text
stringlengths 755
1.01M
| meta
dict |
|---|---|
IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-IA-01286-SCT
JACKSON MEDICAL CLINIC FOR WOMEN, P. A.,
MERCER LEE, III, M.D., DARDEN H. NORTH, M.D.
AND PARACELSUS WOMAN’S HOSPITAL, INC.
v.
GRACE POLLES MOORE AND ROBERT ALAN
MOORE, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVES AND WRONGFUL DEATH
BENEFICIARIES OF ROBERT ALAN MOORE, JR.,
DECEASED
DATE OF JUDGMENT: 7/19/1999
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: WHITMAN B. JOHNSON, III
THOMAS CREAGHER TURNER
JOSEPH L. McNAMARA
ATTORNEYS FOR APPELLEES: DANA J. SWAN
RICHARD B. LEWIS
DENNIS C. SWEET, III
NATURE OF THE CASE: CIVIL/MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 01/30/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COBB, JUSTICE, FOR THE COURT:
¶1. On August 7, 1995, Grace Polles Moore and Robert Alan Moore (the Moores), individually, and
as personal representatives and wrongful death beneficiaries of Robert Alan Moore, Jr., filed their
complaint in the Circuit Court of Hinds County, First Judicial District. The Moores claimed medical
negligence against the Jackson Clinic for Women, P.A., Dr. A. Mercer Lee, III, Dr. Darden H. North
(collectively, Jackson Clinic), and Paracelsus Woman’s Hospital (now the Woman’s Hospital), alleging
damages for the wrongful death of their stillborn child, and for personal injuries sustained by themselves.
On November 14, 1995, Jackson Clinic filed a motion for summary judgment,1 claiming the Moores’ action
was barred by the two-year statute of limitations for medical negligence, Miss. Code Ann. § 15-1-36. The
motion for summary judgment was denied. Jackson Clinic then filed a petition for interlocutory appeal with
this Court concerning the statute of limitations issue, which we denied on May 22, 1996.
¶2. On February 20, 1997, Jackson Clinic issued a subpoena duces tecum to Mrs. Moore’s previous
attorney, Michael Hartung, to produce all files, correspondence, documents, or other things related to the
representation of the Moores in this matter. The Moores filed a motion to quash the subpoena duces
tecum, which was granted by the circuit court by order on March 10, 1997. A motion to reconsider was
then filed, which was similarly denied.
¶3. On October 29, 1998, Jackson Clinic again filed a motion for summary judgment, along with a
motion for disclosure of records and other relief, which was denied by the circuit court on July 19, 1999.
On April 28, 2000, Jackson Clinic again petitioned this Court for an interlocutory appeal, this time on the
issue of waiver of attorney-client privilege, which this Court granted by order on April 13, 2000. See
M.R.A.P. 5. Jackson Clinic states its issue on interlocutory appeal as follows:
DOES THE PLAINTIFFS’ VOLUNTARY USE OF ADVICE AND
COMMUNICATIONS FROM THEIR FORMER ATTORNEY AS A BASIS
TO AVOID DEFENDANTS’ STATUTE OF LIMITATIONS DEFENSE
WAIVE THE ATTORNEY-CLIENT PRIVILEGE SO AS TO ALLOW
DEFENDANTS TO CONDUCT DISCOVERY REGARDING THE
FORMER ATTORNEY’S FILE AND ADVICE?
1
The Woman’s Hospital joined the motion for summary judgment on December 1, 1995.
2
¶4. Concluding that Jackson Clinic’s appeal is well taken, we reverse and remand.
FACTS
¶5. On or about August 24, 1992, Grace Polles Moore, who was pregnant at the time, entered
Woman’s Hospital complaining of abdominal pain. Moore was under the care of Dr. Lee and Dr. North,
physicians practicing with the Jackson Clinic for Women. It was determined that Moore was suffering from
a twisted bowel, which required a cesarian section be performed, along with a resection of her small
bowel; the baby was stillborn.
