E-Filed Document Mar 21 2018 14:16:56 2016-CT-00727-SCT Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-00727-COA SHANNON WESTFALL AND JOHN WESTFALL APPELLANTS VS. RANDY GOGGINS AND CARNES FRAMES, INC. APPELLEES On Appeal from the Circuit Court of Pontotoc County, Mississippi Civil Action No. 13-187P(PO) PETITION FOR WRIT OF CERTIORARI EDWARD J. CURRIE, JR. (MSB# 5546) REBECCA B. COWAN (MSB# 7735) JOSEPH W. GILL (MSB# 102606) Currie Johnson & Myers, P.A. 1044 River Oaks Drive Post Office Box 750 Jackson, Mississippi 39205-0750 Telephone: (601) 969-1010 Facsimile: (601) 969-5120 Counsel for Appellees
The defendants/appellees, Randy Goggins and Carnes Frames, Inc., by and through their attorneys of record, petition the Supreme Court of the State of Mississippi for a Writ of Certiorari under which the Court would review the decision of the Mississippi Court of Appeals ( COA ) reversing the trial court s dismissal of the plaintiffs/appellants, Shannon Westfall and John Westfall s (collectively the Westfalls ), case as a discovery sanction. I. ISSUES FOR WHICH CERTIORARI IS REQUESTED Whether the trial court abused its discretion in concluding (1) that Shannon Westfall s repeated misrepresentations regarding pre-existing medical issues with both of her shoulders were intentional and deceitful and (2) that no less drastic sanction than dismissal would suffice. II. BASIS FOR WRIT OF CERTIORARI PURSUANT TO M.R.A.P. 17 A. The COA has rendered a decision in conflict with prior COA s decisions or published Supreme Court decisions. As addressed herein, the decision of the COA conflicts with the decisions in Lockhart v. Stirling Properties, Inc., 170 So. 3d 1235 (Miss. Ct. App. 2015); Ashmore v. Mississippi Authority on Educational Television, 148 So. 3d 977 (Miss. 2014); Conklin v. Boyd Gaming Corp., 75 So. 3d 589 (Miss. Ct. App. 2011); Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990 (Miss. 1999); and Pierce v. Heritage Properties, Inc., 688 So. 2d 1385, 1388 (Miss. 1997) B. This case presents fundamental issues of broad public importance requiring determination by the Supreme Court. The Opinion of the COA ultimately and without any qualification condones the subversion of the common goal of the adversarial system: to learn the truth, the whole truth and nothing but the truth by stripping trial courts of any power to hold a plaintiff accountable for intentional misrepresentations in discovery responses as long as he was honest in other responses. Pierce, 688 So.2d at 1391 (internal quotation marks omitted.)
III. FACTS This case arises out of an automobile accident that occurred on June 3, 2013, in Pontotoc, Mississippi, involving a vehicle driven by the plaintiff/appellant, Shannon Westfall (hereinafter Mrs. Westfall ), and a tractor trailer rig driven by the defendant/appellee, Randy Goggins, and owned by his employer, the defendant/appellee, Carnes Frames, Inc. (hereinafter collectively the defendants ). On July 30, 2013, Mrs. Westfall and her husband, John Westfall (hereinafter Mr. Westfall ), filed this lawsuit against the defendants. 1 Mrs. Westfall responded to interrogatories propounded by the defendants in which she stated that as a result of the accident she suffered a torn right rotator cuff injury which has required surgery and possibly a tear to [her] left rotator cuff. When asked about any pre-existing conditions regarding her shoulders, Mrs. Westfall stated only the following: RESPONSE: In 2010, I slept wrong and had a muscle spasm in my left shoulder. I was seen by Dr. Scott at Creekmore Clinic, and I have not had any other problems until the accident. *** RESPONSE: Dr. Scott took x-rays, but nothing showed up. He gave me pain medication and a muscle relaxer. The spasms went away and I have had no other problems until the accident. Likewise, during her deposition Mrs. Westfall testified that other than seeking medical treatment for her left shoulder in 2010 because she slept wrong, she had never had any prior injuries to her shoulders; had never fallen and hurt either of her shoulders; had never sought any other medical treatment for either of her shoulders; had not received any other prescriptions for shoulder pain; and did not recall any prior x-rays done on either of her shoulders. 1 Mr. Westfall alleged that he suffered a loss of consortium and companionship as a proximate result of the motor vehicle accident. 2
