MDLA Quarterly

Transcription

MDLA Quarterly

The
MDLA Quarterly
The publication of the mississippi defense lawyers association
Volume 33 • Number 3
Fall 2009
2009 Joint Seminar of
Mississippi Claims Association &
Mississippi Defense Lawyers Association
October 22, 2009
Issue Highlights:
The Truth Shall Set You Free…
Assuming of Course, the Other Side Lied About it in the First Place
Preserving Summary Judgment Based on the Exclusion of Expert Testimony
A Primer on Chinese Drywall
A General Trial Outline - Part 1
From Chinese Drywall to You Tube, the MCA/MDLA
Joint Seminar Offers Something for Everyone
Once again, the Mississippi Claims Association and
the Mississippi Defense Lawyers Association are pleased
to hold their Annual Joint Seminar. This seminar will
take place on October 22, 2009 at the beautiful new
River Room Conference Center, which is adjacent to the
Chimneyville Café. This facility opened in April 2009
on Lakeland Drive in Flowood.
With last year’s success and a desire to build upon
the efforts over the past several years, we have decided
to retain much of the same format and provide timely,
interesting information on a wide range of topics. This
will not be a single subject seminar, rather we intend
this to be, much like Chimneyville itself, one heck of a
spread.
We are again offering free attendance to the first
50 claim handlers who register, while the cost of the
attorneys will be at the very reasonable amount of $125.
A delicious lunch is being prepared by Chimneyville for
all attendees at no additional cost. Rather than have a
lunch speaker, we will be offering an open lunch where
the claims handlers and attorneys have an opportunity to
visit with one another and with the speakers.
The seminar will begin with opening remarks by the
MCA President Jack Thames and MDLA President Wright
Hill. We have the good fortune of Mississippi Insurance
Commissioner Mike Chaney providing insights from the
Insurance Commission. Following his report, we have
the pleasure of Dan Webb, of Webb, Sanders & Williams,
P.L.L.C. of Tupelo, Mississippi, providing what will be
a very timely discussion on “Chinese Drywall” issues.
Dan’s presentation will certainly take the “dry” out of
drywall.
After a short break, we have the pleasure of Dr. David
Dampier, of Mississippi State University, who will be
speaking to the group about digital evidence. Dr. Dampier
is a noted computer forensics expert and will certainly
provide insights into computer issues that will improve
claim and case development. Additionally, Jamie Travis,
Chaney
Webb
Dampier
Travis
of Page, Kruger & Holland, P.A., will bring us an update
on premises liability cases in Mississippi, including
current trends and effective handling.
After lunch, Joseph E. Hines, CPA, CFFA of
Tann, Brown & Russ Company, P.L.L.C. of Jackson,
Mississippi, will provide an accountant’s prospective on
business interruption claims, and other perspectives he
might bring to litigation. Then John Brady, of Mitchell,
McNutt & Sams in Columbus, Mississippi, will provide an
update on recent developments in Mississippi insurance
coverage issues, a must for adjusters and attorneys alike.
After a short break, we have the pleasure of Dr. Edwin
Dodd, Jr., from Physician Surgery Center of Jackson,
providing some insight into back pain. Where more and
more claims are being litigated over these subjective
complaints, Dr. Dodd’s presentation will provide valuable
insight to anyone handling workers’ compensation or
other areas of litigation, where these recurrent issues
exist.
Finally, with the blossoming of You Tube, and the many
depositions being posted for revenge, spite or otherwise,
certain lessons might be learned, in what should be a very
entertaining look at deposition do’s and don’ts.
The seminar will provide each attorney with six
hours of continuing legal education and will provide an
excellent opportunity for attorneys and claims handlers
to visit. Please feel free to mention this seminar to any
claims handler that you might think would be encouraged
to attend. Each year this program builds on prior success,
and we are confident that this year’s seminar will be fulfill
that goal.
If you are not already registered for the seminar, please
consider doing so by calling the Mississippi Defense
Lawyers Association office at 601-992-8645. Seminar
materials will be provided. ■
Michael J. Wolf
2009 Seminar Chairman
Hines
Brady
Dodd
Wolf
2009 Board of Directors
President
W. Wright Hill, Jr.
Page Kruger & Holland, P.A.
President Elect
Goodloe T. Lewis
Hickman Goza & Spragins, P.L.L.C.
Secretary Treasurer
F. Ewin Henson, III
Upshaw Williams Biggers
Beckham & Riddick, L.L.P.
Vice Presidents
Wilton V. Byars, III
Daniel Coker Horton & Bell, P.A.
The
MDLA Quarterly
The publication of the mississippi defense lawyers association
Volume 33 • Number 3
In This Issue:
Sherrie L. Moore
Allen Cobb Hood & Atkinson, P.A.
Mark H. Tyson
McGlinchey Stafford, P.L.L.C.
Directors: 2007-2009
Robert S. Addison
Daniel Coker Horton & Bell, P.A.
William G. Armistead
Mitchell McNutt & Sams, P.A.
Thomas L. Carpenter, Jr.
Carr Allison Pugh Howard
Oliver & Sisson, P.C.
Michael W. Baxter
Copeland Cook Taylor & Bush, P.A.
John D. Brady
J. Scott Corlew
Bryan Nelson Schroeder
Castigliola & Banahan, P.L.L.C.
Margaret S. Gratz
Jeffrey G. Pierce
McGlinchey Stafford, P.L.L.C.
A. Kelly Sessoms
Lyons Pipes & Cook, P.C.
Immediate Past President
James R. Moore, Jr.
DRI State Representative
William E. Whitfield, III
Young Lawyers Division Liaison
Lemuel E. Montgomery, III
Butler Snow O’Mara Stevens
Cannada, P.L.L.C.
Executive Director
Jane L. Brown
A Message from the President
Page 2
DRI Annual Meeting Ushers in New Mississippi Leadership
Page 2
MDLA Student Chapters Hold Fall Semester Meetings;
Young Lawyers Plan Service Projects and Fall Socials
Page 3
Preserving Summary Judgment Based on the
Exclusion of Expert Testimony
Page 4
Page 8
Page 11
Page 14
Recent Decisions
Page 21
Membership Application
Page 35
Jeremy T. Hutto, Editor
The MDLA Quarterly is published quarterly by
the Mississippi Defense Lawyers Association,
P.O. Box 5605, Brandon, MS 39047-5605, Telephone: (601) 992-8645, Fax: (601) 992-2852,
Website: www.msdefenselaw.org,
E-mail: [email protected].
Publication of advertising does not imply endorsement of products, services or statement
made concerning them. All advertising copy is
subject to approval. The Editor reserves the right
to reject advertising.
Manuscripts are welcome and preparation instructons may be obtained on request. The right
is reserved to select materials to be published.
Material accepted for publication becomes
property of the Mississippi Defense Lawyers
Association
State of opinions appearing herein are those of
the authors and are not necessarily that of the Editor. Officers or Board of Directors of the Mississippi Defense Lawyers Association.
Fall 2009
Editorial Board
Jason T. Barrett
Donna B. Jacobs
Patrick T. Bergin
Stephen T. Masley
Leo J. Carmody, Jr.
Lemuel E. Montgomery, III
Richard T. Conrad, III
David A. Norris
Robert J. Dambrino, III
Jeffrey G. Pierce
Stephen W. Dummer
Daniel E. Ruhl
Margaret S. Gratz
Robert R. Stephenson
Michael O. Gwin
Paul B. Watkins, Jr.
P.N. (Nick) Harkins, III
William E. Whitfield, III
F. Ewin Henson, III
Shanda M. Yates
A Message from the President
It has been a
very busy year
for the officers
and committee
members
of
the MDLA as
we
continue
to prepare not
only for our
usual annual programs, but also
try to organize and produce new
ones to expand the benefits of
membership.
The annual Joint Seminar of the
Mississippi Claims Association and
MDLA will be held this year on
October 22, 2009 at the Chimneyville
Café and River Room Conference
Center. Registration forms have
already been sent to each of you,
but if you need another, a copy is
available on our website at www.
msdefenselaw.org. Michael Wolf is
the Chair of this year’s seminar and
has a great slate of speakers lined
up. Most importantly, for those of
you with a renewed interest in client
development post-tort reform, this
seminar is always a great chance
to meet with potential clients, both
old and new.
Also in October, specifically the 7th
through the 11th, the DRI will hold its
Annual Meeting and 50th Anniversary
as “The Voice of the Defense Bar.”
This year’s convention will be held
in Chicago, home of the DRI. For
those who have not registered to
attend, I urge you to do so. Talk
about networking and opportunities
for business development! Also, on
the Friday night of the convention,
a typically dine-on-your-own night,
MDLA Past President James Holland,
our incoming DRI Regional Director
for the Southern Region, has planned a
dinner for all DRI Southern Regional
attendees from Mississippi, Kentucky,
and Tennessee, to get together and
catch up with each other. A similar
Southern Region dinner was held at
last year’s DRI Annual Meeting in
New Orleans, and there was a great
turn out.
We are in the initial planning of
a new event, a MDLA Deposition
Academy, to teach the ins and outs and
do’s and don’ts of taking depositions,
including taking a plaintiff’s
deposition, defending your client’s
deposition, and taking and defending
depositions of expert witnesses. This
program will offer both a lecture
series in a classroom setting and a
hands-on actual taking of a deposition
approach. Alabama and a handful
of other state defense organizations
have held deposition academies and
CLEs in the past and developed them
into truly educational and practical
programs. We hope and expect ours
to be the same and another great
offering to our members, in addition
to the Trial Practice Academy.
President Elect Goodloe Lewis and
a number of other members have
begun the planning process but are
looking for any suggestions or input.
If anyone is interested and willing to
help or has any suggestions, please
contact Goodloe or the MDLA office.
Again, any help would be much
appreciated.
As you can see, it has been a very
busy year, with more to come in the
near future. But it has been a very good
year, and we appreciate the assistance
that each of you has given thus far.
Please volunteer and please sign up.
We appreciate your efforts. ■
W. Wright Hill, Jr.
MDLA President
DRI Annual Meeting Ushers In New
Mississippi Leadership
Everything
temporally must
come to an end.
Many
times,
“The End” can be
anticlimactic and
disappointing.
Other times, very
much hoped for
and anticipated. Very shortly, my three
year term as DRI State Representative
2
will come to “The End.” This column
could not begin to chronicle the folks
to thank, the opportunities offered and
the knowledge gained by the privilege
afforded me by the Mississippi
Defense Lawyers Association in
serving in this position. To come as
my successor will be MDLA Past
President Clint Guenther of Upshaw
Williams in Greenwood, one of the
finest and most professional lawyers
in our Association. Clint has been
active in MDLA activities for nearly
his entire career as a defense lawyer,
and will need the encouragement and
assistance of those in our Association
to avoid the inevitable feeling of being
overwhelmed soon. Not only does our
Association have an opportunity of
continuing to maintain our excellent
relationship with DRI through Clint,
we are also doubly privileged that
The MDLA Quarterly • Fall 2009
James Holland of Page Kruger &
Holland in Jackson, has been tapped
to serve as the DRI Regional Director.
The Regional Director assumes
oversight over many of the programs
and membership in our region, which
includes Tennessee and Kentucky.
Like Clint, James will need a support
structure to assist in his undertaking
and DRI really likes the concept
of being a “volunteer.” The DRI
and MDLA are truly privileged and
blessed to have these consummate
professionals serve in a capacity that
represents our state. They will no
doubt make us very proud as they
engage our state for DRI.
The Annual Meeting is currently
set for October 7-11, 2009 in
Chicago. The agenda is ambitious to
be sure, and there will be a session/
seminar for virtually any aspect of
the legal profession, not to mention
the diversions organized and
“unorganized” by DRI in Chicago.
Downtown Chicago enjoys a
reputation for diversions virtually 24
hours a day. There will simply be no
question that this meeting will not be
disappointing to any attendee. For
more information, consult the DRI
website at www.dri.org.
Over the last several years, you
have seen many articles written
here extolling the virtues of DRI
and DRI Membership. None were
overstated. DRI remains THE premier
organization for resources, education,
networking and friendships in
the legal business for the defense
lawyer. DRI always maintains the
best and brightest administratively,
and they expect the best out of our
profession and get it. The DRI is
really the only national association
that provides the perfect balance
to the defense practitioner. While
other national organizations provide
a more fraternal structure to their
existence, less so with DRI, DRI
simply cannot be duplicated when it
comes to the availability of resources
to the defense practitioner. When I
assumed my responsibility as the DRI
State Representative, I was somewhat
familiar with the opportunities and
resources available as a DRI Member.
Now, having had access to additional
opportunities within the leadership
structure, there is no question that
DRI membership is a career essential
to the defense lawyer.
Thanks to all who have been so kind
and helpful over my term, especially
the MDLA Executive Director, Jane
Brown. No other single individual
can be cited as the source of so many
other successful lawyers – both within
the DRI and the MDLA. Thank you
so much, Jane, for your sacrifice and
commitment to the principles of the
defense bar, and thank you, MDLA,
for the privilege of representing you
nationally in the finest organization
in the nation. ■
William E. (Bill) Whitfield, III
DRI MS State Representative
MDLA Student Chapters Hold Fall Semester Meetings;
Young Lawyers Plan Service Projects and Fall Socials
As fall approaches,
our
two
MDLA
Student Chapters
are
planning
their
semester
meetings.
