Buckley v. Singing River Hosp.
| Docket Number: | 2011-CA-01523-COA Linked Case(s): 2011-CA-01523-COA ; 2011-CA-01523-COA ; 2011-CA-01523-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2012 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Designation of expert witness - M.R.C.P. 26(b)(4)(A)(i) - M.R.C.P. 26(f)(1) - Discovery violation - Expert testimony - M.R.E. 702 Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 04-19-2011 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: APPELLEE’S MOTION FOR SUMMARY JUDGMENT GRANTED Case Number: DS-2005-00-143(1) |
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| Note: | On October 15, 2013, the Court of Appeals withdrew this opinion. The replacement opinion can be found at http://courts.ms.gov/Images/Opinions/CO79715.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Ethel L. Buckley |
SAMUEL PRESTON MCCLURKIN IV
ELIZABETH ANNE CITRIN |
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| Appellee: | Singing River Hospital | THOMAS L. MUSSELMAN HANSON DOUGLAS HORN | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Designation of expert witness - M.R.C.P. 26(b)(4)(A)(i) - M.R.C.P. 26(f)(1) - Discovery violation - Expert testimony - M.R.E. 702 |
| Summary of the Facts: | Ethel Buckley filed a complaint against Singing River Hospital, alleging that she sustained a severe and permanent physical injury as a result of the hospital’s negligence. Singing River filed a motion for summary judgment which the court granted. Buckley appeals. |
| Summary of Opinion Analysis: | Issue 1: Designation of expert witness Singing River’s interrogatories to Buckley requested information on “each person” Buckley intended to call as a potential expert witness and the subject matter of each witness’s anticipated testimony. Buckley responded: “It is anticipated that Plaintiff will call treating physicians to testify as to their diagnosis, prognosis, examination and treatment of her and [their] medical opinions thereof. Plaintiff will supplement, if necessary.” However, she never supplemented her response. On January 28, 2010, Buckley sent Singing River a notice of deposition for Dr. Schnitzer. The notice stated that the deposition would take place on March 11, 2010. The notice did not contain any information as to Dr. Schnitzer’s role as Buckley’s treating physician, nor did it contain any indication as to the basis of his testimony. The deposition was postponed until March 2011. An agreed scheduling order was entered by the circuit court that the plaintiff would designate all her expert witnesses on or before November 1, 2010. Buckley did not file any designation of expert witnesses with the circuit court. At Dr. Schnitzer’s deposition in March 2001, Singing River objected to Dr. Schnitzer’s opinion testimony and to the fact that he had not been designated as an expert. After Singing River filed its motion for summary judgment, the court agreed that Buckley failed to designate expert witnesses according to the procedural rules. Buckley now argues that she “informally” disclosed Dr. Schnitzer as an expert in the interrogatory answers by using the term “treating physicians.” However, when Buckley issued her response to the interrogatories in 2007, Dr. Schnitzer was not her “treating physician.” She did not seek treatment from Dr. Schnitzer until 2009. Without the supplemental answers to the interrogatory, Singing River had no advance notice of Dr. Schnitzer’s opinion testimony so as to meaningfully cross-examine Dr. Schnitzer at his deposition. Pursuant to M.R.C.P. 26(b)(4)(A)(i) and 26(f)(1), Buckley clearly committed a discovery violation. An action may not be dismissed for a discovery violation if a party is unable to comply, but dismissal may be justified if the violation is the result of willfulness, bad faith, or any fault of the party. Buckley argues that dismissal with prejudice was too excessive a sanction. Buckley could have supplemented her interrogatories and designated Dr. Schnitzer as an expert witness as early as August 2009, when she began seeking treatment from him. Even when Singing River specifically objected to Dr. Schnitzer’s opinion testimony and to the fact that he had not been designated as an expert during his deposition, Buckley still failed to designate him as an expert witness with the circuit court. Thus, there was no error. Issue 2: Expert witness During his deposition, Dr. Schnitzer testified that based on the information given to him by Buckley, it “appear[ed]” that the fall caused her back problems. However, Dr. Schnitzer acknowledged that he did not review Buckley’s medical records between December 2003 and August 2009 and that his conclusion was based on the history he obtained from Buckley. He did not begin treating Buckley until five years after her back surgery which occurred eight months after her fall at Singing River. An expert witness must possess some experience or expertise beyond that of an average, randomly selected adult. Thus, the circuit court did not abuse its discretion under M.R.E. 702 by finding that Dr. Schnitzer lacked the requisite factual knowledge to testify as an expert witness. |
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