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Westfall v. Goggins

Court of Appeals of Mississippi, En Banc

October 10, 2017

SHANNON WESTFALL AND JOHN WESTFALL APPELLANTS
v.
RANDY GOGGINS AND CARNES FRAMES, INC. APPELLEES History Date/Time Patient ID User Action Disease Name Notes Date Onset History Date/Time User Patient ID Action Finding Status Age Start/ Age Stop Amount Used

          DATE OF JUDGMENT: 04/18/2016

         PONTOTOC COUNTY CIRCUIT COURT HON. JAMES SETH ANDREW POUNDS JUDGE

          ATTORNEYS FOR APPELLANTS: WILLIAM O. RUTLEDGE, III LAURANCE NICHOLAS CHANDLER ROGERS VALARIE BLYTHE HANCOCK

          ATTORNEYS FOR APPELLEES: REBECCA B. COWAN JOSEPH WALTER GILL

          GRIFFIS, P.J.

         ¶1. Shannon and John Westfall appeal the circuit court's dismissal of their negligence claims based on discovery violations. This case considers whether the dismissal was appropriate under Mississippi Rule of Civil Procedure 37 and Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997). We find reversible error and remand for further proceedings.

         FACTS

         ¶2. On June 3, 2013, Shannon was involved in an automobile accident in Pontotoc, Mississippi. Shannon's automobile was hit by a tractor trailer driven by Randy Goggins and owned by his employer, Carnes Frames, Inc. As a result of the accident, Shannon and her husband, John, commenced a civil action against Goggins and Carnes (the defendants). Shannon alleged that she "sustained serious physical injuries as a proximate result of the motor-vehicle accident" and has "undergone serious and continuous medical treatment for the injuries [she] sustained." John claimed that he "suffered a loss of consortium and companionship as a proximate result of the motor-vehicle accident."

         ¶3. In discovery, Shannon provided the defendants with a medical authorization, she responded to interrogatories, and she was deposed. Thereafter, on September 15, 2014, the defendants filed a motion to dismiss that claimed that Shannon had made false representations in her discovery responses, which were willful and in bad faith. The defendants further argued that the only appropriate sanction for such discovery violations was the dismissal of the Westfalls' complaint with prejudice.

         ¶4. On July 1, 2015, the circuit judge held a hearing on the motion to dismiss. At the hearing, the Westfalls' counsel moved and was granted leave to provide an affidavit from a medical provider to correct an inaccuracy in one of the medical records relied on by the defendants. The information was provided to the circuit judge in a timely manner, and it corrected an inaccuracy in the medical records.

         ¶5. Eight months later, on April 26, 2016, the circuit court entered its findings of fact and conclusions of law. The circuit judge's order granted the motion to dismiss and dismissed the Westfalls' complaint with prejudice. It is from this order that the Westfalls now appeal.

         ANALYSIS

         ¶6. The question here is whether the circuit court committed reversible error in the decision to dismiss the Westfalls' complaint under Rule 37 and Pierce.

         ¶7. This Court must review the decision under an abuse-of-discretion standard. Pierce, 688 So.2d at 1388. We may only reverse the dismissal if there is a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon [its] weighing of [the] relevant factors." Id.

         ¶8. In Pierce, the plaintiff was injured when a ceiling fan in her apartment fell from the ceiling onto her. Id. at 1387. During discovery and at trial, she concealed the fact that another person was present in the room when the ceiling fan fell. Id. at 1387-88. On numerous occasions, through extensive discovery, and in response to interrogation at the first trial, she maintained that she was alone when the accident occurred. Id. at 1387. After a new trial was granted, for other reasons, it was discovered that she had lied. Id. at 1388. The circuit court found that such a blatant lie, even though there was no prejudice to the defendants, was grounds to dismiss her case. Id.

         ¶9. The supreme court's analysis in Pierce provides us with the framework we must consider in this appeal:

Pierce contends that the circuit court erred and abused its discretion by imposing the sanction of dismissal with prejudice, thereby barring her from any recovery for injuries caused when the ceiling fan fell on her. Specifically, the appellant argues that the trial court misapplied Mississippi Rule of Civil
Procedure 37(b)(2) by imposing the "death penalty" and dismissing her lawsuit.
The decision to impose sanctions for discovery abuse is vested in the trial court's discretion. The provisions for imposing sanctions are designed to give the court great latitude. The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court's control of its own docket. Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances.
Such dismissals by the trial court are reviewed under an abuse-of-discretion standard. When this Court reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right standard, then this Court considers whether the decision was one of several reasonable ones [that] could have been made. This Court will affirm a trial court's decision unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon [its] weighing of [the] relevant factors.

Pierce, 688 So.2d at 1388 (internal citations and quotation marks omitted). Of particular note, the supreme court expressed an important word of caution and admonition: "Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Id. (emphasis added).

