Bowie v. Montfort Jones Memorial Hospital

ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. As a result of the death of Lois Brown (Brown), her heirs filed a medical malpractice action against a hospital, a clinic, and several physicians. In due course, the trial court granted summary judgment in favor of the defendants, thus prompting the Brown heirs to appeal to this Court, which assigned this case to the Court of Appeals. The Court of Appeals, on a 6^4 vote, reversed the trial court’s grant of summary judgment and remanded the case to the trial court for a plenary trial on the merits. Bowie v. Montfort Jones Mem’l Hosp., 850 So.2d 1210 (Miss.Ct.App.2002). We granted the defendants’ petition for writ of certiorari, and upon consideration of the record before us and the applicable law, we reverse the Court of Appeals’ judgment and affirm the trial court’s judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Lois Brown, age sixty-seven years, was taken by ambulance from her home to Montfort Jones Memorial Hospital in Kosciusko, Mississippi, on June 13, 1998, following a seizure. She had a four-inch laceration to the head. Brown had a history of alcohol-induced seizures and her blood alcohol content that day was .19%. There was evidence that Brown had been consuming both beer and whisky at her home which had no air-conditioning on a day when the heat index had reached 110 degrees Fahrenheit. Brown’s condition improved over the next two days but then began to deteriorate. Brown died on June 17, 1998, from a cerebral hemorrhage brought on by heart and lung failure.

¶ 3. On November 24, 1999, Willie Bowie (Bowie), individually and as representative of Brown’s heirs, filed suit against Mont-fort Jones Memorial Hospital (Montfort Jones), Kosciusko Medical Clinic (Clinic) and several physicians alleging that Mont-fort Jones, the Clinic and doctors were negligent in failing to provide Brown with a minimal level of care, thereby causing her death.

¶ 4. The trial judge entered an agreed scheduling order on August 16, 2000, which provided, inter alia, that all discovery, was to be completed by March 1, 2001; that the plaintiffs were to designate experts not later than December 31, 2000; and, that the defendants were to designate experts by January 31, 2001. The order further provided that the deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.” Although the plaintiffs failed to designate experts by the December 31, 2000, deadline, Montfort Jones designated its expert witness on January 26, 2001, and the Clinic and the physicians designated their experts on January 31, 2001. Also, on January 26, 2001, Montfort Jones filed a motion for summary judgment and soon thereafter, the physicians and the Clinic likewise filed motions for summary judgment. These various motions for summary judgment alleged basically that without a medical expert, a prima facie case of medical malpractice could not be made. On February 5, 2001, the plaintiffs designated Dr. Obie NcNair as an expert witness. The Miss. R. Civ. P. 26(b)(4) designation included a statement that Dr. McNair would testify the defendants did not properly monitor Brown, did not administer blood gas tests, did not provide daily electrolytes, and gave Brown too much potassium. On February 28, 2001, the plaintiffs filed Dr. McNair’s sworn affidavit which stated his opinion “to a reasonable degree of medical probably [sic], that the death of Mrs. Brown could have been avoided if proper monitoring of her heart and blood chemistries had been monitored and attended to more closely.”

¶ 5. The motions for summary judgment along with motions to strike the plaintiffs’ late designation were heard on March 5, 2001, at which time plaintiffs’ counsel submitted a motion for extension of time to designate an expert, seeking a retroactive order permitting the late designation. The trial judge found that the motion for extension of time was untimely as it was filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion[s] for Summary Judgment were filed.” The trial judge further noted that the motion claimed the original deadline was not met due to counsel’s attendance at other trials or legal proceedings but that counsel offered no evidence such as calendars to support the claim.

