Gigi Kilhullen v. Kansas City Southern Railway Company
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-01564-COA
GIGI KILHULLEN
APPELLANT
v.
KANSAS CITY SOUTHERN RAILWAY AND
ROBERT W. LAY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
8/24/2006
HON. V. R. COTTEN
SCOTT COUNTY CIRCUIT COURT
BARRY W. GILMER
REID S. BRUCE
CHARLES E. ROSS
WILLIAM B. LOVETT
CIVIL - WRONGFUL DEATH
SUMMARY JUDGMENT GRANTED TO
KANSAS CITY SOUTHERN RAILWAY
COMPANY AND ROBERT W. LAY
AFFIRMED – 04/01/2008
BEFORE MYERS, P.J., IRVING AND ISHEE, JJ.
IRVING, J., FOR THE COURT:
¶1.
Gigi Kilhullen sued Kansas City Southern Railway (KC Southern) and Robert Lay
(collectively, the Appellees), alleging that they caused the wrongful death of her husband, Thomas
Kilhullen. Following discovery, the Scott County Circuit Court granted summary judgment on
behalf of the Appellees. Aggrieved, Kilhullen appeals and asserts that the court erred (1) in rejecting
the affidavit of Jimmy Shelton, whom Kilhullen offered as a lay witness; (2) in rejecting the affidavit
of Jimmy Halfacre, an engineer hired by Kilhullen; (3) in rejecting the affidavit of Brett Alexander,
an accident reconstructionist hired by Kilhullen; (4) in granting KC Southern and Lay’s motion for
summary judgment, and (5) in setting out a schedule for discovery that allowed the Appellees to
conduct discovery while Kilhullen could not.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On June 20, 2000, Thomas, a tractor-trailer operator, had just picked up a load at
International Paper Company’s plant in Morton, Mississippi, when he proceeded south on Herring
Road away from the plant. As Thomas proceeded south to a nearby railroad crossing, over the
railroad tracks, he was hit by a KC Southern train operated by Lay, an engineer. Thomas died from
his injuries.
¶4.
Lay stated that he blew the train’s whistle repeatedly and put the train “in emergency” in an
attempt to avoid the accident. Only one non-party eyewitness, Classie Ward, is known to exist.
Ward stated in an affidavit that she observed Thomas moving very slowly over the railroad tracks.
In Ward’s opinion, Thomas should have been able to see the train and should have been able to
avoid the accident by not passing over the railroad tracks in question.
¶5.
On December 4, 2001, Kilhullen filed suit against the Appellees, alleging that they allowed
the line of sight at the crossing to become obstructed.1 Discovery was conducted by all parties, and
several continuances were ordered. On October 22, 2004, the Appellees filed a motion for summary
judgment, alleging that Kilhullen had failed to raise a genuine issue of material fact. Shortly
thereafter, Kilhullen noticed the depositions of seventeen different individuals. Pursuant to the
notice, Kilhullen filed a motion to hold the motion for summary judgment in abeyance due to the
1
The complaint was also filed against International Paper and Illinois Central Gulf Railroad
Company. Both of those parties have been released from the suit and are not parties to this appeal.
The complaint also proposed several theories of negligence; however, line of sight is the only theory
alleged on appeal.
2
outstanding depositions. On the day before the scheduled summary judgment hearing, Kilhullen
produced affidavits from Shelton and Halfacre in opposition to the motion for summary judgment.
¶6.
On November 19, 2004, Kilhullen filed a motion to compel discovery from the Appellees.
The Appellees filed a motion to strike the motion to compel on December 7, 2004, arguing that
Kilhullen had not made a good faith effort to resolve the discovery issues before filing the motion
to compel. The same day, the Appellees filed a motion to quash Kilhullen’s attempt to take the
depositions of the seventeen noticed witnesses. On December 15, the Appellees filed a reply in
further support of their motion for summary judgment and a motion to strike Shelton’s affidavit on
the ground that he was not offering a lay opinion. On January 3, 2005, Kilhullen filed a response
to the motion to strike the affidavit, arguing that Shelton was indeed testifying as a lay witness. On
January 5, 2005, the court held a hearing but did not finally rule on the motion for summary
judgment.
¶7.
