                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-CA-01106-SCT

CRAIG ALLEN

v.

NATIONAL RAILROAD PASSENGER
CORPORATION


DATE OF JUDGMENT:                            05/27/2005
TRIAL JUDGE:                                 HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     TERESA EARLEY HARVEY
                                             SAMUEL JAY ROSENTHAL
ATTORNEYS FOR APPELLEE:                      KENNETH DAVID McLEAN
                                             GEORGE H. RITTER
NATURE OF THE CASE:                          CIVIL - PERSONAL INJURY
DISPOSITION:                                 AFFIRMED - 07/27/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE COBB, P.J., CARLSON AND GRAVES, JJ.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Because the trial court dismissed his tort lawsuit for damages because of his repeated

failure to disclose in discovery his prior back injury and workers’ compensation claim, the

plaintiff has appealed to us.   Finding no error by the trial court, we affirm its judgment of

dismissal.
                     FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.     Craig Allen was an assistant conductor for the National Railroad Passenger Corporation

(Amtrak).     In 2001, Allen suffered a spinal injury while unloading baggage on the job in

Jackson, and he thereafter sued Amtrak pursuant to the Federal Employers’ Liability Act

(FELA), 45 U.S.C. §§ 51 et seq., in the Circuit Court for the First Judicial District of Hinds

County. During discovery, Amtrak asked Allen if he had ever suffered a similar injury or filed

a workers’ compensation claim.        In separate responses to Amtrak’s inquiries propounded via

interrogatories, requests for production of documents, and deposition questions, Allen denied

that he had ever suffered a previous back injury or filed a workers’ compensation claim.

¶3.     Later, after the close of discovery, Amtrak learned that Allen not only had in fact

previously suffered disc injuries to his lower back in the same location, but that Allen had also

filed a claim and received a workers’ compensation award for that earlier injury.          This earlier

injury had occurred in 1993 when Allen, a former police officer, was struck by a car while

directing traffic.   Because of Allen’s false responses, given under oath, Amtrak filed for

sanctions in the form of a motion to dismiss under the provisions of Miss. R. Civ. P. 37. Allen

responded with a sworn affidavit, stating that the incident and injury were so minor, he had

“honestly completely” forgotten about them.        At the hearing on the Rule 37 motion, Allen’s

attorney noted that Allen was present if the trial judge needed to personally question him, but

the judge found such interrogation unnecessary. The trial court found Allen’s omission to be

willful conduct which prejudiced Amtrak and found the deterrent value of Rule 37 could not




                                                   2
be achieved by a less harsh result than that of dismissal. The trial court thus granted Amtrak’s

motion and dismissed Allen’s case with prejudice.

¶4.      On appeal to us, Allen complains that (1) there was insufficient evidence of willfulness

or bad faith on his part to justify a dismissal of his lawsuit; (2) the FELA provides a clear

preference for credibility determinations to be made by the fact-finder (jury); and, (3) Allen’s

due process rights were violated when he was not permitted to testify at the hearing before the

trial judge.

                                            DISCUSSION

         I.       EVIDENCE OF BAD FAITH AND WILLFULNESS

¶5.      Reviewing another case with similar facts concerning discovery abuse resulting in

dismissal with prejudice, we stated:

                 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 to 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 v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss. 1997) (internal citations

omitted).      “This Court will affirm a trial court’s decision unless there is a ‘definite and firm


                                                    3
conviction that the court below committed a clear error of judgment in the conclusion it

reached upon weighing of relevant factors.’” Id. (quoting Cooper v. State Farm Fire & Cas.

Co., 568 So.2d 687, 692 (Miss. 1990)). One certainty is that we are to give great deference

in these cases to the trial judge’s exercise of discretion.      “Trial courts have considerable

discretion in discovery matters and decisions will not be overturned unless there is an abuse

of discretion.”    Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 995 (Miss. 1999);

(quoting Robert v. Colson, 729 So.2d 1243, 1245 (Miss. 1999)).