¶6. Moore, herself a registered nurse, contacted attorney Michael Hartung in December of 1992, who
in turn requested the medical records of her treatment in August from the two doctors, the clinic and the
hospital. Hartung forwarded the records to an expert, Dr. Richard A. Nicholls, for review. Dr. Nicholls
opined, in a letter dated April 5, 1993, that Jackson Clinic was not negligent and may have in fact saved
her life:
Although Mrs. Polles [Moore] presented at multiple times with abdominal pain during her
pregnancy, she had a history of multiple gastrointestinal problems and previous abdominal
surgeries which alone could have accounted for her abdominal pain, manifesting the signs
and symptoms that she presented with. Volvulus with gangrene of the bowel is an acute
happening, not chronic. There was no way to diagnose this condition until it happened.
It is unfortunate that the patient was pregnant at the time, because gangrene of the bowel
did cause her baby’s death; however, she was very fortunate that her physicians
recognized that she had an acute surgical abdomen and that they acted appropriately
because had they not, she would also be dead. Her physicians are not guilty of
malpractice, but they are responsible for saving her life.
¶7. According to Moore, later that year in November of 1993, she was hospitalized at the Mississippi
Baptist Medical Center due to chronic abdominal pain, nausea, vomiting, bloating, and diarrhea, as a result
of her short bowel syndrome. Her treating physician referred her to the Mayo Clinic in Jacksonville,
Florida. Moore claims that it was during this treatment at the Mayo Clinic, in January of 1994, that “she
3
was alerted to the fact that her treatment in August 1992, may have been the cause of the death of her baby
and of her short bowel syndrome.” Moore retained a different attorney, Richard B. Lewis, in April 1994,
who then forwarded her medical records to Dr. Charles Cesare, a gynecologist licensed to practice in
Mississippi. Dr. Cesare reached a different conclusion than Dr. Nicholls had previously:
Subsequently, on or about September 15, 1994, more complete medical records
of Mrs. Moore were made available to me. Based upon the additional records of the
hospital, I was able to determine that she did not receive the minimum standard of care
from the treating physicians, and from the hospital, Paracelsus Woman’s Hospital. She
was not properly evaluated and monitored during the night. Had a proper evaluation been
done, her baby could have been saved and her intestine could have been saved.
In my opinion, the type of injury sustained by Mrs. Moore resulting from the
medical care given by her treating physicians, as well as Paracelsus Woman’s Hospital,
Inc., was a latent injury whose cause could not be readily ascertained except by a thorough
review of all medical records by a physician. I am aware that Mrs. Moore is a registered
nurse, however, this would not give her the expertise necessary to determine whether or
not there was a causal relationship between her injuries and the care which she received
on August 24, 1992.
On October 8, 1995, I met with Mr. and Mrs. Moore and informed them of my
opinion.
STANDARD OF REVIEW
¶8. When the issues presented on an interlocutory appeal are questions of law, this Court will review
those issues, as other questions of law, de novo. Gant v. Maness, 786 So. 2d 401, 403 (Miss. 2001).
DISCUSSION
¶9. Jackson Clinic devotes a considerable amount of its brief to discussing why the
Moores’ causes of action should have been barred by the statute of limitations and why summary judgment
should have been granted by the trial court. However, we did not grant this interlocutory appeal to
consider that issue. Since this Court has previously denied an interlocutory appeal on the issue on the
statute of limitations and summary judgment, we will limit our discussion of that issue to what is necessary
4
to fully understand the issue that is properly before this Court, namely, whether Moore has effectively
waived the attorney-client privilege.
A. Statute of Limitations—Discovery Rule
¶10. Mississippi has a two-year statute of limitations for medical malpractice claims. Miss. Code Ann.
§ 15-1-36 (Supp. 2002). The action must be “filed within two (2) years from the date the alleged act,
omission or neglect shall or with reasonable diligence might have been first known or discovered.” Id. §
15-1-36(1). This Court has termed this the “discovery rule” and has interpreted the rule to mean that “the
operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause
of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.”
