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

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The 2007 Supreme Court Decision:

In June 2003, Jefferson County Circuit Court Judge Lamar Pickard granted Sherwin-Williams summary judgment in a lead paint case (Pollard v. Sherwin-Williams). The Mississippi Court of Appeals affirmed. But on February 15, 2007, the Miss. Supreme Court reversed and remanded the case for trial in a 5–4 decision.

Here is the Court's 2007 opinion. In reversing the trial court, the Court relied in part on the report of Plaintiff's expert Dr. John Rosen. Justice Randolph wrote the 2007 majority opinion. Chief Justice Smith dissented, arguing that there was no evidence of product identification. Justices Carlson, Dickinson and Easley joined the dissent.

The 2011 Supreme Court Decision:

The trial was in the Summer of 2009 and resulted in a $7 million jury verdict. Sherwin-Williams appealed. On Thursday the Mississippi Supreme Court issued an opinion reversing the verdict and rendering the case in favor of Sherwin-Williams. Here is the Court's 2011 opinion.

On appeal, Sherwin-Williams argued that Plaintiff's expert opinions on causation (including Dr. Rosen) were unreliable under a Daubert analysis. The Court agreed. 

Interesting language from the Court's opinion includes:

• “The plaintiff's experts seemingly contradict each other and themselves.”
• “it is difficult to determine whether Lidsky's opinion in the case is, proverbially, a chicken or an egg.”
• “Dr. Lidsky was, essentially, leaning on Dr. Rosen's theory of causation, who was leaning on Dr. Lidsky's theory of injury, who was leaning on Dr. Rosen's theory of causation…ad infinitum.”

Justice Pierce wrote the Court's opinion. Justice Kitchens wrote an opinion concurring in result only and was joined by Justices Chandler, King and Randolph (in part). Justice Kitchens asserted that Sherwin-Williams should win because there was no proof of product identification.

Nine lawyers represented Sherwin-Williams on the appeal, including Wayne Drinkwater, Luther Munford, John Corlew and other lawyers with their firms. Plaintiff's attorneys were Porter & Malouf of Ridgeland, Michael Casano of Gulfport and Dennis Sweet of Jackson.

My Take:

In retrospect, it's easy to say that the Court should have affirmed summary judgment in 2007. Lord knows that's got to be what Judge Pickard thinks. But the reality is that the differing standards of review in summary judgment and Daubert make it possible that the Court was right both in 2007 and 2011.

This case was a plaintiff lawyer's worst nightmare and and dream case for defense lawyers. On the plaintiff side, if you are going to lose a big and expensive case like this, you want it to be early—like in 2003 when Judge Pickard granted summary judgment. That saves you a ton of time and money.

Defense lawyers benefit when the reverse happens. This case had a big trial and was at the Supreme Court and Court of Appeals a total of three times. With all the experts involved, I bet Sherwin-Williams had $3–5 million in this case.   

It was interesting that Justices Carlson and Dickinson did not join the concurrence, which seemed to be based on the same reasoning as their dissents in 2007. If they had joined the concurrence, then the concurrence would have been the majority opinion and the case would have gone down on product identification instead of Daubert.

The significance of this is that the case would have little—if any—precedent value because product i.d. was such a basic element of the case. A Daubert opinion has the potential to be more in play in future cases.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

Last year I discussed the Court of Appeals decision in Denham v. Holmes in this post. The Court of appeals reversed a Lafayette County defense verdict due to issues related to Daubert, defense counsel's closing arguments and jury instructions. On Thursday the Mississippi Supreme Court affirmed the Court of Appeals in this opinion. But the Court disagreed with much of the Court of Appeals opinion.

As a refresher:

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.

The Court disagreed with the Court of Appeals that it was reversible error for the trial court to allow defense counsel to comment in closing on the plaintiff's lack of expert testimony. Plaintiff's counsel referred to the expected testimony in opening, but the trial court did not allow the expert to testify. The Court determined that the comments were proper. The Court reasoned that:

“acting at their own peril, the plaintiffs invited this comment by informing the jury during opening statement that they would provide expert testimony during trial but failing to do so.”

