Keith Bowdry v. T. Mart, Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-01603-COA

KEITH BOWDRY, LAKEISHA BOWDRY AND APPELLANTS
MISSISSIPPI MUNICIPAL WORKERS’ COMP
GROUP

v.

T. MART, INC. D/B/A T. MART CONVENIENCE APPELLEES
STORE AND TOMMY BROOKS OIL COMPANY
D/B/A TEXACO GAS STATION

DATE OF JUDGMENT: 09/26/2016
TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: EDWARD BLACKMON
BRADFORD JEROME BLACKMON
MARCUS AMIR WILLIAMS
SHEA SCOTT
ATTORNEYS FOR APPELLEES: WILLIAM G. ARMISTEAD
JOHN D. BRADY
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED: 03/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

GRIFFIS, P.J., FOR THE COURT:

¶1. Lakeisha and Keith Bowdry appeal the circuit court’s dismissal of their negligence

claims based on discovery violations. This case considers whether the dismissal was

appropriate under Mississippi Rule of Civil Procedure 37 and Pierce v. Heritage Properties,

Inc., 688 So. 2d 1385 (Miss. 1997). We find reversible error and remand for further

proceedings.
 FACTS

¶2. On April 15, 2011, Keith was on duty as a Tupelo police officer. He was pulling out

of a Texaco gas station when his vehicle collided with another vehicle traveling on South

Gloster Street in Tupelo, Mississippi. As a result of the accident, Keith was taken to North

Mississippi Medical Center where he was treated for complaints of pain in his head, neck,

left knee, and lower back.

¶3. Keith and his wife Lakeisha filed a complaint against T. Mart Inc. and Tommy Brooks

Oil Company (collectively “T. Mart”), the owners of the Texaco gas station. The complaint

alleged that the shrubbery on T. Mart’s property negligently inhibited the sight line of an

exiting vehicle. Keith sought to recover damages from the accident, and Lakeisha sought

damages for loss of consortium.

¶4. Keith was served with interrogatories related to his prior medical history and

treatment. He was asked whether he ever had been involved in any other accident or incident

or if he had any illness or sickness of any kind of any type or severity that required or

resulted in him being seen or treated by any medical professional. In response, Keith

disclosed a motor-vehicle accident that occurred on August 25, 2005, in a Tupelo Walmart

parking lot. Keith’s response did not provide information as to any injuries that resulted

from the accident. But, the response stated that Keith saw two separate medical providers

and a physical therapist following the incident.

¶5. Keith later was deposed by T. Mart. Keith was asked whether he ever had

experienced prior neck problems, and he responded that he had not. Keith also was asked

2
about lower-back issues, and he responded—“[n]ot lower back.” After the deposition, T.

Mart obtained Keith’s prior medical records. The records revealed that he had received

medical treatment for his neck and lower back after the 2005 accident.

¶6. T. Mart believed Keith’s discovery responses were false. T. Mart then filed a motion

to dismiss the complaint pursuant to Rule 37(b)(2) and 37(e). After a hearing, the trial court

granted the motion to dismiss with prejudice. The trial court concluded that, under the

circumstances, no sanction less than dismissal would be appropriate to satisfy the deterrent

value of Rule 37. Also, because Lakeisha’s claim was derivative in nature, it too was

dismissed with prejudice.

STANDARD OF REVIEW

¶7. “A trial court’s dismissal of a cause of action as a sanction for discovery abuse is

reviewed for abuse of discretion.” Avare v. Gulfside Casino P’ship, 178 So. 3d 796, 798 (¶4)

(Miss. Ct. App. 2013). “When [an appellate court] reviews a decision that is within the trial

court’s discretion, it first asks if the court below applied the correct legal standard.” Pierce,

688 So. 2d at 1388. “If the trial court applied the right standard, then [the c]ourt considers

whether the decision was one of several reasonable ones [that] could have been made.” Id.

Thus, “[a]n appellate court will affirm a trial court’s dismissal of a cause of action as a

sanction ‘unless there is a definite and firm conviction that the trial court committed a clear

error of judgment in the conclusion it reached upon weighing of relevant factors.’” Avare,

178 So. 3d at 798 (¶4) (quoting Pierce, 688 So. 2d at 1388). “We will, however, review

issues of law de novo.” Id.

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¶8. “We recognize that the exercise of dismissal power should be limited to ‘the most

extreme circumstances.’” Id. (quoting Gilbert v. Wal-Mart Stores Inc., 749 So. 2d 361, 364

(¶6) (Miss. Ct. App. 1999)). We further recognize that “[an appellate c]ourt’s duty is to

decide not whether it would have dismissed the action as an original matter, but whether the

[trial] court abused its discretion in so doing.” Pierce, 688 So. 2d at 1388-89.

ANALYSIS

¶9. The question here is whether the circuit court committed reversible error in the

decision to dismiss the Bowdrys’ complaint under Rule 37 and Pierce.

¶10. In Pierce, the plaintiff was injured when a ceiling fan in her apartment fell onto her.

