Conklin v. Boyd Gaming Corp.

• Decision Date: 29 November 2011
• Docket Number: No. 2010–CA–01642–COA.,2010–CA–01642–COA.
• Parties: Frankie CONKLIN, Appellant v. BOYD GAMING CORPORATION d/b/a Sam's Town Casino, Appellee.
• Court: Mississippi Court of Appeals

75 So.3d 589

Frankie CONKLIN, Appellant

v.BOYD GAMING CORPORATION d/b/a Sam's Town Casino, Appellee.

No. 2010–CA–01642–COA.

Court of Appeals of Mississippi.

Nov. 29, 2011.

John H. Cox III, Greenville, attorney for appellant.

Scott Burnham Hollis, Robert T. Jolly, Olive Branch, attorneys for appellee.

Before LEE, C.J., ISHEE and CARLTON, JJ.

ISHEE, J., for the Court:

¶ 1. This appeal arises from a September 20, 2010 order of the Circuit Court of Tunica County, granting Boyd Gaming Corporation d/b/a Sam's Town Casino's (Boyd) motion to dismiss due to discovery violations by Frankie Conklin. Conklin brings two issues for our review: (1) whether the trial court erred in finding Conklin knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd's ability to defend the action and (2) whether the trial court erred by dismissing the action instead of imposing a less harsh sanction, if necessary. We find the trial court did not abuse its discretion in dismissing the complaint. We affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 10, 2005, Conklin visited Sam's Town Casino in Tunica County, Mississippi. He had attended a coaches' meeting at the hotel and casino. Following the meeting, as Conklin walked toward the front of the casino atrium, he slipped on an accumulation of water and fell. According to the accident report, Conklin hit his knee and the back of his head, but he had pain only in his knee. He had a small cut on his knee with slight swelling. A casino employee was dispatched to aid Conklin. The employee bandaged Conklin's knee, wrapped the injury with an Ace bandage, and applied a cold pack. Conklin then went to the Tunica Regional Clinic to receive follow-up treatment; he then returned to the hotel for the rest of the night.

¶ 3. On or about December 20, 2005, Conklin sought additional treatment at St. Francis Hospital when his ankle began to abscess, which he described as swollen with puss around it. He was admitted to the hospital and received intravenous (IV) antibiotics. Conklin was then discharged and given an oral antibiotic. On or about January 8, 2006, Conklin was re-admitted to St. Francis due to ongoing pain in his right leg. Dr. Margarita Lamothe examined Conklin and determined he had developed an abscess, which required a surgical incision and drainage. Conklin was then placed on continuous suppressive antibiotic therapy for the treatment of cellulitis.

¶ 4. On December 9, 2008, Conklin filed a complaint in the trial court alleging negligence against Boyd for injuries he had sustained during the fall. On January 20, 2009, Boyd filed an answer and affirmative defenses to Conklin's complaint. Discovery then took place. On June 16, 2010, Conklin filed a motion to amend the complaint seeking leave of court to more properly plead the allegations of his injuries and his requests for damages. On July 8, 2010, Boyd filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 37 and alleged Conklin had committed perjury and fraud during discovery by knowingly and intentionally giving false statements regarding his prior medical condition of cellulitis.

¶ 5. During the course of discovery, Boyd found that Conklin had been diagnosed and treated previously for cellulitis. It was discovered that on or about August 9, 2005, Conklin sought treatment at St. Francis for pain and swelling in his lower right leg. The notes from his physical exam indicate a clinical impression (diagnosis) of cellulitis. He was also given a venous-doppler exam, which found “varicosities, otherwise normal right lower extremity venous[-]doppler study.” Conklin was released from the hospital and prescribed an antibiotic to treat the cellulitis. He failed to disclose his hospital visit or diagnosis during discovery.

¶ 6. Following a hearing on the motion to dismiss, the trial court found that Conklin had failed to disclose relevant information regarding previous treatment of the leg at issue, and this omission prejudiced Boyd during its trial preparation. Based on those reasons, the trial court dismissed Conklin's complaint with prejudice.

