SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Aug :11: CA Pages: 22 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI TOMEKA HANDY, INDIVIDUALLY, AS ADMINISTRATRIX FOR THE ESTATE OF WILLIE HANDY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR WILLIE HANDY VS. MADISON COUNTY NURSING HOME; CORPORATIONS A-G; JANE DOES A-G; AND JOHN DOES A-G APPELLANT CIVIL ACTION NO.: 2015-CA APPELLEES BRIEF OF APPELLANT (Oral Argument Requested) COUNSEL FOR APPELLANT: W. Eric Stracener, Esq. (MSB# 10429) W. Andrew Neely, Esq. (MSB# ) STRACENER & NEELY PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601)

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI TOMEKA HANDY, INDIVIDUALLY, AS ADMINISTRATRIX FOR THE ESTATE OF WILLIE HANDY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES FOR WILLIE HANDY VS. MADISON COUNTY NURSING HOME; CORPORATIONS A-G; JANE DOES A-G; AND JOHN DOES A-G APPELLANT CIVIL ACTION NO.: 2015-CA APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Tomeka Handy Appellant 2. Madison County Nursing Home Appellee 3. W. Eric Stracener, Esq. and W. Andrew Neely, Esq., Stracener & Neely, PLLC Attorneys for Appellant 4. Clay Gunn, Esq. and W. Davis Frye, Esq., Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Attorneys for Appellee 5. Honorable John Emfinger, Presiding Madison County Circuit Court Judge /s/w. Eric Stracener W. Eric Stracener Attorney of record for Appellant ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii TABLE OF CASES AND STATUTES... iv AUTHORITIES... v STATEMENT REGARDING ORAL ARGUMENT... vi STATEMENT OF THE ISSUES... vii STATEMENT OF THE CASE... 1 A. COURSE OF PROCEEDINGS... 1 I. INTRODUCTION... 1 II. STATEMENT OF FACTS... 1 B. PROCEDURAL HISTORY STANDARD OF REVIEW SUMMARY OF THE ARGUMENT... 7 ARGUMENT THE AUTHORITY RELIED UPON BY THE DEFENDANT AND THE TRIAL COURT IS DISTINGUISHABLE CONCLUSION...14 CERTIFICATE iii

4 TABLE OF CASES, STATUTES AND AUTHORITIES CASES PAGE Bowie v. Montfort Jones Mem. Hosp., 861 So.2d 1037, 1040 (Miss. 2003)...6 Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001)...6 Mississippi Power & Light v. Lumpkin, 725 So.2d 721 (Miss. 1998)...7, 8, 10, 11 Conklin v. Boyd Gaming Corp., 75 So.3d 589 (Miss. App. 2011)...7, 8, 9 Johnson v. Pace, 122 So.3d 66, 69 (Miss. 2013)...7, 12, 13 Davis v. Hindman, No CA COA (Miss. Ct. App. 2014)...7, 13, 14 Robert v. Colson, M.D., 729 So.2d 1243, 1247 (Miss. 1999)...7, 8, 9, 10, 12 January v. Barnes, 621 So.2d 915, 922 (Miss. 1992)...8 Caracci v. Int l Paper Co., 699 So.2d 546, 557 (Miss. 1997)...8 Boyd v. Nunez, 135 So.3d 114 (Miss. 2014)...8 Buckley v. Singing River Hospital, 99 So.3d 248 (Miss. App. 2012)...8, 11, 12 Young v. Meacham, 999 So.2d 368, 372 (Miss. 2008)...8, 12 Bolden v. Williams, 17 So.3d 1069, 1072 (Miss. 2009)...8 Conklin v. Boyd Gaming Corp., 75 So.3d 589, 592 (Miss. Ct. App. 2011)...8, 9 Thompson v. Patino, M.D., 784 So.2d 220, 224 (Miss. 2001)...9 Murphy v. Magnolia elec. Power Ass n., 639 F.2d 232, 235 (5th Cir. 1981)...10 Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1388 (Miss. 1997)...12 iv

5 AUTHORITIES M.R.C.P. 37(a)(2)... 8 M.R.C.P. 37(a)(4)... 8 M.R.C.P M.R.C.P. 37(b)... 8 M.R.C.P Wright & Miller, Federal Practice and Procedure: Civil 2050 (1970)...8 v