Id. at 1387. During discovery and at trial, she concealed the fact that another person had

been present in the room when the ceiling fan fell. Id. at 1387-88. On numerous occasions,

through extensive discovery, and in response to interrogation at the first trial, she maintained

that she had been alone when the accident occurred. Id. at 1387. After a new trial was

granted for other reasons, it was discovered that she had lied. Id. at 1388. The circuit court

found that such a blatant lie was a reason to dismiss her case, even though there was no

prejudice to the defendants. Id.

¶11. The supreme court’s analysis in Pierce provides us with the framework we must

consider in this appeal:

Pierce contends that the circuit court erred and abused its discretion by
imposing the sanction of dismissal with prejudice, thereby barring her from
any recovery for injuries caused when the ceiling fan fell on her. Specifically,
the appellant argues that the trial court misapplied Mississippi Rule of Civil
Procedure 37(b)(2) by imposing the “death penalty” and dismissing her
lawsuit.

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 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.

Pierce, 688 So. 2d at 1388 (internal citations and quotation marks omitted). It is very

important to note the supreme court’s express word of caution and admonition:

“Nevertheless, the trial court should dismiss a cause of action for failure to comply with

discovery only under the most extreme circumstances.” Id. (emphasis added).

¶12. In his response to interrogatories, Keith provided the following information:

INTERROGATORY NUMBER 9: Before or after the date of the occurrence
[that] is the subject of this action, had you ever been involved in any other
accident or incident or had any illness or sickness of any kind and of any type
or severity [that] required you to be seen or resulted in your being seen or
treated by any doctor, hospital[,] or other medical provider? If so, please state
in detail the following:

(a) The date and place of the accident, incident, illness[,] or
sickness;

(b) A description of the accident, incident, illness[,] or sickness;

(c) Names, addresses[,] and phone numbers of witnesses to the
accident, incident, illness[,] or sickness;

(d) The name of the defendant (or person or entity against whom
you made your claim), if lawsuit, action[,] or claim was made on
your behalf;

(e) The court or other tribunal where any action or claim was
filed, together with any identifying action number;

(f) The names, addresses[,] and phone numbers of all medical
doctors, any other medical personnel, hospitals, or other medical

5
 facilities or medical providers wherein you received treatment
as a result of the accident, incident, illness[,] or sickness[]
identified above.

RESPONSE: Plaintiff, Keith Bowdry was involved in an automobile accident
in 2005 on the Wal-Mart parking lot in Tupelo, Mississippi, when [his] vehicle
was struck by a vehicle being driven the wrong way by an employee of
Lencare Medical Supply. [Keith] does not recall the name of the driver.
[Keith] was seen by a doctor at Semmes Murphy Neurologic and Spine
Institute[,] . . . Debra Hill, NP, and Reenea Willis, PT, of Rehab Solutions,
PLLC. No lawsuit was filed[;] however, [Keith] was compensated for
damages by the insurance company for Lencare Medical Supply.

INTERROGATORY NUMBER 10: Please identify the names, addresses[,]
and phone numbers of your regular family doctor and the names, addresses[,]
and phone numbers of any other medical doctors or any other medical
personnel not previously listed, who have treated you or given you any medical
advice for the past ten years.

RESPONSE: Dr. Norris Crump - 898 Lynden Blvd., Tupelo, MS 38801[;]
and Debra Hill, NP - Plantersville Clinic, 2489 Main St., Plantersville, MS
38862[.]

¶13. In his deposition, Keith responded to the following questions about his prior neck or

lower-back issues:

Q: Before this accident, had you ever had any prior problems with your
neck?

A: No, sir.

Q: [Had] you ever had to have any medical treatment for your neck before
the accident?

A: When I was a kid, I had a cyst on the back of my neck . . . . I was like,
maybe, 12 or 13, something like that. That’s the only problem I had.

Q: Did you ever have any prior problems with headaches before the
accident?

A: No, sir.

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 Q: What about your lower back?

A: Not lower back.

¶14. T. Mart obtained Keith’s medical records. The records included the following

information about Keith’s medical care for injuries he received in the accident:

1. On April 4, 2005, Keith was treated at Plantersville Clinic for low back
pain that had started a few days prior. The Plantersville Clinic record
shows that Keith had “low back pain, started Saturday.”

2. In August 2005, Keith was involved in an automobile accident and was
treated at North Mississippi Medical Center. His chief complaint was
characterized as “MVA THIS A.M. C/O LOW BACK PAIN[;]
UNRESTRAINED DRIVER.”

3. On August 31, 2005, Keith was at Plantersville Clinic due to continued
pain from the accident. The record shows that Keith “had MVA last
Thursday, hurts from neck all the way down back” and “leg weakness
and burning sense [after] MVA – hurting at night in back and legs.”

4. The injury was severe enough to necessitate MRIs of the lumbar spine,
thoracic spine[,] and cervical spine. On each of the MRI reports, the
indication was “neck and back pain.” The MRI of the cervical spine
showed “mild reversal of the normal lordotic curvature of the cervical
spine” and “mild disc osteophyte complex mainly at the C3-C4 and
C4-C5 levels but borderline to mild spinal stenosis as described.”

