                    IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2012-CA-01297-SCT

DAVID MICHAEL ASHMORE AND DEBRA L.
ASHMORE

v.

MISSISSIPPI AUTHORITY ON EDUCATIONAL
TELEVISION d/b/a MISSISSIPPI PUBLIC
BROADCASTING (SUED AS SEPARATE
ENTITIES) AND THE STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         07/09/2012
TRIAL JUDGE:                              HON. WILLIAM A. GOWAN, JR.
TRIAL COURT ATTORNEYS:                    SETH C. LITTLE
                                          JEFFERY P. REYNOLDS
                                          CARSON THURMAN
                                          RYANNE SAUCIER
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 THOMAS A. WALLER
                                          BARRY W. GILMER
ATTORNEYS FOR APPELLEES:                  CARSON H. THURMAN
                                          JEFFERY P. REYNOLDS
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 08/14/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    In this personal-injury case, the trial court dismissed the Ashmores’ claims with

prejudice for willful discovery violations. Finding no abuse of discretion, we affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.    David Ashmore and his wife Debra Ashmore sued for injuries they alleged resulted

from a motor-vehicle accident with a vehicle driven by an employee of the Mississippi

Authority on Educational Television. David sought damages for personal injuries that he

allegedly suffered to his right and left knees, back, neck, and upper arms. Debra sought

damages for loss of David’s services, companionship, and consortium; rendering of nursing

care and services to David; emotional distress; and loss of enjoyment of life.

¶3.    After the Ashmores filed their complaint, the parties engaged in discovery.1 Two

years after the Ashmores filed suit, the Mississippi Defendants filed a Motion to Dismiss as

a Sanction for the Plaintiffs’ Repeated False Sworn Testimony.             In the motion, the

Mississippi Defendants argued before the trial court that the Ashmores provided a “pattern

of false testimony” that “str[uck] to the core of the material issues in this lawsuit” regarding:

(1) David’s medical history – including knee surgeries, a back injury, and a left-leg injury;

(2) the bases of David’s disability; and (3) whether Debra sought similar “nursing care and

services” damages in a separate nursing-home-negligence suit involving her father. In

response, the Ashmores argued that any inconsistencies between David’s medical history and

the interrogatory responses were resolved by the Ashmores’ deposition testimony.

¶4.    A hearing for the motion was held on June 8, 2012. Attorneys for both sides

presented argument at the hearing, without affidavits or testimony from the Ashmores. The


       1
       During discovery, the trial court granted the Mississippi State Board of Education’s
motion for summary judgment, dismissing it from the case, leaving as the defendants the
Mississippi Authority on Educational Television and the State of Mississippi (“Mississippi
Defendants”).

                                               2
Mississippi Defendants submitted that David’s interrogatory responses omitted material

details of David’s medical history. Specifically, the Mississippi Defendants pointed out that

David had failed to disclose a previous back injury, previous surgeries to his right and left

knees, and an injury to David’s left leg that occurred after the motor-vehicle accident. The

Mississippi Defendants submitted the following interrogatories and responses to the trial

court:

         INTERROGATORY NO. 16: Please state whether you sustained a personal
         injury, had any accidents, or suffered from any serious illness, diseases, or
         mental health disorders prior or subsequent to the incident in question.

(Emphasis added.) David responded to the interrogatory three times.2 The first two

responses listed no previous or subsequent injuries to the areas of the body to which David

claimed injuries in the present case; and the second supplemental response stated that David



         2
             The answers to the interrogatories are as follows:

         ANSWER TO INTERROGATORY NO. 16: Plaintiff would state that he
         has not previously received any injuries prior to the subject motor vehicle
         accident which affected the same part or parts of his body as the injuries which
         were incurred as a result of the subject motor vehicle accident. This answer
         may be supplemented.
         SUPPLEMENTAL ANSWER TO INTERROGATORY NO. 16: Plaintiff
         has not previously received any injuries prior to the subject motor vehicle
         accident which affected the same part or parts of his body as the injuries which
         were incurred as a result of the subject motor vehicle accident.
         SECOND SUPPLEMENTAL ANSWER TO INTERROGATORY NO.
         16: Plaintiff would state that in the five (5) years prior to the subject motor
         vehicle accident, Plaintiff had been diagnosed with: [c]oronary heart disease,
         . . . [and] [k]idney stones. Since the date of the subject motor vehicle accident,
         Plaintiff has not suffered from any major illness, disease, or mental health
         condition.

                                                  3
had heart surgery and kidney stone surgery prior to the accident, but made no mention of any

previous back or leg injuries or subsequent leg injuries. During David’s deposition, the

Mississippi Defendants questioned David about each of these items. David admitted to

previous back injuries, having surgery on his right knee, and injuring his left leg

approximately one month after the accident. But David consistently denied having surgery

on his left knee prior to the accident.

¶5.    The Mississippi Defendants also submitted that the Ashmores provided false

deposition testimony regarding the basis of David’s disability. David and Debra both stated

in their depositions that David’s disability was solely based on injuries resulting from the

motor-vehicle accident. But during the discovery phase, David filed for Social Security

disability. The Social Security application asked what illnesses, injuries, and/or conditions

limited David’s ability to work. David replied that a number of conditions, including heart

problems, diabetes, hypertension, and gout, limited his ability to work, inter alia. The Social

Security Administration found that David was disabled; his explanation of determination

stated “[y]ou state you are disabled and unable to work because of multiple [sic] vehicle

injuries, heart, diabetes, hypertension, gout.”