         ¶10. Pierce began the "death penalty" line of cases. Since then, there have been a number of appellate decisions that have considered this issue. Recently, in Kinzie v. Belk Department Stores, L.P., 164 So.3d 974 (Miss. 2015), the supreme court addressed this very issue:

In Pierce, this Court held that dismissal was appropriate because the plaintiff had flat-out lied under oath about the existence of an eyewitness to the incident that had caused the plaintiff's alleged injuries and had "consistently obstructed the progress of the litigation by filing admittedly false responses to various discovery requests and by swearing to false testimony in depositions." [Pierce, 688 So.2d] at 1390. This Court determined that dismissal was appropriate
because the plaintiff had acted in bad faith, and that any sanction other than "dismissal would virtually allow the plaintiff to get away with lying under oath." Id. at 1390-91. The Court noted, however, that it would remain very reluctant to affirm such a harsh sanction, and did so in that case only because it provided "the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony." Id. at 1391 (emphasis added).
In other cases in which this Court has affirmed dismissal, the discovery violations were similarly egregious. In Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss. 1999), the plaintiff, who could perfectly recall the details of several aspects of her life for many years, completely failed to disclose several invasive medical procedures and doctors' visits that were relevant to her claim. The trial court in that case found that the plaintiff made an "apparently deliberate attempt to subvert the judicial process, " and she presented "no credible explanation for the total lack of congruence between her testimony and her medical records." Id. at 994 [(¶18)]. This Court affirmed, again noting that this case presented a rare instance "where the conduct of a party is so egregious that no other sanction will meet the demands of justice." Id. at 997 [(¶36)].
More recently, in Ashmore v. Mississippi Authority on Educational Television, 148 So.3d 977, 985 [(¶24)] (Miss. 2014), we affirmed a dismissal where the plaintiff had "lied by concealing a right-knee surgery and degenerative joint disease in his right knee." The plaintiff also had hidden the existence of "a subsequent left-knee injury or degenerative disc disease in his back, despite medical reports to the contrary." Id. Once again, the discovery violations that justified dismissal were clear and unequivocal falsehoods.
However, where the discovery violation at issue is less extreme and open to potential truthful interpretations, this Court will not hesitate to reverse a trial court's Rule 37 dismissal. In Wood ex rel. Wood v. Biloxi Public School District, 757 So.2d 190, 193 [(¶11)] (Miss. 2000), the plaintiff responded to an interrogatory regarding the nature of his injuries by stating, "I no longer am able to enjoy tinkering with automobiles as the stooping, bending, and squatting are painful." After viewing undercover surveillance video of the plaintiff "walking normally, squatting, twisting, bending, and generally performing normal daily functions without any indication of impairment or pain, " the trial court dismissed the plaintiff's case. Id. This Court reversed, finding that "the only discovery response [that] was contradicted by evidence at the hearing on the motion to dismiss was one ambiguously worded response to one interrogatory question." Id. at 194 [(¶14)]. As the plaintiff's response indicated that he could still perform certain tasks, just with less enjoyment than before, the Court held that the defendants did not establish that the plaintiff "knowingly made false statements in discovery and it was certainly not established that the plaintiff had engaged in a pattern of such false responses." Id. (emphasis added). The Court held "that the alleged untruthfulness in Wood's interrogatories, if any, did not constitute a sufficiently egregious discovery violation such that no other sanction will meet the demands of justice. " Id. at 195 [(¶18)].
We find the discovery violation in this case to be more similar to the alleged discovery violation in Wood than the unequivocally false and misleading discovery violations found in Pierce, Scoggins, and Ashmore. In Wood, the plaintiff stated that he could no longer enjoy certain activities as he could before being injured. Here, Kinzie stated that he could not perform several activities as he could before his injury. He was truthful when it came to his medical record and his medically diagnosed work restrictions. Kinzie indisputably was injured. He went to an emergency room immediately after his accident and, at that time, was diagnosed with central-disc protrusion, disc desiccation, and disc bulging. He underwent an invasive surgical procedure on his spine. The activity observed in the undercover video did not stray outside of his medical work restrictions, and it did not encompass any of the specific activities that he stated he no longer could perform. The trial court found this to be a discovery violation. While the trial court cannot be said to have been manifestly wrong in its determination that there was, in fact, a discovery violation, the severe sanction of dismissal amounts to clear, reversible error amounting to an abuse of discretion.
Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff in Pierce, nor did he completely misrepresent years of medical history and procedures, as did the plaintiff in Scoggins, nor did he hide any other surgeries, as did the plaintiff in Ashmore. The Court finds no "total lack of congruence" between Kinzie's responses and his medical records, as the trial court found in Scoggins. Scoggins, 743 So.2d at 994 [(¶18)]. Nor do we find this to be "the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony" as this Court found in Pierce. Pierce, 688 So.2d at 1391 (emphasis added). Instead, and similar to the plaintiff in Wood, Kinzie answered an interrogatory about the extent of his injuries in a way that the trial court thought was misleading. And here, although the trial court found Kinzie's response to be false, the perceived falsehood arose in an isolated incident, and it certainly has not been established that Kinzie's statements in discovery indicate any kind of pattern of misleading or false responses.
Analogously, this Court has reversed a trial court's dismissal based on [Mississippi] Rule of Civil Procedure 41(b) where the trial court failed to consider lesser sanctions, including "fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings." Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178');">720 So.2d 178, [181-82 (¶17)] (Miss. 1998) (quotation omitted). Just as this Court found then, in this case, "it is not at all certain that lesser sanctions would have been futile in expediting the proceedings." Id. [at 182 (¶17)]. Although we do not find, as did the Court of Appeals, that the trial court abused its discretion when it determined that Kinzie had committed a discovery violation, we hold that the trial court erred when it dismissed the case completely as a result of that violation while paying mere lip service to the possibility and practicality of lesser sanctions.
. . . .
Dismissal is appropriate only under the most extreme circumstances and only where lesser sanctions will not suffice. Pierce, 688 So.2d at 1388-89. This is not an extreme case, and lesser sanctions can deter misleading responses without dismissing Kinzie's claims altogether. A jury will watch this video, and that may influence its ultimate determination. But a jury ought to make that ultimate determination, not the trial judge. The discovery violation at issue is not sufficiently extreme to justify a full and final dismissal of the case. We therefore affirm that portion of the judgment of the Court of Appeals [that] held that dismissal with prejudice was not warranted. We reverse the Court of Appeals' finding that the trial court abused its discretion when it determined that Kinzie had committed a discovery violation. We reverse the judgment of the Circuit Court of the First Judicial District of Hinds County dismissing the case with prejudice, and we remand the case for trial.

