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Necaise v. Sacks3/27/2003
heduled trial date of November 1, 1999, and the trial was rescheduled for August 7, 2000.
. Evidently, by May 24, 2000, after additional discovery and motion hearings, the defendants had become admittedly confused as to the nature of the litigation they were being called upon to defend. Was it a personal injury suit revived in Freeman's behalf or was it a personal injury and wrongful death suit, and who were the parties? On that date, the defendants filed their Motion to Strike Wrongful Death Claim or in the Alternative, Motion to Continue. In this motion, the defendants referred to a pre-trial hearing before Judge Walker on August 20, 1999. The defendants set out in their motion a portion of the transcript from this hearing, and a review of not only the motion, but also the record before this Court, reveals that the following colloquy occurred between Judge Walker and counsel (actually we quote from the transcript a little more than what the defendants quote in their motion):
[DEFENSE COUNSEL]: He's [Freeman's] dead now. He was being treated for non-small cell lung cancer. He had cancer of the lungs in the past. Actually he had a portion of a lung removed. He developed cancer in his other lung, and was receiving treatment -
THE COURT: Is the plaintiff alleging any causation of the death in this case to this incident, Mr. Smith?
[PLAINTIFF'S COUNSEL]: No, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: There was some testimony to that by the substituted plaintiff, the daughter of Mr. Freeman. Apparently that is not going to be asserted now, and that was one of the grounds for the motion for continuance. THE COURT: [Plaintiff's counsel] says that's not part of the damages requested.
We should remember here that this pre-trial hearing occurred on August 20, 1999, more than one month prior to Necaise's filing of her first amended complaint on September 30,1999. Additionally, on May 18, 2000, just a few days before the defendants' filing of their motion to strike wrongful death claim, Necaise submitted her answers to the defendants' third set of interrogatories, which answers included the following:
INTERROGATORY NO. 5: Please state whether the injuries set forth in your Complaint caused or contributed to the death of Charles Freeman. If your answer is yes, please identify what medical or other proof you have that the injuries complained of caused or contributed to Charles Freeman's death.
ANSWER: My father's death was caused by cancer. The IV extravasation injuries contributed to his death in that he was despondent, lost his fighting spirit and was unable to care for himself as well, as is documented in Garden Park and Memorial Hospital at Gulfport records.
Six days after the defendants had filed their motion to strike wrongful death claim or alternatively, to continue the trial of the case, Necaise, on May 30, 2000, filed her response to the defendants' motion and stated the following:
1. There is not and never has been a wrongful death claim asserted herein. Defendant's motion to strike is moot.
2. Defendant's motion for continuance is their third motion for continuance and will no doubt be followed by more. The motion is likewise moot as there is no wrongful death claim on which to practice discovery.
The record is silent as to any trial court ruling on the defendants' motion to strike the wrongful death claim, but the record does reveal that for various reasons, the case did not go to trial on August 7, 2000, as scheduled, but instead, the trial date was later reset for June 11, 2001, and then ultimately for August 27, 2001.
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