COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/21/2011. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT DISPOSITION: DISMISSED APPELLANT'S CASE FOR FAILURE TO PROSECUTE.
FOR APPELLANT: W. THOMAS MCCRANEY III, WILLIAM BONNEY BARDWELL, WILLIAM MONROE QUIN II, RICKY O. AMOS.
FOR APPELLEE: STEPHEN GILES PERESICH, LAUREN REEDER MCCRORY, JOHANNA MALBROUGH MCMULLAN.
CARLTON, J. BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY ROBERTS AND FAIR, JJ. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND GRIFFIS, P.J.; JAMES, J., JOINS IN PART.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
[¶1] The issue presented in this case is whether the trial court abused its discretion in dismissing Nell Cornelius's medical-malpractice claim with prejudice, pursuant to Mississippi Rule of Civil Procedure 41(b), for failure to prosecute. The trial court found dismissal was warranted because of a clear record of delay by Cornelius; prejudice to the defendant, Dr. Donald Benefield; and aggravating circumstances. The record shows that Cornelius repeatedly failed to cooperate with discovery requests; failed to timely disclose known witnesses, including an expert witness relevant to the factual basis of her claim; delayed in moving the case forward for fifteen months; and failed to schedule a deposition for nearly five years. Finding no abuse of discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
[¶2] In early 2007, Dr. Benefield recommended that Cornelius undergo cataract surgery in both eyes. According to Cornelius's complaint, Dr. Benefield successfully performed the first surgery on her left eye. However, on February 6, 2007, a complication occurred during surgery on her right eye, resulting in a choroidal hemorrhage and detached retina. She underwent surgery with a vitreo-retinal specialist, who was able to partially correct the damage. Cornelius asserts her vision was 20/30 in her right eye prior to the cataract surgery, but she is now effectively blind in that eye.
[¶3] On February 6, 2009, two years after the cataract surgery on her right eye, Cornelius filed a medical-malpractice action against Dr. Benefield, individually and as shareholder of Benefield Eye Care PC, in the Circuit Court of Harrison County. The following timeline, based on the chronology listed in the trial court's judgment,
sets forth the actions of record leading to the dismissal of this case:
February 6, 2007 Dr. Benefield performed cataract surgery on Cornelius's right eye.
February 6, 2009 Cornelius filed her complaint against Dr. Benefield, alleging medical negligence for injuries sustained to her right eye.
May 28, 2009 Cornelius served Dr. Benefield with process.
June 22, 2009 Dr. Benefield filed an answer to Cornelius's complaint.
July 24, 2009 Cornelius filed a certificate of expert consultation.
September 25, 2009 Dr. Benefield filed a " Motion to Dismiss for Failure to Comply with [Mississippi] Code [Annotated section] 15-1-36(15)  and Motion to Dismiss for Failure to State a Claim pursuant to Miss. R. Civ. P. 12(b)(6)."
September 30, 2009 Dr. Benefield propounded his first set of discovery.
October 15, 2009 Dr. Benefield filed a " Motion to Compel Waiver of Medical Privilege."
December 7, 2009 Dr. Benefield filed an " Amended Motion to Dismiss for Failure to Comply with [section] 15-1-36(15)."
December 21, 2009 Dr. Benefield moved to compel discovery.
January 28, 2010 The trial court entered an order requiring Cornelius to respond to Dr. Benefield's first set of discovery by February 9, 2010.
February 11, 2010 Cornelius responded to Dr. Benefield's first set of discovery requests.
February 22, 2010 Dr. Benefield filed a " Motion to Dismiss for Violation of Court Order Requiring Discovery with Combined Memorandum Brief," alleging " the Plaintiff failed to disclose a scintilla of proof supporting [her] claims."
March 16, 2010 Cornelius filed a combined response to Dr. Benefield's motions to dismiss.
March 25, 2010 The trial court entered an order requiring Cornelius to " fully and completely respond to [Dr. Benefield's] first set of discovery requests within fourteen days."
March 29, 2010 Dr. Benefield filed a " Rebuttal [Motion] in Support of Motion to Dismiss for Failure to Comply with [section] 15-1-36(15) and Motion to Dismiss for Violation of Court Order Requiring Discovery."
April 8, 2010 Cornelius supplemented her discovery responses.
April 21, 2010 Cornelius propounded her first set of discovery.
June 7, 2010 Dr. Benefield responded to Cornelius's first set of discovery requests.
July 26, 2011 Co-counsel entered an appearance for Cornelius.
November 9, 2011 Dr. Benefield filed a motion to dismiss for failure to prosecute.
November 9, 2011 Dr. Benefield filed a notice of hearing on the motion to
dismiss for failure to prosecute, setting the hearing for December 8, 2011.
November 30, 2011 Cornelius filed a motion for extension of time to respond to Dr. ...