On January 25, 2005, the court put a moratorium on any further discovery in the case, with
the exception that the Appellees could depose Halfacre and Shelton, whose identities had been
disclosed only in response to the motion for summary judgment. The court also held the motion for
summary judgment in abeyance pending a hearing on whether Shelton and Halfacre’s affidavits
were admissible. Despite the court’s moratorium, on August 19, 2005, Kilhullen’s attorney
informed the Appellees that Kilhullen had another witness, Alexander, an accident reconstructionist
whose opinion would be offered to bolster Halfacre’s findings. An affidavit from Alexander was
filed on April 20, 2006.
¶8.
After a hearing in June 2006, the trial court rendered a final opinion disposing of both the
discovery issues and the motion for summary judgment, which the court found were “inextricably
joined or intertwined.” The court found that Shelton’s and Halfacre’s affidavits were inadmissible
3
because neither was qualified to render an opinion under Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993).
The court also found that Alexander’s affidavit was inadmissible.
Accordingly, the court found that there was no genuine issue of material fact and granted summary
judgment on behalf of the Appellees. In its opinion, the court erroneously stated that Lay, the
engineer who drove the train, was the only eyewitness to the accident. In reality, the accident was
also witnessed by Ward, who was near enough to the railroad crossing to observe what happened.
¶9.
Additional facts, as necessary, will be related during our analysis and discussion of the
issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Admissibility of Shelton’s Affidavit
¶10.
Kilhullen argues that Shelton’s affidavit was admissible as the opinion of a lay witness. Rule
701 of the Mississippi Rules of Evidence governs the admissibility of lay witness testimony:
If the witness is not testifying as an expert the witness’s testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b) helpful to the clear
understanding of the testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.
(Emphasis added).
¶11.
Shelton’s opinion was not admissible as lay testimony because it was based on “scientific,
technical, or other specialized knowledge.” Essentially, Shelton’s opinion was that of an expert,
except that he was not qualified as such. To illustrate, we quote at length from Shelton’s affidavit:
My name is Jimmy Shelton. I was reared and attended school in Leake County,
Mississippi. I am employed as a paralegal and investigator with the Gilmer Law
Firm and have been so employed since April, 2002.
****
I have visited the site of the accident on two occasions. I have observed three trains
traveling over the subject grade crossing. I positioned myself fourteen feet from the
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railroad track headed south on Herring Road. The line of visibility to the east along
the railroad track at which time one could first possibly visualize the oncoming train
is approximately three hundred seventy-five feet from the crossing. I observed
numerous vehicles such as compact and full size automobiles, pick-up trucks, school
buses and other vehicles cross the tracks after coming to a complete stop. Said
vehicles required a minimum of six seconds and a maximum of eight seconds to cross
the tracks operating under usual conditions.
The railroad tracks are eighteen feet in width at the crossing and the tracks run in an
east and west direction. The railroad guard device which lowers as the train
approaches is situated fourteen feet from the nearest track. Herring Road crosses the
railroad track at approximately a seventy degree angle. If the tractor trailer rig
driven by Mr. Kilhullen stopped two feet to the north of this railroad guard device,
then Mr. Kilhullen’s head would have been situated approximately twelve feet north
of the guard device. Given that Mr. Kilhullen’s seat of his truck was five feet off the
ground at the position of his truck at the crossing, his line of sight was approximately
three hundred seventy-five feet to the point he could have first seen the locomotive
with vegetation presently cleaned from the area. The original photographs taken
immediately after the accident show vegetation at the point his line of sight would
have allowed him visibility of the oncoming train. Therefore his visibility was
materially shortened to a distance of less than three hundred seventy-five feet.
I observed an empty school bus come to a full stop and cross the railroad tracks
which required a total of eight seconds and a second empty school bus which
required seven seconds to cross the tracks. The Kilhullen tractor trailer rig exceeded
fifty feet long loaded with lumber and would require in excess of eight seconds such
as the school bus to completely cross the subject railroad tracks. Considering that
the admitted speed of the train was fifty miles per hour which constitutes seventy
three and one third feet per second and considering the point that Mr. Kilhullen
could first see the front of the locomotive of the train, he would have had
approximately five seconds to move the tractor trailer rig across the tracks.
Simple arithmetic calculations commonly learned by junior high and high school
children allow a lay person to make the elementary calculations and draw the proper
conclusions of the movement of Mr. Kilhullen’s truck and the speed of the train. I
am an experienced truck driver having operated tractor trailer rigs hauling farm
equipment and other heavy equipment. Considering that the Kilhullen rig was fully
loaded with lumber and his rig was approximately fifty feet long, the front bumper
of his truck was approximately two feet from the guard device (sixteen feet from the
north track), the distance from the guard device to the north side of the tracks is
fourteen feet and the distance from the north side of the tracks to the south side of the
tracks is eighteen feet, then Mr. Kilhullen’s rig would have to move from a dead stop
to a distance of eighty-six feet in order to completely clear the south side of the track.
