Darlene Mubarak v. Bethany H. Sullivan

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01414-COA

DARLENE MUBARAK APPELLANT

v.

BETHANY H. SULLIVAN APPELLEE

DATE OF JUDGMENT: 09/07/2018
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON
SAMUEL STEVEN McHARD
ATTORNEY FOR APPELLEE: HERMAN M. HOLLENSED JR.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 05/12/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

TINDELL, J., FOR THE COURT:

¶1. Darlene Mubarak sued Bethany Sullivan for injuries Mubarak allegedly suffered

during an automobile collision. After finding that Mubarak had committed a discovery

violation, the Forrest County Circuit Court dismissed with prejudice her claims against

Sullivan. On appeal, Mubarak argues the circuit court abused its discretion. Finding no

error, we affirm the circuit court’s judgment dismissing Mubarak’s claims with prejudice.

FACTS

¶2. On December 18, 2012, Sullivan rear-ended Mubarak’s vehicle while Mubarak was

stopped at a traffic light. Mubarak’s mother, Dalmira Mubarak, was a passenger in
Mubarak’s vehicle at the time of the collision. On March 19, 2015, Mubarak and Dalmira

filed a complaint against (1) Sullivan, (2) the owner of the vehicle Sullivan had operated, and

(3) John Does 1-5. Mubarak and Dalmira sought “special, punitive, and compensatory

damages” for injuries they claimed they had sustained during the collision.

¶3. By an agreed order stamped as filed on March 22, 2016, the circuit court found that

all Mubarak’s and Dalmira’s claims had been settled against the owner of the vehicle that

Sullivan had operated at the time of the collision. The circuit court therefore granted the

parties’ joint motion to dismiss with prejudice the claims against the vehicle’s owner. The

circuit court noted, however, that all Mubarak’s and Dalmira’s claims against Sullivan

remained unaffected by the order.

¶4. On June 23, 2016, Sullivan filed a motion to dismiss with prejudice Mubarak’s claims

against her. Sullivan contended that Mubarak had willfully and in bad faith concealed

relevant information during her September 29, 2015 deposition. According to Sullivan,

contrary to Mubarak’s sworn deposition testimony, Mubarak’s medical and pharmacy records

revealed that Mubarak “had a history of neck and back pain prior to the subject accident[]

and that she had been treated and prescribed narcotic pain medication and other medication

for those conditions before the accident, as well as the anti-anxiety medication, Xanax.”

Sullivan contended that Mubarak had even seen her treating physician, Dr. Dorothy

Gillespie, for her complaints less than one month before the subject accident. Based on

Mubarak’s failure to disclose any of this information during her deposition, Sullivan moved

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for the dismissal of Mubarak’s claims with prejudice pursuant to Mississippi Rule of Civil

Procedure 37(b)(2)(C).1

¶5. On March 21, 2017, the circuit court entered a judgment granting Sullivan’s motion

to dismiss Mubarak’s claims with prejudice pursuant to Rule 37(b)(2)(C). The circuit court

found that Mubarak had provided copies of only certain medical records during discovery.

Mubarak’s complete medical records indicated that Mubarak had visited Dr. Gillespie on

December 16, 2011, and that in 2012, prior to the collision, she had visited Dr. Gillespie on

January 18, August 21, and November 15. The circuit court found that at each of these visits

with Dr. Gillespie Mubarak had “complained of neck and/or back pain, and medications were

prescribed.” Mubarak’s pharmacy records indicated that she filled prescriptions for Lortab,

Xanax, and Soma on January 20, 2012, September 17, 2012, and November 20, 2012.

¶6. With regard to Mubarak’s deposition testimony on September 29, 2015, the circuit

court found as follows:

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In relevant part, Rule 37(b)(2)(C) states:

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:

....

(C) 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[.]

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Contrary to her medical records, . . . [Mubarak] testified that prior to the
accident she had never been to any doctor for lower back problems, she could
think of no time other than postpartum that she may have taken medicine for
depression or anxiety, she took prescription pain medications after she had a
baby and maybe when she had pneumonia, she had never taken muscle
relaxers, and . . . if she had neck pain, it was with the flu or from stress
headaches. [Mubarak] also testified that she had been to see Dr. Gillespie
before the accident for various ailments but that she had never gone to any
doctor for neck or back pain. Given her medical records, [Mubarak] testified
falsely about her preexisting medical conditions and their treatment—including
[treatment she received] a little more than a month prior to the accident.

(Footnote omitted). Citing several Mississippi appellate opinions, the circuit court concluded

that Mubarak’s provision of deposition testimony that directly contradicted the medical and

pharmacy records about her preexisting conditions and/or treatment justified the dismissal

of her claims as an appropriate discovery sanction. The circuit court therefore granted

Sullivan’s motion to dismiss.