5. Also, Keith was at North Mississippi Medical Center on September 10,
2005, due to “neck and back problems, wreck 8/25/05.”

6. Further, in October 2005, Keith was at Plantersville Clinic due to “L
shoulder pain – hurts to raise arm, low back pain, neck pain, needs
excuse for light duty[,]” and, “burns down into buttock. Lumbar back.”
He was diagnosed with shoulder strain and lumbar strain.

7. Five days later, Keith was a patient at Semmes Murphey Neurologic &
Spine Institute. He complained of “left shoulder, neck[,] and back pain,
without radicular symptomatology” and “severe pain in his back.” A
physical examination was performed[,] which showed “cervical range
of motion is limited on forward flexion, hyperextension[,] and lateral

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 bending[.] He also has some myofascial trigger points in the lumbar
area with a restricted range of motion in the lumbar spine on forward
flexion and hypertension.” He was diagnosed with “cervical and
lumbar spasms,” and physical therapy was prescribed due to “cerv/LB
pain.”

8. He returned to Semmes Murphey Clinic in November 2005 due to
“lumbar myofascial pain” as well as shoulder pain. Keith was again
noted to have “cervical myofascial spasms” and “lumbar myofascial
spasms.” He was prescribed “aggressive physical therapy for
myofascial release of the cervical and lumbar areas[.]”

¶15. From this evidence, the trial judge granted the motion to dismiss and ruled:

A comparison of Keith Bowdry’s answers to interrogatories and deposition
testimony with his pre-accident medical records show that he intentionally and
deceitfully misrepresented his pre-existing medical condition with respect to
his neck and back. Mississippi’s appellate courts have consistently found this
type of concealment of facts to be willful and in bad faith.

¶16. This Court must review the trial court’s decision under an abuse of discretion

standard. Pierce, 688 So. 2d at 1388. This requires that we may only reverse when there is

a “definite and firm conviction that the court below committed a clear error of judgment in

the conclusion it reached upon weighing of relevant factors.” Id.

¶17. In Kinzie v. Belk Department Stores L.P., 164 So. 3d 974, 977-80 (¶¶6-13) (Miss.

2015) (internal citations and quotations omitted), the supreme court ruled:

In Pierce, this Court held that dismissal was appropriate because the plaintiff
had flat-out lied under oath about the existence of an eyewitness to the incident
that had caused the plaintiff’s alleged injuries and had consistently obstructed
the progress of the litigation by filing admittedly false responses to various
discovery requests and by swearing to false testimony in depositions. This
Court determined that dismissal was appropriate because the plaintiff had
acted in bad faith, and that any sanction other than dismissal would virtually
allow the plaintiff to get away with lying under oath . . . . The Court noted,
however, that it would remain very reluctant to affirm such a harsh sanction,
and did so in that case only because it provided the paradigm situation in

8
which the plaintiff knowingly refused to be forthcoming and actively withheld
the truth from the court and gave a great deal of perjured testimony.

In other cases in which this Court has affirmed dismissal, the discovery
violations were similarly egregious. In Scoggins v. Ellzey Beverages, Inc., 743
So. 2d 990 (Miss. 1999), the plaintiff, who could perfectly recall the details of
several aspects of her life for many years, completely failed to disclose several
invasive medical procedures and doctors’ visits that were relevant to her claim.
The trial court in that case found that the plaintiff made an apparently
deliberate attempt to subvert the judicial process, and she presented no credible
explanation for the total lack of congruence between her testimony and her
medical records. This Court affirmed, again noting that this case presented a
rare instance where the conduct of a party is so egregious that no other
sanction will meet the demands of justice.

More recently, in Ashmore v. Mississippi Authority on Educational Television,
148 So. 3d 977, 985 (Miss. 2014), we affirmed a dismissal where the plaintiff
had lied by concealing a right-knee surgery and degenerative joint disease in
his right knee. The plaintiff also had hidden the existence of a subsequent
left-knee injury or degenerative disc disease in his back, despite medical
reports to the contrary. Once again, the discovery violations that justified
dismissal were clear and unequivocal falsehoods.

However, where the discovery violation at issue is less extreme and open to
potential truthful interpretations, this Court will not hesitate to reverse a trial
court’s Rule 37 dismissal. In Wood ex rel. Wood v. Biloxi Public School
District, 757 So. 2d 190, 193 (Miss. 2000), the plaintiff responded to an
interrogatory regarding the nature of his injuries by stating, “I no longer am
able to enjoy tinkering with automobiles as the stooping, bending, and
squatting are painful.” After viewing undercover surveillance video of the
plaintiff walking normally, squatting, twisting, bending, and generally
performing normal daily functions without any indication of impairment or
pain, the trial court dismissed the plaintiff’s case. This Court reversed, finding
that the only discovery response which was contradicted by evidence at the
hearing on the motion to dismiss was one ambiguously worded response to one
interrogatory question.” As the plaintiff’s response indicated that he could still
perform certain tasks, just with less enjoyment than before, the Court held that
the defendants did not establish that the plaintiff knowingly made false
statements in discovery and it was certainly not established that the plaintiff
had engaged in a pattern of such false responses. The Court held that the
alleged untruthfulness in Wood’s interrogatories, if any, d[id] not constitute a
sufficiently egregious discovery violation such that no other sanction will meet

9
the demands of justice.