In my years of experience of operating tractor trailer rigs and heavy equipment this
would require at least fourteen seconds. Therefore, considering the train was
traveling at fifty miles per hour (seventy three and one third feet per second) and
Kilhullen’s first possible visual contact was at three hundred seventy-five feet, it
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would have been impossible for Kilhullen to move his truck across the tracks and
clear the tracks before being struck by the train.
****
The grade crossing is elevated approximately ten feet as compared to the railroad
track running to the east. This further obscures the visibility of an oncoming
locomotive and train.
(Emphasis added).
¶12.
As can be seen from Shelton’s affidavit, his opinion was based entirely on mathematical
formulae and measurements. Presumably, they are the same measurements and formulae that an
experienced accident reconstructionist would use to render his conclusions. Shelton, however, has
no training or expertise as an accident reconstructionist. While some high school students might be
able to work through the formulae, they would be as unqualified as Shelton to render an expert
opinion based on those formulae. A lay witness is someone who offers opinion testimony regarding
something they know from first-hand knowledge, not something they concluded from applying
technical formulae. Shelton clearly was not offering a lay opinion, nor was he qualified to render
an expert opinion. Therefore, his affidavit was properly excluded by the court.
¶13.
This contention of error is without merit.
2. Halfacre’s Affidavit
¶14.
Kilhullen contends that the court was in error for finding that Halfacre’s opinion was
inadmissible. The admissibility of an expert witness’s testimony is governed by Rule 702 of the
Mississippi Rules of Evidence, which states that a relevant expert who is “qualified as an expert by
knowledge, skill, experience, training, or education” may testify if: “(1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.”
6
¶15.
Questions regarding the admission of expert testimony are left to the discretion of the trial
court. Giannaris v. Giannaris, 960 So. 2d 462, 469 (¶14) (Miss. 2007). We will not reverse the
court’s decision unless there was an abuse of discretion such that the decision was “arbitrary and
clearly erroneous . . . .” Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4)
(Miss. 2003)). According to Daubert, which the Mississippi Supreme Court adopted in McLemore,
“[t]he trial court is vested with a ‘gatekeeping responsibility.’” McLemore, 863 So. 2d at 36 (¶11)
(quoting Daubert, 509 U.S. at 589).
¶16.
During his deposition, after being asked about his areas of expertise, Halfacre stated:
I’m not representing myself as being proficient in any of the areas that you
mentioned. I’m not an accident reconstructionist. I am not a street designer,
railroad designer or any of the above. My involvement in this is limited specifically
to looking at time and distance measurements and doing a calculation on what two
bodies, in this case a train and truck, would travel in a given and specified length of
time and comparing that time distance to the measured field of vision. That’s the
only two components that I am -- consider myself appropriate to testify to.
(Emphasis added). Halfacre then stated unequivocally that he was not qualified to render an opinion
as an accident reconstructionist. He also stated that the manual he used to determine which formulae
to use was titled “Train Accident Reconstruction Manual.”
¶17.
Halfacre was not qualified to offer an expert opinion in this matter. While he was an
engineer, his education was in electrical engineering and the majority of his experience was in
conducting home inspections. On his résumé, Halfacre stated: “I am in private practice as a
Registered Professional Engineer. I do consulting in the area of building science and light structure.
As such, I inspect, evaluate, write and oversee repair/remediation of buildings and foundation
systems.” Nowhere did Halfacre claim any knowledge of accident reconstruction or the methods
and formulae normally used therein. In order to render an expert opinion, an expert must be
“qualified as an expert by knowledge, skill, experience, training, or education.” Had Halfacre’s
7
opinion concerned electrical engineering or home inspections, he would likely have been qualified
to render his opinion. However, Halfacre’s testimony rendered opinions regarding very specific
details of how a particular accident occurred, including how much time Thomas had to move his
truck across the subject railroad tracks given the speed of the train, the length of Thomas’s truck,
and the speed of Thomas’s truck. Such testimony, regardless of Kilhullen’s arguments to the
contrary, are clearly an attempt at accident reconstruction. Halfacre had no experience or training
whatsoever regarding accident reconstruction, as he admitted during his deposition. Therefore,
Halfacre was not qualified to render the expert opinion in question. We cannot find that the court
abused its discretion when it refused to admit Halfacre’s opinion.
