Motorola Communications and Electronics, Inc. v. Wilkerson, 07-58674

• Decision Date: 20 December 1989
• Docket Number: No. 07-58674,07-58674
• Citation: 555 So.2d 713
• Parties: MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., and Luther A. Jasper v. Mrs. Mary WILKERSON, Individually and as Administratrix of the Estate of William Tyler, Deceased.
• Court: Mississippi Supreme Court

Page 713

555 So.2d 713

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., and Luther A Jasper v. Mrs. Mary WILKERSON, Individually and as Administratrix of the Estate of William Tyler, Deceased.

No. 07-58674.

Supreme Court of Mississippi.

Dec. 20, 1989.

Forrest W. Stringfellow, Daniel Coker Horton & Bell, Trudy D. Fisher, Daniel Coker Horton & Bell, Jackson, for appellant.

John L. Walker, Jr., Walker & Walker, Nausead L. Stewart, Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.

DAN M. LEE, Presiding Justice, for the court:

Appellee (plaintiff below) Mary Wilkerson, daughter of William Tyler, the decedent herein, (hereafter Tyler or the decedent), filed a complaint in her own name against the defendants, Motorola Communications and Electronics, Inc. (hereafter Motorola or Appellants) and its employee, Luther A. Jasper (hereafter Jasper or Appellants) on January 30, 1986, for the wrongful death of Tyler as a result of the February 4, 1980, collision between the vehicle driven by defendant Jasper and Tyler as Tyler attempted to cross Highway 80 on foot. The pleadings alleged that defendant Jasper's negligence caused or contributed to Tyler's death.

During discovery appellee learned of the existence of and secured the transcript of a recorded statement taken by an agent of appellant Motorola, George Murphy, from Tyler, on February 26, 1980 after his discharge from the hospital. The statement was taken at Tyler's home where no one was present except Murphy and Tyler. A The trial in this matter was set for June 8, 1987. On May 29, 1987, ten days prior to the trial, appellee supplemented her interrogatories to name Dr. Hill Williams as as expert who would testify at said trial. Appellants filed a motion on June 4, 1987, to exclude Dr. Williams' testimony. The motion was denied.

notice of intent to introduce portions of said statement into evidence was hand delivered to appellants on May 6, 1987.

The case was tried before judge and jury beginning on June 8, 1987 and a verdict for One Hundred and Fifty Thousand Dollars ($150,000.00) was returned in favor of appellee and judgment entered accordingly. Appellants' Motion For New Trial Or In The Alternative for JNOV, Or In The Alternative For Remittitur was denied. Notice of appeal was duly filed and the following assertions of error assigned:

1. The trial court erred in allowing the testimony of Dr. Hill Williams because (1) appellee did not seasonably supplement her responses to appellants' interrogatories identifying Dr. Hill Williams as an expert witness appellee expected to call at trial and the substance of his opinions; and (2) in the alternative, Dr. Hill Williams did not testify from an area of expertise, and he was not qualified as an expert to render an opinion.

2. The trial court erred by (1) allowing into evidence the transcribed recorded interview of the decedent and by (2) allowing into evidence the irrelevant and prejudicial testimony of several witnesses who were friends of the decedent and allowing into evidence personal photographs of the decedent.

3. The trial court erred in granting Jury Instruction Number P-8(b) which was a misstatement of the law and erroneous.

4. The trial court erred in denying appellants' Motion for a Directed Verdict, Peremptory Instruction and Motion for Judgment Notwithstanding the Verdict.

5. The trial court erred in denying appellants' Motion for a New Trial.

6. The trial court erred in denying appellants' Request for Remittitur.

FACTS OF THE CASE

The date was February 4, 1980. The time of day was approximately 6:00 P.M. or shortly thereafter. The sun had set; it was dark. The weather was clear, but cold. Luther A. Jasper was on his way home after a days' work. He was a zone manager for Motorola and drove about 45,000 to 60,000 miles per year without any prior accidents. Jasper resides in the northern portion of Clinton, Mississippi. On this day he had been to Meridian, MS, to call on some people. He returned to his Jackson office around 4:00 P.M., worked on some paperwork and proceeded home around 5:30 P.M. He normally drove westbound on I-20 to Springridge Road in Clinton, upon which he would continue in a northerly direction, crossing U.S. Highway 80, until arrival at his home. However, on this day Jasper needed to pick up an item at the Jitney Jungle grocery store which necessitated turning right, or in an easterly direction, onto Highway 80 which runs in an east-west direction. The car Jasper was driving was a 1979 four door Chrysler LeBaron sedan owned by Motorola. The car was in excellent condition--the headlights functioned properly and there was no damage to the car.

