Robert v. Colson, 97-CA-01084-SCT.

• Decision Date: 14 January 1999
• Docket Number: No. 97-CA-01084-SCT.,97-CA-01084-SCT.
• Parties: Barbara J. ROBERT v. Richard COLSON, M.D.
• Court: Mississippi Supreme Court

729 So.2d 1243

Barbara J. ROBERT v. Richard COLSON, M.D.

No. 97-CA-01084-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Rehearing Denied March 25, 1999.

Robert W. Smith, Biloxi, Attorney for Appellant.

Stephen Giles Peresich, Mary A. Nichols, Biloxi, Attorneys for Appellee.

Before PRATHER, C.J., and McRAE and WALLER, JJ.

WALLER, Justice, for the Court:

SUMMARY

¶ 1. This appeal arose from a medical negligence suit filed by Barbara J. Robert against Dr. Richard Colson February 2, 1996. Robert alleged Colson committed medical malpractice when Colson negligently injured Robert's ureter during a hysterectomy. Colson propounded an interrogatory asking Robert to identify the expert witnesses she intended to call at trial. Robert answered this interrogatory September 3, 1996 by stating "No decision has been made concerning any experts which may be relied upon. This response will be supplemented at the appropriate time." Harrison County Circuit Court Judge Jerry O. Terry, issued a protective order November 14, 1996, preventing Robert from taking Colson's deposition by video.

¶ 2. On March 24, 1997, because Robert had failed to identify any experts, Colson moved to dismiss the case or in the alternative compel Robert to answer Colson's interrogatory and name an expert. On March 25, 1997, Robert filed a supplemental response and identified Dr. Harold Wittcoff as an expert and detailed the substance of his proposed testimony.

¶ 3. Judge Terry held a hearing June 16, 1997, on Colson's motion. On August 14, 1997, Judge Terry on his own motion struck Robert's supplemental answer and as a sanction dismissed the case, finding Robert's initial answer to Colson's interrogatory was "a failure to answer at all." All motions to reconsider were denied. Robert appealed listing four issues.

I. WHETHER IT IS A DISCOVERY VIOLATION TO ANSWER "I DO NOT KNOW" TO AN EXPERT INTERROGATORY

II. WHETHER FILING A SUPPLEMENTAL ANSWER TO AN EXPERT INTERROGATORY NINE MONTHS BEFORE TRIAL IS A DISCOVERY VIOLATION

III. WHETHER DISMISSAL OF PLAINTIFF'S CASE WAS IMPROPER

IV. WHETHER PROHIBITING DR. COLSON'S VIDEO DEPOSITION WAS A VIOLATION OF RULE 30 OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE

FACTS OF THE CASE

¶ 4. On January 16, 1995, Dr. Richard Colson performed a hysterectomy on Barbara Robert. Robert alleged Colson negligently injured Robert's ureter during the procedure. Robert filed suit against Colson in Harrison County Circuit Court February 2, 1996.

¶ 5. On April 5, 1996, Colson submitted his answer and defenses to Robert's complaint. Three days later on April 8, 1996, Colson served Robert with a "First Set of Interrogatories and Requests for Production of Documents Propounded to the Plaintiff." By May 8, 1996, the time the answers were due under Mississippi Rule of Civil Procedure 33, Robert had not responded. On May 14, 1996, Robert asked Colson for more time to produce the required discovery. Colson's counsel agreed.

¶ 6. By July 4, 1996, the date for completion of all discovery under Uniform Rule of Circuit and County Court Practice 4.04, Robert had not answered Colson's interrogatories. Colson wrote to Robert August 30, 1996, asking for answers to the interrogatories. On September 3, 1996, Robert answered Colson's interrogatories. These answers included the statement: "No decision has been made concerning any experts which may be relied upon. This response will be supplemented at the appropriate time." This answer was in response to Colson's interrogatory asking for a list of Robert's experts and their opinions to be discussed at trial.

¶ 7. On September 3, 1996, Robert also gave notice she would depose Colson October 17, 1996. Robert amended her notice of deposition October 10, 1996, and again October 15, 1996. In the second amendment, Robert indicated Colson's deposition would be taken by "oral examination and video recorder." Colson objected to a video deposition and filed a motion for a protective order preventing Robert from taking Colson's deposition by video. Judge Terry granted Colson a protective order finding Colson, "resides and practices locally and is available for trial."

¶ 8. Robert moved to set a date for trial and Judge Terry held a hearing, March 24, 1997. Judge Terry set the trial date for December 8, 1997.

¶ 9. On March 24, 1997, because Robert had failed to identify any experts, Colson moved to dismiss the case or in the alternative to compel Robert to answer Colson's interrogatory and name an expert. On March 25, 1997, Robert filed a supplemental response and identified Dr. Harold Wittcoff as an expert and detailed the substance of his proposed testimony.