We find the discovery violation in this case to be more similar to the alleged
discovery violation in Wood than the unequivocally false and misleading
discovery violations found in Pierce, Scoggins, and Ashmore. In Wood, the
plaintiff stated that he could no longer enjoy certain activities as he could
before being injured. Here, Kinzie stated that he could not perform several
activities as he could before his injury. He was truthful when it came to his
medical record and his medically diagnosed work restrictions. Kinzie
indisputably was injured. He went to an emergency room immediately after his
accident and, at that time, was diagnosed with central-disc protrusion, disc
desiccation, and disc bulging. He underwent an invasive surgical procedure
on his spine. The activity observed in the undercover video did not stray
outside of his medical work restrictions, and it did not encompass any of the
specific activities that he stated he no longer could perform. The trial court
found this to be a discovery violation. While the trial court cannot be said to
have been manifestly wrong in its determination that there was, in fact, a
discovery violation, the severe sanction of dismissal amounts to clear,
reversible error amounting to an abuse of discretion.

Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff
in Pierce, nor did he completely misrepresent years of medical history and
procedures, as did the plaintiff in Scoggins, nor did he hide any other surgeries,
as did the plaintiff in Ashmore. The Court finds no “total lack of congruence”
between Kinzie’s responses and his medical records, as the trial court found
in Scoggins. Nor do we find this to be the paradigm situation in which the
plaintiff knowingly refused to be forthcoming and actively withheld the truth
from the court and gave a great deal of perjured testimony as this Court found
in Pierce. Instead, and similar to the plaintiff in Wood, Kinzie answered an
interrogatory about the extent of his injuries in a way that the trial court
thought was misleading. And here, 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.

Analogously, this Court has reversed a trial court’s dismissal based on Rule of
Civil Procedure 41(b) where 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. Just as this Court found then, in this case, it is not at all
certain that lesser sanctions would have been futile in expediting the
proceedings. Although we do not find, as did the Court of Appeals, that the

10
 trial court abused its discretion when it determined that Kinzie had committed
a discovery violation, we hold that the trial court erred when it dismissed the
case completely as a result of that violation while paying mere lip service to
the possibility and practicality of lesser sanctions.

Dismissal is appropriate only under the most extreme circumstances and only
where lesser sanctions will not suffice. This is not an extreme case, and lesser
sanctions can deter misleading responses without dismissing Kinzie’s claims
altogether. A jury will watch this video, and that may influence its ultimate
determination. But a jury ought to make that ultimate determination, not the
trial judge. The discovery violation at issue is not sufficiently extreme to
justify a full and final dismissal of the case. We therefore affirm that portion
of the judgment of the Court of Appeals which held that dismissal with
prejudice was not warranted. We reverse the Court of Appeals’ finding that
the trial court abused its discretion when it determined that Kinzie had
committed a discovery violation. We reverse the judgment of the Circuit
Court of the First Judicial District of Hinds County dismissing the case with
prejudice, and we remand the case for trial.

¶18. The supreme court’s analysis in Kinzie applies here. Dismissal was simply not a

reasonable sanction. T. Mart argues that Keith made intentional and deceitful

misrepresentations. However, we find no evidence to support the conclusion that Keith

intentionally misled or blatantly lied when he testified that he had not suffered prior neck and

lower-back problems. Unlike in Pierce, Keith’s interrogatory responses and the reasonably

expected discovery efforts of the defendants led to the medical records that may contradict

Keith’s deposition testimony. Certainly, these medical records may be offered to attack

Keith’s credibility at trial and to accurately present evidence of his prior medical history and

condition. However, under these circumstances, a lesser sanction of attorney’s fees and costs

associated with obtaining the medical records would be an appropriate sanction. Dismissal

is certainly not.

¶19. The judicial administration of civil claims is governed by the Mississippi Rules of

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Civil Procedure. These Rules provide the mechanism for bringing civil claims, to obtain

discovery, and to attain a resolution. Mississippi Rule of Civil Procedure 1 provides that

“[t]hese rules govern procedure in the circuit courts . . . in all suits of a civil nature . . . .

These rules shall be construed to secure the just, speedy, and inexpensive determination of

every action.” Here, we must construe how the trial court applied Rule 37. Appellate courts

often recognize that a litigant “‘is entitled to a fair trial but not a perfect one,’ for there are

no perfect trials.”1 Likewise, there are no perfect trials in civil cases.

¶20. Yet, the dissent seeks perfection in discovery. At trial, T. Mart will have the ability

to cross-examine and impeach Keith about his deposition testimony versus his medical

records. The jury will then be able to assess his credibility and reach a fair verdict based on

the evidence.

