796 So.2d 942 (Miss. 2000), 97-CA-01493, Amiker v. Drugs for Less, Inc.

Docket Nº:97-CA-01493-SCT, 97-CA-01535-SCT.
Citation:796 So.2d 942
Party Name:JOSEPH AMIKER AND BOBBIE AMIKER v. DRUGS FOR LESS, INC., AND STAN MIXON.
Case Date:August 17, 2000
Court:Supreme Court of Mississippi
 
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Page 942

796 So.2d 942 (Miss. 2000)

JOSEPH AMIKER AND BOBBIE AMIKER

v.

DRUGS FOR LESS, INC., AND STAN MIXON.

Nos. 97-CA-01493-SCT, 97-CA-01535-SCT.

Supreme Court of Mississippi.

August 17, 2000.

        Rehearing Denied Oct. 11, 2001.

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        Barry W. Gilmer, Jackson, Attorney for Appellants.

        Walter T. Johnson, Jackson, Attorney for Appellee.

        EN BANC.

        BANKS, PRESIDING JUSTICE, FOR THE COURT:

        ¶ 1. This case arises from a claim of misfilled prescriptions by a pharmacist and his pharmacy employer. These appeals are from an order by a successor judge which reversed in part the order of the original judge granting a new trial and ordering sanctions for discovery abuse. Because we find that the successor judge was in no better position to decide the issues in this case than the original judge, we reverse and remand.

         I.

        ¶ 2 Joseph and Bobbie Amiker claim that Stan Mixon, while employed as a pharmacist with Drugs For Less, Inc. in Jackson, Mississippi, misfilled Joseph Amiker's prescriptions. Between October 3, 1992, and April 22, 1993, anti-depressants were allegedly erroneously substituted for the prescribed hypertension and heart medications. The Amikers claim that as a direct result Joseph's blood pressure elevated, and he suffered a stroke which rendered him permanently disabled. In April 1994 the Amikers filed their complaint in the Circuit court of the First Judicial District of Hinds County seeking recovery of damages from Mixon and Drugs For Less for their alleged negligence. Both Mixon and Drugs For Less were simultaneously represented by the same attorneys throughout all aspects of this litigation. At the conclusion of the trial, the jury returned a verdict in favor of both Mixon and Drugs For Less.

        ¶ 3 The present assignments of error do not concern the issue of whether Mixon or Drugs For Less did, in fact, negligently misfill Joseph Amiker's prescriptions. Rather, this case on appeal concerns apparent discovery violations committed by

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Mixon and Drugs For Less. The Amikers allege numerous violations which unfairly impeded their efforts to prove negligence. Two of the alleged violations are of primary concern. The Amikers allege that Drugs For Less deliberately withheld information concerning the limits of its liability insurance coverage, perpetuating the Amikers' belief that the policy's coverage was $1 million when, in fact, it was in excess of $30 million. This revelation only came about through an in-camera examination by the trial judge, Circuit Judge William F. Coleman, of Drugs For Less's files. Second, and more importantly, not until the fourth day of trial did Drugs For Less produce evidence of prior claims of negligence in filling prescriptions even though Drug For Less had been repeatedly ordered to do so by the court. After the jury returned its verdict and final judgment was entered, the Amikers filed their Motion for a Judgment Notwithstanding the Verdict and Motion for a New Trial and renewed an earlier Motion for Sanctions, all of which were based on these alleged discovery violations. The trial court entered an Opinion and Order on these motions which we quote in part:

In this Court's opinion, the only issue that has merit is the issue of discovery violations and it is indeed a very serious one. [D]iscovery violations by the defense occurred from the initial beginning of the discovery and continued through the actual trial, despite repeated orders from the court to furnish specific discovery matters.... The plaintiffs' counsel was remiss in not presenting written orders after every discovery hearing to carry out the Court's rulings. The Court must speak through its minutes. Montalvo vs. Miss. State Bd of Medical Licensure, 92-CC-01338-SCT (Decision Issued March 14, 1996). Unfortunately, discovery problems as well as motion practice has increased to become an administrative nightmare mandating bench rulings with no system of tracking for written orders for the minutes. In this case, the defense attorneys were aware of the court's rulings and their testimony itself indicates that the employees of the defendant Drugs for Less were aware of the Court's rulings, but failed to respond.