6 STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument as she believes it will assist this Court in fully analyzing the issues presented. The trial court s grant of summary judgment involves questions of both law and equity, as well as the course of conduct of counsel. Further, given the trial court s choice of the most draconian measure available that of dismissal with prejudice in the discovery phase of the litigation, and based on form rather than on the merits, it is submitted that oral argument can help this Court fully analyze whether dismissal was appropriate. vi

7 STATEMENT OF THE ISSUES 1. Whether the trial court committed reversible error in granting the Defendant s Motion for Summary Judgment and denying Plaintiff s Motion for Reconsideration based on Plaintiff s delayed discovery responses, when the circumstances and prevailing law provide for lesser and more appropriate sanctions which would allow the parties to have this case decided on the merits. vii

8 STATEMENT OF THE CASE A. COURSE OF PROCEEDINGS BELOW I. INTRODUCTION The instant Appeal involves a discovery violation, albeit one that caused no prejudice to the Defendant. The course of conduct between counsel for the respective parties, as well as the fact that the Plaintiff acted in good faith in identifying expert witnesses, in addition to providing the Defendant with full and meaningful expert witness designations, ensured that the Defendant experienced no prejudice as a result of the delay in the designations. The Defendants and Plaintiffs jointly sought extensions to the Court s original Scheduling Order. The Defendants, just before filing their Motion for Summary Judgment, requested mediation dates, settlement demands from the Plaintiff, deposition dates of the Plaintiff s experts, and generally participated fully in the discovery process. While Plaintiff s counsel did not technically comply with the trial court s latest Amended Scheduling Order, Plaintiff s counsel was operating under the impression that Defense counsel desired to extend deadlines and was to draft an additional Amended Scheduling Order, and that the parties would continue to agree upon dates for future deadlines. To punish the Plaintiff with the ultimate sanction of dismissal for a relatively slight delay by Plaintiff s counsel, which resulted in absolutely no prejudice to the Defendant, is an unduly harsh measure. This Court should reverse the trial court s entry of summary judgment, and allow this case to proceed on its merits. II. STATEMENT OF FACTS This case involves the wrongful death of Willie Handy, an eighty-two (82) year old resident at Madison County Nursing Home. The Plaintiffs allege, and have competent Mississippi nursing and medical experts to testify, that Ms. Handy was not properly assessed and treated, and that these breaches of the standard of care caused her horrific pain and suffering, and 1

9 death. While a resident, Ms. Handy began to experience serious problems with nutrition and bowel movements, as well as severe abdominal pain. These complaints were ignored by the Defendants 1. Ms. Handy was hospitalized at St. Dominic Hospital where she was emergently treated; by that time, the response was too late and she passed away on April 12, R. 10. Upon admission to St. Dominic Hospital her abdomen was extraordinarily large and distended. R Just prior to Ms. Handy s death, large amounts of stool in fact began to flow from all orifices of her body, including her mouth. The obstruction to Ms. Handy s bowel was not properly assessed, monitored and responded to by the Defendants. R B. PROCEDURAL HISTORY The Plaintiffs properly filed a Notice of Intent letter on or around April 3, 2012; following the expiration of the statutory period, Plaintiffs filed their Complaint on October 4, R. 7. Thereafter, counsel for Defendants requested an extension within which to answer the Plaintiff s Complaint, a request that was freely granted. The Defendant s Answer was filed on or about December 14, R. 40. The Defendants also propounded written discovery with the filing of their Answer. R. 47. During the written discovery process both parties requested and were granted extensions within which to respond to the Interrogatories and Requests for Production of Documents. R. 71, No motions to compel expert designations or any discovery were filed at any point, but rather, counsel for the parties cooperated, extended professional courtesies, and sought to extend the deadlines herein 3. 1 Not until Ms. Handy actually screamed in pain and lost consciousness was her condition change noted. No bowel movements had been recorded for Ms. Handy on April 1 st, 2 nd, 3 rd, 5 th, 7 th, 8 th and 9 th, Defendant received Plaintiff s written discovery requests on May 22, 2013; responses were not filed until September 6,