Sarris v. Smith, 782 So. 2d 721, 723 (Miss. 2001) (quoting Smith v. Sanders, 485 So. 2d 1051,
1052 (Miss. 1986)). “Application of the discovery rule is a fact-intensive process.” Sarris, 782 So. 2d
at 725. Still, if the plaintiff “fails to bring suit because he is incompetently or mistakenly told he does not
have a case, we discern no sound reason for visiting the consequences of such on the defendant by delaying
the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit.” United
States v. Kubrick, 444 U.S. 111, 124, 100 S.Ct. 352, 62 L. Ed. 2d 259 (1979).
¶11. Jackson Clinic argues that the statute of limitations for the Moores’ causes of action began to run
upon receipt of Mrs. Moore’s medical records by her former attorney, Michael Hartung, around January
of 1993. In that case, the suit would be time barred because the Moores did not file their complaint until
more than two and one-half years later. Contrarily, the Moores claim that the injury sustained by Mrs.
Moore was latent and was not discovered until sometime between January and September of 1994; thus,
the claim was filed well within the two-year statute of limitations. However, this Court need not decide
which party is correct as that issue is not now before this Court. The only issue on this interlocutory appeal
5
is whether Moore waived the attorney-client privilege by allegedly revealing otherwise privileged
communications with her previous attorney, Michael Hartung, to defeat Jackson Clinic’s motion for
summary judgment.
B. Waiver of Attorney-Client Privilege
¶12. In Mississippi, the attorney-client privilege is established by the Mississippi Rules of Evidence.
Pursuant to our evidentiary rules: “A client has a privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications made for the purpose of facilitating the rendition of
professional services to the client . . . .” Miss. R. Evid. 502(b). See also Miss. Rules of Prof'l Conduct
R. 1.6. It is the attorneys’ duty “[t]o maintain inviolate the confidence and, at every peril to themselves,
to preserve the secrets of their clients.” Miss. Code Ann. § 73-3-37(4) (2000).
¶13. This Court has said that “the privilege relates to and covers all information regarding the client
received by the attorney in his professional capacity and in the course of his representation of the client.”
Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). And while “[o]nly the client may invoke the
privilege,” the client may also waive the privilege in certain circumstances. Id. “Once the client has
effectively waived the privilege, the attorney is competent as a witness regarding matters otherwise within
the scope of the privilege.” Id. In Bennett v. State, 293 So. 2d 1 (Miss. 1974), overruled on other
grounds by Triplett v. State, 579 So. 2d 555 (Miss.1991), we cited the rule concerning “effective”
waiver of the privilege by a client:
While a client does not lose the benefit of the privilege where he is compelled, against his
protest, to disclose confidential statements, if he voluntarily introduces testimony relating
to such communications, his privilege may not thereafter be asserted. Thus, where he
voluntarily testified, as a witness, to confidential communications made by him to his
attorney, he thereby waives the privileged character of such communications, and he and
his attorney may then be fully examined in relation thereto.
6
Bennett, 293 So. 2d at 5 (quoting 58 Am. Jur. Witnesses § 526).
¶14. Jackson Clinic asserts that Moore effectively waived the attorney-client privilege in her sworn
affidavit where she stated:
Sometime in December of 1992, I consulted attorney Michael Hartung about a
possible malpractice action as a result of the previously mentioned medical treatment. I
executed a medical release on or about December 23, 1992. I requested that he obtain
all pertinent medical records.
On or about April 5, 1993, Dr. Richard A. Nicholls, M.D., who examined the
records, wrote a letter to my attorney, a copy of which was later given to me. I was
informed that I had no cause of action against the Defendants sometime in April, 1993, by
attorney Hartung.
¶15. Jackson Clinic further asserts that Moore waived the privilege during her deposition when she
testified:
Q. Once you get out of the hospital, how soon after you get out of the hospital do you
go see a lawyer?
A. Oh, the first time I saw a lawyer was December of 1993, around then.
Q. Are you sure it wasn’t December of ’92 . . .
A. It was probably December of ’92 . . .
Q. Had you talked with Alexis any about needing to pursue a claim prior to the time
you went to see a lawyer?
