Lead Opinion
ON WRIT OF CERTIORARI
for the Court:
¶ 1. Willie Kinzie sued Belk Department Stores, L.P., Belk, Inc., David Flowers,
FACTS
Kinzie, a truck driver for twenty-eight years, was employed by Triangle Trucking at the time of the injuries at issue. Triangle trucking had dispatched Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie’s job required him to pick up a loaded trailer of Belk cargo from the Belk distribution center in Byram, Mississippi, and unload it at other Belk locations throughout the United States.
On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution center in Byram and traveled to a Belk facility in Cullman, Alabama. In the course of unloading his truck, which contained approximately 2,161 cases of cargo, weighing a total of 18,229
Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on January 4, 2010, Kinzie underwent a bilateral L4-5 hemilaminectomy and discectomy surgery. On May 25, 2010, Kinzie’s treating physician, Dr. Howard Holaday, explained that Kinzie possessed the capability to perform sedentary to light duty work, with a lifting restriction of no greater than twenty pounds, and restrictions on frequent stooping and bending. Although Kinzie claimed to need a cane for stability and assistance, Dr. Holaday provided no recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday also warned him to wean himself off of the cane. The results of functional capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010, showed that Kinzie could perform work on a sedentary-physical demand level only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI) joint.
On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his back injury resulted from the Appellees’ negligent loading of light cargo items on the bottom of the trailer and heavy cargo items on the top, as well as failure to secure the cargo. Kinzie submits that a medical éstimate projects his future medical expenses will,total $117,406.90. He also submits that his past medical expenses, lost wages, future medical expenses, and future lost wages amount to
Interrogatory 5 inquired about any opinions rendered by a doctor or medical provider regarding Kinzie’s injuries. Kinzie objected to interrogatory 5 as being outside the permissible scope of discovery, but answered by explaining that he had been “assigned permanent work restrictions of no lifting greater than twenty pounds,” was prohibited from “frequent stooping or bending,” and “had been told that [he] can only perform work in the sedentary physical demand level at eight hours a day, five days a week.” Kinzie further stated in his response that he had “been told that [he has] a ten percent whole person impairment rating.” Interrogatory 11 stated: “Describe all activities you were able to perform or participate in prior to July 14, 2009, that you cannot perform or participate in now.” Kinzie answered the interrogatory by stating:
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. Unbeknownst to Kinzie or his counsel, the Appellees hired an investigator to perform surveillance of Kinzie during the period of August 19, 2011, to September 22, 2011 (thirty-four days). Of the thirty-four day period surveillance, twenty-five minutes of excerpts of video footage were provided. The excerpts provided were edited and are not a complete video of the entire thirty-four-day time period. As acknowledged, excerpts of the footage provided show snapshots in time during the thirty-four-day surveillance period. The investigator prepared a report of Kinzie’s activities during the period.’ The excerpts of the video footage reveal Kinzie driving and walking to the post office and his attorney’s office, and working with another man on his shed in the backyard of his house. In response to the video evidence, Kinzie claims that he never violated his physician’s restrictions, nor did he perform any task that he stated in his discovery responses that he could not perform, even while working on his shed.
Kinzie v. Belk Dep’t Stores,
¶ 2. Staffmark Investment filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 37(e),
Based on the plaintiffs false representations made in his interrogatory response and in his deposition, along with the video surveillance the defendants obtained on him, this Court finds that the plaintiffs cause of action should be dismissed with prejudice as a sanction for his conduct. This Court further finds that no lesser sanction is appropriate under the circumstances.
¶ 3. Kinzie appealed, and we assigned the case to the Court of Appeals, which held: “Based on the foregoing, we find no evidence of misrepresentation by Kinzie in his responses to the interrogatories and deposition questions. As stated, we review Kinzie’s response to interrogatory 11 in the context of all of the interrogatory responses.... ” Kinzie,
STANDARD OF REVIEW
¶ 4. “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,
ANALYSIS
¶ 5. This Court has made it clear that 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.,
¶ 6. 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 plaintiffs 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.” Id. at 1390. 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....” Id. at 1390-91. 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 which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony.” Id. at 1391 (emphasis added).
¶ 7. In other cases in which this Court has affirmed dismissal, the discovery violations were similarly egregious. In Scoggins v. Ellzey Beverages, Inc.,
¶ 8. More recently, in Ashmore v. Mississippi Authority on Educational Television,
¶ 9. 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,
¶ 10. 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.
