COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY. DATEOF JUDGMENT: 07/05/2012. TRIAL JUDGE: HON. JEFF WEILL, SR.
ATTORNEYS FOR APPELLANT: RICHARD PAUL WILLIAMS, III, COURTNEY MCREYNOLDS WILLIAMS, DARYL MATTHEW NEWMAN.
ATTORNEYS FOR APPELLEES: THOMAS LYNN CARPENTER, JR., JOSEPH WALTER GILL, EDWARD J. CURRIE, JR., REBECCA B. COWAN.
KITCHENS, JUSTICE. WALLER, C.J., DICKINSON, P.J., LAMAR AND KING, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., CHANDLER AND PIERCE, JJ.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
[¶1] Willie Kinzie sued Belk Department Stores, L.P., Belk, Inc., David Flowers,
Shanay Grant, Kathy Coffey, Donald Smith, Nikki Daggins, Ray Faja, Staffmark Investment, LLC, and John Does 1-5 (Belk Defendants) for injuries he sustained while unloading a trailer that had transported merchandise to a Belk retail store. The trial court dismissed Kinzie's lawsuit with prejudice, finding that Kinzie had misrepresented his injuries during discovery. The Court of Appeals reversed the judgment of the trial court and remanded the case, holding that Kinzie had not misrepresented his injuries and that the ultimate sanction of dismissal with prejudice was not warranted. Having granted certioriari, we affirm, in part, the judgment of the Court of Appeals; we reverse and remand the judgment of the Circuit Court of the First Judicial District of Hinds County.
FACTS AND PROCEDURAL HISTORY
Kinzie, a truck driver for twenty-eight years, was employed by Triangle Trucking at the time of the injuries at issue. Triangle trucking had dispatched Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie's job required him to pick up a loaded trailer of Belk cargo from the Belk distribution center in Byram, Mississippi, and unload it at other Belk locations throughout the United States.
On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution center in Byram and traveled to a Belk facility in Cullman, Alabama. In the course of unloading his truck, which contained approximately 2,161 cases of cargo, weighing a total of 18,229 pounds, Kinzie injured his back. Shortly after he received his injury, an ambulance transported Kinzie to the emergency room, where physicians diagnosed him with a central-disc protrusion, disc desiccation, and disc bulging.
Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on January 4, 2010, Kinzie underwent a bilateral L4-5 hemilaminectomy and discectomy surgery. On May 25, 2010, Kinzie's treating physician, Dr. Howard Holaday, explained that Kinzie possessed the capability to perform sedentary to light duty work, with a lifting restriction of no greater than twenty pounds, and restrictions on frequent stooping and bending. Although Kinzie claimed to need a cane for stability and assistance, Dr. Holaday provided no recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday also warned him to wean himself off of the cane. The results of functional capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010, showed that Kinzie could perform work on a sedentary-physical demand level only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI) joint.
On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his back injury resulted from the Appellees' negligent loading of light cargo items on the bottom of the trailer and heavy cargo items on the top, as well as failure to secure the cargo. Kinzie submits that a medical estimate projects his future medical expenses will total $117,406.90. He also submits that his past medical expenses, lost wages, future medical expenses, and future lost wages amount to
$664,890.37. During discovery, Kinzie, through counsel, provided responses to interrogatories and also provided deposition testimony, all of which responded to questions relating to his injury and explaining his present physical limitations resulting from his injury.
Interrogatory 5 inquired about any opinions rendered by a doctor or medical provider regarding Kinzie's injuries. Kinzie objected to interrogatory 5 as being outside the permissible scope of discovery, but answered by explaining that he had been " assigned permanent work restrictions of no lifting greater than twenty pounds," was prohibited from " frequent stooping or bending," and " had been told that [he] can only perform work in the sedentary physical demand level at eight hours a day, five days a week." Kinzie further stated in his response that he had " been told that [he has] a ten percent whole person impairment rating." Interrogatory 11 stated: " Describe all activities you were able to perform or participate in prior to July 14, 2009, that you cannot perform or participate in now." Kinzie answered the interrogatory by stating:
As a result of the injuries sustained in this accident, I have the following limitations: not able to cut grass or take care of the lawn, unable to perform house cleaning, not able to drive but for very short periods of time, unable to stand or walk for long period[s] of time, cannot lift or carry objects or even groceries, difficulty engaging in usual sexual activities, unable to play and hold grandchildren, and other activities as before the incident.
Unbeknownst to Kinzie or his counsel, the Appellees hired an investigator to perform surveillance of Kinzie during the period of August 19, 2011, to September 22, 2011 (thirty-four days). Of the thirty-four day period surveillance, twenty-five minutes of excerpts of video footage were provided. The excerpts provided were edited and are not a complete video of the entire thirty-four-day time period. As acknowledged, excerpts of the footage provided show snapshots in time during the thirty-four-day surveillance period. The investigator prepared a report of Kinzie's activities during the period. The excerpts of the video footage reveal Kinzie driving and walking to the post office and his attorney's office, and working with another man on his shed in the backyard of his house. In response to the video ...