¶18.
As support, Kilhullen cites numerous cases where she claims “civil” engineers like Halfacre
were ruled as qualified to render an accident reconstruction opinion. Kilhullen first cites Illinois
Central Railroad Co. v. Hawkins, 830 So. 2d 1162 (Miss. 2002). However, in Hawkins there was
no issue made of whether the civil engineer in that case was qualified to render an accident
reconstruction opinion; therefore, it is impossible for this Court to know whether the engineer in that
case had any special knowledge or training that qualified him to render his opinion. Presumably he
did, since the court allowed him to present expert testimony. Id. at 1178 (¶39). Hawkins is of no
help to Kilhullen.
¶19.
Kilhullen next cites Bowman v. CSX Transportation. Inc., 931 So. 2d 644 (Miss. Ct. App.
2006), wherein one engineer who did not have any experience with railroad grade engineering was
allowed to testify, and another engineer who had experience only with teaching courses regarding
railroad grades was allowed to testify. Id. at 656-57 (¶¶44-47). Nothing in the Bowman opinion
suggests that either engineer had no training or experience whatsoever regarding accident
8
reconstruction or trains, as is the case here. Clearly, Bowman is distinguishable from the present
case.
¶20.
Kilhullen also cites Illinois Century Gulf Railroad Co. v. Milward, 902 So. 2d 575, 578 (¶14)
(Miss. 2005), contending that a civil engineer was allowed to testify in that case regarding “the
safety of a railroad crossing.” While this is true, the engineer in that case listed his “fields of
consultation in transportation” as: “highway safety, highway design, traffic engineering, accident
reconstruction and human factors related to those things. He also consulted in the field of railroad
crossing operation.” Id. at 578 (¶14). From the opinion, it appears as though the expert had
previously testified in the relevant fields and had experience in those fields. Regardless, the
engineer’s qualifications were not addressed on appeal, and in the absence of any evidence that he,
like Halfacre, had no training or experience whatsoever in accident reconstruction or train safety,
we must conclude that he had such experience in order to be qualified as an expert. Milward is also
of no help to Kilhullen.
¶21.
Kilhullen also cites a number of cases from other jurisdictions. Such cases would not
constitute binding authority on this Court, and for expediency’s sake, we do not go into any of the
cases in detail. Suffice it to say that a review of the cases has revealed that they are also of no help
to Kilhullen. Although most of the cases involve individuals who are civil engineers, we note that
it is not Halfacre’s title that is the problem. If Halfacre were a civil engineer with extensive training
or experience regarding accident reconstruction or train safety, he likely would have been qualified
to render the opinion that he did. However, Halfacre had no experience in any field relevant to his
opinion. Nothing Kilhullen has presented indicates that the court abused its discretion in denying
Halfacre’s affidavit.
9
¶22.
Additionally, some of Halfacre’s answers during his deposition bring into question the
accuracy of his conclusions. For example, Halfacre testified that he did not know what type of train
was involved in the subject accident, nor the height of the train. Halfacre also stated that he did not
know at what height Thomas was seated when he was killed. Furthermore, Halfacre testified that
he did not know what sort of lights were on the train, nor where any such lights were located.
Although Halfacre testified that he believed the line of sight from left to right was more important
than the vertical line of sight, he admitted that there was some slope involved but “that the elevations
of the track were not as relevant as . . . was the line of sight . . . looking toward the east . . . .”
However, even with regard to the horizontal line of sight, Halfacre admitted that he did not do any
calculations that would take into account Thomas’s increasing line of sight as he moved toward the
railroad tracks. Rather, Halfacre stated that all of his measurements assumed that Thomas was fifty
feet from the tracks.
¶23.
Halfacre also testified that he did not take into account any braking done by the train after
the engineer observed Thomas on the tracks. It is undisputed that Lay attempted to slow the train
after seeing Thomas. Furthermore, Halfacre admitted that he had no idea exactly how heavy a load
Thomas was carrying on his truck, the state of Thomas’s brakes, nor how long it would have taken
Thomas to come to a complete stop. As all of these facts – vertical line of sight, horizontal line of
sight, placement of any lights, and any braking done by the train or Thomas – would be essential in
understanding what line of sight Thomas had and whether Thomas could have safely avoided the
train, it is unclear how Halfacre was able to formulate his conclusions without this data. These
deficiencies further support the court’s decision to rule Halfacre’s opinion inadmissible.
