Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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On Thursday the Miss. Supreme Court affirmed a 2008 Bolivar County defense verdict in Utz v. Running and Rolling Trucking Inc. Here is the Court’s opinion.

The case is noteworthy for its facts. It involved the 2003 death of Preston Utz when he rear-ended an 18–wheeler on Highway 61 in Bolivar County. The decedent had been awake for days at the time of the collision from cooking and smoking crystal meth. Talk about a bad plaintiff. The jury determined that any negligence on the defendant’s part was not a proximate cause of the accident.

The plaintiff raised forty-two (42) issues on appeal. The result was a 58–page opinion even though the decision was unanimous.

Justice Chandler wrote the Court's opinion. Chief Justice Waller and Justice Dickinson did not participate. Jason Strong and Steve Hazzard with Daniel Coker represented the defendant. Ashley Ogden and Wendy Yuan of Jackson represented the plaintiff.

Some lawyers believe that an appeal should be limited to a few issues. Others believe in identifying as many issues as possible. In recent years, I have heard at least one Mississippi Supreme Court Justice encourage lawyers to raise all potential issues on appeal. But in this case, it didn’t help and the Court affirmed the verdict. It will be interesting to see if forty-two appeal issues is a trend in civil cases.

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The Mississippi Court of Appeals issued an interesting opinion on Tuesday and reversed a trial court defense jury verdict in Denham v. Holmes. Here is the Court’s opinion. Presiding Judge Joseph Lee wrote the Court’s opinion. The decision was unanimous, but with several unexplained partial concurrences, which I will discuss later.

Tommy Defer and Bobby Vance represented the plaintiffs. John Hyneman represented the defendant.

Facts

The case involved a car wreck on University Avenue in Oxford. Denham was turning onto the avenue and collided with a pickup truck driven by Holmes. Both vehicles were totaled and the plaintiffs suffered injuries.

Daubert Issue 

Plaintiffs designated Donald Rawson to testify as an expert witness in traffic-collision reconstruction. Rawson was to testify by deposition and the parties stipulated that Rawson was qualified to give an expert opinion on the traffic accident. But at trial, the defendant moved to exclude Rawson’s testimony on the basis that it would not aid the jury in reaching its decision.

Incidentally, I find the procedure leading to the defendant’s objection at trial odd. I suspect that the plaintiff’s attorneys went into trial thinking that they had an agreement for the expert to testify by deposition when the defendant stipulated to Rawson’s expertise and use of the deposition at trial. But there was a challenge to the testimony waiting for them at trial.  

Plaintiffs responded to the defense argument by contending that Rawson’s testimony would assist the jury on technical issues such as speed, sight line, and distance between the vehicles. Specifically, Rawson opined that the defendant could have taken evasive action to avoid the collision.

The trial court excluded the testimony on the grounds that Rawson’s conclusions were based on insufficient facts and data and some of the opinions were legal conclusions that would invade the province of the jury.

The Court of Appeals disagreed, finding that the testimony was based on the facts available from the accident scene and should have been admitted.

I previously criticized the Supreme Court for adopting new Daubert rules. Some have disagreed with my position and I understand their point. But it's my preference that appellate courts simply apply Daubert like the Court of Appeals did here without creating new Daubert rules.

Improper Closing Argument Issue 

 The Court held that it was also reversible error for the trial court to allow defense counsel to comment on the plaintiff’s lack of expert testimony in closing argument. The Court reasoned that the only legitimate purpose of closing argument is to assist the jury in evaluating the evidence and understanding the law and that defense counsel’s comment crossed the line. Trial lawyers need to be aware of this decision when they make closing arguments.

It’s easy for a trial lawyer to get carried away during closing and say something that they technically should not say. I know that I have to fight these urges during closing and am probably not always successful. But no one wants to lose a verdict due to an improper argument, particularly since the benefits of closing arguments are debatable.

My personal belief formed from my trial experience is that jurors have almost always made up their mind before the case reaches closing argument. I often find myself telling co-counsel and/or clients deep into a trial that while I don’t know the jury’s decision, I feel like it has been made. Published statistics support this conclusion and show that most jurors make up their mind during opening statements or shortly after opening.

Luckily, this case would have been reversed regardless of the closing argument issue, due to the Daubert and (uninteresting) jury instruction issues. But I appreciate the Court addressing the issue in its opinion to give guidance to trial attorneys.

Conclusion

Finally, this is a case where I hated to see all the partial concurrences. With several distinct issues in play it would have been nice to have the concurring opinions explained.   

