IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-01736-SCT
DEMARIO FERGUSON, AND ALL HEIRS-AT-
LAW AND WRONGFUL DEATH BENEFICIARIES
OF TERRANCE V. SHELBY, EXCEPT FOR LISA
SHELBY AND LEWIS SHELBY
v.
THE UNIVERSITY OF MISSISSIPPI MEDICAL
CENTER, UNIVERSITY PHYSICIANS, PLLC AND
AMERICAN MEDICAL RESPONSE, INC.
DATE OF JUDGMENT: 08/16/2013
TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
TRIAL COURT ATTORNEYS: JAMES D. SHANNON
M. GARNER BERRY
CLIFFORD B. AMMONS
THOMAS R. JULIAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: BERNEY L. STRAUSS
ATTORNEYS FOR APPELLEES: CLIFFORD B. AMMONS
WALTER T. JOHNSON
CLIFFORD B. AMMONS, JR.
TOM JULIAN
WILTON V. BYARS, III
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 12/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1. Lewis and Lisa Shelby filed a medical-malpractice action on behalf of the wrongful-
death beneficiaries of their son, Terrance Shelby. Shortly before trial, the trial judge
dismissed the Shelbys for discovery violations, but he allowed Terrance’s brother, Demario
Ferguson, to be substituted as the new wrongful-death plaintiff. After being substituted in
the action, Ferguson admitted during his deposition that he previously had signed a false
affidavit while the trial court was considering appropriate sanctions for the Shelbys’ conduct.
The trial judge then dismissed the entire action. Ferguson appeals the dismissal to this Court,
and we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On September 13, 2008, American Medical Response, Inc. (“AMR”), transported
Terrance Shelby from his house to the University of Mississippi Medical Center (“UMMC”)
following a 911 call, in which Terrance complained of having no feeling in his legs. His
parents, Lewis and Lisa Shelby, followed the ambulance to the emergency room to meet their
son. After waiting for hours and receiving no medical treatment, the Shelbys left UMMC
and took Terrance to Baptist Medical Center (“Baptist”). Upon arrival at Baptist, the
emergency room staff members took Terrance’s blood pressure and provided him with
immediate treatment. But despite the Baptist staff’s efforts, Terrance died of kidney failure
two days later.
¶3. On January 4, 2010, the Shelbys filed suit on behalf of all heirs-at-law and wrongful-
death beneficiaries of Terrance Shelby against UMMC, alleging that its failure to treat
Terrance constituted medical negligence. The Shelbys filed a Second Amended Complaint
on August 19, 2010—adding AMR as a defendant—and alleged that the AMR emergency
2
medical technicians negligently failed to render treatment to Terrance during the transport
from his home to the UMMC emergency room.
¶4. The case was set for trial on August 1, 2011. But about three weeks before trial,
AMR1 filed a motion to dismiss for discovery violations, alleging that the Shelbys had made
misrepresentations about three different issues.
¶5. First, AMR alleged that the Shelbys had made misrepresentations concerning their
marriage. During her deposition, Lisa testified that she and Lewis had been married “for
about 28 years.” Lewis also testified that he and Lisa were married, but did not specify how
long ago the marriage had occurred. Following the depositions, when AMR requested the
Shelbys’ marriage license, the Shelbys responded that the license was lost in a house fire, but
that a copy could be obtained from the Hinds County clerk’s office. But AMR produced an
affidavit from a paralegal who performed a search of the marriage records and found no
record of the Shelbys’ marriage.
¶6. Second, AMR alleged that Lewis had misrepresented his identity, criminal arrests, and
convictions. During his deposition, Lewis testified that his only arrest or conviction in the
last twenty-five years was a sexual-battery conviction around 1992. But AMR attached to
its motion Lewis’s criminal history, which showed numerous additional arrests and
convictions. AMR also provided evidence that Lewis had used multiple aliases. Third,
AMR alleged that Lisa also had misrepresented her past criminal convictions. In her
1
For all relevant motions, UMMC filed a joinder to AMR’s motions. For purposes
of clarity, we refer to the defendants collectively as “AMR” going forward.