A. Oh, I—this is what I said. I was in the hospital, and I had not spoken to anybody
about anything of that nature. I looked at Alexis, and I said, “Something was
wrong. Something was real wrong.” And she said, “Grace, I’m glad you said
that.” She said, “We’ve talked about it, the family, and we know it, but we didn’t
want to say it to you because we didn’t know if you could handle it.”
[. . .]
Q. Do you know what they did in investigating the claim?
A. All I know that Michael Hartung said was that he sent my records to a physician
on the Coast, and that’s all I know.
Q. Did you know what that physician said?
A. Yes. I knew that he had said that, basically, he could not say there was cause for
the medical records that he had. What he was reviewing, there was not cause.
[. . .]
Q. This is your affidavit. It says, “I was informed I had no cause of action against the
defendant sometime in April, 1993 by Attorney Hartung.” How many different
meetings did you have with Mr. Hartung about your case?
7
A. To the best of my memory, I saw Michael Hartung one time, and that was it, the
initial visit.
[. . .]
Q. Was there ever a conversation that you had with him that you remember where he
just said, “Look, we are not going to do anything more.” Because you are with
Ricky now, and you were with Hartung, and I’m trying to figure out how did you
become notified that he wasn’t going any further with it?
A. I was notified—actually, I—it was—I don’t want to sound ugly, but it was
basically, like he thought I had a case, but he didn’t know enough medical people
that he was centered in Jackson to send to.
Q. Okay.
A. Kind of like a small-community type thing knowing everybody.
Q. So when you last talk with him, you got the impression he thought there was
something there, but he just couldn’t find anybody?
A. Yes I did.
[. . .]
Q. —you believed that he thought there was a case there but that he just couldn’t find
an expert because of the Jackson community?
A. Kind of, sort of.
[. . .]
Q. Is that the conversation when you called him to see if you had all your medical
records from him that you had the impression he thought there was something
there, but he just couldn’t find an expert?
A. That’s what I understand that he said.
Q. Okay.
A. Just—and like I say, it was just off-the-cuff. He knew I had gotten my records.
We weren’t pursuing anything, and that was it.
¶16. Jackson Clinic claims that through both her affidavit and deposition testimony, Moore voluntarily,
knowingly, and without objections disclosed her otherwise privileged communications with attorney
Hartung. Moore testified about efforts made by Hartung to obtain and have her medical records analyzed
and advice he gave her regarding the viability of her cause of action. Jackson Clinic asserts that these
issues are relevant in determining when the statute of limitations for Moore began to run. Jackson Clinic
concludes that since Moore effectively waived her attorney-client privilege, it should be allowed to
subpoena all files and documents relating to that representation and depose Hartung.
8
¶17. The Moores respond by denying that Mrs. Moore waived the privilege. Instead, they contend that
the proffered excerpts from the affidavit and deposition “contain only vague statements of what she
understood from her attorney and do not relate to anything which would amount to a waiver of the
attorney-client privilege.”
¶18. We disagree. While it does not appear that this Court has dealt with this precise issue, at least in
the civil action context, other jurisdictions have.
¶19. In American Standard, Inc. v. Bendix Corp., 80 F.R.D. 706, 708 (W.D. Mo. 1978),
American Standard alleged in its interrogatory answers that the fraudulent misrepresentation was unknown
to it until discovered by its attorney. The court held that American Standard had waived the attorney client
privilege in regard to these communications: “By voluntarily injecting into a litigated case, a material issue
which requires ultimate disclosure by the attorney of the information, ordinarily protected by the privilege,
the client makes the information discoverable.” Id. at 709-10 (citing 4 Moore’s Federal Practice §
26.60(2), pages 26-229 to 26-232).