¶21. The facts of this case simply do not rise to the level of deception or concealment in

Pierce or Eaton v. Frisby, as argued by the dissent. Instead, this is similar, if not identical,

to this Court’s recent decision in Westfall v. Goggins, 2016-CA-00727-COA, 2017 WL

4511138, at *7-8 (¶¶21-22) (Miss. Ct. App. Oct. 10, 2017). In Westfall, we noted that

anytime a defendant asks for dismissal of the action for a discovery violation, the trial judge

and this Court must begin with the important admonition in Pierce—dismissal is appropriate

“only under the most extreme circumstances” and only where lesser sanctions will not

suffice. Id. at *7 (¶21) (quoting Pierce, 688 So.2d at 1388-89). Just like Westfall, this is

1
Conners v. State, 92 So. 3d 676, 688 (¶33) (Miss. 2012) (quoting Brown v. United
States, 411 U.S. 223, 231-32 (1973)); see also Bruton v. United States, 391 U.S. 123, 135
(1968).

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simply not an extreme case that requires dismissal.

¶22. Therefore, we find a definite and firm conviction that the circuit judge committed a

clear error of judgment in the dismissal of this action. We reverse the circuit court’s

judgment and remand this case for further proceedings consistent with this opinion.

¶23. REVERSED AND REMANDED.

LEE, C.J., IRVING, P.J., FAIR, WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION. BARNES, J., NOT PARTICIPATING.

CARLTON, J., DISSENTING:

¶24. I respectfully dissent from the majority’s opinion finding that the circuit court

reversibly erred in dismissing Keith’s negligence claims based on discovery violations. Since

I find no error in the circuit court’s dismissal, I would affirm.

¶25. Keith and his wife Lakeisha filed suit against T. Mart for injuries Keith claimed to

have sustained as the result of a motor vehicle accident that occurred as he was exiting a

Texaco station. Keith alleged that shrubbery on T. Mart’s property negligently inhibited his

view when exiting the gas station. Lakeisha filed a claim for loss of consortium—a

derivative claim stemming from Keith’s injuries.

¶26. During the course of pretrial discovery, T. Mart served Keith with interrogatories

related to his prior medical history and treatment. Specifically, the interrogatories asked

whether Keith ever had been involved in any other accident or incident, or had any illness

or sickness of any kind and of any type or severity, which required or resulted in him being

seen or treated by any medical professional. Keith responded with information regarding a

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2005 accident in a Tupelo Wal-Mart parking lot. However, he failed to provide any

information as to any injuries that resulted from the accident. Keith did state that he saw two

separate medical providers following the incident.

¶27. T. Mart later deposed Keith and further questioned him regarding his medical history.

When asked whether he ever had experienced prior neck problems, Keith responded that he

had not. When asked whether he ever had experienced prior lower back issues, Keith

responded, “Not lower back.”

¶28. Following Keith’s deposition, T. Mart obtained Keith’s prior medical records, which

revealed that Keith indeed had received extensive medical treatment for his neck and lower

back in 2005.2 In response, T. Mart filed a motion to dismiss Keith’s complaint pursuant to

Mississippi Rule of Civil Procedure 37(b)(2) and 37(e), claiming that Keith provided

“willful, false deposition testimony and grossly evasive, misleading discovery responses.”

Following a hearing, the circuit court granted the motion to dismiss with prejudice,

concluding that under the circumstances, no sanction less than dismissal would be

appropriate to satisfy the deterrent value of Rule 37. Because Lakeisha’s claim was

derivative in nature, it was dismissed with prejudice as well.

¶29. We review a trial court’s dismissal of a cause of action as a sanction for discovery-

abuse for abuse of discretion. Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977,

981 (¶9) (Miss. 2014); see also Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 996 (¶27)

2
There were eight medical records the circuit court found relevant, ranging a period
of eighteen months, wherein Keith complained of neck and back problems. Each record will
be discussed in further detail below.

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(Miss. 1999). The Mississippi Supreme Court “has long held that our trial courts have the

discretion to impose sanctions for discovery violations [that] result from willful neglect [or]

willful disobedience or cause undue advantage and surprise.” Eaton Corp. v. Frisby, 133 So.

3d 735, 748 (¶49) (Miss. 2013). However, the supreme court also has cautioned that a “trial

court should dismiss a cause of action for failure to comply with discovery only under the

most extreme circumstances.” Ashmore, 148 So. 3d at 981 (¶9).

¶30. “When [an appellate court] reviews a decision that is within the trial court’s

discretion, it first asks if the court below applied the correct legal standard.” Id. (citing

Pierce v. Heritage Props. Inc., 688 So. 2d 1385, 1388 (Miss. 1997)). “If the trial court

applied the right standard, then [the c]ourt considers whether the decision was one of several

reasonable ones which could have been made.” Id. We will affirm a trial court’s dismissal

as a sanction for a discovery violation “unless there is a definite and firm conviction that the

trial court committed a clear error of judgment in the conclusion it reached upon weighing

[the] relevant factors.” Avare v. Gulfside Casino P’ship, 178 So. 3d 796, 798 (¶4) (Miss. Ct.

