In Briere v. South Central Regional Medical Center a unanimous Mississippi Supreme Court reversed the trial court’s dismissal of a wrongful death action because an earlier filed action was voluntarily dismissed and the wrongful death statute states that there can be only one wrongful death action. Here is the key language:

We clarify Long and hold that the wrongful-death statute does not require that a second suit be dismissed solely because it was, at some point, pending at the same time as a previously filed suit.

The Court also rejected Defendants’ claim that the pre-suit notice letter was inadequate because it did not adequately describe the Plaintiff’s claims. Here is the key language:

We hold that Briere’s first notice letter complied with the notice requirements of the

MTCA. The broad language in the first letter put SCRMC on notice of all of the claims of which Briere was aware at the time. If suit already had been filed, Briere certainly would have been able to amend her complaint to include the new information, pursuant to Mississippi Rule of Civil Procedure 15.

I have seen a trend in the last year or two of Defendants pushing Long v. McKinney and pre-suit notice arguments beyond logic. Some of these “creative” defense claims are now being decided and rejected by the Court.

In Killhullen v. Kansas City Southern Railway the Miss. Supreme Court unanimously reversed both the trial court and Court of Appeals granting summary judgment based on KCS’s Daubert challenge of Plaintiff’s expert. This was a crossing accident case. Plaintiff’s expert was a registered professional engineer who made calculations regarding field of vision issues.

The Court rejected KCS’s argument that the expert must be an “accident reconstructionist”:

In rejecting Halfacre’s affidavit due to his lack of “specialized knowledge, training or expertise in the field of accident reconstruction[,]” this Court finds that the circuit court abused its discretion. Given his applied engineering expertise, classification as an accident reconstructionist was not necessary…

This was a sensible decision by the Court. If the issues involve physics, the fact that the expert is not an “accident reconstructionist” should not matter.

I once lost a Daubert challenge of an accident reconstructionist and had to watch him re-create the accident for the jury with a couple of toy matchbox cars. If I had known that was ok, I would have had the 5-year old across the street as my expert.