The Court noted:

“The reality of our advocacy system is that the purpose of a party's presentation of evidence and the comments of that party's counsel, throughout the trial, is to aid that party's case, and to 'prejudice' (be detrimental to) the other party's case.” 

The Court reasoned that just because an argument hurts the other side's case does not mean that the argument is improper. Although the Court did not mention Rule of Evidence 403, I could see this language being cited in disputes involving that rule.

The Court also disagreed with the Court of Appeals' Daubert analysis. The Court agreed that the trial court should have allowed the plaintiff's accident reconstructionist to testify about his distance and timing estimates. But the Court disagreed that the expert should have been allowed to testify about causation because the opinions were not sufficiently reliable.

  Justice Carlson wrote the majority opinion. Justice Kitchens dissented on the Daubert issues and was joined by Justices Dickinson and Randolph.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

On Thursday a unanimous Mississippi Supreme Court reversed a $4.5 million jury verdict and ordered a new trial in Hyundai Motor America v. Applewhite. 

The decision involved a products liability case tried in the Circuit Court of Coahoma County. The plaintiffs were the beneficiaries of three persons killed in a car crash involving a 1993 Hyundai Excel. Plaintiffs alleged that the vehicle was not crashworthy due to design and manufacturing defects.

Hyundai's appeal focused on Daubert challenges of the plaintiffs' three expert witnesses.  The Court ruled that the trial court did not abuse its discretion by admitting the experts' testimony. Significantly, the Court rejected Hyundai's argument that computer simulations alone are not sufficient to support expert testimony. The Court stated that: “[w]e are not prepared to say that an expert must physically build a model of his alternative design in order to to demonstrate efficacy.”

But the plaintiff got into trouble over changes to testimony that one of the experts made in his deposition errata sheet. The changes were to four variables used to make the expert's calculations. The plaintiff did not precede or follow the errata sheet with a formal supplementation of the expert's opinions pursuant to Miss. R. Civ. P. 26.  

The Court stated that: “[t]he purpose of an errata sheet is to correct scrivener's errors or provide minor clarification; it is not a means of making material, substantive changes to a witnesses's testimony.” As a result, parties may not rely on a witness's deposition errata sheet as a substitute for formal and timely supplementation.

The Court ordered a new trial due to the plaintiffs' failure to supplement their discovery responses.

Justice Kitchens' wrote the Court's opinion. Ralph Chapman and others represented the plaintiffs. Lawyers from Watkins and Eager in Jackson represented Hyundai.

My Take:

This is not a surprising decision. The Supreme Court likes to see the rules of civil procedure adhered to. Lawyers have to be careful to supplement discovery responses, including expert opinions. This was not a total loss for plaintiffs, since the Court remanded the case instead of rendering.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court ruled in Doe v. Jameson Inn that people who enter a business premises to smoke pot are licensees rather than invitees. Here is the Court's opinion.

The case involved the rape of a thirteen year old at the Jameson Inn in Pearl. The girl left the adjacent Tinseltown movie theater with a group of boys to smoke pot in the boys' room at the Jameson Inn, which was across the street. One of the boys raped the girl in the room.

The circuit court of Rankin County granted the hotel's motion for summary judgment after finding that the girl's status on the property was a licensee. The Supreme Court affirmed.

Property owners owe licensees a duty to refrain from willfully or wantonly injuring persons on their property. The court defined licensee as one who enters property with the owner's permission for the person's own pleasure or convenience.

An invitee is a person who enters property at the owner's invitation for their mutual benefit. Property owners owe invitees a duty to warn the person about dangerous conditions that the owner has express or constructive knowledge of.

Justice Pierce wrote the Court's 6–2 opinion. Justice Kitchens dissented in an opinion joined by Justice Chandler. The dissent argued that there was a fact question about the girl's reason for entering the premises, since the girl gave contradictory statements about the events.