Contrary to Mrs. Westfall s interrogatory answers and deposition testimony, her medical records show that she had numerous prior injuries to both shoulders, prior shoulder x-rays, and numerous prior prescriptions for shoulder pain: 2/1/10 Mrs. Westfall sought treatment at Creekmore Clinic for an injury to her left shoulder that occurred several days ago. According to this medical record: The patient was wrestling and was injured. The patient cannot describe the mechanism of injury only stating there was immediate pain in the left shoulder. 2 The discomfort is moderate to severe in intensity and has an aching quality. It does not radiate. She also injured her right thumb. Her physician diagnosed her with a Shoulder Contusion, ordered two x-rays of the shoulder, and prescribed her Darvocet-N and Flexeril. 9/9/10 Mrs. Westfall sought treatment at North Mississippi Medical Center, where the Emergency Room Physician diagnosed her with lower back pain and left joint and shoulder pain. She was prescribed a Medrol Dose Pack and Flexeril. 3/4/11 Mrs. Westfall sought treatment at North Mississippi Medical Center with complaints of pain in her right shoulder (and other areas of her body) following a fall from the steps of her deck. 8/18/11 Mrs. Westfall sought treatment at Pontotoc Hospital for throbbing pain in her right neck and right shoulder after she felt a pop when putting clothes in [the] dryer. (Capitalization omitted.) She was prescribed Lortab. 10/3/12 Mrs. Westfall sought treatment at North Mississippi Medical Center, complaining of back, neck, and left shoulder pain that she had been experiencing ever since she suffered fall on September 4, 2012. She also complained of right shoulder pain, experienced tenderness in the AC joint of her right shoulder, and received an x-ray of the right shoulder. She was prescribed Lortab, Muscle Relax Robaxin. 2/25/13 Mrs. Westfall sought treatment at Acute Care & Family Clinic of Pontotoc, complaining of, inter alia, left shoulder pain from an [i]njury from 2 to 3 years ago. She was prescribed Meloxicam for pain. 2 While Mrs. Westfall testified that she had a muscle spasm as a result of sleeping wrong, her medical records demonstrate that she was injured while wrestling. Mrs. Westfall has never provided any explanation for this misrepresentation. 3
(Emphasis added.) Thus, Mrs. Westfall s testimony that prior to the June 3, 2013, accident at issue, she only sought medical attention regarding her left shoulder on one occasion in 2010 and had never sought medical attention with respect to her right shoulder was clearly false. Likewise, her testimony that prior to the accident she had received prescription medications for shoulder pain on only one occasion in 2010 and had never had any shoulder x-rays also was clearly false. In light of the foregoing, the defendants filed a Motion to Dismiss, arguing that the case should be dismissed with prejudice under Mississippi Rule of Civil Procedure 37. Following a hearing on the Motion, the trial court entered its Findings of Fact and Conclusions of Law on Defendants Motion to Dismiss Claims of Plaintiffs, Shannon Westfall and John Westfall (hereinafter Order ), dismissing the Westfalls claims with prejudice. The COA reversed and remanded the trial court s decision and denied the defendants Motion for Rehearing. Nine Judges of the COA participated in this case: three concurred in the Majority Opinion authored by Presiding Judge Griffis; two joined in Presiding Judge Irving s Dissenting Opinion; and two (Judges Greenlee and Westbrooks), without separate written opinion, concurred in the Majority Opinion in part and in result and also joined in the Dissenting Opinion in part. Due to the silence of Judges Greenlee and Westbrooks, the parties and the trial court are left without any guidance as to which parts of the Majority Opinion actually represent the opinion of the Majority (six of the nine judges) versus what parts of the Dissenting Opinion actually represent the opinion of the Majority (five of the nine Judges). 3 The COA refused to provide any clarification on this issue in response to the defendants Motion for Rehearing. 3 The COA s Opinion essentially consists of the following two determinations, as addressed herein: (1) the trial court abused its discretion in concluding that Mrs. Westfall s misrepresentations were intentional/deceitful and (2) the trial court abused its discretion in finding that no less drastic sanction would suffice. If Judges Greenlee and Westbrooks concurred in both of these conclusions, then the trial court 4
