Thompson v. Patino

Decision Date10 May 2001
Docket Number No. 97-CT-01161-SCT., No. 97-CT-00971-SCT, No. 97-CT-01053-SCT
Citation784 So.2d 220
CourtMississippi Supreme Court
PartiesKarin King THOMPSON v. Carlos S. PATINO, M.D., John P. Gorecki, M.D., and St. Dominic-Jackson Memorial Hospital.

Barry W. Gilmer, Jackson, for appellant. George Quinn Evans, Jackson, Alleen McClain; Stephen P. Kruger, Jan F. Gadow, Ridgeland, Christopher A. Shapley, Kathyrn Gilchrist, Jackson, for appellees.

EN BANC.

ON MOTIONS FOR REHEARING

WALLER, Justice, for the Court:

¶ 1. The motions for rehearing are denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. This appeal concerns what sanctions are appropriate for a discovery violation in a civil action. In this medical malpractice case, the circuit court struck as untimely the plaintiff's supplementation of discovery responses identifying her expert witnesses and struck the affidavit of one of the plaintiff's experts submitted in opposition to the defendants' summary judgment motions. The circuit court then granted the summary judgment motions and dismissed the plaintiff's action. The Court of Appeals affirmed. We granted certiorari to consider the question of whether this sanction is consistent with this Court's case law on the matter.

¶ 3. After due consideration, we find that the Circuit Court of the First Judicial District of Hinds County, Mississippi, abused its discretion in striking the plaintiffs discovery supplementation concerning her expert witnesses and the affidavit of her expert with the result that the circuit court erred in ruling on the defendants' summary judgment motions without considering the plaintiffs expert affidavit and supplemental responses. We, therefore, reverse the judgments of the circuit court and the Court of Appeals and remand this case to the circuit court for further proceedings in accordance with this opinion.

STATEMENT OF THE CASE AND FACTS

¶ 4. On February 9, 1993, Karin King Thompson underwent neurological surgery at St. Dominic-Jackson Memorial Hospital in Jackson, Mississippi. The surgery was performed by John P. Gorecki, M.D., with Carlos S. Patino, M.D., serving as anesthesiologist. Following surgery, Thompson's tongue became severely swollen. As a result, she began experiencing breathing difficulty and went into cardiac arrest. Medical personnel performed an emergency tracheostomy. On February 16, 1994, Thompson filed this suit for damages in the Circuit Court of the First Judicial District of Hinds County, Mississippi, alleging medical malpractice and naming Dr. Patino, St. Dominic, and ten unnamed individuals as defendants.

¶ 5. On March 11, 1994, St. Dominic served Thompson with interrogatories and requests for production of documents. On March 15, 1994, Dr. Patino did likewise. One of Dr. Patino's interrogatories requested that Thompson name the experts whom she intended to call at trial and the substance of the facts and opinions about which the experts were expected to testify.

¶ 6. After Thompson failed to respond to the discovery requests, on May 16, 1994, and June 8, 1994, St. Dominic and Dr. Patino filed motions to compel. On June 17, 1994, the circuit court ordered Thompson to respond to the discovery within 7 days.

¶ 7. On June 24, 1994, Thompson served St. Dominic and Dr. Patino with her responses to their interrogatories. Therein she named Bernard Patrick, M.D., and William Causey, M.D., as expert witnesses but she failed to state what their opinions would be.

¶ 8. On July 14, 1994, Thompson filed a motion for extension of time to conduct discovery. On February 10, 1995, Thompson amended her complaint to add Dr. Gorecki as a defendant. By agreed order dated September 25, 1995, the circuit court extended discovery for 90 days.

¶ 9. In September, 1996, Thompson deposed Dr. Gorecki.

¶ 10. On October 18, 1996, Thompson requested an additional 60 days of discovery. The trial court denied this request by order dated December 23, 1996.

¶ 11. In November, 1996, Thompson's counsel's office was destroyed by fire, and her file had to be reconstructed.

¶ 12. On February 5, 1997, Dr. Patino filed a motion to dismiss, or, alternatively, for summary judgment. Prior to the filing of Dr. Patino's motion, Thompson had not supplemented her responses to interrogatories.

¶ 13. On February 10, 1997, Thompson supplemented her responses to interrogatories to St. Dominic and Dr. Patino, and named for the first time William Wilson, M.D., as an expert in neurosurgery, and Herbert Ferrari, M.D., as an expert in anesthesiology.

¶ 14. On February 14, 1997, Dr. Patino filed a motion to strike Thompson's supplemental responses.

