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

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Tupelo lawyer Kelly Mims is challenging Judge Donna Barnes for her Mississippi Court of Appeals post for the Northern District. Judge Barnes has held the position since 2004.

Here is Mims' campaign website.

Mims is a 2000 graduate of the University of Mississippi School of Law. He has worked as a Lee County Public Defender and appears to have primarily practiced criminal defense in private practice.  Ya'll Politics ran Mims' press release announcing his candidacy today.

 Here is Judge Barnes' campaign website.

Although Mims does not have a track record as a judge, I suspect that he would be a moderate to conservative jurist. He appears to have a conservative background and served in the U.S. Army. His stint as a Public Defender is probably more of a reflection of wanting to get good experience as opposed to a statement of judicial or political values. His private practice has been in a small firm, which almost always results in representing more individuals than insurance companies and corporations.  

Judge Barnes was originally appointed to the court and did not have an opponent in her only election. It remains to be seen how either Judge Barnes or Mims perform on the campaign trail. Contested judicial elections in Mississippi often come down to who campaigns the hardest. And by this I mean actually getting out and meeting voters. That could be the case with this one.

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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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On Tuesday a unanimous Mississippi Court of Appeals reversed the Circuit Court of Harrison County’s dismissal of a lawsuit against two physicians for failure to comply with the pre-suit notice statute: Miss. Code Ann. 15–1–36(15). Here is the Court’s opinion in Hans v. Memorial Hospital.

The relevant facts were as follows:

• April 2006:           alleged negligent medical care
• March 29, 2007:   complaint filed
• May 2, 2007:        notice letter sent to two doctors 
• May 30, 2007:      two doctors dismissed without prejudice based on failure to provide pre-suit notice
• March 26, 2008:   plaintiffs filed amended complaint joining the two doctors who were dismissed
• August 27, 2008: circuit court again granted doctors’ motion to dismiss.

On appeal, the plaintiff argued that the doctors were properly dismissed from the first action, but were provided the necessary notice before the filing of the amended complaint. The doctors contended that this offended the plain meaning of the pre-suit notice statute. The doctors were in essence arguing that the dismissal without prejudice was really with prejudice. That’s a disingenuous argument.

The Court of Appeals agreed with the plaintiff and reinstated the action. I agree with the Court of Appeals. The doctors had notice of the action before the filing of the amended complaint that named them as defendants.

The lesson in this opinion for plaintiff lawyers is that the sooner the complaint is filed, the more time you have to address any claimed notice deficiencies. By filing the complaint in this case more than a year before the statute ran against the doctors, the plaintiff had plenty of time to correct the deficiency. Of course, plaintiffs often do not start looking for a lawyer until just before the statute of limitations expires—or even after.  

The Court of Appeals affirmed the grant of summary judgment for Memorial Hospital on the grounds that the plaintiff failed to establish a prima facie case of medical malpractice against the hospital.

Judge Donna Barnes wrote the Court’s opinion. 

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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.