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 Mississippi Supreme Court decided a case that was a dispute over the near-sale of a planned law office building. Here is the opinion in Sweet v. TCI. 

Anderson discussed the opinion here. The case turned on the issue of whether an affidavit was so conclusory as to be ineligible to support a motion for summary judgment. Amazingly, the following passage in Justice Dickinson's dissent convinced only Justice Randolph to join the dissent:

The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.

My initial reaction was that this was one of the greatest pieces of legal writing in the history of American jurisprudence. But upon further reflection, I've decided that Justice Dickinson should have referred to corn or spinach instead of peas.

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On Thursday a unanimous Mississippi Supreme Court reversed a $148,000 bench trial verdict against the City Jackson in a Tort Claims Act case stemming from  traffic accident caused by a police officer responding to a report of a man lying injured on a street. Here is the Court's opinion, which Justice Dickinson authored.

The accident occurred at the five points intersection on Woodrow Wilson Drive in Jackson. The officer entered the intersection with lights, siren and buzzer all on. The officer clipped a vehicle driven by the plaintiff, causing plaintiff's vehicle to roll-over. The plaintiff had the right away and did not see or hear the police car due to an obstructed view and the fact that her radio was turned up.

Hinds County Circuit Court Judge Swan Yerger ruled that the police officer's conduct exhibited reckless disregard for the safety of others and awarded the plaintiff over $148,000 in damages. The Mississippi Court of Appeals affirmed the trial court.

The Supreme Court granted cert. and reversed the Court of Appeals and trial court. The Court noted that the reckless disregard for the safety and well-being of others standard sets an “extremely high bar for plaintiff seeking to recover against a city for a police officer's conduct while engaged in the performance of his or her duties. The City is immune from liability for acts of negligence, and even gross negligence is not enough.”

The Court found that there was no evidence that the officer acted in reckless disregard for the safety of others. As a result, the Court reversed and rendered judgment in favor of the City.

This was a huge win for the City of Jackson and its legal department, headed by City Attorney Pieter Teeuwissen. There have been several verdicts against the City in police pursuit cases in the last few years and the City is appealing all of them. I discussed earlier verdicts here and here.

The other verdicts involved wrecks caused by suspects running from the police in high speed chases. If this case where the officer actually caused the wreck did not meet the reckless disregard standard, it is hard to imagine how the standard is met in cases where the wrecks were caused by criminal suspects running from the police. The City has to feel good about its prospects in the appeals of the other cases. 

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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. 

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Last week the Mississippi Supreme Court issued its newest Daubert opinion in a 7–2 decision in Hill v. Mills. Justice Dickinson wrote for the majority. Justice Chandler wrote a dissent joined by Justice Graves.

The case originated in the Lincoln County Circuit Court with Judge David Strong as the trial judge. Judge Strong is a popular judge, despite his sad allegiance to Ole Miss athletics—a school that he did not attend until law school when he graduated from the famed Class of 1993.

The case was a medical malpractice case following a miscarriage that plaintiffs claimed could have been prevented by the defendant doctor. Plaintiff’s expert witness could not support his opinions with medical literature. In contrast, the defendant offered literature that supported his expert’s opinions.

 The trial court concluded that this made the opinions of plaintiff’s expert unreliable and excluded the expert’s opinions. Since expert testimony was required in the case, the trial court also granted summary judgment.

The Mississippi Supreme Court basically affirmed the trial court. The Court reversed on the grant of summary judgment for plaintiff’s claims that were unrelated to the wrongful death. But that claim was not the focus of the case and the Court’s decision was a big defense win.

The opinion’s key holding was:

We think the better practice is, when an expert (no matter how qualified) renders and opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.

The Court clarified that this does not mean that there is a requirement that an expert’s opinion be supported by peer-reviewed articles.  

I do not take issue with the decision that the expert in the case should not have been allowed to testify. But I do question whether the Court is following Daubert and its progeny in reaching its decisions and in the scope of its rulings. My criticism is similar to my criticism of the Court’s opinion in Vaughn v. Mississippi Baptist Medical Center that I wrote about here.  

The United States Supreme Court discouraged attempts to apply definitive rules to Daubert issues in Kumho Tire Co. v. Carmichael. In that landmark Daubert case the Court stated the following: 

• We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997) (courts of  appeals are to apply "abuse of discretion" standard when reviewing district court's reliability determination). Applying these standards, we determine that the District Court's decision in this case -- not to admit certain expert testimony -- was within its discretion and therefore lawful.
• Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U.S. at 594. Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." 509 U.S. at 593. And Daubert adds that the gatekeeping inquiry must be "'tied to the facts'" of a particular "case." 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending  on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. [emphasis added].
• Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.
• We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match. [emphasis added].
•  Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
• Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to admit or exclude expert testimony."

In Kumho Tire the Court ruled that the district court did not abuse its discretion by excluding the expert’s opinions in the case. In doing so, it refused to adopt definitive rules to apply to specific types of experts and cases. Daubert and Kumho Tire speak in terms of the trial court’s flexibility in determining whether experts should be allowed to testify.