My Take:

The case facts suggest that it would have been very difficult to get a plaintiff's verdict in this case, regardless of the status of the girl.

This is an important decision for pot-heads. The take-home is that druggies need to rent their own room to smoke weed in—that way they will be an invitee. If they go to a friend's room to smoke weed, they are a licensee. If another guest attacks them in that situation, they will not be able to recover. Dude, that's harsh.     

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court reversed a $1,855,000 Copiah County jury verdict in a 7–2 decision in Lincoln Electric v. McLemore. Here is the Court's opinion.

Facts:

This was a product liability failure to warn case involving a welder's claim that exposure to welding fumes resulted in a neurological disease called manganism. The appeal turned on the statute of limitations.

The case was tired before Judge Lamar Pickard in November 2008.

Here are some of the key dates:

• September 3, 2002: doctor diagnoses plaintiff with Parkinsonism and tells him it may be related to welding
• February 2004: plaintiff began filing lawsuits claiming neurological injuries from exposure to welding products
• October 2005: plaintiff diagnosed with manganism, which is related to welding
• November 14, 2005: plaintiff filed complaint against defendants, but didn't serve process
• March 3, 2006: plaintiff filed amended complaint
• March 14, 2006: plaintif served process on defendants

Plaintiff argued that since it was agreed that welding does not cause Parkinsons, his action arose when he learned that he had manganism in 2005. Defendants argued that plaintiff knew of his injury on September 3, 2002 when he was told that his Parkinsons may be related to welding.

Majority Opinion:

Justice Chandler wrote the majority opinion. The Court ruled that the decision was controlled by Angle v. Koppers, which I previously discussed in this post. In Angle the court ruled that an action accrues when the plaintiff learns of the injury, not the discovery of the injury and its cause.

The Court concluded that plaintiff knew that he had an injury in September 2002 when the doctor informed him that he had Parkinsonism that might be related to welding.

Dissent:

Justice Kitchens dissented in an opinion joined by Justice Graves. The dissent pointed out that the jury found that the plaintiff could not have discovered his injury until October 2005. Therefore, the case was timely filed according to the dissent.  

My take:

I'm not real enamored with the majority's opinion. Was it proper for the trial court to submit the issue of when the plaintiff discovered his injury to the jury? The majority doesn't say. I would have liked for the Court to address this question.

If it was proper to submit the issue to the jury, what is the basis for substituting the Court's opinion for the jury's on a question of fact? The majority doesn't say.

Did everyone agree that Parkinsonism is not caused by welding fumes? If so, is it fair that a cause of action accrues when a doctor incorrectly tells a plaintiff that an illness may be related an activity that would give a plaintiff a claim? That seems odd.

So a plaintiff should file an action to preserve a possible claim based on an opinion from a doctor that the plaintiff knows is wrong? Wouldn't that create Rule 11 issues?

Maybe I am missing something here.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The Clarion-Ledger reported Saturday on Thursday's Mississippi Supreme Court opinion that fined Hinds County Circuit Court Clerk Barbara Dunn $5,000 for problems with her office not mailing Orders to the parties' lawyers. Here is the opinion.

The case dealt with the clerk's failure to comply with Miss. R. Civ. P. 77, which requires clerks to serve all Orders and Judgments on the parties (or their attorneys).  Ms. Dunn's office has repeatedly not complied with the rule, despite a prior sanction by the Court. In order to make its point that the rule must be complied with, the Court fined Dunn $5,000 that must be paid from her personal funds.

Justice Kitchens wrote the Court's unanimous opinion, with Chief Justice Waller not participating.

My Take:

Good for the Supreme Court. Mississippi attorneys who practice regularly in Hinds County are familiar with this problem.