¶ 6. The trial court then found that because the plaintiffs had not designated an expert in compliance with the agreed scheduling order, no prima facie case of medical malpractice could be made against any of the defendants. The trial court also found that even if the late-designated expert’s affidavit was accepted despite its tardiness, it was inadequate to defeat a motion for summary judgment.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 7. The Court of Appeals reversed the trial court’s grant of summary judgment based primarily on our decision rendered in Thompson v. Patino, 784 So.2d 220 (Miss.2001). As acknowledged by the Court of Appeals, the trial court in today’s case did not have the benefit of our decision in Thompson, which was handed down sixty-six days after the trial court’s .grant of summary judgment in today’s case. In a 6^1 decision, the Court of Appeals reversed the trial court’s grant of summary judgment. Presiding Judge Southwick, joined by three judges, dissented and focused on the inadequacy of the affidavit of the plaintiffs’ medical expert, without addressing the issue of the trial court’s action in striking the affidavit of the expert on the basis of an untimely filing. The Court of Appeals found that the facts in Thompson were “remarkably similar” to the facts in today’s case. However, as will be discussed later in this opinion, our decision in Thompson, which was no doubt “fact-driven,” is easily distinguishable from the case sub judice.

DISCUSSION

¶ 8. This Court applies a de novo standard of review of a lower court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001). The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues of material fact such that he is entitled to judgment as a matter of law. Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 696 (Miss.1996). The motion may not be defeated merely by responding with general allegations, but must set forth specific facts showing that issues exist which necessitate a trial. Drummond v. Buckley, 627 So.2d 264, 267 (Miss.1993). After viewing the evidence in a light most favorable to the nonmoving party, this Court will only reverse the decision of the trial court if triable issues of fact exist. Travis v. Stewart, 680 So.2d 214, 216 (Miss.1996).

¶ 9. While this appeal is before us today to consider the issues of the timeliness of the plaintiffs’ designation of a medical expert and the trial court’s alternative finding that notwithstanding the timeliness issue, the affidavit of the plaintiffs’ designated expert was inadequate to defeat summary judgment, we find the issue of timeliness to be dispositive of this appeal, and thus do not reach the issue of the sufficiency of the affidavit of the plaintiffs’ expert.

I. DID THE TRIAL COURT COMMIT ERROR BY FAILING TO CONSIDER THE AFFIDAVIT OF THE PLAINTIFFS’ EXPERT DUE TO UNTIMELINESS EN ROUTE TO A GRANT OF SUMMARY JUDGMENT IN FAVOR OF THE MEDICAL DEFENDANTS.

¶ 10. Discovery responses are to be supplemented seasonably pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure. It has been held that “[s]ea-sonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995). Additionally, “sea-sonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Board of Supervisors, 720 So.2d 190,195 (Miss.1998).

¶ 11. Lois Brown died in 1998, and this action was filed in 1999. The trial court’s scheduling order provided that plaintiffs were to designate experts by December 31, 2000. The motions for summary judgment were filed in January 2001. Plaintiffs did not designate Dr. McNair as a witness until February 5, 2001, and did not file his affidavit until February 28, 2001. Applying the proper standard, the trial court found as follows:

This Court is of the opinion that the plaintiff has just failed to show any excusable neglect for why the designation of experts was not filed timely. Therefore, the motion for extension of time to designate expert witnesses is denied.

The motion to strike designation of experts is granted. Because there is [sic] no expert witnesses now before this Court, the motion for summary judgment filed by each of the defendants is granted.

¶ 12. The plaintiffs rely on Thompson v. Patino, 784 So.2d 220 (Miss.2001) wherein we held that the striking of an expert designation was considered to be too harsh a sanction for a discovery violation. That decision is clearly limited to the facts of that case and does not stand for the proposition that a trial court may never strike an expert affidavit in response to a discovery violation. Id. at 224. Further, in Thompson, the plaintiffs had designated their expert in 1994 and were seeking to supplement proposed testimony with a deposition which was taken in 1996. The defendants’ motion for summary judgment in that case was not filed until 1997. Although the plaintiffs’ expert affidavit was not filed until after the motion for summary judgment was filed, the expert in that case had been timely designated and his deposition had been taken.