The
Mississippi
College School
of Law Student Chapter will hold its
meetings on October 6, November 3,
and November 10. Guest speakers for
the fall include MDLA board member
Jeff Pierce who will discuss several
aspects of defense practice and The
Mississippi Bar’s general counsel Adam
Kilgore who will lecture on ethics in
defense. The MCSOL Chapter will
conclude its fall semester by holding
new officer elections and providing
snacks and drinks for the Law School
student body during exam week.
Our University of Mississippi School
of Law Student Chapter will hold its
first fall semester meeting and its new
officer elections at the Downtown Grill
in Oxford, Mississippi on September
30. The Ole Miss Chapter looks
forward to several meetings this fall
with guest lecturers.
Our Young Lawyers are planning a
fall food drive for Stewpot to help stock
their pantries for the holidays. Food
will be collected from several drop-off
locations yet to be announced. Be on the
lookout for email information regarding
food drive dates, items needed and drop
off locations or contact MDLA Service
Project Chairperson Michelle McCain
at (601) 353-3234. With the effort of
our Young Lawyers and the general
membership, we can help Stewpot
serve our community this fall.
The Central and Northern Young
Lawyer Divisions are both planning
fall socials. MDLA general members
will be encouraged to attend and to
invite and introduce any non-members
interested in joining MDLA. Look for
invitations by email soon.
As always, our Young Lawyers
Division remains active and looks
forward to progress and success in the
remainder of the year. ■
Lemuel E. (Lem) Montgomery, III
Young Lawyers Division Liaison
3
By Leo J. Carmody, Jr.
realized that the defense knew the
truth and confronted her with it.
Leo J. Carmody, Jr. is an associate in the Oxford, Mississippi office
of Robinson, Biggs, Ingram, Solop & Farris, P.L.L.C. His areas of
practice include environmental law, commercial litigation and Section
1983 law, with a focus on appellate litigation. He is a member of the
American Bar Association, the Mississippi Bar, the Lafayette County
Bar and the Mississippi Defense Lawyers Association.
“Beauty is truth, truth beauty, –
that is all
Ye know on earth, and all ye
need to know.”
- John Keats, Ode on a Grecian Urn
(1819)
For most defense lawyers, there are
few things as beautiful as an Order of
Dismissal with Prejudice. Presenting a
judgment of dismissal to the client is the
legal equivalent of the Tiger Woods fist
pump. The order, itself, may be only a
fraction of an ounce, but the satisfaction
weighs a ton.
In truth, dismissals are rarely the result
of shrewd lawyering. The majority of
the credit generally goes to friendly
facts and good case law. Sure, we
like to pretend that we’ve just sunk an
impossible forty foot chip on the 16th at
Augusta (see Woods, ’05), but usually
it was a two-footer at most, slightly
uphill.
Occasionally, however, the dismissal
of a case is the result of defense lawyers
fulfilling perhaps their most fundamental
and essential purpose. While finding
the truth in any case is difficult, lies,
omissions and other inaccuracies can
obscure it to the point of invisibility.
When lawyers are able to spot the truth
through the camouflage of deception,
they can truly claim to have not only
served their client, but the integrity of
the entire judicial process. Say it loud,
say it proud … “I AM Tiger Woods.”
Not surprisingly, Courts have
demonstrated a willingness to reward
the lawyer who exposes the untruthful
4
litigant. The lie must be proven, of
course -- ours is mercifully a system
that rejects mere suspicion -- but when
the fallacy is shown, justice comes
swift and severe. As demonstrated by
the cases discussed below, courts have
taken an unforgiving stance on parties
that refuse to acknowledge the true facts
of the case, including dismissal with
prejudice, the “death penalty” of civil
law and imposing sanctions.
A. Mississippi Cases
To their credit, the Courts of
Mississippi have demonstrated a
particular intolerance for litigants
who willingly conceal the truth. In its
landmark decision, Pierce v. Heritage
Properties, Inc., 688 So.2d 1385 (Miss.
1997), the Mississippi Supreme Court
upheld the dismissal of a case where the
plaintiff responded untruthfully to both
written discovery requests and inquiries
posed during her sworn deposition.
Pierce, 688 So.2d at 1390. The Court
specifically found that the plaintiff’s
conduct “constitute[d] bad faith,” and
further held as follows:
In this instance, Pierce’s failure to
comply was a result of willfulness.
Pierce consistently obstructed
the progress of the litigation by
filing admittedly false responses
to various discovery requests and
by swearing to false testimony in
depositions. … Pierce only admitted
that she had been untruthful in her
responses to discovery when she
Pierce, 688 So.2d at 1390 (emphasis
added) (citations omitted).
Two (2) years after Pierce, in Scoggins
v. Ellzey Beverages, Inc., 743 So.2d 990
(Miss. 1999), the Supreme Court again
affirmed the dismissal with prejudice
of premises liability claims, where the
Court found discrepancies between the
plaintiff’s written discovery responses
concerning preexisting injuries and her
medical records. Scoggins, 743 So.2d at
995. In so ruling, the Court affirmatively
cited the trial court’s discussion of the
plaintiff’s conduct, which stated as
follows:
More importantly, however, she
impeded the orderly administration
of the judicial system and subverted
the very reason for implementation
of the discovery rules. ...The
Defendant inquired in good faith
several times whether Ms. Scoggins
had any prior medical conditions
that might bear on the question of
the extent of her damages. Each
time her answer under oath was in
effect, ‘No, nothing.’
Scoggins, 743 So.2d at 994 (emphasis
added).
More recently, in Jones v. Jones,
995 So.2d 706 (Miss. 2008), the Court
reiterated its harsh stance on dishonesty
in the judicial process. Since Jones was a
divorce matter, the sanction of dismissal
was unavailable. Nevertheless, the Court
demonstrated that the punitive spirit of
Pierce and Scoggins remains viable,
and further suggested that civil penalties
may not be the only retribution faced by
dishonest litigants:
It is beyond dispute that Nevada
abused the discovery process by
resisting discovery. She resisted
discovery by admittedly lying under
oath about staying the night at
Paxton’s house and having sexual
intercourse with Paxton. She resisted
discovery also by lying under oath
about when her sexual relationship
with Paxton commenced and
intentionally destroying her personal
computer immediately after her
March 8 deposition. The question
is whether the chancellor abused his
discretion by not imposing sanctions
against Nevada for her admitted
perjury and destruction of evidence.
***
Having examined the record and
having reviewed our case law, we
agree with the dissenting judges
below that Nevada’s misconduct
must “not go unpunished.” As we
previously have stated, such attempts
to subvert the judicial process will
not be tolerated. When faced with
such egregious misconduct, courts
are obligated to consider sanctions
that are severe enough to deter
others from pursuing similar courses
of action. The chancellor in this
case did not satisfy that obligation
and abused his discretion by not
addressing Nevada’s misconduct.
Accordingly, the chancellor, on
remand, must consider imposition
of sanctions and/or a referral to
the district attorney to consider
criminal prosecution for perjury
and destruction of evidence.
Jones, 995 So.2d at 711-12 (emphasis
added).
Following the lead of the Supreme
Court, the Mississippi Court of Appeals
has likewise demonstrated little patience
for parties engaged in judicial deception.
In Grant v. Kmart Corp., 870 So.2d 1210
(Miss. Ct. App. 2001), another premises
liability matter, the Court held that
dismissal was the proper remedy where the
plaintiff failed to offer complete responses
to written discovery. In so ruling, the
Court offered the following relevant
discussion, highlighting the notion that
lawyers sometime share in their clients’
transgressions, particularly when they
attempt to justify disingenuous conduct:
Grant was explicitly ordered by the
court to provide a complete answer
to the interrogatories. Grant failed
to reveal the fall at Sam’s Club
subsequent to her fall at Kmart. For
the trial court to conclude that such
failure was intentional was no strained
interpretation of the evidence. Grant
claims in her brief that she “was not
requested through written discovery to
answer whether she had any other falls
before or after the accident referred to
in the complaint.” Interrogatory No. 12
specifically requested whether Grant
suffered any injuries to shoulders,
back, knees, or hip in any accident
either prior to or subsequent to the
accident referred to in the complaint.
The type of information sought by
this question is easily understood.
Grant argues that the answer was
complete because the question did not
specifically include the term “fall,”
and instead referred to “injuries”
and “accidents.” This is not a serious
argument. Her attorney’s ability to
equate “accident” with “fall” appears
in the complaint that was filed in this
case, which stated … “she suddenly
and without warning came into contact
with water on the floor of said store
which caused Plaintiff, Dorothy Grant,
to fall to the floor with great force and
violence, thereby sustaining serious
bodily injuries. Said accident and
injuries to Plaintiff, Dorothy Grant,
resulting therefrom were solely caused
by the negligence of the Defendant.”
Grant also responded in an
interrogatory that “I am not able to
enjoy my normal activities as I did
before my accident.” Perhaps the fall
at Kmart was an “accident,” but the
fall at Sam’s Club was not. For the
trial court to fail to see the distinction
was not an abuse of discernment.
Grant, 870 So.2d at 1214 (emphasis
added).
B.
Federal Cases
While Mississippi courts may well have
taken the lead in issuing severe sanctions
to parties that fail to offer legitimate
information during discovery, their federal
counterparts have shown that they view
judicial dishonesty will equal disdain.
Relying on Rule 37 of the Federal Rules
of Civil Procedure, the United States
Supreme Court reinstated the district
court’s dismissal of a case as a sanction
for the plaintiff’s bad-faith. National
Hockey League v. Metropolitan Hockey
Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct.
2778, 2780-81 (1976). In its decision,
the Supreme Court specifically rejected
the notion that “outright dismissal” is too
severe a sanction, reasoning that it serves
as the ultimate deterrent to other litigants
inclined to engage in bad faith:
There is a natural tendency on the
part of reviewing courts, properly
employing the benefit of hindsight,
to be heavily influenced by the
severity of outright dismissal as
a sanction for failure to comply
with a discovery order. It is quite
reasonable to conclude that a party
who has been subjected to such
an order will feel duly chastened,
so that even though he succeeds in
having the order reversed on appeal
he will nonetheless comply promptly
with future discovery orders of the
district court.
But here, as in other areas of the
law, the most severe in the spectrum
of sanctions provided by statute
or rule must be available to the
district court in appropriate cases,
not merely to penalize those whose
conduct may be deemed to warrant
such a sanction, but to deter those
who might be tempted to such
conduct in the absence of such a
deterrent. If the decision of the Court
of Appeals remained undisturbed
in this case, it might well be that
These respondents would faithfully
comply with all future discovery
orders entered by the District Court
in this case. But other parties to
other lawsuits would feel freer than
we think Rule 37 contemplates they
should feel to flout other discovery
orders of other district courts.
5
National Hockey League, 427 U.S. at
642-43, 96 S.Ct. at 2780-81 (emphasis
added).
Similarly, in Jones v. Louisiana Bar
Ass’n, 602 F.2d 94, 97 (5th Cir. 1979),
the Fifth Circuit issued a per curiam
decision upholding dismissal with
prejudice where the plaintiff “persisted in
her disobedience.” Jones, 602 F.2d at 97.
Like its judicial parent in Washington,
D.C., the New Orleans-based court also
addressed the notion that dismissal is
too harsh a sentence to impose in cases
involving discovery violations, and
whether a lesser penalty should be faced:
It is clear that Fed.R.Civ.P. 37(b)(2)
(C) empowers the District Court to
dismiss a complaint when a party
refuses to obey a valid discovery order.
On appeal, the question is not whether
this Court would have acted similarly
but whether the District Court abused
its discretion. Previous cases decided
by this Court have noted that the
District Court’s discretion under
Rule 37 is broad but not unlimited.
Dismissal with prejudice, a “sanction
of last resort,” will not be upheld if
the noncompliance, even if repetitive,
is due to inability rather than to
willfulness, bad faith, or disregard
of the party’s responsibilities. In
reviewing the District Court’s
exercise of discretion, one concern
is whether a less drastic, but
equally effective, remedy could
have been fashioned. Here, the only
other Rule 37 remedy the District
Court could have applied in these
circumstances would have been
prohibiting Appellant from using the
tape recording in evidence and/or
striking all reference to the alleged
conversation from Appellant’s
pleadings. In view of Appellant’s
deliberately obstructive conduct,
however, we hold that the District
Court did not abuse its discretion
by ordering the more severe remedy
of dismissal. Our review of this
record convinces us that the District
Court here was faced with the sort
of repeated refusal to comply with a
valid order which calls for dismissal.
6
Id. (emphasis added) (internal citations
omitted); see also Griffin v. Aluminum
Co. of America, 564 F.2d 1171, 1172
(5th Cir. 1977) (“Rule 37 empowers the
district court to compel compliance with
Federal discovery procedures through a
broad choice of remedies and penalties,
including dismissal with prejudice.”)
(emphasis added); Yazdchi v. American
Honda Finance Corp., 217 Fed. Appx.
299 (5th Cir. 2007) (“Under Rule 37(b)(2)
of the Federal Rules of Civil Procedure, a
district court may impose ‘just’ sanctions
on a party who fails to comply with a
discovery order, including the dismissal
of a plaintiff’s action with prejudice.”)
(emphasis added); see also Smith v.
Cessna Aircraft Co., 124 F.R.D. 103 (D.
Md. 1989) (dismissing plaintiff’s claim
for lost income with prejudice where
plaintiff offered false responses to written
discovery and deposition questions
concerning his past income).