¶6.    Finally, the Mississippi Defendants argued that Debra failed to disclose that she was

seeking similar damages in an unrelated nursing-home-negligence case involving her father.

The Mississippi Defendants submitted that Debra’s September 26, 2011, interrogatory

response in the nursing-home-negligence case failed to disclose that Debra was seeking




                                              4
damages for mental and emotional distress in the present case.3 In addition to seeking

damages for nursing services rendered to David and her father, Debra sought damages for

mental and emotional distress in both cases. Yet, in her deposition in the case sub judice, the

Mississippi Defendants asked Debra if she was seeking damages for her nursing services in

the nursing-home-negligence case. Debra stated that she was not.

¶7.    In addition to presenting the evidence discussed supra, the Mississippi Defendants

submitted a medical report revealing that David had left-knee surgery prior to the accident.

At the hearing, Ashmore’s attorney, inter alia, admitted that David had surgery on both

knees,4 prompting the court to inquire “how not disclosing . . . two knee surgeries, regardless

of what caused them, is not hiding the ball.”




       3
           Debra’s interrogatory and answer:

       INTERROGATORY NO. 22: Have you, Ms. Ashmore, suffered or been
       treated for “mental pain, anguish (or) emotional distress,” or a “loss of
       enjoyment of life” prior to October 3, 2007 or due to any matter unrelated to
       Mr. Henderson’s stay at MSVH? If so, give the details of such, the dates of
       any visits to medical or psychological professionals, and the name(s) of who
       you saw.
       ANSWER TO INTERROGATORY NO. 22: Ms. Ashmore has suffered
       mental pain and anguish, emotional distress and loss of enjoyment of life due
       to the injuries suffered by Leonard Henderson as a result of the negligence of
       the Defendants. Ms. Ashmore has not been treated by a doctor for mental pain
       and anguish, emotional distress, or loss of enjoyment of life.
       4
        David’s attorney stated that the left-knee surgery was the result of “a volleyball
injury.”

                                                5
¶8.    On July 10, 2012, the trial court, citing Pierce v. Heritage Properties, Inc.5 and

Scoggins v. Ellzey Beverages,6 entered an order granting the Mississippi Defendants’ motion,

finding that the Ashmores’ deposition testimony contained “wilful misrepresentations,” and

further finding that such misrepresentations represented a “deliberate attempt to subvert the

judicial process.” The Ashmores now appeal, claiming that the trial court abused its

discretion in granting the Mississippi Defendants’ Motion to Dismiss.

                                 STANDARD OF REVIEW

¶9.    Trial courts are afforded broad discretion in discovery matters, and this Court will not

overturn a trial court’s decision unless there is an abuse of discretion:

       The decision to impose sanctions for discovery abuse is vested in the trial
       court’s discretion. The provisions for imposing sanctions are designed to give
       the court great latitude. The power to dismiss is inherent in any court of law
       or equity, being a means necessary for orderly expedition of justice and the
       court’s control of its own docket. Nevertheless, the trial court should dismiss
       a cause of action for failure to comply with discovery only under the most
       extreme circumstances.

       Such dismissals by the trial court are reviewed under an abuse of discretion
       standard. When this Court reviews a decision that is within the trial court’s
       discretion, it first asks if the court below applied the correct legal standard. If
       the trial court applied the right standard, then this Court considers whether the
       decision was one of several reasonable ones which could have been made.

Pierce, 688 So. 2d at 1388 (citations omitted).

                                         ANALYSIS




       5
           Pierce v. Heritage Properties, Inc., 688 So. 2d 1385 (Miss. 1997).
       6
           Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 997 (Miss. 1999).

                                               6
¶10.   This Court empowered trial courts with the discretionary authority to sanction,

including the authority to dismiss an action, inter alia. M.R.C.P. 37. In Pierce, we applied

the following considerations for determining whether a trial court abused its discretion under

Rule 37 by dismissing with prejudice:

       First, dismissal is authorized only when the failure to comply with the court’s
       order results from wilfulness or bad faith, and not from the inability to comply.
       Dismissal is proper only in situation [sic] where the deterrent value of Rule 37
       cannot be substantially achieved by the use of less drastic sanctions. Another
       consideration is whether the other party’s preparation for trial was
       substantially prejudiced. Finally, dismissal may be inappropriate when neglect
       is plainly attributable to an attorney rather than a blameless client, or when a
       party’s simple negligence is grounded in confusion or sincere
       misunderstanding of the court’s orders.

Id. at 1389 (quoting Batson v. Neal Spelce Assocs. Inc., 765 F. 2d 511, 514 (5th Cir.

1985)).This Court has affirmed the trial court’s discretionary authority to dismiss given

similar egregious conduct by a party, as in this case. Beck v. Sapet, 937 So. 2d 945, 946

(Miss. 2006); Allen v. Nat’l R.R. Passenger Corp., 934 So. 2d 1006, 1008 (Miss. 2006);

Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 997 (Miss. 1999); Pierce, 688 So. 2d

1385. The Court of Appeals followed our rulings in Conklin v. Boyd Gaming Corp., 75 So.

3d 589, 595 (Miss. Ct. App. 2011), by affirming dismissal as a sanction due to the trial

court’s finding that the plaintiff engaged in a repeated course of conduct of providing false

answers and failing to disclose relevant information.

¶11.   In short, if the trial court applies the “correct legal standard,” we must affirm the

decision, regardless of what any one of us individually might have ruled had we been the

judge, unless there is a “definite and firm conviction that the court below committed clear

                                              7
error.” See City of Jackson v. Rhaly, 95 So. 3d 602, 607 (Miss. 2012) (citations omitted).