¶6.     Allen argues on appeal, and argued at the trial court hearing on the matter, that his

conduct was not willful, but rather that he merely forgot about his earlier injury and workers’

compensation claim because this prior injury did not cause him much pain, did not cause him

a significant loss of work, and did not diminish his ability to earn an income. Allen claims that

the trial court abused its discretion in dismissing his lawsuit due to perceived discovery

violations, while, on the other hand, Amtrak argues that under Miss. R. Civ. P. 37 and the

court’s inherent power to control its own docket, the trial court did not abuse its discretion in

granting the motion to dismiss and that Allen’s due process argument is procedurally barred

because it was not raised in the trial court.

¶7.     In addressing the issue of whether he willfully and in bad faith violated the discovery

rules by not disclosing certain information, Allen does not argue that he actually disclosed all

requested information to Amtrak, nor does he argue that his 1993 injury did not occur. In fact,

Allen admits to the earlier injury and also to missing work and receiving worker’s



                                                4
compensation awards for the earlier injury.          Allen also admits that he failed to disclose any

information in his discovery responses pertaining to the earlier injury.          However, Allen argues

that the record does not establish that his omissions were willful.           Instead, Allen asserts that

he innocently forgot about the incident.         Because the trial judge dismissed his case with

prejudice based on findings of bad faith and willfulness, Allen argues essentially that the

punishment did not fit the crime and that other measures were available to the trial court to

deal with what it found to be discovery violations.        Amtrak argues that the trial court did not

abuse its discretion with regard to this issue because the testimony and discovery responses

from Allen were patently false and misleading and the result of willfulness and bad faith.

¶8.     This Court has adopted the Fifth Circuit’s four-part test for determining if a trial court,

in dismissing a case with prejudice under Rule 37, has abused its discretion.1

        First, dismissal is authorized only when the failure to comply with the court’s
        order results from wilfulness or bad faith, and not from the inability to comply.
        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.

Pierce, 688 So.2d at 1389 (quoting Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.

1985) (internal citations omitted)).    This Court found in Pierce that “the most severe sanctions

provided by statute or rule must be available to a trial court in appropriate cases, not just to


        1
         Rule 37(b) of the Federal Rules of Civil Procedure and Rule 37(b) of the Mississippi
Rules of Civil Procedure are virtually identical.

                                                     5
penalize those whose conduct may warrant such a sanction, but to deter those who might be

tempted to engage in such conduct in the absence of a deterrent.” Id. (relying on National

Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781,

49 L.Ed.2d 747 (1976)).

¶9.     In granting the motion to dismiss, the trial court in this case relied on the Batson

factors adopted by this Court in Pierce and found that all four factors had been satisfied and

that the omission was willful conduct which caused the defendant prejudice.                 We review this

four-part finding today looking only for an abuse of discretion by the trial judge.

¶10.    Each party’s version of the facts in this case naturally differs.             Amtrak argues that the

previous accident was significant and that Allen’s failure to disclose it was deceit.                  Allen

argues that the previous accident was not major and that he simply forgot about it during

discovery because it was so minor.            The information Amtrak obtained after the close of

discovery revealed that, as a result of the 1993 accident, Allen had suffered a similar injury in

the exact same spinal location (at vertebrae L4-L5 and at the L5-S1 joint) where his injury

giving rise to this suit occurred.     Allen was working as a police officer at the time and was

struck by a car while directing traffic.     Amtrak also learned that Allen had filed a claim with,

and received an award from, the Arkansas Workers’ Compensation Commission.                          Amtrak

discovered medical records proving that, in 2000, Allen told his family physician about the

1993 incident.    Amtrak pointed out that these medical records contradicted Allen’s claim that

the incident was insignificant because Allen told a doctor he quit the police force as a result