Here is how it often plays out. One of the circuit judges takes a matter under advisement at a hearing and rules later. It could be days, weeks or months before the judge rules. In one of the judges case in particular, it could be years before he rules (if ever). Except the Clerk does not mail a copy of the Order to the parties, who mistakenly believe that they are waiting on the judge to rule. In the meantime, appeal deadlines can expire, since lack of notice of an Order or Judgment is no excuse.

I like Barbara Dunn, but her office has got to do its job.

Hopefully, other clerks across the state will get the message. Hinds County is not the only clerk's office with issues. The Hancock County Circuit Clerk has a habit of mailing copies of Orders a few weeks after the judge signs the Order.

These types of problems are inexcusable and I am glad that the Supreme Court sent a strong message that they will not be tolerated.

Update:

Here is a sobering comment on the lack of compliance with the rule by Judge Larry Primeaux made today on his blog:

In my experience as a practitioner and as a judge, I know of only one district where Rule 77(d) notices are routinely sent out, and it is not the Twelfth District.  On one occasion some years ago, I learned by pure happenstance that the court had entered a final judgment in my case 24 days before, leaving me only six days to confer with my client and decide whether we would appeal. 

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

Last week I posted about the Miss. S. Court's reversal of two jury verdicts in premises liability cases. Here are my thoughts on the decisions.

Lymas v. Double Quick

This case was famous not for the underlying verdict, but because the plaintiff challenged the constitutionality of the damages caps on non-economic damages. The Court reversed and rendered on liability, however, and did not mention the caps in the opinion. Justice Kitchens wrote the opinion for the unanimous majority.

Double Quick hinged on a Daubert analysis of two expert witnesses. The plaintiff had two expert witnesses on security issues, but neither opined on proximate cause other than conclusory statements in response to leading questions. Neither expert explained how the alleged failure to take steps to protect the decedent proximately caused the shooting. As a result, the Court found the testimony to be not based on sufficient facts or data and improperly speculative.

There is something to like in the decision for both plaintiffs and defendants. The Court did not change the underlying law or uphold the damages caps, which plaintiffs and their lawyers like. On the other hand, the Court did not strike the caps and gave defendants and their lawyers a lot to argue on causation issues in premises liability cases involving criminal acts by third parties.  

Rebelwood Apartments

This decision was in the news over the weekend because of the expert testimony of Jackson Deputy Police Chief Tyrone Lewis. The Clarion-Ledger reported:

JPD Deputy Police Chief Tyrone Lewis, testifying for English, said, "There is no documentation, no written statements or anybody to come forward to say that it did not happen at Rebelwood."

Cleveland Ellis III told police he accidentally killed Coleman, his friend, when his gun went off at Woodbine Terrace apartments, where he lived. He said he drove her body to Rebelwood and left her there.

That evidence was not allowed at trial, a decision by Circuit Judge Winston Kidd that the Supreme Court found erroneous.

The disputed evidence consisted of statements contained in police reports. Justice Randolph's majority opinion concluded that the trial court judge (Judge Winston Kidd) should have found the police reports to be sufficiently reliable and admitted the reports (including the statements) into evidence. In my opinion, the Court made the right ruling, but for the wrong reason.

I agree with Justice Chandler's concurrence. Judge Chandler opined that the statements in the police reports were hearsay within hearsay and therefore, should have been excluded. But he agreed that the defendant should have been able to impeach Chief Lewis with the statements in the reports. Chief Lewis' testimony on direct opened the door to him being impeached with the reports.

I am afraid that the majority's opinion will make a mess of the law regarding the admissibility of statements within police reports. 

The majority also concluded that the trial judge should not have allowed plaintiff's economist expert (Dr. Glenda Glover) to base her loss of future earnings analysis on national averages because there was evidence that the decedent earned less than the national average. All justices concurred except for Justice Kitchens.

I thought that the majority got it right on this issue. Sometimes proving lost earnings might require the use of a national average because there is no other evidence to base an opinion on in a particular case. But the national average should not be used as a damages floor when there is evidence that the decedent earned less than the national average. Just as someone who earned more than the national average should be allowed to recover more for loss of future earnings, someone who earned less should recover less.