Although reasonable minds might differ as to the disposition, there is no support in the record

that the trial court failed to apply the correct legal standard in the case sub judice, for indeed,

the trial judge cited our decisions in Pierce and Scoggins as authority, dispelling any notion

of applying an incorrect standard. The trial judge relied upon the standard as announced by

this Court. Abuse of discretion is the most deferential standard of review appellate courts

employ. See Fitch v. Valentine, 959 So. 2d 1012, 1022 (Miss. 2007) (“this Court applies the

deferential abuse of discretion standard of review”); see also White v. Thompson, 822 So.

2d 1125, 1128 (Miss. Ct. App. 2002) (abuse of discretion “is highly deferential”).

¶12.   The dissent engages in a de novo review of the matter considered and offers new

conclusions not made by the trial judge. The dissent then grants zero deference to the trial

court. Rather than acting with measured restraint in conducting appellate review, the dissent

puts on the robe of a trial judge, scrutinizes the record, and declares that the trial court failed

to conduct a comprehensive hearing. The dissent reweighs the competing claims, offering

relief for the claimants, who exhibited a catch-me-if-you-can mentality for more than two

years, and finally presents its own findings for the trial court’s edification. There is no

reference to “error” by the trial court, much less “clear error” or an “arbitrary” decision.

¶13.   Abuse of discretion is the most deferential standard of review appellate courts employ.

A finding of abuse of discretion absent a definite and firm identification of clear error

violates time-honored standard-of-review principles. By superceding the discretion trial

courts traditionally have been afforded, the dissent would erode the principle and resculpt the

                                                8
result to another permissible option, an option the dissenting author would have selected had

he been the trial judge. Such action eviscerates the principles of appellate review and renders

“abuse of discretion” a standard of review in name only.

¶14.   Rule 1 of the Mississippi Rules of Civil Procedure proposes that the purpose of the

rules is to secure a “just” determination. The comments to Rule 1 state that “[t]he primary

purpose of procedural rules should be to “promote the ends of justice.” M.R.C.P. cmt.

(emphasis added). Is not the “purpose of justice . . . the ascertainment of the truth[?]”

Hayden v. State, 972 So. 2d 525, 538 (Miss. 2007) (Randolph, J., specially concurring).

“Parties, like witnesses, are required to state the truth, the whole truth and nothing but the

truth in answering written interrogatories.” Pierce, 688 So. 2d at 1389 (citation omitted).

Truth and justice complement each other. Can true justice ever be accorded on false

testimony? We think not. Should violators be rewarded, or only have their hands slapped,

for making “willful misrepresentations,” which, if not exposed, result in ill-gotten gain?

Rule 37(e) not only empowers, but specifically grants trial courts the authority to dismiss a

case with prejudice “as may be just.”

¶15.   The rule-designated tribunal, a trial court, found the Ashmores’ pattern of lying and

concealment to be “willful misrepresentations” and a “deliberate attempt to subvert the

judicial process.” Any attempt to “subvert the judicial process” cuts against the very core

of “promot[ing] the ends of justice” and the “ascertainment of the truth,” a goal which

guides discovery, the rules of evidence and procedure, and trials. If trial judges lack the




                                              9
authority to throw dishonest parties out of court when their lies are exposed, then we will

never achieve true justice.

¶16.   “An appellate court should not feign allegiance to the rule that a matter is within the

trial court’s sound discretion and then find an abuse of discretion whenever it disagrees with

the trial judge’s decision.” Frazier v. State, 305 Ga. App. 274, 280, 699 S.E.2d 747, 752 (Ga.

App. 2010) (Mikell, J., concurring). “Sound discretion imports a decision by reference to

legally valid standards.” Bell v. City of Bay St. Louis, 467 So. 2d 657, 661 (Miss. 1985).

Only “[w]here a trial judge in determining a matter committed to his sound discretion makes

his decision by reference to an erroneous view of the law, [does] this Court [have] authority

to take appropriate corrective action on appeal.” Id.

¶17.   That did not occur in this case. “[T]he decision of a trial judge will stand ‘unless we

conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of

discretion.’” Mississippi Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003)

(citing Puckett v. State, 737 So. 2d 322, 342 (Miss. 1999)). Nothing in the record hints of

an “arbitrary” or “clearly erroneous” decision. “The question, of course, is not whether this

Court . . . would as an original matter have dismissed the action; it is whether the [trial]

[c]ourt abused its discretion in so doing.” Nat’l Hockey League v. Metro. Hockey Club, Inc.,

427 U.S. 639, 642, 96 S. Ct. 2778, 2780, 49 L. Ed. 2d 747 (1976). Our review has been

described as follows:

       Our inquiry, then is not whether the circuit judge ruled contrary to what one
       of us might have ruled, not whether he was “right” or “wrong” in our view,
       but whether he abused his discretion. And, unless the trial court based his

                                             10
       decision on an erroneous view of the law, we are not authorized to reverse for
       an abuse of discretion unless we find it was arbitrary and clearly erroneous.

Westbrook v. State, 658 So. 2d 847, 851 (Miss. 1995) (quoting Hooten v. State, 492 So. 2d

948, 950 (Miss. 1986)) (emphasis added).

¶18.   The dissent posits that “the facts of today’s case fall somewhere between the

egregious acts contemplated by Pierce and Scoggins and the single, vague discovery

response in Wood [ex rel Wood v. Biloxi Public Sch. Dist., 757 So. 2d 190 (Miss. 2000)].”

