                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-CA-02024-SCT

CHARLES N. JAMES

v.

RACHEL M. CARAWAN


DATE OF JUDGMENT:                         08/16/2006
TRIAL JUDGE:                              HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   MELINDA O. JOHNSON
ATTORNEY FOR APPELLEE:                    MARIANO J. BARVIE’
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              REVERSED AND REMANDED - 09/04/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    On September 20, 2001, Rachel M. Carawan filed a negligence suit against Charles

N. James in the Circuit Court of Hancock County stemming from an automobile accident in

which she suffered injuries to her back. On July 31, 2003, prior to trial, James captured

video of Carawan riding various rides at the Six Flags amusement park in New Orleans,

Louisiana. The day before trial, Carawan stipulated that she would not seek damages beyond

July 29, 2003, and moved to exclude the Six Flags video. Carawan asserted that she had

fully recovered as of July 29, after undergoing an epidural steroid injection that same day.

The court excluded the video. The jury returned a verdict for Carawan in the exact amount
of her medical bills and lost wages. The trial court subsequently granted an additur. Because

we find the trial court erred in excluding the July 2003 Six Flags video as evidence, we

reverse and remand for a new trial.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On December 19, 2000, Carawan, Pamela Liles, and Liles’s three-year-old daughter

stopped for gas at a Chevron station in Diamondhead, Mississippi. Carawan, who was

driving a 1996 Honda Civic, got out and pumped the gas, while Liles’s and Liles’s daughter

remained inside the vehicle. As Carawan waited for the tank to fill, she leaned against the

vehicle with her backside. About this same time, Carawan heard Liles scream and turned her

head just before her rear bumper was struck by a 1996 Ford Crown Victoria. James, the

driver of this vehicle, failed to see Carawan’s car as he backed out of his parking space. The

force of the impact threw Carawan forward and caused a small dent in her bumper, along

with some chipped paint.1 Carawan experienced no immediate pain or injury from the

accident.

¶3.    When Carawan awoke the next morning, she experienced stiffness and soreness in her

back. She reported to work at the Grand Casino in Gulfport, but was soon dismissed because

she was unable to perform her work. That same day, she went to Hancock Medical Center


       1
          The parties dispute the severity of the impact. Liles, who was sitting in the front
passenger’s seat at the time, stated that the impact caused her to be “thrown back” toward the
driver’s seat. The accident caused $386 in damages to Carawan’s vehicle. James estimated
that he was going about two miles per hour when he hit Carawan’s car. Furthermore, he did
not notice any tire marks on the pavement to indicate her vehicle had actually moved as a
result of the impact.

                                              2
in Bay St. Louis and received some pain medicine and muscle relaxers. A week later, as the

pain and tightness continued, she went to Memorial Hospital in Gulfport. Carawan was

examined, given some muscle relaxers, and told to return for a follow-up examination if the

pain did not subside within a week.

¶4.    In January 2001, Carawan sought treatment from Dr. Michael Wilensky, who

prescribed Celebrex and recommended physical therapy. Wilensky also provided her a

doctor’s note excusing her from work for December 2000 through March 2001. Carawan

attended physical therapy sessions from April 2001 through July 2001, but did not attend

every session because she had to care for her bedridden father. While undergoing physical

therapy, she experienced intermittent periods of relief, followed by relapses of pain.2

¶5.    Around the end of April 2001, Carawan returned to work as a bartender.

Accommodations were made so that she would not have to perform any excessive lifting.

Despite these accommodations, Carawan experienced increasing tightness in her back due

to the repetitious lifting required in bartending.

¶6.    In June 2001, Carawan began seeing orthopedic surgeon Dr. M. F. Longnecker, Jr.

Longnecker performed a magnetic resonance imaging examination (MRI), the results of

which appeared normal. He diagnosed her problems as being muscular in nature, and

prescribed a gradual exercise program, incorporating aquatherapy, along with continued use



       2
         Carawan testified about two specific instances which re-aggravated her back—once
when she attempted to maneuver her father in his bed, and once when she slid a chair up to
a table.

                                               3
of anti-inflammatory medicine and muscle relaxers. Longnecker ended his treatment of

Carawan in July 2001.

¶7.    On September 20, 2001, Carawan filed suit against James in the Circuit Court of

Hancock County. Carawan claimed that she had suffered severe injuries as a result of

James’s negligence. According to the complaint, these alleged injuries extended to her head,

neck, and back, and caused excruciating pain that ultimately rendered her temporarily and

totally disabled. James denied the allegations in his initial answer.