C. “Your Honor, I Can Explain
That …”
“Men stumble over the truth from time
to time, but most pick themselves up and
hurry off as if nothing happened.”
- Winston Churchill
Not surprisingly, when it is exposed that
a litigant has offered less than complete or
honest information, their attorney is often
quick to explain such conduct -- to “pick
them up,” as Churchill might say. While
sympathy is hardly guaranteed, pleas of
innocence do not fall on deaf ears. In Beck
v. Sapet, 937 So.2d 945 (Miss. 2006), the
Supreme Court clarified the standards
by which it decides whether the sanction
of dismissal is warranted, and expressly
acknowledged that the willfulness of the
violation is to be considered. Specifically,
the Court offered the following:
Trial courts have considerable
discretion in discovery matters, and
their decisions will not be overturned
unless there is an abuse of discretion.
Further, this Court looks to the
following factors to determine if a
dismissal with prejudice is the proper
remedy for discovery violations:
(1) whether the discovery violation
resulted from willfulness or an
inability to comply; (2) whether the
deterrent value of Rule 37 could not
have been achieved through lesser
sanctions; (3) whether the other party’s
trial preparation has been prejudiced;
(4) whether the failure to comply is
attributable to the party itself, or their
attorney; and (5) whether the failure to
comply was a consequence of simple
confusion or a misunderstanding of
the trial court’s order. This Court
only reverses if it has a definite and
firm conviction that the court below
committed a clear error of judgment
in the conclusion it reached upon
weighing of relevant factors.
Beck, 937 So.2d at 948 (emphasis added)
(internal citations omitted).
As set forth above, the primary factor
in determining whether dismissal is
appropriate is whether the failure to offer
a complete disclosure was willful. Not
surprisingly, litigants often claim that
the failure to offer accurate information
is the result of poor memory. As many
defense lawyers likely would attest, “I
don’t recall” is the single-most commonly
uttered phrase in any given deposition. In
this regard, the Mississippi Supreme Court
has demonstrated that it is not afraid to
delve into the full circumstances in order
to evaluate the legitimacy of such claims.
For example, in Scoggins, the Court
examined the plaintiff’s claim that “she
either did not remember visiting a doctor
or did not think her prior medical problems
were important.” Scoggins, 743 So.2d at
992. In rejecting the plaintiff’s claim that
her failure to remember her extensive back
pain was the product of a faulty memory,
the Court stated as follows:
The trial court noted that during her
deposition and at the hearing, Scoggins
“could recall specific incidents, dates,
chronologies and places as far back
as 1958 and as recently as a few
months ago. She could name all of
her relatives, and specifically recalled
the events of both the hunting season
prior to the accident and the accident
itself. … The only thing she was not
apparently able to recall were the visits
to Dr. Pace and Dr. Bowlus which
went unreported to the Defendant.
Such highly selective memory loss,
especially when it is unsupported by
any medical opinion of genuineness,
is simply not credible.” Scoggins, 743 So.2d at 993 (emphasis
added).
The Scoggins case is not the only time
the Mississippi Supreme Court has been
called upon to address a litigant’s claim
that the submission of false discovery
responses was the result of poor memory.
In Allen v. National R.R. Passenger
Corp., 934 So.2d 1006 (Miss. 2006), the
Court held that an employee’s failure to
disclose that he had previously suffered
disc injuries to his lower back while
working as police officer resulted from
willfulness or bad faith, and not from a
legitimate lapse of memory, such that
dismissal of his claims was warranted:
back injury which occurred in
the same place on his spine eight
years earlier, which resulted in his
missing work, and for which he was
awarded workers’ compensation
benefits. Allen’s argument that an
accident occurring eight years earlier
was far enough away in time to have
been easily forgotten weakens when
we consider the undisputed fact that
Allen told his family physician about
the 1993 incident in 2000, only one
year before the injury giving rise to
this litigation, and seven years after
the earlier injury occurred.
cut short, but that the penalty
will be sufficiently severe to
dissuade others from following
suit.”
Allen, 934 So.2d at 1012-13 (emphasis
added).
D.
Closing Thoughts
“‘A trial is a proceeding
designed to be a search for the
truth.’ When a party attempts
to thwart such a search, the
We find it to be unusual that Allen
courts are obligated to ensure
23377 KoerberYourClients7.5x5:KoerberYourClientsAd_horz 8/31/09 12:36
would have forgotten about a
that such efforts are not only
PM
Scoggins, 743 So.2d at 994-95 (quoting
Sims v. ANR Freight Systems, Inc., 77
F.3d 846, 849 (5th Cir. 1996)) (emphasis
added).
The preceding quote succinctly conveys
the logic underlying the judiciary’s refusal
to allow dishonesty to go unpunished.
If ours is truly a noble profession, one
worthy of self-regulation, then honesty
and integrity must be preserved as its
load-bearing pillars. To come full circle,
it is again worthwhile to think of the
game of golf, often the lawyer’s other
self-regulated passion. As Bobby Jones
once famously said, “When you cheat in
golf, the only person you’re cheating is
yourself.” In this same context, those that
cheat the law also cheat the stewards of
the law -- namely, us lawyers. The next
time your client begs for “winter rules,”
be sure and tell them it is always Summer
Page 1
in the Courts of Mississippi. ■
Your Clients Expect You To Know Everything.
JAMES A. KOERBER
CPA/ABV, CVA, CFE, CFF
• Business Valuation Services
• Calculation of Damages
• Forensic Accounting
BRIAN SCHMITTLING
CPA/ABV, CVA, CFE, CFF
• Lost Profits Analysis
• Personal Injury/Wrongful Death
• Shareholder Disputes
• Healthcare Valuations
• Intangible Asset
Valuations
Va l u a t i o n & L i t i g a t i o n S e r v i c e s
103 Madison Plaza • Hattiesburg, MS 39402 • Toll Free 888.655.8282 • www.koerbercompany.com
7
Preserving Summary Judgment Based on the Exclusion
of Expert Testimony
By LeAnn W. Nealey
LeAnn W. Nealey is a member of Butler, Snow, O'Mara, Stevens &
Cannada, P.L.L.C. in the firm's Jackson, Mississippi office. Her
practice concentrates on appellate and written advocacy. She is a
member of MDLA, serving on the amicus curiae committee; and is
a member of the DRI Appellate Advocacy Committee, chairing the
Annual Meeting subcommittee. LeAnn specially thanks Ashley Nader
for her research assistance in preparing this article. Ashley is a 2009
graduate of Mississippi College School of Law and an associate with
Butler Snow, practicing in the pharmaceutical, medical device &
health litigation area.
Quite frequently, Daubert admissibility
standards overlap with summary judgment
practice: Summary judgment is awarded
based on a plaintiff’s inability to prove
an essential element of his claim because
he lacks supporting expert testimony
admissible under Daubert1 and Rule 702.2
This article addresses how to preserve a
favorable summary judgment on this
basis by ensuring, to the extent possible,
that the record established below shows
that the trial court properly exercised
its “gatekeeping” responsibilities under
Daubert.
An Overview of Rule 702 and
Daubert Standards
To briefly review, under the familiar
standard set forth in Rule 702, “[i]f
scientific, technical or other specialized
knowledge will assist the trier of
fact” in understanding the evidence or
determining facts in issue, then a witness
“qualified as an expert by knowledge,
skill, experience, training or education
may testify thereto in the form of an
opinion or otherwise….” The trial court’s
gatekeeping role in applying this rule
was firmly established under Daubert v.
Merrell Dow Pharmaceuticals., Inc., 509
U.S. 579 (1993).
In Daubert, the Supreme Court
formulated guidelines for assessing
expert
testimony
admissibility—
defining the trial court’s role as that of
a gatekeeper tasked with determining
whether the expert testimony “both rests
on a reliable foundation and is relevant
to the task at hand.” 509 U.S. at 597
(addressing guidelines for assessing
scientific evidence); see Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137 (1999)
(extending Daubert to apply to technical
and other specialized knowledge).
The Supreme Court explained that “[f]
aced with a proffer of expert scientific
testimony, . . . the trial judge must
determine at the outset, pursuant to [Fed.
R. Evid.] 104(a) [footnote omitted],
whether the expert is proposing to testify
to (1) scientific knowledge that (2) will
assist the trier of fact to understand or
determine a fact in issue.” Daubert, 509
U.S. at 592. The Mississippi courts follow
this same analysis. See, e.g., Kilhullen v.
Kansas City Southern Ry., 8 So. 3d 168,
172 (Miss. 2009), citing Miss. Transp.
Comm’n v. McLemore, 863 So. 2d 31,
35-40 (Miss. 2003).
In particular, “[t]his entails a preliminary
assessment of whether the reasoning or
methodology underlying the testimony
is scientifically valid and of whether that
reasoning or methodology properly can
be applied to the facts in issue.” Id. at
592-93. Expressing its confidence that
the trial judges “possess the capacity
to undertake this review,” the Supreme
Court observed that, “[m]any factors
will bear on the inquiry, and we do not
presume to set out a definitive checklist
or test.” Id. at 593; see also McLemore,
863 So. 2d at 38.
On appeal, the trial court’s admissibility
determination is reviewed for abuse of
discretion, even when that decision results
in the entry of summary judgment. Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 142–43
(1997); Kumho Tire, 526 U.S. at 152.
Preservation of a Favorable Summary
Judgment Decision Based on the
Exclusion of Expert Testimony
The Clement and Kilhullen Decisions
The Mississippi Supreme Court’s
Clement and Kilhullen decisions show
the importance of ensuring an adequate
record in the trial court to preserve a
favorable summary judgment based on
exclusion of your opponent’s expert. See
Smith v. Clement, No. 2006–CA–00018
(Miss. Oct. 4, 2007), withdrawn and
replaced by 983 So. 2d 285 (Miss. 2008);
Kilhullen v. Kansas City Southern Ry., 8
So. 3d 168 (Miss. 2009).
In Smith v. Clement, the Mississippi
Supreme Court (in a five to four en
banc decision) reversed a trial court’s
summary judgment ruling in defendant’s
favor based on the trial court’s finding
that the affidavit of Dr. Forbes, plaintiff’s
sole causation expert, failed to establish
this essential element of plaintiff’s claim.
Clement, Case No. 2006–CA–00018 (Oct.
4, 2007). Plaintiff supplied Dr. Forbes’
affidavit in response to defendant’s
motion for summary judgment but never
responded to defendant’s motion to
strike that affidavit and never offered a
supplemental affidavit.
Nevertheless, plaintiff argued at the
summary judgment hearing that “′Dr.
Forbes has not been given an opportunity
1
Rule 702 of the Mississippi Rules of Evidence was amended in 2003 to reflect “the gate keeping responsibility of the trial court to determine whether the expert
testimony is relevant and reliable.” Comment, Miss. R. Evid. 702. This follows the 2000 amendment to Fed. R. Evid. 702, “adopted in response to Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).” Id. In Mississippi Transp. Com’n v. McLemore, 863 So. 2d 31 (Miss. 2003) the Mississippi Supreme Court recognized
the 2003 amendments to Rule 702 and Daubert’s gate keeping principles.
2
Federal Rule of Evidence 702 is identical to Miss. R. Evid. 702. This rule will sometimes be generally referred to as “Rule 702.”
8
to further expound′ upon his scientific
theory as to causation.” Id. at 3 (quoting
from hearing transcript). The Mississippi
Supreme Court agreed, holding that
plaintiff “was not allowed an opportunity
to be heard as contemplated by [Rule
702] and Daubert;” thus the trial court
improperly struck Dr. Forbes’ affidavit,
and “the order granting summary
judgment [on causation] was also in
error.” Id. at 6.
The Mississippi Supreme Court
withdrew its October 2007 opinion on
rehearing. In another five to four en
banc opinion, the Court affirmed the
trial court. The Court explained that
“[w]e have never held that a trial court
is required to hold a formal ‘Daubert’
hearing when an expert’s opinions are
challenged. We only require that, when
an expert’s opinion is challenged, the
party sponsoring the expert’s challenged
opinion be given a fair opportunity to
respond to the challenge.” Id. 983 So. 2d
at 290. In this case, the Court observed,
the plaintiff failed to exercise this right.
As such, the trial court’s decision to strike
Dr. Forbes’ affidavit was not an abuse of
discretion. Id.
Just recently, in Kilhullen, the Court
revisited the “fair opportunity to
respond” requirement. Defendant in that
case moved for summary judgment based
on plaintiff’s lack of expert testimony
on the cause of the subject accident. 8
So. 3d at 169-71. Kilhullen filed the
affidavit of her accident reconstructionist
in response; but the circuit court struck
it as “impermissible further discovery;”
and granted summary judgment in
defendant’s favor. Id. at 171. The Court
of Appeals affirmed. Id.
On writ of certiorari, the Court in an en
banc decision reversed the decisions of
the circuit court and the Court of Appeals,
finding that the lower court abused its
discretion by failing to acknowledge
the applicability of Miss. R. Civ. Pro.
56(c) and striking plaintiff’s timely
submitted expert affidavit. Id. at 174. In
so doing, the Court emphasized the trial
court’s responsibility to provide a “fair
opportunity to respond,” relying on its
earlier pronouncement in Clement: “‘We.
. . require that, when an expert’s opinion
is challenged, the party sponsoring the
expert’s challenged opinion be given a fair
opportunity to respond to the challenge.
The provision of a fair opportunity to
respond is part of the trial court’s gate
keeping responsibility. . . .’” Id.
