Mubarak v. Sullivan

• Citation: 296 So.3d 156
• Decision Date: 12 May 2020
• Docket Number: NO. 2018-CA-01414-COA,2018-CA-01414-COA
• Parties: Darlene MUBARAK, Appellant v. Bethany H. SULLIVAN, Appellee
• Court: Court of Appeals of Mississippi

296 So.3d 156

Darlene MUBARAK, Appellant

v.Bethany H. SULLIVAN, Appellee

NO. 2018-CA-01414-COA

Court of Appeals of Mississippi.

May 12, 2020

ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON, Hattiesburg, SAMUEL STEVEN McHARD

ATTORNEY FOR APPELLEE: HERMAN M. HOLLENSED JR., Hattiesburg

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

TINDELL, J., FOR THE COURT:

¶1. Darlene Mubarak sued Bethany Sullivan for injuries Mubarak allegedly suffered during an automobile collision. After finding that Mubarak had committed a discovery violation, the Forrest County Circuit Court dismissed with prejudice her claims against Sullivan. On appeal, Mubarak argues the circuit court abused its discretion. Finding no error, we affirm the circuit court's judgment dismissing Mubarak's claims with prejudice.

FACTS

¶2. On December 18, 2012, Sullivan rear-ended Mubarak's vehicle while Mubarak was stopped at a traffic light. Mubarak's mother, Dalmira Mubarak, was a passenger in Mubarak's vehicle at the time of the collision. On March 19, 2015, Mubarak and Dalmira filed a complaint against (1) Sullivan, (2) the owner of the vehicle Sullivan had operated, and (3) John Does 1-5. Mubarak and Dalmira sought "special, punitive, and compensatory damages" for injuries they claimed they had sustained during the collision.

¶3. By an agreed order stamped as filed on March 22, 2016, the circuit court found that all Mubarak's and Dalmira's claims had been settled against the owner of the vehicle that Sullivan had operated at the time of the collision. The circuit court therefore granted the parties' joint motion to dismiss with prejudice the claims against the vehicle's owner. The circuit court noted, however, that all Mubarak's and Dalmira's claims against Sullivan remained unaffected by the order.

¶4. On June 23, 2016, Sullivan filed a motion to dismiss with prejudice Mubarak's claims against her. Sullivan contended that Mubarak had willfully and in bad faith concealed relevant information during her September 29, 2015 deposition. According to Sullivan, contrary to Mubarak's sworn deposition testimony, Mubarak's medical and pharmacy records revealed that Mubarak "had a history of neck and back pain prior to the subject accident[ ] and that she had been treated and prescribed narcotic pain medication and other medication for those conditions before the accident, as well as the anti-anxiety medication, Xanax

." Sullivan contended that Mubarak had even seen her treating physician, Dr. Dorothy Gillespie, for her complaints less than one month before the subject accident. Based on Mubarak's failure to disclose any of this information during her deposition, Sullivan moved for the dismissal of Mubarak's claims with prejudice pursuant to Mississippi Rule of Civil Procedure 37(b)(2)(C).¹

¶5. On March 21, 2017, the circuit court entered a judgment granting Sullivan's motion to dismiss Mubarak's claims with prejudice pursuant to Rule 37(b)(2)(C). The circuit court found that Mubarak had provided copies of only certain medical records during discovery. Mubarak's complete medical records indicated that Mubarak had visited Dr. Gillespie on December 16, 2011, and that in 2012, prior to the collision, she had visited Dr. Gillespie on January 18, August 21, and November 15. The circuit court found that at each of these visits with Dr. Gillespie Mubarak had "complained of neck and/or back pain, and medications were prescribed." Mubarak's pharmacy records indicated that she filled prescriptions for Lortab

, Xanax, and Soma on January 20, 2012, September 17, 2012, and November 20, 2012.

¶6. With regard to Mubarak's deposition testimony on September 29, 2015, the circuit court found as follows:

Contrary to her medical records, ... [Mubarak] testified that prior to the accident she had never been to any doctor for lower back problems, she could think of no time other than postpartum that she may have taken medicine for depression or anxiety, she took prescription pain medications after she had a baby and maybe when she had pneumonia

, she had never taken muscle relaxers, and ... if she had neck pain, it was

with the flu or from stress headaches. [Mubarak] also testified that she had been to see Dr. Gillespie before the accident for various ailments but that she had never gone to any doctor for neck or back pain. Given her medical records, [Mubarak] testified falsely about her preexisting medical conditions and their treatment—including [treatment she received] a little more than a month prior to the accident.