10 On January 27, 2014, counsel for the Plaintiff and the Defendant submitted a Third Amended Agreed Scheduling Order, 4 and extended deadlines for all discovery matters, including depositions, general discovery, and expert designations. R. 83. The parties utilized the form order identical to the Agreed Scheduling Order, as well as the Second Agreed Scheduling Order. R. 83. Starting in late December 2013, counsel for the Plaintiff and Defendant began to attempt to schedule the depositions of Plaintiff, Tomeka Handy, as well as Polly Ross, a critical witness in the case who was an employee at the Defendant s facility 5. The depositions were set for January 28, 2014, after several attempts to accommodate the schedule of all involved. R. 79. Then, on or around January 22, 2014, Defense counsel postponed the depositions set for January 28, R. 85. These were re-noticed via the agreement of counsel for February 4, R. 85. At all times relevant, counsel for the Plaintiff believed that both parties would be best served by critical fact witness depositions being taken before the designation of both the Plaintiff s and Defendant s experts. Thereafter, Plaintiff s counsel asked for an extension of its expert deadlines and same was agreed to by Defense counsel with the understanding that Defense counsel s expert designation deadlines would be extended for an additional thirty (30) days. R It is clear from correspondence that all counsel believed that having the deposition transcripts available to all experts would be helpful in providing meaningful and thorough designations. R Thereafter, Polly Ross deposition was noticed by agreement of the parties for February 26, R Following Ms. Ross deposition, it was Plaintiff counsel s intention to obtain 3 On March 19, 2013, to clarify and streamline the pleadings, the previous Defendant, Madison County, was granted dismissal via an Agreed Order between counsel for Madison County, Mike Epsy, and the undersigned. R This Order was in fact the second amendment to the Court s original Scheduling Order. R Polly Ross is also the daughter of Willie Handy; given her employment at the Defendant facility, Plaintiff s counsel could only obtain discovery from her via deposition. 3

11 the transcripts of both Tomeka Handy and Polly Ross deposition testimony to assist in preparing expert witnesses. In February 2014, Plaintiff s counsel, Eric Stracener, communicated to defense counsel, Clay Gunn, Esq., that Eulanda Armstrong, RN, MSN and Benjamin W. Hudson, MD, MA, MPH, FACEP would be Plaintiff s designated experts. Counsel for the parties, at the behest of the Defendant, discussed deposition dates for their experts and, in fact, counsel for the Defendant requested a settlement demand on or around March 3, R On March 3, 2014, Plaintiff s counsel sent an to defense counsel requesting that a mediation date be reserved, and inquiring as to dates for the deposition of Dr. Hudson and Nurse Armstrong. R Counsel for the defendant responded that his March schedule was extremely tied up and that he would inquire as to what dates his co-counsel had available. R However, no dates were forthcoming. On March 3, 2014, Plaintiff s counsel did, in fact, make a settlement demand via and followed up via requesting confirmation of receipt of the demand; later that afternoon counsel for defendant did confirm receiving same. R On March 4, 2014, Plaintiff s counsel reiterated his desire that the experts whose names had been disclosed to defense counsel multiple times by this point have the benefit of the transcript of the deposition of Tomeka Handy and Polly Ross before the designations were completed. R Plaintiff s counsel asked if defense counsel had any objection thereto; defense counsel replied via that he was under the impression the designations (referred to as their report ) had already been forwarded to him. R Plaintiff s counsel responded on March 4, 2014, that the designations had not been submitted at that time. R Defense counsel never lodged any objection to the extension sought by the Plaintiffs. Thereafter, 4

12 Plaintiff s counsel became involved in two back to back trials one in Holmes County, Mississippi on May 5-7, 2014, and an arbitration set on May 13, 2014, in Jackson, Mississippi. On April 4, 2014, the defendant inquired as to the status of the expert reports and stated We re going to have to push a bunch of other deadlines soon. R Counsel for the Plaintiff responded on that same day stating that the designations were forthcoming soon and thereafter on April 16, 2014, requested that defense counsel Clay Gunn draft an Amended Scheduling Order. R On that same day, April 16, 2014, defense counsel apparently agreed to draft the order and asked what date Plaintiff s counsel was going to submit the expert designations so I know what deadlines to use. R Again, this course of conduct was consistent with the previous efforts on both counsels behalf to accommodate the other s schedule. Plaintiff s counsel did offer assurances that the designations would be delivered ( I hope this week or next. ) R Thereafter, without any more correspondence on the subject, on April 30, 2014, defense counsel sent an stating My client won t agree to any more extensions at this point. The last agreed extension was until March 1st, which was two months ago. R An amended draft order was never submitted but rather defense counsel, apparently at the behest of his client, did an abrupt about-face and suddenly used the deadlines which had passed for both parties as a vehicle to gain a perceived tactical advantage over the Plaintiff 6. On May 19, 2014, Plaintiff s counsel received the Defendant s Motion for Summary Judgment based on a lack of expert testimony, and asked for a modest extension in which to designate the experts, thereby disposing of the issue raised in the defendant s motion. R Five (5) days later, on May 23, 2014, defendant s counsel responded that he would check with 6 The Appellant does not suggest that defense counsel at any point purposefully misled Plaintiff s counsel, or engaged in any improper conduct. 5

