IN THE SUPREME COURT OF MISSISSIPPI CASE NO: 2015-TS ORAL ARGUMENT NOT REQUESTED

E-Filed Document Jun 30 2016 11:16:10 2015-CA-01517 Pages: 24 IN THE SUPREME COURT OF MISSISSIPPI CASE NO: 2015-TS-01517 JIMI MOSELY, Individually and as Proposed Guardian of the Estate of GERBORIA MAYFIELD, and on behalf of THE HEIRS AND WRONGFUL DEATH BENEFICIARIES OF GERBORIA MONIQUE MAYFIELD, DECEASED APPELLANTS VS. GREGORY W. CHILDREY, M.D. APPELLEE BRIEF OF APPELLEE GREGORY W. CHILDREY, M.D. ON APPEAL FROM THE CIRCUIT COURT OF LOWNDES COUNTY ORAL ARGUMENT NOT REQUESTED BRUNINI, GRANTHAM, GROWER & HEWES, PLLC J. Gordon Flowers, MS Bar No. 5378 Scott F. Singley, MS Bar No. 100134 Post Office Box 7520 Columbus, Mississippi 39705-0024 Telephone: (662) 240-9744 Facsimile: (662) 240-4127 gflowers@brunini.com ssingley@brunini.com Lauren O. Lawhorn, MS Bar No. 103896 Post Office Drawer 119 Jackson, MS 39205-0119 Telephone: (601) 948-3101 Facsimile: (601) 960-6902 llawhorn@brunini.com Counsel for Gregory W. Childrey, M.D. 02349971

IN THE SUPREME COURT OF MISSISSIPPI CASE NO: 2015-TS-01517 JIMI MOSELY, Individually and as Proposed Guardian of the Estate of GERBORIA MAYFIELD, and on behalf of THE HEIRS AND WRONGFUL DEATH BENEFICIARIES OF GERBORIA MONIQUE MAYFIELD, DECEASED APPELLANTS VS. GREGORY W. CHILDREY, M.D. APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that this Court may evaluate possible disqualification or recusal. 1. Jimi Mosely, Appellant; 2. Carlos E. Moore, Darryl A. Wilson, Tangela L. Hollis, Nicole Clinkscales, Counsel for Appellant; 3. Gregory W. Childrey, M.D., Appellee; 4. J. Gordon Flowers, Scott F. Singley, Lauren O. Lawhorn, Counsel for Appellee; 5. Honorable Lee J. Howard, Circuit Court Judge of Lowndes County. SO CERTIFIED, this the 30th day of June, 2016. /s/ Lauren O. Lawhorn Lauren O. Lawhorn Counsel for Gregory W. Childrey, M.D. 02349971 ii

STATEMENT REGARDING ORAL ARGUMENT Given the ample case law supporting the Circuit Court s orders appealed from in this matter, Dr. Childrey believes oral argument is not necessary. 1 1 Only pre-trial orders are challenged on appeal. No trial rulings are questioned. 02349971 iii

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... ii STATEMENT REGARDING ORAL ARGUMENT... iii TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... v STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 I. Nature of the Case...1 II. Course of Proceedings in the Court Below...2 III. Statement of Facts...5 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 6 I. Standard of Review...6 a. Motions to Amend....6 b. Motions to Consolidate....7 II. The Circuit Court did not Abuse its Discretion in Denying Mosely's Motions Because Mosely's Conduct Precipitated the Court's Rulings...7 a. Mosely Unduly Delayed and Acted with Dilatory Motive in Bringing Her Motions, and Repeatedly Failed to Cure Her Deficiencies....7 b. The Relief Requested by Mosely would have Prejudiced Dr. Childrey and Not Served the Ends of Justice....12 c. Mosely's Motions were Futile....14 CONCLUSION...17 CERTIFICATE OF SERVICE...18 02349971 iv

TABLE OF AUTHORITIES Cases Andrews v. Arceo, 988 So. 2d 399 (Miss. Ct. App. 2008)...15 Arceo v. Tolliver, 19 So. 3d 67 (Miss. 2009)...15, 16 Carpenter v. Kenneth Thompson Builder, Inc., 186 So. 3d 820 (Miss. 2014)...14 Dear v. Jackson State Univ. 2008 WL 4225766 (S.D. Miss. Sept. 10, 2008)...12, 13 Doe v. Miss. Blood Serv., Inc., 704 So. 2d 1016 (Miss. 1997)...16 Estate of McLemore v. McLemore, 63 So. 3d 468 (Miss. 2011)...14 Fowler v. White, 85 So. 3d 287 (Miss. 2012)...15 Harris v. Darby, 17 So. 3d 1076 (Miss. 2009)...16 Harris v. Miss. Valley State Univ., 873 So. 2d 970 (Miss. 2004)...10 Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206 (Miss. 2001)...10, 11 Hosp. MD, LLC v. Larry, 138 So. 3d 922 (Miss. 2014)...15 Lane v. R.J. Reynolds Tobacco Co., 853 So. 2d 1144 (Miss. 2003)...11 Lowery v. Statewide Healthcare Serv., Inc., 585 So. 2d 778 (Miss. 1991)...15 Mahaffey v. Maner, 47 So. 3d 1190 (Miss. Ct. App. 2010)...13 Mulligan v. Farmingdale Union Free Sch. Dist. No. 22, 133 A.D. 2d 617 (N.Y. Sup. Ct. App. Div. 1987)...11, 13 Par Indus., Inc. v. Target Container Co., 708 So. 2d 44 (Miss. 1998)...13 Rawson v. Jones, 816 So. 2d 367 (Miss. 2001)...16 Reeve v. Union Pac. R.R. Co., 794 F. Supp. 1060 (D. Kan. 1992)...11 R.J. Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2005)...11 Satterfield v. State, 158 So. 3d 380 (Miss. Ct. App. 2015)...11 02349971 v

