Scoggins v. Ellzey Beverages, Inc., 98-CA-00766-SCT.

• Decision Date: 05 August 1999
• Docket Number: No. 98-CA-00766-SCT.,98-CA-00766-SCT.
• Citation: 743 So.2d 990
• Parties: Mildred SCOGGINS v. ELLZEY BEVERAGES, INC.
• Court: Mississippi Supreme Court

743 So.2d 990

Mildred SCOGGINS v. ELLZEY BEVERAGES, INC.

No. 98-CA-00766-SCT.

Supreme Court of Mississippi.

August 5, 1999.

Joe Dale Walker, Monticello, Attorney for Appellant.

Stuart Robinson, Jr., Chad Russell, Jackson, Attorneys for Appellee.

BEFORE PITTMAN, P.J., WALLER AND COBB, JJ.

STATEMENT OF THE CASE

WALLER, Justice, for the Court:

¶ 1. This appeal arises from a dismissal by the Lawrence County Circuit Court of a lawsuit because of the plaintiff's abuse of discovery. Mildred Scoggins sued Ellzey Beverages, Inc., for injuries received in a Piggly Wiggly grocery store in Monticello, Mississippi. Pursuant to Mississippi Rule of Civil Procedure 37, Circuit Judge R.I. Prichard, III, dismissed Scoggins's suit with prejudice because Scoggins failed to report in sworn discovery responses (1) certain medical treatments she received; (2) medications she was prescribed; and (3) injuries she received similar to those complained of in the suit.

¶ 2. Scoggins appealed the dismissal, listing one assignment of error:

THE HONORABLE CIRCUIT COURT JUDGE ABUSED HIS DISCRETION WHEN HE DISMISSED THE COMPLAINT OF THE PLAINTIFF WITH PREJUDICE.

FACTS OF THE CASE

¶ 3. Mildred Scoggins was seventy years old when the March, 1994, accident occurred. On January 13, 1997, Scoggins filed a complaint against R & M Foods, Inc., Lee Warren and Ellzey Beverages, Inc, alleging that on March 16, 1994, she was injured in a Piggly Wiggly Grocery Store owned and operated by R & M, when Lee Warren, an employee of Ellzey, hit Scoggins with a loaded dolly causing injuries to her foot, leg and back. R & M and Warren were later dismissed from the lawsuit.

¶ 4. The facts of this case related to the grocery store accident are not at issue in this appeal. The appeal is based on the trial court's decision to dismiss Scoggins's case with prejudice as a sanction for discovery violations.

¶ 5. On February 12, 1997, Ellzey submitted interrogatories and requests for production of documents to Scoggins. Some time later, Scoggins submitted her answers. Ellzey deposed Scoggins on October 23, 1997. Scoggins amended her answers to Ellzey's interrogatories on January 12, 1998. As part of her response to Ellzey's interrogatories and requests for production of documents, Scoggins executed an authorization to release medical information which Ellzey used to obtain copies of Scoggins's medical records.

¶ 6. In interrogatories 16, 17 and 18 submitted February 12, 1997, Ellzey asked Scoggins for information related to her medical history. Scoggins was asked about the injuries sustained as a result of the Piggly Wiggly accident, prior injuries to the areas she claimed were injured in the accident, and the times she had been treated by a physician for injuries in the past. Scoggins responded to Ellzey's interrogatories by stating, "I have never sustained an injury to the portions of my body I claim were injured in the accident, except that in 1958, I was playing softball and received a pinched nerve in my back. I had surgery on the pinched nerve.... I completely recovered from the surgery on my back in about six months." Scoggins listed only two instances when she received treatment before the accident at Piggly Wiggly: (1) a 1948 hysterectomy and (2) the 1958 pinched nerve described above.

¶ 7. Ellzey deposed Scoggins on October 23, 1997. During this deposition, Ellzey asked Scoggins many questions about whether she had ever suffered injuries to her back, arms, legs or hips before the accident on March 16, 1994. Scoggins repeatedly stated she had no problems before the accident. Scoggins said that before the accident on March 16, 1994, she was treated for a kidney stone at St. Dominic Hospital, but otherwise she was in good health.

¶ 8. Medical records obtained by Ellzey from Scoggins's personal physician, Dr. Pace, after the October 23, 1997, deposition, showed Scoggins had been examined and/or treated for pain, numbness and/or arthritis in her left leg, back, hip and/or spine on thirty-five separate visits from October 5, 1976, through January 21, 1994. These records showed that before the March 16, 1994, accident, Scoggins suffered from widespread arthritis in her knees, hips, lower back, shoulder, neck and elbows. The records also showed Scoggins was prescribed Xanax on June 17, 1993, and was treated with Xanax through January 21, 1994. During her January 21, 1994, visit to Dr. Pace, less than three months before the accident on March 4, 1994, Scoggins complained of pain in "the left shoulder" and "tenderness, back pain and stiffness in the spine."