(Footnote omitted). Citing several Mississippi appellate opinions, the circuit court concluded that Mubarak's provision of deposition testimony that directly contradicted the medical and pharmacy records about her preexisting conditions and/or treatment justified the dismissal of her claims as an appropriate discovery sanction. The circuit court therefore granted Sullivan's motion to dismiss.

¶7. On September 4, 2018, the parties filed a "Stipulation of Dismissal with Prejudice," stating that Dalmira and the defendants had reached a settlement that fully and finally settled all the claims between them. The parties therefore asked that the circuit court dismiss Dalmira's civil action with prejudice to allow Mubarak to appeal the ruling dismissing her claims against Sullivan. On September 7, 2018, the circuit court entered an order finding that the agreed stipulation was appropriate and meritorious and that Mubarak's and Dalmira's claims had all been decided. The circuit court therefore dismissed Dalmira's civil action with prejudice, and Mubarak filed a notice of appeal regarding the dismissal of her claims.

STANDARD OF REVIEW

¶8. As the Mississippi Supreme Court recently explained:

This Court reviews the trial court's dismissal of an action for a discovery violation for abuse of discretion. We begin with a determination of whether the trial court applied the correct legal standard. If so, then we consider whether the trial court's decision was one of several reasonable ones which could have been made. We will affirm unless there is a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon [the] weighing of relevant factors. This Court also has said that it should engage in measured restraint in conducting appellate review and should not decide whether it would have dismissed the original action but whether dismissal amounted to clear error.

Edwards v. Coca Cola Bottling Co. United , 264 So. 3d 763, 768 (¶14) (Miss. 2019) (citations and internal quotation marks omitted).

DISCUSSION

¶9. Mubarak's sole argument on appeal is that the circuit court abused its discretion by dismissing her claims against Sullivan. As provided by Rule 37(b)(2)(C), and pursuant to "a trial court's inherent power to protect the integrity of the judicial process, trial courts have broad discretionary authority in discovery matters, including the power to dismiss an action." Edwards , 264 So. 3d at 768 (¶15). In determining whether the circuit court here abused its discretion by dismissing with prejudice Mubarak's claims, we consider the following:

First, dismissal is authorized only when the failure to comply with discovery obligations results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situations 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. at 769 (¶16) (quoting Pierce v. Heritage Props. Inc. , 688 So. 2d 1385, 1389 (Miss. 1997) ). Our caselaw defines "willfulness" as "either a willful, intentional, and bad[-]faith attempt to conceal evidence or a gross indifference to discovery obligations." Id. As discussed, "[o]ur review is limited to whether the dismissal amounted to clear error, not whether we would have dismissed the original action." Id. at 773 (¶28).

¶10. In the present case, on July 13, 2015, Mubarak's attorney provided responses to Sullivan's first set of interrogatories. The responses, however, lacked Mubarak's signature and were only signed by her attorney. Mubarak's attorney also produced various documents, including portions of Mubarak's medical records from Dr. Gillespie. Sullivan asserted, though, that the records were unauthenticated and failed to contain relevant pharmacy records. Sullivan further asserted that the produced medical records regarding Dr. Gillespie's treatment only dealt with Mubarak's visits on December 16, 2011; January 18, 2012; and August 21, 2012, and failed to include Mubarak's November 15, 2012 visit with Dr. Gillespie. Sullivan acknowledged that Mubarak provided her with a medical authorization, which Sullivan stated she used to obtain Mubarak's authenticated medical and pharmacy records and a complete record of Dr. Gillespie's treatment of Mubarak.

¶11. On September 29, 2015, Sullivan's attorney deposed Mubarak. In direct contradiction to her medical and pharmacy records, Mubarak testified that she had never seen a physician prior to the accident for lower back or neck problems. In addition, Mubarak testified that she had never taken muscle relaxants; she had only ever taken anxiety or depression medication after having a baby; she had only taken prescription pain medication after having a baby or contracting pneumonia

; and any pre-accident neck pain she had experienced was limited to having the flu or "stress headaches."

¶12. As Sullivan contended in her motion to...