Plaintiff needed expert's opinion, Miss. SC rules

Jessica M. Karmasek May 2, 2011, 10:22am


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has upheld a trial court's ruling in favor of a company that makes carbon compounds and treated wood products, saying the plaintiff suing it failed to provide expert opinions.

Shirley Collins filed a lawsuit against Koppers Inc. and several other defendants, alleging she was injured as a result of exposure to toxic chemicals allegedly emitted by a wood treatment facility.

After Collins repeatedly failed to comply with a court order to provide expert opinions saying as much, the defendants filed a motion to dismiss.

The Grenada County Circuit Court granted the motion to dismiss and awarded the defendants attorneys fees.

The state's high court, in its April 21 ruling, said it found no abuse of discretion and affirmed the lower court's ruling. Justice Ann Hannaford Lamar wrote the Court's opinion.

Collins argued that dismissal was improper because the record does not reflect delay or "contumacious conduct," the trial judge did not consider lesser sanctions and no aggravating factors are present. However, the defendants argued that Collins never raised those arguments before the trial court.

The Court sided with the defendants, saying Collins is procedurally barred from arguing the issues before it. Procedural bar notwithstanding, the Court said it found no abuse of discretion on the part of the trial court.

"A careful review of the record reflects a clear pattern of delay by Collins and her attorneys," it wrote.

The Court said Collins has, for more than three years, refused to provide the defendants with any meaningful expert-witness information. "We find that a clear record of delay exists in this case," it wrote.

The record, it said, indicates Collins' "continued refusal" to provide the expert information, as well as her defiance of the trial court's direct order to provide it. Hence, the Court said it finds that lesser sanctions would not suffice.

The record also shows that "intentional conduct" caused delay in the proceedings, the Court said.

"The defendants' discovery requests have been pending since 2006. Collins repeatedly has referred to the opinions of experts from other, related litigation in several of her pleadings, yet she has failed to this day to produce any expert evidence specific to her claims.

"She has made no attempt to explain why she has been unable to obtain any expert information that pertains specifically to her claims. We find that Collins purposely has delayed this litigation."

The Court added, "It is obvious that the trial judge exercised considerable patience and restraint in dealing with the delays caused by Collins' counsel. The record is replete with instances of the failure of Collins' counsel to abide by the orders of the trial court."

In its ruling, the Court said it also found no abuse of discretion in the awarding of attorneys fees and upheld the judgment.

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