Caracci v. International Paper Co., 93-CA-00614-SCT

• Decision Date: 14 August 1997
• Docket Number: No. 93-CA-00614-SCT,93-CA-00614-SCT
• Citation: 699 So.2d 546
• Parties: Joyce Pope CARACCI v. INTERNATIONAL PAPER COMPANY, IP Timberlands Operating Company, Ltd., and Unknown Jobbers.
• Court: Mississippi Supreme Court

Page 546

699 So.2d 546

Joyce Pope CARACCI v. INTERNATIONAL PAPER COMPANY, IP Timberlands Operating Company, Ltd., and Unknown Jobbers.

No. 93-CA-00614-SCT.

Supreme Court of Mississippi.

Aug. 14, 1997.

Vincent E. Caracci, Jackson, for appellant.

Edward A. Williamson, Philadelphia, for appellee.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 The procedural history of this case began with the filing of civil action No. 7337 in the Circuit Court of Neshoba County, Mississippi by Joyce Pope Caracci against International Paper. Caracci sought relief from IP for damages to her property, specifically the filling in of her pond with runoff sediment, i.e., trespass, negligence, and gross negligence, allegedly caused when IP negligently harvested trees upstream. Caracci sought relief from IP in the amount of $200,000 in addition to requiring IP to take corrective acts to prevent any further erosion. IP filed its Answer on April 30, 1991, denying any liability. Caracci amended her complaint November 3, 1992, requesting punitive damages.

¶2 Discovery followed, however, it is from the allegedly inadequate forms of discovery that took place that resulted in the trial judge's sanctions creating the issues now before this Court. The following are the events which led to the sanctions.

¶3 1. IP propounded a standard expert interrogatory to the plaintiff.

¶4 2. Plaintiff served her initial sworn response to the expert interrogatory and stated the following:

Southern Consultants, 114 Office Plaza, Jackson, MS 39206, 601-362-8683. Southern Consultants will testify as Engineers to the cause of the present condition of the lake and the costs of restoring the lake to its prior condition. Southern Consultants will testify that defendants directly caused the condition of the lake by their negligent stripping of the land with no effort to minimize erosion. The grounds for their opinion are personal observations.

Upon receiving this information, counsel for IP called plaintiff and indicated that he thought the response was inadequate, but Caracci said he thought that it was fine to which IP's counsel said, "Okay. I will take it up later on down the road." It was not until after IP received the Damage Assessment Report and Stewart took the stand at trial that IP brought this alleged discovery violation to the court's attention.

¶5 3. On May 18, 1992, Plaintiff mailed and defendant apparently received, ¹ Southern Consultant's Damage Assessment Report which was identified as a supplemental interrogatory response to defendant's expert interrogatory No. 7. There was no certificate of service attached nor any separate pleading document attached to the Damage Assessment Report, and it was not supplemented under oath. It was simply mailed with a cover letter which referenced plaintiff's prior sworn response by stating that "[t]hese materials are provided to supplement my prior response to your interrogatory # 7." The report estimated that it would cost $124,000 to restore the lake and make the damage repairs. Subsequently, counsel for IP contacted plaintiff and indicated that he wanted another interrogatory answer instead of the letter. Shortly thereafter, counsel for Caracci, in response to IP's inadequacy contention, purportedly mailed an unsworn Supplemental Response to Defendant's Interrogatory No.7 which referenced the materials mailed on May 18, 1992, and expressly incorporated those materials into a formal interrogatory response.

¶6 4. No interrogatory responses were filed with the court by the plaintiff until the second day of trial because no discovery issues were raised by defendants until the first day of trial.

¶7 On the first day of trial, IP objected to the introduction of expert testimony from Stewart on behalf of Caracci. The trial court sustained IP's objection, and Stewart was not permitted to testify as an expert in Caracci's behalf. However, Stewart was permitted to testify as a lay witness that first day.

¶8 On the second day of trial, Caracci brought to the attention of the court that he had filed, that morning, a sworn supplemental response to Defendant's first set of interrogatories. Caracci attempted to reargue the admissibility of Stewart's testimony as an expert, however, the trial judge ruled that he had already made his decision and since Stewart had already testified as a lay witness and instructed the jury as such, that he would not change his mind. At this point, IP's counsel asked the trial judge to recognize what he called a factual misstatement because an affidavit stated that he had received the report which he claimed Caracci did not give him at all. Thereafter, Caracci brought to the court's attention that IP's expert interrogatory answers which were filed with the court were likewise not under oath. Accordingly, the trial court excluded all of the defendant's expert testimony as well for not being under oath.

¶9 Next, Caracci requested that Stewart be allowed to testify as to the measurements that he had taken from his visits to Caracci's lake. IP's counsel then retorted that he challenged Stewart's method of calculation. Therefore, in spite of Caracci's assertion that this type of information and knowledge was lay knowledge possessed by most eighth graders, the trial court denied Caracci's request to allow Stewart to testify about the alleged damage to the lake using a Length X Width X Volume formula.

¶10 At the conclusion of Caracci's case, IP made a motion for a directed verdict and a motion to dismiss Caracci's complaint for failure to prove the requisite element of damages to restore her pond to the condition prior to the runoff which the trial court sustained, and dismissed the suit. Caracci filed her necessary motion for a new trial which was also denied.