¶24.
This contention of error is also without merit.
3. Alexander’s Affidavit
10
¶25.
Alexander’s affidavit was offered to prove that Halfacre’s conclusions were correct.
Essentially, Alexander reevaluated the relevant data and formulae and confirmed that he reached the
same conclusions as Halfacre. Kilhullen offers little legal authority for her contention that
Alexander’s affidavit should have been considered by the court. However, she does contend that
Alexander’s affidavit was timely filed because the court had delayed a final hearing on the
Appellees’ summary judgment motion pending the outcome of the court’s Daubert hearing. Thus,
Kilhullen contends that, under Rule 56(c) of the Mississippi Rules of Civil Procedure, she had until
the day before the final hearing to file affidavits.
¶26.
After the first summary judgment hearing, the court delayed ruling until after it had
addressed the admissibility of Kilhullen’s expert witnesses. Because the Daubert issues were crucial
to the court’s determination of summary judgment, the second hearing addressed both the
admissibility of the affidavits and whether summary judgment should be granted. Although the
second hearing addressed the propriety of summary judgment, the only new information to be
addressed at the hearing was the admissibility of Kilhullen’s expert witnesses. Any actual facts in
support of summary judgment should therefore have been submitted prior to the January 2005
summary judgment hearing. After the January 2005 hearing, the court put a moratorium on any
further discovery. Under the circumstances, as we will discuss in more detail later, we cannot find
that that decision was in error. Therefore, Alexander’s affidavit was admissible only in support of
Kilhullen’s Daubert arguments, if at all.2
¶27.
Kilhullen contends that Alexander’s affidavit was admissible to show the validity of
Halfacre’s conclusions. We find that the court correctly ruled regarding this use of Alexander’s
affidavit, as Alexander did not offer any opinion as to Halfacre’s qualifications or expertise. As we
2
We also note that Alexander was not formally designated as an expert prior to Kilhullen’s
filing of his affidavit.
11
have discussed, Halfacre’s opinion was inadmissible because he was not qualified in the field in
which he was attempting to tender an opinion. Alexander’s affidavit did nothing to remedy that
situation.
¶28.
This contention of error is also without merit.
4. Propriety of Summary Judgment
¶29.
Since we have found that Kilhullen’s proposed affidavits were properly rejected by the court,
we also find that summary judgment was properly entered against Kilhullen. Kilhullen presented
no other evidence to raise a genuine issue of material fact. Where no genuine issue exists, summary
judgment is properly granted. M.R.C.P. 56(c). When reviewing the propriety of summary
judgment, we conduct our review de novo. Jackson Clinic for Women, P.A. v. Henley, 965 So. 2d
643, 649 (¶11) (Miss. 2007).
¶30.
The court properly denied the proffered opinions of Shelton, Halfacre, and Alexander; and
Kilhullen offered no further proof regarding whether the line of sight at the track was obstructed.
Furthermore, Kilhullen has offered no proof regarding Thomas’s failure to observe the train’s
whistle before he began his attempt to cross the tracks. It is uncontradicted that Lay, the engineer
who operated the train that hit Thomas, sounded the train’s horn repeatedly before he collided with
Thomas. Lay testified that he began sounding the whistle at the appropriate whistle board, meaning
that Thomas should have had notice of the train well before it came into his line of sight. Kilhullen
has offered nothing to explain why the train’s whistle was insufficient to prevent Thomas from
attempting to cross the railroad tracks as the train approached.
¶31.
Additionally, the affidavits did not establish what would have happened had Kilhullen
attempted to stop rather than attempt to cross the train tracks in front of the train. As stated by
Halfacre, Thomas did not have time to clear the tracks starting from a position fifty feet from the
tracks. Nothing in the affidavits addressed Thomas’s choice to attempt to clear the tracks in the first
12
place. Furthermore, Ward, the only eyewitness to the accident other than Lay, stated in her affidavit
that the accident was clearly Thomas’s fault due to his failure to properly check for the oncoming
train before attempting to cross the tracks.
¶32.
Kilhullen argues at length that there is a genuine issue of material fact because of Ward’s
existence. To date, Kilhullen has presented nothing to indicate that Ward would create a genuine
issue of material fact in favor of Kilhullen regarding the accident. In fact, Ward’s affidavit indicates
the opposite. As already discussed, she stated unequivocally that the accident was the result of
Thomas’s failure to maintain a proper lookout for the train. Kilhullen had ample time both before
summary judgment and before her appeal to this Court to produce some statement from Ward
contradicting her clear statements in her affidavit, but Kilhullen has not done so. Without further
proof that Ward could present a genuine issue of material fact in favor of Kilhullen, her mere
existence is insufficient to prevent the entry of summary judgment.