¶8.    Thereafter, in February 2002, citing persistent pain in her mid-to-lower back, Carawan

sought the services of Dr. Victor T. Bazzone. 3 Following an initial examination, Bazzone’s

differential diagnosis was either (1) a ruptured disk or (2) myofascial disease, which Bazzone

defined as an irritation or malfunction to muscles and the covering of the muscles. Bazzone

performed a second MRI of Carawan’s lower back, which revealed a small bulging of disks.4

For a better picture of the bone itself and the disks, Bazzone conducted a myelogram and a

computerized tomography (CT) scan.5 While not ruling out the possibility of a ruptured disk,

he diagnosed primarily a myofascial injury. For treatment, he prescribed 400 milligrams of



       3
        Bazzone frequented the Lb’s Restaurant at the Grand Casino where Carawan
worked. After observing Carawan’s difficulty working and walking, he suggested that she
come by his office for an evaluation.
       4
         Bazzone recommended another MRI because the previous one had focused on the
chest and neck areas, rather than her lower back.
       5
         According to Bazzone, a myelogram is a diagnostic test involving a spinal tap which
inserts dye into the area surrounding the spinal cord. Once the dye is in place, a CT scan is
conducted.

                                              4
ibuprofen daily, weight/resistance training three days a week, and walking one-to-one-and-a-

half miles, six days a week. Any future appointments were left to Carawan’s discretion.

¶9.    Carawan returned to Bazzone in March 2003 because of continuing back pain and, as

a new development, numbness in her big toe. Because of this change and the passage of time

since her last examination, Bazzone performed another MRI, which showed that the disk had

moved a little more.6 At this point, the possibility of surgery was discussed. Carawan,

however, elected not to undergo surgery because she wanted to finish her degree.7 Thus,

Bazzone simply prescribed a new anti-inflammatory drug.

¶10.   In May 2003, Carawan went back to Bazzone with increasing pain and further decline.

Surgery was discussed again, but Carawan chose not to undergo it because of her father’s

deteriorating condition. Believing that surgery probably would be necessary at some point,

Bazzone sent her to Dr. Michael Lowry, a neurosurgeon in Gulfport, for a second opinion.

Lowry later sent Bazzone a letter which stated:

       After review of the MRI scan, myelogram and examination of the patient, I
       find that these studies appear normal to me. You have certainly treated her
       much longer and may have a better clinical feel for her condition. At this time,
       I do not see anything that I could offer in the way of surgery that would help
       this young lady.

¶11.   With surgery at least on hold, Bazzone excused Carawan from work, prescribed her

pain medication in form of Percocet, and referred her to Dr. Bryan Dix, an anesthesiologist




       6
           Bazzone explained that this MRI was clearer than the previous one.
       7
           Carawan was earning a degree in sign language.

                                              5
in Gulfport, for epidural steroid injections. Carawan received her first steroid injection on

July 15, 2003. She experienced significant improvement, testifying that, “it was great . . .

. I felt full of life. I just wanted to go like run . . . . I was really, really, happy . . . .” Dix

noted an approximate twenty percent alleviation of her symptoms. A second injection was

given on July 29, 2003.

¶12.   Effective July 25, 2003, Carawan was authorized to return to work, initially on a

limited basis of two days per week, six hours a day, for three weeks.8 In an office note dated

August 12, 2003, Bazzone wrote that:

       The patient’s symptomatology has not really changed since I last saw her.9 I
       am going to allow her to work three days per week, eight hours per day. This
       restriction will last for approximately 3 months at which time, I shall re-
       evaluate her to see if this needs to be changed that is either she can work more
       or the restrictions must be more restraining.

       The Six Flags Video




       8
         At a pre-trial motion hearing, counsel for Carawan explained that Carawan herself
had contacted Bazzone and asked that the restrictions be lifted so that she could return to
work full-time. The record includes a one-sentence letter dated July 25, 2003, in which
Bazzone released Carawan to work without any limitations. Apparently, this letter was never
sent or used. Carawan’s brief acknowledges that she worked under Bazzone’s limitations.
Additionally, there is a handwritten notation on the July 25 letter which states that “Pt. didn’t
need letter - Job will Allow 2 days - restriction.” A jury reasonably could find that Carawan
requested that the restrictions be removed out of concern that her employer would not
accommodate her.
       9
         It is unclear as to when Carawan last visited Bazzone prior to the August 12, 2003,
note. In a letter dated July 22, 2003, Bazzone stated that Carawan had recuperated
sufficiently to return to work part-time. However, it is unclear whether Bazzone actually
evaluated Carawan on that date. Her next most recent visit appears to be May 2, 2003, when
Bazzone observed that Carawan had “deteriorated quite precipitously.”