St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass n of New Orleans, Inc., 712 F.2d 978 (5th Cir. 1983)...11 Stoner v. Colvin, 236 Miss. 736, 110 So. 2d 920 (Miss. 1959)...7, 13 Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86 (Miss. 2010)...15 Webb v. Braswell, 930 So. 2d 387 (Miss. 2006)...6, 7, 9, 10, 13 Williams v. Skelton, 6 So. 3d 428 (Miss. 2009)...15 Wilner v. White, 929 So. 2d 315 (Miss. 2006)...16 Statutes MISS. CODE ANN. 15-1-36...2, 15 MISS. CODE ANN. 15-1-69...16 Other MISS. R. CIV. P. 1...14 MISS. R. CIV. P. 3...16 MISS. R. APP. P. 4...3 MISS. R. CIV. P. 9...16 MISS. R. CIV. P. 12...11 MISS. R. CIV. P. 15...10, 11, 16 88 C.J.S. Trial 6...7 02349971 vi

STATEMENT OF THE ISSUES 1. The Circuit Court did not abuse its discretion in denying Mosely s two Motions to Amend and two Motions to Consolidate where Mosely delayed unreasonably, acted with dilatory motive, the relief requested would have caused undue prejudice to Dr. Childrey, and the relief requested was futile. STATEMENT OF THE CASE I. Nature of the Case. Mosely created a procedural nightmare and now complains without good basis. Mosely sued Dr. Childrey and Baptist Memorial Hospital-Golden Triangle ( BMH-GT ) claiming medical negligence; BMH-GT was dismissed without prejudice based on Mosely s failure to plead proximate cause; Mosely failed to promptly refile or attempt an interlocutory appeal; Mosely filed an untimely Motion to Amend, which was rejected; After filing a second lawsuit against BMH-GT, Mosely filed a Motion to Consolidate, which was rejected; One year later, without offering any new evidence, Mosely filed a second Motion to Consolidate and verbally re-urged her Motion to Amend, both of which were rejected. Because Mosely unreasonably delayed and because her second lawsuit was improper, the Circuit Court s orders rejecting Mosely s motions were proper. 02349971 1

II. Course of Proceedings in the Court Below. This appeal stems from a medical malpractice action. 2 This timeline illustrates Mosely s lack of diligence: August 23, 2011: August 21, 2013: August 22, 2013: October 22, 2013: November 1, 2013: November 22, 2013: November 26, 2013: Statute of limitations on Mosely s claims commences upon her death. MISS. CODE ANN. 15-1-36. Date of Mosely s pre-suit notice letter to Dr. Childrey and BMH-GT. C.P. 1:40-43. 3 Statute of limitations expires as to BMH-GT, Brandy Adams Hall ( Hall ), and Jennifer Gillam ( Gillam ). MISS. CODE ANN. 15-1-36. 4 Mosely files Complaint against Dr. Childrey and BMH-GT, Cause No. 2013-0116-CV1 ( Mosely I ). C.P. 1:18-24. Mosely files operative First Amended Complaint. C.P. 1:27-33. 5 Mosely s current counsel enters appearance as lead counsel of record. C.P. 1:61-62. BMH-GT files Motion to Dismiss based on Mosely s failure to allege it was the proximate cause of her damages. C.P. 1:72-86. 2 Mosely s claims against Dr. Childrey proceeded to a jury trial beginning on August 31, 2015 and ending on September 4, 2015 with a defense verdict. The jury found that Dr. Childrey was not negligent in his care of Mayfield. Importantly, Mosely does not appeal from any issues occurring during the trial or from the final judgment entered on the jury s defense verdict. Instead, she appeals from four pre-trial orders prohibiting her from proceeding on her claims against BMH-GT in this matter. 3 The Clerk s Papers are cited as C.P. [vol.]:[page]. The Hearing Transcripts are cited as Tr. [page]. Mosely s Record Excerpts are cited as Mosely s R.E. [page]. In addition to Mosely s Record Excerpts, Dr. Childrey files his own Record Excerpts, cited as Childrey s R.E. [page]. 4 Hall and Gillam are individual nurses employed by BMH-GT who were involved in Mayfield s care during her 2011 hospitalization. Mosely did not give Hall and Gillam pre-suit notice pursuant to Mississippi Code Annotated 15-1-36(15), and her claims against BMH-GT solely were based on a theory of respondeat superior. Accordingly, when the statute of limitations ran on her claims against Hall and Gillam, the statute also ran on her claims against BMH-GT. See infra Part II.c. 5 Mosely amended her Complaint to add a wrongful death count. C.P. 1:32-33. 02349971 2