                                                     6
of the severity of the injury.        Amtrak also argues that Allen is unlikely to have forgotten

something as significant as this 1993 accident when he was able to remember other seemingly

smaller details about his work experience.         Allen claimed in an affidavit that the incident was

nothing more than a “minor traffic accident,” that he missed very little work, that any

discomfort subsided within a few weeks, and that he “honestly forgot” about the accident

during discovery because it was so insignificant. Allen also claimed that he did not recall filing

for workers’ compensation benefits in 1993 and that he left the police force shortly after the

accident.      Allen points out that about five weeks after the 1993 accident, he was released by

doctor who said he sustained no impairment.              Allen’s counsel admitted it was difficult to

explain Allen’s 2000 disclosure of the 1993 accident to his family physician.             Allen’s attorney,

however, characterized it as a credibility issue that should be preserved for the jury.

¶11.        During discovery, Allen had multiple opportunities to report the 1993 accident to

Amtrak, but never did.       In interrogatories numbered 6, 8, 11, and 14, Amtrak asked Allen to

disclose whether he had ever suffered a similar back injury, whether he had ever undergone

similar back treatment during his lifetime, whether he had ever filed a claim or lawsuit against

a former employer, and whether he had ever received workers’ compensation awards. In each

of his answers to these interrogatories, Allen failed to disclose the 1993 incident.            In request

number 5 of the request for production of documents, Amtrak specifically asked for all

documents pertaining to medical treatment of Allen’s back that had ever occurred in his

lifetime.     Allen responded by attaching medical records which excluded any documentation of

the 1993 incident.      When directly asked during his deposition, Allen denied ever having filed

                                                     7
a workers’ compensation claim, ever having been involved in a car accident with the exception

of an unrelated mid-1980s accident, and ever having received other medical treatment for his

back.

¶12.    Pierce involved a plaintiff suing for personal injury when a ceiling fan fell on her while

she was in bed. 688 So.2d at 1387. The plaintiff in that case repeatedly denied that anyone was

with her at the time of the injury, instead insisting that she was alone. Id. Her reason for lying

was that she did not want her parents to know that she had a male companion at her apartment

at the time of the accident. Id. at 1388. The trial court dismissed the case with prejudice, and

this Court affirmed, after finding that “the trial court’s sanction against Pierce was warranted

to protect the integrity of the judicial process due to Pierce’s abuse of the discovery process

and presentation of false testimony.”       Id. at 1387.   We found Pierce’s conduct of willfully

concealing the fact that another person was present at the time of the injury constituted bad

faith. Id. at 1390. We also held that there was no requirement of substantial prejudice to the

defense by the absence of evidence.         Id. at 1391.   Finding no abuse of discretion, this Court

affirmed the trial court’s dismissal. Id. at 1392.

¶13.    In Scoggins, we also affirmed a trial court’s dismissal under Rule 37, finding the

plaintiff to have repeatedly misrepresented her medical history which coincidentally involved

injury to the plaintiff’s lumbar spine. 743 So.2d at 995. The trial court recognized its duty to

impose the least severe sanction available and found no other sanction to be available that

would accomplish the intended purpose in that case. Id. at 993.          The plaintiff argued memory



                                                     8
loss in an effort to explain away her failure to give completely accurate responses to discovery

requests.     Id. at 995.    Relying on Pierce, this Court determined that the trial court did not

abuse its discretion in finding that the plaintiff’s failure to comply with discovery requests was

willful and that the plaintiff’s attempts to explain her misconduct were not credible or

supported by substantial evidence in the record. Id. at 996. Therefore, this Court affirmed the

dismissal by the trial court. Id.