3
deposition, Lisa testified that her only arrest was for carrying a concealed weapon, but AMR
later discovered that Lisa also had pleaded guilty to two separate forgery charges.
¶7. Two weeks later, AMR filed a supplemental motion to dismiss for discovery
violations, alleging that Lisa also had lied about the existence of another biological son. Lisa
had testified as follows during her deposition:
Q. And tell me the names of your children.
A. Terrance Shelby, and I had another son, Alonzo Shelby, but he
passed right after birth.
...
Q. And other than . . . Terrance and Alonzo, those are the only children
you’ve ever had?
A. Yes.
Q. So Terrance would have no other siblings, brothers or –
A. No.
(Emphasis added.) But AMR later had discovered that Lisa had another biological son,
Demario Ferguson, which was confirmed upon examination of Ferguson’s birth certificate.
AMR alleged that the Shelbys had lied about Ferguson’s existence to avoid sharing proceeds
from the suit.
¶8. The Shelbys responded and argued that they did not commit perjury as to their
marriage, because they considered themselves married due to the length of their relationship,
even though they never had participated in a formal ceremony. They argued that Lisa was
not asked if she was “legally married,” and that if she had been, she would have responded
that she was not. They also argued that they did not commit perjury concerning their
criminal records, because any discrepancy in their criminal records could be traced to a lack
of memory, not willful intent to lie.
4
¶9. Finally, the Shelbys attempted to explain the allegations concerning Ferguson. They
argued that, although Lisa was Ferguson’s biological mother, the Department of Human
Services (“DHS”) took him away from her just months after birth. Ferguson later was
released into the custody of Lisa’s mother, Mable Dabney, with whom he had lived ever
since. The Shelbys argued that Ferguson always had believed that Mable was his biological
mother, and that Lisa was his aunt, rather than his mother. The Shelbys described the
situation as a “family secret.”
¶10. The Shelbys alleged that they finally had informed Ferguson of this “family secret”
around the time that AMR filed its supplemental motion to dismiss. The Shelbys filed an
affidavit signed by Ferguson a few days later, wherein Ferguson stated, in pertinent part:
2. Prior to last week, I knew Mable Dabney to be my biological mother
and believed Lisa Shelby to be an aunt.
3. Lisa Shelby called me last week and told me that she was in fact my
biological mother. This was the first time that anyone had revealed to
me that Mable Dabney was not my mother but my grandmother who
had raised me from birth.
4. I always had a close relationship with Terrance Shelby but did not know
until last week that he was my actual brother.
(Emphasis added.)
¶11. After a hearing, the trial judge entered an order granting AMR’s motion to dismiss.
After briefly describing the Shelbys’ misrepresentations, the trial judge stated, in pertinent
part:
The Court will not go into detail regarding discrepancies as such can be found
in the oral argument transcript taken July 22, 2011. Needless to say, the Court
has found plaintiffs have deliberately misled their own counsel, defense
counsel and the Court . . . . Turning to the issue of sanctions, the Court would
note, even if it could look past the marriage and criminal records issue, which
5
it does not, the Court cannot excuse Ms. Shelby denying the existence of her
biological son, a rightful wrongful death beneficiary . . . While the Court is
sympathetic to the underlying family issue, it is no excuse for lying to this
Court under oath. The Court has carefully considered precedent on this issue.
See Scoggins v. Ellzey Beverages, 743 So. 2d 990 (Miss. 1999); Pierce v.
Heritage Properties, 688 So. 2d 1385 (Miss. 1997). The Court is cognizan[t]
of the fact the Supreme Court has mandated it to impose the least restrictive
sanction that will accomplish the purpose for which it was imposed . . . . IT IS
THEREFORE ORDERED AND ADJUDGED, that Mr. and Ms. Shelby
should be and are hereby dismissed from this action as a sanction and are not
entitled to any recovery.