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In a 5–4 [correction: 4-5-1] decision in Wright v. Royal Carpet Services, the Mississippi Court of Appeals ruled on Tuesday that a party who loses a motion in limine waives their objection to the admission of the disputed evidence by being the first to refer to the evidence at trial. The case was an appeal from a defense verdict in the Lowndes County Circuit Court. The plaintiff alleged in the case that the defendant was responsible for mold that developed in her house.

The issue of whether the majority is really the majority is discussed here.

Before trial, the plaintiff moved to exclude evidence of liability insurance under the collateral source rule. The trial court denied the motion because the issue was relevant to the defendant’s defense that plaintiff failed to mitigate her damages. All nine judges agreed that this ruling by the trial court was proper and I have no criticism of it.

But the five judge majority ruled that plaintiff waived the issue on appeal by being the first to raise the subject of insurance at trial. Judge Roberts wrote for the majority and was joined by Judges Myers, Griffis, Ishee and Irving (in result only with no separate opinion). The Court ruled that Quinn v. State, 873 So. 2d 1033 (Miss. App. 2003) was on point and that the issue was “procedurally barred by her failure to raise a contemporaneous objection at trial.”  

Judge Maxwell dissented in an opinion joined by Judges King, Lee, Barnes and Carlton. The dissent cited several Mississippi Supreme Court cases that held that where a judge has already ruled on the evidence, a party does not waive an objection by being the first to mention it at trial in order to attempt to take the sting out of the evidence. The dissent characterized the situation as one where the trial court makes an adverse ruling on the motion in limine and the party adjusts their trial strategy by introducing the evidence to limit its ill effects on the jury.

The dissent states:

I believe Wright was entitled to play the hand the court dealt her and that she is not procedurally barred from asserting these issues on appeal.

I agree with the dissent.

First, Quin is not “on point.” Quin did not deal with a situation where a party did not object at trial to the admissibility of evidence where the court had ruled it admissible in ruling on a motion in limine. Quin dealt with the opposite. In Quin, the State violated a motion in limine ruling at trial and the court found that the defendant waived the issue by not objecting at trial:

The State did in fact violate the motion in limine regarding the amount of money Quinn had on her person by specifically questioning Brister about the matter. However, the record is devoid of any objection by Quinn when such question was asked of Brister. Therefore we find that an issue that is not properly brought to the attention of the trial court by appropriate timely objection is waived. Carr v. State, 655 So. 2d 824, 832 (Miss. 1995). The supreme court has repeatedly held that "if no contemporaneous objection is made, the error, if any, is waived." Id.

There was no violation of a motion in limine in Wright. Instead, plaintiff adjusted her trial strategy to account for the court’s prior ruling.

Second, the dissent’s position has superior support in the case law than does the majority’s position. The majority cites one case that arguably does not apply at all. The dissent cites several Mississippi Supreme Court cases that support the dissent’s view.

Third, the majority ignores “reality on the ground” in the courtroom. it has been my experience that trial judges get annoyed fast when lawyers repeatedly object on the same issue. Trial judges seem to consider the issue to be preserved for appeal once an objection has been made and an adverse ruling issued. A motion in limine that has been ruled on should count as lodging an objection and in my experience, it has. I have seen plenty of times when a lawyer stands up and asks: “judge, I lost on my motion in limine, I don’t have to keep objecting do I?” Invariably the answer is “no—your objection is noted in the record” and usually the opposing attorney is shaking his/her head in agreement. Lawyers should not have to keep objecting repeatedly for fear of waiving the objection. It slows trials down and annoys both the judge and jury.

Finally, a valid reason for filing a motion in limine is to determine what evidence will be in play at trial. The party that loses should be entitled to adjust their trial strategy to account for the ruling. A party being the first to mention damning evidence is a trial strategy that is routinely taught in trial practice courses and practiced in the courtroom. According to the Court of Appeals, you cannot do it in Mississippi because if you do, you have waived your objection to the evidence.

That doesn’t seem fair. I agree with the dissent’s analogy that at that point, you are simply playing the hand that you are dealt. 

I would like to hear what other trial attorneys think about this decision.       

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On Thursday the Mississippi Supreme Court vacated two Jones County jury verdicts rendered in one trial in Gallagher Bassett Services, Inc. v. Malone and remanded the case for further proceedings. Here is the Court's opinion. Justice Lamar wrote for the Court.

 The case stemmed from Gary Malone's right leg amputation two years after he suffered a work-related injury. Malone sued Gallagher and his employer Nabors Drilling. Malone alleged that defendants committed a bad-faith delay in paying his workers comp. claim, causing a delay in medical treatment that led to the amputation of his leg.