(Dis. Op. ¶40).      When did lying under oath lose its egregious nature, defined as

“outstandingly bad: blatant.”7 Such rationalization is not a standard of review, nor should

it be a guide to our determination of a dismissal under Rule 37 of the Mississippi Rules of

Civil Procedure.

¶19.   Under Rule 37, options available to every trial court for failure to cooperate 8 in

discovery span from payment of reasonable expenses and attorneys’ fees, to ordering

designated facts to be taken as established, to “refusing to allow the disobedient party to

support or oppose designated claims or defenses,” to striking out pleadings, to holding a

party in contempt of court, to dismissing the suit. All are permissible, and all are within the

trial court’s discretion. The dissent opines that “the trial court’s order did not thoroughly

address each of the four [Pierce] considerations.” (Dis. Op. ¶54 ). However, Pierce does not




       7
           Websters II New College Dictionary 360 (2001).
       8
       Under Rule 37, “evasive or incomplete answer[s] [are] to be treated as a failure to
answer.” M.R.C.P. 37(a)(3).

                                              11
require trial courts to address each consideration. Pierce, 688 So. 2d at 1391 (holding that

dismissal was appropriate without a consideration of prejudice); Scoggins, 743 So. 2d at 997

(“[I]n Pierce we stated there is no requirement that the defendant be substantially prejudiced.

. . .”).

¶20.       Turning to the facts of the case sub judice, we must “first ask[] if the court below

applied the correct legal standard.” Rhaly, 95 So. 3d at 607. He did. The first consideration

is whether the discovery violations were the result of willfulness or bad faith. The trial court

explicitly found Ashmore’s interrogatory and deposition responses to be “willful

misrepresentations” and a “deliberate attempt to subvert the judicial process.”

¶21.       The second consideration is whether the deterrent value of Rule 37 may be achieved

by lesser sanctions. In the case sub judice, the trial court considered lesser sanctions, an

option available to every trial court. In his order, the trial judge stated “[t]he Court is

cognizance [sic] of the fact the Supreme Court has mandated it impose the least restrictive

sanction that will accomplish the purpose for which it is opposed.”            The trial court

“considered” “vigorous cross-examination,” and the alternative sanctions of “imposing fees,”

or “reducing the verdict.” The trial court then cited our holding in Scoggins 9 and dismissed

the viability of any lesser sanctions, finding that they “create[] several problems such as what



           9
        In Scoggins, the trial court found that the alternative sanction of payment of attorney
fees would cause “several problems.” Scoggins, 743 So. 2d at 995. First, the plaintiff would
not be in a position to pay the fees without a substantial judgment at trial. Id. Second, any
award at trial would result in substantial injustice being done due to Scoggins’s willful
misrepresentations during discovery. Id.

                                                12
to do if the defense obtains a verdict in its favor.” The trial court’s consideration and

rejection of lesser sanctions follows this Court’s instruction in Scoggins.10 See also Pierce,

688 So. 2d at 1391 (“other sanctions considered by the court would not achieve the deterrent

value of the dismissal”). The trial court’s decision was not arbitrary (“not done according

to reason or judgment, but depending on the will alone” 11), but rather was based on the law

we established.

¶22.   The third consideration is whether the wronged party has suffered prejudice as a result

of the discovery violation.      However, “there is no requirement that the defendant be

substantially prejudiced by the absence of evidence.” Pierce, 688 So. 2d at 1391; see also

Allen, 934 So. 2d at 1013 (“substantial prejudice is not necessary under this test”). In Pierce,

the Court found dismissal “wholly appropriate” where “there is substantial evidence in the

record to support her admitted deception.” Pierce, 688 So. 2d at 1391. Although prejudice

need not be shown, this Court has recognized that substantial prejudice occurs when

discovery violations impose on the opposing party “major inconvenience in time, attorney

fees and general frustration.” Scoggins, 743 So. 2d at 997. The Ashmores’ pattern of “willful

misrepresentations” spanned more than two years, causing the Mississippi Defendants “major

inconvenience in time, attorney fees and general frustration.” See id.


       10
         In Scoggins, this Court rejected at least three other lesser sanctions in addition to
those listed in Rule 37, on the grounds that “a mere fine, payment of attorney fees or
limitation of recovery” would not remedy the willful violations and would cause “several
problems.” Scoggins, 743 So. 2d at 994.
       11
            Hall v. City of Ridgeland, 37 So. 3d 25, 36 (Miss. 2010).

                                               13
¶23.   The fourth factor is whether the abuse is attributable solely to trial counsel instead of

a blameless client.      The trial court made no finding that the Ashmores’ counsel had

knowledge of the false and deceptive responses, i.e., the “willful misrepresentations,” nor

does the record suggest same. In its order, the trial court specifically found that both

Ashmores had made misrepresentations throughout discovery; thus, we are not dealing with

“blameless clients.”

¶24.   The trial court found that David had lied by concealing a right-knee surgery and

degenerative joint disease in his right knee. The trial court further found that David

“affirmatively stated” that he did not have a subsequent left-knee injury or degenerative disc

disease in his back, despite medical reports to the contrary. The trial judge also noted the

inconsistency of David’s claim of permanent and total disability and inability to be intimate

with his wife solely related to the accident in discovery responses when compared to his

Social Security disability application, relating his disability to heart problems and shortness

of breath, inter alia.

¶25.   The trial court found that Debra had misrepresented the fact that she was seeking

compensation for nursing services.      The trial judge found in his order that the most

“compelling reason” for granting dismissal was the Ashmores’ “deliberate attempt to subvert

the judicial process.” Courts, trial or appellate, should not condone lies or mollify penalties

for lying or discourage trial judges from protecting our courts from those who would seek

to abuse the judicial process in pursuit of lucre. Every court, at every level, should be

vigilant in maintaining integrity.