¶12. Also in his order, the trial judge stated that “dismissal of the Shelbys does not prevent
other wrongful death beneficiaries such as Demario Ferguson from seeking redress in this
action.” Following, on August 9, 2011, Plaintiffs’ counsel filed a motion to substitute
Ferguson as the representative party-plaintiff. AMR filed a response opposing the motion,
but the trial judge allowed Ferguson to be substituted as the named plaintiff on behalf of all
remaining beneficiaries.
¶13. After Ferguson’s entry as the named plaintiff, AMR filed another motion to dismiss
for discovery violations upon discovering that Ferguson also had committed perjury. AMR
attached to its motion Ferguson’s deposition, wherein Ferguson testified, in pertinent part:
Q. Who is your mother?
A. Lisa Shelby.
...
Q. Did you always know, growing up, that Lisa was your mom?
A. Yes, sir.
Q. And you always understood that Mable Dabney was your grandmother?
A. Yes, sir.
(Emphasis added.)
6
¶14. Defense counsel then asked Ferguson to review his prior affidavit, and he admitted
that his signature was on it but claimed that he had no specific recollection of it. Ferguson
testified further that the contents of the affidavit were false.2 He testified that he recalled
being asked to sign something around July 26, 2011, but that he was not sure if the affidavit
was what he was asked to sign, because “there was a bunch of paperwork. I recall there
being a bunch of paperwork, and I remember we went downtown and signed them, but I
don’t recall those statements.”
¶15. On August 16, 2013, the trial judge—applying the “same legal standard” as he did in
his order dismissing the Shelbys—entered a final judgment dismissing the case with
prejudice.3 And although the Shelbys’ conduct is relevant background information, the sole
issue on appeal is the trial judge’s dismissal of Ferguson’s complaint.
STANDARD OF REVIEW
¶16. “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.” Ashmore v. Miss.
Auth. on Educ. Television, 1484 So. 3d 977, 981 (Miss. 2014) (citing Pierce v. Heritage
Props., Inc., 688 So. 2d 1385, 1388 (Miss. 1997)). Moreover, “[t]he power to dismiss is
inherent in any court of law or equity, being a means necessary to orderly expedition of
2
Mable Dabney also testified in her deposition that the Shelbys’ “family secret” never
existed and that Ferguson always knew that Lisa was his biological mother.
3
In his order dismissing the Shelbys, the trial judge noted specifically that he was
“cognizan[t] of the fact the Supreme Court has mandated [him] to impose the least restrictive
sanction that will accomplish the purpose for which it was imposed.”
7
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)).
¶17. “[I]f the trial court applies the ‘correct legal standard,’ we must affirm the decision,
regardless of what any 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 error.’” Id.
(citing City of Jackson v. Rhaly, 95 So. 3d 602, 607 (Miss. 2012)). Stated differently, “the
Court should engage in ‘measured restraint in conducting appellate review’ and should not
decide whether it would have dismissed the original action but whether the dismissal
amounted to clear error.” Kinzie v. Belk Dep’t Stores, L.P., 164 So. 3d 974, 977 (Miss.
2015) (citing Ashmore, 148 So. 3d at 982).
ANALYSIS
¶18. This Court consistently has held 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 (citing Hapgood v. Biloxi Reg’l Med. Ctr., 540 So. 2d 630, 634 (Miss.
1989), and White v. White, 509 So. 2d 205, 209 (Miss. 1987)) (emphasis added). But we
find that the trial judge’s dismissal here was warranted.
¶19. This Court upheld a trial judge’s dismissal for discovery violations in Pierce v.
