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 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.

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A Jasper County jury returned a $135 million verdict [I reported earlier that it was $130 million, then $235 million] today in the case against Ford Motor Co. involving the death of New York Mets prospect Brian Cole. I am not sure whether there were punitive damages.

Update: I am confident now that the verdict was in the $130's. See the comment by the plaintiff lawyer.

Update: reports are now that the verdict was all compensatory and the case settled before the punitive phase.

Two earlier trials in the case resulted in mistrials. I am not positive, but I think that this case is so old that the tort caps do not apply. Update: the case was filed in 2001. The caps do not apply.

For prior posts on the case see here, here, and here.

Read the Plaintiff attorney's blog on the verdict here. 

I will have more on this verdict in a future post.

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The third trial involving the 2001 death of former New York Mets prospect Brian Cole is taking place before Judge Billy Joe Landrum in Laurel or Paulding (I have heard both). Ford Motor Co. is the defendant. The lawsuit alleges defects in a seatbelt and a propensity of an Explorer to roll-over. 

Two prior trials resulted in hung juries. The case was first tried in 2004 before Judge Robert Evans in Paulding. My recollection is that the plaintiffs moved to recuse Judge Evans after the first trial and the Supreme Court appointed Judge Landrum to take over the case.

The second trial was earlier this year before Judge Landrum and discussed on this blog here and here. 

Plaintiffs contend that Cole would have been a major leaguer, a view supported by the Mets as discussed in this New York Daily News article about the last trial.

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Last week I reported a hung jury in a Jones County Ford Motor Co. trial. The case was actually tried in the Paulding district of Jasper County. Jones County Circuit Judge Billy Joe Landrum presided over the trial because Judge Robert Evans recused himself from the case.

This was the second trial for this case. The first trial was in 2004 and resulted in a mistrial for one of the two plaintiffs and a hung jury for the other.

The basis for the case was the 2001 Ford Explorer accident that resulted in the death of professional baseball prospect Brian Cole of Meridian. Here is a New York Times article about Cole following the accident. Cole was considered the New York Mets’ third best major league prospect at the time of the accident and played for the club’s double-A minor league affiliate.

In the lawsuit, the plaintiff based Cole’s lost wages on the assumption that Cole would have been a regular all-star in the majors—a questionable assumption based on Cole’s minor league statistics. The plaintiffs asked for $140 million in damages.

The case was originally tried in 2004 for three weeks with Judge Evans presiding. Plaintiff lawyers included Wayne Ferrell, Jim Nobles and Texas lawyers.

For the 2010 re-trial, plaintiffs added Tab Turner to the attorney roster. Both sides had many attorneys in the courtroom. The second trial lasted two weeks and resulted in a hung jury for both of the two plaintiffs.

Barry Ford and other Baker Donelson lawyers were involved in both trials on the defense side. Ford typically also brings in out-of-state lawyers to try cases in Mississippi.

It would not be surprising to see this case tried for a third time. The plaintiffs probably have expenses in the case in the six-figure range, which will make settlement difficult. In addition, Ford is not afraid to try cases in tough jurisdictions like Paulding.