¶7. On September 4, 2018, the parties filed a “Stipulation of Dismissal with Prejudice,”

stating that Dalmira and the defendants had reached a settlement that fully and finally settled

all the claims between them. The parties therefore asked that the circuit court dismiss

Dalmira’s civil action with prejudice to allow Mubarak to appeal the ruling dismissing her

claims against Sullivan. On September 7, 2018, the circuit court entered an order finding that

the agreed stipulation was appropriate and meritorious and that Mubarak’s and Dalmira’s

claims had all been decided. The circuit court therefore dismissed Dalmira’s civil action with

prejudice, and Mubarak filed a notice of appeal regarding the dismissal of her claims.

STANDARD OF REVIEW

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¶8. As the Mississippi Supreme Court recently explained:

This Court reviews the trial court’s dismissal of an action for a discovery
violation for abuse of discretion. We begin with a determination of whether
the trial court applied the correct legal standard. If so, then we consider
whether the trial court’s decision was one of several reasonable ones which
could have been made. We will affirm unless there is a definite and firm
conviction that the trial court committed a clear error of judgment in the
conclusion it reached upon [the] weighing of relevant factors. This Court also
has said that it should engage in measured restraint in conducting appellate
review and should not decide whether it would have dismissed the original
action but whether dismissal amounted to clear error.

Edwards v. Coca Cola Bottling Co. United, 264 So. 3d 763, 768 (¶14) (Miss. 2019) (citations

and internal quotation marks omitted).

DISCUSSION

¶9. Mubarak’s sole argument on appeal is that the circuit court abused its discretion by

dismissing her claims against Sullivan. As provided by Rule 37(b)(2)(C), and pursuant to

“a trial court’s inherent power to protect the integrity of the judicial process, trial courts have

broad discretionary authority in discovery matters, including the power to dismiss an action.”

Edwards, 264 So. 3d at 768 (¶15). In determining whether the circuit court here abused its

discretion by dismissing with prejudice Mubarak’s claims, we consider the following:

First, dismissal is authorized only when the failure to comply with discovery
obligations results from wilfulness or bad faith, and not from the inability to
comply. Dismissal is proper only in situations where the deterrent value of
Rule 37 cannot be substantially achieved by the use of less drastic sanctions.
Another consideration is whether the other party’s preparation for trial was
substantially prejudiced. Finally, dismissal may be inappropriate 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.

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Id. at 769 (¶16) (quoting Pierce v. Heritage Props. Inc., 688 So. 2d 1385, 1389 (Miss.

1997)). Our caselaw defines “willfulness” as “either a willful, intentional, and bad[-]faith

attempt to conceal evidence or a gross indifference to discovery obligations.” Id. As

discussed, “[o]ur review is limited to whether the dismissal amounted to clear error, not

whether we would have dismissed the original action.” Id. at 773 (¶28).

¶10. In the present case, on July 13, 2015, Mubarak’s attorney provided responses to

Sullivan’s first set of interrogatories. The responses, however, lacked Mubarak’s signature

and were only signed by her attorney. Mubarak’s attorney also produced various documents,

including portions of Mubarak’s medical records from Dr. Gillespie. Sullivan asserted,

though, that the records were unauthenticated and failed to contain relevant pharmacy

records. Sullivan further asserted that the produced medical records regarding Dr. Gillespie’s

treatment only dealt with Mubarak’s visits on December 16, 2011; January 18, 2012; and

August 21, 2012, and failed to include Mubarak’s November 15, 2012 visit with Dr.

Gillespie. Sullivan acknowledged that Mubarak provided her with a medical authorization,

which Sullivan stated she used to obtain Mubarak’s authenticated medical and pharmacy

records and a complete record of Dr. Gillespie’s treatment of Mubarak.

¶11. On September 29, 2015, Sullivan’s attorney deposed Mubarak. In direct contradiction

to her medical and pharmacy records, Mubarak testified that she had never seen a physician

prior to the accident for lower back or neck problems. In addition, Mubarak testified that she

had never taken muscle relaxants; she had only ever taken anxiety or depression medication

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after having a baby; she had only taken prescription pain medication after having a baby or

contracting pneumonia; and any pre-accident neck pain she had experienced was limited to

having the flu or “stress headaches.”

¶12. As Sullivan contended in her motion to dismiss, the circuit court found that Mubarak

provided unsworn answers to Sullivan’s first set of interrogatories and had produced copies

of only certain of her medical records. The circuit court found that Mubarak’s complete

medical records showed four visits to Dr. Gillespie between December 16, 2011, and

November 15, 2012, and that at each of these four visits prior to the December 18, 2012

collision, Mubarak had “complained of neck and/or back pain” and that medications had

been prescribed for her complaints. Mubarak’s pharmacy records further revealed that on

three separate occasions between January 20, 2012, and November 20, 2012, Mubarak had

filled prescriptions for hydrocodone (Lortab), alprazolam (Xanax), and carisoprodol (Soma).