13 his client. See R Also, on May 23, 2014, Plaintiff s counsel noted that he had filed a Motion and reiterated that the experts were Eulanda Armstrong, RN, MSN and Benjamin W. Hudson, MD, MA, MPH, FACEP, and that Ms. Armstrong s designation would be delivered as soon as possible. R Three (3) days later on May 26, 2014, defense counsel responded that he could not agree to the extension but that he looked forward to receiving the designations. R The next day, on May 27, 2014, the Plaintiff did in fact submit the Designation of Eulanda Armstrong, RN, MSN. R Just before the designation of Benjamin W. Hudson, MD, MA, MPH, FACEP, on June 6, 2014, defense counsel, Clay Gunn, requested deposition dates during the week of July 7th and 14th to hold the Plaintiff s experts depositions. R Plaintiff responded that he would check into the deposition dates requested and reply. R Plaintiff made the experts available, and designated Dr. Hudson on June 6, R Thereafter, the Plaintiff filed her Response to Defendant s Motion for Summary Judgment. R However, the Plaintiff asked on June 6, 2014, if the hearing would be necessary as expert designations had been delivered to the defendants, as the basis for the motion was now resolved. R The defendants refused to take down the motion and a hearing was eventually held. R. 73. The trial court granted defendant s motion from the bench. T. 10. Thereafter, the plaintiff filed a Motion for Reconsideration R This too was denied by the trial court. R From these rulings, the Plaintiffs appeal. STANDARD OF REVIEW This Court applies a de novo standard of review to the lower court s grant or denial of Summary Judgment. Bowie vs. Montfort Jones Mem. Hosp., 861 So.2d 1037, 1040 (Miss. 2003). Citing Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001). Further, the moving party bears the burden of demonstrating that he is entitled to a judgment as a matter of 6

14 law and all evidence must be viewed the light most favorable to the non-moving party. Id. at SUMMARY OF THE ARGUMENT Under Mississippi law, and considering the equities involved herein, dismissal of the Plaintiff s case is simply too harsh a remedy. The trial court failed to engage in the proper analysis set forth in Mississippi Power & Light v. Lumpkin, 725 So.2d 721 (Miss. 1998) and Conklin v. Boyd Gaming Corp., 75 So.3d 589 (Miss. App. 2011). An analysis of these factors makes clear that the trial court erred in granting summary judgment. The Plaintiff has a meritorious claim which should be decided by the trier of fact. The defendants rely on the case of Johnson v. Pace, 122 So.3d 66, 69 (Miss. 2013) as well as the more recent case of Davis v. Hindman, No CA COA (Miss. Ct. App. 2014). The cases cited by the defendant in support of its motion, and also relied upon by the trial court 7 in granting summary judgment, do not provide support for the harsh sanction of dismissal of the Plaintiff s case. ARGUMENT DISMISSAL IS INAPPROPRIATE IN THIS CASE The defendant never moved the trial court for an order compelling discovery, nor did the trial court enter summary judgment based on a Rule 37 discovery violation. R. 326; T. 10. However, the trial court s decision not to accept the designations of Eulanda Armstrong, RN and Benjamin Hudson, M.D., were effectively the ultimate discovery sanction, a dismissal with prejudice. This Court has admonished litigants that to the extent possible discovery should be managed by the parties. Only when the parties cannot resolve discovery disputes through reasonable efforts, should the trial judge become involved. Robert v. Colson, M.D., 729 So.2d 7 The trial court cited no authority in its Order granting summary judgment. R However, the trial court did cite Johnson v. Pace, 122 So.3d 66, 69 (Miss. 2013) in ruling from the bench on the day of hearing. T-10. 7

