Square D Co. v. Edwards, 53160

• Decision Date: 11 August 1982
• Docket Number: No. 53160,53160
• Citation: 419 So.2d 1327
• Parties: SQUARE D COMPANY v. Louis E. EDWARDS.
• Court: Mississippi Supreme Court

Page 1327

419 So.2d 1327

SQUARE D COMPANY v. Louis E. EDWARDS.

No. 53160.

Supreme Court of Mississippi.

Aug. 11, 1982.

Rehearing Denied Oct. 27, 1982.

Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Grady F. Tollison, Jr., Mary Ann Connell, Oxford, for appellant.

Omar D. Craig, William K. Duke, Oxford, for appellee.

Before SUGG, BROOM and BOWLING, JJ.

SUGG, Presiding Justice, for the Court:

The appellee Louis E. Edwards, filed suit in the Circuit Court of Pontotoc County against Square D Company and Robbins & Myers, Inc., seeking damages for injuries he sustained while using a Robbins & Myers hoist controlled with a push button switch box manufactured by Square D Company. The jury found in favor of appellee against Square D Company, and assessed damages at $50,000. We consider only the question of whether plaintiff should have supplemented his answers to interrogatories propounded by Square D. Our decision in this question requires a reversal and remand for a new trial.

In Interrogatory No. 1, plaintiff was requested to furnish the names and addresses of all experts he expected to call as witnesses to give opinion testimony, and in Interrogatory 1-G, the substance of the opinions to which such experts were expected to testify. Plaintiff answered the interrogatories on January 24, 1979 and listed the name of his expert as Robert E. Briggs and in response to Interrogatory 1-G stated, "Unknown as no oral or written opinion has been expressed or furnished to me or my counsel." Plaintiff filed a supplemental answer to the interrogatories on March 11, 1980 and supplemented his answer to Interrogatory 1-G in the following language: "See deposition taken on June 20, 1979."

Plaintiff's claim was predicated on evidence that the switch manufactured by Square D was defectively designed. At trial, plaintiff's expert, Briggs, testified that three defects existed in the design of the switch manufactured by Square D; however it was developed on cross examination that the expert did not list the three defects in design in his deposition of June 20, 1979 that he testified to at trial. Therefore, the question of whether plaintiff was under a duty to supplement his answer to Interrogatory 1-G is squarely before the Court.

Section 13-1-226 ¹ Mississippi Code Annotated (Supp.1981) permits a party, through interrogatories, to require any other party to identify the names of experts expected to be called as witnesses and to state the subject matter, and substance of the facts and opinions to which such expert is expected to testify.

(4) Trial preparation: experts. 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. [Mississippi Code Annotated, Section 13-1-226(b)(4)(A) (Supp.1981) ]

In the event the initial responses do not adequately divulge the names of experts and the substance of the facts and opinions to which such experts are expected to testify, such party is under a duty seasonably to supplement a prior response.

(e) Supplementation of responses. 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. [Mississippi Code Annotated Sec. 13-1-226(e) (Supp.1981) ]

In Clark v. Mississippi Power Company, 372 So.2d 1077 (Miss.1979) defendant propounded interrogatories to the plaintiff. Interrogatory 37 requested the name of any expert witness, the subject matter on which the expert was expected to testify, the substance of the facts and opinions as to which such expert was expected to testify, and for a summary of the grounds for each such opinion. Plaintiff's answer was, "None at the present time, but there will be an expert; name will be furnished later." The name of the expert was not furnished until the morning of the trial and on the second day of trial the expert was presented as a witness. Upon objection by defendant, the trial court ruled that the expert could not testify because of the failure of plaintiff to conform to section 13-1-226. On appeal, we affirmed the action of the trial court.

In Huff v. Polk, 408 So.2d 1368 (Miss.1982) plaintiff propounded interrogatories to the defendant. In one interrogatory plaintiff asked the defendant if he expected to call expert witnesses and in another interrogatory for the substance of the experts' testimony. In answer to the first interrogatory de...