IV. ARGUMENT Abuse of discretion is the appropriate standard of review for the trial court s dismissal of the Westfalls action as a discovery sanction. See Pierce, 688 So. 2d at 1388. If the trial court applie[s] the right [legal] standard, then [the reviewing court] considers whether the decision was one of several reasonable ones which could have been made. Id. The reviewing court is not permitted to re-weigh the evidence, decide an issue of witness credibility based on its own impression, second guess, or substitute [its] own judgment for that of the trial court. 4 The defendants respectfully submit that the COA committed the first and last acts it rejected the trial court s decision on the lack of any credibility of Mrs. Westfall s testimony that she had no other shoulder problems until the accident, and it substituted its own judgment for that of the trial court. Moreover, the COA s substituted judgment was based on a misunderstanding of the facts in the record as well as a misapplication of prior case law to those facts. A. The COA Erred in Holding that the Trial Court Abused Its Discretion in Concluding that Mrs. Westfall s Repeated Misrepresentations Regarding Pre- Existing Issues with Her Shoulders Were Intentional and Deceitful. Mrs. Westfall s interrogatory response and deposition testimony regarding prior shoulder injuries/medical treatment were indisputably false. As such, the trial court properly concluded that [a] comparison of Shannon Westfall s answers to interrogatories and deposition testimony would not be allowed to consider lesser sanctions upon remand. However, if Judges Greenlee and Westbrooks concurred only in the second conclusion, i.e. that dismissal was too severe of a sanction, but nevertheless agreed with Judge Irving s dissent that intentional/deceitful misrepresentations occurred, then Judge Irving s dissent actually would be the Majority s decision on this particular issue. Under such circumstances, the trial court would be allowed to consider sanctions less than a full and final dismissal of the Westfalls claims. 4 See McDonald v. McDonald, 115 So. 3d 881, 886 (Miss. Ct. App. 2013); Lewis v. State, 914 So. 2d 775, 777 (Miss. Ct. App. 2005); Wallin (Drewery) v. Drewery, 789 So. 2d 786, 789 (Miss. Ct. App. 2001); Scott v. Ball, 595 So. 2d 848, 850 (Miss. 1992). 5
set forth with her pre-accident medical records shows that she intentionally and deceitfully misrepresented her pre-existing medical condition with respect to both of her shoulders. The COA disagreed, finding no evidence to support the conclusion that Shannon intentionally misled or blatantly lied in her discovery responses. (See Opinion, at 20.) The defendants respectfully submit that such was based upon the COA s misunderstanding of the facts in the record and its misapplication of the law to those facts as demonstrated by the following: (1) The COA erroneously focused on the fact that the specific injury Mrs. Westfall allegedly sustained as a result of the accident was a rotator cuff tear whereas the undisclosed preaccident injuries to her shoulders were more generalized in nature. Contrary to the COA s Opinion, such a distinction in no way nullifies the willfulness of a plaintiff s concealment. 5 In fact, the intentionality of Mrs. Westfall s concealment is evidenced by the record even more clearly than that of the plaintiffs in Lockhart and Conklin. Rather than failing to disclose any pre-existing shoulder issues whatsoever, Mrs. Westfall actually disclosed one incident involving her left shoulder in 2010, misrepresenting that it was a muscle spasm from sleeping wrong when it was actually a wrestling injury. As noted in Judge Irving s dissenting opinion in the present case, Mrs. Westfall s testimony that she had not had any problems with her shoulders since sleeping wrong and suffering muscle spasms in her left shoulder in 2010 is not only false, but also shows, without question, that she fully understood that she was being asked about pre-accident problems generally 5 See, e.g., Lockhart v. Stirling Properties, Inc., 170 So. 3d 1235, 1238 (Miss. Ct. App. 2015) (rejecting plaintiff s argument that because she never considered that her preexisting shoulder problems... were similar to the injury... she suffered from the accident, her actions during discovery were not intentional and willful ) and Conklin v. Boyd Gaming Corp., 75 So. 3d 589, 594-95 (Miss. Ct. App. 2011) (rejecting plaintiff s argument that his concealment of prior treatment for cellulitis in his leg was unintentional because he did not understand that he had previously been treated for cellulitis specifically as [t]he questions Conklin was asked referenced his leg generally and were not limited to symptoms similar to cellulitis. ) 6