January 23, 2014: Hearing on BMH-GT s Motion to Dismiss. Tr. 1-15. March 27, 2014: May 6, 2014: Order entered granting BMH-GT s Motion to Dismiss. C.P. 2:162-65. Agreed Scheduling Order signed by counsel for Mosely and Dr. Childrey entered setting deadline for joinder of parties and amendments to pleadings on or before June 1, 2014 and the trial date for November 17, 2014. C.P. 2:198-99. 6 May 12, 2014: Final Judgment entered in favor of BMH-GT. C.P. 2:200. June 1, 2014: June 11, 2014: September 3, 2014: Deadline expires for Mosely to join parties or amend pleadings pursuant to the Agreed Scheduling Order. C.P. 2:198-99. 30 day limit expires for Mosely to appeal the entry of Final Judgment in favor of BMH-GT. MISS. R. APP. P. 4(a). Mosely files untimely Motion for Leave to Amend First Amended Complaint to add BMH-GT back in as a Defendant. C.P. 3:309-36. 7 Dr. Childrey responded in opposition to the Motion to Amend, arguing undue delay, prejudice, and futility. C.P. 3:376-95. October 29, 2014: November 4, 2014: Hearing held on Mosely s untimely Motion to Amend. Tr. 16-49. Order entered denying Mosely s untimely Motion to Amend. Dr. Childrey s R.E. 1-2. Mosely files new and separate Complaint against BMH- GT, Hall, and Gillam, Cause No. 2014-01112-CV1C ( Mosely II ). November 10, 2014: Mosely files Motion to Consolidate Mosely I and 6 The Agreed Scheduling Order was entered and the November 2014 trial date was set at Mosely s insistence. C.P. 2:140-41. See also C.P. 3:391-95. 7 Mosely erroneously asserted that her Motion to Amend was unopposed. In fact, Dr. Childrey opposed the motion. C.P. 3:376-95. 02349971 3

Mosely II and Continue Trial in Mosely I. C.P. 5:627-29. Dr. Childrey responded in opposition to the Motion to Consolidate, arguing the motion was premature, undue delay in bringing the second action, prejudice, and that the second action was futile. C.P. 5:669-748. November 18, 2014: December 1, 2014: December 10, 2014: June 10, 2015: Order entered denying Mosely s Motion to Consolidate. Dr. Childrey s R.E. 3. Agreed Order entered setting Mosely I for trial beginning August 31, 2015. C.P. 6:762. 8 BMH-GT, Hall, and Gillam file Motion to Dismiss, or in the Alternative, Motion for Summary Judgment in Mosely II. Mosely files second Motion to Consolidate Mosely I and Mosely II and Continue Trial in Mosely I. C.P. 6:807-10. Dr. Childrey responded in opposition to the Motion to Consolidate, arguing Mosely unreasonably delayed and prejudice. C.P. 6:811-22. August 5, 2015: Hearing on BMH-GT, Hall and Gillam s Motion to Dismiss and Mosely s Motion to Consolidate. Tr. 50-88. During the hearing, Mosely conceded that BMH- GT, Hall and Gillam s Motion to Dismiss Mosely II should be granted. Tr. at 60. Also during the hearing, Mosely verbally re-urged her September 2014 Motion to Amend First Amended Complaint to add BMH-GT back in as a Defendant. Tr. 60; 83-85; 87-88. Dr. Childrey opposed the verbally re-urged Motion to Amend for the same reasons it opposed Mosely s original Motion to 8 Over Dr. Childrey s objection, the November 17, 2014 trial ultimately was continued until August 31, 2015 due to Mosely s failure to timely confirm and secure her expert s availability. C.P. 6:754-55. 02349971 4