App. 2013); see also Eaton Corp., 133 So. 3d at 747 (¶45). Upon appellate review of a trial

court’s dismissal of a cause of action for failure to comply with discovery, this Court should

engage in “measured restraint” and “should not decide whether it would have dismissed the

original action but whether dismissal amounted to clear error.” Kinzie v. Belk Dep’t Stores

L.P., 164 So. 3d 974, 977 (¶4) (Miss. 2015). “We will, however, review issues of law de

novo.” Avare, 178 So. 3d at 798 (¶4).

¶31. Keith argues that the circuit court erred in finding that he wilfully misrepresented his

15
medical history during discovery. As stated, Keith’s medical records reflect that he received

injuries to his neck, lower back, and shoulder as the result of a car accident in 2005.

However, during Keith’s deposition, T. Mart’s counsel asked Keith whether he had any prior

problems with his neck and lower back. Keith denied ever suffering any lower back

problems, and he mentioned only the removal of a cyst from the back of his neck when he

was in eighth grade.

¶32. At the hearing before the circuit court, Keith denied that he provided false testimony.

In support of his argument, Keith asserted that he had not signed some of the prior medical

records. He also claimed that the medical records were not “author[ed]” or authenticated and

that the records did not conclusively establish that Keith specifically had complained of prior

lower back pain. The circuit court found these arguments without merit.

¶33. On appeal, however, Keith now argues that he did not lie about the injuries stemming

from the 2005 car accident; rather, Keith asserts that he “merely forgot” that he suffered neck

and lower back pain. Keith maintains that the 2005 accident occurred seven years before he

was deposed, and his biggest complaint from the accident was his shoulder—not his neck or

lower back.

¶34. I find this argument wholly unpersuasive and without merit. That is because “[i]t is

a long-established rule in this state that a question not raised in the trial court will not be

considered on appeal.” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093

(¶18) (Miss. Ct. App. 2016) (quoting Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403,

414, 170 So. 684, 685 (1936)). “The rule is that a trial judge cannot be put in error on a

16
matter which was never presented to him for decision.” Id. A review of the record reveals

that Keith never presented this argument to the circuit court—therefore, I decline to address

the merits of it in this separate opinion. See id.

¶35. Keith argues that the circuit court abused its discretion in dismissing his case with

prejudice because lesser sanctions would have served the deterrent purpose of Rule 37. I

disagree. Rule 37(b)(2)(C) provides:

If a party . . . fails to obey an order to provide or permit discovery, including
an order made under subsection (a) of this rule, the court in which the action
is pending may make such orders in regard to the failure as are just, and among
others the following:

an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party[.]

(Emphasis added). Rule 37(e) further provides that “[i]In addition to the application of those

sanctions, specified in Rule 26(d) [of the Mississippi Rules of Civil Procedure] and other

provisions of this rule, the court may impose upon any party or counsel such sanctions as

may be just[.]” (Emphasis added).

¶36. Building on Rule 37, I further acknowledge that the supreme court has established the

following factors for evaluating the appropriateness of dismissal as a sanction for discovery

violations:

[(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. [(2)] Dismissal is proper only in situation[s] where the deterrent value
of Rule 37 cannot be substantially achieved by the use of less drastic sanctions.
[(3)] Another consideration is whether the other party’s preparation for trial
was substantially prejudiced. [(4)] Finally, dismissal may be inappropriate

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 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; see also M.R.C.P. 37(b)(2)(C). “The Pierce court explained that

these factors are considerations and not four absolute requirements.” Avare, 178 So. 3d at

799 (¶8) (citing Pierce, 688 So. 2d at 1389). “The supreme court has further held that

willfulness or bad faith may be so clearly evidenced that the four Pierce factors will be

irrelevant to the upholding of dismissal.” Id. Furthermore, “[a] finding of willfulness may

be based upon either a willful, intentional, and bad faith attempt to conceal evidence[,] or a

gross indifference to discovery obligations.” Pierce, 688 So. 2d at 1390.

¶37. In its order dismissing Keith’s suit with prejudice, the circuit court herein weighed

each of the Pierce factors and ultimately concluded that each factor weighed in favor of

dismissal. In applying the Pierce factors, the circuit court also set forth Keith’s

misrepresentations in detail. I now turn to review the circuit court’s application of the Pierce

factors.

¶38. As to the first factor, the circuit court stated:

A comparison of [Keith’s] answers to interrogatories and deposition testimony
with his pre-accident medical records show that he intentionally and
deceitfully misrepresented his pre-existing medical condition with respect to
his neck and back . . . . A consideration of the facts presented herein . . .
demonstrates that [Keith]’s misrepresentation regarding his pre-existing
medical condition was willful and in bad faith.

