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: 10-15-2013 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(f)(1) - Supplementation of discovery responses - Exclusion of expert testimony Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Carlton, Maxwell, Fair and James, 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 |
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| Note: | The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Circuit Court of Jackson County is affirmed. | |
| 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 | ||
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| Topic: | Personal injury - Designation of expert witness - M.R.C.P. 26(f)(1) - Supplementation of discovery responses - Exclusion of expert testimony |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Ethel Buckley filed suit against Singing River Hospital, after she fell at the hospital and suffered an injury to her back. Singing River filed a motion for summary judgment and a motion to strike the opinion testimony of Buckley’s expert witness. The circuit court granted summary judgment for Singing River, dismissing the action with prejudice. Buckley appeals. |
| Summary of Opinion Analysis: | Issue 1: Designation of expert witness An agreed scheduling order was entered by the circuit court on October 5, 2010, which stated: “Plaintiff shall designate all her expert witnesses on or before November 1, 2010, providing such information as specified by the Mississippi Rules of Civil Procedure.” The order also stated that discovery was to be completed by March 15, 2011, and set the trial date as April 25, 2011. However, Buckley did not file any designation of expert witnesses with the circuit court. Her treating physician was deposed on March 3, 2011, four months after the scheduling order’s deadline for Buckley to designate her expert witnesses had expired. At the deposition, Singing River objected to the physician’s opinion testimony and to the fact that he had not been designated as an expert. The circuit court found that Buckley failed to designate expert witnesses according to the procedural rules and that her physician’s testimony did not meet the requisite standards for expert testimony. The purpose of M.R.C.P. 26(f)(1) regarding supplementation of a party’s discovery responses is to avoid unfair surprise and allow the other side enough time to prepare for trial. Although Buckley admits that she failed to formally supplement her interrogatory responses to name her treating physician, she argues that she informally discovery him as an expert in her responses by using the term “treating physicians.” However, at the time that Buckley used the term, the physician was not her treating physician. She did not seek treatment from him until later. There is nothing in the record to suggest Singing River was aware of the physician’s involvement in the case until his original deposition was noticed. Without the supplemental answers to the interrogatory, Singing River had no advance notice of the physician’s opinion testimony so as to meaningfully cross-examine him at his deposition. An action may not be dismissed for a discovery violation if a party is simply 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 has not provided any reason why she was unable to formally designate her physician as an expert witness and comply with the scheduling order. Issue 2: Exclusion of expert testimony The physician eventually designated by Buckley as her expert witness did not begin treating Buckley until five years after her back surgery, which in turn was eight months after her fall at Singing River. Summary judgment may not be defeated through expert opinions that are not based on facts but instead are based on a guess, speculation, or conjecture. And an expert witness must possess some experience or expertise beyond that of an average, randomly selected adult. Here, the circuit court did not abuse its discretion by finding that the physician “lacked the requisite factual knowledge to testify as an expert witness.” Without this testimony, Buckley could not support her claim. |
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