                                                 6
¶13.   On July 22, 30, and 31, 2003, James obtained surveillance video of Carawan. The

July 31 footage showed Carawan riding various rides at the Six Flags park in New Orleans,

Louisiana, including several roller coasters.

¶14.   With this new evidence, on September 11, 2003, James filed a motion to compel a

supplemental deposition of Carawan regarding her physical limitations prior to July 31. At

a hearing on September 15, 2003, the trial court denied James’s Motion to Compel and

ordered immediate disclosure of the July 2003 video.10

       Pre-trial Proceedings

¶15.   In preparation for trial, Carawan designated Longnecker and Bazzone as expert

witnesses. While James did not designate any expert witnesses, he filed notices of intent to

offer medical records; employment records; auto-repair records; accident reports of the

December 19, 2000, incident and a later wreck involving Carawan on November 3, 2003;11

and two sets of video surveillance records and tapes—one from August 3-17, 2001, and one

from July 22-31, 2003. Carawan objected to James’s Notice of Intent to Offer Surveillance

Records and his Notice of Intent to Offer Employment Records. Carawan’s objection to the

surveillance records, however, pertained only to the August 3-17, 2001, footage.12

       10
          Although James’s Motion to Compel is part of the record, the record contains no
order regarding the motion, nor any transcript of the September 15, 2003, hearing.
       11
          Carawan was involved in another automobile accident on November 3, 2003. This
later accident, however, is not at issue before us.
       12
          James’s notice of intent to offer the August 3-17, 2001, video surveillance was first
filed on March 13, 2003, and once again on March 29, 2004. Carawan’s objection was filed
on March 20, 2003. The Six Flags surveillance was not taped until July 22-31, 2003, and

                                                7
¶16.   On April 5, 2004, Carawan filed a motion in limine, seeking, among other things, to

preclude the admission of surveillance videos or photographs “that have not been produced

through discovery.” 13 At that point, both the August 3-17, 2001, and July 22-31, 2003,

videos had been produced. Carawan also stated that “she is not claiming any injury as a

result of this wreck beyond November 3, 2003.” 14

¶17.    On April 5, 2005, Judge Stephen B. Simpson held a hearing regarding pending

motions. At that time, Carawan indicated that she would not “introduce any evidence of

future lost wages or future pain and suffering or future medical bills past . . . July 29, 2003,

which is when Ms. Carawan went and had the second epidural injection.” With no damages

being sought beyond July 29, 2003, Carawan made an ore tenus motion to exclude the July

2003 video containing the Six Flags footage. Judge Simpson took the motion under

advisement. On the first day of trial the following day, Judge Simpson sustained Carawan’s

motion on the basis that “no damages in the form of medical expenses, future lost wages, or

future medical expenses are being sought from and after July 29, 2003. I am of the opinion




James did not file any notice of intent concerning that video until March 31, 2004.
       13
           Carawan further requested “[t]hat should [James] wish to introduce any motion
picture film into evidence, the same be tendered to Court outside the presence of the jury, and
shown or exhibited to determine its relevance and suitability for introduction into evidence
. . . .”
       14
          James also filed a motion in limine on April 2, 2004, requesting, among other
things, that “no testimony be given regarding future medical expenses and lost wages.”
James’s motion, however, provides no reference point from which medical expenses and lost
wages should be calculated.

                                               8
that the prejudicial value of [the video] outweighs its probative value given [Carawan] is

seeking no relief from and after that date.”

       Trial Proceedings

¶18.   Trial commenced on April 6, 2005. In cross-examining Carawan’s first witness,

James attempted to elicit information regarding Carawan’s visit to Six Flags. The trial court

declared a mistrial.

¶19.   A second trial was held on August 14-16, 2006, with Judge Kosta N. Vlahos

presiding. The trial court maintained Judge Simpson’s prior ruling to exclude the July 2003

Six Flags video. The trial court also excluded Carawan’s medical records on the basis that

James had failed to properly admit such records.15 Carawan’s employment records also were

excluded on the ground that James had not scheduled a pre-trial hearing following Carawan’s

objection to his intent to offer such records.16 Additionally, the trial court refused James’s

proposed jury instruction regarding Carawan’s failure to mitigate her damages.17

       15
          The trial court found that James had tried to offer medical records in a piecemeal
fashion, rather than in their entirety. See Miss. R. Evid. 106; Miss. Code Ann. § 41-9-109
(Rev. 2005). Judge Vlahos stated:

       [T]he statute calls for a certain certificate to be attached to the hospital records.
       If you have that you dump the whole record in there . . . . If you don’t have
       that I can’t go anywhere with that. . . . All I ask is that you show me what the
       statute requires that’s in the file or in your records and then I’ll consider it.
       Otherwise, just move on to something else, but we can’t have taking the packet
       of the custodial record apart. It has to be like it came from the hospital.
       16
            See Miss. R. Evid. 902(11)(C)(iii).
       17
         The trial court found that James had not presented any evidence showing that
Carawan had failed to mitigate her damages.