15 1243, 1247 (Miss. 1999). In this case, the defendant made no motion to compel, but rather asked the trial court to impose the ultimate discovery sanction, even when no trial setting existed. The Supreme Court has set forth the proper procedure for parties aggrieved with discovery responses: Under our rules of civil procedure, failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery. See, M.R.C.P. 37(a)(2). The remedy for failing to comply with the discovery requests when the trial court grants an order to compel falls under M.R.C.P. 37(a)(4) in the form of awarding the moving party the expenses for such motion. See M.R.C.P. 37; January v. Barnes, 621 So.2d 915, 922 (Miss. 1992). After such an order to compel has been granted under M.R.C.P. 37(a)(2), and the party ordered to answer fails to respond, then the remedy may be sanctions in accordance with M.R.C.P. 37(b). See 8 Wright & Miller, Federal Practice and Procedure: Civil 2050 (1970). Robert v. Colson, 729 So.2d 1243, 1247 (Miss. 1999) citing Caracci v. Int l Paper Co., 699 So.2d 546, 557 (Miss. 1997) [citations original]. This procedural guide was recently followed in Boyd v. Nunez, 135 So.3d 114 (Miss. 2014) (Where party is aggrieved by discovery responses, the proper procedure is for the aggrieved party to seek a remedy from the trial court by filing a motion to compel 135 So.3d at 116). Our courts have repeatedly cautioned against the use of dismissal as a discovery sanction. The Mississippi Court of Appeals, in addressing the purpose of Mississippi Rule of Civil Procedure 26, has held that the purpose of this rule is to avoid unfair surprise and allow the other side enough time to prepare for trial. Buckley v. Singing River Hospital, 99 So.3d 248 (Miss. App. 2012); citing Young v. Meacham, 999 So.2d 368, 372 (Miss. 2008). Further, exclusion of evidence for a discovery violation is an extreme measure, and lower courts should exercise caution before doing so, because our courts are courts of justice [and] not of form. Bolden v. Williams, 17 So.3d 1069, 1072 (Miss. 2009); citing Caracci, 699 So.2d 556; see also Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 734 (Miss. 1998). The recent case of Conklin v. Boyd Gaming Corp., 75 So.3d 589, 592 (Miss. App. 2011) 8

16 is instructive on this issue: [T]he trial court should only dismiss a cause of action because of discovery violations under the most extreme circumstances. The appellate court looks to the following four factors adopted by the Mississippi Supreme Court to determine if the dismissal of a complaint is the appropriate remedy for discovery violations: First, dismissal is authorized only when the failure to comply with the court s order results from willfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situations where the deterrent value of Rule 37 [of the Mississippi Rules of Civil Procedure] cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party s simple negligence is grounded in confusion or sincere misunderstanding of the court s orders. 75 So.3d at 592. Nothing in the trial court s Order Granting Summary Judgment or its Order Denying Plaintiff s Motion for Reconsideration demonstrates any analysis of the factors noted above. No bad faith was found on behalf of the plaintiff. Many other less dramatic sanctions were available to the trial court. No trial preparation was prejudiced, as no trial setting existed. Finally, the Plaintiff herself herein is blameless. Our appellate courts have held that a significant factor in analyzing whether evidence should be excluded for perceived discovery violations is the length of time between discovery responses and a trial date, or the lack of a trial setting altogether. Thompson v. Patino, M.D., 784 So.2d 220, 224 (Miss. 2001). Our courts have likewise stated that: We have repeatedly held dismissal is to be used as a sanction only as a last resort. Lower courts should be cautious in either dismissing a suit or pleading or refusing to permit testimony the reason for this is obvious. Courts are courts of justice not of form. The parties should not be penalized for any procedural failure that may be handled without doing by violence to court procedures. Colson, 729 So.2d at p In Colson, the Court held that discovery proceedings were controlled and managed by the parties and the trial court was involved only when Colson could not, through a good faith effort, persuade Robert (the Plaintiff) to comply with his request to name an expert. After Robert 9