¶33.
Kilhullen also contends that summary judgment was improper because Halfacre’s opinion
regarding the line of sight should have been sufficient to create a genuine issue of material fact. As
we have already discussed, the court properly rejected Halfacre’s opinion because he was not
qualified to offer it. In response to the argument that accident reconstruction testimony was not
necessary in this case, we refer to our earlier points regarding the glaring holes in Halfacre’s
opinion: the height of Thomas’s truck, the height of the train, the additional time that Thomas would
have had as a result of the train braking, the effect that Thomas’s increasing line of sight would have
had on his ability to stop, and how long it would have taken Thomas to come to a complete stop at
his assumed rate of speed. Presumably, an expert qualified to render accident reconstruction
testimony would have been able to address all of these factors. Halfacre, on the other hand, was
completely unable to do so. This case cannot be disposed of by a simple calculation without taking
13
into account the numerous other factors that had an impact on the accident. While extensive
accident reconstruction testimony might not have been required to overcome summary judgment,
Kilhullen still must provide testimony regarding line of sight from someone qualified to do so. As
we have already found, Halfacre was not qualified to render such an opinion. Therefore, his
calculations cannot serve to prevent summary judgment.
¶34.
The court did not err in granting summary judgment to the Appellees.
5. Discovery Schedule
¶35.
Kilhullen contends that the court erred in allowing the Appellees to conduct discovery while
at same time preventing her from doing so. She specifically complains of the court’s refusal to allow
her to depose a number of witnesses whose depositions she sought to take in response to the
Appellees’ motion for summary judgment.
¶36.
We note that the court did not allow the Appellees to conduct any discovery they wanted;
rather, the court put a moratorium on all discovery, except that the Appellees were allowed to depose
Kilhullen’s expert witnesses whose affidavits had just been submitted. The court did not abuse its
discretion in so ordering. It appears that Kilhullen had known about the existence of all of the
witnesses that she sought to depose for quite some time, but she had never sought to depose any of
them. Kilhullen complains especially about her inability to depose Ward, who Kilhullen contends
might have been able to provide crucial information. However, it is clear that Ward’s existence as
an eyewitness was known to Kilhullen for many months before she sought to depose Ward.
Furthermore, given Ward’s candid statements in her affidavit to the effect that the accident was
entirely Thomas’s fault, it is doubtful that Ward’s deposition would have been of any help to
Kilhullen.
¶37.
Kilhullen points to the fact that the Appellees filed motions shortly before the motion for
summary judgment wherein it was stated that “the parties are in agreement that this matter is not
14
ready for trial.” We note that simply because a matter is not ready for trial does not automatically
mean that discovery is still ongoing. In fact, it appears from the record that the Appellees had
concluded the majority of their discovery several months prior to filing the motion for summary
judgment, and Kilhullen had not actively pursued discovery from the Appellees since sometime in
mid-2002, more than two years prior to the filing of the Appellees’ motion for summary judgment.
Kilhullen cites several cases for the proposition that summary judgment cannot be granted when it
is clear that discovery is ongoing in a case. However, since the Appellees appeared to have finished
their discovery and since Kilhullen had not pursued discovery for over two years, discovery in this
case appeared to have been completed prior to the court’s entry of summary judgment. While
Kilhullen suddenly wanted to conduct further discovery after the filing of the motion for summary
judgment, the court did not err in forbidding her to do so. Kilhullen had had ample time to conduct
discovery but had chosen not to do so. This fact distinguishes her case from those she cites. See
Burkhalter & Co. v. Wissner, 602 So. 2d 835, 838 (Miss. 1992).
¶38.
Under the circumstances, we do not find that the court abused its discretion in putting a
moratorium on discovery. As stated by the Mississippi Supreme Court: “Our trial judges are
afforded considerable discretion in managing the pre-trial discovery process in their courts,
including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial
preparation resulting in timely disposition of the cases.” City of Jackson v. Presley, 942 So. 2d 777,
781 (¶7) (Miss. 2006) (quoting Bowie v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (¶14)
(Miss. 2003)).
¶39.
This contention of error is also without merit.
¶40. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
15
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.
16
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