                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-CA-01660-SCT

CLEVELAND NURSING AND REHABILITATION,
LLC

v.

ESTATE OF ANNIE MAE GULLY, BY AND
THROUGH THE ADMINISTRATRIX, EVA
BELLMON

DATE OF JUDGMENT:                        11/01/2013
TRIAL JUDGE:                             HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:               BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 GEORGE CLANTON GUNN, IV
                                         BRADLEY WITHERSPOON SMITH
                                         ANDREA LA’VERNE FORD EDNEY
ATTORNEYS FOR APPELLEE:                  LEVI BOONE, III
                                         KELVIN CEDELL PULLEY
NATURE OF THE CASE:                      CIVIL - WRONGFUL DEATH
DISPOSITION:                             ON DIRECT APPEAL: AFFIRMED IN
                                         PART; REVERSED IN PART AND
                                         REMANDED.
                                         ON CROSS-APPEAL: AFFIRMED -
                                         10/20/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Cleveland Nursing and Rehabilitation Center, LLC, (“Cleveland”) filed a motion for

new trial alleging, inter alia, that the jury, which awarded the Estate of Annie Mae Gully

(hereinafter “Bellmon”) $1,000,000, had been allowed to hear undisclosed opinions from an
expert and improper closing argument from counsel for the estate. Because the trial court

committed reversible error, we reverse the judgment and remand this case for a new trial.

              STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.     While a resident at Cleveland, Annie Mae Gully fell and broke her hip. Following

complications from a surgical procedure to repair her hip, Gully died six days later.

Subsequently, suit was filed against Cleveland, alleging claims of negligence and gross

negligence.

¶3.     In the Supplemental Designation of Experts, Bellmon designated Karon Goldsmith,

RN, LNC, NHA, RMC, as an expert in the field of nursing and nursing home administration,

and Wayne Dotson, M.D., Gully’s treating physician. Dr. Dotson’s designation was that

Gully’s fall on December 22, 2008, was causally related to her left hip fracture. Goldsmith’s

designation opined that the following acts and omissions were breaches of the standard of

care:

        (a) Failure to assess the condition of ANNIE MAE GULLEY [sic];

        (b) Failure to properly monitor the condition of ANNIE MAE GULLEY [sic];

        (c) Failure to develop an adequate or appropriate care plan, relating to the
        condition of ANNIE MAE GULLEY [sic], deceased;

        (d) Failure to implement an appropriate care plan relating to ANNIE MAE
        GULLEY [sic];

        (e) Failure to prevent ANNIE MAE GULLEY [sic] from falling;

        (f) Failure to properly evaluate ANNIE MAE GULLEY [sic] so as to provide
        appropriate care regarding safety while ambulating;




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       (g) Failure to provide sufficient numbers of personnel, including nurses, nurse
       assistant, medication aides, orderlies, to meet the total needs of ANNIE MAE
       GULLEY [sic] [in] conjunction with the needs of other residents of the
       nursing home, depending on the proof of staffing at the relevant times;

       (h) Failure to provide and assure an adequate nursing care plan based on the
       needs of ANNIE MAE GULLEY [sic] at the time of her admission to the
       nursing home and upon her changing conditions;

       (i) Failure to provide and assure adequate nursing care plan revisions and
       modification as the needs of ANNIE MAE GULLEY [sic] changed;

       (j) Failure to implement and follow an adequate nursing care plan for ANNIE
       MAE GULLEY [sic];

       (k) Failure to take reasonable steps to prevent, eliminate and correct
       deficiencies and problems in patient care at the nursing home;

       (l) Failure to seek appropriate physician’s orders as the needs of ANNIE MAE
       GULLEY changed.

¶4.    Cleveland countered with Dr. William Marcus Meeks and Gaye Ragland, RNC,

MSN, both experts in nursing-home standard of care, who were expected to testify as to

Gully’s alleged injuries and the cause and/or contributing factors of those alleged injuries.

Dr. Meeks also was expected to testify that neither Cleveland nor its staff “caused or

contributed to the injuries and medical conditions allegedly suffered by [Gully] as claimed

by [Bellmon].” Dr. Meeks based his opinions on Gully’s death certificate, inter alia.

