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Robert v. Colson

January 14, 1999

BARBARA J. ROBERT
v.
RICHARD COLSON, M.D.



Before Prather, C.j., McRAE And Waller, JJ.

The opinion of the court was delivered by: Waller, Justice,

DATE OF JUDGMENT: 08/04/97

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

DISPOSITION: REVERSED AND REMANDED - 1/14/99

SUMMARY

¶1. This appeal arose from a medical negligence suit filed by Barbara J. Robert against Dr. Richard Colson February 2, 1996. Robert alleged Colson committed medical malpractice when Colson negligently injured Robert's ureter during a hysterectomy. Colson propounded an interrogatory asking Robert to identify the expert witnesses she intended to call at trial. Robert answered this interrogatory September 3, 1996 by stating "No decision has been made concerning any experts which may be relied upon. This response will be supplemented at the appropriate time." Harrison County Circuit Court Judge Jerry O. Terry, issued a protective order November 14, 1996, preventing Robert from taking Colson's deposition by video.

¶2. On March 24, 1997, because Robert had failed to identify any experts, Colson moved to dismiss the case or in the alternative compel Robert to answer Colson's interrogatory and name an expert. On March 25, 1997, Robert filed a supplemental response and identified Dr. Harold Wittcoff as an expert and detailed the substance of his proposed testimony.

¶3. Judge Terry held a hearing June 16, 1997, on Colson's motion. On August 14, 1997, Judge Terry on his own motion struck Robert's supplemental answer and as a sanction dismissed the case, finding Robert's initial answer to Colson's interrogatory was "a failure to answer at all." All motions to reconsider were denied. Robert appealed listing four issues.

I. WHETHER IT IS A DISCOVERY VIOLATION TO ANSWER "I DO NOT KNOW" TO AN EXPERT INTERROGATORY"

II. WHETHER FILING A SUPPLEMENTAL ANSWER TO AN EXPERT INTERROGATORY NINE MONTHS BEFORE TRIAL IS A DISCOVERY VIOLATION

III. WHETHER DISMISSAL OF PLAINTIFF'S CASE WAS IMPROPER

IV. WHETHER PROHIBITING DR. COLSON'S VIDEO DEPOSITION WAS A VIOLATION OF RULE 30 OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE

FACTS OF THE CASE

¶4. On January 16, 1995, Dr. Richard Colson performed a hysterectomy on Barbara Robert. Robert alleged Colson negligently injured Robert's ureter during the procedure. Robert filed suit against Colson in Harrison County Circuit Court February 2, 1996.

¶5. On April 5, 1996, Colson submitted his answer and defenses to Robert's complaint. Three days later on April 8, 1996, Colson served Robert with a "First Set of Interrogatories and Requests for Production of Documents Propounded to the Plaintiff." By May 8, 1996, the time the answers were due under Mississippi Rule of Civil Procedure 33, Robert had not responded. On May 14, 1996, Robert asked Colson for more time to produce the required discovery. Colson's counsel agreed.

¶6. By July 4, 1996, the date for completion of all discovery under Uniform Rule of Circuit and County Court Practice 4.04, Robert had not answered Colson's interrogatories. Colson wrote to Robert August 30, 1996, asking for answers to the interrogatories. On September 3, 1996, Robert answered Colson's interrogatories. These answers included the statement: "No decision has been made concerning any experts which may be relied upon. This response will be supplemented at the appropriate time." This answer was in response to Colson's interrogatory asking for a list of Robert's experts and their opinions to be discussed at trial.

ΒΆ7. On September 3, 1996, Robert also gave notice she would depose Colson October 17, 1996. Robert amended her notice of deposition October 10, 1996, and again October 15, 1996. In the second amendment, Robert indicated Colson's deposition would be taken by "oral examination and video recorder." Colson objected to a video deposition and filed a motion for a protective order preventing Robert from taking Colson's deposition by video. Judge ...


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