More on the Double Quick and Rebelwood Apartments Decisions
Last week I posted about the Miss. S. Court's reversal of two jury verdicts in premises liability cases. Here are my thoughts on the decisions.
Lymas v. Double Quick
This case was famous not for the underlying verdict, but because the plaintiff challenged the constitutionality of the damages caps on non-economic damages. The Court reversed and rendered on liability, however, and did not mention the caps in the opinion. Justice Kitchens wrote the opinion for the unanimous majority.
Double Quick hinged on a Daubert analysis of two expert witnesses. The plaintiff had two expert witnesses on security issues, but neither opined on proximate cause other than conclusory statements in response to leading questions. Neither expert explained how the alleged failure to take steps to protect the decedent proximately caused the shooting. As a result, the Court found the testimony to be not based on sufficient facts or data and improperly speculative.
There is something to like in the decision for both plaintiffs and defendants. The Court did not change the underlying law or uphold the damages caps, which plaintiffs and their lawyers like. On the other hand, the Court did not strike the caps and gave defendants and their lawyers a lot to argue on causation issues in premises liability cases involving criminal acts by third parties.
Rebelwood Apartments
This decision was in the news over the weekend because of the expert testimony of Jackson Deputy Police Chief Tyrone Lewis. The Clarion-Ledger reported:
JPD Deputy Police Chief Tyrone Lewis, testifying for English, said, "There is no documentation, no written statements or anybody to come forward to say that it did not happen at Rebelwood."
Cleveland Ellis III told police he accidentally killed Coleman, his friend, when his gun went off at Woodbine Terrace apartments, where he lived. He said he drove her body to Rebelwood and left her there.
That evidence was not allowed at trial, a decision by Circuit Judge Winston Kidd that the Supreme Court found erroneous.
The disputed evidence consisted of statements contained in police reports. Justice Randolph's majority opinion concluded that the trial court judge (Judge Winston Kidd) should have found the police reports to be sufficiently reliable and admitted the reports (including the statements) into evidence. In my opinion, the Court made the right ruling, but for the wrong reason.
I agree with Justice Chandler's concurrence. Judge Chandler opined that the statements in the police reports were hearsay within hearsay and therefore, should have been excluded. But he agreed that the defendant should have been able to impeach Chief Lewis with the statements in the reports. Chief Lewis' testimony on direct opened the door to him being impeached with the reports.
I am afraid that the majority's opinion will make a mess of the law regarding the admissibility of statements within police reports.
The majority also concluded that the trial judge should not have allowed plaintiff's economist expert (Dr. Glenda Glover) to base her loss of future earnings analysis on national averages because there was evidence that the decedent earned less than the national average. All justices concurred except for Justice Kitchens.
I thought that the majority got it right on this issue. Sometimes proving lost earnings might require the use of a national average because there is no other evidence to base an opinion on in a particular case. But the national average should not be used as a damages floor when there is evidence that the decedent earned less than the national average. Just as someone who earned more than the national average should be allowed to recover more for loss of future earnings, someone who earned less should recover less.
Finally, the majority found that race was improperly interjected into the economist's testimony by referring to the “Mississippi Black Effect.” I agree with the majority that this was improper. Even if this was not intentional, this sounds like the playing of a race card during trial, which is a big no-no.
Philip, I think in your analysis of the MSSC's opinion re: Glover's testimony and the use of the national average, I think you fail to consider that there was testimony that the decedent planned on going to nursing school and therefore would have eventually earned more. In other words, just because a person has had a low-paying job for a few years at, say, McDonald's, do we have to assume that they're tied down to that wage for the rest of their life? Are people not allowed to better themselves? My ultimate point is that there was testimony to support a possible future higher wage, and therefore it should be the jury's call on whether or not she may been entitled to more lost wages than what she had earned previously. I think Kitchens in his dissent is right on the ball when he collectively asks of the rest of his colleagues, when are we going to stop substituting our opinions for those that rightfully belong to the jury?
"there was testimony that the decedent planned on going to nursing school"
Was that more than someone's saying she said "oh, I may go to nursing school one day"?
If not, then I'm not sure that meets the sufficiency-of-the-evidence test. I think it has to be more than a velleity.
But just in case, for the benefit of my heirs at law, let me place on the record my intention to control Microsoft one day.
If she was going to be a nurse, then shouldn't the figure have been based on what nurses earn? That would have been more than the national average.
Right -- the national average is just bogus under Daubert, except on the implicit theory, which the Court expressly rejected, that economic losses are an expression of our all being created equal.