¶ 15. On February 18, 1997, Thompson filed her response to Dr. Patino's motion for summary judgment. On February 21, 1997, Thompson filed Dr. Ferrari's affidavit wherein he averred that Dr. Patino breached the duty of care owed to Thompson.

¶ 16. In response to Dr. Patino's motion to strike her supplemental responses, Thompson argued that she had learned additional information during Dr. Gorecki's deposition that caused the delay in naming Dr. Wilson and Dr. Ferrari as expert witnesses. On March 24, 1997, the circuit court granted the motion to strike, finding that Thompson had sued Dr. Patino in 1994 and could have proceeded against Dr. Patino no matter what Dr. Gorecki said in his deposition. Therefore, awaiting Dr. Gorecki's deposition was not a legitimate excuse for failure to name her experts as to Dr. Patino. The circuit court found that the supplemental responses were tardy and should be stricken.

¶ 17. On March 31, 1997, Dr. Patino moved to strike Dr. Ferrari's affidavit. Dr. Patino argued that, because the discovery responses naming Dr. Ferrari as an expert witness had been stricken, Dr. Ferrari could not could not testify at trial and he could not submit an affidavit opposing summary judgment. By order dated July 10, 1997, the circuit court struck Dr. Ferrari's affidavit and granted summary judgment for Dr. Patino.

¶ 18. On August 5, 1997, the trial court granted summary judgment as to Dr. Gorecki.

¶ 19. On August 13, 1997, the trial court granted summary judgment as to St. Dominic.

¶ 20. On appeal, noting that Thompson had filed suit in February, 1994, was given until December, 1995, to complete discovery, and filed the discovery responses pertaining to her expert witnesses in February, 1997, the Court of Appeals found that the circuit court had not abused its discretion in striking the discovery responses and expert affidavit. Thompson v. Patino, No. 97-CA-00971-COA (Miss.Ct.App. May 18, 1999). Furthermore, because Thompson had no expert witnesses or affidavits in support of her claims, the Court of Appeals found that the circuit court did not err in granting summary judgment in favor of the defendants.

DISCUSSION

¶ 21. Karin King Thompson raises six issues on certiorari. We find one issue dispositive and will not discuss the others.

¶ 22. "In regard to matters relating to discovery, the trial court has considerable discretion. The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion." Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992). In Robert v. Colson, 729 So.2d 1243, 1246 (Miss. 1999), this Court found that Rule 26 of the Mississippi Rules of Civil Procedure

provides for seasonable supplementation of answers. We have held "seasonable supplementation" to mean soon after new information is known and far enough in advance of trial for the other side to prepare. We have not, however, set a "hard and fast rule as to what amounts to seasonable supplementation or amendment of answers." Eastover Bank for Sav. v. Hall, 587 So.2d 266, 272 (Miss.1991). Our decisions addressing what constitutes a seasonable supplementation focus on the necessity to avoid surprise at trial. See, e.g., Foster v. Noel, 715 So.2d 174, 182-83 (Miss. 1998) (stating Rule 26 requires strict compliance to avoid unfair surprise); West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995) (affirming trial court's exclusion of certain expert testimony elicited at trial but not found in answers to interrogatories and stating seasonable supplementation requires supplementation when new information renders initial response inadequate); Motorola Communications & Elecs., Inc. v. Wilkerson, 555 So.2d 713, 717-18 (Miss.1989) (requiring seasonable disclosure give enough time to prepare before trial); Jones v. Hatchett, 504 So.2d 198 (Miss.1987) (stating purpose of our civil discovery procedures is to prevent trial by ambush).

¶ 23. Thompson argues that she was held to an improper standard and that her discovery responses should not have been stricken because they amounted to a seasonable supplementation. In Robert v. Colson, Robert filed her complaint in February, 1996. On March 24, 1997, Dr. Colson moved to dismiss or compel Robert to identify her expert. A trial date was set for December 8, 1997. On March 25, 1997, Robert properly supplemented her discovery responses with respect to expert testimony. The circuit court struck Robert's response on its own motion in August, 1997. This Court reversed and remanded, finding that Robert's initial answer that she had not made any decision as to experts was appropriate when given, and was seasonably supplemented such that dismissal was not appropriate.

¶ 24. In this case the complaint was filed in February, 1994. The defendants filed motions to compel in May and June, 1994. Thompson identified experts in June, 1994 but failed to state what their opinions were. By agreement discovery was extended until December, 1995. Thompson's subsequent request for extension of discovery in 1996 was denied. Thompson identified Dr. Wilson and Dr. Ferrari as experts in February, 1997. A trial date had not been set at the time of dismissal, though there is some discussion in the record of January, 1998, being the earliest possible date for trial....

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