¶14.    In Salts v. Gulf Nat. Life Ins. Co., 872 So.2d 667 (Miss. 2004), a plurality of this Court

relied on Pierce        and Scoggins finding that dismissal was warranted because of discovery

violations.     Equally divided, this Court affirmed the trial court’s dismissal of the case.   Id. at

675. The plurality found a plaintiff’s failure to comply with a court order to be willful conduct.

Id. at 674.       It further found that the defendants’ trial preparation was substantially prejudiced

and there was no error in the trial court’s decision to dismiss the action under Rule 37. Id. at

674.    “To hold otherwise would render . . . the rule meaningless and one which we should

simply judicially abrogate if it is not going to be enforced. A rule which is not enforced is no

rule at all.”     Id.   Even the dissenting opinion in Salts, disagreeing with the holding on the

particular facts in that case, acknowledged that the extreme sanction of dismissal with

prejudice was appropriate in Pierce and Scoggins because of misrepresentation of fact and the

presentation of false testimony. Id. at 675 (Dickinson, J., dissenting).

¶15.    This Court has reversed a trial court’s dismissal of a case for discovery violations

finding the dismissal to be an abuse of discretion.         White v. White, 509 So.2d 205 (Miss.


                                                     9
1987).    In White, the trial judge made no determination of willfulness or bad faith and this

Court was presented with no findings on the Pierce and Batson considerations. Id. at 208-09.

Additionally, other sanctions were available because the discovery offense in that case was a

failure to comply with discovery requests in a timely manner.          Id. at 209.     White illustrates

when dismissal is inappropriate,    but it is clearly factually distinguishable from the case at bar.

Here, the trial judge made findings of bad faith and willfulness and did so according to the

Batson/Pierce factors, and the sanctions were appropriate because of               misrepresentation of

fact and the presentation of false testimony, akin to our holdings in Pierce and Scoggins.

¶16.     In Wood v. Biloxi Public School District, 757 So.2d 190, 191 (Miss. 2000), we also

reversed a trial court’s dismissal for discovery violations, finding that the case was

distinguishable from Scoggins and Pierce, in that the lower court’s ruling was based upon “a

single alleged untruthful response in an interrogatory.”       In Wood, this Court determined that

it was not established, as it was in today’s case, that the plaintiff knowingly made a false

statement or that he submitted a pattern of false responses. Id. Going further, we found that,

other, more appropriate sanctions should have been considered by the trial court because of

the facts in that case. Id. at 191-92. Like White, Wood is not applicable to today’s facts and

we clearly distinguish Wood today just as the plurality did in Salts, 872 So.2d at 673-74. The

trial court in today’s case found that Allen knowingly made false statements when it

determined his actions were the result of willfulness and bad faith.         We are not faced today

with a single untruthful response, but repeated opportunities to disclose the earlier accident


                                                  10
and repeated failures to do so.        Looking at what specific details of his life Allen was able to

remember easily, coupled with the 2000 medical records proving Allen told his doctor about

the accident, the trial judge found that a pattern most definitely existed.         Without question,   on

today’s record the trial judge did not abuse his discretion in making his ruling.

¶17.    Allen attempts to distinguish Pierce and          Scoggins by pointing out that neither case is

governed by the FELA, and by attempting to factually distinguish those cases. Allen argues that

Pierce involved a plaintiff who knowingly and willfully perjured herself and that Scoggins

involved plain and obvious evidence of bad faith, both being consequently unlike his case.              In

Scoggins, where the plaintiff’s argument of memory loss was put forward as a defense,

comparable to Allen’s defense of forgetfulness here, we agreed with the trial court’s finding

that the plaintiff witness was not credible because she could remember details of other aspects

of her life and only had claimed a loss of memory concerning the medical history she failed

to disclose.   743 So.2d at 995.        Further, we reasoned that an invasive and painful procedure

involving the lumbar spine there, comparable to the lumbar injury here, would be difficult to

easily forget. Id.

