Williams v. Dixie Elec. Power Ass'n, 56852

• Citation: 514 So.2d 332
• Decision Date: 16 September 1987
• Docket Number: No. 56852,56852
• Parties: Clinton Dean WILLIAMS v. DIXIE ELECTRIC POWER ASSOCIATION.
• Court: Mississippi Supreme Court

Page 332

514 So.2d 332

Clinton Dean WILLIAMS v. DIXIE ELECTRIC POWER ASSOCIATION.

No. 56852.

Supreme Court of Mississippi.

Sept. 16, 1987.

Rehearing Denied Nov. 18, 1987.

Stanford Young, David Slaughter, Waynesboro, Alfred Lee Felder, McComb, for appellant.

J.W. Land, Michael K. Randolph, Victor K. Smith, Bryan, Nelson, Allen, Schroeder & Randolph, Hattiesburg, for appellee.

Before the Court en banc.

HAWKINS, Presiding Justice, for the Court:

This is an appeal of jury's verdict for Dixie Electric Power Association (Dixie Electric) in a personal injury suit brought by Clinton Dean Williams. Williams, a lineman, was injured when a telephone pole he was climbing broke. Because the Dixie Electric was allowed to introduce evidence which they had not provided to Williams in his discovery request, we reverse and remand for new trial.

FACTS

Dean Williams served as a journeyman lineman employed by Tom C. Loftin Contractors, Inc. (Loftin Contractors). He had several years experience as a lineman.

Dixie Electric, a power co-operative within the Rural Electrification Association (REA), used Loftin Contractors as an independent contractor to service their powerlines.

On September 17, 1979, Williams was working near Sanderville in Jones County to repair electric service to the Dixie power system following damage by Hurricane Fredrick. Several poles and trees were down in the area where Williams worked. Before he climbed a pole to make repairs, a supervisor, Nathan Riley, told Williams to check the pole to make sure it was sound. Williams struck the butt of the pole on which he was injured with a hammer and thought it was solid. But after climbing the pole, when Williams was some distance above the ground, the pole broke approximately six-to-eight inches below the ground. Williams fell and suffered severe back injuries for which he received $19,800 in medical treatment.

Williams sued Dixie Electric asserting they failed to properly inspect and maintain the pole. The pole in question was manufactured in 1941 and Williams presented evidence at trial to show it was weakened due to soft rot.

Just before trial the defense hired Ray Schmidt to follow Williams and record his activities covertly. On Thursday, November 15, 1984, four days before trial, Schmidt filmed Williams walking without difficulty after he left a deposition in Meridian. Dixie Electric's attorneys did not disclose the existence of this film to Williams' attorneys prior to trial.

In his opening statement, Williams' attorney told the jury that Williams was too injured to sit through the entire trial. After the defense attorney heard this, he directed Schmidt to continue filming Williams.

Williams offered Dr. Jeffrey F. Webster, a clinical psychologist, as his first witness. Dr. Webster testified that he interviewed Williams for three hours, and conducted four hours of testing to assess Williams' intelligence. Dr. Webster said Williams suffered from a "closed head injury" which he defined as an injury in which the skull is not cracked. Dr. Webster testified that as a result of his fall, Williams suffered brain damage and could only function just beyond the second grade level. Dr. Webster also testified Williams had coordination problems and suffered from mild depression. During cross-examination Dr. Webster said he relied in part on test results of a Wide Range Achievement Test (WRAT) given by Dr. Randall Thomas to help form his opinion. After hearing this the defense counsel asked the court to exclude Dr. Webster's testimony. The trial judge heard the argument of counsel and excluded Dr. Webster's testimony citing City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965), as authority.

Next Williams presented the deposition of Dr. Jeffrey Ellison, a neurologist from the Oschner Clinic in New Orleans, Louisiana. Dr. Ellison noted that Williams had damage to the nerve root of the right posterior tibial nerve which caused Williams to drag his foot. He said a CAT scan revealed that Williams' L-2 vertebra had a moderate compression deformity caused by the fall. Dr. Ellison concluded that Williams could not work in a job requiring walking or climbing, but he could perform sedentary work.

Next Williams took the stand. He told the jury he could not remember anything about his accident. He said he wore a corset sometimes and his feet would go to sleep after sitting 35 to 40 minutes. Williams' attorney tried to demonstrate that Williams had little intellect by eliciting testimony that he could not remember his children's ages and showing that he had difficulty counting backwards from twenty.

The defense tried to show Williams' brain damage, if any, was the result of a severe shock from 7,500 volts Williams received six months prior to the accident. They introduced a medical record in which the physician treating the shock noted Williams had "severe difficulty with speech and some problems with motor function musculature."

