LAMAR, Justice, for the Court:
¶ 1. James A. Burley filed a wrongful-death action on June 7, 2004, for the deaths of his daughter and grandchildren resulting from a vehicular accident between his daughter and an employee of Yazoo Valley Electric Power Association (collectively "YVEPA"). During the course of discovery, YVEPA attempted to determine whether Burley would support his theory of liability with expert testimony. Following two motions to compel for
¶ 2. James Burley filed this action on June 7, 2004. Burley filed as "Parent/Guardian and Next Best Friend of Francesca Hill, Joshua Hill and Jakura Hill, Minors" against YVEPA. Burley alleged that YVEPA was negligent for a vehicular collision resulting in the death of Francesca and her two children.
¶ 3. On August 5, 2004, YVEPA served Burley with written discovery that included an interrogatory asking him to identify the experts he intended to call at trial and to make Rule 26(b)(4) disclosures. On September 14, 2004, Burley responded: "This information will be provided and disclosed pursuant to Mississippi Rules of Civil Procedures [sic]." After receiving no supplementation, YVEPA moved to compel. The trial court ordered Burley to provide a "full and complete response to the Defendants' expert interrogatory" within ten days from entry of its order filed March 11, 2005. On March 17, 2005, Burley identified Ricky Shivers, who was:
¶ 4. Thereafter, the trial court entered a scheduling order which provided that "the Plaintiff's experts shall be designated on or before May 30, 2005, together with [Rule] 26(b)(4) disclosures ... the Defendants' experts shall be designated on or before June 30, 2005, together with [Rule] 26(b)(4) disclosures ... that all discovery be completed on or before October 30, 2005," and a trial date was set for April 3, 2006. The parties then entered an agreed order extending the deadline for discovery to be completed on or before December 31,
¶ 5. Meanwhile, YVEPA filed a motion to dismiss or alternatively, for summary judgment, on the basis that Burley lacked standing to commence a wrongful-death action on behalf on Joshua and Jakura Hill. On November 7, 2007, the trial court dismissed the claims brought on behalf of the grandchildren. Aggrieved by the trial court's decision, Burley appealed to this Court.
¶ 6. On October 8, 2010, Burley and his ex-wife Earnestine Hill, as newly appointed administrator of the Estate of Francesca Hill, filed an expert designation of Alvin Kirk Rosenhan. The designation provided in relevant part that:
On the same day at Rosenhan's designation, Rick Patt filed an "entry of appearance" as counsel for the Estate of Francesca Hill and "notice of substitution of administrator."
¶ 7. In response to the expert designation, YVEPA moved to strike Rosenhan. YVEPA argued that the designation was untimely, since it was filed five and a half years after the expert-designation deadline and five years after the close of discovery. YVEPA argued that Burley had had YVEPA's timely designation and that "after years of ruminating over the defense expert's opinions, the Plaintiff presumes to designate an expert on his own time-table in derogation of the court's scheduling orders." YVEPA further argued that the disclosure failed to comply with Rule 26(b)(4), and that Hill had no standing to make an expert designation as a nonparty without a motion and order of substitution under Mississippi Rule of Civil Procedure 25.
¶ 9. At the hearing, the court noted that no party had moved to extend the scheduling order. The court further noted that "if there was something in the Supreme Court's opinion that required reopening the scheduling deadline, then that wouldn't be a problem, but I don't know of anything. I don't recall anything in that opinion that requires reopening the scheduling order. And to allow Rosenhan to come in as an expert now when this case is set for April 6, that means I'm reopening the scheduling deadlines[.]" The court also asked why Rosenhan was so important, when he was not initially designated. In response, Burley's counsel stated, "Well, Your Honor, quite frankly, we were not satisfied with our expert witness that we had."
¶ 10. Following the hearing, the court issued a written order granting Earnestine Hill's motion for substitution but rejecting the plaintiffs' arguments that they were entitled to a "clean slate" on remand. However, the court refused to strike Rosenhan and ordered the parties to enter an agreed scheduling order "covering all necessary and outstanding discovery to include designation of experts and motion deadline." The court reasoned that its ruling was "an effort to prevent possible injustice to the Plaintiffs" and that the defendants would suffer "no actual prejudice." It also continued the (fourth) April 6, 2011, trial setting to April 2, 2012. Aggrieved by the trial court's order allowing Rosenhan's designation, YVEPA filed this interlocutory appeal.
¶ 11. This appeal presents one issue: whether the trial court abused its discretion by allowing Rosenhan's designation. YVEPA argues that Rosenhan's designation was untimely and that it failed to comport with Rule 26(b)(4). YVEPA asserts that no evidence or law supports the trial court's ruling, especially when the trial court expressly rejected the plaintiffs' arguments.
¶ 12. In response, the plaintiffs argue the trial court has considerable discretion in allowing expert designations, and that it had authority to allow the designation under Rule 4.04. They argue that substitution for the newly-appointed administrator was a "special circumstance" under Rule 4.04 to allow Rosenhan's designation.
¶ 13. The plaintiffs are correct that the trial court has "considerable discretion" in ruling on discovery matters, and that this Court will not reverse absent an abuse of discretion.
¶ 14. Furthermore, the plaintiffs are incorrect that, when this Court remands a case, it completely starts over as with a "clean slate." This Court has held that when it remands a judgment entered after a trial, the new trial generally proceeds de novo.