                                              14
¶26.   The trial court cited and then applied the correct legal standard. Our role is to

“consider[] whether the decision was one of several reasonable ones which could have been

made.” Rhaly, 95 So. 3d at 607. As discussed supra, our precedent supports the trial court’s

dismissal as one of several viable options which the court could make. The trial court relied

upon this Court’s decisions in Pierce and Scoggins. The trial court cited Pierce for the

proposition that that lesser sanctions would not have achieved the proper deterrent effect and

could have resulted in no penalties if the Mississippi Defendants had received a favorable

verdict. The trial court’s decision was one of the alternatives our law allows. The dissent’s

disagreement with the trial court is not the equivalent of committing “clear error of judgment

in the conclusion [the trial court] reached upon weighing of relevant factors.” Disagreeing

with the implementation of one of several permissible sanctions does not approach abuse of

discretion, much less equate to abuse. If we stay true to and honor the appropriate standard

of review, a discretionary decision of a trial judge must stand.

¶27.   The case sub judice is strikingly similar to Scoggins. In Scoggins, the plaintiff

alleged injuries to her foot, leg, and back. Scoggins, 743 So. 2d at 991. In response to

interrogatory questions about past injuries to areas affected by the accident, Scoggins falsely

swore, “I have never sustained an injury to the portions of my body I claim were injured in

the accident, except that in 1958 . . . [I] received a pinched nerve in my back.” Id. At her

deposition, she falsely testified “she had no problems before the accident.” Id. Contrastingly,

medical records revealed that Scoggins had been “examined and/or treated for pain,

numbness and/or arthritis in her left leg, back, hip and/or spine” on numerous occasions prior

                                              15
to the accident. Id. at 992. The trial court, exercising its discretion, granted a dismissal,

finding Scoggins’s explanations for omitting the information not credible. Id.

¶28.   In today’s case, the Ashmores offered no explanation in response to the Mississippi

Defendants’ motion to dismiss, either by affidavit or live testimony at the hearing. In

Scoggins, we affirmed the trial court’s dismissal, concluding that “Scoggins wilfully

submitted false answers to interrogatories and knowingly did not answer deposition questions

truthfully.” Id. at 997.

¶29.   The trial court found a pattern of “willful misrepresentations” and a “deliberate

attempt to subvert justice” by both Ashmores. David Ashmore not once, but twice, denied

in interrogatory answers having “any injuries prior to the subject motor vehicle accident

which affected the same part or parts of his body as the injuries which were incurred as a

result of the subject motor vehicle accident [back and legs].” The third time David answered

the interrogatory, he revealed for the first time that he previously had been diagnosed with

coronary heart disease and kidney stones, but again maintained no other prior injuries to the

areas of his body which he claimed were injured in the accident. At his deposition, David

changed his story again. He then admitted to previous injuries to his back and right knee,

which required surgery, along with a subsequent left-knee injury. He continued to deny prior

surgery to his left knee. After being confronted with medical records to the contrary,

Ashmore’s attorney acknowledged at the hearing on the motion to dismiss, that David had

had surgery “on both knees.” Trial judges have the right to rely on the representations

presented to them by attorneys. See Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 85

                                             16
(1925) (litigant “is bound by the admissions and stipulations of its attorneys touching the

action to the same extent that an individual would be bound.”); see Lane v. Woodland Hills

Baptist Church, 285 So. 2d 901, 905 (Miss. 1973) (“[A]n attorney may bind his client by

stipulation or admission of facts during the course of the trial”); see also Accident Ins. Co.

v. Classic Bldg. Design, LLC, 2012 WL 3913090, *12 n.8 (S.D. Miss. Sept. 7, 2012) (“It is

well settled under Mississippi law that an attorney has the authority to bind his client to

stipulations or admissions of fact”). The dissent posits more proof must be required. If there

was a credible explanation (the explanation in Scoggins was as not credible), the Ashmores

should have made themselves available to rebut the evidence presented to and relied upon

by the trial judge.

¶30.   The trial court further found that Debra was attempting to double-dip by seeking “the

same type of compensation” in a separate suit, which she adamantly denied during her

deposition.   Just as in Scoggins, the Ashmores “wilfully submitted false answers to

interrogatories and knowingly did not answer deposition questions truthfully.” Scoggins, 743

So. 2d at 997.

¶31.   The dissent offers possible excuses never offered by the Ashmores at the hearing,

reweighs evidence, and then posits that “[f]or the most part, however, the Ashmores either

clarified omissions in their depositions or attempted to explain the inconsistencies.” (Dis. Op.

¶51). This argument misses the mark. The decision before the trial court was whether a

dismissal achieves the appropriate deterrent effect and prevents parties from “get[ting] away



                                              17
with lying under oath without a meaningful penalty.” See Pierce, 688 So. 2d at 1391;12

Scoggins, 743 So. 2d 994. A dismissal serves that purpose.

¶32.   The trial court considered our holdings in Pierce and Scoggins before making its

ruling. We discern nothing in the record that (1) suggests an “arbitrary” or “clearly

erroneous” ruling was made by the learned trial judge, or (2) instills in this Court a “definite

and firm conviction that the court below committed a clear error of judgment.” These are the

guidelines we are bound to follow. See Allen, 934 So. 2d at 1013 (affirming dismissal

because “[t]he trial court certainly weighed the relevant factors in reaching its conclusion and

no evidence exists in the record to support a finding of a clear error of judgment or abuse of

by the trial court”).

