OF JUDGMENT: 04/06/2018
CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON
COUNTY HON. CHRISTOPHER LOUIS SCHMIDT
COURT ATTORNEYS GEORGE W. HEALY, IV WILBUR PEMBLE DELASHMET
ROY A. NOWELL, JR. MATTHEW JOSEPH O'GORMAN J. HEATH
SULLIVAN JACOB D. KING VICKI R. LEGGETT
KITCHENS AND KING, P.JJ., AND BEAM, J.
KITCHENS, PRESIDING JUSTICE.
Mary Edwards sued Coca-Cola Bottling Company United, Inc.
(Coca-Cola), and Willie Lee, Jr., for back injuries sustained
when, while shopping at Wal-Mart, she was struck by a cart
driven by Lee as he stocked shelves with soft drinks. The
Circuit Court of the First Judicial District of Harrison
County dismissed Edwards's lawsuit with prejudice after
finding that she had misrepresented her injuries during
discovery. Edwards appeals, arguing that her failure to
disclose prior back problems in her discovery responses
either did not amount to a discovery violation that such
failure merited a sanction less severe than dismissal.
Edwards also argues that, because no genuine issue of
material fact existed about whether Lee's breach of the
duty of care proximately caused her injuries, the trial court
erred by denying her motion for summary judgment on
liability. Because the trial court was within its discretion
in dismissing Edwards's case on the basis of her
discovery violation, we affirm.
Edwards filed a complaint against Coca-Cola and Wal-Mart
Stores, Inc., alleging that, on August 31, 2013, she had been
struck by a cart operated by a Coca-Cola vendor, Willie Lee,
Jr., as he stocked shelves. Later, Edwards filed a first
amended complaint, adding Lee as a defendant. In its answer
Coca-Cola admitted that it was responsible for Lee's
actions taken in the course and scope of his employment, but
it denied any negligence. Thereafter, Wal-Mart was dismissed
from the action.
Edwards described the accident in her deposition. She
testified that, while shopping at Wal-Mart with family
members, she squatted down to look at baby food on a low
shelf, and a cart struck her in the right hip, causing her to
fall. When she righted herself and attempted to stand, the
cart struck her a second time, also in the right hip. She
testified that she had not seen the cart prior to the
accident. Edwards testified that she felt pain in her hip
immediately, and the pain spread to her lower back. She
testified that Lee had been wearing earbuds and had failed to
notice that he had struck someone with his cart. She said
that the accident had caused injuries to her middle and lower
back. Edwards visited an emergency room after leaving
In his deposition, Lee testified that he was using a U-boat
cart to stock shelves on an aisle in Wal-Mart. He testified
that a U-boat cart is a six-wheeled cart controlled by the
driver's arms using vertical handles. Lee testified that
when he rotated the cart to get it out of the way of customer
traffic, he could feel that the cart had bumped someone.
Although he was aware that he had struck someone, Lee
continued stocking shelves because he did not believe that
the collision had been a big one. He admitted that, before
rotating the cart, he had failed to look near the baby food
aisle to see whether anyone was in the way. He denied that he
had been wearing earbuds.
Edwards's treating physician, Dr. Richard Gorman,
testified in deposition that, to a reasonable degree of
medical probability, the accident had caused Edwards to
suffer an annular tear in the lower back at L-5, S-1, and a
disc protrusion in the middle back at T-7.The defendants
submitted a supplemental interrogatory answer with the
opinion of Dr. Eric Wolfson, a neurosurgeon, that Edwards had
sustained a lumbar muscular strain in the accident that
should have resolved in six to twelve weeks. He opined that
the disc problems identified by Dr. Gorman were due to
degenerative disc disease, not trauma. Dr. Wolfson reached
these conclusions based on the records of Edwards's
emergency room visit the day of the accident, which
documented that a full examination of her back revealed a
full range of motion, no midline tenderness, no muscle spasm,
no trauma to the back, and a negative straight-leg raise
While discovery was ongoing, Coca-Cola and Lee filed a motion
to dismiss on the basis of discovery violations by Edwards.
Coca-Cola alleged that Edwards's interrogatory responses
and deposition testimony about her medical history conflicted
with her medical records. In her interrogatory answers,
Edwards had said that, while she suffers from multiple
sclerosis for which she had been placed on Social Security
disability, she never had experienced injuries similar to
those she sustained in the Wal-Mart accident. She did reveal
a workers' compensation claim for a broken rotator cuff
between 1999 and 2001. She said that due to the back injuries
from the accident, she has trouble with household chores, she
cannot lift her small grandchildren, and she cannot fish with
her son. These limitations, according to Edwards, have caused
her debilitating mental and emotional stress. She filed a
second supplemental answer to interrogatories that updated
her initial interrogatory response in which she had denied
any similar injuries before the accident. In the second
supplemental answer, Edwards said she had seen a chiropractor
in 2004 for her hip.
During Edwards's deposition, defense counsel reminded her
that she could consult her attorney at any time and that
"I don't know" and "I don't
remember" were acceptable answers. Edwards testified in
deposition that since the accident at Wal-Mart, she suffered
with middle and lower back pain. She testified that, before
the accident, she never had any problems with her middle
back. She said she never had sought medical care for pain or
limitations in motion in her middle back before the accident.
She also said she had not seen a medical provider for any
complaints of middle back pain before the accident. Regarding
her lower back, Edwards said she had seen a chiropractor for
"a twisted pelvic" in 2004, but otherwise had seen
no medical providers for any problem with her lower back
before the accident. She denied ever having had any problems
or complaints of pain or limitation of motion regarding her
lower back before the accident. And she denied having sought
medical care or treatment for any lower back problems before
the accident. She testified that, before August 2013, she had
"never really had a back problem." And she said
that, before the accident, no one had ever told her she had
disc problems in her back.
Edwards signed a medical authorization that allowed Coca-Cola
access to her medical records. Several of those medical
records, summarized below, showed that, in fact, Edwards had
a history of problems with her middle and lower back.
• On April 3, 2005, Edwards presented to the UrgiCare
Center with fever, congestion, and back pain that she had
been experiencing for three days.
• A November 1, 2005, record from the Patterson Medical
& Diagnostic Center noted a history of bulging discs in
Edwards's neck and back.
• In a January 8, 2007, record from Logan Family
Practice, Edwards complained of neck pain that radiated to
her middle back.
• On February 21, 2007, Edwards visited Logan again
complaining of middle back pain, among other complaints.
• On May 30, 2007, Edwards was treated at Logan for pain
in her left hip radiating into her back and low back pain. An
examination revealed "[n]o pain in lower back; does have
pain over the left hip." She was diagnosed with bursitis
in the hip and degenerative joint disease in the neck.
• In another Logan record from June 8, 2007, Edwards
complained of back pain and hip pain.
• In records from Northcrest Medical Center on September
26, 2007, Edwards complained that she had seen "Dr.
Anderson yesterday and he was going down my spine and pushing
and I guess he hit something. My back hurts." Her pain
assessment was 8, and she described the pain as located in
her middle back. Another note from that visit indicates that
Edwards said she has three bulging discs in her back and two
in her neck for which she was seeing a ...