The record clearly supports the circuit court’s findings as to this factor. Regarding his prior

medical history, Keith was specifically asked the following through T. Mart’s interrogatories:

INTERROGATORY NUMBER 9: Before or after the date of the

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occurrence which is the subject of this action, had you ever been involved in
any other accident or incident or had any illness or sickness of any kind and of
any type or severity, which required you to be seen or resulted in your being
seen or treated by any doctor, hospital[,] or other medical provider? If so,
please state in detail the following:

(a) The date and place of the accident, incident, illness[,]
or sickness;

(b) A description of the accident, incident, illness[,] or
sickness;

(c) Names, addresses and phone numbers of witnesses to the
accident, incident, illness[,] or sickness;

(d) The name of the defendant (or person or entity against
whom you made your claim), if lawsuit, action[,] or
claim was made on your behalf;

(e) The court or other tribunal where any action or claim was
filed, together with any identifying action number;

(f) The names, addresses[,] and phone numbers of all
medical doctors, any other medical personnel, hospitals,
or other medical facilities or medical providers wherein
you received treatment as a result of the accident,
incident, illness[,] or sickness[] identified above.

RESPONSE TO INTERROGATORY NUMBER 9: [Keith] was
involved in an automobile accident in 2005 on the Wal-Mart parking lot in
Tupelo, Mississippi, when [Keith’s] vehicle was struck by a vehicle being
driven the wrong way by an employee of Lencare Medical Supply. [Keith]
does not recall the name of the driver. [Keith] was seen by a doctor at Semmes
Murphy Neurologic and Spine Institute . . . ; Debra Hill, NP, and Reenea
Willis, PT, of Rehab Solutions, PLLC. No lawsuit was filed, however, [Keith]
was compensated for damages by the insurance company for Lencare Medical
Supply.

INTERROGATORY NUMBER 10: Please identify the names,
addresses and phone numbers of your regular family doctor and the names,
addresses and phone numbers of any other medical doctors or any other
medical personnel not previously listed, who have treated you or given you any

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 medical advice for the past ten years.

RESPONSE TO INTERROGATORY NUMBER 10: Dr. Norris
Crump—898 Lynden Blvd., Tupelo, MS 38801[;] and Debra Hill, NP—
Plantersville Clinic, 2489 Main St., Plantersville, MS 38862[.]

¶39. Keith’s subsequent deposition-testimony addressed the medical records reflecting that

Keith injured his neck, lower back, and shoulder as the result of a car accident in 2005.

During Keith’s deposition, T. Mart’s counsel asked Keith whether he suffered any problems

with his neck, head, or lower back prior to the accident at issue. Keith denied ever suffering

any lower back problems or headaches before the accident, and he mentioned only the

removal of a cyst from the back of his neck when he was in eighth grade.

¶40. Following the information provided by Keith in his sworn answers to interrogatories

and deposition testimony, T. Mart obtained Keith’s prior medical records, which reflected

a vast medical history. T. Mart included Keith’s medical records in its motion to dismiss and

attached the records for the circuit court to review. The circuit court accordingly dismissed

Keith’s complaint after finding that he had misrepresented his prior medical history.

¶41. A review of Keith’s medical records herein reflects that Keith indeed suffered from

neck and low back pain beginning in April 2005, six years before the accident at issue in this

case. These medical records reveal the following relevant treatment sought by Keith in

response to suffering from neck and low back pain:

April 4, 2005—Keith received treatment at the Plantersville Clinic for low
back pain that started two days earlier.

August 25, 2005—Keith was involved in an automobile accident and received
treatment at North Mississippi Medical Center. The record from North
Mississippi Medical Center reflects that Keith’s chief complaint was “LOW

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BACK PAIN.”

August 31, 2005—Keith returned to the Plantersville Clinic for treatment due
to continued pain from the accident. The records states that Keith complained
that he “hurts from neck all the way down back[,] has burning pain” and had
suffered “leg weakness and burning since [the motor vehicle
accident]—hurting at night in back and legs.”

September 9, 2005—Keith received MRIs of the lumbar spine, thoracic spine,
and cervical spine. On each of the MRI reports, the indication was “neck and
back pain.” The MRI of the cervical spine showed “mild reversal of the
normal lordotic curvature of the cervical spine” and “mild disc osteophyte
complex mainly at the C3-C4 and C4-C5 levels but borderline to mild spinal
stenosis as described.”

September 10, 2005—Keith received treatment at North Mississippi Medical
Center due to “neck and back problems” from the August 2005 wreck.

October 14, 2005—Keith received treatment at the Plantersville Clinic due to
“[left] shoulder pain.” The record shows that Keith complained that it hurt to
“raise [his] arm” and he suffered from “low back pain, neck pain” that “burns
down into [his] buttock.” The record reflects that Keith stated that physical
therapy “does not help” and that he was not taking any medicine. Keith was
then diagnosed with “shoulder strain and lumbar strain.”

October 19, 2005—Keith received treatment at Semmes Murphey Neurologic
& Spine Institute. There, Keith complained of “left shoulder, neck and back
pain, without radicular symptomatology.” Keith also complained of “severe
pain in his back” when he had to stand for prolonged periods. A doctor
performed a physical examination which showed “cervical range of motion is
limited on forward flexion, hyperextension[,] and lateral bending. . . . [Keith]
has some myofascial trigger points in the lumbar area with a restricted range
of motion in the lumbar spine on forward flexion and hypertension.” Keith
was diagnosed with “cervical and lumbar spasms” and “left rotator cuff
strain.” The doctor prescribed physical therapy due to “cerv/LB pain” and
“rotator cuff pain.”