Nabors filed a cross-claim against Gallagher and entered into a Mary Carter agreement with Malone under which Nabors admitted to bad-faith (by Gallagher) and paid Malone $1.5 million in exchange for the first $250,000 of any sums that Malone recovered from Gallagher and half of any additional sums recovered.

Malone’s claim and Nabors’s cross-claim were tried together. The jury rendered a verdict for Malone on his claim and awarded $250,000 in damages with fault apportioned among Gallagher (42.5%), Nabors (42.5%) and Malone (15%). The trial court entered final judgments against Nabors and Gallagher in the amounts of $106,250 each.

In a separate verdict the jury found for Nabors on its cross-claim against Gallagher and awarded damages in the amount of $1.25 million. The trial court did not submit the issue of punitive damages to the jury.

The Court found that the two verdicts were inconsistent and, therefore, the jury had to be confused. One jury instruction stated that in order to find for Nabors on its cross-claim the jury must find that nothing Nabors did contributed to Malone’s damages. But the jury both assessed fault to Nabors (42.5%) and found for Nabors on its cross-claim. The Court could not reconcile these inconsistent verdicts and vacated both verdicts and remanded the case.

The Court “strongly urge[d]” the trial court to sever Nabors’s cross-claim so that Malone’s claim and Nabors’s cross-claim are not tried in the same proceeding. You have to feel for the trial judge on this point [Judge Billy Joe Landrum], since no party asked for separate trials.

Notwithstanding the loss of his leg, you don't have to feel particularly sorry for the plaintiff and his attorneys, since they get to keep the $1.5 million that Nabors already paid to plaintiff.

 All participating justices concurred except for Justice Chandler, who argued in a dissent that the judgment against Gallagher should be reversed and rendered due to a lack of evidence of gross negligence, malice or reckless disregard.    

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The Supreme Court did not issue many opinions today, but did affirm a defense verdict in Solanki v. Ervin. The case was a car wreck case involving an accident on I-220 in Jackson that resulted in a death. A Hinds County jury returned a defense verdict in 2008 and the Supreme Court unanimously affirmed in a lengthy opinion authored by Justice Graves. Don Evans represented the plaintiffs and Roy Lidell the defendant.

The most notable aspect of the case to me was how fast it flew through the court system. The accident was on March 29, 2007. Plaintiffs filed the complaint on April 10, 2007. The trial was on April 8, 2008 with the verdict returned on April 11. Post trial motion were filed and were denied on May 2, 2008. Plaintiffs filed their notice of appeal on May 30, 2008. The case was fully briefed on April 8, 2009 and submitted to the court without oral argument on July 8, 2009. The Supreme Court ruled on August 27, 2009. The whole case went from accident to having the appeal decided in a little over two years. That is fast. 

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The Leisha Pickering alienation of affection lawsuit is bringing attention to this little used cause of action. The theory is without question alive and well in Mississippi. In August 2008 the Mississippi Supreme Court issued its opinion in Pierce v. Cook, a case that involved claims for alienation of affection and intentional infliction of emotional distress. A Rankin County jury rendered a $1.5 million verdict for the plaintiff and the Supreme Court affirmed. The Court listed the elements of an alienation of affection claim as:

1. wrongful conduct of the Defendant;

2. loss of affection or consortium and

3. causal connection between the conduct and loss.

The plaintiff's burden of proof is preponderance of the evidence--not a higher standard such as clear and convincing evidence.

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Last week the Mississippi Court of Appeals affirmed a $2.1 million verdict against Goodyear Tire and Rubber Company in a defective tire case in Copiah County. The Associated Press later botched its analysis of the Court's decision.

This week a unanimous Court of Appeals affirmed a 2005 Washington County jury verdict in favor of Goodyear in Oliver v. Goodyear Tire and Rubber Co. Judge Lee wrote the Court's opinion. Goodyear's defense counsel was a team of lawyers from Watkins & Eager that included David Ayers and Jimmy Wilkins.

The facts of the two cases were similar in some respects. In both cases the vehicle was speeding when a tire burst, leading to an accident where the un-belted driver was thrown from the vehicle and died. But that is where the similarities end. In the Copiah County case, the tire was new and had been properly maintained and serviced, including a few days before the accident. In the Washington County case, there was "considerable testimony at trial" that the decedent failed to properly maintain the tire. These differences apparently made a big difference in the trial court verdicts.

In the Washington County case the jury disagreed on whether the tire was defective, but unanimously agreed that a defective tire was not the proximate cause of the accident. The Court of Appeals can make a compelling argument that it is fair to everyone when it affirms a verdict against Goodyear one week and affirms a verdict for Goodyear the next week. Notice that as in the decision last week, the Court did not agree or disagree with the jury. Instead, the Court evaluated whether there was reversible error and determined that there was not. It will be interesting to see if this decision gets any press, since defense verdicts and appellate decisions affirming defense verdicts typically receive less press that plaintiff's verdicts.  