¶5.    Bellmon filed a motion to inspect the premises of Cleveland to specifically inspect and

photograph “the wheel chair, body alarm, and gait belt, and any other apparatus used

regarding the ambulation of Annie Gully.” In a supplemental motion to inspect, Bellmon

requested permission also to “inspect and photograph the alternative security devices

available to assist in ambulation of nursing home patients such as the lap buddy, seatbelt, soft

                                               3
torso restraint, and soft waist restraint.” Despite Cleveland’s objection that because nearly

five years had passed since Gully had been a resident of Cleveland, Cleveland did not have

the same equipment available for use by Gully, the motion was granted.

¶6.    At the hearing on Bellmon’s motions to inspect, the trial court noted that this matter

had been pending for three years and made it clear that experts would not be allowed to

testify beyond the opinions set forth in discovery, stating “they will not be giving any other

opinions that are not listed in that discovery. Zero. So you should know all the opinions that

they’re going to be giving. Because I won’t permit any other opinions to be given.” After

conferring to resolve discovery disputes, the parties agreed that they would not take any

depositions of expert witnesses, discovery need not be extended, and interrogatory responses

and designations would be supplemented to preserve their September 2013 trial date.

¶7.    Subsequently, Bellmon moved to exclude Cleveland’s experts pursuant to Daubert,1

arguing that Cleveland’s unsupplemented disclosures could not meet the Daubert test.

Cleveland averred that, because Bellmon did not supplement her interrogatory responses or

expert designations and the trial court ruled it could supplement only if Bellmon did,

Cleveland also did not supplement. The trial court held that all objections to Cleveland’s

experts were waived pursuant to the prior agreement between the parties.

¶8.    Then, Cleveland moved to exclude testimony regarding injuries from Gully’s two

previous falls. Prior to her December 22, 2008 fall, Gully slid out of a chair in February 2008

and then, on December 19, 2008, three days before the fall at issue in this case, tripped while

       1
        Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993).

                                              4
pushing a food cart. Cleveland argued that there were no documented injuries of those two

falls and that no expert had provided any opinions that Gully suffered injuries from those

falls. The trial court ruled that no evidence could be presented that the two prior falls

breached the standard of care. The trial court agreed that Bellmon would not be allowed to

argue a separate claim of damages or breach of care related to those falls but could elicit

testimony regarding the falls in the context of notice. Cleveland now argues that, during

closing arguments, counsel for Bellmon ran afoul of this ruling by arguing that the December

19, 2008, fall resulted from a breach of the standard of care. Cleveland objected to the

argument, but the trial court overruled the objection because counsel for Bellmon claimed

he was arguing “lack of monitoring.”

¶9.    Cleveland also argued that Bellmon’s expert disclosures did not sufficiently put

Cleveland on notice that Goldsmith would provide an expert opinion on restraints. The trial

court reserved its ruling on Cleveland’s motion, stating that, “But I can tell you, I have grave

concerns about allowing an expert to give an opinion that she should have been restrained

in a wheelchair when there’s no mention of restraint in her discovery responses.” However,

the next day, the trial court questioned Cleveland as to whether it could claim “surprise” to

Goldsmith’s opinion on restraints since Bellmon had filed a motion to inspect equipment at

Cleveland. Cleveland argued that the proper test was whether the expert had disclosed the

opinion, not surprise, and in this case, Cleveland argued that there was nothing in

Goldsmith’s disclosures pertaining to restraints. The trial court denied Cleveland’s motion

based on Bellmon having moved to inspect the facility.



                                               5
¶10.   At the close of evidence, the jury returned a verdict in favor of Bellmon, awarding

$1 million in noneconomic damages. Cleveland moved to have the jury’s verdict reduced to

$500,000 in accordance with Section 11-1-60 of the Mississippi Code. On November 5,

2013, the circuit clerk noted on the docket “Judgment sent to all parties.” The judgment was

filed-stamped on November 4, 2013, and reduced the award to $500,000. Cleveland filed a

motion for new trial or, alternatively, for judgment notwithstanding the verdict (JNOV). The

motion was filed-stamped November 18, 2013. Bellmon moved to strike the motion as

untimely.