In these cases the Mississippi Supreme
Court has made it clear that the trial court
is obligated to ensure a “fair opportunity
to respond” as part of its gatekeeping
responsibilities. Little detail has been
offered under Mississippi law, however,
on what must be done to ensure, to the
extent possible, that a favorable summary
judgment decision based on the exclusion
of expert testimony is preserved. Federal
decisions applying Daubert concepts
under the identical Fed. R. Evid. 702,
however, offer guidance and are discussed
below.
The Appeals Court Will Not Hear
Daubert Challenges for the
First Time on Appeal
A challenge to an expert’s qualifications
must first be addressed in the trial court3-a concept particularly important in the
summary judgment context. In order to
ultimately move for summary judgment,
you must first specifically ask the trial
court to exclude the expert evidence
that plaintiff relies upon to support one
or more elements of his claims. Though
this seems to be an elementary step,
at least one appeals court has vacated
summary judgment in defendant’s favor
where the defendant never gave the trial
court the opportunity to address the Rule
702/Daubert deficiencies in plaintiff’s
experts’ opinions.
In Cortes-Irizarry, the defendant failed
to first request the trial court to undertake
the requisite Daubert analysis prior to
moving for summary judgment based on
the purported inadequacy of the opinions
advanced by plaintiff’s experts to support
the causation element of her medical
malpractice claim. Cortes-Irizarry v.
Corporacion Insular De Seguros, 111
F.3d 184, 189 (1st Cir. 1997). Though
defendant raised his Daubert arguments
on appeal, the First Circuit refused
to entertain them:
Notwithstanding
the arguments defendant “spouts on
appeal, [he] never asked in the district
court to strike or otherwise [exclude]
the statements of Drs. Nathanson and/
or Hausknecht. . . . [W]e decline the
defendant’s odd invitation that we start
from scratch and undertake a Daubert
analysis in the context of this appeal.”
Id.
In short, it is important to carefully
articulate, with supporting exhibits,
the specific grounds under Rule 702
and Daubert for excluding proposed
expert testimony supporting an essential
element of plaintiff’s claim. If plaintiff
offers expert testimony for the first time
in response to a motion for summary
judgment (as in Smith v. Clement), then
you must move to strike such testimony
and at that time articulate the grounds
under the requisite Daubert analysis.
In Presenting the Daubert Challenge,
Be Mindful of the Courts’ Hesitancy
in Making Such Determinations in the
Summary Judgment Context
A number of courts have cautioned
against using Daubert in connection
with summary judgment motions where
no opportunity is provided to adequately
develop the record. As the Cortes-Irizarry
court explained: “[A]t the junction
where Daubert intersects with summary
judgment practice, Daubert is accessible,
but courts must be cautious—except
when defects are obvious on the face
of a proffer—not to exclude debatable
scientific evidence without affording
the proponent of the evidence adequate
opportunity to defend its admissibility.”
111 F.3d at 188 (“Given the complex
factual inquiry required by Daubert,
courts will be hard-pressed in all but
the most clearcut cases to gauge the
reliability of expert proof on a truncated
record. . . . [T]he Daubert regime should
be employed only with great care and
circumspection at the summary judgment
stage.” Id.); see Padillas v. Stork-Gamco,
3
See, e.g., Foradori v. Harris, 523 F.3d 477, 507-08 (5th Cir. 2008); City of Jackson v. Spann, 4 So. 3d 1029, 1037 (Miss. 2009) (“We find that any challenges to the
reliability of Dr. Crenshaw’s and Dr. Goel’s opinions should have been addressed in the circuit court via a Daubert challenge.”).
9
Inc. 186 F.3d 412, 417–18 (3d Cir. 1999)
(reversing summary judgment based on
district court’s exclusion of expert report
under Daubert standard; holding that
“when the ruling on admissibility turns
on factual issues, as it does here, at least
in the summary judgment context, failure
to hold [a Daubert] . . . hearing may be an
abuse of discretion. We hold that in this
case, it was.”); see also In re Paoli R.R.
Yard PCB Litig., 916 F.2d 829, 854 (3d
Cir. 1990) (reversing summary judgment
for defendants where record failed to
show plaintiffs had sufficient opportunity
to defend their expert submissions).
Thus, as detailed below, the most
prudent approach in this context is to move
for summary judgment only after expert
information has been exchanged and
depositions taken, so that this information
may be used to support the preliminary
Daubert challenge to the adequacy and
reliability of plaintiff’s expert proof on an
essential element of his claim.
It is Within the Trial Court’s
Discretion to Determine How It Will
Conduct Its Daubert Analysis
Though the trial court has no discretion
in whether to perform its gatekeeping
function with respect to the admissibility
of expert testimony (see Daubert, 509
U.S. at 589); the Supreme Court has also
made clear that the trial court is afforded
discretion in choosing the manner in which
it conducts this analysis. Kumho Tire, 526
U.S. at 158–59 (Scalia, J., concurring) (“I
join the opinion of the Court, which makes
clear that the discretion it endorses—trial
court discretion in choosing the manner
of testing expert reliability—is not
discretion to abandon the gatekeeping
function.”). Thus, the trial court may
decide, in its discretion, “whether or when
special briefing or other proceedings are
needed to investigate reliability” (Kumho
Tire, 526 U.S. at 152); and is not required
to follow any special procedure. See
Fed. R. Evid. 702 advisory committee’s
note to 2000 amend. (noting that the Rule
“makes no attempt to set forth procedural
requirements for exercising the trial
court’s gatekeeping function over expert
testimony”).
10
The Trial Court’s Daubert Analysis
Must be Based on a
Well-Developed Evidentiary Record
Like the Mississippi appellate courts,
the federal appellate courts require that
the trial court, in conducting its Daubert
analysis, ensure that its ruling is based on
a well-developed evidentiary record and
that “the parties have an opportunity to
be heard before the [trial] court makes its
decisions.” Miller v. Baker Implement Co.,
439 F.3d 407, 412 (8th Cir. 2006) (citing
Group Health Plan, Inc. v. Philip Morris
USA, Inc., 344 F.3d 753, 761 n.3 (8th Cir.
2003)) (internal citations omitted); see
In re TMI Litig., 199 F.3d 158, 159 (3d
Cir. 2000) (noting plaintiff “need[s] an
opportunity to be heard” on the critical
issues of scientific reliability and validity.”
(quoting Padillas, 186 F.3d at 418));
Knight v. Kirby Inland Marine Inc., 482
F.3d 347, 355 (5th Cir. 2007) (“District
courts must carefully analyze the studies
on which experts rely for their opinions
before admitting their testimony.”); U.S.
v. Call, 129 F.3d 1402, 1405 (10th Cir.
1997) (“[A]n appellate court must have
before it a sufficiently developed record
in order to . . . [determine whether] the
district court properly applied the relevant
law.”); United States v. Lee, 25 F.3d 997,
999 (11th Cir. 1994) (encouraging district
courts “to make specific fact findings
concerning their application of Rule 702
and Daubert”).
A number of courts recognize that a
Daubert hearing may be the most common
or efficient way to accomplish this goal—
indeed, a hearing will allow the parties
to present testimony, cross examine
the witnesses, and allow the court, if it
desires, to question the witnesses and
thoroughly scrutinize the proposed
testimony and the expert’s credentials.
See, e.g., United States v. Downing, 753
F.2d 1224, 1241 (3rd Cir. 1985) (preDaubert, but suggesting that “the most
efficient procedure that the district court
can use in making the [expert] reliability
determination is an in limine hearing.”);
Group Health Plan, Inc., 344 F.3d at
761 (recognizing “in limine hearings are
generally recommended prior to Daubert
determinations”); Goebel v. Denver &
Rio Grande Western R.R. Co., 215 F.3d
1083, 1087 (10th Cir. 2000) (noting the
“most common method for fulfilling [the
trial court’s gatekeeping] function is a
Daubert hearing”). Cf. Borawick v. Shay,
68 F.3d 597, 608 (2d Cir. 1995) (though
generally recognizing that Rule 104(a)
pretrial evidentiary hearings are “highly
desirable” because they allow parties
to present expert evidence and conduct
cross-examination of the proposed expert;
the court nevertheless affirmed exclusion
of expert testimony despite district court’s
failure to hold pretrial hearing).
All courts agree, however, following
Kumho Tire, that a Daubert hearing is
not mandatory: As one court explained,
given the Supreme Court’s emphasis
on the trial courts’ broad discretion “in
assessing the relevance and reliability of
expert testimony, and in the absence of
any authority mandating such a hearing,
we conclude that trial courts are not
compelled to conduct pretrial hearings
in order to discharge the gate keeping
function.” United States v. Alatorre, 222
F.3d 1098, 1100 (9th Cir. 2000).
Thus, the appeals courts have found
no abuse of discretion in failing to hold
a Daubert hearing where the filings,
briefs and reports before the trial court
were sufficient for the requisite Daubert
analysis. See Oddi v. Ford Motor Co.,
234 F.3d 136, 154–55 (3d Cir. 2000)
(evidentiary record sufficient which
contained expert’s preliminary report, an
amended report (prepared after review
of the deposition testimony of a defense
expert), an affidavit specifically prepared to
meet the defendants’ Daubert challenges,
and the expert’s two depositions); Shelter
Ins. Companies v. Ford Motor Co., Case
No. 06–60295, 2006 WL 3780474 at *3
(5th Cir., Dec. 18, 2006) (Daubert issues
were thoroughly briefed by both parties);
Nelson v. Tenn. Gas Pipeline Co., 243
F.3d 244, 248–49 (6th Cir. 2001) (“The
parties fully briefed Daubert issues and it
is clear from the extensive record and the
magistrate judge’s opinion that there was
an adequate basis from which to determine
the reliability and validity of the experts’
opinions.”); Kirstein v. Parks Corp., 159
F.3d 1065, 1067 (7th Cir. 1998) (affirming
summary judgment and finding no abuse
of discretion in district court’s exclusion
of plaintiff’s sole expert without a
hearing where trial court acknowledged
expert’s credentials were “impressive,”
but record showed expert’s opinions were
never tested nor did expert submit studies
which employed any relevant testing);
Miller, 439 F.3d at 412 (record sufficient
where plaintiff filed a response to the
defense motions to exclude; submitted his
experts’ rebuttal affidavits and a detailed
explanation of their expected testimony;
and all parties fully briefed the relevant
Daubert issues); Group Health Plan, Inc.,
344 F.3d at 761 n.3 (extensive briefing
allowed on defendants’ motion for
summary judgment based on exclusion
of plaintiffs’ experts; and plaintiffs
presented “written submissions by Dr.
Harris and other experts in support of
their argument.”); Cook ex rel. Estate of
Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1113–14 (11th Cir. 2005)
(district court acted within its discretion
in excluding proffered expert testimony
without in limine hearing where expert
report, on its face, concerned matters
within understanding of lay person and
other opinions had no factual basis);
see also In re TMI Litig., 199 F.3d at
159 (recognizing that trial court need not
“provide a plaintiff with an open-ended
and never-ending opportunity to meet a
Daubert challenge until plaintiff ‘gets it
right’ and [plaintiff] . . . certainly [need
not] . . . be given the opportunity to meet
a Daubert challenge with an expert’s
submission that is based on a new
methodology completely different from
the one the expert originally engaged in.”
(internal citations omitted)).
In contrast to these cases, however,
the failure to hold a Daubert hearing
may be an abuse of discretion when
the admissibility ruling is tantamount
to a ruling on summary judgment on a
scant record, particularly when there are
substantial disputed issues of fact that
are pertinent to the reliability inquiry. In
Padillas, for example, the Third Circuit
reversed summary judgment based
on exclusion of the plaintiff’s expert
report, finding the district court abused
its discretion in failing to hold Daubert
hearing. 186 F.3d at 417–18. The court
explained that the district court’s Daubert
analysis did not establish that plaintiff’s
expert (Lambert) lacked “good grounds”
for his opinions, “but rather, that they are
insufficiently explained and the reasons
and foundations for them inadequately
and perhaps confusingly explicated.” Id.
at 417. Continuing, the court stated: If
the district court “was concerned with
the factual dimensions of [Lambert’s]
evidence . . . it should have had an in limine
hearing to assess the admissibility of the
report giving the plaintiff an opportunity
to respond to the court’s concerns.” Id.
(citation and internal quotations omitted);
see also In re Paoli R.R. Yard PCB Litig.,
916 F.2d at 854 (reversing summary
judgment for defendants where district
court, in excluding expert evidence under
Rule 703, failed to provide plaintiffs
with “sufficient process for defending
their evidentiary submissions;” namely,
refusing to allow an in limine hearing on
the evidentiary issues or oral argument on
the summary judgment motion).
Similarly, in In re Hanford Nuclear
Reservation Litigation, 292 F.3d 1124
(9th Cir. 2002), though remanding on
other grounds, the Ninth Circuit also
“encourage[d] the [district] court to hold
a hearing on remand to provide plaintiffs
with an opportunity to respond to the
defendants’ [Daubert] challenges.” Id.
at 1138–39. Likewise, in United States
v. Call, 129 F.3d 1402 (10th Cir. 1997),
though not reversing the district court on
this basis, the Tenth Circuit expressed
concern over the “limited” material before
the court that likely would have made
it insufficient to permit a meaningful
review under Rule 702 and Daubert:
“The analysis outlined in Daubert is
extensive, requiring the district court to
‘carefully and meticulously’ review the
proffered scientific evidence.” Id. at 1405
(citation omitted). Here, the court noted,
“Defendant outlined the areas about
which his expert would testify . . . but
provided the district court with minimal
substantive information. In addition, the
district court made no specific factual
findings regarding its application of Rule
702 and Daubert.” Id. “However,” the
court explained, “we need not reach
the question of whether this record is
insufficient to permit meaningful review,
because we hold that the district court
properly excluded the evidence under
Rule 403.” Id.; see Goebel, 215 F.3d at
1087 (reversing jury verdict for plaintiff
and remanding for new trial where there
was “not a single explicit statement on the
record to indicate that the district court
ever conducted any form of Daubert
analysis whatsoever,” though requested
by defendant through a motion in limine;
objection at trial; and in defendant’s posttrial motions).