After Williams testified, Sarah Williams, Dean Williams' wife, took the stand. She said Williams suffered from muscle spasms, often carried a cane to walk with, and that he could no longer drive a car.

Then Dr. Randall Thomas, a psychologist, took the stand. He said tests which he gave Williams indicated that Williams had problems thinking, remembering and concentrating. Dr. Thomas said Williams read on a third grade level, but basically functioned on a second grade level. He added that Williams had an I.Q. of 69 and because of his problems, he was incapable of returning to gainful employment.

Before Williams rested, his attorney tried to recall Dr. Jeffrey Webster as a witness. The trial judge warned plaintiff's counsel it would be improper to offer the same testimony twice and the refused to overrule his earlier ruling excluding Dr. Webster's testimony.

At 9:00 on Wednesday, the third day of trial, defense counsel for the first time informed the court and the plaintiff of the existence of the surveillance films and served William's attorney with written notice of them. By the end of the day, the plaintiff rested, the jury was dismissed, and the attorneys and judge viewed the video tapes.

Schmidt had taken three films of Williams. The first was taken on Thursday, four days before trial. Since Williams did not attend most of the trial, Schmidt had checked into the hotel room adjacent to Williams and made tapes of his activities on Monday and Tuesday during trial. The films show Williams strolling without his cane and bending over with ease to inspect an acorn he spied on the ground. One film depicts Williams placidly sitting in his pickup truck for over twenty minutes. No doubt he was content with the knowledge that his damage suit lawyers--who may be equaled but never surpassed--were zealously pleading his cause.

The films were introduced on Friday, November 23, 1984, over the plaintiff's objection.

That day the jury returned a verdict for Dixie Electric and the circuit judge overruled Williams' motion for a new trial.

LAW

Williams does not argue substantive issue of negligence and causation. Specifically, Williams argues:

I. THE COURT ERRED IN ALLOWING DIXIE ELECTRIC TO USE VIDEO PICTURES WHOSE EXISTENCE WAS NOT DISCLOSED BY PROPER SUPPLEMENTATION OF DISCOVERY REQUEST.

II. THE TRIAL COURT ERRED AND WAS MANIFESTLY WRONG IN EXCLUDING THE TESTIMONY OF DR. JEFFREY WEBSTER, NEUROPSYCHOLOGIST.

III. THE TRIAL COURT ERRED AND WAS MANIFESTLY WRONG IN FAILING TO EXCUSE THOSE MEMBERS OF THE JURY PANEL WHO WERE MEMBERS OF THE DIXIE ELECTRIC POWER ASSOCIATION.

I.

DID THE TRIAL COURT ERR IN ALLOWING THE DEFENDANT TO

INTRODUCE THE SURVEILLANCE FILMS OF WILLIAMS WHICH

WERE TAKEN JUST PRIOR TO AND DURING TRIAL?

In the plaintiff's request for production, he asked Dixie Electric to:

Produce any and all photographs (still or moving) made by the defendant, or anyone representing defendant, of the scene of the injury, the pole which was involved in said injury, or any other photographs relating to the subject matter relating to this litigation or of the plaintiff.

Williams complains that the trial judge should not have admitted the video tapes because Dixie Electric failed to disclose their existence prior to trial.

This Court has developed strict discovery rules in order to avoid trial by ambush and to insure each party has a reasonable time to prepare for trial. We are committed to the discovery rules because they promote fair trials. Once an opponent requests discoverable material, an attorney has a duty to comply with the request regardless of the advantage a surprise may bring. Harris v. General Host Corp., 503 So.2d 795, 797 (Miss.1986); Tolbert v. State, 441 So.2d 1374, 1375 (Miss.1983). As is evident in this case, attorneys are reluctant to abide by discovery rules when they can profit by catching their opponents unaware.

Dixie Electric tried to argue the surveillance films were offered to rebut the plaintiff's case and that rebuttal evidence is not discoverable. In Harris we rejected a similar contention because only some of an undisclosed witnesses' testimony rebutted the plaintiff's evidence. We added, if we accepted such a theory, "there would be no basis for the principle for ever requiring the defendant to disclose in advance the evidence it would offer at trial, for all such evidence in this sense is rebuttal." Harris, supra, at 797.

Dixie Electric relied heavily on the surveillance films to question the extent of Williams' injury and to test his credibility. In Kern v. Gulf Coast Nursing Home of Moss Point, 502 So.2d 1198 (Miss.1987), the Court allowed an undisclosed witness to testify where the defense attorney demonstrated he had no way of knowing of the existence of the witness before trial and because the witness's testimony was strictly limited to rebuttal. Id. at 1200, 1201. The crucial difference between Kern and this case is that Dixie Electric had the surveillance films four days prior to trial and they knew...