There is no question that Drugs for Less disobeyed this court's order to produce discovery. By way of explanation for their failure when brought into court by court order, the defendant's employees began a round robin finger-pointing scenario contending the insurance claims service were [sic] expected to produce the discovery. The employees of the claims service in turn pointed back to the defendants' employees. Even though this establishes no valid excuse for discovery violation, the close relationship of defendant Drugs for Less with the claims service and the insurance agent completely eliminates this from consideration. The testimony of the employees reveals an attitude of "Drugs for Less is in the business of producing sales and not producing discovery." The failure to furnish timely discovery clearly deprive[d] plaintiffs of the opportunity to evaluate and develop evidences not produced until well into the trial and only after orders from the court requiring individual employees of the defendant to be present in court to furnish this information. This failure on the part of Drugs for Less requires that the Motion for New Trial be granted.

Plaintiffs also moved for sanctions against defendant Drugs for Less for these discovery violations. Clearly, plaintiffs are entitled to sanctions. The issue is the extent of the sanctions.

...The Mississippi Supreme Court has not addressed the issue of the extreme sanctions of default judgment for discovery violations. Courts from other jurisdictions have approved the entry of judgment against a discovery violator. See: Henry vs. Sneiders, 490 F.2d 315 (9th Cir.1974); Billman vs. State of Maryland Deposit Insurance Fund Corp., 585 A.2d 238 (Md.App.1991); Malautea vs. Suzuki Mtr. Corp., 987 F.2d 1536 (11th Cir.1993); Hawes Firearm Company vs. Edwards, 634 P.2d 377 (Alaska 1981). The Mississippi Supreme Court has approved the extreme sanctions of dismissal of a plaintiff's lawsuit for discovery violations by the plaintiff's attorney. Cunningham vs. Mitchell, 549 So.2d 955 (Miss.1989).

Many of the cases were faced with discovery violations by a party's attorney. That is not the situation in the present case. There is no proof that defendants' attorneys were responsible for the violations. The defendant Drugs for Less was well aware of this Court's order to produce records of prescription misfilling claims and failed to do so. In addition, Drugs for Less deliberately refused to furnish applicable insurance policies after being ordered to do so. Although having no bearing on the liability issue of this case, this discovery violation reveals a total disregard for the discovery rules and this court's authority. The failure to furnish the policies is especially egregious by the fact that the defendants were aware that the plaintiffs' attorneys had received a copy of the primary coverage policy, and relying on that information had made settlement offers for the policy limits. It is quite clear that at all times the defendants knew that not one, but several policies were in existence that placed

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coverage well above the primary coverage. The first time plaintiffs' attorneys were aware of this information was when advised by this court in open court at a point well into the trial. The court became aware of this fact while making an in camerainspection during the trial of the defense attorneys' file on an unrelated discovery matter.

The willful and deliberate violation has prejudiced plaintiffs by delay and expense. In addition, the defendant has caused significant problems with court administration-waste of the court's time weeks trial time on the court's docket and disregard for this court's authority.

These discovery violations must fall at the feet of Drugs for Less. The actions of the individual defendant, Stan Mixon, although participating to a small degree in the violations, does not rise to the necessary height of willfulness.

Therefore, judgment of liability will be entered in favor of the plaintiffs against Drugs for Less only.

Thus, the trial court (1) set aside the judgment based on the jury verdict, (2) granted a judgment of liability against Drugs for Less, (3) granted the Amikers a new trial against Mixon as to liability and damages and against Drugs for Less as to damages only, and (4) awarded the Amikers reasonable and necessary attorney's fees of $51,542.94 against Drugs For Less.

        ¶ 4. Mixon and Drugs For Less then filed a Motion to Reconsider this Order in December 1996. Judge Coleman denied this motion. They subsequently petitioned this Court for Permission to Perfect an Appeal from the Order granting the Amikers a new trial and imposing sanctions upon Drug For Less. These petitions were denied on May 16, 1997. While the Petitions for Permission to Appeal were pending, Judge Coleman retired. Circuit Judge W. Swan Yerger was appointed to fill the vacancy created by Judge Coleman's retirement and was assigned this case.

        ¶ 5. On July 7, 1997, Mixon filed his second Motion to Reconsider. Drugs For Less filed its second Motion to Reconsider on July 16, 1997. The hearing on these motions was held on August 20, 1997. At the conclusion of the hearing, Judge Yerger rendered his Opinion and Order which vacated Judge Coleman's 1996 Orders. Judge Yerger's Order granted the Amikers a new trial as to Drugs For Less but did not impose a judgment of liability as Judge Coleman had done. Furthermore, the Final Judgment in favor of Stan Mixon was reinstated and certified as final judgment pursuant to M.R.C.P. 54(b). The trial court also ordered Drugs For Less to pay the Amikers' reasonable attorney's fees and...

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