                                       CONCLUSION

¶33.   We affirm the trial court’s grant of the Mississippi Defendants’ Motion to Dismiss.

¶34.   AFFIRMED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, PIERCE AND COLEMAN, JJ.,
CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY KITCHENS AND CHANDLER, JJ.

       KING, JUSTICE, DISSENTING:

¶35.   Prior to issuing the “death penalty” of civil sanctions, the trial court failed to

adequately apply the correct standard to the unique facts presented in today’s case. Because


       12
         Lesser sanctions “would not achieve the deterrent value of the dismissal. Since any
other sanction beside dismissal would virtually allow the plaintiff to get away with lying
under oath without a meaningful penalty, the trial court’s decision regarding this factor was
correct.” Pierce, 688 So. 2d at 1391.

                                              18
this case should be remanded for a comprehensive hearing to determine the appropriate

sanction, if any, I dissent.

¶36.   Although the majority correctly quotes this Court’s standard of review applied to

discovery sanction cases, the majority ignores this Court’s longstanding guidance to trial

courts: “the trial court should dismiss a cause of action for failure to comply with discovery

only under the most extreme circumstances.” Pierce v. Heritage Props., Inc., 688 So. 2d

1385, 1388 (Miss. 1997) (citing Hapgood v. Biloxi Reg’l Med. Ctr., 540 So. 2d 630, 634

(Miss. 1989)). When determining the appropriateness of sanctions under Rule 37, the

following four factors are considered:

       First, dismissal is authorized only when the failure to comply with the court’s
       order results from wilfulness or bad faith, and not from the inability to comply.
       Dismissal is proper only in situation[s] where the deterrent value of Rule 37
       cannot be substantially achieved by the use of less drastic sanctions. Another
       consideration is whether the other party’s preparation for trial was
       substantially prejudiced. Finally, dismissal may be inappropriate when neglect
       is plainly attributable to an attorney rather than a blameless client, or when a
       party’s simple negligence is grounded in confusion or sincere
       misunderstanding of the court’s orders.

Id. at 1389 (quoting Batson v. Neal Spelce Assocs., 765 F. 2d 511, 514 (5th Cir. 1985)).

¶37.   In Pierce, 688 So. 2d at 1392, this Court upheld the trial court’s dismissal under Rule

37. The plaintiff in Pierce was injured when a ceiling fan in her apartment fell. Id. at 1387.

The jury returned a verdict in favor of the plaintiff, but the trial court granted a new trial due

to an improper closing argument. Id. In the first trial and during discovery for the second

trial, the plaintiff maintained that there were no eyewitnesses to the incident. Id. The

defendants received an anonymous phone call after the first trial stating that the plaintiff was

                                               19
not alone when the incident occurred. Id. at 1388. The plaintiff identified the witness only

after she realized the defendants were aware of the witness’s existence.          Id.   In his

deposition, the witness confirmed that he was present during the incident. Id. This Court

found that dismissal was proper in Pierce because the plaintiff’s failure to disclose the

existence of a material witness was willful, “obstructed the progress of litigation,” and

constituted bad faith. Id. at 1390.

¶38.   In Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 997 (Miss. 1999), this Court

affirmed the trial court’s dismissal of a plaintiff’s personal-injury claim when the plaintiff

concealed material parts of her medical history. The plaintiff in Scoggins complained of

injuries to her foot, leg, and back. Id. at 991. The plaintiff denied having prior injuries to

these areas in both her interrogatory responses and deposition testimony. Id. at 991-92.

After the plaintiff responded to discovery and provided deposition testimony, the defendants

obtained her medical records, which showed that she had been treated for pain, numbness,

and arthritis in her legs, back, hips, shoulder, neck, and elbows for approximately eighteen

years before her accident. Id. at 992. This Court found that dismissal was proper in

Scoggins because the plaintiff “wilfully submitted false answers to interrogatories and

knowingly did not answer deposition questions truthfully.” Id. at 997.

¶39.   Although this Court has upheld trial courts’ dismissals under Rule 37, we also have

found that dismissal is not appropriate in other circumstances. In Wood ex rel. Wood v.

Biloxi Public School District, 757 So. 2d 190, 195 (Miss. 2000), this Court reversed the trial

court judgment when the dismissal was based on one interrogatory response that could have

                                             20
been interpreted in various ways. The plaintiff in Wood was injured when a school bus rear-

ended his car. Id. at 192. The plaintiff responded to an interrogatory about the extent of his

injuries; the response stated: “These injuries affected my attitude, my concentration, my

school work, and my ability to do manual labor. I no longer am able to enjoy tinkering with

automobiles as the stooping, bending, and squatting are painful.” Id. During discovery, the

defendants obtained surveillance video of the plaintiff bending, twisting, and squatting while

performing tasks at a tire shop. Id. The defendants filed a motion to dismiss under Rule 37,

claiming that the plaintiff had lied in his interrogatory response, and the trial court granted

the motion. Id. We reversed, finding that the allegedly false interrogatory response was

open to multiple interpretations. Id. at 194. Further, this Court recognized that the plaintiff

had testified in his deposition that he was able to perform manual labor, but that it was more

painful than before the accident. Id. at 194. This Court stated:

       The School District would have a much stronger case if Wood had asserted
       during his deposition that he was in fact unable to perform his work functions
       as before. . . . [T]he fact remains that Wood acknowledged in his deposition
       that he was able to perform tasks as before the accident. The present case does
       not involve one of “those rare instances where the conduct of a party is so
       egregious that no other sanction will meet the demands of justice,” the trial
       court abused his discretion in concluding otherwise.

