On Thursday the Mississippi Supreme Court reversed and remanded a $1.07 million judgment in a 2010 Hinds County trip-and-fall trial. This was a verdict obtained by Jackson attorney Ashley Ogden on behalf of a man who fell and injured his hip in Bailey Lumber & Supply in Jackson. 

Here is the Court’s opinion.

The verdict was for $1.5 million, but Hinds Circuit Judge Malcolm Harrison reduced the verdict to $1,070,341. Of this amount, $70,341.42 was for economic damages.   

This was a 5–3 decision with Justice Carlson writing the majority opinion. As is always the case for Ashley Ogden cases, Chief Justice Waller did not participate.  

Here is my 2010 post on the verdict.

The Court based its reversal on a Daubert issue. Sixteen months after the fall, the plaintiff had his hip replaced. Two orthopedic surgeons who treated plaintiff testified that the plaintiff’s hip replacement was caused by arthritis and not the fall. Plaintiff established causation at trial through the testimony of his treating internal medicine doctor.   

On appeal, the Court ruled that plaintiff’s internal medicine doctor was not qualified to opine about what caused the need for hip replacement surgery. The Court also found that the testimony of the internal medicine doctor was not reliable under Daubert.

Finally, the Court ruled that the trial court erred in allowing the doctor to testify regarding future medical expenses when the substance of the opinions was not provided before trial. The plaintiff’s expert disclosure stated that the doctor would testify about future medical expenses, but the plaintiff never supplemented the disclosures to identify the substance of these opinions.

This is an important part of the opinion that lawyers should not overlook. The Court is clearly stating here that parties must disclose the substance of expert opinions—not just the subject matter.   

The Court remanded the case for a new trial. The re-trial will presumably only address the issue of Plaintiff’s damages, since the Court did not address the jury’s finding of fault against the defendant.

Justice Kitchens dissented in an opinion joined by Justices King and Chandler. The dissent pointed out that the plaintiff’s doctor has treated hundreds of patients with hip problems. As a result, the dissent argued that the doctor was qualified to opine that the fall aggravated plaintiff’s pre-existing condition enough to require the hip replacement surgery. According to the dissent, this created a battle of the experts for the jury to decide.

My Take:

Bailey Lumber defended liability at trial. With liability now established, you would think that the case would now be in a position to settle without a re-trial.