Heritage Properties, Inc. The plaintiff there, Pierce, sued multiple defendants alleging
numerous causes of action after a ceiling fan fell and hit her on the head. Pierce, 688 So. 2d
at 1387. Throughout discovery, Pierce represented that there were no witnesses to the
accident. Id. But the defendants later learned that Pierce was not alone at the time of the
8
accident and that there was a witness. Id. The trial judge determined that Pierce’s
presentation of false testimony under oath throughout the discovery process was sufficient
to justify dismissal of the case. Id. On appeal, this Court affirmed the dismissal “to protect
the integrity of the judicial process.” Id.
¶20. Recently, this Court again upheld a dismissal for discovery violations in Ashmore v.
Mississippi Authority on Educational Television. There, the Ashmores suffered injuries in
a motorcycle accident with a vehicle driven by an employee of the Mississippi Authority of
Educational Television. Ashmore, 148 So. 3d at 979. But the trial judge dismissed the
Ashmores’ personal-injury case after learning that they had, in sworn testimony, intentionally
misrepresented facts concerning prior medical history and the nature and extent of their
injuries sustained in the accident, describing the plaintiffs’ conduct as a “deliberate attempt
to subvert the judicial process.” Id. at 980.
¶21. In upholding the Ashmores’ dismissal, this Court considered the four Pierce factors,
which are: (1) whether the discovery violations were the result of willfulness or bad faith;
(2) whether the deterrent value may be achieved by lesser sanctions; (3) whether the wronged
party has suffered prejudice as a result of the discovery violation;4 and (4) whether the abuse
is attributable solely to trial counsel instead of a blameless client. Id. at 981. We ultimately
determined that the trial judge did not abuse his discretion by dismissing the Ashmores’ case,
4
While this consideration is relevant, the Pierce court held that “there is no
requirement that the defendant be substantially prejudiced . . . .” Pierce 688 So. 2d at 1391
(emphasis added); see also Allen v. Nat’l R.R. Passenger Corp., 934 So. 2d 1006, 1013
(Miss. 2006) (“substantial prejudice is not necessary under this test”).
9
as the plaintiffs intentionally had misrepresented facts, and no less drastic sanctions would
have had a sufficient deterrent effect. Id. at 986-987.
¶22. With this precedent in mind, we find first here that the trial judge did not abuse his
discretion when he found a discovery violation.5 Ferguson admitted that the affidavit he had
signed was false. Ferguson’s argument that his actions were “unknowing” and “without
malice” because he merely signed some paperwork placed in front of him is unconvincing.
Indeed, the filing of a false affidavit is perjury and punishable under both state and federal
law. See Miss. Code Ann. § 97-9-19 (Rev. 2014); 18 U.S.C.A. §1621. Our statute does not
contain an exception for when one simply fails to take the time to read the affidavit before
signing it. And it is well-settled that a party cannot avoid the consequences of a signed legal
document by claiming he did not read it. See, e.g., MS Credit Ctr., Inc. v. Horton, 926 So.
2d 167, 177 (Miss. 2006).
¶23. We find also that the trial judge did not abuse his discretion by dismissing the case.
An application of the Pierce factors supports this position. First, there is substantial evidence
that Ferguson misled the trial court, and we cannot fault the trial judge for finding that
Ferguson’s conduct was willful and/or in bad faith. Ferguson was in no way required to sign
the fraudulent affidavit. He does not argue that he was not given an opportunity to read it
before signing, nor does he argue that he was coerced in any way. Moreover, at the time he
5
As mentioned previously, in the order dismissing Ferguson’s case with prejudice,
the trial judge stated that his decision was based on the same legal standard applied in the
dismissal of the Shelbys’ case, where he carefully considered precedent on the issue,
specifically Pierce and Scoggins v. Ellzey Beverages, 743 So. 2d 990 (Miss. 1999).
10
signed the affidavit, he stood to gain because the case likely would have been dismissed
altogether if the Shelbys were dismissed,6 leaving Ferguson with no opportunity to recover.