¶20. In Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 730 A.2d 51, 52-53
(Conn. 1999), the Connecticut Supreme Court expounded three different scenarios where the attorney-
client privilege is waived by voluntarily injecting a material issue into a litigated case:
Because of the important public policy considerations that necessitated the creation of the
attorney-client privilege, the “at issue,” or implied waiver, exception is invoked only when
the contents of the legal advice is integral to the outcome of the legal claims of the action.
Such is the case when a party specifically pleads reliance on an attorney's advice as an
element of a claim or defense, voluntarily testifies regarding portions of the attorney-client
communication, or specifically places at issue, in some other manner, the attorney-client
relationship.
¶21. In the case sub judice, Moore specifically pled reliance on Hartung’s advice as an element of her
defense to Jackson Clinic’s motion for summary judgment. Clearly she voluntarily testified regarding
9
communications with Hartung. As such, she has effectively waived the privilege as it relates to the
testimony that she gave.
CONCLUSION
¶22. When Moore used confidential communications with her attorney to toll the statute of limitations,
she used the attorney-client privilege as a sword; fairness requires that she not now be allowed to hide
behind the shield of that attorney-client privilege. Therefore, we reverse the trial court's decision to deny
disclosure of attorney Michael Hartung's communications with the Moores. Further, we remand with
instructions to the trial court to order Hartung to produce for in-camera inspection all files, correspondence,
documents, or other items pertinent to this matter, beginning with the Moores’ initial contact with Hartung
and continuing through the decision that suit should not be filed, made after receiving Dr. Nicholls’ letter
of April 5, 1993. These should be delivered to the Hinds County Circuit Court for an in-camera review
by the trial judge to determine whether any of these items are relevant to the discovery rule and when the
statute of limitations began to run. Jackson Clinic shall be permitted discovery of all such files,
correspondence, documents or other relevant items, which the trial judge has determined to be
discoverable.
¶23. We further direct the trial judge to make specific findings of fact and conclusions of law as to why
each item reviewed in-camera is or is not relevant. Finally, the circuit court is instructed to allow Hartung
to be deposed on the issues relevant to the discovery rule and the statute of limitations.
¶24. REVERSED AND REMANDED.
PITTMAN, C.J., SMITH, P.J., DIAZ, CARLSON AND GRAVES, JJ., CONCUR.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J.,
AND WALLER, J., NOT PARTICIPATING.
10
|
{
"pile_set_name": "FreeLaw"
}
|
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CT-00444-SCT
CURTIS BOYD, BY AND THROUGH MARY
MASTIN, NEXT FRIEND, INDIVIDUALLY AND
ON BEHALF OF AND FOR THE USE AND
BENEFIT OF CURTIS L. BOYD
v.
GREGORY NUNEZ, M.D.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/08/2011
TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN W. NISBETT
MICHAEL A. HEILMAN
JONATHAN B. FAIRBANK
CHRISTOPHER THOMAS GRAHAM
ATTORNEYS FOR APPELLEE: DAVID W. UPCHURCH
ROBERT K. UPCHURCH
JOHN MARK McINTOSH
JANELLE M. LOWREY
JOSHUA S. WISE
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND REMANDED - 01/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. In this medical malpractice case, the defendant alleged the plaintiff’s discovery
response concerning his expert was insufficient. The trial judge ordered the plaintiff to
produce the expert for a deposition but, due to illness, the expert was unable to attend the
scheduled deposition. Without addressing whether the plaintiff was at fault for failure to
comply with the court’s order to produce the expert for deposition, the trial court ordered that
the expert would not be allowed to testify. The Mississippi Court of Appeals affirmed. We
reverse and remand for a hearing on that issue.
FACTS AND PROCEDURAL HISTORY
¶2. Dr. Gregory Nunez treated Curtis Boyd, a resident of Vineyard Court Nursing Center,
for approximately six months in 2004. Boyd claims that Dr. Nunez’s malpractice and the
nursing home’s negligence combined to cause an uncontrolled infection and the amputation
of his leg.