                                                  9
¶20.   The jury returned a nine-three verdict in favor of Carawan, awarding her the exact

amount of her medical bills and lost wages in the sum of $33,484.52. A final judgment was

entered on August 16, 2006. James filed a motion for a new trial, and Carawan filed a

motion seeking an additur for her pain and suffering. On October 23, 2006, after hearing

both motions, the trial court entered an order denying James’s motion for a new trial, and

granting Carawan’s additur in the amount of $30,000.18 The new amount totaled $63,484.52.

¶21.   James filed a notice of appeal on November 20, 2006, raising the following issues for

review: (1) whether the trial court abused its discretion in excluding the video of Carawan

at Six Flags on July 31, 2003; (2) whether the trial court abused its discretion in not admitting

Carawan’s medical and employment records; (3) whether the trial court improperly denied

James’s proposed jury instruction regarding mitigation of damages; and (4) whether the trial

court improperly granted an additur and improperly denied James’s request for a new trial.

Finding the first issue dispositive, we do not address the remaining issues.

                                        DISCUSSION

       Whether the trial court abused its discretion in excluding the video of
       Carawan at Six Flags on July 31, 2003.19


       18
          The trial court found that “the medical bills incurred by the Plaintiff in this case
were uncontradicted and no allowance was made for pain and suffering on the part of the
jury. As such, the Court finds that the jury verdict was contrary to the overwhelming weight
of the credible evidence and so inadequate as to shock the conscience of the court.”
       19
          Carawan submits that this Court cannot consider the July 31, 2003, video because
it was not made a part of the record on appeal. At the time Carawan filed her brief, the Six
Flags video was, in fact, not part of record. However, on February 4, 2008, this Court
granted James’s Motion to Supplement Record.

                                               10
¶22.   This Court applies an abuse-of-discretion standard when reviewing a trial court’s

admission or exclusion of evidence. Payne v. Whitten, 948 So. 2d 427, 429 (Miss. 2007)

(citing Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)). Where an error

involves an evidentiary matter, this Court “will not reverse unless the error adversely affects

a substantial right of a party.” Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000) (citing Floyd,

749 So. 2d at 113).

¶23.   James argues that the trial court abused its discretion by not allowing the Six Flags

video into evidence.20 The trial judge excluded the video on the basis that, since no damages

were being sought after July 29, 2003, its prejudicial value outweighed its probative value.

James argues that this ruling adversely affected his right to present relevant evidence

challenging the extent of Carawan’s injuries. He submits that he was unable “to question

[Carawan’s] credibility, and to make true inquiry as to what she was and was not able to do

physically at that given time.” Furthermore, he contends that Carawan’s decision to limit her

damages occurred only after the production of the Six Flags video and was specifically

“crafted” to exclude its admission.

¶24.   Carawan, on the other hand, maintains that the Six Flags video is both irrelevant and

highly prejudicial because it features events that occurred subsequent to the time for which




       20
          James asserts two other arguments with respect to the Six Flags video. Because we
find the exclusion of the video dispositive, we do not address these arguments.

                                              11
she sought damages.21 According to Carawan, James’s argument requires him to assert that

she was injured longer than she alleged, that she lost more wages than she claimed, and that

she incurred more medical expenses than she requested.

¶25.   Our first concern is whether the Six Flags video was relevant pursuant to Rule 401 of

the Mississippi Rules of Evidence. “Relevant evidence” is defined as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Miss. R. Evid.

401. Admission is favored if the evidence has any probative value at all. Miss. R. Evid. 401,

cmt.

¶26.   As previously noted, the July 2003 video contained images of Carawan riding several

rides at Six Flags on July 31, 2003. This footage had a tendency to make the existence of a

fact—the severity of Carawan’s injuries and her truthfulness in communicating these injuries

to her doctor—more probable or less probable than it would be without such evidence. Miss.

R. Evid. 401. The severity of her injuries, in turn, relates to the necessity of at least some of

her medical expenses, the basis of her claim for lost wages, and the extent of her pain and

suffering.

