United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion to dismiss or for
other sanctions. The matter is fully briefed and ready for
13, 2015, Linda Taylor was driving in Rankin County,
Mississippi when her vehicle was struck by Bruce
Freeman's truck. Freeman conceded liability at the scene.
Taylor subsequently filed this personal injury suit against
Freeman and his employer, Consolidated Pipe and Supply
legal battle focused on the extent of Taylor's injuries.
Taylor's complaint alleged that the accident caused
“serious and permanent . . . injuries to her neck,
back, right shoulder, numbness in her right arm and tingling
in her fingers, along with injury to her skeletal system,
muscular system, and nervous system.”
discovery commenced. When asked about her medical history,
Taylor wrote that she could “not remember the exact
dates of treatment and/or all her complaints, ” but
“has never [been] treated for neck or shoulder pain
before the subject accident.” She gave the defendants
written permission to obtain all of her medical records.
defendants' search was thorough. They obtained records
from medical providers who had seen Taylor as far back as
1992. The defendants say they sent copies of these records to
Taylor's attorney during the discovery period-a contested
point to which we will return.
defendants then deposed Taylor. She was asked whether prior
to the accident she had ever suffered from pain in her arm,
shoulder, neck, or back. She answered “no.”
Taylor was asked whether prior to the accident she had sought
medical treatment for pain to her arm, shoulder, neck, or
back. Again she answered “no.” Finally, Taylor
was asked whether prior to the accident she had ever been
prescribed psychiatric medication like Xanax. Her answer was
the same: “no.”
defendants now contend that those answers were lies. They
say, and Taylor admits, that decades of records show she had
dozens of appointments for shoulder, neck, and back pain
before the accident. Taylor took pain medication and received
injections for shoulder, neck, and back pain; referrals to
orthopedics and physical therapy followed. She also took
Xanax for other issues. The defendants argue that
Taylor's total lack of candor warrants dismissal of her
denies the allegations and counters with her own accusations.
She argues that she could not remember all of her medical
visits over the years, and has suffered from memory loss
since the accident. Taylor adds that if anyone has committed
a fraud upon the Court, it is the defendants, who allegedly
withheld her medical records during discovery to ambush her
with this motion.
parties dispute whether the defendants' attorney timely
shared the medical records with Taylor's attorney.
Because that issue required consideration of material outside
the pleadings, it “must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d); see
Stokes v. Dolgencorp, Inc., 367 F. App'x 545, 547
(5th Cir. 2010) (unpublished).
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A party seeking to avoid summary judgment
must identify admissible evidence in the record showing a
fact dispute. Id. at ...