¶3. Boyd filed a medical malpractice suit against Dr. Nunez, and the parties agreed to a
scheduling order setting September 15, 2009, as the deadline for Boyd to designate an expert
witness; October 30, 2009, for the defendants to designate their expert; November 13, 2009,
for the close of discovery; November 20, 2009, for dispositive motions; and November 30,
2009, for the trial.
¶4. According to Dr. Nunez’s counsel at the hearing on his motion to compel, Boyd
timely designated Dr. John Payne as his medical expert on September 15, 2009. But Dr.
Nunez requested a more definite statement of the factual basis for Dr. Payne’s conclusions.
After receiving no supplementation, Dr. Nunez filed a motion to compel and requested
potential dates to depose Dr. Payne. On November 4, 2009, Boyd filed a supplementation
to his expert disclosure, and he moved for a continuance.
¶5. On November 9, 2009, at a hearing on Boyd’s motion for a continuance and Dr.
Nunez’s motion to compel, Dr. Nunez argued that Boyd’s supplementation was insufficient,
2
but he agreed that his concerns could be satisfied by deposing Dr. Payne before trial. The
trial judge ordered the parties to work together and schedule Dr. Payne’s deposition before
the scheduled trial date of November 30.
¶6. The trial judge did not rule on the motion for a continuance, stating that he was not
inclined to postpone the trial. He did state, however, that if the parties could not complete
Dr. Payne’s deposition before trial, he might have to continue trial to a later date. The parties
agreed to conduct Dr. Payne’s deposition on November 21, 2009.
¶7. On Friday, November 20, Boyd notified Dr. Nunez that Dr. Payne had become ill and
would be unable to appear at the scheduled deposition. Boyd provided Nunez with a second
supplementation to his expert disclosure, detailing all of the facts supporting Dr. Payne’s
opinions. At a later hearing, Boyd claimed he faxed a copy of the second supplementation
to Dr. Nunez that Friday afternoon, but Dr. Nunez claimed he did not receive it until the
following Monday, November 23.
¶8. On November 23, 2009, the parties conducted mediation, and Boyd settled with all
defendants except Dr. Nunez. When the parties appeared for the scheduled trial, Dr. Nunez
filed a motion to exclude Dr. Payne’s testimony, arguing that the trial court should not
consider the second supplementation filed after the close of discovery and that the original
designation and first supplementation were still insufficient.
¶9. Boyd argued that Dr. Payne’s illness was unforseen, and that the trial judge should
grant a continuance to allow the parties to reschedule the deposition. The trial judge found
that Boyd’s original designation and first supplementation were insufficient, and he refused
3
to consider the second supplementation. He then ruled that Dr. Payne would not be allowed
to testify.
¶10. Dr. Nunez then argued that, because Boyd could not prevail on his medical
malpractice claim without expert testimony, the trial judge should enter a final judgment in
his favor. The trial judge agreed and entered the final judgment. After the trial court denied
Boyd’s motion for reconsideration, he appealed, and the Mississippi Court of Appeals held
that the trial judge correctly excluded Dr. Payne’s testimony as a discovery sanction for
failure to provide a sufficient expert disclosure 1 and affirmed the summary judgment.2 We
granted certiorari.
ANALYSIS
¶11. We review a trial judge’s decision to exclude evidence as a discovery sanction for an
abuse of discretion.3 The trial judge excluded Dr. Payne’s testimony because he found that
Boyd had failed to satisfy the requirements of Rule 26 for expert disclosures. In determining
that exclusion was appropriate, he applied the four-factor test announced in Mississippi
Power & Light Co. v. Lumpkin.4 We find the trial judge analyzed the wrong discovery
issue.
¶12. Mississippi Rule of Civil Procedure 26 provides that:
1
Boyd ex rel. Mastin v. Nunez, No. 2011-CA-00444-COA, 2013 WL 500858, **3, 4 (Miss.
Ct. App. Feb. 12, 2013).
2
Id. at **5, 6.
3
Estate of Bolden ex rel. Bolden v. Williams, 17 So. 3d 1069, 1073 (Miss. 2009).
4
Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721, 733, 34 (Miss. 1998).