¶11.   At a hearing on the timeliness of the motion, Cleveland submitted an affidavit from

an employee with its counsel’s law firm, attesting that the employee attempted numerous

times to ascertain from the clerk whether judgment had been entered. Pursuant to the

affidavit, counsel was informed by the clerk’s office as late as November 6, 2013, that no

judgment had been entered. Cleveland argued that it received a copy of the judgment on

November 14, 2013. Believing November 14, 2013, to be the deadline for filing a motion,

Cleveland emailed a copy of the motion to the staff attorney for the trial judge. The email

made no reference to the urgency of the matter. Cleveland overnighted the original motion

to the clerk; however, the clerk did not receive the motion until November 18, 2013.

¶12.   Cleveland argued that the motion was timely filed because (1) the motion was

delivered to the trial judge on November 14, 2013, pursuant to Rule 5(e)(1) of the

Mississippi Rules of Civil Procedure, (2) the judgment of the court was not entered pursuant

to Rule 79(a), and (3) the court had the authority to vacate the judgment pursuant to Rule



                                             6
60(b)(6). The trial court held that the general docket did not contain a notation specifically

evidencing the “entry” of the judgment by the court and therefore did not comply with the

language of Rule 79(a). The trial court found that no judgment had been entered on the

docket and that the time for filing the motion for new trial had not run. The trial court

instructed the clerk to enter the judgment properly on the docket and to serve a copy on all

counsel. Cleveland was instructed that it could file its motion for new trial pursuant to Rule

59 once the judgment was properly entered.

¶13.   On February 7, 2014, the judgment in favor of Bellmon was entered on the docket.

Cleveland filed its motion for new trial, which was denied by the trial court. Cleveland timely

filed this appeal, and Bellmon cross-appealed.

                             STATEMENT OF THE ISSUES

¶14.   Cleveland alleges the following issues on appeal:

       I.     Whether Cleveland is entitled to a new trial because the trial court
              admitted undisclosed testimony by Plaintiff’s nurse expert.

       II.    Whether Cleveland is entitled to a new trial because the trial court
              prohibited Cleveland’s physician expert from offering disclosed
              opinions to rebut cause-of-death opinions from Plaintiff’s physician
              expert.

       III.   Whether Cleveland is entitled to a new trial because Plaintiff’s counsel
              improperly argued that the jury could consider a prior fall -- which was
              not supported by expert testimony and excluded by the trial court -- as
              part of Plaintiff’s lack of monitoring claim.2




       2
         Because we find Cleveland’s first issue dispositive, we do not address this issue.
Nonetheless, the parties are cautioned on retrial to remain within the bounds of the trial
court’s rulings during closing arguments and at all other times.

                                              7
       IV.       Whether Cleveland is entitled to judgment notwithstanding the verdict
                 on Plaintiff’s claims because Plaintiff’s breach and causation opinions
                 were not supported by expert testimony.

On cross-appeal, Bellmon presents the following issues:

       I.        Whether the trial court erred in finding that the clerk’s November 5,
                 2013, docket entry that “JUDGMENT SENT TO ALL PARTIES” was
                 not a proper entry of the final judgment filed on November 4, 2013.

       II.       Whether the trial court erred in allowing Defendant to refile its Motion
                 for New Trial.

       III.      Whether the Defendant’s Notice of Appeal [should] be dismissed as
                 untimely.

       IV.       Whether the trial court erred in granting Defendant’s Motion to Reduce
                 the Verdict from $1,000,000 to $500,000.

       V.        Whether the trial court erred in granting summary judgment on
                 Plaintiff’s punitive damages before the jury had the opportunity to hear
                 all the evidence and award compensatory damages.

       VI.       Whether the trial court erred in granting Defendant’s Motion for Order
                 Staying Execution of Judgment.

                                           ANALYSIS

¶15.   “When considering a trial court’s denial of a motion for a new trial, this Court’s

standard of review is abuse of discretion.” Bailey Lumber & Supply Co. v. Robinson, 98 So.