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On Thursday the Mississippi Supreme Court affirmed two jury verdicts.

The first was Young v. Guild, which was a medical malpractice case against a psychiatrist. The plaintiff alleged that the defendant was negligent in failing to prevent the suicide of one of his patients. In 2004 a jury in the Circuit Court of Yazoo County rendered a defense verdict at the end of a three day trial. Defense counsel was Whit Johnson and plaintiff's counsel was Ronald Kirk. The Court affirmed the judgment with Justice Chandler authoring the majority opinion joined by Justices Carlson, Randolph, Kitchens and Pierce. Justice Graves concurred in the result only and Justice Lamar dissented in an opinion joined by Justice Dickinson.

The appeal issues involved jury instructions, apportionment and the admission of evidence. The Court found that the plaintiff waived apportionment by not raising it in an interrogatory response, that the jury instructions were proper and that the trial court did not abuse its discretion in the evidentiary rulings. The dissent argued that the trial court's jury instructions did not properly set forth plaintiff's theory of the case. It's pretty rare for me to believe that jury instructions materially altered the outcome of a trial, so I am putting this case in the category of "move along folks, there's not much to see here." It looks like the defendant won fair and square. 

The second case was Horseshoe Casino v. Mitchell, which was a casino slip and fall case that resulted in a January 2008 jury verdict and judgment for the plaintiff in the amount of $56,000 in the Circuit Court of  Tunica County. Unaccustomed to losing, the casino appealed. To me, if you are going to appeal a $56,000 jury verdict you should be real sure that there was error, since the attorney's fees and expenses in connection with the appeal will be significant. There is a reason that appeals courts aren't deciding many appeals from county court.

The main issue on appeal was whether the trial court properly excluded evidence of a collateral source. The Court found that there is a narrow impeachment exception to the collateral source rule, but the trial court correctly did not apply the exception in this case. Justice Randolph wrote the Court's majority opinion. Justice Dickinson wrote a concurring opinion. Justice Kitchens wrote a dissent joined by Justice Waller that argued that there should be no exceptions to the collateral source rule. The main take away from this case is that unlike on the casino floor, the casino can actually lose at the courthouse.

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The Clarion-Ledger website contains the A.P. story on the $2.1 million verdict against Goodyear Tire and Rubber Co. that I discussed in an earlier post. While the AP correctly stated the facts of the case, it misstated the ruling of the Mississippi Court of Appeals.

The statement that I have trouble with is the following:

The young men’s families — and a jury — blamed the accident on a faulty tire on the Chevrolet Camaro rather than excessive speed and the beer the men had been drinking.

The Mississippi Court of Appeals agreed this week and upheld a $2.1 million verdict against Goodyear Tire and Rubber Co. and Big 10 Tire Co.

The Court of Appeals neither agreed nor disagreed with the jury's verdict. Instead, the Court considered the issues raised on appeal by Goodyear and found that there was no reversible error. The Court was required by law to give deference to the jury's decision and could only reverse if there was no evidence to support the prevailing party and reasonable jurors could not have ruled in the prevailing parties' favor. Since the jury found for the plaintiffs, the Court was required to consider the evidence in the light most favorable to the plaintiffs.  Applying this standard, the Court found that the jury's decision was supported by sufficient credible evidence to support the verdict.

The Court could not and did not simply read the trial transcript and decide whether the Court thought that the jury got it right. Appellate judges do not substitute their assessment of the evidence for the jury's assessment. The Court's fifty-six page opinion cited substantial evidence that supported the jury's verdict. If the Court had found reversible error, it likely would have been related to jury instructions or other procedural rulings by the trial court. This would have resulted in a new trial, not a judgment in favor of Goodyear. It would be nice to see the news media recognize this important distinction.

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On Tuesday the Mississippi Court of Appeals affirmed a $2.1 million Copiah County Circuit Court jury verdict in favor of three plaintiffs against Goodyear Tire and Rubber Company. Judge Forrest Johnson presided over the trial because Judge Lamar Pickard recused himself from the case. Judge King wrote the majority opinion, which was fifty-six pages long. Judges Griffis and Barnes dissented without an opinion and Judge Carlton wrote an opinion concurring in result only. It looks like plaintiff's lead counsel at trial was Mike Allred and Goodyear's was Michael Baxter of Copeland Cook.