Amend, and specifically the prejudice it would cause. Tr. 81; 85-86. BMH-GT, Hall and Gillam also responded in opposition to the verbally re-urged Motion to Amend, arguing that the motion was not properly before the court, had already been disposed of by the trial court, prejudice, and futility. Tr. 64; 86-87. August 13, 2015: August 20, 2015: August 26, 2015: August 31, 2015 September 4, 2015: September 4, 2015: September 8, 2015: October 5, 2015: Orders entered denying Mosely s re-urged Motion to Amend and second Motion to Consolidate and granting BMH-GT s, Hall s and Gillam s Motion to Dismiss in Mosely II. Mosely s R.E. 18-19. Mosely files Petition for Interlocutory Appeal from the Circuit Court s order denying her Motion to Amend. C.P. 7:994. Order entered by the Mississippi Supreme Court denying Mosely s Petition for Interlocutory Appeal. C.P. 7:1006-1007. Mosely s claims against Dr. Childrey are tried before a jury. Defense verdict returned for Dr. Childrey finding that he was not negligent in his care of Mayfield. C.P. 8:1102-04. Final Judgment entered on the jury s defense verdict dismissing all claims against Dr. Childrey with prejudice. C.P. 8:1105-06 Mosely files notice of appeal in this case appealing from the Circuit Court s orders denying her first and verbally reurged Motions to Amend and her two Motions to Consolidate. C.P. 8:1107-09. III. Statement of Facts. Mayfield presented to BMH-GT in labor, and Dr. Childrey performed a Cesarean Section operation, delivering twin girls. Mayfield passed away as a result of complications from a perforated stress ulcer. Two years later, Mosely brought this lawsuit alleging Dr. Childrey and 02349971 5

BMH-GT s nurses were negligent in their post-delivery care of Mayfield. 9 BMH-GT was dismissed without prejudice, and Mosely s claims against Dr. Childrey proceeded to trial, resulting in a defense verdict. SUMMARY OF THE ARGUMENT The Circuit Court did not abuse its discretion in denying Mosely s motions. Mosely repeatedly delayed and failed to cure her own pleading deficiencies. Indeed, Mosely waited until the eve of trial not once, but twice, to attempt to rename BMH-GT as a defendant or consolidate Mosely I and Mosely II. Because of the continued delay and duplication of discovery that would have resulted, Mosely s requested relief would have prejudiced Dr. Childrey. Finally, Mosely s motions were futile because she conceded Mosely II should be dismissed and because her claims against BMH-GT and the individual nurses were barred by the statute of limitations. Therefore, the Circuit Court did not abuse its discretion, and its rulings should be affirmed. ARGUMENT Mosely s motions were denied and she proceeded to trial against only Dr. Childrey because of her own repeated failure to act promptly and diligently. The Court s rulings should be upheld. I. Standard of Review. a. Motions to Amend. A trial court s decision to deny a motion to amend is subject to the deferential abuse of discretion standard of review. Webb v. Braswell, 930 So. 2d 387, 392-93 (Miss. 2006). Motions to amend should be denied where there has been undue delay, bad faith or dilatory motive on the 9 Mosely did not argue that Dr. Childrey was negligent in his pre-natal care. Tr. 34-35. 02349971 6

part of the movant, repeated failure to cure deficiencies by amendments previously allowed, or where the amendment would cause undue prejudice to the opposing party or be futile. Id. at 393. b. Motions to Consolidate. Similarly, a trial court s decision to deny a motion to consolidate is also subject to the deferential abuse of discretion standard of review. Stoner v. Colvin, 110 So. 2d 920, 924 (Miss. 1959). Trial courts should exercise their discretionary power with great caution and only after careful consideration of all facts and circumstances to determine whether [the] necessary requirements for consolidation are present, and whether [the] ends of justice will be served and [the] substantial rights of all parties involved preserved, and, if doubt exists as to the advisability of consolidating cases, [an] order to try cases together should not be entered. Id. at 925. (quoting 88 C.J.S. Trial 6 at 27) (emphasis added). II. The Circuit Court did not Abuse its Discretion in Denying Mosely s Motions Because Mosely s Conduct Precipitated the Court s Rulings. Every single reason recognized by Mississippi law as a basis to deny a motion to amend and a motion to consolidate was present in the procedural history of this case. a. Mosely Unduly Delayed and Acted with Dilatory Motive in Bringing Her Motions, and Repeatedly Failed to Cure Her Deficiencies. Mosely had multiple opportunities to keep BMH-GT in this case: 1. Mosely should have sufficiently and timely stated a claim against BMH-GT in her original Complaint. C.P. 1:18-24. 2. Mosely should have sufficiently stated a claim against BMH-GT in her First Amended Complaint filed in November 2013. C.P. 1:27-33. 3. Mosely should have moved to amend upon receiving BMH-GT s Motion to Dismiss, which put her on notice of the deficient pleading in November 2013. C.P. 1:72-86. 4. Mosely should have moved to amend after the hearing on BMH-GT s Motion to Dismiss in January 2014. Tr. 1-15. 02349971 7