17 complied, discovery continued. The trial court s imposition of dismissal as a sanction was inappropriate and an abuse of discretion. Id. An identical situation exist in the case at bar. The parties were engaged in meaningful discovery, including written discovery requests and depositions. Further, counsel for the parties were engaged in the setting of expert depositions, and at all times relevant, defense counsel knew of the identity and existence of the Plaintiff s exert witnesses. While the Plaintiff s expert designations were delayed, it is clear from the record that no prejudice resulted from this delay. Dismissal of the case of a blameless plaintiff under these circumstances is inappropriate. The case of Mississippi Power & Light v. Lumpkin, 725 So.2d 721 (Miss. 1998) is consistently cited as providing the proper analysis when a court is requested to exclude evidence or more drastically, to dismiss a litigant s case, based on a discovery deficiency. The factors are as follows: 1. A determination of whether the failure was deliberate, seriously negligent, or an excusable oversight; 2. An assessment of harm to the proponent of the testimony; 3. The assessment of prejudice to the opponent of the evidence (the moving party); and 4. The possibility of other alternatives to cure any prejudice and establish orderly proceedings. 725 So.2d at The Lumpkin Court also noted that before imposing such a sanction [as exclusion of evidence] a trial court should consider the explanation for the transgression, the importance of testimony, need for time to prepare to meet the testimony and the possibility of a continuance. Id. at 733; see also Murphy v. Magnolia Elec. Power Ass n, 639 F.2d 232, 235 (5th Cir. 1981). There is no record evidence that the Defendant argued any of these factors in urging that 10

18 the trial court dismiss the Plaintiff s case with prejudice. R. 97. Further, there is no record evidence that the trial court analyzed these factors in imposing the ultimate sanction of dismissal with prejudice. R. 326; T. 10. Regardless, application of the four Lumpkin factors to the instant case demonstrates that dismissal with prejudice is an inappropriate remedy. First, the trial court should have considered whether or not the delayed expert designations were deliberate, seriously negligent or an excusable oversight. Id. The course of conduct between counsel and Plaintiff s counsel s efforts to make defense counsel aware of the experts identity, as well as to schedule depositions of these experts, demonstrates an attempt, albeit an imperfect one, to participate and cooperate in the discovery process. The second factor, an analysis of the evidence of harm to the plaintiff, is abundantly clear. There can be no worse sanction than a dismissal with prejudice of a plaintiff s case, particularly one which is meritorious and in which credible and imminently qualified medical experts were prepared to testify as to the breach of the standard of care of the defendants as well as the damages flowing therefrom. This factor squarely supports reversal. The third factor involves an analysis of the prejudice to the defendant herein. As noted above, the defendant has never even suggested that there has been any prejudice from the Plaintiff s delay in providing the formal expert designations. R. 97. The defendant was actively participating in scheduling depositions and soliciting settlement demands at the time it moved for summary judgment. Further, no trial date had been set, and while the Plaintiff s deposition had been taken, as well as that of a key witness, several fact and expert depositions remained before the discovery process could be completed. This factor strongly favors the Plaintiff. Our appellate courts have held that dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Buckley, 99 So.3d at 254. The Buckley court noted that dismissal may be inappropriate when 11

19 neglect is plainly attributable to an attorney rather than a blameless client Id. In the instant case, the Plaintiff has clearly done nothing wrong and, if a transgression has occurred, it should be attributed to Plaintiff s counsel 8. The final factor also strongly supports a reversal of the trial court s decision. Allowing the Plaintiff s expert designations to be submitted did not prejudice the Defendants in any way, nor have the defendants so alleged. R. 97. On the other hand, the imposition of dismissal with prejudice is the ultimate blow to the Plaintiff s case, and denies the Plaintiff the possibility of having her case decided on the merits. The trial court had available many lesser sanctions which could have appropriately dealt with any discovery transgressions. There is no unfair surprise to the defendants which deprives that party the ability to prepare for trial. Young, 999 So.2d at 372. While a trial court does have inherent power to dismiss under certain circumstances to administrate justice and control its docket, nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances. Colson, 729 So.2d at 1248 quoting Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1388 (Miss. 1997). This case simply does not involve the extreme circumstances contemplated by our appellate courts, and accordingly, this Court should reverse. THE AUTHORITY RELIED UPON BY THE DEFENDANT AND THE TRIAL COURT IS DISTINGUISHABLE In the trial court s bench ruling granting the Defendant s Motion for Summary Judgment, the Court expressly relied on the case of Johnson v. Pace, 122 So.3d 66 (Miss. 2013). T. Vol. 5 of 5 at p. 10. The Pace opinion had been suggested to the trial court as support for Defendant s Motion for Summary Judgment. R. 98. An examination of the Johnson opinion demonstrates that it is clearly distinguishable from the facts at bar. 8 The Plaintiff specifically requested at the Summary Judgment hearing that the trial court impose a sanction upon 12