Finally, the majority found that race was improperly interjected into the economist's testimony by referring to the “Mississippi Black Effect.” I agree with the majority that this was improper. Even if this was not intentional, this sounds like the playing of a race card during trial, which is a big no-no.  

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court issued an interesting 7–2 opinion in Burnwatt v. Ear, Nose and Throat Consultants of North Mississippi. Here is the Court's opinion, which Justice Chandler wrote. Justice Kitchens wrote a dissent that Justice Graves joined.

Facts:

The facts of the case were tragic. Alex Burnwatt, aged 9, had a tonsillectomy in 2001 performed by Dr. John Laurenzo. In the days following the surgery, he complained of pain and could not eat or drink without throwing up. After a few days, his parents took him to Baptist Memorial Hospital–North Mississippi (“BMH-NM”). At BMH-NM he vomited blood and collapsed on a bed. A nurse called a code, but resuscitation efforts failed and he died.

Lawsuit:

Alex's parents sued Dr. Laurenzo, his practice group and the BMH-NM. BMH-NM moved for summary judgment and plaintiffs confessed the motion because neither plaintiff, nor Dr. Laurenzo, designated expert opinions that were critical of BMH-NM.

After the dismissal, Dr. Laurenzo designated an expert who opined that he did not breach the standard of care and that Alex's death was caused by resuscitation efforts. Plaintiffs moved to exclude the testimony as an improper attempt to blame BMH-NM.

The trial court allowed the expert to  testify at trial and there was a hung jury. The Supreme Court granted an interlocutory appeal. 

Cynthia Mitchell, John Cocke and Charles Merkel, III with Merkel & Cocke represented the plaintiffs. Shelby Milam, Duke Goza and Dion Shanley represented the defendants.

Majority Opinion:

The Court ruled that the defense expert should be allowed to testify to explain the defendants' theory of the case: “Alex died as a result of pneumothorax (air around the lung that causes the lungs to collapse) during resuscitation efforts.”  In contrast, plaintiffs' theory “was that Alex died as a result of Dr. Laurenzo's negligence in cutting too deeply into the tonsillar bed, resulting in Alex's exsanguination (blood loss) at the hospital.”

Dissenting Opinion:

Justice Kitchens argued that judicial estoppel applied and precluded the defendants from offering the expert opinion that Alex died from the resuscitation attempt. The dissent was critical of a jury instruction that the defense contended that Alex's death occurred during resuscitation attempts.

The dissent reasoned that the expert's testimony and the court's instruction had the effect of laying the responsibility for the death on BMH-NM. The dissent argued that defendants should not be allowed to do this because they limited their theory of the case when the agreed to not blame the hospital.

My Take:

I have changed my mind on this opinion several times in the last day. I am not sure if this was a proper theory of the case defense or improper “sneaky” finger-pointing. Here is what I mean. When a party in a lawsuit is blaming someone else, they should have to point the finger like this:

But defendants—particularly defendants in medical-malpractice--cases often point the finger discreetly, like this:

I call this sneaky finger-pointing. "I'm not blaming anyone....except for that dude over there."

It most commonly arises when a defendant in a medical-malpractice case blames another doctor or nurse (who wasn't sued or has been dismissed), but does not have supporting expert testimony against the non-party.

Plaintiffs can't get away with this because of the clear law that a plaintiff has to have supporting expert testimony to get to the jury. But defendants can get away with this if the trial court lets them because the defense does not have the burden of proof and the law is not developed on this issue.  

I believe that it is improper for a trial court to allow a defendant in a case that requires expert testimony to blame someone else without supporting expert testimony. But I have seen it happen.

I suspect that the plaintiffs' lawyers in Burnwatt have seen it happen too. But what happened in Burnwatt may have been a little different. Or it may have been a little sneakier. I can't tell.