with her shoulders, not just about injuries related to the accident. (See Opinion, at 40 [Irving, P.J., dissenting].) (2) The COA erroneously relied on some unidentified confusion in Mrs. Westfall s medical records: The record indicates that there was some confusion between injuries to [Mrs. Westfall s] left and right shoulders. But, this confusion does not lead to the conclusion that Shannon made intentional and deceitful misrepresentations.... (See Opinion, at 20.) As noted in Judge Irving s dissenting opinion: [T]here was no confusion between the injuries to Shannon s left and right shoulders. Certainly, nothing in the record supports this statement by the majority. Shannon was clear that she had suffered only one [prior] injury to one shoulder and that was to her left shoulder. Further, even if there had been some confusion, which there was not, Shannon was required by the interrogatories to disclose problems and/or injuries with and to both shoulders. (See Opinion, at 43 [Irving, P.J., dissenting].) The only medical record upon which the COA possibly could have relied in finding confusion is from the February 25, 2013 visit to Acute Care & Family Clinic of Pontotoc. However, the trial court specifically gave Mrs. Westfall the benefit of the doubt with respect to this record and never considered its contents while reaching its opinion: The plaintiff[] contend[s] that this record exhibits a clerical error because it switches from left to right and back again.... However, even if this is correct and Shannon Westfall only complained about her left shoulder rather than both shoulders on this particular visit, the fact still remains that she failed to disclose the visit at all, regardless of which shoulder was involved, despite the fact that she had been asked about both of her shoulders throughout the course of discovery. The trial court s conclusion was well within its broad discretion such that the COA s rejection of the trial court s determination on Mrs. Westfall s credibility and its substitution of its own judgment on this issue effectively robbed the trial court the discretion to which it was entitled. 7
(3) According to the COA, [t]here is simply no comparison between [Mrs. Westfall s] discovery answers and those in Scoggins [v. Ellzey Beverages, Inc., 743 So. 2d 990 (Miss. 1999)], because Mrs. Westfall did not completely misrepresent years of medical history and procedures, as did the plaintiff in Scoggins.... (See Opinion, at 18, 19 [quoting Kinzie v. Belk Department Stores, L.P., 164 So. 3d 974, 978 (Miss. 2015)].) This statement further demonstrates the COA s misunderstanding of the facts in the record which clearly demonstrate that Mrs. Westfall did in fact completely misrepresent years of medical history. While Mrs. Westfall concealed only four years of treatment rather than eighteen years of treatment as concealed by Scoggins 6, such does not render Mrs. Westfall s concealment any less intentional or deceitful. 7 (4) The COA held that Mrs. Westfall s providing the defendants with a medical authorization weighs against a finding that [she] made an intentional misrepresentation or blatantly lied about her medical history. (See Opinion, at 13 n.1.) As noted by Judge Irving, there is no Mississippi case law supporting such a conclusion. (See Opinion, at 43 [Irving, P.J., dissenting].) In fact, the case law contradicts the COA s position and supports the trial court s discretionary conclusion that the fact that Shannon Westfall signed medical authorizations [did] not diffuse her misrepresentations. 8 6 See Scoggins, 743 So. 2d at 992. 7 The COA as well as this Court have affirmed dismissals for concealment of medical histories that were fall less extensive than that in Scoggins. See, e.g., Lockhart., 170 So. 3d at 1238; Conklin, 75 So. 3d at 594; Chambers v. Brown, 66 So. 3d 1269, 1270 (Miss. Ct. App. 2011); Allen v. Nat. R.R. Passenger Corp., 934 So. 2d 1006, 1008 (Miss. 2006); Grant v. Kmart Corp., 870 So. 2d 1210, 1214 (Miss. Ct. App. 2001). 8 See, e.g., Ashmore, 148 So. 3d at 984; Conklin, 75 So. 3d at 595; Scoggins, 743 So. 2d at 991, 996. 8