Id. at 194-95 (quoting Scoggins, 743 So. 2d at 997).

¶40.   The unique and particular facts of today’s case fall somewhere between the egregious

acts contemplated by Pierce and Scoggins and the single, vague discovery response in Wood.

As such – and as discussed in more detail below – the trial court should have held a



                                              21
comprehensive hearing on the Defendant’s motion prior to issuing the “death penalty” of

sanctions.

¶41.   The majority implies that, because the trial court in today’s case cited our holdings

in Pierce and Scoggins, that the correct legal standard was applied and this case should be

affirmed. (Maj. Op. ¶ 11.) Mere citation to this Court’s standard is not sufficient. The

standard must be actually and correctly applied, not just passingly referenced.

¶42.   Based on Pierce, 688 So. 2d at 1398, the first consideration is whether “the failure to

comply with the court’s order results from wilfulness or bad faith, and not from the inability

to comply.” The trial court in today’s case found that the Ashmores’ interrogatory responses

and deposition testimony contained “willful misrepresentations.” David’s interrogatory

responses did omit material parts of his medical history. But, unlike the plaintiffs in Pierce

and Scoggins, David clarified these omissions in his deposition when he admitted having a

prior back injury, right-knee surgery, and an injury to his left leg. In his deposition, David

denied having left-knee surgery prior to the accident.        And the medical records the

Mississippi Defendants cite in support of their contention that David had surgery on his left

knee prior to the accident do not unequivocally establish that as fact. For example, the

Mississippi Defendants cite an October 1, 2008, medical record which states that David had

surgery on his left and right knees. In response, the Ashmores point out that David did, in

fact, have surgery on his left knee on July 17, 2008 – approximately four months after the

accident. Further, although David provided a complete medical-records release to the

Mississippi Defendants, they have produced only one medical record from before the

                                             22
accident which supports their contention that David had left-knee surgery prior to the

accident – a March 10, 2008, entry in David’s family physician’s record stating that David

“has had surgery before on his knees.” They have not, however, produced actual records of

the alleged surgery.

¶43.   The Mississippi Defendants also claim that the Ashmores provided false testimony

regarding the bases of David’s disability. David and Debra both stated in their depositions

that David’s disability was attributable only to his injuries from the car accident. David’s

Social Security application, however, listed David’s heart problems and diabetes as

conditions that contributed to his inability to work, in addition to the injuries from the car

accident. Interestingly, Debra testified in her deposition that David’s heart problems and

diabetes were exacerbated by the surgeries and medication he received as a result of the

accident.

¶44.   The Mississippi Defendants also claim that Debra provided false testimony as to

whether she was seeking damages for her nursing services and emotional distress in the

present case as well as the unrelated nursing-home-negligence case she filed on behalf of her

father. While there are inconsistences in Debra’s testimony and written discovery, these

statements, standing alone, would not warrant sanctions. Like the interrogatory response in

Wood, Debra’s interrogatory response in the nursing-home case was vague and open to more

than one interpretation. The response stated that Debra had not been treated for mental or

emotional distress in a matter unrelated to the nursing-home case – for example, today’s case.

The response did not, however, state that Debra had not experienced mental or emotional

                                             23
distress. Further, although Debra testified that she was not seeking damages for her nursing

services in the nursing-home case, the complaint for the nursing-home case clearly stated that

she was seeking this type of damages. It should be noted, however, that the nursing-home

complaint had not been served at the time of Debra’s deposition.

¶45.   The second consideration in determining whether a trial court abused its discretion in

dismissing a case with prejudice under Rule 37 is whether the “deterrent value of Rule 37

cannot be substantially achieved by the use of less drastic sanctions.” Id. Essentially, the

trial court must consider whether lesser sanctions such as attorneys’ fees, limiting testimony,

or fines would provide a sufficient deterrent value. As part of this consideration, courts

should be mindful of deterring discovery abuses for not only the present case, but for future

cases as well. White v. White, 509 So. 2d 205, 209 (Miss. 1987). Dismissal for discovery

violations is “draconian” and a “remedy of last resort” that should only be applied in extreme

circumstances. Id.

¶46.   In Scoggins, 743 So. 2d at 994, the trial court provided a detailed analysis of the lesser

sanctions available and why the sanctions would not deter discovery abuse in that case. The

trial court considered fines and awarding attorneys’ fees to the plaintiff that were attributable

to its Rule 37 motion. Id. Because discovery in the case had concluded, the trial court found

that lesser sanctions would not provide an adequate deterrent. Id.

¶47.   In today’s case, the trial court recognized the lesser-sanctions discussion in Scoggins,

but failed to analyze whether lesser sanctions would be appropriate in this case:



                                               24
       The Court is cognizance [sic] of the fact the Supreme Court has mandated it
       impose the least restrictive sanction that will accomplish the purpose for which
       it is imposed. The Court has also considered the Supreme Court’s discussion
       of simply allowing for vigorous cross-examination or imposing fees or
       reducing the verdict. As to imposing fees or reducing the verdict, the Supreme
       Court noted in Scoggins, the trial court properly found such a sanction creates
       several problems such as what to do if the defense obtains a verdict in its
       favor.

       ...

       As stated supra, the Court is aware of the precedent set by the case law on this
       issue. Dismissal is an extreme sanction. However, the Court having carefully
       reviewed the pleadings and the transcript finds dismissal is appropriate in this
       action. As noted by the trial court in Scoggins, “the Court finds that perhaps
       the most compelling reason for granting the Defendant’s motion is to redress
       an apparently deliberate attempt to subvert the judicial process.”