¶ 11. 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 Kin-zie’s responses and his medical records, as the trial court found in Scoggins. Scog-gins,
¶ 12. 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.” Am. Tel. & Tel. Co. v. Days Inn of Winona,
CONCLUSION
¶ 13. Dismissal is appropriate only under the most extreme circumstances and only where lesser sanctions will not suffice. Pierce,
¶ 14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THE CASE IS REMANDED.
. The facts are taken verbatim from the opinion of the Court of Appeals.
. In response to a motion to dismiss in the trial court, Kinzie alleged that he had been unloading a truck “carrying approximately 2,161 cases of cargo, weighing 18,229 lbs.” In his complaint, Kinzie had alleged the gross weight to have been only 7,854 pounds.
. Mississippi Rule of Civil Procedure 37(e) provides:
[T]he court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys’ fees, if any party or counsel
(i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement ... or (ii) otherwise abuses the discovery process in seeking, making or resisting discovery.
Miss. R. Civ. P. 37(e).
. As related above, Kinzie’s answer to Interrogatory 11 was as follows:
I have the following limitations: not able to cut grass or take care of 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 incident.
(Emphasis added.)
Dissenting Opinion
dissenting:
¶ 15. I am of the opinion that the standard of review carries the instant case. Abuse of discretion is the most deferential standard. Under it, when the trial judge employs the correct legal standard, it is not our job, as the appellate court, to substitute our judgment in place of that of the trial judge’s. See Ashmore v. Mississippi Auth. on Educ. Television,
¶ 16. In reaching its holding, the majority places great weight on Wood ex rel. Wood v. Biloxi Public School District,
¶ 17. Turning to the instant case, Kin-zie stated in his interrogatory that he has the following limitations:
[NJot able to cut grass or take care of 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 incident.
(Emphasis added.) The majority alludes that “as before incident” is a qualifier, meaning that Kinzie was unable to perform the listed activities as well as he was able to perform them before the incident. The majority then relates Wood’s qualifier — that he no longer enjoyed the activities — to Kinzie’s alleged qualifier in the instant case. However, I, like the trial judge, read “as before incident” to mean that Kinzie could not perform activities that he could perform before the accident. In other words, Kinzie did not list all of the things he is not able to do that he could do before the accident. My reading
¶ 18. The majority states: “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.” To be clear, my dissent does not question that Kinzie was injured, and the issue is not whether he violated his doctor’s orders. The issue is whether the trial judge abused his discretion when dismissing Kin-zie’s claims for lying in his discovery responses.
¶ 19. Kinzie stated he was: “not able to cut grass or take care of 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.... ” Kinzie also stated in his deposition that, when he is outside the house, he has his cane with him. In the videos obtained by Staffmark Investment, Kinzie was working on a building in the rear of Kinzie’s home; he was climbing a ladder, carrying wood, performing carpentry tasks, and not using his cane. Simply put, Kinzie engaged in activities he stated he was not able to do. Thus, I do not agree with the majority’s characterization of Kin-zie’s statements as merely misleading.
¶ 20. The Court has recently summed up the abuse of discretion standard of review:
In short, if 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.” See City of Jackson v. Rhaly,95 So.3d 602 , 607 (Miss.2012) (citations omitted). Although reasonable minds might differ as to the disposition, there is no support in the record that the trial court failed to apply the correct legal standard' in the case sub judice, for indeed, the trial judge cited our decisions in Pierce and Scoggins as authority, dispelling any notion of applying an incorrect standard. The trial judge relied upon the. standard as announced by this Court. Abuse of discretion is the most deferential standard of review appellate courts employ. See Fitch v. Valentine,959 So.2d 1012 , 1022 (Miss.2007) (“this Court applies the deferential abuse of discretion standard of review”); -see also White v. Thompson,822 So.2d 1125 , 1128 (Miss.Ct.App. 2002) (abuse of discretion “is highly deferential”).
Ashmore v. Mississippi Auth. on Educ. Television,
¶ 21. When a discovery violation has occurred, the Court has held that dismissal is appropriate where “any other sanction beside dismissal would virtually allow the plaintiff to get away with lying under oath without a meaningful penalty.” Pierce,
¶ 22. The trial judge weighed the Pierce factors, distinguished the ease sub judice from Wood, stated two specific examples of Kinzie misrepresenting his condition, and found that “any sanction other than ... dismissal ... would result in this [cjourt’s condoning the plaintiffs conduct.” See Ashmore,
¶ 23. Accordingly, I do not hold a definite and firm conviction that trial judge abused his discretion in dismissing the case. I would affirm the judgment of the trial court.
RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.