5. Mosely should have moved to amend after the Circuit Court granted BMH-GT s Motion to Dismiss in March 2014. C.P. 2:162-65. 6. Mosely should have moved to amend or appealed from the Final Judgment dismissing BMH-GT in May 2014. C.P. 2:200. 7. Mosely should have moved to amend any time prior to the June 1, 2014 deadline to amend the pleadings as provided by the Agreed Scheduling Order. C.P. 2:198-99. Instead of acting on any one of these opportunities, Mosely remained defiant that she had clearly alleged negligence against BMH-GT until September 2014, when she first moved to amend to rename BMH-GT as a defendant in the matter. C.P. 1:97; C.P. 3:309-36. This motion came five months after BMH-GT had been dismissed from the case, more than three months after the deadline to amend the pleadings a negotiated and agreed upon deadline Mosely herself insisted upon in the Agreed Scheduling Order and less than two months before trial was scheduled to commence in Mosely I the trial date also having been agreed upon and set at Mosely s insistence. C.P. 2:198-200; 3:391-95. Not surprisingly, the Circuit Court denied Mosely s motion based on her delay. Dr. Childrey s R.E. 1-2. In response to the Circuit Court s order on her Motion to Amend, and only days away from the commencement of the November 2014 trial in Mosely I, Mosely filed Mosely II (a lawsuit against BMH-GT and the individual nurses) and moved to consolidate the two lawsuits before she had even served process on the defendants in Mosely II. C.P. 5:627-29. The Circuit Court denied Mosely s motion because the two lawsuits were at drastically different stages. Dr. Childrey s R.E. 3. Thus, the Circuit Court s decision on this motion was also because of Mosely s dilatory action in bringing Mosely II. Indeed, Mosely was empowered to file Mosely II at any time without delay, but failed to prosecute her case against the hospital and its nurses diligently. 02349971 8

One year later after having successfully delayed the November 2014 trial because she was unable to secure the attendance of her expert Mosely again moved to consolidate Mosely I and Mosely II. C.P. 6:807-10. 10 During the hearing on her motion, however, Mosely s counsel conceded that Mosely II should be dismissed, making her Motion to Consolidate moot. Tr. at 60. Accordingly, the Circuit Court duly denied her motion. Mosely s R.E. 18. During this same hearing, though, Mosely verbally re-urged her Motion to Amend. Tr. 60; 83-85; 87-88. Again, the Circuit Court denied this motion due to Mosely s unreasonable delay and failure to present any new evidence since the Circuit Court denied her request for the same relief one year prior. Mosely s R.E. 19. Thus, each of the Circuit Court s orders Mosely complains about in this appeal was entered due to her own unreasonable delay. During the hearings on all four motions and in this appeal, Mosely s sole explanation for her delay is that she obtained new evidence of the hospital s negligence specifically, nursing negligence during discovery. See App. Br. at 9. This argument was then and is now disingenuous because Mosely asserted a negligence claim and specifically, nursing negligence against the hospital in her original Complaint filed in October 2013. See C.P. 1:18-24; 1:27-33; 1:95-101; Tr. at 61 ( We also stated in Mosely One that the nurses were negligent ); 63 ( [Baptist] knew that we named nursing negligence ). Thus, Mosely was not attempting to present evidence that had not been presented in previous pleadings, as she appears to suggest in her Appellant s Brief. Appellant s Br. at 9. See also Webb, 930 So. 2d at 394-95 (affirming trial court s denial of motion to amend because [a]mending the complaint was easily 10 It is relevant to note that even one year later, Mosely II was still at a drastically different stage than Mosely I. No discovery had been taken in Mosely II, and Mosely I was ready for trial. 02349971 9

possible at a much earlier stage in the litigation, and the Webbs give no good reason why this was not done ). 11 This Court does not view lack of diligence as a compelling reason to amend. Applications to amend the pleadings should be prompt and not the result of lack of diligence. Webb, 930 So. 2d at 395 (quoting Harris v. Miss. Valley State Univ., 873 So. 2d 970, 991 (Miss. 2004)). In fact, Mississippi Rule of Civil Procedure 15 expressly states leave to amend shall be granted... within time as determined by the court. MISS. R. CIV. P. 15(a) (emphasis added). 12 The Circuit Court determined at Mosely s insistence that Mosely could move to amend the pleadings and join parties on or by June 1, 2014. C.P. 2:198-99; 3:391-95. Nevertheless, Mosely waited 94 days after the Circuit Court s deadline to move to amend the first time and re-urged her motion 430 days after the Circuit Court s deadline. 13 Thus, Mosely not only ignored at least 11 While Mosely does not identify the new evidence in her Appellant s Brief, she indicated in her Petition for Interlocutory Appeal to the Mississippi Supreme Court filed on August 19, 2015 that the new evidence came from Wanda Hubbard s ( Hubbard ) testimony in July 2014. However, Hubbard was deposed by counsel for Dr. Childrey because Mosely listed her as a witness. In fact, she is Mosely s niece. Thus, Mosely had access to any information Hubbard could have provided well before the lawsuit was even filed. Mosely also indicated in her Petition for Interlocutory Appeal that she obtained new evidence concerning Mayfield s worsening vital signs during her depositions of Hall and Gillam in August 2014. Of course, the information concerning Mayfield s vital signs, as well as Hall s and Gillam s identities, and any information used by Dr. Childrey s nursing expert regarding nursing negligence, all came from the medical records that Mosely had access to for three years prior to her first Motion to Amend. In short, Mosely had ample time to investigate and discover information related to her allegations, and in fact had such information in her possession, prior to filing the original Complaint in this matter and well in advance of filing the motions that are at issue in this appeal. That she failed to exercise reasonable diligence in discovering this information is not an adequate justification for her delay. 12 There is no absolute right to amend. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1219 (Miss. 2001). However, even if Rule 15 does mandate leave to amend following a 12(b)(6) dismissal, Rule 15 s within time as determined by the court language confirms that Mosely is not entitled to mandatory leave indefinitely. In fact, the previous version of Rule 15(a) gave a plaintiff a hard 30 days to amend his or her complaint after it had been dismissed pursuant to a 12(b)(6) motion. 13 If the previous version of Rule 15 was still in effect, it would be relevant to note that Mosely first moved to amend 160 days after the Circuit Court granted BMH-GT s Motion to Dismiss and 113 days after final judgment was entered on BMH-GT s dismissal, well beyond the 30 days previously 02349971 10