¶11 Aggrieved by the lower court's decision, Caracci perfected her appeal and requests review of the following issues.

I. DID THE TRIAL COURT ERR AS A MATTER OF LAW BY EXCLUDING THE TESTIMONY OF PLAINTIFF'S EXPERT ENGINEERS ON THE GROUNDS THAT PLAINTIFF'S EXPERT INTERROGATORY RESPONSE WAS NOT FILED AND NOT UNDER OATH WHERE DEFENDANT'S FILED NO PRE-TRIAL MOTION TO COMPEL A CORRECTIVE RESPONSE OR OTHERWISE IDENTIFY THE ALLEGED OMISSION AS AN ISSUE OF ANY SIGNIFICANCE AND WHERE DEFENDANTS ADMIT THAT NINE MONTHS BEFORE TRIAL THEY RECEIVED FULL DISCLOSURE OF THE ENGINEER'S CERTIFIED DAMAGE ASSESSMENT REPORT IN A LETTER SUPPLEMENTING PLAINTIFF'S INITIAL SWORN INTERROGATORY RESPONSE?

II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY EXCLUDING THE TESTIMONY OF PLAINTIFF'S EXPERT ENGINEERS AND EXCLUDING FROM EVIDENCE THEIR CERTIFIED DAMAGE ASSESSMENT REPORT ON THE GROUNDS THAT SAID REPORT WAS INCORRECTLY TRANSMITTED TO DEFENDANTS NINE MONTHS BEFORE TRIAL BY A LETTER WHICH REFERENCED PLAINTIFF'S INITIAL SWORN INTERROGATORY RESPONSE INSTEAD OF A SEPARATELY SWORN SUPPLEMENTAL RESPONSE?

III. DID THE TRIAL COURT ABUSE ITS DISCRETION BY EXCLUDING LAY TESTIMONY ABOUT THE VOLUME OF MATERIAL WHICH MIGRATED FROM DEFENDANT'S PROPERTY ONTO PLAINTIFF'S PROPERTY ON THE GROUND THAT SUCH MATTERS REQUIRED EXPERT TESTIMONY WHERE THE WITNESS DEMONSTRATED PERSONAL KNOWLEDGE BASED ON VIDEO TAPE MEASUREMENTS OF THE LENGTH, WIDTH, AND DEPTH OF THE DEPOSITS IN QUESTION?

STATEMENT OF THE FACTS

¶12 International Paper began harvesting trees on its property upstream from Caracci's pond. As a result of IP's alleged negligent harvesting, large amounts of sedimentary deposits (sand) were washed downstream, and into Caracci's pond. Accordingly, Caracci ¶13 The following are the portions of the transcript which explain what transpired, resulting in the evidence-excluding sanction against the plaintiff:

sought compensation from IP, which denied liability.

Q. Okay. In June of 1989, what did Mr. McRae report he observed?

A. Well, he indicated--

BY MR. WILLIAMSON: Your Honor, I object. May we approach the Bench?

BY THE COURT: Yes, sir.

(OFF RECORD CONVERSATION AT THE BENCH)

BY THE COURT: Let the jury be retired.

WHEREUPON, THE JURY WAS RETIRED FROM THE COURTROOM, AND THE FOLLOWING PROCEEDINGS WERE HAD OUT OF THE PRESENCE OF THE JURY:

BY MR. WILLIAMSON: Should I restate for the record--

BY THE COURT: Just a minute. Let me read this answer here.

(PAUSE IN PROCEEDINGS)

BY THE COURT: Let me see the rule before we go any further.

(PAUSE IN PROCEEDINGS)

BY THE COURT: All right. I will hear your objection.

BY MR. WILLIAMSON: Your Honor, my objection is that that answer to interrogatory which we received and which was not in the Court file, we have no problem with it not being in the Court file, and I am sure Mr. Caracci will want to make that a part of this record, but it is not in the Court file. He said he thought he didn't have to file it. That's fine.

It is totally inadequate as an answer to expert interrogatory. We asked for the basis of opinions, the conclusions, the factual basis, every ground he was basing an opinion on. We don't even have all the opinions, except he says we were negligent, and one or two other things, and I will ask that--as a matter of fact, I will ask that this copy that you have just read of what they did answer, along with the question, be an exhibit to this proceeding.

BY THE COURT: To your objection?

BY MR. WILLIAMSON: Yes, sir, to our objection, for that purpose.

ANSWER TO INTERROGATORY REFERRED TO, BEING OFFERED AS AN EXHIBIT TO OBJECTION, WAS THEN AND THERE IDENTIFIED AND MARKED AS DEFENDANTS' FOR IDENTIFICATION NO. 1 AND MADE A PART OF THE RECORD HEREOF.

BY MR. WILLIAMSON: I want to also say we did receive another informal several page report. I told Mr. Caracci that I wanted it answered by interrogatory. He said he thought that was fine. I said, "Okay. I will take it up later on down the road." I am taking it up now.

We don't think that is proper, because it is not under oath. It is not in answer to formal interrogatory, as required, and we want...