¶ 13. In the present case, the expert was not timely designated. Also, the holding in Thompson dealt with the propriety of a particular sanction for the violation of a discovery rule whereas the instant case involves the failure to comply with a trial court’s order concerning the time frame for the completion of discovery. Neither Dr. McNair’s identity nor his affidavit were made available until after the motion for summary judgment had been filed, notwithstanding the defendants’ previously submitted Rule 26(b)(4) interrogatory [Miss. R. Civ. P. 26(b)(4)] and the trial court’s previously entered agreed scheduling order. The trial judge made a specific finding that the plaintiffs had failed to show any excusable neglect as to why the designation of the expert was not timely filed. This Court has previously held that an action may not be dismissed for a discovery violation if a party is simply unable to comply, but that dismissal may be justified if the violation is the result of “willfulness, bad faith, or any fault of the party.” Fluor Corp. v. Cook, 551 So.2d 897, 903 (Miss.1989) (emphasis added).

¶ 14. Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril. See, e.g., Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767-68 (Miss.1984) (held that trial court did not abuse discretion in dismissing case due to failure to comply with pre-rules discovery statutes relating to timely designation of expert witnesses); Mallet v. Carter, 803 So.2d 504, 507-08 (Miss.Ct.App.2002) (held that trial court did not abuse discretion in dismissing case for failure to timely designate expert witness within the time allowed by the trial court’s scheduling order). The provisions of Miss. R. Civ. P. 37(d)(2) clearly provide that the sanctions for failure to answer Rule 33 interrogatories [Miss. R. Civ. P. 33] are the same as set out in subsections (A), (B), and (C) of Miss. R. Civ. P. 37(b)(2), which provide, inter alia, for sanctions by way of dismissal of a case. In a case wherein we upheld the trial court’s refusal to set aside a default judgment, we stated:

It may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds. Although we are not about to inaugurate a policy of entering irrevocable defaults where no answer has been filed by the thirty-first day, we are equally resolved that people know that the duty to answer must be taken seriously. At some point the train must leave.

Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388-89 (Miss.1987).

¶ 15. The sound reasoning in Guaranty National is certainly applicable in the case before us today. As of August 16, 2000, the parties and attorneys knew what was expected of them by the trial court upon its entry of the scheduling order. The parties and the attorneys knew from the express language of the scheduling order that the therein stated deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.” Pursuant to the provisions of the scheduling order, the plaintiffs were to designate their expert by December 31, 2000, which came and passed uneventfully without any expert designation by the plaintiffs. Notwithstanding the plaintiffs’ failure to timely designate their experts, the defendants dutifully designated their experts in a timely fashion — but the plaintiffs still were not to be heard from by way of their expert designation. It was not until the defendants filed their various motions for summary judgment that the plaintiffs finally designated their medical expert. Additionally, it was not until the hearing on the motions for summary judgment, some sixty-four days after the passage of the plaintiffs’ deadline for expert designation, that the plaintiffs for the first time acknowledged that they had failed to meet the court-imposed deadline. This is when the plaintiffs submitted to the trial court a motion for extension of time to designate an expert and also seeking a retroactive order permitting the late expert designation. The trial judge found that the plaintiffs’ motion for extension of time was untimely inasmuch as it had been filed “over two months after the deadline for designation of expert witnesses had passed and over a month after one or more of the Defendants’ Motion[s] for Summary Judgment were filed.” Upon the trial court’s finding that the plaintiffs had not timely designated an expert in accordance with the provisions of the scheduling order, the trial court then granted summary judgment since the plaintiffs could not make out a prima facie case of medical malpractice without a medical expert.

¶ 16. While the end result in today’s case may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts. As we noted in Guaranty National, the parties must take seriously their duty to comply with court orders. “At some point the train must leave.” 501 So.2d at 389. That point was reached in today’s case on December 31, 2000.

CONCLUSION

¶ 17. For the reasons stated, the decision of the Court of Appeals is reversed, and the trial court’s summary judgment in favor of the defendants is affirmed.

¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR.

GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.

DIAZ, J., NOT PARTICIPATING.

. We quote from the transcript of the trial court’s ruling on these issues:

This Court is of the opinion that anytime anyone has — anytime a plaintiff files a medical malpractice case, they know from that date forward that they’re going to have to come forward with expert proof to show that there is — has been some malpractice involved. So the plaintiff knew from November 24th, 1999, until December 31st, 2000, that there was going to have to be experts designated.

And the Court will note that scheduling orders are necessary.The rules are enacted for all people to follow and abide by. And the Court, you know, cannot be lax and allow one to follow the rules and others not to.