Ford v. Johnson

750 So. 2d 546, 1999 WL 761189
CourtCourt of Appeals of Mississippi
DecidedSeptember 28, 1999
Docket97-CA-00604-COA
StatusPublished
Cited by4 cases

This text of 750 So. 2d 546 (Ford v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Johnson, 750 So. 2d 546, 1999 WL 761189 (Mich. Ct. App. 1999).

Opinion

750 So.2d 546 (1999)

Lonnie A. FORD, III, Appellant,
v.
Mollie B. JOHNSON, Appellee.

No. 97-CA-00604-COA.

Court of Appeals of Mississippi.

September 28, 1999.

Walter C. Morrison, IV, Jackson, Attorney for Appellant.

John S. Holmes, Yazoo City, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., DIAZ, AND MOORE, JJ.

*547 MOORE, J., for the Court:

¶ 1. Appellee Mollie B. Johnson initiated this personal injury action in the Circuit Court of Yazoo County, alleging that she sustained injuries in a car accident resulting from Appellant Lonnie Ford's negligence. Pursuant to a peremptory instruction from the court as to liability, the jury awarded Johnson damages in the amount of $35,000.

¶ 2. Ford appeals, asserting that the trial court abused its discretion by allowing Johnson's doctor to testify that Johnson suffered permanent injury. Finding no merit to this claim, we affirm.

FACTS

¶ 3. On May 1, 1995, Johnson was driving her 1984 Chrysler New Yorker in Yazoo City. As she prepared to turn left into Stricks Convenience Store, Johnson stopped to wait for oncoming vehicles to pass. Ford, driving his white van, hit Johnson's car from behind. Although Johnson stated immediately after the accident that she did not need to go to the hospital, soreness developed in her neck and upper back over the next few days.

¶ 4. Two days after the accident, Johnson sought medical treatment from her regular doctor, Dr. William P. Thompson, who diagnosed a thoracic cervical sprain and prescribed medication. The next day, Johnson had an X-ray performed at King's Daughter's Hospital, but received no medical opinion as to her condition. Johnson subsequently sought treatment from Dr. Charles R. Hogue, who viewed X-rays, diagnosed a thoracic cervical sprain, and prescribed heat therapy. Johnson remained on the medication prescribed by Dr. Thompson and received seven heat therapy treatments between May 9 and May 25, 1995. She did not see Dr. Hogue again for the subject injuries until August 12, 1996, three days before trial.

TRIAL

¶ 5. During opening statements, plaintiff's counsel predicted that Dr. Hogue would testify that the Johnson had sustained permanent injury as a result of the collision.

¶ 6. Mollie Johnson and her husband, Clarence Johnson, testified about the incident, detailed her medical treatment and injuries, and described the progression of her injury and the ensuing back pain, neck pain, headaches, and sleeplessness. Officer David Lloyd recalled the scene of the accident and testified that Johnson complained of pain, advised him that she did not need an ambulance, and said she "would probably go to the hospital to get checked out."

¶ 7. During the trial and prior to Dr. Hogue's testimony, the defense objected to any testimony from Dr. Hogue as to the permanency of the Johnson's injuries, asserting that his opinion of permanent injury had not been disclosed to the defense prior to trial. The court overruled the objection, and Dr. Hogue testified that X-rays showed no injury to the bones in Johnson's neck and back, but he also noted that Johnson exhibited limited motion of the neck when she initially sought treatment from him. He established that all of Johnson's symptoms were compatible with the diagnosis of severe cervical and upper back sprain. When asked on direct examination whether Johnson's condition had become static, Dr. Hogue offered the following response:

Well, based on the nature of her injury, based on the symptoms and what signs that she exhibited afterwards and also based on my experience in dealing with this type of injury, I would say that she does have and most likely will have, continue to have problems with this. She may be at a plateau of—as your word is, "static" at the present time, but certainly there is a good probability that she has permanent damage as a result of this.

¶ 8. Dr. Hogue described the anatomy of the neck and how it can be damaged. After he thoroughly explained this physical *548 structure, the defense objected, averring that Dr. Hogue's testimony about the neck structure went far beyond the information disclosed in discovery. The objection was overruled, and Dr. Hogue interpreted an X-ray illustrating the anatomy of an average neck and head. When the X-ray was offered into evidence, the defense renewed its objection, and the court overruled it. As Dr. Hogue discussed how easily the neck is subjected to injury, he differentiated Johnson's case from common neck pain on the basis that Johnson's pain persisted instead of subsiding within a week.

¶ 9. After the plaintiff rested, Ford's request for directed verdict was denied. Over Ford's objection, the court allowed Johnson to reopen her case, admitting the medical bills into evidence. Without presenting any witnesses, the defense rested, and the court considered jury instructions offered by both parties, including a peremptory instruction to find Ford liable for negligence. Following closing statements and deliberation, the jury returned a unanimous verdict requiring Ford to pay $35,000 in damages.

ANALYSIS

¶ 10. Ford contends that Dr. Hogue's testimony as to the permanency of Johnson's injury should have been excluded because Johnson failed to answer interrogatories completely and to seasonably supplement responses as required by Mississippi Rule of Civil Procedure 26(f)[1]. Ford claims that the admission of the testimony constitutes an abuse of discretion by the circuit court and that it resulted in an "ambush" at trial. The applicable standard of review provides that evidentiary rulings rest within the trial judge's broad discretion and will not be reversed on appeal absent an abuse of that discretion. Sumrall v. Mississippi Power Co., 693 So.2d 359, 365 (Miss.1997). Furthermore, the issue of whether to prohibit the introduction of certain evidence as a sanction for violating discovery rules rests within the sound discretion of the trial court. M & M Pipe and Pressure Vessel Fabricators, Inc. v. Roberts, 531 So.2d 615, 620 (Miss.1988).

¶ 11. Pursuant to Ford's objection on the grounds of inadequate supplementation, the parties discussed the interrogatories, responses, and documentation. Without specifically addressing the question of whether the discovery documents disclosed the allegation of permanent injury, the court established that the plaintiff did not have any more information or reports from Dr. Hogue than the defense had been given. Finding that Johnson did not improperly fail to supplement her discovery responses, the court overruled Ford's objection as to that issue.

¶ 12. On appeal, Ford again contends that Johnson subjected him to "trial by ambush" by refraining from indicating that Dr. Hogue would testify about permanent injury. Thus, we examine the interrogatories in question. Ford filed his first set of interrogatories and requests for production of documents on October 3, 1995, and Johnson filed her responses on March 8, 1996. For the purpose of this appeal, only Interrogatories No. 8, No. 22, and No. 23 are relevant.

INTERROGATORY NO. 8: Identify each and every expert who has been consulted or retained relative to the *549 cause of action as alleged and identify the subject matter upon which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

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Cite This Page — Counsel Stack

Bluebook (online)
750 So. 2d 546, 1999 WL 761189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-johnson-missctapp-1999.