Based on Mubarak’s medical and pharmacy records, the circuit court concluded that

Mubarak had “testified falsely about her preexisting medical conditions and their

treatment—including [treatment she received] a little more than a month prior to the

accident.”

¶13. After concluding that Mubarak failed to comply with her discovery obligations by

providing false deposition testimony, the circuit court considered whether the circumstances

actually warranted the dismissal of Mubarak’s claims. As the circuit court noted, despite the

medical and pharmacy records that contradicted her deposition testimony, Mubarak never

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admitted that any such misrepresentations had occurred. In an affidavit filed in response to

Sullivan’s motion to dismiss, Mubarak stated (1) her family was from Honduras, (2) she was

born in California, and (3) Spanish was her first language and her family’s primary language.

But nowhere did Mubarak contend, nor does the record indicate, that she had difficulty

understanding or complying with her discovery obligations. Mubarak also never asserted that

she had been unable to recall the medical treatment referenced by Sullivan’s motion to

dismiss. In light of Mubarak’s misrepresentations and the absence of any credible

explanation for such, the circuit court concluded that Mubarak had knowingly failed to

answer deposition questions truthfully and was therefore not a blameless client in the matter.

¶14. Upon review, we find the circuit court was within its discretion to find that Mubarak’s

inaccurate deposition testimony resulted from willfulness and bad faith rather than an

inability to comply with her discovery obligations. In arguing on appeal that the dismissal

of her claims was unwarranted, Mubarak points out that she provided Sullivan with a medical

authorization to allow Sullivan full access to her medical records. In Edwards, however, the

supreme court rejected this very argument and found that the plaintiff’s provision of a

medical authorization failed to substantially benefit her case. Edwards, 264 So. 3d at 773-74

(¶30). The supreme court instead noted that although the trial court in Edwards had before

it the evidence of the signed medical authorization, the court had not weighed that fact in the

plaintiff’s favor in its carefully considered and articulate conclusion. Id. at 774 (¶30). The

supreme court further stated in Edwards that it had never before held a trial court was

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required “to find in every case involving false discovery responses” that a plaintiff’s signed

medical authorization demonstrated a lack of motive for deception. Id. As in Edwards, the

circuit court here had before it the evidence of Mubarak’s signed medical authorization but

still found that Mubarak had willfully failed to comply with her discovery obligations. We

conclude that such a finding was well within the circuit court’s discretion to make.

¶15. In reaching its final judgment in this case, the circuit court clearly considered but

ultimately rejected lesser discovery sanctions. For example, the circuit court considered as

alternatives to dismissal cross-examination of Mubarak at trial, charging Mubarak with any

costs Sullivan had incurred due to the misrepresentations, and reducing the amount of any

jury verdict Mubarak received. Citing Pierce, however, the circuit court concluded that any

sanction other than dismissal would allow Mubarak “to get away with lying under oath

without a meaningful penalty . . . .” Pierce, 688 So. 2d at 1391. The circuit court further

stated that any sanction other than dismissal would, at best, leave the case in the same posture

as though Sullivan had never filed her motion to dismiss. At worst, the circuit court found

any alternative sanction would provide Sullivan without any remedy for Mubarak’s

seemingly deliberate subversion of the judicial process.

¶16. As a final consideration, the circuit court discussed the prejudice, if any, that Sullivan

had experienced due to Mubarak’s misrepresentations. The misrepresentations would require

Sullivan to conduct further discovery and incur further expense. In addition, any subsequent

treatment Mubarak had sought would make it difficult, if not impossible, to separate the costs

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attributable to Mubarak’s pre-existing condition from those associated with the collision.

The circuit court therefore concluded that Sullivan had suffered substantial prejudice.

¶17. The circuit court here “properly analyzed [Mubarak’s] discovery violations, applied

appropriate weight to each misrepresentation, and arrived at a justifiable conclusion.”

Edwards, 264 So. 3d at 775 (¶34) (quoting May v. Austin, 240 So. 3d 389, 398 (¶31) (Miss.

2018)). Because the circuit court applied the correct legal standard and we cannot say “there

is a definite and firm conviction that the trial court committed a clear error of judgment in

the conclusion it reached upon [the] weighing of relevant factors[,]” we find this assignment

of error lacks merit. Id. at 768 (¶14) (quoting Pierce, 688 So. 2d at 1388)).

CONCLUSION

¶18. Because we find the circuit court acted within its discretion by dismissing with

prejudice Mubarak’s claims against Sullivan, we affirm the circuit court’s judgment.

¶19. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION.

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