¶27.   A reasonable juror could conclude that the Six Flags video casts doubt on the severity

of Carawan’s injuries prior to July 29, 2003. According to the facts presented at trial,

Carawan had been unable to work since May 2003, but experienced significant improvement


       21
          Notably, Carawan did not dispute the authenticity of the video when it was
proffered and identified as an exhibit.

                                               12
following the first steroid injection on July 15, 2003. Approximately one week later,

Bazzone sent Carawan back to work on a part-time basis of two days a week, for three

weeks, so that she could “gradually build up her strength and endurance,” and to ensure that

her relief was permanent. A second steroid injection was administered on July 29, 2003,

which became Carawan’s cut-off date for seeking damages. In sum, the picture conveyed

is that Carawan had been debilitated for months prior to receiving the steroid injections and

was gradually able to return to work full-time.

¶28.   Yet, just six days after the effective date of her limited return to work, Carawan was

seen riding various rides, including several roller coasters. A reasonable juror might find

subjecting oneself to the twists and forces associated with such rides difficult to reconcile

with a recent history of physical problems that consisted “primarily of pain in the back which

was increased by walking, by bending, by twisting, and often times just by sitting in one

position for any long period of time.” Even assuming that Carawan had made a full recovery

following her second steroid injection, a reasonable juror could view this conduct as

inconsistent with (1) Carawan’s claims of severe back pain on and off for the past three

years, (2) her work history, (3) her claim that she considered back surgery, and (4) her claim

of a gradual recovery.

¶29.   Furthermore, a reasonable juror might conclude that the Six Flags video has a

tendency to show that Carawan may not have been as weakened or vulnerable as she

indicated to her doctors or as her medical treatments suggest. This video, capturing acts so

close in time to the period for which she sought damages, could have been used to call into

                                             13
question at least some of her medical expenses. The video also could have been relevant to

whether or not she truly had been unable to work. Furthermore, even though the jury did not

award Carawan any damages for pain and suffering, the trial court awarded such damages

in granting the additur. Had the video been admitted into evidence, it would have been

relevant in this determination as well.      Perhaps most significantly, from the jury’s

perspective, this video might shed doubt upon the merits of Carawan’s case as a whole.

¶30.   In Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524 (R.I. 2002), the

Supreme Court of Rhode Island faced a similar set of facts. A plaintiff sought damages after

being injured on the job. Id. at 526. After the defense proffered video evidence of the

plaintiff performing various activities, the plaintiff limited his damages to a time predating

the video. Id. at 527. The trial court excluded the video because it concerned a period of

time for which the plaintiff was not claiming damages. Id. In reversing the trial court, the

Supreme Court of Rhode Island held that the video’s relevance was not lessened by the fact

that the plaintiff had limited his damages to before a particular date. Id. at 528-29. The

Supreme Court of Rhode Island stated that, “[e]vidence tending to show that [the plaintiff]

had fully recovered from his injuries at some point after November 25, 1997, undisputedly

would render it ‘less probable’—within the meaning of Rule 401—that [the plaintiff]

suffered from ‘severe and permanent injury’ during the period for which he claimed

damages.” Id. at 528. While not binding precedent for this Court, Sweet bears some factual

similarity to the case before us.



                                             14
¶31.   Unlike the plaintiff in Sweet, who indicated during pretrial and trial proceedings that

his injuries were permanent, Carawan maintained throughout trial that she had fully

recovered after the second steroid injection. In her brief, Carawan asserts that she “is and

never was claiming any injury, lost wages and/or medical expenses on July 31, 2003, or any

period beyond July 29, 2003, the date of [the] second and final epidural treatment.”

(Emphasis added). While Carawan’s assertion is accurate with regard to the trial itself, it is

inaccurate as to the litigation at large. The record calls into question whether her second

epidural or the Six Flags video led to her remarkable recovery.

¶32.   Until the day before trial, Carawan had sought damages through at least November

3, 2003. In her motion in limine filed April 5, 2004, Carawan stated that “she is not claiming

any injury as a result of this wreck beyond November 3, 2003.” (Emphasis added). Medical

records, which post-date July 29, 2003, and were not admitted at trial, confirm that Carawan

claimed to continue having problems into August 2003.22 Carawan did not disclose her intent

to forgo any claim for damages past July 29, 2003, until a hearing conducted one day before

trial. It is clear that Carawan made a calculated decision not to seek damages past July 29,

2003, in an effort to exclude the Six Flags video. While Carawan was certainly free to make

such stipulation, it does not follow that all evidence subsequent to this date automatically

becomes irrelevant.