Although the trial court stated that dismissal is “appropriate in this action” and discussed this

Court’s holding in Scoggins, the reasoning behind this conclusion is totally absent. Levying

the “death penalty” of discovery sanctions requires more than recognizing this Court’s

precedent with respect to these sanctions; the precedent must be applied to the facts of the

present case.

¶48.   The third factor to be considered is whether the other party’s preparation for trial was

substantially prejudiced. Pierce, 688 So. 2d at 1389. The Mississippi Defendants claim that

they suffered prejudice in wasted litigation resources, through general frustration, and “re-

working” their litigation strategy. The trial court’s order does not address prejudice to the

Mississippi Defendants. And at the hearing, the trial court stated that it was “not so

concerned” with prejudice. Pierce, 688 So. 2d at 1391, recognized that there is not a



                                               25
requirement that the defendant be substantially prejudiced by the plaintiff’s conduct. The

court may, however, consider prejudice in determining whether a sanction is warranted. Id.

¶49.   A party will likely suffer at least some prejudice in the case of incomplete or incorrect

discovery responses. See id. at 1389 (“A false answer is in some ways worse than no answer

[because] it misleads and confuses the party.”). In today’s case, however, discovery was still

in its infancy. The Mississippi Defendants noticed the depositions of thirty-four expert

witnesses, and only one expert deposition had occurred prior to the hearing on the motion to

dismiss.

¶50.   The final consideration is whether the “neglect is plainly attributable to an attorney

rather than a blameless client, or when a party’s simple negligence is grounded in confusion

or sincere misunderstanding of the court’s orders.” Id. at 1389. The trial court did not

specifically address this factor in his order dismissing the case. The Ashmores do not claim

that the neglect is attributable to their attorney, but instead claim that the confusion stems

from David not knowing that surgical clips were used during his heart surgery. Surgical clips

were, in fact, placed near David’s left knee during a heart surgery.

¶51.   There are clear omissions and inconsistencies in the Ashmores’ discovery responses

and deposition testimony. And these omissions may warrant some type of sanction. See

Pierce, 688 So. 2d at 1389. For the most part, however, the Ashmores either clarified

omissions in their depositions or attempted to explain the inconsistencies – for example,

Debra’s testimony relating to David’s heart problems and diabetes being exacerbated by his

car-accident injuries.

                                              26
¶52.   Further, the facts of today’s case are unique and distinguishable from Pierce and

Scoggins. In those cases, there was no dispute as to whether the plaintiffs had willfully

omitted information in discovery. The plaintiff in Pierce, 688 So. 2d at 1388, failed to

disclose the existence of a witness, despite the case going through discovery and trial; but she

did not contest the existence of the witness. And the plaintiff in Scoggins, 743 So. 2d at

997, did not disclose relevant medical history in both her interrogatory responses and

deposition; but she simply rebutted the discovery-violation claim by stating that she had a

poor memory. In the present case, actual disputes exist as to whether the Ashmores willfully

concealed information. The parties disagree as to whether David had left-knee surgery prior

to the accident. And the parties also contest the bases of David’s disability.

¶53.   Because of the particular facts of this case, I find that the trial court should have

conducted a comprehensive hearing on the Mississippi Defendants’ motion to dismiss.

While counsel for each side provided argument on the motion, testimony from the Ashmores

and further medical evidence would have aided in resolving the disputes discussed above.

I recognize that an in-depth hearing is not required – or even necessary – in most cases. See

Allen v. Nat’l R.R. Passenger Corp., 934 So. 2d 1006, 1016 (Miss. 2006). But in today’s

case, this type of hearing is needed to fully analyze the issues presented by the Mississippi

Defendants’ motion to dismiss and the Ashmores’ response to the motion, as well as to

determine the appropriate sanction.

¶54.   For this same reason, an order detailing the trial court’s analysis for each Pierce factor

is necessary in today’s case. The trial court’s order did not thoroughly address each of the

                                              27
four considerations. Again, I recognize that this type of analysis is not necessary for all Rule

37 motions. See Smith v. Tougaloo Coll., 805 So. 2d 633, 640-41 (Miss. Ct. App. 2002).

But the facts of today’s case require it. For example, although the trial court’s order cited

the lesser-sanction analysis in Scoggins, the trial court did not address why lesser sanctions,

such as costs associated with additional discovery or impeachment, would not provide a

sufficient deterrent in today’s case. Considering the discussion above, lesser sanctions may

very well be appropriate; and a comprehensive hearing will likely aid in determining the

proper sanction.

¶55.   To be clear, considering the unique facts of today’s case, I find that the trial court

should have held a comprehensive hearing and entered a detailed order analyzing the Pierce

factors. Contrary to the majority’s assertion that I am “offering relief” for the Ashmores, I

am simply ensuring that the trial court is compliant with this Court’s directive in discovery

sanction cases – that “the trial court should dismiss a cause of action for failure to comply

with discovery only under the most extreme circumstances.” Pierce, 688 So. 2d at 1388

(emphasis added); Allen, 934 So. 2d at 1008. This Court must “consider[] whether the [trial

court’s] decision was one of several reasonable ones which could have been made.” Id. As

discussed above, the unusual facts of today’s case present questions as to whether this is one

of the “most extreme circumstances” contemplated by this Court’s precedent. As such,

whether the trial court’s decision was reasonable cannot be determined from the record.

¶56.   For the reasons discussed above, I would reverse the trial court’s judgment and

remand the case for proceedings consistent with this opinion.

                                              28
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.




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