¶24. As for the second Pierce factor, it is clear the trial judge recognized that he was
required to impose the least restrictive sanction. In his order, the judge explicitly provided
that he had considered other alternatives, such as imposing fees or reducing the verdict.
Ultimately, the trial judge determined that dismissal was the least restrictive sanction
considering the conduct at issue, and we cannot say that he abused his discretion in doing so,
especially in light of the plaintiffs’ respective conduct in this case.
¶25. Third, we note that both UMMC and AMR have been prejudiced by the delay caused
by both the Shelbys’ and Ferguson’s misrepresentations. The trial initially was set for
August 2011, and the order dismissing the entire action was not entered until August 2013.
This delay was in no way caused by UMMC or AMR; rather, they have incurred additional
expenses by being forced repeatedly to bring the plaintiffs’ misrepresentations to the
attention of the trial court. In short, both the Shelbys’ and Ferguson’s conduct have caused
substantial delay and additional costs in the disposition of this matter.
¶26. Finally, the trial judge found that the Shelbys’ counsel was not to blame, and he
implicitly found the same as to Ferguson when he dismissed the case with prejudice based
on “the same legal standard.” Also, Ferguson stated in his response to AMR’s motion to
dismiss that he did “not accuse the Shelbys’ past counsel, Garner Berry, or anyone else who
may have drafted the affidavit with any wrongdoing.”
6
At the hearing on AMR’s third motion to dismiss, the trial judge stated that “[q]uite
honestly, but for that affidavit nobody would be here today.”
11
¶27. This Court recently analyzed another discovery-violation case in Kinzie v. Belk
Department Stores, 164 So. 3d 974 (Miss. 2015). The plaintiff there, Kinzie, injured his
back while unloading a truck on the job. Id. at 975. Kinzie filed suit against Belk, alleging
that his injury resulted from Belk’s negligent loading of the truck trailer. Id. When
responding to an interrogatory, Kinzie described his injuries as follows:
As a result of the injuries sustained in this accident, I have the following
limitations: not able to cut grass or take care of the lawn, unable to perform
house cleaning, not able to drive but for very short periods of time, unable to
stand or walk for long period(s) of time, cannot lift or carry objects or even
groceries, difficulty engaging in usual sexual activities, unable to play and hold
grandchildren, and other activities as before the incident.
Id. at 976.
¶28. The defendants hired an investigator to perform surveillance of Kinzie and provided
twenty-five minutes of edited video footage excerpts at trial. Id. The excerpts revealed
footage of Kinzie driving and walking to the post office and his attorney’s office and
working on a shed in his backyard. Id. In response to allegations of discovery violations,
Kinzie argued that he did not violate any of his physicians’ orders. Id. Based on the
evidence, the trial judge dismissed Kinzie’s case with prejudice, determining that Kinzie had
committed a discovery violation. Id. at 977.
¶29. On appeal, this Court held that, although Kinzie had committed a discovery violation,
his conduct did not warrant dismissal, specifically providing that “although the trial court
found Kinzie’s response to be false, the perceived falsehood arose in an isolated incident, and
it certainly has not been established that Kinzie’s statements in discovery indicate any kind
of pattern of misleading or false responses.” Id. at 979 (emphasis in original). This Court
12
also found persuasive that there was no “total lack of congruence” between Kinzie’s
interrogatory response and the truth. Id.
¶30. Ferguson’s case warrants different treatment. Unlike Kinzie, a “total lack of
congruence” exists between the substance of Ferguson’s affidavit and his deposition
testimony. And Ferguson’s false affidavit was submitted at a time when Ferguson believed
it would help his chance of success, but he abandoned it once it was clear that it could no
longer help him. Ferguson’s conduct also was a part of a larger pattern of
misrepresentations that he continued after the Shelbys were dismissed from the action. In
short, Ferguson’s conduct is much more analogous to the conduct in Pierce, where the
plaintiff intentionally misled the court.
¶31. “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.” Ashmore, 148 So. 3d at 982.