The Mississippi Supreme Court is not properly emphasizing this flexibility in its opinions and is instead adopting the types of definitive rules that Kumho Tire frowned upon.

In Vaughn, the Court took a Daubert case and made a hard-and-fast rule that nurses cannot testify as to medical causation. In Hill v. Mills, the Court created another definitive rule requiring evidence to respond to a challenge to an expert’s opinions in all cases where a challenge is made, regardless of the circumstances. With all due respect for the Court, adopting definitive rules rather than limiting its ruling to a determination of whether the trial court abused its discretion in making a Daubert ruling is inconsistent with Kumho Tire.

Will Bardwell seemed to come to a similar conclusion in his blog:

Regardless of whether you think the Mississippi Supreme Court's treatment of Miss. Rule of Evidence 702 in Thursday's Hill v. Mills decision was correct, one can't help but conclude that it places a big, big land mine in front of trial litigants.

This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert's opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he's a quack is a question that should be left to the jury.

More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert's reliability prong." And that's the biggest problem with this ruling. As a matter of law, Rule 702 doesn't (or, at least, it didn't) impose on courts the duty to weigh conflicting testimony and to decide whether one witness' testimony invalidates another's. That's a basic jury duty.

My problem with the opinion is that the Court appears to emphasize the result more than how the trial court reached its decision.

In Vaughn, the Court could have struck the expert without creating a rule that nurses can never testify about medical causation. In Hill, the Court could have found that the trial court did not abuse its discretion in striking the expert’s opinions under the facts and circumstances of the case, without creating a rule that requires in all circumstances the expert to have evidentiary support of his opinions.

But the Court went beyond that and issued definitive rules to apply to Daubert issues. This appears contrary to the rulings of the U.S. Supreme Court, which ruled that Daubert does not lend itself to definitive rules.

Daubert determinations are fact specific and case specific. The trial court should have flexibility and considerable leeway in making Daubert determinations. Courts of appeals should then review the trial court’s findings under an abuse of discretion standard. Appellate courts should not take each new Daubert case as an opportunity to create another definitive rule to apply to a growing list of definitive Daubert rules.

But that is not the approach that the Mississippi Supreme Court appears to be taking.

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Background

Before Christmas I reported the plaintiff’s verdict for $80,000 in Madison County Circuit Court in the Robertson v. Russell case. My initial impression was that the result was a loss for both sides. I still feel that way.

Facts

The facts of the case were typical for an alienation of affection case (or any example of infidelity). The plaintiff and his long-time wife were in a typical marriage: stable, but certainly without the passion of a new relationship. The defendant was in a similar marriage. The defendant and plaintiff’s wife began an affair, leading to the divorce of both couples. Plaintiff and defendant’s wife later married. There were some lurid details involving the affair, but again, fairly typical for instances of infidelity.

In summary, marriage is boring. Hell, being a responsible grown-up is boring. Affairs are exciting—at least that’s what people who have had them tell me. The fact that the cheaters later married doesn’t prove anything—except for maybe that being single in the South is un-fulfilling. 

Reason that the Verdict was a loss for the Plaintiff:  The verdict was a loss for the Plaintiff because the amount was too low to make the case worthwhile from the Plaintiff’s side. The case involved a week long trial, a lot of discovery and expert witnesses on both sides. Assuming that Plaintiff’s expenses in the case were $30,000, that leaves $50,000 before attorney’s fees. Assuming a 40% attorney’s fee, that leaves the Plaintiff with $30,000. In my opinion it would not be worth $30,000 to have to re-live the failure or your marriage for several years while the case was pending and sit through a week long trial where the defendant’s natural defense was to attack the plaintiff. I’m not sure what amount that would be worth, but $30,000 isn’t close.

Reason the the Verdict was a loss for the Defendant: The verdict was a loss for the Defendant because he has to pay the Plaintiff $80,000 on top of Defendant’s own attorney’s fees and expenses. My estimate is that the Defendant spent north of $100,000 out of his own pocket in attorney’s fees and expenses. Insurance does not cover alienation of affection cases. I can’t characterize a case where the Defendant is out of pocket at least $180,000 as a win.

In addition, a survey of reported verdicts in alienation of affection cases shows that the Defendant was lucky to escape a large verdict in the high six figures at least. In 1999 in Bland v. Hill the Mississippi Supreme Court affirmed a $200,000 verdict from a Lee County case. In 2007 in Fitch v. Valentine, the Mississippi Supreme Court affirmed a $754,500 verdict from a Marshall County case. In 2008 in Pierce v. Cook the Court affirmed a $1.5 million verdict from a case in Rankin County.

Defendant in Roberston v. Russell was found by the jury to have done the same thing as the defendants in the above three cases, but the jury awarded less in damages. It would be easy for a different 12 people to return a much higher verdict for the same conduct.