Conclusion
To recap, you must first request the
trial court to undertake the requisite
Daubert analysis in connection with
moving for summary judgment based
on the purported inadequacy of the
expert opinions relied upon by plaintiff
to prove his claim. In doing so, your
primary concern should be to provide
the trial court with as much information
as possible so that it can thoroughly
undertake its gatekeeping function with
respect to the admissibility of expert
testimony. This is particularly important
in the summary judgment context, given
that courts have demonstrated some
reluctance to use Daubert in connection
with summary judgment motions.
Requesting a specific Daubert hearing
is most prudent; such a hearing will allow
the court to scrutinize the relevance and
reliability of the proposed testimony
and the expert’s credentials. A Daubert
hearing is discretionary, however, so
you must also be sure that the written
record contains the legal analysis and
all possible evidentiary support for your
Daubert claims, including, for example:
(i) thorough briefing on the Daubert
issues; (ii) the expert report(s) containing
all requisite information under Fed. R.
Civ. P. 26(a)(2)(B) (or, in state court,
the expert information required under
Miss. R. Civ. P. 26(b)(4)); (iii) specific
deposition testimony; and (iv) any other
relevant exhibits. In this way you will
ensure, to the extent possible, that the trial
court has before it sufficient information
to allow it to conduct a meaningful
Daubert review and analysis. ■
11
By Rebecca S. Blunden
After growing up in California and attending undergraduate school
at Cornell University, Ms. Blunden moved to Mississippi, working
at the Stennis Space Center for three years. She graduated from the
University of Mississippi School of Law in 1999 and immediately
joined Copeland, Cook, Taylor & Bush, where her litigation practice
primarily involves insurance-related issues.
In December 2008, the first news article
appeared, detailing the problems that may
be associated with the use of Chinese
drywall. In less than a year, knowledge has
spread from the Fort Meyers News Press
throughout the country. At a recent forum
in Biloxi concerning the rebuilding efforts
after Hurricane Katrina, one of the speakers
made a joke that included a reference to
Chinese drywall. The audience all laughed.
Without some knowledge about Chinese
drywall, the joke would have failed. I recall
looking around, amazed at the manner in
which Chinese drywall has become part of
our common knowledge.
As a defense lawyer, I am curious about
Chinese drywall and its potential impact
on my clients and my practice. Over the
past six months, I have worked to educate
myself about this new problem. To help
you get started, I created this primer on the
background and legal issues surrounding
Chinese drywall.
What Is Chinese Drywall?
As it name implies, Chinese drywall is
drywall made in China. How is it, then,
that Chinese drywall suddenly became a
problem? Until the early to mid-2000s,
our country’s need for drywall was met
by domestic production. The building
boom of the early 21st century caused a
materials shortage. China stepped up to
fill that shortage, with the United States
importing significant amounts of drywall
manufactured in China from 2004 through
2007.
Although homeowners in 41 states have
reported what they suspect to be Chinese
drywall, not all reports have been confirmed.
From the investigation and litigation, it
is clear that Florida is ground zero, home
to the majority of the confirmed Chinese
12
drywall problems. There are a couple of
reasons for Florida’s status as ground zero.
First, during the early to mid-2000s, Florida
built more new homes than any other
state. Second, after the 2004 hurricane
season, when Florida was pummeled by
four separate hurricanes, rebuilding efforts
joined the new home construction, adding
to the building materials shortage.
The impact felt in the construction market
after the 2004 hurricane season was repeated
after the devastation of Hurricane Katrina in
2005. In Mississippi and Louisiana alone,
nearly 850,000 homes were damaged or
destroyed. Many repairs to these homes
required drywall. This peak in demand for
drywall brought even larger amounts of
drywall from China to the United States.
What’s Wrong with Chinese Drywall?
It must be noted that not all drywall
imported from China has caused the
problems associated with defective Chinese
drywall. The Chinese drywall that appears
to be causing the problems is generally
from manufacturing plants located in
Beijing, Dongguan, Taian, Tianjin, and
Wuhu as well as Shandong Province. The
companies involved are believed to be
Chinese companies and a Germany-based
company called Knauf.
All drywall is made primarily of gypsum
(either mined, recycled, or synthetic). Early
testing reveals that the defective Chinese
drywall contains higher levels of impurities
than domestic drywall. These differences
are slight, with differences of less than
5% between the chemical composition of
defective Chinese drywall and domestic
drywall. Despite these small differences,
there are reports of very significant
problems, primarily in areas of the country
with high moisture or humidity.
Defective Chinese drywall has been
associated with emission of sulfur
compounds called “off-gassing.” This offgassing has a distinct odor, like rotten eggs
or a burnt match. While that smell alone
can be troublesome, the typical homeowner
also experiences problems with the airconditioning unit. The coils of the HVAC
system become discolored and corroded,
requiring replacement.
Additional
discoloration and corrosion occurs to items
throughout the home containing copper or
silver, including building materials (such
as pipes, ground wires, and fixtures),
appliances (such as refrigerators and
dishwashers), and personal contents (such
as silverware, jewelry, electronic goods,
and mirrors).
Many homeowners who have experienced
property damage also complain of physical
ailments, including frequent bloody noses,
respiratory irritation, and coughing. While
some experts believe that the sulfur in
the defective Chinese drywall will lead to
significant health problems, the reported
health problems have not been verified
by scientific testing. The U.S. Consumer
Product Safety Commission is undertaking
significant testing to determine whether the
reported health problems are in fact linked
to the defective Chinese drywall.
What Are the Legal Implications of
Chinese Drywall?
As with any other defective product,
lawsuits quickly arose related to the
defective Chinese drywall. Many are
class actions, with homeowners as
the typical plaintiffs while the typical
defendants are the builders, contractors,
suppliers, importers, and manufacturers.
Causes of action include negligence,
negligence per se, strict liability, breach
of warranties, breach of contract, fraud,
misrepresentation, and nuisance. One of the
difficulties facing the plaintiffs’ bar with
Chinese drywall litigation is the impact of
the foreign manufacturers as parties to the
litigation, as that affects every aspect of a
lawsuit, including service of process and
basic discovery.
On June 15, 2009, the U.S. Judicial Panel
on Multidistrict Litigation consolidated
the federal Chinese drywall cases in the
Eastern District of Louisiana, before Judge
Eldon Fallon. There were over 75 federal
lawsuits pending at the time the MDL was
ordered. A number of state court cases are
also pending.
Of critical interest to many of our
clients – whether a construction defendant
or an insurance company – will be
whether there is insurance coverage for
defective Chinese drywall. The nature of
the insurance problem impacts coverage
through a homeowner’s policy and
coverage through a defendant’s liability
policy.
As to the issues of first party coverage,
although the policies themselves differ,
there are often exclusions for pollution
and defective materials, among others,
than may make coverage unavailable. If
an insurance company determines there
is coverage, subrogation may prove to
be difficult, timely, and costly. Many
homeowners are turning to attorneys for
assistance after their claims under their
homeowners’ policies are denied.
The pollution exclusion is also a factor
in many discussions of insurance coverage
under a liability policy for a defendant
in a Chinese drywall lawsuit. Once the
appropriate insurance policy or policies
are identified, most liability coverage
discussions center first on whether faulty
work or defective construction is an
occurrence. If so, coverage questions next
focus on whether there is an applicable
exclusion to coverage, such as pollution,
damage to your product, damage to your
work, damage to impaired property, and/
or recall of products.
Declaratory judgment actions have
been filed but as of July, no rulings had
been issued. Whether there is insurance
coverage or not will certainly impact the
appetite of many plaintiffs’ attorneys for
Chinese drywall litigation.
What Are the Solutions?
Until the insurance coverage issue is
resolved, homeowners that have damage as
a result of defective Chinese drywall may
need to look for more unique solutions.
Both the U.S. Senate and House of
Representatives have pending bills seeking
assistance for homeowners victimized by
defective Chinese drywall. In an effort to
correct the problems caused by Chinese
drywall, some builders and developers
are undertaking remediation programs.
In these programs, the defective Chinese
drywall is removed and replaced. At the
same time, the other affected building
materials and appliances are also removed
and replaced. Homeowners are then able
to move back in. Since the potential health
risks of exposure to Chinese drywall are yet
unknown, these builders and developers
are offering remediation without a release
for undiscovered health problems.
At this point, it is unclear how much
defective Chinese drywall has been
installed in Mississippi’s homes. Lowe’s
and Home Depot issued statements that
neither ever sold drywall imported from
China, but other suppliers are defendants
in Florida lawsuits. Mississippi may
have Hurricane Katrina victims that are
damaged again when their rebuilding
and repairing efforts included defective
Chinese drywall. One possible solution for
those homeowners is to look to the federal
Hurricane Katrina monies provided to the
State for remediation funds.
With the courts just beginning to
examine this problem, it may be some time
before the legal parameters of the Chinese
drywall problem – and the possible legal
solutions – are available. ■
Toxicology and Pharmacology
Expert Witness
Dr. James C. Norris
Experience:
Ph.D., D.A.B.T., EURT
Litigation/Arbitration in the United States, the United Kingdom, and
Hong Kong; and testimony to governmental agencies.
Areas of Expertise:
Chemicals
Combustion / Fire
General Toxicology
Inhalation Toxicology
Pesticides
Pharmaceuticals
Contact Information:
Telephone: 866 526 6774 [Toll Free]
Email: [email protected]
Website: norrisconsultingservices.com
13
By Margaret Sams Gratz1
Margaret Sams Gratz is a shareholder in the Tupelo, Mississippi office
of Mitchell, McNutt & Sams, P.A. She focuses her practice in the area
of litigation including products liability, commercial litigation and
insurance defense litigation. Margaret received a Bachelor of Arts
degree from William Woods University in 1994 and her Juris Doctorate
from the University of Mississippi School of Law in 1998. She is
married to Michael Gratz, Jr., also a lawyer in Tupelo, and they
have three children, Charlie (age 3 1/2), Lucy (age 2), and Michael
B (3 months). This issue of “By the Numbers” is
the first of a two-part general civil trial
outline for young lawyers. This article
does not focus on topics of strategy or
style, but rather lists the nuts and bolts
of the trial process. This list, as others
of this series, is only a starting point,
may change as the applicable substantive
law changes, and will certainly need to
be tweaked based on the type and size of
your case.
I. Getting to the Courthouse and Travel
Logistics
Travel and transporting your materials
can vary depending on the size of your
case and the location of your trial.
Determine what support you will need to
transport your materials and equipment
to the courthouse and how you and
other members of your trial team will
travel. Travel arrangements are best
made through one person instead of each
individual making their own.
A. Rental Car & HotelAccommodations
– The number of rental cars will depend
on the size of the trial team. Consideration
must be given to transporting materials
to and from the courthouse. Temporary
rental of a van may be useful. A hotel
suite should be considered to allow work
space for the trial team. A hotel close
to the courthouse is preferable. Locate
restaurants, supermarkets, drugstores,
etc. within walking distance of the hotel
and courthouse. Locate nearest FedEx
drop-off stations and schedules. Locate
post office and nearby drop boxes.
B. Consider equipment needs such
as computers, modems, printers, fax
machines, photocopy machines, speaker
phones, Dictaphones, sturdy carts or
dollies for moving boxes. Also, inspect
courtroom to determine location and
distance of electrical plug-ins, determine
where to locate exhibits, how best to use
your technology, etc.
C. Consider supply needs such as
red rope file folders, packing boxes,
legal pads, pens/pencils/highlighters,
post it notes, exhibit stickers, paper
clips/ black Acco clips, 3 ring binders,
copy paper, letterhead, labels, tape,
staplers, scissors, 3-hole punchers,
extension cords, dictation tapes (if nondigital Dictaphone), computer disks,
briefcases.
II. Trial Notebook
Your trial notebook should be as
concise and small as possible. Documents
should be copied on front and back to
lessen the quantity of paper. Still, you
should include in the notebook all of
your key relevant pleadings, discovery,
depositions, exhibits and notes, such as
the following:
A. Pleadings and Discovery – The most
recently amended complaint and answer
and all pending motions. All discovery
responses (you may consider omitting
responses to requests for production if
that document is voluminous and simply
references documents produced).
B. Witnesses – Have a section for each
trial witness which includes a copy of the
condensed deposition transcript, all key
exhibits (depending on size of document)
for that witness, expert opinions/reports
for expert witnesses and notes related to
that witness.
C. Trial notes – Your notes should
include a list of the legal elements needed
for plaintiff’s case and what witnesses
and exhibits you expect to prove those
elements. If plaintiff fails to prove
an element with a given witness, you
may have grounds for directed verdict.
Likewise, list the legal elements for
your defenses and what witnesses and
exhibits will provide the evidence for
those defenses --- then make certain that
such evidence is presented at trial.
