Huff v. Polk, 53182
| Decision Date | 27 January 1982 |
| Docket Number | No. 53182,53182 |
| Citation | 408 So.2d 1368 |
| Parties | Mrs. Inez HUFF v. Dr. Octavius D. POLK. |
| Court | Mississippi Supreme Court |
Banks & Nichols, C. C. Anderson, Jr., Jackson, for appellant.
Snow, Covington, Temple & Watts, W. Arlo Temple, Ready & Prichard, P. A., William E. Ready, Meridian, for appellee.
Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
This appeal comes from the Circuit Court of Lauderdale County. Appellant Mrs. Inez Huff filed her suit against appellee Dr. Octavius D. Polk alleging that Dr. Polk was guilty of malpractice leading to the death of appellant's husband Dr. J. E. Huff. There was a jury verdict for the defendant (appellee here, Dr. Polk). Appellant assigns only one alleged error; that is:
The court erred in overruling appellant's motion in limine and continuing objection to the testimony of the appellee's expert witnesses.
The facts on the issue presented to this Court are practically undisputed, and we will discuss the record as it pertains to the only issue involved.
The trial of the case in the circuit court started on the morning of February 18, 1981. The alleged error occurred immediately prior to the start of the trial when appellant's attorney filed a motion in limine objecting to the testimony of three doctors whom appellee's attorneys advised would testify for appellee. They were Doctors John Atwood, Joe S. Covington, and John Clay. The first two doctors were named in a written instrument handed appellant's attorney styled "Supplemental Answers to Interrogatories." The possible testimony of Dr. Clay was related to appellant's attorney orally.
On May 5, 1980, appellant's attorney filed interrogatories to be answered by appellee Dr. Polk pursuant to the provisions of Sections 13-1-201-226, Mississippi Code Annotated (Supp.1980). Interrogatory No. 35 was as follows: "Is there any person that the defendant expects to call as an expert witness at trial?" Interrogatory No. 36 coincided with the statute regarding discovery involving expert witnesses, as shall hereinafter be discussed.
On July 4, 1980, appellee's attorneys secured five days additional time to file answers to the interrogatories. The answer to Interrogatory No. 35 was "Not determined at this time." The answer to No. 36 was "Not applicable." These answers were filed on August 4, 1980. No further answers or information of any kind regarding these interrogatories and the answers were given appellant's attorney prior to the morning of the trial as hereinbefore related.
On August 29, 1980, appellant's attorney filed a motion for a peremptory setting of the cause for trial. A similar motion was filed by appellee's attorney on September 2, 1980. The lower court then entered an order setting the case for trial on November 3, 1980. On October 28, 1980, an order was entered by the lower court resetting the case for trial on February 2, 1981. On January 27, 1981, appellee's attorney filed a motion for a continuance due to medical disability of appellee. The court then entered another order setting the case for trial on February 18, 1981.
As heretofore stated, shortly before the trial began on February 18, 1981, one of appellee's attorneys handed appellant's attorney the supplemental answers to interrogatories listing two doctors that would be called as experts and orally advised that another might be called. Appellant's attorney promptly dictated into the record his motion to exclude the testimony of the proposed expert witnesses as their names were not divulged to him until the day of the trial and he had no chance to prepare as far as they were concerned.
One of the appellee's attorneys gave as one reason in his argument that no harm was done appellant, as appellant's attorney could not communicate with the experts; this being prohibited by the privileged communications statute (Section 13-1-21, Miss.Code 1972 Ann.). A disposition of this contention may readily be made by examining the statute which clearly makes privileged only communications made to a physician or surgeon by a patient. There is no contention in the case sub judice that the alleged experts to be called ever treated appellant's deceased husband. Appellant's attorney therefore had a clear right, if not a duty, to further investigate the proposed experts after that information was divulged to him. Furthermore, it was revealed that appellee had talked with appellant's expert days before the trial date.
We need next to look at the discovery statutes in question, which statutes were passed by the Mississippi Legislature in 1975 and went into effect on January 1, 1976. The language of the statutes are clear as to their requirements. Section 13-1-226(b)(4) titled "Trial Preparation: Experts" states:
Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this section, and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party 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. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subsection (b)(4)(C) of this section, concerning fees and expenses as the court may deem appropriate.
As we heretofore have seen, appellant's attorney, in filing his interrogatories many months prior to trial, strictly followed the provisions of the above legislative mandate.
Subsection (e) of the discovery statute in question under the title "Supplementation of Responses" provides:
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
As we heretofore have seen, the original answer to the interrogatory under the above discovery statutes merely stated: "Not determined at this time." No supplement or other information regarding experts was given appellant's attorney until immediately prior to the start of the trial.
The lower court, in an attempt to expedite the questions before him, first stated that he would permit appellee to introduce one of the doctors and only ask him a hypothetical question. The court was then informed by one of the appellee's attorneys that it was their intention for the experts to...
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