seven opportunities to keep BMH-GT in this case, she clearly did not move to amend within [the] time as determined by the court as required by Rule 15(a). The Mississippi appellate courts consistently have found no abuse of discretion and upheld a trial court s denial of a motion to amend where just as here the plaintiff failed to exercise his or her rights to amend within the time provided by Rule 15 after having been dismissed pursuant to Rule 12(b)(6). See, e.g., Lane v. R.J. Reynolds Tobacco Co., 853 So. 2d 1144, 1146-47 (Miss. 2003), overruled on other grounds by R.J. Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2005); Hartford Cas. Ins. Co., 826 So. 2d at 1219; Satterfield v. State, 158 So. 3d 380, 384 (Miss. Ct. App. 2015). Likewise, courts consistently have found no abuse of discretion and upheld a trial court s denial of a motion to consolidate where just as here the plaintiff delayed in seeking the requested relief, causing the two cases to be at different stages in the litigation process. See, e.g., St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass n of New Orleans, Inc., 712 F.2d 978, 989-90 (5th Cir. 1983) (holding that it was not an abuse of discretion for the trial court to deny a motion to consolidate where one case was ready for trial and the other was in discovery); Mulligan v. Farmingdale Union Free Sch. Dist. No. 22, 133 A.D. 2d 617 (N.Y. App. Div. 1987) (holding that it was not an abuse of discretion for the trial court to deny a motion to consolidate where the party waited to move to consolidate until action was scheduled for trial); Reeve v. Union Pac. R.R. Co., 794 F. Supp. 1060 (D. Kan. 1992) (holding that motion to consolidate was untimely where it was filed 11 days before trial). allowed by the rule. Mosely re-urged her motion 496 days after the Circuit Court granted BMH-GT s Motion to Dismiss and 450 days after final judgment was entered, shockingly beyond the 30 days previously allowed by the rule. 02349971 11

In fact, consolidation of Mosely I and Mosely II would have caused prejudicial delay, as it would have required a continuance of the trial in Mosely I. 14 See also Dear v. Jackson State Univ., 2008 WL 4225766, *2 (S.D. Miss. Sept. 10, 2008) (denying consolidation upon finding that it would require a continuance of the first-filed action, and such continuance would not avoid but, instead, clearly cause delay, and would not serve the interests of judicial economy ). Because Mosely unduly delayed, the Circuit Court s orders denying her motions should be affirmed. b. The Relief Requested by Mosely would have Prejudiced Dr. Childrey and Not Served the Ends of Justice. Mosely waited until the eve of trial to move to amend and consolidate not once, but twice. 15 On both occasions, Dr. Childrey and his experts had diligently prepared for trial and made arrangements to be away from their work and patients for the duration of the trial. Thus, Mosely s delayed motions would have significantly prejudiced Dr. Childrey had they been granted. Specifically, the requested relief would have required duplication of and additional discovery, resulting in significant expense to all parties, as well as delay. Dr. Childrey diligently commenced discovery by propounding written discovery and taking a total of ten fact and expert depositions in preparation for trial. Mosely also propounded written discovery and took two depositions. If Mosely s relief had been granted, the parties would have had to retake the twelve 14 Indeed, on both occasions, Mosely requested a continuance of the trial in Mosely I in addition to consolidation with Mosely II. C.P. 5:627-29; 6:807-10. 15 As previously stated, Mosely was successful in continuing the original November 2014 trial, over Childrey s objection, due to her failure to timely confirm and secure her expert s availability. C.P. 6:754-55. Mosely s first motions were brought just before the November 2014 trial, and Mosely s second motions were brought just before the August 2015 trial. 02349971 12