¶18.    We find it to be unusual that Allen would have forgotten about a back injury which

occurred in the same place on his spine eight years earlier, which resulted in his missing work,

and for which he was awarded workers’ compensation benefits.                    Allen’s argument that an

accident occurring eight years earlier was far enough away in time to have been easily

forgotten weakens when we consider the undisputed fact that Allen told his family physician



                                                     11
about the 1993 incident in 2000, only one year before the injury giving rise to this litigation,

and seven years after the earlier injury occurred. Allen’s 2000 revelation to his family

physician about the 1993 accident was documented in a medical report which Allen failed to

produce in response to Amtrak’s discovery request.       Assuming arguendo that Allen innocently

forgot about his 1993 accident, this “innocent mistake” was compounded by his failure to

produce this medical report in discovery.     Allen also argues that the judge ignored certain

rebuttal evidence, namely Allen’s own affidavit. This one-page affidavit did nothing more than

state Allen’s defense that he innocently forgot about the earlier injury.   This affidavit, together

with the information Amtrak obtained after discovery, constituted the evidence the trial judge

had to review in making his ruling. We are not to sit in place of the trial judge in this case. We

are only to review the judgment of the court below for an abuse of discretion.       Reviewing the

record before us, we find that the trial court did not abuse its discretion in finding that a Rule

37 dismissal here was appropriate pursuant to Pierce and Batson. The trial court found that

Allen’s failure to disclose the 1993 incident resulted from willfulness or bad faith, and not

from the inability to comply.   Pierce, 688 So.2d at 1389.       The trial court found that the

deterrent value of Rule 37 could not be substantially achieved by the use of less drastic

sanctions here and that dismissal was thus proper.    Id.   Additionally, Amtrak’s preparation for

trial was substantially prejudiced, though substantial prejudice is not necessary under this test,

and there is no evidence to even suggest that there was any neglect plainly attributable to

Allen’s attorney, or grounded in Allen’s confusion or sincere misunderstanding of the court’s



                                                12
orders. Id. See also Amiker v. Drugs For Less, Inc., 796 So.2d 942, 951 (Miss. 2000);

Wood ex rel. Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190, 193 (Miss. 2000).

¶19.   We afford the trial judge considerable, though not unfettered, discretion in cases such

as the one before us today. In order to reverse the trial court today, this Court would have to

hold a definite and firm conviction that the trial court committed a clear error of judgment and

abuse of discretion in the conclusion it reached upon weighing each of the relevant factors set

out in Pierce.    This we cannot do.         The 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. We thus find this issue to be without merit.

       II.       FELA

¶20.   Allen’s second assignment of error is that the trial court should have allowed credibility

determinations to be made by the jury inasmuch as FELA states a preference for the fact-finder

to do so.    Allen asserts that because no evidence existed in the record to prove willfulness,

such as a signature on the workers’ compensation forms, the trial court’s determination was

simply one of credibility.   Allen’s position is that the trial court, in taking away the credibility

determination from the jury, deprived him of his right to a jury trial under FELA, which

encourages the protection of railroad workers through litigation.          Allen argues that the trial

judge had no evidence to support his determination that the actions were intentional or willful,

but rather only inferred it against Allen.     The debate that ensues between the two sides in this

case raises the query of when a procedural rule is essentially substantive because of its effect.

Allen also cites other authority, which we find to be marginally relevant today, for the

                                                   13
proposition that the evidentiary threshold is quite low for a FELA case to proceed to a jury.

This may be so, but this fact is simply not dispositive of the question before us today. The trial

judge did not consider the evidence to make a substantive determination of whether sufficient

evidence existed to present a jury question of causation, but rather the trial judge examined

evidence of Allen’s discovery violations to make a procedural determination whether his pre-

trial conduct was willful.     Finally, Allen states that depriving FELA plaintiffs of the benefit of

jury trials even in close or doubtful cases is to “take away a goodly portion of the relief . . .