Kinzie, 164 So.3d at 977-80 (¶¶6-13).

         ¶11. Based on this governing authority, we examine the facts of this case. Shannon provided the following interrogatory responses:

INTERROGATORY NO. 7: Have you been involved in any type of accident or had any medical problem, either before or after the accident in question in this case, as a result of which you were seen or treated by a physician or other health-care provider in regard to any complaints or problems or parts of your body similar to the complaints, problems, and parts of your body involved in this lawsuit?
RESPONSE: In 2010, I slept wrong and had a muscle spasm in my left shoulder. I was seen by Dr. [Brad] Scott at Creekmore Clinic, and I have not had any other problems until the accident.
INTERROGATORY NO. 8: If your answer to Interrogatory No. 8 [sic] is affirmative, for each and every such accident or medical problem, number and list the accident, medical problem, or injury, and state the date and details of the accident, the nature and type of the problem or injury, the names and addresses of any physicians, nurses, therapists, chiropractors, or other health personnel seen for treatment, the dates and duration of any period of hospitalization, the reasons or symptoms for which treatment was sought, the date and time treatment was sought, the manifestations of pain or injury which made [sic] to the physicians, nurses, therapists, chiropractors, or other health personnel, the exact type and duration of treatments given, and the effects of the treatments on the injury.
RESPONSE: Dr. Scott took x-rays, but nothing showed up. He gave me pain medication and a muscle relaxer. The spasms went away and I have had no other problems until the accident.
. . . .
INTERROGATORY NO. 16: In your complaint you allege that you "sustained serious physical injuries" and "have undergone serious and continuous medical treatment for the injuries" as a result of the accident. State each and every fact on which you base this allegation and, for each and every such fact, state the name, residence address, residence telephone number, business address, and business telephone number of any and all persons who have knowledge of the fact.
RESPONSE: I suffered a torn right rotator cuff injury which has required surgery. [There] is also a possible tear to my left rotator cuff.

         ¶12. Shannon then testified to the following in her deposition:

Q. Tell me what kind of injuries you sustained in the accident?
A. I tore my right rotator cuff, and I had to have surgery to repair it twice.
And I've had from July 22nd to almost Christmas, three days a week of physical therapy.
Q. I asked you in Interrogatory No. 7 had you had any other accident or
any kind of medical problems associated with the body that was - parts of your body that were hurt in the accident. And you said, "In 2010, I slept wrong and had a muscle spasm in my left shoulder."
A. Yes, ma'am.
Q. Did he - did he - I think you told - in another answer, you told me he gave you, like, a muscle relaxer?
A. Yes, ma'am.
Q. And what else did he give you?
A. That was probably it, and maybe a pain - you know, a couple of pain pills, but that was it.
Q. And so that's the only injury you had sustained to either one of your shoulders before the accident.
A. Yes, ma'am.
Q. And you have never seen a physician about the shoulders ...

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