3d 986, 991 (Miss. 2012). We will first address Bellmon’s cross-appeal regarding the issues

of the timeliness of the motion for new trial.3

I.     THE TRIAL COURT DID NOT ERR IN FINDING THAT THE CLERK’S
       NOVEMBER 5, 2013, DOCKET ENTRY DID NOT COMPLY WITH RULE
       79(A) AND DID NOT ERR IN ALLOWING CLEVELAND TO FILE ITS



       3
           We will address Cleveland’s first three issues raised in its cross-appeal collectively.

                                                 8
       MOTION FOR NEW TRIAL AFTER THE JUDGMENT WAS PROPERLY
       ENTERED.

¶16.   Rule 79 of the Mississippi Rules of Civil Procedure governs entries by the circuit

clerk in the general docket. See In re Dunn, 82 So. 3d 589, 591 (Miss. 2012). The rule

requires that:

       All papers filed with the clerk . . . and judgments shall be noted in this general
       docket on the page assigned to the action and shall be marked with its file
       number. These entries shall be brief but shall show the nature of each paper
       filed or writ issued and the substance of each order or judgment of the court.
       . . . The entry of an order or judgment shall show the date the entry is made.

Miss. R. Civ. P. 79(a). Moreover, “[a] judgment shall be effective only when entered as

provided in M.R.C.P. 79(a).” Miss. R. Civ. P. 58.

¶17.   The November 5, 2013, general docket entry reads “JUDGMENT SENT TO ALL

PARTIES.” No prior entry on the docket references any judgment being entered by the court,

and the November 5, 2013, entry fails to contain the substance of the judgment of the court.

Because the docket entry did not comply with Rule 79(a), the trial court did not abuse its

discretion in finding that no judgment had been properly entered. Also, the trial court did not

abuse its discretion in allowing Cleveland to file its motion for new trial after the entry of

judgment was properly recorded on the docket. As such, Cleveland’s notice of appeal was

timely. We will now address the first two issues raised in Bellmon’s appeal.

II.    THE TRIAL COURT ERRED IN ALLOWING GOLDSMITH TO TESTIFY
       REGARDING UNDISCLOSED RESTRAINT OPINIONS.

¶18.   Although the trial court found no mention of restraints in Goldsmith’s discovery

responses, the trial court allowed Goldsmith to testify as to restraints, finding that Cleveland



                                               9
had suffered no surprise due to the motion to inspect equipment filed by Bellmon. This ruling

is contrary to this Court’s precedent.

¶19.   In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), Hyundai

argued that it was entitled to a new trial because “it was ambushed by changes to Webb’s

opinion.” Hyundai, 53 So. 3d at 757. Hyundai deposed Webb, who gave a detailed

explanation of his calculations. Id. However, two months after the deposition, Webb signed

an errata sheet changing four variables that he had used to make his calculations. Id. Despite

these changes, Webb’s ultimate conclusions were not changed. Id. at 758. Hyundai moved

to strike Webb’s testimony, arguing that it never had received the errata sheet and that it was

surprised by the changes in Webb’s testimony. Id. After hearing extensive arguments on the

issue, the trial court denied Hyundai’s motion. Id.

¶20.   In Hyundai we held that whether Hyundai had notice of the changes per the errata

sheet was “unnecessary and irrelevant” because “simply giving the defendant this document

did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f).”

Id. “If a witness changes his testimony in a manner that conflicts with prior discovery

responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to

amend or supplement the response.” Id. (citing Choctaw Maid Farms, Inc. v. Hailey, 822

So. 2d 911, 916 (Miss. 2002)). Rule 26(f) reads in pertinent part that:

       (1) A party is under a duty seasonably to supplement that party’s response with
       respect to any question directly addressed to . . . . (B) the identity of each
       person expected to be called as an expert witness at trial, the subject matter on
       which the person is expected to testify, and the substance of the testimony.




                                              10
       (2) A party is under a duty seasonably to amend a prior response if that party
       obtains information upon the basis of which (A) the party knows that the
       response was incorrect when made, or (B) the party knows that the response,
       though correct when made, is no longer true and the circumstances are such
       that a failure to amend the response is in substance a knowing concealment.

Miss. R. Civ. P. 26.

¶21.   During the July 2, 2013, hearing, the trial court reminded both parties that experts

would not be allowed to testify as to any opinion not provided in discovery responses. The

parties conferred and agreed to supplement discovery; however, neither party took advantage

of the opportunity. Goldsmith’s disclosures address a multitude of claimed breaches;

however, the disclosures did not mention the lack or misuse of restraints as a proximate cause

of her injury and/or death.