Congress has afforded them” under the statute. Bailey v. Cent. Vt. Ry., 319 U.S. 350, 354, 63

S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943). This is also no doubt true, but does not describe the

case before us as we are not considering whether enough evidence was presented in a “close”

case for a jury to consider it, as we would, for example, in reviewing a trial court’s grant of a

directed verdict.   Although the harsh reality is that dismissal will forever deprive Allen of the

opportunity to seek relief for the 2001 accident which is the subject of today’s appeal, that is

precisely the deterrent effect of Rule 37 sanctions.

¶21.    In making its ruling, the trial court relied on the following holdings from Scoggins and

Pierce: “‘A trial is a proceeding designed to be a search for the truth.’ When a party attempts

to thwart such a search, the courts are obligated to ensure that such efforts are not only cut

short, but that the penalty will be sufficiently severe to dissuade others from following suit.”

Scoggins, 743 So.2d at 994-95 (quoting Sims v. ANR Freight System, Inc., 77 F.3d 846, 849

(5th Cir. 1996)). “The power to dismiss is inherent in any court of law or equity, being a means



                                                       14
necessary to orderly expedition of justice and the court’s control of its own docket.” Pierce,

688 So.2d at 1388 (citing Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1367 (Miss.

1990)).      Additionally, Rule 37 specifically allows for dismissal as a sanction in certain

circumstances.    Miss. R. Civ. P. 37.     Conceding that FELA does govern this claim, Amtrak

points out Allen’s failure to cite relevant authority for his propositions and argues that allowing

the jury to decide issues pertaining to procedure, discovery, abuse, and pre-trial misconduct,

would divest the trial court of its own inherent right to govern procedural matters.     With the

above discussion still in mind, we need not re-examine the sufficiency of the evidence of

Allen’s discovery violations.        Allen’s concerns under this second issue are not entirely

different from his concerns under the first issue discussed above, thus our disposition here is

the same. This Court has stated its concern with virtually allowing a plaintiff “to get away with

lying under oath without a meaningful penalty,” when that plaintiff has willfully failed to

comply with discovery requests. Pierce, 688 So.2d at 1391.

¶22.      Returning briefly to the substantive/procedural discussion raised in the briefs, this

Court has noted that when FELA cases are brought in state court, federal law governs the

substantive rights of the parties.   Illinois Cent. R.R. v. Gandy, 750 So.2d 527, 534 (Miss.

1999) (citing Southwestern Ry. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d

303 (1985) (FELA actions in state courts are subject to state procedural rules)).       The courts

of this State may properly utilize the Mississippi procedural rules in hearing federal law

claims, but look to the federal law at issue to adjudicate matters of substantive rights of the



                                                 15
parties. King v. Grand Casinos of Miss., Inc.-Gulfport, 697 So.2d 439, 442 (Miss. 1997) (a

maritime law claim).     The trial judge in this case did nothing more than apply Mississippi

procedural law to a dismissal under Rule 37.            That Allen’s substantive rights were affected

when his case was dismissed is without doubt, but such is the nature and purpose of sanctions

for discovery violations and hindering the discovery of truth in a lawsuit.     To do anything less

would not effectively dissuade others from doing the same. Again, the trial court did not abuse

its discretion in finding that a less harsh penalty would not achieve the same results.       As we

stated above, the trial judge in this case was not making a determination of Allen’s substantive

rights under his claim, but rather a procedural determination of whether his pre-trial conduct

was willful and warranted dismissal.        As we have previously stated, “[o]ur trial judges are

afforded considerable discretion in managing the pre-trial discovery process in their courts...”

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss. 2003). This proper

exercise of judicial discretion includes, in appropriate cases, the right to dismiss a case due

to discovery violations. Id. at 1042-43. For these reasons, we find this issue is without merit.