D. Venire List - Request a copy of the
venire from the clerk’s office. Circulate
this list within your office to inquire about
knowledge of the individual potential
jurors.
E. Jury Instructions
III. Pretrial Motions
Some judges set pretrial motions for
hearing days before the trial; some judges
hear these motions the morning of trial
before jury selection. Inquire as to when
the judge will hear motions. Determine
how your trial strategy will change with
different rulings on these motions and
prepare accordingly.
IV. Jury Examination and Selection
A. Voir Dire - In the voir dire
examination of jurors, the attorney
will question the entire venire only on
matters not inquired into by the court.
Individual jurors may be examined only
when proper to inquire as to answers
given or for other good cause allowed
by the court. No hypothetical questions
requiring any juror to pledge a particular
1
A primary reference for this article was Thomas A. Mauet’s Trial Techniques. It is the trial “Bible” for many young (and old“er”) lawyers and is recommended by
this writer.
14
verdict will be asked. Attorneys will not
offer an opinion on the law. The court
may set a reasonable time limit for voir
dire. URCCC 3.05.
B. Jury Selection Process - Peremptory
jury challenges shall be exercised as
follows:
1.The court shall consider all
challenges for cause before the
parties are required to exercise
peremptory challenges.
2.Next, the plaintiff shall tender
to the defendant a full panel of
accepted jurors having considered
the jury in the order in which they
appear, having exercised any
peremptory challenges desired.
3.Next, the defendant shall go
down the juror list accepted by
the plaintiff and exercise any
peremptory challenge(s) to that
panel.
4.Once the defendant exercises
peremptory challenges to the
panel tendered, the plaintiff shall
then be required to again tender
to the defendant a full panel of
accepted jurors.
5.The above procedure shall be
repeated until a full panel of
jurors has been accepted by both
sides.
6.Once the jury panel is selected,
alternate jurors shall be selected
following the procedure set
forth above for selecting the jury
panel.
Constitutional challenges to the use of
peremptory challenges shall be made at
the time each panel is tendered. URCCC
4.05.
C. Peremptory Challenges
Mississippi State Courts – In Circuit
and Chancery Courts each side has four
(4) peremptory challenges, plus one (1)
peremptory challenge for alternate jurors.
Miss. R. Civ. P. 47(c). In County Courts,
each side has two (2) peremptory
challenges, plus one (1) peremptory
challenge for alternate jurors. Miss. R.
Civ. P. 47(c).
In Federal Court civil cases, each party
shall be entitled to three peremptory
challenges. Several defendants or
several plaintiffs may be considered as a
single party for the purposes of making
challenges, or the court may allow
additional peremptory challenges and
permit them to be exercised separately
or jointly. All challenges for cause or
favor, whether to the array or panel or to
individual jurors, shall be determined by
the court. 28 USC § 1870.
D. Number of Jurors Needed
Mississippi State Courts - In Circuit and
Chancery Courts, twelve (12) jurors, plus
one (1) or two (2) alternates are selected.
A finding of nine (9) or more of these
twelve (12) is taken as a verdict. In County
Court, six (6) jurors, plus one (1) or two
(2) alternates are selected. A finding of
five (5) or more of these six (6) is taken as
a verdict. Miss. R. Civ. P. 47 & 48.
Federal Courts - Six (6) to twelve (12)
jurors are selected. The finding of the jury
must be unanimous.
E. P
sychology of Prospective Jurors
and Questions for Voir Dire
1.What are prospective jurors
feeling and thinking?
Be
empathetic
towards
jurors.
Remember that they may be
intimidated and/or frustrated by
the process, embarrassed by their
lack of knowledge of the legal
process (but do not talk down to
them), and concerned that they
will be asked personal questions
about themselves in front of a
room full of strangers. Never
embarrass a juror.
2.What are you trying to accomplish
during jury selection?
a.Present yourself and your
party in a favorable light
before the jury. You must
show the jury that you are
confident, committed, and
prepared. You must humanize
your party. You must create
a psychologically positive
and receptive courtroom
atmosphere.
b.Learn about the jurors’ beliefs
and attitudes so that you can
exercise your peremptory
challenges intelligently.
c.Familiarize the jurors with
applicable legal and factual
concepts, if permitted by the
judge.
3.Questioning prospective jurors
- The judge usually asks the
jurors questions about following
the law and also about their
knowledge about the parties and
lawyers involved in the case. To
the extent you do not know from
the information provided to you
by the court, you will want to
inquire as to the following:
a.Age - Age should be obvious
just by looking at the juror. If
exact age is important, you
can usually get it indirectly
from other facts, such as the
age of any children or how
long the juror has been retired.
Many jurors, especially older
ones, do not like being asked
to reveal their exact age.
b.Education - Last school
attended; degrees, institutions
(if college background);
military service
c.Employment history - present
job (job title and what it
involves); previous jobs
d.Residence history - present
address; previous addresses;
own or rent (if important)
e.Marital and family history present marital status; spouse,
children, parents; occupations
of family members; schools
of children
f.Hobbies and interests - what
juror likes to do in spare time
g.Reading and television newspapers,
magazines
frequently read; types of
books enjoy reading; favorite
television programs
h.Organizations - clubs and
organizations juror active in
2
Each “side” does not mean each “party.” Rule 47 only allows four peremptory challenges for each side, i.e. plaintiffs get four peremptory challenges even if there are
ten plaintiffs represented by ten different lawyers --- same goes for defendants. You must obtain leave from court for there to be a given number of challenges designated
to each party.
15
i.Experiences in life - prior
jury duty; involvements in
lawsuits; involvement in
crime; work for insurance
company; involvement in
similar situations as case on
trial
4.Prior to the trial, prepare a juror
profile chart listing characteristics
that would be favorable and
unfavorable to your case. Then
use the profile to select your
jury.
V. Opening Statements
A. O
pening statements from the jury’s
perspective
1.Themes and the first minute Every case you try should have
a theme that you convey to the
jury. The first minute or two of
your opening statement should
communicate three things to
the jury: your themes, your
summary of the facts entitling
your side to a favorable verdict,
and your enthusiasm about trying
the case.
2.Storytelling - Tell the story of
your case. Focus on the people,
not the problem (personalize
your client).
Be vivid in
recreating the events and things
that happened to your client.
Organize the story logically
(usually chronologically). Alert
the jurors to important testimony,
evidence, etc. Keep it as short
and as simple as possible.
B.Strategic
and
evidentiary
considerations
1.Do not argue or state personal
opinions
2.Do not overstate the evidence
3.Develop your theory of the case
4.Choose your labels - The trial
vocabulary you select to refer to
the parties, events should remain
consistent throughout the trial,
i.e. will you refer to your client
as “the defendant,” “Mr. Jones,”
or “Sam”; will you refer to
plaintiff’s vehicle as “plaintiff’s
car” or “the big black Mercedes
sports car.”
16
5.Consider using exhibits - Using
exhibits could be helpful but may
be distracting. Also, once seen,
these exhibits will no longer be
new evidence to the jury.
6.Anticipate weakness - Consider
whether to address the weaknesses
of your case. Certainly address
them if you anticipate that
the other side is aware of the
weakness and will bring it up.
7.Lawyer’s position and delivery Stand front and center of the jury
and speak directly to each juror
making eye contact with each
person.
C.Content of effective opening
statements
1.Introduction - present your
theme; present a short overview
of your case; demonstrate your
enthusiasm, confidence and
integrity through your delivery
and demeanor
2.Parties - Introduce the essential
people, both parties and critical
witnesses.
3.Scene - The scene of an
occurrence is usually important
in personal injury cases. Develop
verbal pictures such that if you
close your eyes and listen to the
description you should actually
be able to form a mental picture
of the scene described.
4.Instrumentality - Identify, show
or describe the instrumentality
involved in the case, i.e. the
product, the vehicles involved,
machinery, etc.
5.Date, time, and weather - Identify
these if important.
6.Issue - Begin by denying the
disputed facts asserted in
plaintiff’s opening statement,
then state the issue in defendant’s
terms.
7.What happened and basis of
non-liability - Once the stage
is set, make an uninterrupted
description of the actual event,
denying the disputed facts
asserted by plaintiff, identifying
the testimony and evidence that
will refute plaintiff’s story and
support defendant’s story --
making certain that you do not
overstate the evidence
8.Damages - This is not a focus
for defendant, but generally state
your regret that plaintiff was
injured but firmly state that it was
not defendant’s fault.
9.Conclusion - Simply and directly
tell the jury that the facts of the
case will support defendant’s
side and ask for a verdict for the
defendant.
VI. Direct Examination
A. Elements of your case in chief Know which witness testimony and/
or exhibits you will use to prove each
element of your defense. Make sure this
checklist is completed with each witness.
B. Points to Remember
1.Keep it simple - Do not waste
time on unimportant testimony;
focus on the critical part of what
the witness has to offer.
2.Organize logically - Address
personal background of witness;
scene
description;
action
description; exhibits to highlight
and repeat; then damages
description (if applicable)
3.Use introductory and transition
questions, i.e., “Now, Officer
Jones, I’m going to ask you some
questions about what you saw as
you arrived at the scene of the
accident.”
4.Introduce witness and develop
background - Answer the jury’s
questions of “who is she,” “why
is she here,” and “why should I
believe her.”
5.Elicit scene description first, then
action
6.Elicit
visual,
flowing
descriptions
7.Use the pace of your questioning
to recreate action
8.Use simple, sensory language
(remember to develop your trial
vocabulary prior to trial)
9.Use non-leading questions
10.Have the witness explain
11.Volunteer weaknesses
12.Use exhibits to highlight and
summarize facts
13.Listen to the answers
14.Lawyer’s position - Where court
rules permit, move from behind
the podium, but place yourself in
the courtroom where the focus is
not on you, but is on the testifying
witness.
15.Practice with the witness prior to
trial.
C. Conversations and statements
- Conversations and statements are
often introduced as evidence at trial,
however many of these are hearsay and
inadmissible. If you intend to offer a
conversation or statement, make sure that
it is not hearsay or is an exception to the
hearsay rule, i.e. not offered for the truth
of that matter asserted, an admission by
a party opponent, or an exception to the
hearsay rule.
D. Telephone conversations - The
hearsay concerns also apply to telephone
conversations, but have an additional
element to identify the person at the other
end of the line, which must be elicited:
1.That the witness knows other
person;
2.That the witness does not know
other person, but later learns
identity through subsequent
conversations;
the person, but later learns identity
through some transaction; or
the person, but has dialed a listed
business telephone number and
spoken with the person there.
E. Refreshing a witness’ recollection
- To refresh a witness’ recollection, you
should elicit the following:
1.Witness knows the facts, but has
a memory lapse on the stand;
2.Witness knows his report or other
writing will jog his memory;
3.Witness is given and reads the
pertinent part of his report or
writing;
4.Witness states his memory has
now been refreshed;
5.Witness now testifies to what he
knows, without further aid of the
report or other writing.
F. Opinions of lay witnesses - If based
on perception of witness and helpful to
clear determination of a fact issue, a lay
witness may testify as to his opinion.
Miss. R. Evid. 701.
G. The records witness - Although
many records are frequently admitted
by pretrial order, stipulation or without
opposition, and business records are an
exception to the hearsay rule (803(6)),
the records witness can serve to establish
the foundation requirement to get the
exhibit admitted and should be prepared
to read and explain the contents of the
record to the jury. Several considerations
are involved:
1.Thoroughly qualify your witness.
Show that he has substantial
knowledge of the records
involved, works with them on
a daily basis, and knows the
storage and retrieval methods the
business uses.
2.Show how the records are made,
who makes them, and the primary
sources of the information
contained on them. The witness
should be able to trace all the
transactions contained in the
records, from their initial creation
by the first person who conducted
the transactions to their inclusion
in some permanent record.
3.Show how the records are
distributed,
stored,
and
subsequently retrieved for use.
Essential to the credibility of
records is a showing that the
records, once created, are stored
in such a way as to minimize
the risk of loss, destruction, or
alteration.
4.Show what use the records have
for the business creating them.
Where you can show that the
business constantly uses the
records, and that accurate and
complete records are essential to
the successful operation of that
business, you will substantially
enhance the impact those records
will make at trial.
H. Adverse and Hostile witnesses An adverse witness is one you may need
to call for your case in chief, but who
is a party or has a special relationship
with an adverse party. See Miss. R.
Evid. 611(c). These witness may be
questioned with leading questions.
However, due to the uncertainty of
whether the court will determine the
witness is “adverse,” you will want to
clarify the status of the witness prior
to trial. A hostile witness is treated
similarly, however is different in that he
is one who surprises you at trial. You
must then request that the court allow
you to treat him as a hostile witness.
Miss. R. Evid. 611(c).
I. Using deposition transcripts and
videotapes
1.If the witness is “unavailable”
under Rule 804(a) and (b)(1):
a.Advise the court and your
opponent which parts of the
transcript you intend to read.
Your opponent will designate
which sections of the transcript
she intends to read. If either
of you has objections to the
designated portions, you will
need to take those objections
up with the court prior to the
testimony. Advise the court
in advance how you intend
to read the transcript. This
works particularly well if the
person playing the role of the
witness is of the same age and
sex as the witness.
b.If the deposition was
videotaped,
the
same
procedures apply, however
you will want to have a
videotape editor edit the tape
to include only the designated,
admissible sections.
This
should be done well in
advance of trial.