depositions so that BMH-GT could participate as a party, and additional depositions would have had to have been taken. Further, Dr. Childrey made arrangements with his office and the hospital to be away from work for the duration of the trial in this matter not once, but twice. Likewise, Childrey s five experts also made arrangements to be away from their work so that they were able to testify on behalf of Dr. Childrey at trial, not once but twice. Granting Mosely s motions when they were brought, literally days before trial, would have caused the trial to be rescheduled for a third time, and would have caused Dr. Childrey and his experts undue burden and expense. Trial courts should deny a motion to amend and a motion to consolidate where the opposing party would be prejudiced by the granting of the motion. See, e.g., Webb, 930 So. 2d at 395 (affirming trial court s denial of motion to amend where amendment would cause undue prejudice to the defendants in the form of delay and cost); Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 53 (Miss. 1998) (affirming trial court s denial of motion to amend were movant lacked due diligence in amending the complaint and Target and Kellerman would be adversely prejudiced if the motion to amend was granted at such a late date ); Mahaffey v. Maner, 47 So. 3d 1190, 1193 (Miss. Ct. App. 2010) ( [a] party is not entitled to an absolute right to amend pleadings. Amendments are to be denied if allowing the amendment would prejudice the defendant ); Stoner, 110 So. 2d at 749-50 ( consolidation for trial should not be ordered where it would be injurious or prejudicial to one or more of the parties ); Dear, 2008 WL 4225766 at *2 (consolidation causing delay of trial would not serve the interests of judicial economy ); Mulligan, 133 A.D. 2d 617 (affirming denial of motion to consolidate where it would have caused prejudicial delay ). 02349971 13

The significant prejudice that would have occurred if the Circuit Court had granted Mosely s motions would have rendered meaningless the purpose of the Mississippi Rules of Civil Procedure to secure a just, speedy, and inexpensive determination of every action. See MISS. R. CIV. P. 1. Thus, the Circuit Court s orders denying her motions should be affirmed. c. Mosely s Motions were Futile. Mosely admitted that Mosely II should be dismissed. Tr. at 60 ( we want to confess the motion to dismiss ). In accordance with Mosely s confession, the Circuit Court dismissed Mosely II, making Mosely s Motions to Consolidate moot, because there was no second case with which to consolidate Mosely I. Given this fact, Mosely should be estopped from taking the position that Judge Howard abused his discretion in denying those motions. See, e.g., Estate of McLemore v. McLemore, 63 So. 3d 468, 491 (Miss. 2011) (holding that party was judicially estopped from alleging error on appeal regarding an issue on which he took an opposite position at trial). 16 Furthermore, the statute of limitations barred Mosely s claims against BMH-GT and the individual nurses, making her motions futile. Mosely s claims in this action against BMH-GT solely were based on allegations of vicarious liability of the nurses on the theory of respondeat superior. C.P. 1:29-31 ( At all times relevant, the Defendant employed various medical providers, nurses and medical staff at its hospital, including but not limited to Dr. Gregory 16 Both of Mosely s Motions to Consolidate were futile, despite Mosely s effective concession of only her second Motion to Consolidate. Indeed, Mosely II was futile the day it was filed, as it constituted improper claim-splitting. Mosely incorrectly alleges that Carpenter v. Kenneth Thompson Builder, Inc., 186 So. 3d 820 (Miss. 2014) held consolidation proper after Carpenter filed a second claim against new defendants made available through discovery. Appellant s Br. at 10-11 (citing the case s pre-publication citation). Actually, the Mississippi Supreme Court held just the opposite. Carpenter, 186 So. 3d at 825. The Court explained that naming new parties in a separate complaint and then moving to consolidate the two cases exactly what Mosely attempted to do here constitutes impermissible claim-splitting requiring dismissal. Id. Thus, based on Carpenter, consolidation at any time would have been futile. 02349971 14

Childrey, M.D. and these employees/servants/agents were acting within the scope of their employment with the Defendant when they rendered medical care to the late Gerboria Mayfield. They failed to follow the applicable standard of medical care during their care and treatment of the late Gerboria Mayfield which proximately resulted in a physical injury to the late Gerboria Mayfield and proximately caused her death ); 17 Tr. 67 ( the hospital s vicariously liable for the actions of the nurses ). Specifically, Mosely claimed that BMH-GT was vicariously liable for the negligence of its employees, Hall and Gillam, who were Mayfield s nurses during her 2011 hospitalization. C.P. 5:627-29. Mosely alleged no independent claims against BMH-GT. In regards to respondeat superior claims, the Mississippi Supreme Court has held that a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent. Lowery v. Statewide Healthcare Serv., Inc., 585 So. 2d 778, 780 (Miss. 1991). 18 Mosely never provided Hall and Gillam with pre-suit notice as mandated by Mississippi Code Annotated 15-1-36(15). 19 Thus, Mosely s claims against the nurses expired on August 17 BMH-GT did not employ Dr. Childrey, but did employ the individual nurses. C.P. 1:96. 18 Incidentally, Lowery concerned a plaintiff s medical malpractice claim against a nurse and the nurse s employer. Just as is the case here, the plaintiff s claims against the employer in Lowery solely were based on respondeat superior, and not on any action or inaction of the employer. 585 So. 2d at 779-80. 19 Mosely s pre-suit notice to BMH-GT does not satisfy her obligations to provide Hall and Gillam pre-suit notice. Mosely was required to provide Hall and Gillam with pre-suit notice to receive the benefit of the extended statute of limitations on her claims against Hall, Gillam, and BMH-GT. See, e.g., Hosp. MD, LLC v. Larry, 138 So. 3d 922, 927 (Miss. 2014); Fowler v. White, 85 So. 3d 287, 291 (Miss. 2012); Williams v. Skelton, 6 So. 3d 428, 430 (Miss. 2009); Andrews v. Arceo, 988 So. 2d 399 (Miss. Ct. App. 2008); Arceo v. Tolliver, 19 So. 3d 67 (Miss. 2009); Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 91-92 (Miss. 2010); Lowery, 585 So. 2d at 780. 02349971 15

