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

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Last week the Mississippi Supreme Court issued decisions in two cases that will allow voters in the November elections to decide issues related to abortions and eminent domain.The Court basically punted on the substantive issues and decided the cases on procedural grounds.

In Hughes v. Hoseman the plaintiffs challenged Measure 26, which asks voters to decide whether life begins at conception. Cliff Johnson and Rob McDuff of North Congress Street in Jackson represented the plaintiffs.

Here is the Court's 7–2 opinion. Justice Pierce wrote the majority opinion. Here is a CNN article on the case.

The Court determined that the dispute is not ripe for adjudication, since the amendment has not passed yet. The decision contradicts a 2000 Miss. Supreme Court decision that ruled that the Court does have the authority to review the constitutionality of proposed initiatives. Neither side raised the ripeness issue.

In Speed v. Hoseman, the plaintiff challenged the State's ability to take and transfer private property through eminent domain. Here is the Court's 7–2 opinion. Justice Lamar wrote the majority opinion. As in the personhood case, the Court dismissed the case on ripeness grounds.

My Take:

I thought David Hampton's analysis in the Clarion-Ledger was good:

It is disappointing that the state Supreme Court is allowing the referendums on eminent domain and the so-called "personhood" amendments to proceed on the Nov. 8 ballot. There clearly are legal issues with both, but the court basically punted and said the election should be held before any further consideration. The court said it was not known if the amendments would be rejected, so it would be premature. News flash.  As flawed and potentially harmful as both of these amendments are, they will be overwhelmingly approved. The move to restrict eminent domain appeals, wrongly so, to property rights beliefs and the personhood amendment is a thinly veiled referendum on abortion. They have strong public support. They, along with the initiative to require voter ID, however, mostly are politically motivated efforts to appeal to voters passionate about those issues and bring voter turnout, which Republicans see as beneficial to the GOP. The Supreme Court will be seeing these again. The fact that we have an elected Supreme Court most likely played a role here. It would have been very politically unpopular for the judges to block the election. That's too bad. These initiatives should not be on the ballot.

In all likelihood, the Court's decision simply delays its having to rule on these politically sensitive issues. I prefer an appointed judiciary so that observers don't view “an elected Supreme Court” as being a factor in decisions.

Finally, these opinions are more evidence that the principle of stare decisis is not strong in Mississippi—at least not currently.

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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.

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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.     

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In an opinion from Thursday in Delta Regional Medical Center v. Green, the Mississippi Supreme Court ruled on conflicting language in Miss. Code Ann. 11–46–11 regarding when a plaintiff can file suit. Justice Pierce wrote the Court's unanimous decision affirming the decision of the Washington County Circuit Court by Judge Richard Smith. Here is the opinion.

Miss. Code Ann. 11–46–11(1) states that a party must file a notice of claim with the chief executive officer of a governmental entity 90 days before filing a lawsuit.

But Miss. Code Ann. 11–46–11(3) states that the statute of limitations is tolled for 95 or 120 days and that the claimant has 90 days to file suit after service of the notice of claim on the governmental entity.

 In resolving this confliction language the Court stated:

…we are left with no choice but to find the phrase 'during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim' found in Section 11–46–11(3) unenforceable.

The result of the decision is that a plaintiff can file suit 90 days after providing notice. In this case, the plaintiff gave notice on the ninety-first day, so the trial court correctly denied the defendant's motion to dismiss.

George 'Boo' Hollowell of Greenville represents the plaintiff. Carl Hagwood of Greenville represents the defendant.   

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The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

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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.