¶ 15. Rule 4.04 requires that:
The plaintiffs argue that Rosenhan's designation was proper because they complied
¶ 16. The plaintiffs also fail to satisfy Mississippi Rule of Civil Procedure 26(f), which states that a party has a "duty" to "seasonably" supplement interrogatory responses regarding expert witnesses expected to testify at trial.
¶ 17. While the trial court appropriately found that the plaintiffs filed an untimely designation without a proper motion, it still allowed Rosenhan's designation and continued the trial to its fifth setting. The trial court's order identifies two bases for allowing the untimely designation: (1) prevent possible injustice to the plaintiffs and defendants; and (2) no actual prejudice to the defendants. This Court has found such reasons relevant in determining whether to exclude evidence for a discovery violation.
¶ 18. Furthermore, YVEPA points out that Rosenhan's designation fails to comply with Rule 26(b)(4), so the court was without the benefit of truly determining the importance of Rosenhan's testimony.
This Court has held that Rule 26(b)(4) requires the disclosure of "the substance of every fact and every opinion which supports or defends the party's claim or defense" and that the disclosure must "set forth in meaningful information which will enable the opposing party to meet it at trial."
¶ 19. The trial court found that a continuance of almost one year was warranted to allow the parties to engage in additional discovery, presumably to prevent any prejudice to YVEPA by allowing YVEPA time to depose Rosenhan or to provide a counter designation. While such time would prevent a trial by ambush, it also adds additional expense associated with another year of continuance and possibly even more discovery.
¶ 20. Last, the late designation was in derogation of the scheduling order and was made without proper motion, and thus certainly disrupted the "orderly proceedings"
¶ 21. This Court finds the trial court abused its discretion in refusing to strike Rosenhan's belated and inadequate designation. The plaintiffs failed to follow the trial court's orders and the rules governing civil procedure. As noted in another case,
¶ 22.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., AND RANDOLPH, J., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, PIERCE AND KING, JJ.
CHANDLER, Justice, dissenting:
¶ 23. In this case, the plaintiffs filed an expert designation of Kirk Rosenhan after a lengthy interlocutory appeal and outside the time set by a scheduling order. The trial court denied the defendants' motion to strike, ordered the parties to enter into an "agreed scheduling order covering all necessary and outstanding discovery to include designation of experts and motion deadline," and continued the trial. The majority finds that this ruling was outside the trial court's discretion. In other words, the majority finds that the plaintiffs' conduct in this case was so egregious as to remove all discretion from the trial court, resulting in the exclusion of expert testimony. Because I believe the majority erroneously substitutes its judgment for that of the trial court, I respectfully dissent.
¶ 24. Excluding evidence based on a discovery violation is an extreme measure. Mississippi Power & Light v. Lumpkin, 725 So.2d 721, 733 (Miss.1998). Therefore, "lower courts should exercise caution before doing so, because our courts are "`courts of justice [and] not of form.'" Estate of Bolden ex rel. Bolden v. Williams, 17 So.3d 1069, 1072 (Miss.2009). Before excluding evidence based on a discovery violation, the trial court should consider: (1) the explanation for the transgression; (2) the importance of the testimony; (3) the need for time to prepare to meet the testimony; and (4) the possibility of a continuance. Lumpkin, 725 So.2d at 733-34.
Id. at 734. Because the trial court has considerable discretion in discovery matters, we must affirm its decision absent "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." Estate of Bolden, 17 So.3d at 1072.
¶ 25. The following evidence was before the trial court. The plaintiffs gave no explanation for the late designation other than the convoluted nature of the proceedings. Before the interlocutory appeal, the plaintiffs had withdrawn the designation of their first expert witness because they were dissatisfied with him. They designated Rosenhan after the remand, arguing that all discovery deadlines started anew after a remand for further proceedings. Rosenhan was the plaintiffs' only expert on liability. The defendants did not show
¶ 26. The trial court rejected the plaintiffs' argument that all discovery deadlines begin anew after the remand. However, the trial court ordered the entry of an agreed scheduling order "in an effort to prevent a possible injustice to the Plaintiffs and Defendants and finding no actual prejudice to the Defendants." Thus, rather than simply denying the motion to strike, the trial court reopened discovery. This ruling was within the trial court's considerable discretion in discovery matters, and it was supported by the evidence before the trial court. Exclusion of the plaintiffs' liability expert would result in foreseeable harm to the plaintiffs' case. While there was no explanation for the late designation, there also was no evidence that reopening discovery and continuing the trial would prejudice the defendants. Further, the plaintiffs offered to pay the costs of deposing Rosenhan. Obviously, the trial court determined that, under these circumstances, justice, not form, should prevail. See Estate of Bolden, 17 So.3d at 1072.
¶ 27. The majority substitutes its judgment for that of the trial court by reweighing the evidence. While the trial court would have been within its discretion in granting the motion to strike, its decision to reopen discovery also was within its discretion. This Court has stated that "[p]re-trial discovery is governed by flexible rules well within the administrative capacity of our trial courts." Crawford v. Wall, 593 So.2d 1014, 1017 (Miss.1992) (quoting In re Knapp, 536 So.2d 1330, 1333 (Miss.1988)). Because this Court interferes with a matter committed to the trial court's sound discretion, I respectfully dissent.
KITCHENS, PIERCE AND KING, JJ., JOIN THIS OPINION.
Miss. R. Civ. P. 26(b)(4)(A)(i).