November 11, 2005—Keith returned to Semmes Murphey Clinic due to
“lumbar myofascial pain” as well as shoulder pain. The record reflects the
doctor assessed that Keith suffered from “cervical myofascial spasms” and
“lumbar myofascial spasms.” As a result, the doctor prescribed “aggressive
physical therapy for myofascial release of the cervical and lumbar areas[.]”

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(Emphasis added). As stated, in light of this evidence, the circuit court found that Keith had

wilfully and in bad faith misrepresented his prior medical history, thus favoring dismissal of

his cause of action.

¶42. In Eaton Corp., 133 So. 3d at 752 (¶60), the supreme court found “no abuse of

discretion in the trial court’s decision to impose [a] monetary sanction issued [as the result

of serious pretrial discovery misconduct], despite the absence of a motion to compel.” The

Eaton court held that “gross indifference” or “willful negligence” of a discovery requirement

are both are “‘willful’ violations and an abuse of the truth-seeking process.” Id. at 748 (¶49).

The supreme court further explained that:

A willful violation of a discovery rule occurs when there is a conscious or
intentional failure to comply with the rule’s requirements. A finding of
willfulness may be based upon either a willful, intentional, and bad faith
attempt to conceal evidence or a gross indifference to discovery obligations.

Id. (citing Pierce, 688 So. 2d at 1388).

¶43. In his brief to this Court, Keith admits that he “was wrong when he denied having

ever complained of neck and lower back pain prior to the 2011 accident.” As such, I find the

evidence sufficient to support the circuit court’s conclusion. See Conklin v. Boyd Gaming

Corp., 75 So. 3d 589, 595 (¶19) (Miss. Ct. App. 2011) (finding willfulness where plaintiff

knew he had undergone prior treatment for injuries but chose not to admit such during

discovery).

¶44. As to the second Pierce factor—whether Rule 37’s deterrent value could be achieved

through less drastic sanctions—the circuit court found dismissal was the only proper remedy.

I agree, as “[t]he other sanctions considered by the [trial] court would not achieve the

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deterrent value of the dismissal. . . . [A]ny other sanction beside dismissal would virtually

allow the plaintiff to get away with lying under oath without a meaningful penalty[.]”

Pierce, 688 So. 2d at 1391.

¶45. Next, regarding the factor of prejudice, the circuit court found that Keith’s false

representations indeed prejudiced T. Mart, thus weighing in favor of dismissal. Keith,

however, argues on appeal that because the misrepresentations were discovered prior to trial,

no prejudice resulted. I disagree. First, “there is no requirement that the defendant be

substantially prejudiced by the absence of evidence.” Id. (holding substantial prejudice is a

mere consideration of the court, not a requirement). Second, there is nothing in the record

to illustrate that the circuit court erred in finding Keith’s conduct prejudiced T. Mart during

trial preparation. As such, I agree with the circuit court as to this factor.

¶46. Finally, the circuit court found that Keith’s deceptive responses were in no way

attributable to his attorneys, nor were the inquiries regarding his prior medical history

confusing. To that point, Keith makes no argument on appeal as to confusion or

misunderstanding—again, he merely asserts that he “forgot.” As that argument is

procedurally barred, I find the record-evidence supports the circuit court’s finding as to this

prong. See Allen v. Nat’l R.R. Passenger Corp., 934 So. 2d 1006, 1012 (¶16) (Miss. 2006).

This issue is without merit.

¶47. In sum, I acknowledge that “[d]ismissal with prejudice is a sanction that should be

imposed only in those rare instances where the conduct of a party is so egregious that no

other sanction will meet the demands of justice.” Scoggins, 743 So. 2d at 997 (¶36).

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“Further, where a party has frustrated the orderly judicial process by false or erroneous

responses to interrogatories, that party should not be able to argue that its own conduct has

removed it beyond the reach of sanctions.” Avare, 178 So. 3d at 801 (¶15). In order “to

reverse the trial court’s decision, this Court must have a definite and firm conviction that the

court below committed a clear error of judgment in the conclusion it reached upon weighing

of relevant factors.” Id. (quoting Pierce, 688 So. 2d at 1388).

¶48. The record reflects that the circuit court weighed the relevant Pierce factors and

applied them to the evidence in the record. I can find no error warranting reversal. I thus

find that the circuit court did not abuse its discretion when it held that any sanction less than

dismissal would not adequately serve Rule 37’s deterrent purpose. Accordingly, I would

affirm the circuit court’s judgment dismissing Keith’s claim with prejudice. And because

Lakeisha’s loss-of-consortium claim is derivative of Keith’s, I also would affirm the circuit

court’s judgment dismissing her claim with prejudice. See J & J Timber Co. v. Broome, 932

So. 2d 1, 6 (¶19) (Miss. 2006) (“Mississippi law dictates that if the underlying personal injury

claim is disposed of, the loss of consortium claim cannot be maintained on its own.”).

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