BRIEF OF APPELLANTS, JAMES D. HAVARD AND MARGARET HAVARD

E-Filed Document Jun 29 2015 09:34:50 2015-CA-00138 Pages: 9 SUPREME COURT OF MISSISSIPPI JAMES D. HAVARD and Wife, APPELLANTS ) MARGARET HAVARD, ) ) CASE VERSUS ) NUMBER ) 2015-CA-00138 TANELLE SUMRALL, APPELLEE ) BRIEF OF APPELLANTS, JAMES D. HAVARD AND MARGARET HAVARD APPEAL FROM THE CIRCUIT COURT OF LAMAR COUNTY, MISSISSIPPI HONORABLE PRENTISS HARRELL, CIRCUIT JUDGE, PRESIDING ORAL ARGUMENT NOT REQUESTED S. Wayne Easterling Mississippi Bar Number 5290 Post Office Box 1471 Hattiesburg, MS 39403-1471 (601) 544-8900 Gerald A. Dickerson Mississippi Bar Number 6118 346 Cox Street Lucedale, MS 39452 (601) 947-5131

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: James Havard, Appellant. Margaret Havard, Appellant. S. Wayne Easterling, Post Office Box 1471, Hattiesburg, Mississippi 39401, attorney for appellants. Gerald A. Dickerson, 346 Cox Street, Lucedale, Mississippi 39452, attorney for appellants. Tanelle Sumrall, Appellee. Douglas G. Mercier, 240 Trace Colony Park Drive, Suite 200, Ridgeland, Mississippi 39157, attorney for Appellee, Tanelle Sumrall. AKESO Group, LLC, 5744 Nanjack Circle, Memphis, Tennessee 38115, defendant in the State Court complaint. Prentiss Harrell, Circuit Court Judge Lamar County, Mississippi. Respectfully submitted, this the 29th day of June, 2015. s/s. Wayne Easterling S. Wayne Easterling i

TABLE OF CONTENTS Page Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Argument... 2 Conclusion... 4 Certificate of Service... 5 ii

TABLE OF AUTHORITIES CASES Page Am. Tel. & Tel. v. Days Inn of Winona, 720 So.2d 178 (Miss. 1998)... 3 Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030 (Miss. 1999)... 3 Manning v. King s Daughters Medical Center, 138 So.3d 109 (Miss. 2014)... 2,3 Miss. Dep t of Human Services v. Guidry, 830 So.2d 628 (Miss. 2002)... 3 STATUTES Rule 41(b) of the Mississippi Rules of Civil Procedure... 1,2 iii

STATEMENT OF THE ISSUES The only issue for resolution is whether the trial court abused its discretion in dismissing the cause pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure. STATEMENT OF THE CASE On November 30, 2010, plaintiff James Havard was scheduled for back surgery at Wesley Medical Center in Hattiesburg, Lamar County, Mississippi. Prior to the surgeon entering the operating room, the defendant nurse anaesthetist, Tanelle Sumrall, injected the plaintiff with the drug epinephrine, under the mistaken impression that the injecting device contained another drug useful in anaesthesia. The injection device had actually been used in another procedure requiring epinephrine and, therefore, was medically unsafe because of possible contamination and because epinephrine was contra-indicated. As a result of the injection of epinephrine, plaintiff suffered an immediate heart attack in the operating room while awaiting the arrival of the surgeon. R.E. 03. As a result of the injection of epinephrine and the subsequent heart attack, the plaintiff was required to undergo open heart surgery, was prevented from having the scheduled back surgery because of his deteriorating medical condition, and sustained mental anguish because of the possibility of developing an infectious disease as a result of the use of the contaminated injection device. R.E. 03. Proper notification letter was sent, and the initial complaint naming only the nurse anaesthetist was filed on November 29, 2012. The amended complaint naming the employer of the nurse anaesthetist was filed on January 7, 2013. The plaintiff continued to suffer from the heart condition and from a serious back condition that, because of the heart attack, could not be corrected by surgery. This resulted in substantial delay in plaintiff being able to assist in getting financial records and other data to his attorneys. In 1