4
A party may through interrogatories require any other party to identify each
person whom the other party expects to call as an expert witness at trial, to
state the subject matter on which the expert is expected to testify, and to state
the substance of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion.5
¶13. Where one party alleges another party failed to fully respond to discovery, the proper
procedure is for the aggrieved party to seek a remedy from the trial court by filing a motion
to compel.6 And where, as here, the trial court orders relief, and the aggrieved party claims
the other party failed to comply with that order, the trial court must determine whether
sanctions are proper for failure to comply with the court’s order.7
¶14. After Boyd’s initial disclosure, Dr. Nunez made a request for further expert disclosure.
In response, Boyd provided a supplement to his expert designation. Dr. Nunez found the
supplementation inadequate and moved the trial court for an order compelling a more definite
statement of “the substance of the facts and opinions to which the expert is expected to
testify.” 8 At the hearing on Dr. Nunez’s motion to compel, the trial court fashioned a remedy,
ordering the parties to conduct a deposition of Dr. Payne prior to the trial set for November
30.
¶15. When the deposition did not take place because of Dr. Payne’s illness, Dr. Nunez
moved to exclude Dr. Payne’s testimony. Rather than analyzing whether Boyd should be
5
Miss. R. Civ. P. 26(b)(4)(A)(1).
6
Ford Motor Co. v. Tennin, 960 So. 2d 379, 393 (Miss. 2007) (quoting Caracci v. Int’l
Paper Co., 699 So. 2d 546, 557 (Miss. 1997)).
7
Ford, 960 So. 2d at 393.
8
Id.
5
sanctioned for his failure to comply with the order to produce Dr. Payne for a deposition, the
trial judge went behind his previous order and sanctioned Boyd for his insufficient
supplementation. Said differently, the trial judge should have analyzed whether sanctions
were appropriate based on Boyd’s failure to produce Dr. Payne for a deposition, as the court
had ordered. Because the trial judge never engaged in that analysis, we must reverse and
remand.
CONCLUSION
¶16. Because the trial judge analyzed the wrong discovery issue, we reverse both the
judgment of the Court of Appeals and the trial court’s entry of final judgment and exclusion
of Dr. Payne’s testimony, and we remand this case for the trial court to determine whether
Boyd should be sanctioned for his failure to produce Dr. Payne for a deposition, as the court
had ordered.
¶17. REVERSED AND REMANDED.
WALLER, C.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ.,
CONCUR. COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT
SEPARATE WRITTEN OPINION. RANDOLPH, P.J., AND KING, J., NOT
PARTICIPATING.
6
|
{
"pile_set_name": "FreeLaw"
}
|
FILED
NOT FOR PUBLICATION
JUL 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE RICHARD SENATOR, No. 15-55136
Petitioner-Appellant, D.C. No.
8:10-cv-01600-SVW-PLA
v.
STEVEN J. SENTMAN, Chief Probation MEMORANDUM*
Officer,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 4, 2017
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**
District Judge.
Appellant Bruce Senator appeals the denial of his Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (1996). After a jury trial, Senator was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
found guilty of two counts of making criminal threats to two administrative law
judges who had presided over Senator’s worker’s compensation claim. He was
charged with one count for each judge. In his Habeas Petition and on appeal,
Senator asserts that during closing argument the prosecutor committed misconduct
by impermissibly vouching for the administrative law judges’ credibility as
witnesses. Upon reviewing Senator’s Petition, the magistrate judge agreed that the
prosecutor’s closing argument consisted of impermissible vouching, but concluded
that the trial court cured the vouching through jury instructions, and that, in the
context of the entire trial, the vouching was harmless. Senator appeals that
decision. We have jurisdiction pursuant to 28 U.S.C. § 1294(1), and we affirm,
although we take a different route than the district court to reach this conclusion.
1. The prosecutor’s comments during closing argument, made in
response to Senator’s argument, did not constitute impermissible vouching. To
prevail on a claim of prosecutorial misconduct in a habeas action, a petitioner must
show that the prosecutor's comments “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Prosecutorial misconduct warrants relief only if the alleged error “had
substantial and injurious effect or influence in determining the jury's verdict.”
