Boyd ex rel. & for the United Statese & Benefit of Curtis L. Boyd v. Nunez

• Decision Date: 25 June 2013
• Docket Number: No. 2011–CA–00444–COA.,2011–CA–00444–COA.
• Citation: 135 So.3d 122
• Parties: Curtis BOYD, by and through Mary MASTIN, Next Friend, individually and on behalf of and for the use and benefit of Curtis L. Boyd, Appellant v. Gregory NUNEZ, M.D., Appellee.
• Court: Mississippi Court of Appeals

135 So.3d 122

Curtis BOYD, by and through Mary MASTIN, Next Friend, individually and on behalf of and for the use and benefit of Curtis L. Boyd, Appellant

v.Gregory NUNEZ, M.D., Appellee.

No. 2011–CA–00444–COA.

Court of Appeals of Mississippi.

Feb. 12, 2013.

Rehearing Denied June 25, 2013.

Michael A. Heilman, John William Nisbett, Jackson, Jonathan B. Fairbank, Christopher Thomas Graham, Jackson, attorneys for appellant.

Robert K. Upchurch, Tupelo, John Mark McIntosh, David W. Upchurch, Janelle Marie Lowrey, Oxford, Joshua Shey Wise, Tupelo, attorneys for appellee.

EN BANC.

LEE, C.J., for the Court:

¶ 1. Curtis L. Boyd sued Dr. Gregory Nunez, M.D., Vineyard Court Nursing Center (Vineyard), and several other defendantsfor medical malpractice. Boyd settled with Vineyard, leaving Dr. Nunez as the only defendant. The trial court excluded the testimony of Boyd's designated expert, Dr. John Payne, because it failed to satisfy the requirements of Mississippi Rule of Civil Procedure 26(b)(4)(A)(i). With the expert testimony excluded, the trial court granted Dr. Nunez's motion for a final judgment. Boyd now appeals, arguing the trial court erred when it: (1) heard Dr. Nunez's written motion to exclude Dr. Payne's testimony on the same day the motion was filed; (2) found Boyd's expert designation and additional supplementation were insufficient as a matter of law; and (3) dismissed Boyd's claims after excluding Dr. Payne's testimony. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 8, 2006, Boyd filed a complaint for medical malpractice against Vineyard, Dr. Nunez, and several other defendants. The parties agreed to a trial date of November 30, 2009. A scheduling order was entered, designating the following deadlines: (1) September 15, 2009, for Boyd's expert designation; (2) October 30, 2009, for the defendants' expert designation; (3) November 13, 2009, for discovery; and (4) November 20, 2009, for dispositive motions.

¶ 3. On September 17, 2009, Boyd filed his expert designation, naming Dr. Payne. According to the expert designation, Dr. Payne was to testify that both Vineyard and Dr. Nunez “failed to meet the standard of care in allowing [Boyd] to develop an infection in his lower extremity[,] which was allowed to persist and ultimately resulted in amputation.” Dr. Nunez's counsel informed Boyd's counsel that the expert designation did not provide Dr. Nunez with the information required by Rule 26(b)(4)(A)(i). Dr. Nunez's counsel also requested supplementation of the expert designation and dates to depose Dr. Payne. After requesting the information a second time, Dr. Nunez filed a motion to compel Boyd to provide all the information required by Rule 26(b)(4)(A)(i) regarding Dr. Payne.

¶ 4. On November 4, 2009, Boyd filed a first supplementation to his expert designation and moved for a continuance. The trial court heard both Dr. Nunez's motion to compel and Boyd's motion for a continuance on November 9, 2009. At the hearing, Boyd's counsel provided available dates to depose Dr. Payne. The trial court instructed the attorneys to work together to arrange a time for the deposition, but it did not rule on the motion for a continuance.

¶ 5. Dr. Payne was scheduled to be deposed on Saturday, November 21, 2009. But on November 20, 2009, Dr. Nunez's counsel was notified that Dr. Payne was seriously ill and would be unable to be deposed the next day. That same afternoon, Boyd's counsel faxed Dr. Nunez's counsel a second supplementation to his expert designation. The second supplementation was filed on November 23, 2009.

¶ 6. After a pretrial conference on November 23, 2009, mediation was immediately conducted, and Boyd settled his claim against Vineyard, leaving Dr. Nunez as the only defendant.

¶ 7. On November 30, 2009, Dr. Nunez filed a motion to exclude Dr. Payne's testimony. The trial court heard arguments on the motion that day, which was the first day of trial. The trial court found that the second supplementation to the expert designation was untimely and that the expert designation and the first supplementation, although timely, failed to meet the specific requirements of Rule 26(b)(4)(A)(i). Therefore, the trial court granted Dr. Nunez'smotion to exclude. Dr. Nunez then moved for an entry of a final judgment dismissing Boyd's complaint, contending that, as a matter of law, Boyd could not prove his medical-malpractice claim without causation testimony from a medical expert. The trial court agreed and granted the motion for a final judgment.