Based on the evidence and an application of the Pierce factors, we find that the trial judge
did not abuse his discretion by dismissing the case for discovery violations.
CONCLUSION
¶32. The trial judge did not abuse his discretion by dismissing this action for discovery
violations. As such, we affirm the judgment of the Hinds County Circuit Court.
¶33. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., PIERCE AND
COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J.
13
KITCHENS, JUSTICE, DISSENTING:
¶34. Because the trial court failed to consider sanctions less than dismissal with prejudice,
I respectfully dissent.
¶35. “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. . . .” Ashmore v.
Miss. Auth. on Educ. Television, 148 So. 3d 977, 981 (Miss. 2014). “[I]f 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 error.’” Id. at 982 (quoting City of Jackson
v. Rhaly, 95 So. 3d 602, 607 (Miss. 2012)).
¶36. A“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) (emphasis added). This Court has reversed a trial court’s dismissal
based on Rule of Civil Procedure 41(b) when the trial court failed to consider lesser
sanctions, including “fines, costs, or damages against plaintiff or his counsel, attorney
disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit
warnings.” Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So. 2d 178, 182 (Miss. 1998)
(quotation omitted).
¶37. In this case, Lewis and Lisa Shelby committed serious discovery violations, including,
inter alia, lying about being legally married, attempting to subvert attempts to identify
Terrance Shelby’s potential heirs, particularly by denying the existence of Demario Ferguson
14
and other children, and lying about their criminal records. But even though the Shelbys’
misbehavior may have warranted dismissal with prejudice, the same punishment is not
necessarily appropriate for Ferguson. The only inconsistency in Ferguson’s testimony is
related to when he learned that Lisa Shelby was his biological mother. At the request of the
Shelbys and their attorney and before the Shelbys were dismissed from the lawsuit with
prejudice, Ferguson allegedly signed an affidavit stating that he just recently had learned that
Lisa Shelby was his biological mother and that his biological parentage was a family secret.
When confronted with the affidavit during a deposition, Ferguson said that he had not read
the affidavit previously and would not have signed it because he always had known that Lisa
Shelby was his biological mother. He also said that he was listed as one of Terrance Shelby’s
brothers in Terrance’s funeral program. However, regardless of the circumstances under
which the affidavit in question was executed, the question of when Ferguson learned that
Lisa Shelby was his biological mother was not pertinent to resolving whether he has a valid
wrongful death claim against University of Mississippi Medical Center and AMR or to
establishing whether he is a statutory wrongful death beneficiary. To conflate Ferguson’s
claims and Ferguson’s alleged untruths outside the context of the Shelbys’ continued fraud
on the trial court is plain error, especially because the affidavit allegedly was executed during
a time when the trial court found that the Shelbys were trying to conceal the existence of
potential wrongful death beneficiaries fraudulently.
¶38. The trial court did not apply the correct standard in dismissing Ferguson’s wrongful
death case for discovery violations. The trial court found, with regard to Ferguson, that:
15
THIS CAUSE came on for hearing on the supplemental motion of the
defendants to dismiss this action with prejudice due to Plaintiff’s discovery
violations. The Court previously dismissed Lisa and Lewis Shelby with
prejudice by Order dated July 27, 2011, due to their repeated material
misrepresentations under oath. Applying the same legal standard set forth in
that July 27, 2011 Order, and after considering the briefs and hearing oral
argument, this Court finds that Defendants’ Supplemental Motion to Dismiss
is well taken and should be granted.
In other words, with regard to Ferguson, the trial court specifically failed to consider “fines,
costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional
dismissal, dismissal without prejudice, and explicit warnings” and therefore erred. Am. Tel.
& Tel. Co., 720 So. 2d at 182.
¶39. With regard to Ferguson’s wrongful death claims, the trial court erred by failing to
consider sanctions less than dismissal with prejudice. I respectfully dissent.
KING, J., JOINS THIS OPINION.
16