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

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WIll Bardwell raises a great point on the Wright v. Royal Carpet decision that I wrote about earlier today:

Ultimately, though, it may be much ado about nothing, because technically speaking, I'm not sure that the decision creates binding precedent. The Court's opinion drew only five votes -- not a majority of the Court -- and one of its members, Judge Irving, joined in result only. Judge Maxwell's separate opinion, on the other hand, pulled a total of five full votes (why that doesn't make it the "majority" opinion, I don't know). Suffice it to say, though, that a majority of Court's members declined to concur in the lead opinion's reasoning. 

I didn't notice the vote counting issue when I read the opinion. The concurrence, which I mistakenly refer to as the dissent in my post, had five votes. The majority opinion included Judge Irving who concurred in result only. But the concurring judges also concurred in the result. It's how they got there that's in dispute.

And it looks like the concurring opinion is really the majority. I'm missing something on the vote counting at the Court of Appeals.

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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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The Saturday Clarion-Ledger was legal themed with three articles covering legal issues. There was this article about Big Law paying would-be associates to perform public interest work instead of starting work at the firm, which doesn't have work for new associates due to the recession. These are great programs for several reasons. Money starved non-profits and public policy firms get free legal work. The new lawyers get valuable experience and exposure to the poor and and mistreated that most would not otherwise obtain. The bad news is that this is a terrible sign for the legal industry in general and current law students in particular. For the legal industry it indicates how little work big firms have. For law students, if Big Law is paying new lawyers to work somewhere else, then the job market must be terrible.   

Another article was this article about this week's Mississippi Court of Appeals decision in which the Court ruled that a railroad did not have standing to challenge an adoption by a former employee who sued the company.

The longest article was this Jerry Mitchell article about the Mississippi Supreme Court reversing Judge DeLaughter's grant of summary judgment for attorneys Gene Tullos and Crymes Pittman. The article contained this statement:

Since that plea, the high court has upheld nearly all of DeLaughter's rulings in criminal and civil cases.

That did not seem right when I read the article. It did not seem right to Tom Freeland either, who wrote this post about it at NMC and commented:

Since the first of August, the Mississippi Supreme Court has published opinions in four cases appealed from rulings by Judge DeLaughter.  All four were reversed; it’s a small sample size, but the court hasn’t upheld a single one of DeLaughter’s rulings since the plea.   His rulings have faired better in the Court of Appeals– three affirmances, two in civil cases (one of the affirmances was a pro se criminal appeal).  Going back to when the cloud first formed over his head in December of 2007, there were two reversals and six affirmances by the Supreme Court, which is more what you’d expect.

I’m having trouble counting four reversals, no affirmances as “upholding nearly all of DeLaughter’s rulings…” since the plea.

Agreed. I try to read the Court's hand-down decisions every Thursday. My general impression, without going back and doing the research, was that Judge DeLaughter was usually affirmed before the judicial bribery scandal and has been usually reversed since the scandal. Perhaps that is just a coincidence. But perhaps it is not. Overnight, DeLaughter went from a very respected judge to a judge whose every ruling is suspect. It's only natural for the Court to take a harder look at DeLaughter's decisions.

As for the underlying Tullos case, it should be kept in mind that the Court's reversal was on procedural grounds and did not address the merits of the case. Both Tullos and Pittman commented for the Clarion-Ledger article and appear to have solid defenses. I think it was smart for Tullos and Pittman to comment to Mitchell to get their side of the story out to the public. I do not understand why more people who are parties in high profile cases do not get their story into to public domain.

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The Court of Appeals issued a record (?) thirty-two opinions today leading into the July hiatus. I have not read all thirty-two and hope Tom Freeland or Ipse Blogit beats me to it.

In Borne v. Dunlop Tire Corp.  a unanimous Court affirmed the trial court's grant of summary judgment due to the fact that Plaintiff's affidavit supporting the opposition to the motion was based on hearsay and not personal knowledge. This was a products liability case involving a Ford Explorer roll-over where the Plaintiff did not have the Explorer or the other three tires on the vehicle. Judge Samac Richardson granted summary judgment because the Plaintiff could not prove that the tire that the Plaintiff did have came off the subject vehicle. The Plaintiff's attempt to satisfy this burden consisted of an affidavit from an attorney that was not based on personal knowledge.

The decision could be categorized as a mercy killing. A footnote states that the Plaintiff was able to settle with Ford Motor Co., although I can't imagine it having been for a large amount without the vehicle. Most plaintiff lawyers understand the importance of having the product at issue in a products case. Unfortunately, the actual plaintiffs sometimes let the product get away before hiring a lawyer who will secure the vehicle or other product.

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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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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 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.