22, 2013. 20 Because Mosely s claims against BMH-GT were based solely on the theory of respondeat superior, Mosely s claims against BMH-GT also expired on August 22, 2013, when Mosely s claims against BMH-GT s employees expired, whether the employees were named as defendants or not. However, Mosely filed her Complaint in this action against BMH-GT on October 22, 2013. Accordingly, Mosely s claims against BMH-GT were barred by the statute of limitations. Furthermore, Mosely can find no solace in the savings statute, codified in Mississippi Code Annotated 15-1-69, because it only applies if the action was duly commenced within the applicable statute of limitations. See, e.g., Harris v. Darby, 17 So. 3d 1076, 1079 (Miss. 2009). Of course, duly commenced refers to the filing of a complaint. See, e.g., Arceo, 19 So. 3d at 74 (for purposes of the savings statute, duly commenced is a cause commenced consistent with the requirements of the Rules [of Civil Procedure] ); see also MISS. R. CIV. P. 3(a) ( [a] civil action is commenced by filing a complaint with the court ). Here, because the sole allegation against BMH-GT was based on respondeat superior, the operative statute of limitations was that applicable to the nurses, and it expired on August 22, 2013. Because Mosely filed Mosely I 61 days after the expiration of the statute of limitations, the action against BMH-GT was not duly commenced within the statute of limitations, and 20 Again, Mosely had access to the medical records well in advance of filing her original Complaint in this matter. Those records clearly indicated the identity of the nurses who tended to Mayfield during her hospitalization. Furthermore, Mosely failed to include fictitious parties as defendants in her original Complaint or Amended Complaint, as required by Mississippi Rule of Civil Procedure 9(h) in pleading claims against fictitious parties. See C.P. 1:18; 27. Thus, Mosely cannot claim Hall and Gillam were fictitious parties such that her claims against them related back to her original Complaint pursuant to Mississippi Rule of Civil Procedure 15(c). See, e.g., Wilner v. White, 929 So. 2d 315, 321-24 (Miss. 2006); Doe v. Miss. Blood Serv., Inc., 704 So. 2d 1016, 1017-19 (Miss. 1997); Rawson v. Jones, 816 So. 2d 367, 369-71 (Miss. 2001). 02349971 16

consequently, the savings statute is inapplicable. 21 Because Mosely s claims against BMH-GT and the individual nurses were futile, the Circuit Court s orders denying her motions to bring those futile claims should be affirmed. CONCLUSION For the foregoing reasons, we ask the Court to affirm Judge Howard s orders appealed from in this matter. Submitted this the 30th day June, 2016. OF COUNSEL: BRUNINI, GRANTHAM, GROWER & HEWES, PLLC J. Gordon Flowers, Ms. Bar No. 5378 Scott F. Singley, MS Bar No. 100134 Post Office Box 7520 Columbus, Mississippi 39705-0024 Telephone: (662) 240-9744 Facsimile: (662) 240-4127 gflowers@brunini.com ssingley@brunini.com Lauren O. Lawhorn, MS Bar No. 103896 Post Office Drawer 119 Jackson, MS 39205-0119 Telephone: (601) 948-3101 Facsimile: (601) 960-6902 llawhorn@brunini.com GREGORY W. CHILDREY, M.D. By: /s/ Lauren O. Lawhorn One of his Attorneys 21 Even if it were applicable, the savings statute would not allow Mosely s Motion to Amend that she verbally re-urged in August 2015, well over one year after the dismissal of BMH-GT. Moreover, the savings statute should not operate to allow a party to re-file her claims where as here she had ample opportunity to correct the deficiencies as to the form of her claims, but instead chose to sit on her rights until the eve of trial to request to re-file her claims. 02349971 17

CERTIFICATE OF SERVICE I, Lauren O. Lawhorn, one of the attorneys for Dr. Childrey, do hereby certify that I have this day, electronically filed the foregoing document with the Clerk of the Court using the MEC system which will send notification of such filing to the following: Carlos E. Moore Tameika L. Bennett Tangala Hollis Darryl A. Wilson MOORE LAW GROUP, P.C. P.O. Box 1487 Grenada, MS 38902 Further, I hereby certify that I have mailed the foregoing document by U.S. Mail to the Honorable Lee J. Howard, Circuit Court of Lowndes County, Mississippi, Post Office Box 1679, Starkville, Mississippi 39760. This the 30 th day of June, 2016. /s/ Lauren O. Lawhorn Lauren O. Lawhorn 02349971 18