¶ 7. Conklin now appeals claiming the trial court erred by (1) finding he knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd's ability to defend the action and (2) dismissing the action due to discovery violations instead of imposing a less harsh sanction, if necessary.

STANDARD OF REVIEW

¶ 8. This Court reviews a dismissal of a complaint by the trial court under an abuse of discretion standard. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997) (citing White v. White, 509 So.2d 205, 207 (Miss.1987)). The decision to impose sanctions for discovery violations is within the trial court's discretion. Id. Nevertheless, the trial court should only dismiss a cause of action because of discovery violations under the most extreme circumstances. Id. (citation omitted). The appellate court looks to the following four factors adopted by the Mississippi Supreme Court to determine if the dismissal of a complaint is the appropriate remedy for discovery violations:

First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.

Id. (quoting Batson v. Neal Spelce Asscs., 765 F.2d 511, 514 (5th Cir.1985)). We will affirm the trial court's decision “unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’ ” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)).

DISCUSSION

I. Trial Court's Findings

¶ 9. Conklin argues the trial court erred by finding he knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd's ability to defend the action. Conklin claims: (1) his conduct was not intentional or willful, but rather that he did not know what the term “cellulitis” meant and simply confused the term with “cellulite”; (2) he did not provide information about his August 2005 leg problems because he did not consider the symptoms similar to those resulting from the December 2005 fall; (3) he did not withhold any requested document because he produced all responsive documents and records in his possession and in his counsel's possession, and he signed numerous medical releases; (4) his answers during his deposition were a result of confusion regarding the questions being asked; and (5) there is no evidence his actions prejudiced Boyd's defense during trial preparation.

¶ 10. We will begin our analysis by looking at Conklin's course of conduct during discovery. He had several opportunities during discovery to disclose his August 2005 leg problem, but he never did. His first opportunity was in his response to interrogatories. The relevant interrogatories are as follows:

INTERROGATORY NO. 15. Identify each body part you claim was injured in this accident and describe the nature of the injuries.

RESPONSE: Plaintiff seriously injured his right leg, including numerous abscesses (cellulitis), as a direct result of the negligence of Defendant. Plaintiff was required to undergo surgery to treat the injury to his right leg and has suffered greatly as a result of this injury.

INTERROGATORY NO. 16. Regarding only the body parts you are claiming in this suit were injured, please identify and describe in detail any and all physical injuries, ailments, problems[,] and conditions of any nature whatsoever which you had during the five[-]year period preceding the date of the subject fall.

RESPONSE: Plaintiff has received treatment for high blood pressure and diabetes during the five[-]year period preceding the date of the subject fall to the present.

Conklin had a second opportunity to disclose his prior leg problems in his response to Boyd's request for production of documents. The relevant request is as follows:

REQUEST NO. 14. All medical records, reports, summaries[,] or like documents which in any manner relate to any physical, mental[,] or emotional problems you had concerning the same body part or injuries before and/or after the date of the subject fall, as identified in your response to Interrogatory No. 15, and treatment received for those conditions.

RESPONSE: Plaintiff has no documents responsive to this request.

Finally, Conklin had the opportunity to admit his prior leg problems during his deposition, which he again failed to do. The following are examples of misstatements made throughout his deposition:

Q. In Interrogatory Number 16, we asked[:] “Regarding only the body parts you are claiming in this suit that were injured, please identify and describe in detail any and all physical injuries, ailments, problems and conditions of any nature whatsoever which you had during the five[-] year period preceding the date of the subject fall.” Do you understand the question?

A. Yes.

Q. Your response is[:] “The plaintiff had received treatment for high blood pressure and diabetes during the five[-]year period preceding the date of the subject fall to the present.” That was your answer, if you want to look at it. I just want to verify that.

A. Okay.

Q. All right. And that's still the case?

A. Yes.

....

Q. So, other than the left ankle, the migraines,...