Miss. S. Court Reverses $2.5 Million Hinds County Jury Verdict
On Thursday the Mississippi Supreme Court reversed a $2.5 million Hinds County jury verdict against Deviney Construction Company. I reported the verdict two years ago in this post. Here is the Court's opinion.
Facts:
The plaintiff called two Deviney employees as witnesses early during plaintiff's case in chief. Circuit Judge Tommie Green ruled that the defendants cold not reserve questioning and call the witnesses during defendant's case. Defendants had to question the witnesses then or not question them at all. Defendants could not recall the witnesses to question them about the testimony of the eight plaintiff witnesses that followed.
The Ruling:
A restrained opinion stated that: “a defendant should not be required to present his or her evidence during the plaintiff's case.” The Court ruled that this was a major error and remanded the case for a new trial.
Justice Lamar wrote the unanimous opinion.Wayne Drinkwater with Bradley Arant in Jackson represented Deviney on the appeal.
My Take:
This was a sensible decision. The trial judge's ruling is a real head scratcher.
I feel bad for the plaintiff and plaintiff's counsel Ashley Ogden. It does not appear from the record that plaintiff's counsel asked for the trial court's ruling. Nothing like getting your verdict reversed over something you didn't ask for.
I'm wondering how many trials Judge Green conducted using that rule without anyone's appealing it.
It wasn't helpful for the Court to omit other issues that will likely recur on retrial, but probably they couldn't get a unanimous decision that way.
Anderson, I suspect the Rebelwood Apartments case clarified many of the issues related to expert Glenda Glover's opinions on loss of wages. Ashley Ogden tried the Rebelwood case prior to the Deviney trial. However, at the time of the Deviney trial, the Rebelwood appeal had not been handed down.
That is an unnecessary shame for all concerned. No one was done any favors on that one.
As philosophically opposed as I am to the idea of taking judicial selection out of the hands of voters, Judge Green is the poster-child for the appointed-judges argument.
i don't get it.
rule 611(a) states:
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
by any reading, this gives the court considerable discretion. i realize this is judge green, and that the facts did not look particularly strong. both go a long way toward explaining the outcome.
but without prior existing precedent, no showing of prejudice (in terms of questions asked or testimony presented), and no other error, this does not seem to warrant reversal.
but of course, if the mssc wants to reverse, they can certainly make up a reason to do so.
"Anderson, I suspect the Rebelwood Apartments case clarified many of the issues related to expert Glenda Glover's opinions on loss of wages"
One would hope so, but I suspect that Glover will continue to do no wrong in the eyes of certain Hinds circuit judges.
"but without prior existing precedent, no showing of prejudice (in terms of questions asked or testimony presented), and no other error, this does not seem to warrant reversal."
Willie, all I can do is quote you the opinion:
It is a fundamental tenet that a plaintiff in a civil suit has the initial burden of production (i.e., he must introduce evidence sufficient to establish each element of the claim asserted) before the defendant must present its case. The trial judge's ruling violated this basic principle, as she forced Deviney to present evidence by questioning two of its defense witnesses before Marble had finished presenting his case. Deviney was forced to speculate as to what evidence Marble's later witnesses would present and try to address that evidence during Marble's case-in-chief. And Deviney was unable to recall its two fact witnesses to rebut any of the testimony offered by the eight plaintiff's witnesses that followed.