B. The COA Erred in Holding That the Trial Court Abused Its Discretion in Finding That No Less Drastic Sanction Than Dismissal Would Suffice. This Court set forth the following four-part test in Pierce for determining whether dismissal is an appropriate sanction for a discovery violation: [1] First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. [2] Dismissal is proper only in situation where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. [3] Another consideration is whether the other party's preparation for trial was substantially prejudiced. [4] 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. 688 So. 2d at 1389 (quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir. 1985)) (numbering added). The COA s Opinion in the case sub judice ultimately holds that it is an abuse of discretion for a trial court to conclude that no lesser sanctions will suffice (i.e., the second Pierce factor) unless there is a showing that the plaintiff s misrepresentation resulted in some prejudice to the defendant (i.e., the third Pierce factor). (See Opinion, at 20.) In other words, the COA held that dismissal is an inappropriate remedy for a plaintiff s lying under oath during discovery so long as the defendant ultimately discovers the lie and can use it to attack the plaintiff s case at trial (i.e., so long as the defendant is not prejudiced at trial). This is simply not the law. 9 9 In fact, the Court in Pierce specifically held that [t]here is no requirement that the defendant be substantially prejudiced by the absence of evidence. 688 So. 2d at 1391. If the COA s Opinion in this case were a correct statement of the law, which it is not, then the trial courts dismissals in Lockhart, Conklin, and Scoggins all should have been reversed rather than affirmed. This is because in each of those cases, the defendants reasonable discovery efforts led them to medical records which revealed the plaintiffs concealment of their respective medical histories which the defendants otherwise could have used at trial such that there would have been no trial prejudice to the defendants. 9
While the COA may have disagreed that dismissal was the appropriate remedy, the trial court s decision was at least one of several reasonable ones which could have been made. See Ashmore, 148 So. 3d at 981 (quoting Pierce, 668 So. 2d at 1388). In addition to the trial court, three members of the COA also opined that Mrs. Westfall s concealment of her pre-existing shoulder issues was a blatant disregard for her discovery obligations, worthy of the dismissal of her complaint. (See Opinion, at 40 [Irving, P.J., dissenting].) The defendants respectfully submit that the opinion of these three judges as well as the trial judge is, at a very minimum, a reasonable one. V. CONCLUSION The defendants respectfully submit that the COA failed to give the trial court s decision dismissing this action the broad discretion to which it was due. Instead, the COA rejected the trial court s determination on the credibility of Mrs. Westfall s sworn testimony and substituted its own judgment for that of the trial court. While doing so, the COA misunderstood the facts in the record and misapplied prior case law to those facts. The result is that the COA s Opinion ultimately and without any qualification condones the subversion of the common goal of the adversarial system: to learn the truth, the whole truth and nothing but the truth. Pierce, 688 So.2d at 1391 (internal quotation marks omitted.) The defendants/appellees respectfully submit that this conclusion violates not only the trial court s sound discretion, but it also violates the public policy of a judicial system where parties are entitled to make a fair search for the truth. WHEREFORE, PREMISES CONSIDERED, the defendants/appellees respectfully request the Court to issue a Writ of Certiorari and to review the full record and briefs from the Court of Appeals, ultimately reinstating the trial court s judgment in its favor. 10
This the 21 st day of March, 2018. Respectfully Submitted: RANDY GOGGINS and CARNES FRAMES, INC. BY: /s/joseph W. Gill EDWARD J. CURRIE, JR. (MSB# 5546) REBECCA B. COWAN (MSB# 7735) JOSEPH W. GILL (MSB# 102606) Currie Johnson & Myers, P.A. 1044 River Oaks Drive Post Office Box 750 Jackson, Mississippi 39205-0750 Telephone: (601) 969-1010 Facsimile: (601) 969-5120 11
CERTIFICATE OF SERVICE I hereby certify that on the below referenced date, I electronically filed the foregoing document with the Clerk of the Mississippi Supreme Court using the ECF System for provision of notification and a copy of the referenced document to the following counsel of record in this cause: William O. Rutledge, Esq. Rutledge and Davis, PLLC P.O. Box 29 New Albany, MS 38652 L.N. Chandler Rogers, Esq. Rogers Law Group, P.A. P.O. Box 1771 New Albany, Mississippi 38652 I further certify that I have this day delivered, by U.S. Mail, postage prepaid, a true and correct copy of the foregoing document to the following: Hon. Jim S. Pounds Circuit Court of Pontotoc County, Mississippi P.O. Box 316 Boonville, MS 38829 This the 21 st day of March, 2018. /s/joseph W. Gill JOSEPH W. GILL (MSB# 102606) 12