       22
          In an office note dated August 12, 2003, Bazzone stated that “the patient’s
symptomatology [sic] has not really changed since I last saw her.” Accordingly, Bazzone
restricted her to work three days per week, eight hours a day, for approximately three
months.

                                             15
¶33.   For all the aforementioned reasons, we find that the Six Flags video was relevant

evidence.

¶34.   Our second inquiry is whether the trial court abused its discretion in excluding the

video on the basis that its prejudicial value outweighed its probative value. Fitch v.

Valentine, 959 So. 2d 1012, 1022 (Miss. 2007). Rule 403 provides that even relevant

evidence “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice,23 confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Miss. R. Evid.

403.

¶35.   Carawan basically argues that the prejudicial nature of the Six Flags video stems from

its lack of relevance in that no damages were being sought on or after that date.24 We already

have determined that the video was relevant. Aside from its damaging effect to Carawan’s




       23
          “‘Unfair prejudice,’ according the [sic] Advisory Committee Note to Fed. R. Evid.
403, ‘means an undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.’” Abrams v. Marlin Firearms Co., 838 So. 2d 975, 981
(Miss. 2003). Although not binding, this Court considers federal interpretations of the
Federal Rules of Evidence as persuasive where the wording of such rules is similar or
identical to the Mississippi Rules of Evidence. See McGee v. State, 569 So. 2d 1191, 1196
(Miss. 1990), overruled in part on other grounds.
       24
           Carawan also cites a case from the Court of Appeals of Louisiana concerning the
dangers of misleading a jury by admitting a video whose editing can leave the jury with a
false or prejudicial impression. Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093, 1098 (La.
App. 2 Cir. 2000) (quoting Orgeron v. Tri-State Road Boring, Inc., 434 So. 2d 65 (La.
1983)). However, she does not communicate whether or how the Six Flags video did this.
After reviewing the tape, we are unable to conclude that it could have left the jury with a
false or prejudicial impression.

                                              16
case, we are unable to determine how its admission would unfairly prejudice Carawan. A

reasonable juror could understand that the video calls into question the severity of Carawan’s

injuries prior to July 29, 2003, and therefore challenges the necessity of at least some of her

medical expenses, the validity of her lost wages, the extent of her pain and suffering, and the

legitimacy of her entire claim.

¶36.   We find that the probative value of the Six Flags video was not substantially

outweighed by the danger of unfair prejudice to Carawan. Therefore, we find that the trial

court abused its discretion by excluding such evidence.

                                      CONCLUSION

¶37.   Carawan acted within her rights by not seeking damages for the time after July 29,

2003. However, that decision did not mean that relevant, probative evidence past that date

should have been excluded from the jury’s consideration. Because we find that the trial court

erred in excluding the July 2003 Six Flags video, and because this error affected James’s

substantial right to present his defense, we reverse the trial court’s judgment and remand this

case for a new trial consistent with this opinion.

¶38.   REVERSED AND REMANDED.

     SMITH, C.J., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR.
RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND LAMAR,
JJ. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, P.J. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


       RANDOLPH, JUSTICE, SPECIALLY CONCURRING:


                                              17
¶39.   I concur with the majority that the trial court abused its discretion in excluding the Six

Flags video. I write separately to address a related abuse of discretion by the trial court.

¶40.   According to the majority:

       [w]ith this new evidence, on September 11, 2003, James filed a motion to
       compel a supplemental deposition of Carawan regarding her physical
       limitations prior to July 31. At a hearing on September 15, 2003, the trial
       court denied James’s Motion to Compel and ordered immediate disclosure of
       the July 2003 video.

(Majority Opinion at ¶14) (emphasis added). This Court previously has stated that a party

“is justified in refraining from informing [the other party] of its recordings while the

surveillance was in progress, but it must still comply with discovery in some meaningful

way.” Williams v. Dixie Elec. Power Ass’n, 514 So. 2d 332, 336 (Miss. 1987) (emphasis

added). Toward the end of compliance with discovery, this Court added:

       [t]he values of surprise could be largely preserved by providing discovery or
       pretrial revelation of impeachment material which falls within the present
       category only at a time shortly before trial, and only after the party asked
       about the existence and nature of such material had been given an opportunity
       – ordinarily by deposition – to commit the inquiring party to a final version of
       the events and claims related to the impeachment material. This procedure
       should forestall most conforming testimony, and would afford a reasonably
       effective means of embarrassing those who might still attempt to meet the
       impeaching material in untruthful ways. At the same time, it would be
       possible to prepare to meet impeaching material which is susceptible of honest
       explanation or refutation.