 As I write this, my opinion is that the defense expert should have been limited to testifying that the defendants complied with the standard of care. I reach this conclusion because if—as defense expert says—sometimes resuscitation efforts fail, then that was foreseeable and the fact that Alex died during resuscitation is either not relevant or more prejudicial than probative. The sole issue is whether there was a breach that proximately caused the death.

"Theory of the case" does not trump the rules of evidence. If it did, you would often see a party's theory of the case that the opposing party is a scum-bag who deserves to lose. Alas, the rules of evidence prohibit this type of defense because it is premised on character evidence.   

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

On Thursday in a 7–2 decision the Mississippi Supreme Court affirmed the Grenada County Circuit Court's grant of summary judgment in Angle v. Koppers, Inc. Here is the Court's opinion. Justice Lamar wrote the Court's opinion joined by Chief Justice Waller and Justices Carlson, Dickinson, Randolph, Chandler and Pierce.

The case was a toxic tort case where plaintiff claimed to suffer injuries as a result of exposure to toxic chemicals. The most recent of plaintiff's claimed injuries occurred in 2001. Plaintiff filed suit in 2005.

Plaintiff argued that the statute of limitations began to run when  she discovered that her medical problems were the result of exposure to toxic chemicals. Defendants argued that the statute of limitations began to run when plaintiff was diagnosed with her illnesses. The Court agreed with the defendants.

The Court's decision was based on its interpretation of this provision in Mississippi's general statute of limitations, Miss. Code Ann. 15–1–49:

(2) In actions for which no other period of limitations is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury. 

The Court noted that the statute does not state discovery of the injury and its cause. The Court also pointed out that medical malpractice cases are governed by a different statute and discovery rule.

Justice Kitchens dissented and was joined by Justice Graves. The dissent argued that the statute cannot begin to run until a plaintiff is aware of all four elements of a negligence claim, including causation. Therefore, the dissent argued that the statute did not begin to run until the plaintiff discovered that her illnesses were caused by the exposure to the toxic chemicals.

Chris Shapely and a bunch of other lawyers represented defendants. Elizabeth Carlyle and and bunch of other lawyers represented the plaintiff.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

In a 5–4 decision on Thursday, the Mississippi Supreme Court issued its opinion in Jones v. Fluor, holding that a one-year statute of limitations applies to the claim of intentional infliction of emotional distress. Justice  Pierce wrote the Court’s opinion and was joined by Chief Justice Waller and Justices Carlson, Randolph and Chandler.

Here is the Clarion-Ledger article on the case, which got the number of votes wrong (6–3).

The applicable statute is Miss. Code Ann. 15–1–35, which lists a one year deadline for filing actions for “assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels…”

The statute does not say that there is also a one year statute of limitations for actions “like these”, but that is what the court found.

Justice Dickinson dissented and was joined by Justices Lamar, and Kitchens. Justice Kitchens wrote a separate dissent joined by Justice Graves and Justice Dickinson, in part.

Justice Dickinson’s dissent states that intentional infliction of emotional distress “clearly is not subject to the one-year statute of limitations” because the statute “specifically lists the intentional torts to which it applies.” The dissent also observes:

It requires no analysis or particular legal insight to observe that the tort of intentional infliction of emotional distress is not included in the language chosen by the Legislature.

Justice Dickinson’s dissent is very persuasive. I’m surprised that his opinion was not for a unanimous court.

My biggest criticism of the majority’s holding is that it makes life difficult for lawyers. If the majority can read words that are not there into this statute, then it can do it in other statutes. It is not fair to lawyers or their clients that they have to figure out what language the Court believes should be in a statute, but isn’t.

I don’t have a problem with there being a one year deadline for intentional infliction of emotional distress actions. Typically, it is just a throw-in claim with the real claim at issue in a case. But if it’s going to be a one year deadline, then the statute should list the claim. It does not and Justice Dickinson is dead on.

Justices Kitchens and Graves opined that the defendant waived the statute of limitations defense.

 The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.