¶22.   Despite Bellmon’s failure to comply with Rule 26(f), the trial court denied Cleveland

relief and allowed Goldsmith to testify about restraints. We find that the trial judge abused

his discretion in ruling that Bellmon’s motion to inspect the premises somehow cured

Bellmon’s failure to supplement Goldsmith’s opinions. Cleveland was entitled to full and

complete disclosure of Goldsmith’s expert testimony, and Bellmon’s motion to inspect the

premises was not a proper alternative or valid substitution for supplementing answers to

interrogatories. Accordingly, this issue warrants reversal and a remand for a new trial.

III.   THE TRIAL COURT DID NOT ERR IN PROHIBITING DR. MEEKS FROM
       TESTIFYING AS TO HIS OPINION OF THE CAUSE OF DEATH OF
       GULLY.

¶23.   Dr. Meeks disclosed that he would offer testimony as to the cause of Gully’s injuries.

He also disclosed that, in addition to Gully’s medical records, he reviewed her death



                                             11
certificate before formulating his opinions. After Dr. Meeks testified that he had reviewed

Gully’s death certificate, counsel for Cleveland attempted to show Dr. Meeks the death

certificate. Counsel for Bellmon requested a bench conference, and the following exchange

took place:

       BY THE COURT: . . . What do you want to ask him about it?

       BY MR. SMITH:        Ask him his opinion on her cause of death; the same
                            thing he asked Dr. Brock.

       BY MR. BOONE: That is not in his opinion, Your Honor.

       ...

       BY THE COURT: One, two, three or four? Four. “Cause and/or
                     contributing factor to alleged injuries that are the subject
                     of this litigation.” So I guess the question is does death
                     come under the auspices of injuries.

       BY MR. SMITH:        Injuries and damages are her death. The treating
                            physician gave that opinion and expert disclosure is not
                            a formal designation of the treating physician on the
                            cause of death opinion. In fact I didn’t know he was
                            going to do it. So he’s elicited that opinion from a doctor.
                            He’s looked at the death certificate –

       BY THE COURT: -- Well, if it wasn’t in the designation you could have
                     objected to it. . . . You chose not to. . . . Mr. Boone has
                     elected to object. . . . You know he could have said
                     “cause of death” in here as opposed to “injuries.”

       BY MR. SMITH:        Would it make any difference if I tell you what his
                            opinion is?

       BY THE COURT: Okay, what is his opinion?

       BY MR. SMITH:        His opinion is, from looking at all the records, he does
                            not have enough information to get to a reasonable
                            degree of medical certainty. . . . His opinion will be that

                                             12
                             he does not have enough information because there was
                             not an and [sic] a lack of other medical information to
                             give a cause of death opinion for Ms. Gully to a
                             reasonable degree of medical certainty.

       BY THE COURT: So his opinion is he doesn’t have one.

       ...

       BY MR. SMITH:         He didn’t have one because the medical records won’t
                             support one.

       BY MR. BOONE: It’s still a back way to get in -- that’s a back attack.

       BY THE COURT: Yeah, I agree. I don’t think it is disclosed. Not disclosed,
                     not giving it.

¶24.   Similar to Goldsmith’s lack of full disclosures, Dr. Meeks did not fully disclose his

opinion as to Gully’s cause of death in his designations. Therefore, the trial court properly

excluded Dr. Meeks’s testimony.

¶25.   Because we reverse the judgment of the circuit court and remand this case for a new

trial, it is unnecessary to address the remaining issues raised by the parties.

                                      CONCLUSION

¶26.   We find that the trial court did not err (1) in finding that a judgment was not properly

entered on the general court docket, (2) in allowing Cleveland to refile its motion for new

trial, or (3) in limiting Dr. Meeks’s testimony as to the cause of death of Annie Mae Gully.

However, the trial court did commit reversible error in allowing Goldsmith to offer

previously undisclosed opinions related to restraints. We reverse the judgment and remand

this case for a new trial consistent with this opinion.




                                              13
¶27. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED IN PART AND
REMANDED. ON CROSS-APPEAL: AFFIRMED.

   WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR.




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