Conklin v. Boyd Gaming Corp.
| Docket Number: | 2010-CA-01642-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-29-2011 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Findings - Failure to comply with discovery - Dismissal - M.R.C.P. 37 Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Dissenting Author : Irving, P.J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-20-2010 Appealed from: Tunica County Circuit Court Judge: Kenneth L. Thomas Disposition: DISMISSED COMPLAINT DUE TO DISCOVERY VIOLATIONS Case Number: 2008-0341 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Frankie Conklin |
JOHN H. COX III |
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| Appellee: | Boyd Gaming Corporation d/b/a Sam's Town Casino | SCOTT BURNHAM HOLLIS, ROBERT T. JOLLY | ||
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 - Findings - Failure to comply with discovery - Dismissal - M.R.C.P. 37 |
| Summary of the Facts: | Frankie Conklin visited Sam’s Town Casino in Tunica County. He had attended a coaches’ meeting at the hotel and casino. Following the meeting, as Conklin walked toward the front of the casino atrium, he slipped on an accumulation of water and fell. A casino employee was dispatched to aid Conklin. The employee bandaged Conklin’s knee, wrapped the injury with an Ace bandage, and applied a cold pack. Conklin then went to the Tunica Regional Clinic to receive follow-up treatment; he then returned to the hotel for the rest of the night. Conklin sought additional treatment at St. Francis Hospital when his ankle began to abscess, which he described as swollen with puss around it. He was admitted to the hospital and received intravenous (IV) antibiotics. Conklin was then discharged and given an oral antibiotic. Conklin was readmitted to St. Francis due to ongoing pain in his right leg. Conklin was placed on continuous suppressive antibiotic therapy for the treatment of cellulitis. Conklin filed a complaint in the trial court alleging negligence against Boyd Gaming Corporation d/b/a Sam’s Town Casino’s for injuries he had sustained during the fall. After discovery had taken place, Conklin filed a motion to amend the complaint seeking leave of court to more properly plead the allegations of his injuries and his requests for damages. Boyd filed a motion to dismiss pursuant to M.R.C.P. 37 and alleged Conklin had committed perjury and fraud during discovery by knowingly and intentionally giving false statements regarding his prior medical condition of cellulitis. The trial court dismissed Conklin’s complaint with prejudice. Conklin appeals. |
| Summary of Opinion Analysis: | Issue 1: Findings Conklin argues the trial court erred by finding he knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd’s ability to defend the action. Conklin had several opportunities during discovery to disclose his August 2005 leg problem, but he never did. His first opportunity was in his response to interrogatories. Conklin had a second opportunity to disclose his prior leg problems in his response to Boyd’s request for production of documents. Finally, Conklin had the opportunity to admit his prior leg problems during his deposition, which he again failed to do. The evidence shows a continuous course of conduct, in which Conklin repeatedly provided false answers regarding prior problems with his leg. Conklin argues on appeal, and he argued at the trial court hearing, that his conduct was not intentional or willful, but rather he did not know what the term “cellulitis” meant and simply confused the term with “cellulite.” He further argues he was never diagnosed with cellulitis during his initial injury and was never told about the condition by healthcare providers. There is ample evidence to show that Conklin was, in fact, diagnosed with cellulitis in August 2005. The notes from his physical exam on August 9, 2005, show a clinical impression (diagnosis) of cellulitis. The discharge instructions from the hospital visit also show a diagnosis of cellulitis and a prescription of antibiotics for the treatment of that condition. Conklin signed directly below those instructions. The records from his emergency room visit on December 20, 2005, for the treatment of injuries sustained during the fall also show a history of cellulitis. In the Emergency Physician Record, cellulitis was listed under past history, and the phrase “similar symptoms previously” was circled. Even if Conklin did not know about cellulitis or what that term meant, he should have disclosed the prior issues with his leg during discovery. Thus, the trial court did not err in finding Conklin knowingly provided false answers. Issue 2: Dismissal Conklin’s failure to comply with discovery resulted from wilfulness or bad faith. Furthermore, his failure to comply with discovery did not result from an inability to comply. Conklin argues the trial court should have imposed a less harsh sanction, if necessary. When considering dismissal of the complaint, the trial court attempted to impose a less harsh sanction by asking Conklin to reduce his claim to that of mere exacerbation, which he indicated he would not do. Case law has repeatedly upheld dismissals due to discovery violations. There is no evidence to indicate the trial court erred in finding Conklin’s conduct prejudiced Boyd during trial preparation. Furthermore, prejudice to the defendant during trial preparation is a consideration, not a requirement, in determining whether dismissal is appropriate. There is no indication or evidence that the discovery violations are attributable to Conklin’s attorney. In addition, the violations are not grounded in confusion or misunderstanding of the trial court’s orders. The trial court weighed the relevant factors, and no evidence exists to find the trial court committed a clear error of judgment in reaching its conclusion. |
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