue in the first place.

 The [appellants] did not inform the court of any specific reasons as to why ten days prior to trial was not reasonable. They proffered no efforts that had been made or any that they tried to make to secure Dr. Williams' deposition and/or counter expert if they thought that to be necessary. Nor did [appellants] request a continuance or ...


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