2
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). Because Senator did not object to the
prosecutor’s comments, we review for plain error. United States v. Alcantara-
Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015).
The particular statements the district court found troublesome included that
Senator was a convicted felon who was not trustworthy and that the judges’
credibility was “[a]bsolutely untouchable.” The prosecutor responded to Senator’s
accusation that the judges were liars by stating: “As far as you, as jurors, are
concerned, what they say goes. If they said it happened, it happened. If Judge
Whitely comes in here or Judge Delaterre comes in here and tells you X happened,
it happened. And you know that, and there's no other way to view that evidence.”
The prosecutor’s comments at closing were in response to Senator’s theory
of the case and argument during closing that the judges were not credible because
they were fixing workers’ compensation cases and that the judges lied about
feeling threatened by Senator’s statements. No evidence of fixing cases was
presented at trial nor were either of the judges impeached during their testimony.
Senator and the district court relied on Alcantara-Castillo in support of the
conclusion that the prosecutor’s comments in closing constituted impermissible
vouching. 788 F.3d at 1196. But Senator’s case is distinguishable from
3
Alcantara-Castillo, in that the witnesses in that case each had “significant
credibility problems” which made the credibility contest “even closer.” Id. There
were no such credibility problems here because there was no evidence to support
Senator’s argument that the judges were liars. The judges were not impeached
during their testimony, and no evidence was admitted that cast doubt on their
veracity. Thus, it was not improper for the prosecutor to rebut Senator’s general
statements regarding the judges’ credibility with a general defense of their
credibility based on their profession. Moreover, the Government must be given
reasonable latitude in closing argument, and in “a case that essentially reduces to
which of two conflicting stories is true, it may be reasonable to infer, and hence to
argue, that one of [the] two sides is lying.” United States v. Wilkes, 662 F.3d 524,
541 (9th Cir. 2011) (quoting United States v. Molina, 934 F.2d 1440, 1445 (9th
Cir. 1991)). Senator reduced the case to a credibility contest during closing
argument and the prosecutor did nothing more than respond to that theory.
In his comments, the prosecutor did not inject the prestige of the
government. For example, he did not insert any pronouns in the argument
suggesting that it was his opinion or the Government’s opinion that these were
credible witnesses. Cf. United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)
(finding that the prosecutor improperly vouched by making statements such as “I
4
think he [] was very candid[,]” and “I think he was honest.”). 981 F.2d 1050, 1053
(9th Cir. 1992).
Here, the prosecutor pointed out only that the Government’s trial witnesses
were judges and that the jury could consider their job as evidence of their
credibility. The jury could also consider the admitted evidence that Senator was a
convicted felon in judging his credibility. Given these circumstances, the
prosecutor’s statements do not constitute impermissible vouching and we may end
the analysis there.
2. We construe Senator’s arguments that he received ineffective
assistance of counsel as a motion to expand the certificate of appealability. See 9th
Cir. R. 22-1(e). Because Senator has not made a “substantial showing of the denial
of a constitutional right,” we deny the motion. See Hiivala v. Wood, 195 F.3d
1098, 1104 (9th Cir. 1999) (quoting 28 U.S.C. § 2253(c)(2)).
AFFIRMED.
5
|
{
"pile_set_name": "FreeLaw"
}
|
" IN THE SUPREME COURT OF MISSISSIPPI\n\n NO(...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" 130 Nev., Advance Opinion I DO\n (...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" IN THE SUPREME COURT OF MISSISSIPPI\n\n NO. 2014(...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" FILED\n (...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" NOT FOR PUBLICATION\n\n UNITED STATES COURT OF APPEAL(...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" FILED\n (...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
" FILED\n (...TRUNCATED)
|
{
"pile_set_name": "FreeLaw"
}
|
End of preview. Expand
in Data Studio
README.md exists but content is empty.
- Downloads last month
- 4