My point is that the Defendant should have tried to settle the case, but never did. He lost at least $180,000 on top of his own time and stress and could have lost much more. If the Defendant wants to call himself a winner because he could have lost more, he certainly has that right. Many losing players leave the casino every day with the same mind-set—happy that their loss was not worse. But they still lost.

Should the Trial Court have conducted a punitive damages evidentiary hearing?:

Another problem for the Defendant's case is that absent the Supreme Court  abolishing the cause of action, the case may come back from appeal for a punitive phase. The trial judge did not allow a punitive phase in the case, despite the fact that there was a punitive claim and admitted adultry.

The failure to conduct a punitive phase seems to violate the Supreme Court’s directives set out in Bradfield v. Schwartz. In that case, the Court reversed the trial court for not proceeding with a punitive phase after a plaintiff’s verdict in a case with a punitive claim. The Court explained the proper procedure in a case with a punitive damages claim:

If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury. At the close of this second phase of the trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper, then ultimately decides whether the issue of punitive damages should be submitted to the trier-of-fact (jury). If the judge, from the record, should determine, as a matter of law, that the jury should not be allowed to consider the issue of punitive damages, a directed verdict shall be entered in favor of the defendant on the issue of punitive damages, and the case will end. If, on the other hand, the judge should allow the issue of punitive damages to be considered by the jury, then the jury, upon being properly instructed by the judge on the punitive damages issue, may decide to award punitive damages, and if so, in what amount, or the jury may decide not to award punitive damages. [HN8] If the jury should award punitive damages, then, prior to entry of the final judgment on an award of punitive damages, the judge, pursuant to Miss. Code Ann. § 11-1-65(1)(f)(I), shall "ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others," by considering the factors set out in Miss. Code Ann. § 11-1-65(1)(f)(ii)(1-4). While the statute does not envision that the judge could increase the amount of the jury's punitive damages award, the judge could unquestionably, consistent with the statute, reduce the amount of the jury's punitive damages award. ¹⁰ Finally, just as in any other case, the judge will ultimately decide, via the appropriate post-trial motions, whether it was error to submit the punitive damages issue to the jury. 

It’s my understanding that in Robertson the trial court refused to allow the case to proceed into an evidentiary hearing after the jury awarded compensatory damages. If so, the case should be coming back on appeal for an evidentiary hearing on punitive damages, unless the Supreme Court abolishes the alienation of affection cause of action. This is good news and bad news for both sides.

For the Plaintiff, the good news is that he may get a punitive phase with a different and probably better jury. The bad news is that based on the trial court’s past ruling, it will probably direct a verdict on punitive damages after the evidentiary hearing. If I represented the Plaintiff, I would ask the Supreme Court on appeal to rule that the issue of punitive damages must be submitted to the jury because there was evidence of an adulterous affair.

In Bland v. Hill the Court suggested that in alienation of affection cases the question of punitive damages hinges on whether there was sex involved in the affair:

It is clear that the reason Buddy wanted to put on proof of adultery is to obtain a punitive damage instruction. This Court has held that [HN9] in cases of adultery malice is presumed.  Walter v. Wilson, 228 So. 2d 597, 598 (Miss., 1969). Buddy cites to Walter, but in Walter the plaintiff was suing for alienation of affections and criminal conversation. Criminal conversation, when it was a viable claim, required proof of a sexual relationship between the alienated spouse and the defendant. In the case sub judice, Buddy was suing only for alienation of affections. Bland was not on notice that he would have to defend against accusations of adultery until after the discovery deadline. Buddy did not proffer any direct evidence, and this Court procedurally bars this claim.

For the Defendant, the good news is that the gate-keeping judge doesn’t believe that punitive damages are warranted in the case. The bad news is the defendant is going to be spending a lot more money in attorney’s fees and there may be a different judge when the case returns from appeal, since Judge Richardson is rumored to be considering retirement.  

Should Mississippi Abolish the Alienation of Affection Cause of Action?:  I raise this question because many people do not believe in the cause of action and there have been dissenting and concurring opinions in the Court calling for the cause of action to be abolished. Justice McCrae called for the action to be abolished in a dissenting opinion in Bland v. Hill, asserting that the courts should get out of the business of policing broken hearts.  

More recently Justice Dickinson called for the elimination of the action in a lengthy concurring opinion in Fitch v. Valentine. Justice Dickinson noted that 42 states do not recognize the action and gives several logical reasons supporting its elimination. One of the noted reasons in the problem with quantifying damages in the cases:

The awarding of damages presents another distinct problem in these actions, as no clear standards for compensating the plaintiff exist. Wyman, 615 P.2d at 455. This opens the door for quasi-punitive damage awards, disguised as actual damages, which are usually tainted by passion and prejudice. O'Neil, 733 P.2d at 698. Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791.

Another practical problem with the cause of action is that it prolongs hostilities between individuals who often have to continue to deal with each other due to having children together and who would be better served by burying the hatchet as quickly as possible.

I am in Justice Dickinson’s camp on the cause of action. I’m not a fan of the theory, but it is the law in Mississippi until the Supreme Court or Legislature say otherwise.