2.If you are using the testimony to
impeach a witness:
a.You may use a deposition
transcript or videotape to
impeach any witness by
reading
the
impeaching
testimony or showing it on
tape.
b.If you are introducing
testimony
(impeachment
or otherwise) of a party
opponent with an admission,
however, the testimony can
be introduced as substantive
evidence in your case in
chief.
17
J. Judicial notice and stipulations
1.Judicial Notice can be taken in
three areas:
a.The court can take judicial
notice of facts that are
generally known in that
particular geographic area, i.e.
the Natchez Trace runs from
Natchez, MS to Nashville,
TN.
b.The court can judicially notice
facts that can be accurately and
easily verified from a reliable
source, i.e. Department of
Labor life expectancy tables.
c.The court can take judicial
notice of the scientific basis for
accepted scientific tests, such
as that radar machines can
measure speeds of objects.
2.A stipulation is simply an
agreement between the parties
that certain facts are true.
K. Redirect examination – The
scope of redirect is limited to what
the cross-examiner chooses to raise
during his examination. However,
with that limitation, there are three
basic purposes of redirect: (1) you can
rehabilitate a witness who has been
impeached with a prior inconsistent
statement by asking the witness to
explain why the inconsistencies
happened; (2) you can ask the witness
to correct cross-examination testimony
that was wrong or misleading; and you
can use the redirect examination to
develop the new matters brought out
on cross.
VII. Exhibits
A. How to get exhibits in evidence:
Step 1.Have the exhibit marked
Step 2.Show the exhibit to
opposing counsel
Step 3.Ask the court’s permission
to approach the witness
Step 4.Show the exhibit to the
witness
Step 5.Lay the foundation for the
exhibit
Step 6.Offer the exhibit in
evidence
Step 7.Have the exhibit marked
in evidence
18
Step 8.Have the witness use
or mark the exhibit, if
appropriate
Step 9.Obtain permission to show
or read the exhibit to the
jury
Step 10.“Publish” the exhibit
B. Foundations for exhibits –
Every exhibit must meet three basic
requirements before it can be admitted
into evidence (1) the qualifying witness
must be competent; (2) the exhibit must
be relevant; and (3) the exhibit must be
authenticated. Competence and relevance
are rarely an issue. Authentication is
governed primarily by Rules 901 and
902 of the rules of evidence, regarding
establishing that the exhibit is what it
purports to be. The following is a list of
types of evidence and the elements that
need to be addressed to authenticate that
evidence:
1.Tangible objects
a.Exhibit is relevant.
b.Exhibit can be identified
visually, or through other
senses.
c.Witness
recognizes
the
exhibit.
d.Witness knows what the
exhibit looked like on the
relevant date.
e.Exhibit is in same condition
or substantially the same
condition now as when the
witness saw it on the relevant
date.
2.Tangible objects – chain of
custody
There are two basic methods to
show a chain of custody:
a.Show that the exhibit has
been in one or more persons’
continuous, exclusive, and
secure possession at all times.
b.Show that the exhibit was in
a uniquely marked, sealed,
tamper-proof container at all
times.
3.Photographs, motion pictures,
and videotapes
a.Photograph is relevant.
b.Witness is familiar with
the scene portrayed in the
photograph.
c.Witness is familiar with the
scene at the relevant date (and
time, if important).
d.Photograph
“fairly
and
accurately” shows the scene
as it appeared on the relevant
date.
e.Probative value of the
photograph exceeds any
prejudicial effect. (This is,
strictly speaking, not an
element, but an objection the
opponent can raise where
appropriate. This objection
is common where the
photographs are of accident
victims.)
4.Diagrams, models, and maps
a.Diagram, model, or map is
relevant.
b.Witness is familiar with the
scene represented by the
diagram, model, or map.
c.Witness is familiar with the
scene at the relevant date (and
time, if important).
d.Diagram, model, or map is
reasonably accurate or to
scale.
e.Diagram, model, or map is
useful in helping the witness
explain his testimony to the
jury. (This is not required in
many jurisdictions.)
5.Drawings by witnesses
a.Drawing is relevant.
b.Witness is familiar with the
scene at the relevant date.
c.Drawing is reasonably accurate
and is not misleading.
d.Drawing is useful in helping
the witness explain what he
saw. (This is not required in
many jurisdictions.)
6.Demonstrations by witnesses
a.Demonstration is relevant.
b.Probative value of the
demonstration exceeds any
prejudicial effect.
7.X-ray films
a.X-ray is relevant.
b.X-ray is a “record” of the
hospital.
c.Witness is the “custodian or
other qualified witness.”
d.The X-ray label was “made
by a person with knowledge”
of the facts, or was “made
from information transmitted
by a person with knowledge”
of the facts.
e.X-ray was “made at or near
the time” of the “conditions”
appearing on it.
f.X-ray was made as part of
“the regular practice” of the
hospital.
g.X-ray was “kept in the course
of a regularly conducted
business activity.”
8.Sound and video recordings
a.Recording is relevant.
b.Recording machine was tested
before being used and was in
normal operating condition.
c.Recording machine that was
used can accurately record and
reproduce sounds/images.
d.Operator was experienced
and qualified to operate the
recording machine that was
used.
e.Witness heard/saw what was
being recorded.
f.After the recording was made,
the operator replayed the tape
and the tape had accurately
recorded the sounds/images.
g.Tape was then labeled and
sealed, placed in a secure
storage vault to guard against
tampering, and later removed
for trial, still in a sealed
condition.
h.Recording machine in court is
in normal operating condition
and can accurately reproduce
the sounds/images on the
tape.
i.Witness recognizes and can
identify the voices on the tape/
locations and persons seen on
the tape.
9.Computer-generated
graphics
and animations
b.The data used by the expert
and put into the computer
program are accurate (e.g.,
the data came from the flight
recorder of the aircraft that
crashed).
c.The integrity of the data was
maintained (e.g., the chain of
custody of the flight recorder
was maintained).
d.Data
was
accurately
transferred into a properly
functioning computer.
e.The
computer
software
program used to create the
animation is based on valid
and
accepted
scientific
methodology.
f.The computer animation
accurately reflects how the
event happened.
g.The computer animation will
help the jury understand or
determine a fact in issue.
10.Signed instruments
a.There are a variety of ways
to prove that the signature on
the instrument was made by
the person whose signature it
purports to be. These include:
i.Call a witness who saw the
party place his signature
on the document.
ii.Call a witness who is
familiar with the party’s
signature and can identify
it.
iii.Call the signing party
as an adverse witness to
admit the signature as
being his.
iv.Call a handwriting expert
who can testify that,
based on handwriting
comparisons,
the
signature was made by
the party.
b.Elements
i.Document is relevant.
ii.Documentbearsasignature
(or is handwritten).
iii.Signature (or handwriting)
is that of the party or his
agent.
iv.Document is in the same
condition now as when it
was executed.
11.Checks
a.Call the drawer of the check
to testify that he personally
gave the check to the payee or
his agent.
b.Call the payee or his agent as
an adverse witness to prove
his receipt, endorsement, and
cashing of the check.
c.Call a handwriting expert to
testify that the endorsement
on the back of the check is in
the payee’s handwriting.
d.Call a representative of the
payee’s bank to qualify a
microfilm of the canceled
check as a business record
and show that the check
was deposited to the payee’s
account.
12.Letters
a.Letter sent to your party by
another party
i.Letter is relevant.
ii.Witness received the
letter.
iii.Witness recognizes the
signature as the other
party’s.
iv.Letter is in the same
condition today as when
first received.
b.Letter sent by your party to
another party
i.Letter is relevant.
ii.Witness dictated the letter
addressed to a party.
iii.Witness saw the typed
original and copy (carbon
or photocopy) of the
letter.
iv.Witness
signed
the
original letter.
v.Original letter was placed
in a properly addressed
and postmarked envelope,
bearing a proper return
address.
vi.Envelope was deposited
in a U.S. mail depository.
vii.Carbon or photocopy
of original is a true and
accurate copy of original.
viii.Original
letter
and
envelope were never
returned to sender.
13.Business records
a.Record is relevant.
b.Record is a “memorandum,
report, record or data
compilation in any form.”
19
c.Witness is the “custodian or
qualified witness.”
d.Record was “made by a
person with knowledge” of
the facts or was “made from
information transmitted by a
person with knowledge” of
the facts.
e.Record was “made at or near
the time” of the “acts, events,
conditions, opinions, or
diagnoses” appearing on it.
f.Record was made as part of
“the regular practice of that
g.Record was “kept in the course
of a regularly conducted
14.Computer records - Computer
printouts can be qualified
for admission like any other
business record. Rule 803(6);
see #13 supra. So long as the
data was initially recorded on
some record, at or near the
time the event or transaction
occurred, either as input into
the computer’s data bank or on
a traditional paper record, the
reliability requirement of the
business records rule has been
substantially met.
15.Recorded recollection
b.Witness has no full or accurate
present recollection of the
facts.
c.Witness
had
firsthand
knowledge of facts when they
occurred.
d.Witness made a record of the
facts at or near the time the
facts occurred.
e.Record was accurate and
complete when made.
f.Record is in the same
condition now as when
made.
16.Copies
a.Copy is relevant.
b.Executed
original
once
existed.
c.Copy of the original was
made.
d.Copy was a true and accurate
copy.
e.Original was unintentionally
lost, is unavailable, etc.
f.A thorough search for the
original in every possible
location failed to produce it.
17.Certified records - Per Rule of
Evidence 902, certified copies
of public records are selfauthenticating.
18.Stipulations - Written stipulations
should be marked as an exhibit
for purposes of the record and
offered in evidence.
19.Pleadings and discovery Pleadings and discovery that
contain admissions may be read
or shown to the jury. Since the
papers were previously filed with
the court, they have already been
authenticated as coming from a
particular party.
Part II of this outline will address
cross-examination, experts, objections,
and closing arguments.
www.mscourtreporter.com
MS Reporters
✦ Certiﬁed Shorthand
Reporters
✦ Medical
✦ Technical
✦ Videographer
✦ Statewide Coverage
✦ E-Tran
✦ Depositions
✦ Condensed Transcripts
✦ Hearings
✦ Expedited Delivery
✦ Arbitrations
✦ Daily Copy
✦ Board Meetings
Melissa L. Magee, CSR, RPR, RMR
1.800.737.8366 ✦ 1.800.STENO
1.601.797.9240
[email protected]
20
Recent Decisions
NOTE: The following decisions are
provided to our readers as quickly as
possible and some may not have been
released for publication in the permanent
law reports. These summaries were
prepared by William E. Whitfield, III.
Adoption/Statutory Compliance –
30 Day Waiting Period
Dr. K.B., et al. v. J.G. _____So.2d
______, No. 2008-CA-00472-SCT
(Miss. April 28, 2009). Panel: Carlson,
Dickinson & Pierce; Dickinson for
the Court; Appeal from Sunflower
County Chancery Court, Judge Jane
Weathersby.
J.G. (JG), an African-American, was
the father of twins born to K.A.B (KAB),
a Caucasian. KAB placed the children
up for adoption after they were born on
January 17, 2007. KAB told JG of the
birth of the children, which were clearly
bi-racial, but due to the promiscuous
reputation of KAB, he didn’t come to her
home to see the children as he wanted to
wait on the DNA test to confirm that he
was the father. KAB placed the children
up for adoption with Dr. KB and his
wife but failed to tell JG of her decision.
Dr. KB and his wife assumed custody
of the children on January 28, and the
adoption was approved on February 6,
2007. On February 21, 2007, JG wrote
a letter to Dr. KB informing him that he
was the father of the children and that he
desired to assume custody of the twins.
On April 2, 2007, JG filed suit to set
aside the adoption. Following this on
June 15, 2007, a paternity test confirmed
that JG was the father. On February 19,
2008, the Chancery Court Judge set
aside the adoption and ordered that JG
be given custody of the twins. At that
time, JG already had 2 other children,
out of wedlock, with two other women
that he was supporting in the amount of
$56.50 per week per child, and regularly
visiting them. From this judgment, Dr.
KB appeals.
On appeal, the Mississippi Supreme
Court reviewed their standard of review
as that of “substantial evidence” which
supports the decision of the judge, or is
manifestly wrong. The Court reviewed
the provisions of §93-17-5 which sets
out the method by which illegitimate
children may be adopted, and specifies
that they may only be adopted after the
expiration of 30 days after the birth
of the child. In this case, the statute
was not complied with and the Court
determined that the children should not
have been placed for adoption. Dr. KB
also asserted that parental rights should
be terminated for reasons of unfitness.
The Court reviewed the provisions
of §93-15-103 which delineates the
various grounds supporting termination
of parental rights and held that Dr. KB
had failed to show that JG was “unfit”
under the statute. Affirmed.
Comment: The defense lawyer
that undertakes adoptions should do
well to acknowledge and confront the
sometimes insurmountable privilege
that comes with natural parenthood,
even as compared to those, such as
Dr. KB and his wife, who were ready,
willing and able to provide for a stable
and substantial environment.
Rental Car/
Insurance Requirement
Enterprise Leasing Company, et al.
v. William H. Bardin, ______So.2d
_____,
No.
2007-IA-02275-SCT
(Miss. May 7, 2009). Panel: Waller,
Randolph & Chandler; Graves result
only; Appeal from Hinds County
Circuit Court, Judge Winston Kidd.
Bardin was injured along I-20 in Hinds
County by Osie Singleton, who at that
time was driving a rental car just leased
to him by Enterprise. Singleton had
rented the car based upon a valid driver’s
license with no history of bad driving
or intoxication. Singleton though was
uninsured at the time of the accident.