20 In Johnson, eight (8) months after the Plaintiff s complaint was filed, the Defendant Pace filed a Motion for Summary Judgment, as the Plaintiffs had not produced any expert designations. 122 So.3d at 67. The plaintiffs argued that the defendant s motion was premature, and completely failed to respond to the substance of the defendant s motion for summary judgment. Id. Critically, both at the hearing on defendant s motion for summary judgment and in responsive pleadings, the plaintiff s never designated or even identified an expert witness. Id. Rather, the plaintiff simply argued that genuine issues of material fact remain herein and essentially made no other argument to the trial court. Id. at 68. The case at bar is clearly distinguishable. Again, the Plaintiffs, had at all times relevant, engaged in the discovery process and had identified an expert on the nursing standard of care, and a physician expert on causation. R While the formal designations of these experts was admittedly delayed, the defendant was fully aware of the identity of the experts and was provided full and meaningful designations; moreover, the defendant participated in scheduling depositions of these expert. R. 152, 157. The defendants were provided affidavits from the experts incorporating by reference their formal designations. R. 497, 504. The Pace opinion, then, should not be determined to provide any support for the Court s imposition of dismissal with prejudice. Davis v. Hindman, 138 So.3d 214 (Miss. App. 2014) was also cited as support in the Defendant s Motion for Summary Judgment. R. 98. However, that case is also clearly distinguishable. In Hindman, the plaintiff never secured an expert witness and argued that she was entitled to take the defendant s deposition prior to designating experts. 138 So.3d at 218. Further, the plaintiff made a Rule 56 (f) motion for continuance, apparently to get additional time to secure an expert, despite having filed the case some two (2) years before the defendant s Plaintiff s counsel rather than imposing the death penalty of dismissal with prejudice. T

21 motion. Id. at The plaintiff in Hindman never identified an expert and never submitted a designation of any kind. Id. The Mississippi Court of Appeals held that the record is void of any evidence, expert or otherwise, that Davis (the plaintiff) submitted beyond her initial Complaint and her answers to Surgery Associates discovery requests. Because Davis did not provide an expert witness as needed or any other evidence, we cannot find that there is a genuine issue of material fact Id. at 219. Certainly, a different situation exist in the case at bar in that the Plaintiffs provided the identity of the experts, actively cooperated in defendant s request to set expert depositions, and provided both the defendant and the trial court formal designations and supporting affidavits. While it is conceded that the formal designations and affidavits were delayed, the record is clear that the Plaintiff s efforts rise far above those of the Plaintiffs in Hindman. CONCLUSION Dismissal of the Plaintiff s case was simply too harsh a measure, under these facts and under prevailing Mississippi law. This Court should reverse and remand this case to be resolved on its merits. Respectfully submitted, this, the 24th day of August, TOMEKA HANDY - APPELLANT By: /s/w. Eric Stracener W. Eric Stracener (MSB # 10429) W. Andrew Neely (MSB # ) 14

22 COUNSEL FOR APPELLANT: W. Eric Stracener (MS Bar No: 10429) W. Andrew Neely (MS Bar No: ) Stracener & Neely, PLLC 304 North Congress Street (39201) Galloway House, Second Floor Post Office Box Jackson, Mississippi Telephone: (601) Attorneys for Appellant CERTIFICATE OF SERVICE I, W. Eric Stracener, attorney for Appellant Rose Marie Monroe, certify that I have this day served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Muriel B. Ellis, Clerk Mississippi Supreme Court 450 High Street Jackson, Mississippi Clay Gunn, Esq. W. Davis Frye, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC 4268 I-55 North Meadowbrook Office Park Jackson, Mississippi Further, I hereby certify that I have mailed by United States Mail, postage prepaid, the above and foregoing document to the following: Honorable John Emfinger Madison County Circuit Court Judge Post Office Drawer 1885 Madison, Mississippi This, the 24th day of August, /s/w. Eric Stracener W. Eric Stracener 15