Powels v. Iles, et al.
| Docket Number: | 2010-CA-00337-COA Linked Case(s): 2010-CA-00337-COA ; 2010-CT-00337-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-26-2011 Opinion Author: Ishee, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Medical malpractice - Failure to prosecute - M.R.C.P. 41(b) - Clear record of delay Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Roberts and Maxwell, JJ. Non Participating Judge(s): Russell, J. Concurs in Result Only: Carlton, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 01-28-2010 Appealed from: ADAMS COUNTY CIRCUIT COURT Judge: Forrest Johnson Disposition: GRANTED MOTION TO DISMISS FOR LACK OF PROSECUTION Case Number: 6385 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Helen Powels, Administratrix of the Estate of Kathryn M. Rich, Deceased |
JOSEPH E. ROBERTS JR. |
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| Appellee: | Betty T. Iles, as Executrix of the Estate of Jerry W. Iles, M.D. | JOSEPH LERAY MCNAMARA, STEPHANIE C. EDGAR | ||
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: | Medical malpractice - Failure to prosecute - M.R.C.P. 41(b) - Clear record of delay |
| Summary of the Facts: | In 1994, a medical-malpractice action was tried against Jerry Iles, M.D., and Jefferson Davis Memorial Hospital with regard to injuries received by Kathryn Rich in 1986. After the jury returned a verdict in favor of the defendants, Rich’s daughter, Helen Powels, appealed on behalf of her mother’s estate. In 1997, the Court of Appeals affirmed the jury’s verdict as to the Hospital but reversed and remanded the case as to Iles. The record reflects that no action was taken thereafter until February 2003, when Powels’s attorney sent a letter to Iles’s attorneys inquiring into the possibility of a settlement. The next communication between the parties was in January 2009, when Powels’s attorney wrote Iles’s attorneys a letter to provide available trial dates. Iles’s attorneys then filed a motion to dismiss the case for lack of prosecution, which the trial court granted. Powels appeals. |
| Summary of Opinion Analysis: | M.R.C.P. 41(b) provides that in the event of failure of the plaintiff to prosecute, a defendant may move for dismissal of an action or of any claim against him. Factors to be considered when analyzing a dismissal under Rule 41(b) include whether there was a clear record of delay or contumacious conduct by the plaintiff; whether lesser sanctions might have better served the interests of justice; and the existence of other “aggravating factors.” The present case was remanded to the trial court in September 1997, but no action of record was taken until Iles’s attorney filed the motion to dismiss for lack of prosecution in February 2009. A stagnation of twelve years constitutes a clear record of delay, thus, providing ample support for the trial court’s dismissal. Additionally, while the trial court did not specifically address the availability of lesser sanctions, the trial judge stated that the dismissal was not “a punitive action against the plaintiff.” Dismissal of the case was the proper procedural remedy to a case that was dormant for over a decade. The trial court referenced several “aggravating factors” which demonstrated prejudicial consequences of the lengthy delay. The age of the parties involved was a significant consideration in terms of memory loss and the availability of witnesses. Iles was sixty-five years old at the time the case was remanded to the trial court, and he was seventy-seven years old when the case was dismissed. While memory loss was a valid concern, Iles’s death created a quandary in this case as introduction of his testimony would be limited to his trial transcript from 1994. Additionally, two of Iles’s trial experts are in their seventies and are both retired. One of the experts was also in a serious automobile accident, which led to brain injuries and allegedly significant memory impairment. The memory loss of Iles’s trial witnesses constitutes a measure of presumed prejudice, an aggravating factor that supports the trial court’s dismissal of the case. Iles’s recent death is also an aggravating factor which prejudices his defense. Had Powels not waited twelve years to resume action in this case, Iles would have been able to testify in his own defense. |
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