Id. (quoting Cooper, Work Product of the Rulemakers, 53 Min. L. Rev. 1269, 1318 (1969),

quoted in C. Wright & A. Miller, Federal Practice and Procedure, § 2015 (1970)) (emphasis

added). Had the trial court granted James’s motion to compel a supplemental deposition of

Carawan, i.e., permitted the mandated procedure, it would have appropriately forestalled an

                                              18
attempt by Carawan “to meet the impeaching material in untruthful ways[,]” Dixie Elec., 514

So. 2d at 336, or, as in this case, to repress the evidence by conforming the pleadings, thus

requiring neither honest explanation or refutation.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND LAMAR, JJ.,
JOIN THIS OPINION.


       GRAVES, JUSTICE, DISSENTING:

¶41.   The trial court did not abuse its discretion in granting Ms. Carawan’s motion in limine

to exclude video surveillance evidence from July 31, 2003. Accordingly, it is inappropriate

to overturn the trial court’s judgment.

¶42.   The majority is remanding the instant case for a third trial. The first trial resulted in

a mistrial as a result of the defendant violating the court’s order by injecting evidence of the

video surveillance tape into the trial. The second trial resulted in a verdict in the amount of

$33,484.52, to which the trial judge correctly added the amount of $30,000. And now,

without any justifiable reason whatsoever, this Court is setting aside the verdict of the jury,

and is remanding this case to be tried yet again.

¶43.   It is within a trial judge’s discretion to make decisions regarding the admissibility of

evidence. Miss. R. Evid. 104(a). When reviewing a trial court’s admission or exclusion of

evidence this Court applies an abuse-of-discretion standard. Payne v. Whitten, 948 So. 2d

427 (Miss. 2007) (citation omitted). This Court may reverse if the error “adversely affects

a substantial right of a party,” or if the exercise of discretion appears arbitrary, capricious or

unjust. Whitten v. Cox, 799 So. 2d 1 (Miss. 2000).

                                               19
¶44.   When determining whether or not a trial court abused its discretion in making a

decision regarding the admissibility of evidence, “this Court will review the record to

determine whether the trial court employed the proper legal standards . . . . The trial court’s

discretion must be exercised within the scope of the Mississippi Rules of Evidence and

reversal will be appropriate only when an abuse of discretion resulting in prejudice occurs.”

McMillan v. Rodriguez, 823 So. 2d 1173, 1177 (Miss. 2002).

¶45.   A motion in limine is properly granted “when the trial court finds two factors are

present: (1) the material or evidence in question will be inadmissible at a trial under the rules

of evidence; and (2) the mere offer, reference, or statements made during trial concerning the

material will tend to prejudice the jury.” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.

2d 373 (Miss. 2004) (internal citations omitted).

¶46.   Admissibility of evidence is governed by the Mississippi Rules of Evidence.

Evidence is relevant if it has any tendency to make a fact of consequence more or less

probable than without the evidence. Miss. R. Evid. 401. If evidence is relevant, then it may

be admissible; if evidence is not relevant, then it is inadmissible. Miss. R. Evid. 402. Even

if evidence is relevant, it may be inadmissible if the probative value of the evidence is

substantially outweighed by its prejudicial value, among other things. Miss. R. Evid. 403.

¶47.   Based on the legal precedent and Mississippi Rules of Evidence, Judge Simpson and

Judge Vlahos did not abuse their discretion in granting Ms. Carawan’s motion in limine.

Before trial, Ms. Carawan limited her claim for damages to the period between the accident,

which occurred on December 19, 2000, and July 29, 2003. The video surveillance of Ms.

                                               20
Carawan at Six Flags was taken on July 31, 2003, outside the time frame of her claim. The

video surveillance is thus not relevant to Ms. Carawan’s claim, since the recorded conduct

took place after the period for which she sought damages for her injuries. As Judge Simpson

noted at the hearing on April 5, 2005, the recorded conduct from July 31, 2003 does not bear

on the existence or severity of Ms. Carawan’s injuries between December 19, 2000 and July

29, 2003.25 In other words, the video surveillance does not tend to make any fact of

consequence more or less probable, and is, therefore, not relevant.