The case involved a car crash that killed one young man and injured two others. The driver was intoxicated and the car was traveling at between 88-92 mph when a back rear tire failed and the car crashed. It was undisputed that there was a tire failure. Plaintiff argued that there was a breach of warranty because the tire should have been safe up to 112 mph, but fell apart because of the car's speed. Goodyear argued that the tire hit an object that caused the failure and that the driver could have averted the crash if he had been sober.

The Court rejected all eight of Goodyear's appeal issues, which covered the water front. One interesting point was that the trial judge granted more than one form of the verdict instruction. One was a general verdict form and another was for apportionment of fault to the driver. The jury returned its verdict in general form with no allocation of fault. It makes sense to have more than one form of the verdict form for that situation, but I have always thought in terms of there having to be only one form of the verdict instruction and cannot recall having a trial with more than one.

Another interesting issue involved a jury instruction that Goodyear objected to, but the Court found that the objection was not specific enough and was therefore waived.

It will not be surprising to see the Supreme Court take this case given the size of the verdict and numerous issues. If so, Justice Kitchens will not participate, since he was one of the plaintiffs' attorneys.

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On Thursday the Mississippi Supreme Court affirmed a $6,925,000 judgment against Franklin Corporation, which is a furniture manufacturer. $5 million of the verdict was for punitive damages. Here is the opinion and the Clarion-Ledger article reporting the decision. The initial Ledger article incorrectly states that the judgment was for $3.76 million. Justice Randolph wrote for the Court, with Justices Graves and Dickinson writing concurring opinions. There was no dissent.

The Circuit Court of Calhoun County (Judge Howorth) rendered the judgment in July 2007. The jury's verdict was $9.5 million and the trial court reduced the amount to $6.925 million before entering the judgment. The four plaintiffs alleged that they suffered injuries as a result of Franklin's use of a hazardous glue in its facility and failure to adequately ventilate the facility.

The bulk of the Court's opinion on appeal dealt with the issue of whether Franklin could be liable outside the workers' comp. act under the intentional tort exception. The Court sided with the trial court's determination that there was a fact question for the jury on the claims of battery and intentional infliction of emotional distress. If the Court had found that workers' comp. was the exclusive remedy, the plaintiffs would not have been able to recover anything in circuit court.

This will be a controversial decison. Employers are going to hate the decision, since most would have assumed that workers' comp. would have been the exclusive remedy for the employees. The Supreme Court's response to that probably would be that they were just applying Mississippi statutory law and that it is the legislature's job to change the law.

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On Tuesday the Mississippi Court of Appeals affirmed a $350,000 jury verdict in APAC v. Johnson. The verdict was from the Circuit Court of Washington County. The facts were that an APAC truck hit a power line, causing a pole to fall on plaintiff's vehicle. The plaintiff had to be removed from the vehicle with the jaws of life and suffered C6 and C7 fractures. The plaintiff's medicals were $12,621.34. APAC admitted liability.

APAC's numerous appellate issues included whether the trial court should have allowed treating physicians to testify as fact witnesses and whether the verdict was excessive. A unanimous court of appeals affirmed the verdict.

Regarding the amount of the verdict, the Court stated that the jury has "broad leeway" when it comes to a damages award. The Court did not find bias, passion or prejudice due to the evidence that the plaintiff had a fractured vertebrae, ongoing pain and limitation of her former activities.

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In 2008 the Mississippi College Law Review published the results of its 2008 Judicial Administration Project. You can access the the results of the study here.

The study examined Mississippi Supreme Court opinions in civil cases starting on January 1, 2004. During this time period the Court reversed twice as many plaintiff verdicts (176) as defense verdicts (86). In addition, the Court affirmed 43% of verdicts for plaintiffs (134 of 310) compared to 69% of the verdicts for defendants (195 of 281). Interestingly, trial court judges and juries were more balanced than the Supreme Court, rendering 310 verdicts for the plaintiff and 281 for the defense.

The study contained the following important disclaimer:  

Take note that this chart displays the disposition of ALL civil cases.  It does not reflect the court's dispositions on any particular topic.  Instead, it includes everything from contract disputes to domestic issues to will contests.  Procedural matters, including appeals from summary judgment and motions to dismiss, are likewise incorporated.

Because the study included all civil actions and was not limited to jury verdicts involving a business interest against an individual, it does not squarely address the controversy raised by former Mississippi Bar President and highly respected Jackson lawyer, Alex Alston. According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business. 

The MC study does not refute Alston's criticisms and suggests that Alston had a valid point. Hopefully, the Law Review will continue its analysis to further explore these important questions. The civil justice system does not efficiently resolve disputes when either side has reason to believe that the deck will be stacked in its favor on appeal.