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Edwards v. Coca Cola Bottling Company United, Inc.

Supreme Court of Mississippi

March 7, 2019

MARY EDWARDS
v.
COCA COLA BOTTLING COMPANY UNITED, INC., AND WILLIE LEE, JR.

          DATE OF JUDGMENT: 04/06/2018

          CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY HON. CHRISTOPHER LOUIS SCHMIDT

          TRIAL 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

          BEFORE KITCHENS AND KING, P.JJ., AND BEAM, J.

          KITCHENS, PRESIDING JUSTICE.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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 Wal-Mart.

         ¶4. 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.

         ¶5. 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 test.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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 ...

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