¶ 10. Judge Terry held a hearing on Colson's motion to dismiss June 16, 1997. On August 14, 1997, Judge Terry on his own motion struck Robert's supplemental answer and as a sanction, dismissed the case, finding Robert's initial answer to Colson's interrogatory was "a failure to answer at all." All motions to reconsider were denied. Robert appealed.

DISCUSSION OF LAW

Standard of Review

¶ 11. Trial courts have considerable discretion in discovery matters and decisions will not be overturned unless there is an abuse of discretion. Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992).

I. WHETHER IT IS A DISCOVERY VIOLATION TO ANSWER "I DO NOT KNOW" TO AN EXPERT INTERROGATORY

II. WHETHER FILING A SUPPLEMENTAL ANSWER TO AN EXPERT INTERROGATORY NINE MONTHS BEFORE TRIAL IS A DISCOVERY VIOLATION

¶ 12. Seeking expert proof as allowed under Mississippi Rule of Civil Procedure 26, Colson submitted the following interrogatory to Robert on April 8, 1996:

INTERROGATORY NO. 3: Identify fully, giving the name, address, telephone number, specialty, are a of expertise, and education and training of each expert witness that the Plaintiff or her attorneys expect to call at the trial of this case, and state the following for each such expert witness: (a) The subject matter, in specific detail, on which each expert is expected to testify; (b) The substance of all facts to which each expert is expected to testify; (c) The substance of all opinions to which each expert is expected to testify; and (d) Give a complete summary of the grounds for each opinion to which each expert is expected to testify.

¶ 13. On September 3, 1996, Robert submitted her answer to this interrogatory: "No decision has been made concerning any experts which may be relied upon. This response will be supplemented at the appropriate time." On March 24, 1997, Colson moved to dismiss the case or in the alternative to compel Robert to answer Colson's interrogatory and name an expert. On March 25, 1997, Robert filed a supplemental response and identified Dr. Harold Wittcoff as an expert and detailed the substance of his proposed testimony.

¶ 14. The trial judge found Robert had not timely filed her answers as required by Mississippi Rule of Civil Procedure 33. Rule 33(a) provides in part "[t]he party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty days after service of the interrogatories...." Miss. R. Civ. P. 33(a). The trial judge further found Robert's late answer to be a "failure to answer at all" under Mississippi Rule of Civil Procedure 37(a)(3). Rule 37(a)(3) provides "[f]or purposes of this section, an evasive or incomplete answer is to be treated as a failure to answer." Miss. R. Civ. P. 37(a)(3). The court also noted Uniform Rule of Circuit and County Court Practice 4.04(A) requires all discovery to be "completed within ninety days from service of an answer by the applicable defendant." URCCC 4.04(A). Based on his interpretation of Mississippi Rules of Civil Procedure 26, 33 and 37 and Uniform Rule of Circuit and County Court Practice 4.04A, the trial judge found Robert failed to comply with applicable discovery requirements and found such a failure warranted a sanction of dismissal. ¶ 15. Robert argues the trial judge was incorrect in finding her answers were in violation of the above cited discovery rules. In support of her contention "I don't know" is an appropriate response to an expert interrogatory in the early stages of pre-trial proceedings, Robert cites Harris v. General Host Corporation, 503 So.2d 795 (Miss.1986).

¶ 16. In Harris, customer Harris brought an action against a general store for injuries caused by an improperly functioning entrance door. Harris, 503 So.2d at 795-96. Harris propounded an interrogatory asking for "3. Names of all experts you intend to call." Id. at 796. General Host answered "As to interrogatory numbered three (3.), this has not been determined at this time." Id. Some months later, General Host supplemented its response and informed Harris it intended to call Dr. Christopher E. Wiggins as an expert witness. Id. At trial, General Host called Dr. Charles H. Allen, Jr. in rebuttal. Id. Harris objected to Dr. Allen's testimony because he had not been listed among the witnesses General Host intended to call at trial nor had he been listed as one of General Host's expert witnesses. Id.

¶ 17. In reversing the trial court's decision to allow Dr. Allen testify, this Court emphasized the need to seasonably disclose discoverable information.

When at an early stage of the pre-trial proceedings, interrogatories request the names of witnesses to be called by trial, quite often the answering party may legitimately respond that he does not yet know. Recognizing this, our rules provide that responses be supplemented, particularly where the interrogatory asks for disclosure of expert witnesses. The discovery violation suggested here is not that General Host failed to list Dr. Allen at the time its initial responses were filed on February 23, 1983. Rather, our concern is that General Host did not disclose the name of Dr. Allen "seasonably" upon determining that Dr. Allen would likely be a witness and, in any event, sufficiently far in advance of trial to afford Harris and

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