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Boyd v. Nunez

Supreme Court of Mississippi

January 9, 2014

CURTIS BOYD, BY AND THROUGH MARY MASTIN, NEXT FRIEND, INDIVIDUALLY AND ON BEHALF OF AND FOR THE USE AND BENEFIT OF CURTIS L. BOYD
v.
GREGORY NUNEZ, M.D

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/08/2011. TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.

FOR APPELLANT: JOHN W. NISBETT, MICHAEL A. HEILMAN, JONATHAN B. FAIRBANK, CHRISTOPHER THOMAS GRAHAM.

FOR APPELLEE: DAVID W. UPCHURCH, ROBERT K. UPCHURCH, JOHN MARK McINTOSH, JANELLE M. LOWREY, JOSHUA S. WISE.

DICKINSON, PRESIDING JUSTICE. WALLER, C.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., AND KING, J., NOT PARTICIPATING.

OPINION

ON WRIT OF CERTIORARI

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

EN BANC.

DICKINSON, PRESIDING JUSTICE:

¶1. In this medical malpractice case, the defendant alleged the plaintiff's discovery response concerning his expert was insufficient. The trial judge ordered the plaintiff to produce the expert for a deposition but, due to illness, the expert was unable to attend the scheduled deposition. Without addressing whether the plaintiff was at

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fault for failure to comply with the court's order to produce the expert for deposition, the trial court ordered that the expert would not be allowed to testify. The Mississippi Court of Appeals affirmed. We reverse and remand for a hearing on that issue.

FACTS AND PROCEDURAL HISTORY

¶2. Dr. Gregory Nunez treated Curtis Boyd, a resident of Vineyard Court Nursing Center, for approximately six months in 2004. Boyd claims that Dr. Nunez's malpractice and the nursing home's negligence combined to cause an uncontrolled infection and the amputation of his leg.

¶3. Boyd filed a medical malpractice suit against Dr. Nunez, and the parties agreed to a scheduling order setting September 15, 2009, as the deadline for Boyd to designate an expert witness; October 30, 2009, for the defendants to designate their expert; November 13, 2009, for the close of discovery; ...


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