¶48.   Even if the video surveillance were relevant, it would have unfairly prejudiced the

jury against Carawan.26 It would have given the impression that she had not in fact been

seriously injured during the period for which she sought damages.27 Since the evidence is

not admissible and would be unfairly prejudicial, the two-prong standard in Nunnally is

satisfied. Nunnally, 869 So. 2d 373. Furthermore, the trial court did not exceed the scope

of the Mississippi Rules of Evidence. Judge Simpson and Judge Vlahos acted properly

       25
          Judge Simpson properly stated on the record at the April 5, 2005 hearing that
“[a]bsent any claim to be made, [the video surveillance] can only be viewed by [the jury]
retrospectively to determine whether or not on a previous occasion she genuinely had an
injury or to weigh the severity of the injury.”
       26
          Again, Judge Simpson properly noted on the record at the April 5, 2005 hearing that
if the video surveillance were admitted and viewed by the jury, “no one could ever be
compensated for injuries once they get well . . . . [E]very injury would be mitigated by virtue
of getting well . . . . [T]he goal ought to always be in treatment to get well. You don’t want
to chill someone from getting well.”
       27
          It should be noted that the facts of the case indicate that Ms. Carawan received two
steroid injections on July 15, 2003 and July 29, 2003, causing significant improvement to her
condition, which supports the reasoning behind limiting her claim to the specified time
frame.

                                              21
within their discretion in granting the motion in limine.28 Reversal is inappropriate given that

there was no abuse of discretion resulting in prejudice.

¶49.   The majority states that the video surveillance evidence is relevant in this case because

it “casts doubt on the severity of Carawan’s injuries prior to July 29, 2003.” The majority

concedes, however, that Ms. Carawan received steroid injections on July 15 and July 29,

2003 that, according to the testimony, made her feel “so much better” and “full of life.” Still,

the majority concludes that it is inconsistent for someone who had suffered injuries more

than two-and-a-half years earlier to ride roller coasters after receiving medical treatment that

greatly improved her condition.

¶50.   In holding that the video surveillance evidence was relevant in this case, the majority

relies solely on a Rhode Island case, Sweet v. Pace Membership Warehouse, Inc., 795 A.2d

524 (R.I. 2002). Sweet is distinguishable from this case. In Sweet, the plaintiff suffered

injuries after being hit by a forklift. Id., 795 A.2d at 526. Pace Membership conceded that

it was liable for the accident. Id. Sweet limited his claim for damages to a specified time

period, and the Rhode Island Supreme Court ruled that the trial court erroneously excluded

video evidence taken after the time-limited claim. This appears on its face to be analogous

to this case, but a closer reading of the facts indicates otherwise. Although Sweet limited his



       28
         Judge Simpson, after consideration of Ms. Carawan’s motion and oral argument of
the parties, properly found that “given that no damages in the form of medical expenses,
future lost wages, or future medical expenses are being sought from and after July 29 of
2003, I’m of the opinion that the prejudicial value of that outweighs its probative value given
your plaintiff is seeking no relief after that date.”

                                              22
claim to a specific time period, throughout the trial, he claimed that he continued to suffer

injury beyond the time frame of his claim, including up to and through the trial. Id. at 528.

In contrast, Ms. Carawan does not claim injury beyond July 29, 2003 and did not represent

at trial that she continued to suffer from the accident. In fact, Ms. Carawan testified that her

condition had greatly improved as a result of the steroid injections she received in July 2003.

¶51.   The majority’s ruling sends a message that litigants should be prohibited from

amending their claims (or at least limited in their ability to do so). This is antithetical to the

practice of law. Parties litigating legal disputes frequently make strategic decisions regarding

their claims and remedies in order to affect the admission or exclusion of evidence.

Likewise, the likely admission or exclusion of evidence can also influence litigation

strategies and the shaping of a case. The majority states that “Carawan did not disclose her

intent [to] forgo any claim for damages past July 29, 2003, until a hearing conducted one day

before trial. It seems clear that Carawan made a calculated decision not to seek damages past

July 29, 2003, in an effort to exclude the Six Flags video.” Ms. Carawan may very well have

made such a calculated decision, but there has never been a limitation preventing a litigant

from strategically abandoning certain claims, even on the eve of trial. In fact, the majority

concedes that Ms. Carawan was free to do so. The majority departs from the law when it

concludes that evidence relating to events beyond the time frame of Ms. Carawan’s claim is

relevant and admissible.

¶52.   Judge Simpson’s ruling is consistent with both the legal precedent and the Mississippi

Rules of Evidence. Ms. Carawan did not claim injury, lost wages, or medical expenses

                                               23
beyond July 29, 2003, and the video surveillance at issue was taken of Ms. Carawan after

July 29, 2003, on July 31, 2003. Therefore, both Judge Simpson and Judge Vlahos exercised

sound judicial discretion in granting Ms. Carawan’s motion in limine regarding the video

surveillance evidence from July 31, 2003.

¶53.   Therefore, the decision of the trial court should be affirmed.

       DIAZ, P.J., JOINS THIS OPINION.




                                             24