        III.    DUE PROCESS

¶23.    Finally, Allen asserts that the trial court’s failure to allow him to testify on his own

behalf at the hearing on the Rule 37 motion violated his due process rights. Allen characterizes

the trial court’s action as a refusal to allow him to be heard, or a denial of an opportunity to

testify in his own behalf, which equates to a violation of his due process rights. The record

reveals the following colloquy between Allen’s counsel and the trial court:



                                                   16
        I’m prepared to go forward with the argument. I’ve also brought Mr. Allen to the
        courtroom if Your Honor thinks that it might be worth it to have him on the
        stand to actually hear question and answer and to see for yourself Mr. Allen’s
        credibility.

        BY THE COURT: The Court on this issue really will base its decision on what
        is already before the Court.

In reality, Allen’s counsel merely informed the trial court that Allen was present to testify if

the court felt his live testimony would be helpful.          The trial court did not find it necessary to

hear from Allen in order to rule in the case. Once the trial court announced that it would not

hear from Allen by way of sworn testimony from the witness stand, neither Allen nor his

counsel raised a due process violation for the trial court to consider. Likewise, the order and

opinion from which this appeal was taken, as specified in the notice of appeal, did not address

this issue. See M.R.A.P. 3(c).           Failure to preserve this issue for appeal purposes renders this

issue procedurally barred.      Corey v. Skelton, 834 So.2d 681, 686 (Miss. 2003); Barnes v.

Singing River Hosp. Sys., 733 So.2d 199, 202 (Miss. 1999); Educational Placement Servs.

v. Wilson, 487 So.2d 1316, 1320 (Miss. 1986).                  Procedural bar notwithstanding, we will

nonetheless briefly discuss this issue on its merits.

¶24.    Allen cites various authorities for the proposition that due process demands that Allen

be afforded a hearing on the merits of his case. See Logan v. Zimmerman Brush Co., 455

U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982); Societe Internationale Pour

Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U.S. 197, 78 S. Ct. 1087,

2 L. Ed. 2d 1255 (1958); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S. Ct. 370,



                                                        17
53 L. Ed. 530 (1909); McDaniel v. Ritter, 556 So.2d 303 (Miss. 1989). However, Allen also

cites the Tenth Circuit for the rule that, “[b]ecause a default judgment is such a harsh sanction,

due process requires that ‘failure’ [to comply with court orders or to attend depositions and

serve answers to interrogatories] is a sufficient ground only when it is the result of

‘willfulness, bad faith, or [some] fault of petitioner’ rather than inability to comply.”   M.E.N.

Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir. 1987) (quoting Nat’l Hockey

League, 427 U.S. at 640). Amtrak argues that the due process clauses under the Fifth and

Fourteenth Amendments did not require the trial judge in this case to hear live testimony from

Allen. We agree. As already discussed, the trial court did in fact make a finding of willfulness

and also found that it was not an inability to comply which prevented Allen from complying

with discovery requests, but rather an act of bad faith.     Further, it is not clear from Allen’s

argument what exactly it was that the trial court refused to hear. There was no proffer that

Allen’s live testimony was going to differ from, or add substantially to, his affidavit or his

attorney’s argument on the motion to dismiss. As we have already concluded, Allen deprived

himself of a hearing on the merits by his discovery responses in this case.       Allowing him to

proceed would have completely diluted the intended effect of Rule 37.        All that due process

requires in cases of dismissal under Rule 37 is that the trial court make a finding of willfulness

or bad faith on the part of the party whose claims were adversely affected, which the trial court

in today’s case properly did. See Societe Internationale, 357 U.S. at 207-08. This issue is

without merit.



                                                18
                                             CONCLUSION

¶25.    The trial court in today’s case did not abuse its discretion in dismissing Craig Allen’s

case pursuant to Miss. R. Civ. P. 37(b), based on its finding that Allen willfully violated the

discovery rules by repeatedly failing to disclose his 1993 back injury and claim during the

discovery process.      Therefore, we affirm       the judgment of dismissal entered by the Circuit

Court for the First Judicial District of Hinds County.

¶26.    AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND EASLEY, JJ., DISSENT WITHOUT SEPARATE
WRITTEN OPINION.




                                                    19
