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

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On Thursday a unanimous Mississippi Supreme Court reversed and remanded a 2009 Rankin County defense verdict based on the trial court's refusal to allow attorneys representing different wrongful death beneficiaries to separately question witnesses during trial. Here is the Court's opinion in Dooley v. Byrd. 

Facts:

The case involved the death of two-year-old Jonathan Dooley, who was killed when the car driven by his mother collided with a trailer owned by the defendants. The facts of how the accident happened were disputed and not germane to the Court's opinion. (I know… “the G.D. Germans got nothing to do with it”—Sheriff Buford T. Justice).

Dooley had 5 wrongful death beneficiaries. Jackson lawyers Don Evans and Jim Smith (former Chief Justice of the Miss. Supreme Court) represented 3 of the beneficiaries, including Jonathan's mother. William Fulgham represented the other two beneficiaries, including Jonathan's father.

Apparently, Jonathan's parents were separated or already divorced at the time of the accident and there was no love lost between them.

At trial, the two sets of lawyers had different theories and strategies. Rankin County Circuit Judge Samac Richardson (now retired) allowed each set of attorneys to give opening statements. The opinion states:

However, peace was short-lived when, in the second day of trial, Dewey requested the court's permission to question Byrd after Leah had completed her examination of him. 

The trial court refused, instructing plaintiffs' counsel to work together in presenting their case.

Supreme Court's Decision:

The Court agreed that plaintiffs' counsel should have been allowed to separately question witnesses. The Court also determined that there was reversible error in the jury instructions. As a result, the Court reversed the judgment and remanded the case for a new trial.

Chief Justice Waller wrote the Court's opinion. Justices Kitchens and King did not participate.

My Take:

It will be interesting to see if there are any repercussions from this opinion in other cases. For instance, will some aligned wrongful death beneficiary-plaintiffs show up with different attorneys for the strategic reason of getting two bites of the apple with respect to trial participation? How big of a mess will it be when the beneficiaries have different lawyers and can't get on the same page?

Double teaming already happens on the defense side all the time in cases with multiple defendants. You see defense lawyers play "good cop, bad cop" in the name of separate defendants. However, it's been my impression that double-teaming at trial has limited benefit and probably is a waste of time.

It will be interesting to see how this decision impacts how plaintiff lawyers try wrongful death cases. In this case it seems like it caused a big mess due to the different theories.

Incidentally, if this is the right case that I am thinking of I heard that Don Evans and Jim Smith weren't getting along at trial either—even though they represented the same beneficiaries.

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I've heard that in recent weeks there was a medical malpractice trial in Madison County Circuit Court with Judge Samac Richardson presiding. During the trial one of the jurors started having a seizure or some similar type of medical emergency.

At the time, Plaintiff's doctor expert was on the witness stand. The witness doctor froze. Meanwhile, the Defendant doctor rushed to the jury box to provide assistance to the sick juror.

Needless to say, Judge Richardson had to order a mistrial. I wonder who would have won after that episode?

I would love to get more information on this trial, so please contact me if you can verify this story or provide more details. I do not reveal the names of sources in posts if the source does not want me to.

Medical malpractice defense lawyers are more secretive than the CIA about their trials, most of which they win. What ever happened to self-promotion?

Update: John Christopher represented the plaintiff and Whit Johnson with Currie Johnson represented the defendant.

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The $3.3 million verdict in Rankin County last week is confirmed. It was an 18-wheeler case where a drunk truck driver ran a red light on highway 49 in Florence. The truck driver pleaded guilty to DUI homicide. The case was a wrongful death suit on behalf of the family of a nineteen-year-old passenger. It was a pre-tort reform case, so the $1 million cap on non-economic damages does not apply. The jury was eleven whites and one African-American. There were ten women on the jury and two police officers. The average age of the jury was approximately 34. The trial judge was Judge Samac Richardson.

John Toney represented the plaintiffs. The defense lawyers were Jack Price of Wise Carter, Ed Taylor of Daniel Coker and Walter Dukes from Gulfport.

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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.