addition, the lead attorney suffered a heart attack in April, 2013, that required open heart surgery and a substantial rehabilitation period. These medical conditions resulted in delay in proceeding with trial preparation. R. E. 12. The Court file reveals that no activity occurred from January 23, 2013, until a Trial Calendar Notice was mailed by the Court to the attorneys on September 30, 2014. A motion to dismiss was filed on October 21, 2014; and on December 30, 2014, discovery was propounded to the defendant. Prior to that, the Court, on November 10, 2014, set the case for trial on July 27, 2015. R. E. 01. On January 5, 2015, after a conference in chambers and oral arguments, the Court entered an order dismissing the case pursuant to Mississippi Rules of Civil Procedure Rule 41(b). During this hearing, it was explained to the Court that the delay had been the result of medical conditions of both the plaintiff and the lead attorney. ARGUMENT This Court has given guidance on the issue involved in this case. The most recent pronouncement is Manning v. King s Daughters Medical Center, 138 So.3d 109 (Miss. 2014), 2012-CA-01457-SCT. It is the position of the plaintiff that the Court, in view of the existing circumstances, abused its discretion in ordering dismissal of the case at a time when it had been placed on the trial docket of the Court. The amended complaint was filed on January 7, 2013; and neither side filed any discovery requests until plaintiffs served discovery on December 30, 2014. The only notice sent by the clerk was notice of the Trial Calendar sent on September 30, 2014, followed by notice sent November 10, 2

2014, setting the case for trial in July, 2015. The motion to dismiss was filed on October 21, 2014. R. E. 01. There are several facts that distinguish this case from a line of cases cited in Manning, supra. In Manning, there is a clear record of the plaintiff failing to respond to discovery for a period of in excess of two years. In fact, the plaintiff had failed to list an address to receive pleadings. In this case, the defendant made no effort to obtain discovery. The law favors a trial of the issues on the merits, and courts should be reluctant to order a dismissal for lack of prosecution. Miss. Dep t of Human Services v. Guidry, 830 So.2d 628 (Miss. 2002). Motions for failure to prosecute are considered on a case-by-case basis. Am. Tel. & Tel. v. Days Inn of Winona, 720 So.2d 178 (Miss. 1998). Also, the trial court should consider whether lesser sanctions would best serve the interest of justice in view of the extreme nature of a dismissal which deprives a litigant of the opportunity to pursue his claim. Such action is, therefore, reserved for the most egregious cases. Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030 (Miss. 1999). In the case at bar, there is no showing that the delay prejudiced the defendant. While Manning, supra, provides that prejudice to the defendant is not an absolute requirement, it is a factor that should be considered by the trial judge. Manning, supra., likewise, instructs the trial judge to consider whether lesser sanctions would be appropriate. The record does not show any consideration of such remedies by the court. Also, there was no failure on the part of the plaintiffs to participate in any discovery or trial preparation; and in fact, the case was on the trial docket, having been given a trial date of July 27, 2015. 3

Likewise, there was no showing that the delay was intentional inasmuch as the Court was informed that the plaintiff s back condition prevented his participation in trial preparation, and the health problems of the lead attorney contributed to the delay. CONCLUSION It is respectfully submitted that there is a substantial difference in a case in which a party refuses to respond to efforts to move a case to conclusion, and in those cases in which neither party takes action and outside circumstances are responsible for delaying the trial. However, in this case, the defendant cannot contend that the plaintiffs did not respond to any discovery; and in fact, the case was on the trial docket when the motion to dismiss was granted. It is, therefore, respectfully submitted that circumstances distinguish this case from Manning, supra.; and the plaintiffs should be given the opportunity to proceed. This, the 29th day of June, A. D., 2015. Respectfully submitted, s/s. Wayne Easterling S. WAYNE EASTERLING, Of Attorneys for Appellants S. Wayne Easterling Mississippi Bar Number 5290 Post Office Box 1471 Hattiesburg, MS 39403-1471 (601) 544-8900 Gerald A. Dickerson Mississippi Bar Number 6118 346 Cox Street Lucedale, MS 39452 (601) 947-5131 4

CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Brief of Appellants with the Clerk of the Court using the MEC/ECF system to the following: Douglas G. Mercier Simmons Law Group, P.A. 240 Trace Colony Park Dr., Suite 200 Ridgeland, Mississippi 39157 doug@simmonslawgroup.com and have mailed a copy of said Brief of Appellants, postage prepaid, to the following: Honorable Prentiss G. Harrell Circuit Judge Fifteenth Judicial District Post Office Box 488 Purvis, Mississippi 39475-0488 This the 29th day of June, 2015. s/s. Wayne Easterling S. Wayne Easterling 5