¶ 9. Other records obtained by Ellzey included a surgery consent form signed by Scoggins before a lumbar omnipaque myelogram was performed by Dr. Bowlus on March 19, 1991. Before admission to St. Dominic Hospital for this procedure, Scoggins complained of lower back and leg pain and pain in her back, hip and left leg all the way to her left great toe.

¶ 10. Ellzey filed a Miss. R. Civ. P. 37 motion to dismiss on January 20, 1998, arguing Scoggins committed perjury and committed a fraud upon the court by giving false statements regarding her prior back ailments and other medical problems and her taking of the prescription drug Xanax. Specifically, Ellzey charged Scoggins perjured herself by: (1) failing to name all the physicians who treated her before the accident; (2) failing to list all the aliments from which she suffered before the accident; (3) denying she was prescribed Xanax before the accident; and (4) failing to mention the lumbar omnipaque myelogram performed on March 18, 1991.

¶ 11. Scoggins responded to Ellzey's motion by denying she committed perjury, but stating that she listed all medical treatments and conditions she remembered. Scoggins stated she was seventyfour years old at the time her deposition was taken and her husband and sister both died shortly after the March, 1994, accident. Scoggins response was essentially, "I am an old woman who has been through a lot. I did the best I could to remember everything."

¶ 12. In response to Ellzey's motion, the trial court issued an order setting an evidentiary hearing for March 9, 1998, to give Scoggins an opportunity to respond to Ellzey's charge. It is clear from the record at this stage in the proceedings the trial court recognized the severity of a possible dismissal and attempted to give Scoggins every opportunity to rebut Ellzey's charge.

¶ 13. At the evidentiary hearing Scoggins testified that she was nervous and upset at her deposition, but did the best she could to answer Ellzey's interrogatories and deposition questions. Scoggins said when Ellzey's attorney asked her about prior medical problems, she either did not remember visiting a doctor or did not think her prior medical problems were important. Ellzey's attorney questioned Scoggins about her thirty-five visits to Dr. Pace and the myelogram. Ellzey's attorney also questioned Scoggins about a balloon-catheterization procedure in her left leg. Scoggins said she did not think those procedures were important because they did not pertain to her accident.

¶ 14. After the evidentiary hearing, the trial court granted Ellzey's motion to dismiss by order of April 13, 1998. After reviewing Scoggins's testimony in the evidentiary hearing, her answers to interrogatories, her medical records and her deposition testimony, the trial court found Scoggins's explanation for the discrepancies in the various records and testimony was not credible. In all of her responses to interrogatories and in her deposition, Scoggins denied having suffered any physical difficulties related to her back, hip or legs other than the 1958 softball injury. She also denied any incidents of arthritis or degenerative disc disease. She further stated she began taking Xanax only after the grocery store accident. Scoggins also stated she had never been treated for lower back problems, other than in 1958. In its final order of dismissal, the trial court pointed out how these assertions simply did not correspond to Scoggins's medical records. The lower court found that Dr. Pace's medical records

show[ed] innumerable visits by Ms. Scoggins over a fourteen year period from 1976 to 1991. In many of these visits, the complaints listed deal with pain or debilities of the lower back, hips and legs. These same documents also indicate that Ms. Scoggins suffered from degenerative disc disease, herniated cervical discs and widespread arthritis in her knees, hips, lower back, neck and shoulder. Finally the documents indicate Ms. Scoggins began taking Xanax by prescription in June 1993, more than eight months prior to the subject accident.

* * * *

Ms. Scoggins professes to have never been treated for lower back problems, other than in 1958. Yet, she entered St. Dominic's Hospital on March 18, 1991 complaining of pain in the lower back and left leg.

* * * *

Ms. Scoggins signed a surgery consent form to undergo a lumbar omnipaque myelogram. This procedure is an invasive exploratory technique designed to investigate the causes of lower back pain. It is unusually painful and involves the insertion of a needle into the patient's spine, through which a dye is injected. Nevertheless, Ms. Scoggins did not mention any such procedure in her discovery responses or her deposition.

¶ 15. The trial court did not accept Scoggins's explanation of the discrepancies. The court found Scoggins's attempts to attribute her memory loss to effects of the death of her husband and sister shortly after the accident and to TIA, transient ischemic attack,¹ to be not credible. The lower court found that even though all these factors taken together could possibly have influenced Scoggins's memory to some degree, "the Court is hardly a medical authority and cannot be expected to make such a diagnosis. Additionally, both parties were admonished to bring to the hearing and all witnesses they felt necessary to bolster their respective positions." Scoggins...