On Thursday the Mississippi Supreme Court reversed and rendered a $13 million judgment in American Optical Corporation v. Rankin. This was a Jefferson County silica case where the date of the judgment was February 24, 2015.

The Court reversed on a statute of limitations issue. The plaintiff filed suit in 2013. Defendant argued that the statute of limitations barred the claim because plaintiff knew he had lung disease more than 3 years before filing suit. The Supreme Court agreed in a 7-2 opinion drafted by Justice Coleman.

The case turned on application of the discovery rule.The majority opinion concludes:

Reasonable minds could not have differed in answering the question on the special verdict form: ‘Do you find by a preponderance of the evidence that [Rankin] knew or should have known before May 13, 2010, that he had the lung injury alleged in this lawsuit?’ It is undisputed that Ranking was aware of and sought treatment for lung disease, COPD, in 2007. Moreover, Rankin’s experts opined that Rankin’s myriad of remaining medical conditions, of which he was aware and for which he sought treatment before May 13, 2010, were related ‘in part’ or ‘exacerbated’ by silica exposure. Accordingly, we hold that the trial court erred by failing to grant AO’s motion for a directed verdict because Rankin’s claims are time barred.

Justice Kitchens dissented, arguing that the case should be reversed and remanded. The dissent argues that while plaintiff’s claims for COPD damages are time barred, his claim for silicosis is not because the silicosis diagnosis occurred after plaintiff filed suit.

My Take:

I’m not a fan of discovery rule law because it can play out like it did here. The parties and court bore the time and expense of trying a case that was ultimately decided on an affirmative defense.

The trial court submitted the question to the jury because of cases that hold that resolution of the discovery rule (what the plaintiff knew and when) is often a question of fact for the jury.

This is an area where a plaintiff lawyer is arguably better off if the court makes the factual determination. I am 0-2 in cases representing the plaintiff where we had to argue that the discovery rule tolled the statute of limitations. We lost both cases on motions for summary judgment, which was my strong preference to losing on the issue at trial or on appeal. If I’m going to lose, I’d rather lose sooner than later.

This is just a tough area for plaintiff attorneys. You know the issue is there when you take the case. And you can’t ever get completely comfortable with it until the case favorably resolves. It could probably be argued that plaintiff lawyers should just stay away from cases where they have to rely on the discovery rule to get past the statute of limitations.

On Thursday a unanimous Miss. Supreme Court affirmed a 2014 jury verdict of $644,000 in Murphy v. State of Mississippi.

The plaintiffs alleged that the State took their property for public use without formal condemnation proceedings and without compensating plaintiffs. The State argued that the property in question was public tidelands.

The jury agreed with the plaintiffs and the Court affirmed.

Here is the Court’s opinion.

Here is my 2014 post on the verdict.

Here is an Anita Lee Sun Herald article on the decision. From the article:

The Mississippi Supreme Court ruled unanimously Thursday that a jury’s conclusion was correct: The Murphys should receive $644,000 because the state took their property. With legal fees, court costs, and interest, the Secretary of State’s Office owes the Murphys about $1.2 million.

The Supreme Court concluded the Murphys owned the property because it was a natural beach the state had never maintained or renourished.

Chief Justice Waller wrote the Court’s opinion.

My Take:

Eminent domain is a specialized area that is not in my wheelhouse. But this was apparently not a controversial decision at the Supreme Court because it was unanimous with all nine justices participating.

I read a lot into the fact that a decision is unanimous. Unless I lose. In that case, I read into it that they all got it wrong. Kind of like when I lose unanimous jury verdicts.

On Thursday a unanimous Mississippi Supreme Court affirmed a jury verdict of $484.141.98 in Robinson v. Corr.

Facts:

This was a medical malpractice case. In 1998, Regina Corr gave birth at Gulfport Memorial Hospital. Her OB/GYN (Dr. Charles Robinson) delivered by C-section. During the procedure, Regina’s uterus was lacerated, requiring repair.

A urology consult the following day revealed that the left ureter was sutured. The urologist placed a nephrostomy tube to drain urine from the blockage into a nephrostomy bag. Another urologist later inserted stents to widen the blocked area until the blockage dissipated.

Regina had no further complaints after May 1999.

Allegations and Trial:

Plaintiff alleged that Dr. Robinson negligently sutured the ureter during the repair. During a 2001 deposition, Dr. Robinson denied suturing the ureter.

The case was tried in 2014. At trial, Dr. Robinson attempted to give new testimony concerning the repair that was not previously disclosed in discovery. Dr. Robinson wanted to testify that he would not have attempted to remove the suture if he had known of its existence due to potential bleeding. The trial court refused to allow the testimony because it was not previously disclosed.

Another trial issue involved defense counsel opening the door by asking a question to Plaintiff’s expert and then not liking the answer.The trial court found that defense counsel ‘opened the door’ by asking the question.

The jury rendered a verdict for the following damages:

• $55,634.78- past medical expenses
• $8,507.20- lost wages
• $420,000- pain and suffering.

The trial court denied Defendant’s motion for remittitur.

Joe Sam Owen and Robert P. Meyers, Jr. represented the Plaintiff. Brett K. Williams and Joshua Danos represented the Defendant.

Judge Lisa Dodson presided in the case.

Decision:

Chief Justice Waller wrote the Court’s unanimous opinion. On the issue of the undisclosed testimony by Dr. Robinson, the Court stated:

We find that Dr. Robinson’s expert designation was insufficient to put Regina on notice of the proffered testimony and new theory at trial. The very purpose of disclosing expert opinions before trial is ‘to prevent trials from being tainted with surprise and unfair advantage’…Based on Dr. Robinson’s expert designation, we find that the opinion–he would not have removed the stitch from the ureter due to the threat of uncontrollable blood loss–was not meaningfully disclosed before opening statements at trial. Thus, the trial court did not abuse its discretion in excluding Dr. Robinson’s proposed testimony…

On the issue of the challenged testimony of the Plaintiff’s expert, the Court found:

we believe the answer was responsive to Dr. Robinson’s counsel’s questions as to excessive blood loss and the concerns with performing an intraoperative IVP in light of such blood loss.

The Court also applied an abuse of discretion standard to the trial court’s ruling that a party ‘opens the door’ to testimony by asking a question on the subject and concluded that the trial court did not abuse its discretion.

Finally, the Court affirmed the trial court’s denial of Defendant’s motion for remittitur.

My Take:

This decision is a gut-shot to the narrative some defense lawyers still cling to that the Mississippi Supreme Court will not affirm any plaintiff verdict. That has been a bad argument for years–but a decision like this drives the point home.

Litigation has slowed down so much that the Court doesn’t see many appeals from jury verdicts any more.