¶ 8. Boyd moved for reconsideration of the motion to exclude Dr. Payne's testimony. After hearing arguments on the motion, the trial court denied the motion for reconsideration and entered a final judgment in favor of Dr. Nunez. This appeal followed.

DISCUSSION

I. NOTICE REQUIREMENT

¶ 9. Mississippi Rule of Civil Procedure 6(d) requires written motions “be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court.” Although the wording of this rule is mandatory, the Fifth Circuit Court of Appeals has stated that Federal Rule of Civil Procedure 6(d), which at the time ¹ required the same five-day notice period as Mississippi's Rule 6(d), “is not a hard and fast rule, ... and if it is shown that a party had actual notice and time to prepare to meet the questions raised by the motion of an adversary, Rule 6(d) should not be applied.” Herron v. Herron, 255 F.2d 589, 593 (5th Cir.1958). Further, the Mississippi Supreme Court has stated that even if Mississippi's Rule 6(d) is violated, the error is not reversible when “proper notice would have been largely a pointless exercise.” Taylor v. Morris, 609 So.2d 405, 409 (Miss.1992).

¶ 10. Boyd claims he received the motion to exclude Dr. Payne's testimony on November 30, 2009, the same day as the motion was argued; thus, he did not have ample opportunity to research the defenses available to him, nor did he have time to file a response. Although there was not proper notice, there was actual notice. Boyd was given notice a week earlier at the November 23, 2009 pretrial conference that Dr. Nunez would object to Dr. Payne's testimony when the time came. From the record, there is no indication that Boyd's counsel was surprised by the motion to exclude or that he was unprepared to argue against it. In fact, Boyd's counsel cited relevant case law to bolster his argument. Consequently, proper notice would certainly have been a “pointless exercise” because Boyd's counsel was not unprepared to respond to the motion.

¶ 11. Moreover, Boyd's counsel failed to object to the lack of notice when the motion was heard. If a party fails to make a contemporaneous objection, “the error, if any, is waived.” Dorrough v. Wilkes, 817 So.2d 567, 573 (¶ 18) (Miss.2002) (internal quotations omitted). This issue is without merit.

II. EXCLUSION OF DR. PAYNE'S TESTIMONY

¶ 12. This Court leaves discovery matters “to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Scoggins v. Baptist Mem'l Hosp.–Desoto, 967 So.2d 646, 648 (¶ 8) (Miss.2007) (citations omitted). Particularly, “[a] certain amount of discretion is vested in the trial judge with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So.2d 508, 514 (¶ 19) (Miss.2001).

A. Designation and First Supplementation

¶ 13. Rule 26(b)(4)(A)(i) requires a party to identify any person it “expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Boyd asserts that he has met the requirements under Rule 26.

¶ 14. Boyd's expert designation stated that Dr. Payne would be called to testify as a medical expert “on the issues of standard of care, compliance with the standard of care, causation[,] and damages.” Also, the designation claimed Dr. Payne would testify that Dr. Nunez “failed to meet the standard of care in allowing Boyd to develop an infection in his lower extremity[,] which was allowed to persist and ultimately resulted in amputation.” The first supplementation states similar conclusory statements, most specifically noting that Boyd suffered from “chronic and unnecessary pain, development of and worsening of ulcers, poor nutrition, significant cognitive and emotional decline, and amputation/deformity.”

¶ 15. Both the designation and the first supplementation fail to meet the requirements of Rule 26(b)(4)(A)(i). Although Boyd named Dr. Payne as his medical expert and stated the subject matter of Dr. Payne's expected testimony, he repeatedly failed “to state the substance of the facts and opinions to which [Dr. Payne was] expected to testify and a summary of the grounds for each opinion.” Boyd's counsel argued before the trial court that the medical charts and records on which Dr. Payne's opinion would rely were “incorporated” into the first supplementation. Specifically, Boyd's counsel stated, “The factual basis is left to the medical records themselves, that—all of those details. They're not in the opinions, and [Dr. Payne] would have to be allowed to testify as to what those are[.] ... But the facts are not in here.”

¶ 16. The trial court looked to the analogous case of Moore v. Delta Regional Medical Center, 23 So.3d 541 (Miss.Ct.App.2009), to determine if Boyd's designation and first supplementation met the requisite standard under Rule 26. In Moore, the trial court excluded the testimony of the plaintiff's medical expert for failure to meet the requirements of Rule 26 because “[r]egardless of whether the designation contained the subject matter of [the expert's] opinion, the designation failed to state his opinion, the facts on which he based his opinion, and a summary of...