Jasper testified he was traveling no more than 30 m.p.h. in an area where the posted speed limit was 45 m.p.h. He frequently travelled this portion of Highway 80 and was familiar with the business establishments located near the scene of the accident. At this time Highway 80 was a two-lane highway with a third turning lane in the area of the collision discussed herein. The lights on his car were on low beam. Jasper did not know exactly how far he could see in front of his car, but the headlights on the car were aligned properly and functioned properly.

Meanwhile, William Tyler, an 85-year-old black man dressed in dark colored clothing proceeded on foot to cross Highway 80 In short, Jasper's car collided with Tyler. It was not a head-on collision. Jasper testified, "... something struck the side of my car." Jasper did not have time to apply the brakes on the car or to blow the horn prior to the impact.

from the north side to the south side at a location just to the east of its intersection with Mt. Salus Road, which runs north and south. His destination was the Bread House located on the south side of Highway 80. His purpose was to buy a loaf of bread.

Of course, Tyler was injured. He was taken to the emergency room at Hinds General Hospital where he was examined by Dr. Willford Joel Patterson who had been Tyler's family physician since 1972. Dr. Patterson determined that Tyler had "a contusion or a bruised area and abrasion over the left forehead," ... and that he complained of some pain and had bruises in "multiple areas." He also "had a laceration of the right elbow which was structured." ... He was admitted to the hospital because of his age and his "head trauma." "He ... seemed to do fairly well and was discharged on February the 7th of 1980. He seemed to be doing well."

Approximately a month later, on March 5, 1980, Tyler went to Dr. Patterson's office complaining of having trouble using his left leg and his left arm. Upon examination Dr. Patterson confirmed weakness in Tyler's left arm and leg and became concerned that the condition was caused by the damage to Tyler's head in the collision which had not been evident on the prior hospital stay. He had Tyler readmitted to the hospital. Dr. Michael Vise, a Board Certified Neurosurgeon, was brought into the case. Based on Tyler's medical history and examination, including a computer scan of the brain, he diagnosed Tyler's case as chronic bilateral subdural hematomas. Dr. Vise also testified that "[t]he occurrence of the subdural hematomas, which take a long period of time to develop, in this particular case, based upon a reasonable medical probability was causally related to [the February 4, 1980] accident...." Dr. Vise operated on Tyler, placing bur holes--these are drainage holes--in the skull to drain off the fluid. The fluid was drained and he improved. Unfortunately, fluid re-accumulated and a second operation was necessary. Tyler remained hospitalized. Dr. Vise testified, "He had made a marginal improvement." Plans were to move Tyler to a nursing home, but before this could be carried out Tyler had a heart attack and died on April 12, 1980, 68 days after the collision.

ISSUE No. 1

The trial court erred in allowing the testimony of Dr. Hill Williams because (1) appellee did not seasonably supplement her responses to appellants' interrogatories identifying Dr. Hill Williams as an expert witness appellee expected to call at trial and the substance of his opinions; and (2) in the alternative, Dr. Hill Williams did not testify from an area of expertise, and he was not qualified as an expert to render an opinion.

(1) Dr. Hill Williams, an assistant professor of Health and Physical Education, testified in rebuttal to the contentions of appellants that Tyler was "running" across Highway 80. One of his teaching assignments at Jackson State University is a course in biomechanics, which at the time of trial he had taught for ten years. "Biomechanics is an area of physical education which is taught at the graduate level which deals with analyzing motion movement; ... to see how efficient ... individuals can move and how ... best [to] move from point A to point B." His training in this area included the study and research in the area of advanced physiology of muscular exercise. Dr. Williams testified that it was his expert opinion that the maximum speed, over a 10 yard distance, an 85 year old person in average health could travel beginning from a stationary position would be 8 to 10 feet per second. His testimony was based upon reliable studies concerning the agility of senior citizens.

Appellants assert the trial court committed reversible error when it allowed Dr. Hill Williams to testify as as "expert witness" for appellee. First, a look at how this conflict arose.

The trial date was set for June 8, 1987. Appellants were under court order requiring appellants to respond to all discovery and requests for admissions directed to them on or before May 26, 1987.

On or about May 7, 1987, Appellants filed a Demand for Supplementation of all interrogatory answers and other discovery directed to Appellee. Thereafter, Appellee filed various supplementations to discovery responses previously filed in response to Appellants' discovery requests. On or...