The Mississippi Court of Appeals issued an interesting opinion on Tuesday and reversed a trial court defense jury verdict in Denham v. Holmes. Here is the Court’s opinion. Presiding Judge Joseph Lee wrote the Court’s opinion. The decision was unanimous, but with several unexplained partial concurrences, which I will discuss later.

Tommy Defer and Bobby Vance represented the plaintiffs. John Hyneman represented the defendant.

Facts

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.

Daubert Issue

Plaintiffs designated Donald Rawson to testify as an expert witness in traffic-collision reconstruction. Rawson was to testify by deposition and the parties stipulated that Rawson was qualified to give an expert opinion on the traffic accident. But at trial, the defendant moved to exclude Rawson’s testimony on the basis that it would not aid the jury in reaching its decision.

Incidentally, I find the procedure leading to the defendant’s objection at trial odd. I suspect that the plaintiff’s attorneys went into trial thinking that they had an agreement for the expert to testify by deposition when the defendant stipulated to Rawson’s expertise and use of the deposition at trial. But there was a challenge to the testimony waiting for them at trial.

Plaintiffs responded to the defense argument by contending that Rawson’s testimony would assist the jury on technical issues such as speed, sight line, and distance between the vehicles. Specifically, Rawson opined that the defendant could have taken evasive action to avoid the collision.

The trial court excluded the testimony on the grounds that Rawson’s conclusions were based on insufficient facts and data and some of the opinions were legal conclusions that would invade the province of the jury.

The Court of Appeals disagreed, finding that the testimony was based on the facts available from the accident scene and should have been admitted.

I previously criticized the Supreme Court for adopting new Daubert rules. Some have disagreed with my position and I understand their point. But it’s my preference that appellate courts simply apply Daubert like the Court of Appeals did here without creating new Daubert rules.

Improper Closing Argument Issue

The Court held that it was also reversible error for the trial court to allow defense counsel to comment on the plaintiff’s lack of expert testimony in closing argument. The Court reasoned that the only legitimate purpose of closing argument is to assist the jury in evaluating the evidence and understanding the law and that defense counsel’s comment crossed the line. Trial lawyers need to be aware of this decision when they make closing arguments.

It’s easy for a trial lawyer to get carried away during closing and say something that they technically should not say. I know that I have to fight these urges during closing and am probably not always successful. But no one wants to lose a verdict due to an improper argument, particularly since the benefits of closing arguments are debatable.

My personal belief formed from my trial experience is that jurors have almost always made up their mind before the case reaches closing argument. I often find myself telling co-counsel and/or clients deep into a trial that while I don’t know the jury’s decision, I feel like it has been made. Published statistics support this conclusion and show that most jurors make up their mind during opening statements or shortly after opening.

Luckily, this case would have been reversed regardless of the closing argument issue, due to the Daubert and (uninteresting) jury instruction issues. But I appreciate the Court addressing the issue in its opinion to give guidance to trial attorneys.

Conclusion

Finally, this is a case where I hated to see all the partial concurrences. With several distinct issues in play it would have been nice to have the concurring opinions explained.