Bardin filed suit against Enterprise
claiming that they should have required
proof of insurance, or alternatively
insured him. Enterprise filed a motion
for summary judgment arguing that no
such duty existed under Mississippi law.
The circuit judge denied the motion, and
Enterprise petitioned the Supreme Court
for an interlocutory appeal.
On
interlocutory
appeal,
the
Mississippi Supreme Court noted their
de novo standard of review, and featured
in the opinion the requirement that a
“duty” must exist by the defendant to the
plaintiff for him to recover. “To prevail in
any type of negligence action, a plaintiff
must first prove the existence of a duty.
Laurel Yamaha, Inc. v. Freeman, 956 So.
2d 897, 904 (Miss. 2007). This Court
stated that ‘The plaintiff must show (1)
the existence of a duty ‘to conform to a
specific standard for the protection of
others against the unreasonable risk of
injury ‘. . . .’ Id.” To establish [or not]
the duty owed by Enterprise, the Court
reviewed the provisions of several
Mississippi Statutes that deal with auto
insurance and drivers licenses. MCA
§§63-15-3, 63-15-4, 63-15-11, 63-15-37,
63-15-43, 63-15-53. The combination
of these statutes, as applied by the Court,
recognize that Enterprise is exempted
from the “insurance” requirements for
vehicles under Mississippi law if they
are a “self insurer.” In this particular
case, Enterprise is a self insurer, and
thus, by contract, would cover damages,
as the “owner” of the vehicle up to
the minimum amount required under
the Financial Responsibility laws of
Mississippi. Therefore, they are not
required to provide “insurance” under
the statutes. The Court discussed their
role in applying Legislative enactments,
and held that they are to apply valid
legislation as the Legislature articulates
it. “The plaintiff has failed in the first
obligation in all negligence cases – to
prove the existence of a duty. Whether
or not a duty exists is question of law
for the court to decide. Belmont Homes,
21
792 So. 2d at 232. Enterprise met the
duties the Legislature demands, and this
Court declines to create a new duty. The
allegation of a duty cannot suffice as a
genuine issue of material fact in order to
survive a summary judgment motion.”
Reversed and remanded.
Statutory Construction/
Sheriffs Departments
Tunica County & Sheriff Calvin Hamp
v. The Hampton Company, et al. _____
So.2d _____, No. 2008-CA-00756-SCT
(Miss. May 7, 2009). Panel: Carlson,
Lamar & Chandler; Lamar for the
Court; Graves concurs only in result;
Appeal from Circuit Court of Tunica
County, Judge Charles Webster.
Hamp was elected Sheriff of Tunica
County in 2004 and refused to accept
bonds written through The Hampton
Company and its agent, James Dean.
Hampton and Dean filed suit against
Tunica County and Hamp for damages
and requested declaratory and injunctive
relief. The Circuit Court Judge dismissed
the claims of the plaintiffs for monetary
damages, but granted the plaintiffs
request for declaratory and injunctive
relief. Tunica County and Hamp appeal
the trial court’s grant of declaratory and
injunctive relief.
Court reviewed their standard of
reviewing as de novo, and featured the
statute vesting authority in the Sheriff
in approving of bonds. MCA §19-2567. Hampton and Dean argued that the
Department of Insurance was given the
authority to approve of bondsman and
that they had secured the approval of
the department for writing bail bonds.
MCA §83-39-1 et seq. Hampton and
Dean cite to the fact that §99-5-19
vests discretion in the Department of
Insurance in their approval and not that
of the Sheriff. The Court reviewed
their method of reconciling conflicting
statutory provisions, and held that,
“It is a well-settled rule of statutory
construction that ‘when two statutes
pertain to the same subject, they must
22
be read together in light of legislative
intent’.” If they are in conflict with one
another, then to the extent that it may be
done, both statutes must be given effect
in pari materia. In this case, the statutes
cited by the parties grant the Sheriff
“limited” but not arbitrary discretion to
accept bonds from certain sureties and
bondsmen. This discretion may not be
exercised in an arbitrary or capricious
manner. Reversed and remanded.
Comment: This case offers a good
analysis in statutory construction and
how the Court is to handle statutes that
appear to be in conflict with one another.
What is unclear is how the Court will
respond to various procedural statutes
for courts mandated by the Legislature
when the Supreme Court, according to
Newell v. State, has declared that their
exclusive domain? Medical Malpractice/
Standard of Care
The Estate of Abner K. Northrup, et
al. v. Davis Hutto, CRNA, et al. ____
So.2d _____, No. 2007-CT-00355-SCT
(Miss. May 21, 2009). Panel: En banc,
Randolph for the Court; Kitchens
dissents, joined by Graves; Appeal
from Harrison County Circuit Court,
Judge Lisa Dodson.
Abner Northrup underwent a
prostatectomy in March 1999 at
Memorial Hospital. His surgeon was
Dr. Ron Brown. Dr. Thomas Letard
was the anesthesiologist at the time of
the procedure, and Hutto and Stanley
Turner, another CRNA, assisted Dr.
Letard. During the procedure, an IV line
in one of the patient’s arms apparently
malfunctioned and extravasated into
the surrounding tissue. This anomaly
went unnoticed until the end of the
procedure when the various blankets
and sheets were being removed from
the patient. Due to the problem with
the line, an additional surgery, including
skin grafting became necessary. Suit
was filed, and after the conclusion of
discovery, the defendants filed motions
for summary judgment. The trial court
granted summary judgment finding that
the plaintiff’s expert failed to articulate
the “national standard” of care and the
defendant’s breach of the standard. The
plaintiffs appealed. The matter was
assigned to the Court of Appeals who
reversed the trial court. The defendants
petitioned for certiorari which was
granted.
On certiorari appeal, the Mississippi
Supreme Court reviewed their de novo
standard for evaluating the propriety
of granting summary judgment and
then considered the standard for the
demonstration of a claim for medical
malpractice: “ the existence of a duty
on the part of the physician to conform
to the specific standard of conduct, the
applicable standard of care, the failure
to perform to that standard, that the
breach of duty by the physician was
the proximate cause of the plaintiff's
injury, and that damages to plaintiff
have resulted.” After reaffirming that
a claim for medical malpractice may
only be demonstrated by medical expert
testimony, the Court held that the skill
and care expected of a physician in
Mississippi is based upon a “national
standard.”“[G]iven the circumstances of
each patient, each physician has a duty
to . . . treat . . . each patient, with such
reasonable diligence, skill, competence,
and prudence as are practiced by
minimally competent physicians in
the same specialty or general field of
practice throughout the United States.
. .”. Palmer, 564 So. 2d at 1354
(citing Hall v. Hilbun, 466 So. 2d 856,
873 (Miss. 1985)). This standard is
one that must be testified to be based
upon an “objective” standard, and not
a “subjective” standard. The Court
reviewed the fact that the exchange
between the parties and the plaintiff’s
expert reflected that his opinion was
not based upon an “objective” “national
standard,” but on a “subjective” “personal
standard” of the plaintiff’s expert. Since
the plaintiff’s expert failed to articulate
the national standard of care on the issue
before the trial court, he was unable
to demonstrate breach and proximate
cause, and therefore the plaintiff did
not create a genuine issue of material
fact. The defendants were entitled to
summary judgment. The judgment of
the Court of Appeals was reversed and
that of the trial judge affirmed.
Comment: Justice Randolph does
a splendid job of articulating in a few
short pages the general contours of a
medical malpractice case. Lawyers that
practice in this area should keep a copy
of this decision handy because of its
pointed brevity and wealth of applicable
case citation. Automobiles/Law Enforcement/
High Speed Chase
Jerry Wayne Duckworth v. David
Carrol Warren, et al. _____So.2d
____, No. 2007-CA-01299-SCT (Miss.
May 28, 2009). Panel:
Carlson,
Lamar & Chandler, Carlson for the
Court; Pierce dissents; Appeal from
Circuit Court of Monroe County,
Judge Sharion Aycock.
Duckworth was struck by a speeding
motorist, Warren, who was fleeing
from an Alabama Highway Patrolman
who had begun and continued
his chase of Warren into Monroe
County, Mississippi from Lamar
County, Alabama. After the accident,
Duckworth was being transported by
an Emergystat ambulance, and was
involved in yet another automobile
accident. Suit was filed by Duckworth
against Warren and Bart Walker, the
Highway Patrolman that gave chase as
well as the State of Alabama Highway
Patrol. He also sued Emergystat and
the ambulance driver, Ray Stockman.
The State of Alabama and Walker filed
a motion for summary judgment which
was originally denied by the trial judge.
Later, the United States Supreme Court
decided the case of Scott v. Harris, 550
U.S. 372, 127 S. Ct. 1769, 167 L. Ed.
2d 686 (2007). Walker and the State
of Alabama moved for reconsideration
of the courts earlier denial based upon
Scott. The trial judge then granted
summary judgment. Duckworth settled
his claim with the remaining defendants
and then appealed the grant of summary
judgment to Walker and the State of
Alabama.
On appeal to the Mississippi Supreme
Court, the Court noted first its standard
of de novo review. The Court then stated
that neither Trooper Walker nor the
State of Alabama would have immunity
under the Mississippi Tort Claims Act
because the Legislature did not assign
them status as a “governmental entity”
or “employee” under the Act. As such,
the analysis of the claim against Walker
and Alabama must be reviewed and
considered under general negligence
principles. “Therefore, the Mississippi
Tort Claims Act does not apply, and
summary judgment is appropriate only
if no genuine issues of material fact exist
as to whether the police pursuit was
accomplished in a negligent manner.”
Walker and the State of Alabama argue
that Scott is preclusive of any right
of a claim against them. In Scott, the
U.S. Supreme Court held that when a
law enforcement officer has video of
the chase, and the parties differ on the
facts, if the stories blatantly differ and
the video constitutes the most accurate
account, then the Court is authorized
to adopt the video account as accurate
since no reasonable juror could adopt
the contradictory account. The Court
noted that the trial judge reviewed the
video tape of the chase and improperly
held that there was no genuine of fact.
“In applying the relevant law to today’s
case, and in viewing the pursuit video, we
are unable to conclude that no genuine
issues of material fact exist regarding
whether Trooper Walker pursued the
suspect in a negligent manner.” Since
the length of the pursuit was susceptible
to more than one interpretation and the
plaintiff’s expert opined that the chase
was conducted improvidently and
should have been terminated, a genuine
issue of fact existed as to whether
the chase was conducted negligently.
Comment: Justice Pierce, as the lone
dissent, suggested that the Legislature
should modify the statute to protect
these types of interstate pursuits, but
further reviewed the facts of the case
and would have held that there is no
reason to believe that this chase was
conducted negligently or improvidently,
and this would be so as a matter of fact
and policy. “In order to perform their
duties, officers must have the ability
to pursue suspects in a reasonably
prudent manner; otherwise, practically
speaking, no suspect could be detained
short of a voluntary surrender.”
Further, Justice Pierce observes that:
“In other words, suspects near state
borders have an incentive to evade
police and run for the border to escape
detainment and/or prosecution.” The
overriding conclusion reached by this
case is relatively simple-if lawbreakers
run into another state’s jurisdiction, “let
‘em go!” Now, no bordering state has
any incentive to pursue any suspect into
Mississippi for fear of being brought
into court with no protection from our
“negligence” laws, even when the chase
is videotaped. Certainly, now Alabama,
as well as Louisiana, Arkansas, and
Tennessee, all bordering states, have no
incentive to assume any chase into their
states from Mississippi. The practical
consequences of this holding will have
an impact on future law enforcement
actions. Absolutely nothing was said
by the Court about “qualified” and
“absolute” immunity for governmental,
non-ministerial
functions
which
typically was a focus of such claims
prior to the advent of the Mississippi
Tort Claims Act. This decision is
disappointing and fails to recognize that
Warren’s negligence caused this wreck,
and not Trooper Walker. The decision
of the trial court should have been
summarily affirmed under Scott.
Default Judgment/
Setting Aside Default
American States Insurance Company
v. Ellis R. Rogillio, ____So.2d ____,
No. 2008-IA-01049-SCT (Miss. June
4, 2009). Panel: Graves, Dickinson
& Lamar, no dissent; Appeal from
Circuit Court of Amite County, Judge
Forrest Johnson, Jr.
23
Rogillio was employed by J&N Timber
and while in the course and scope of
his employment, was operating a truck
owned by Clover Hill, L.L.C., another
employer owned company. While in
Louisiana on business, he passed a
vehicle that dropped a “vice” that flew
through his windshield and severed his
arm. It was reattached, but Rogillio still
had significant neurological issues. A
claim was made for UM benefits against
American States, the auto carrier of his
employer and Clover Hill. American
States paid $25,000 under the Clover
Hill policy, but denied coverage to
Rogillio for the accident through the
J&N Timber policy citing the “drive
other car” endorsement.
After a
protracted period where Rogillio’s
lawyer attempted to secure coverage for
Rogillio with American States, suit was
filed (March 2007). American States
failed to answer the complaint, a default
was entered, and default judgment
ultimately taken (July 2007) in the
amount of $600,000. American States
later filed an answer and motion to set
aside default (August 2007). The trial
court denied the motion of American
States, but since a hearing was not held
to liquidate damages, the trial judge
ordered that a trial would proceed on the
issue of damages only. American States
filed an interlocutory appeal, which was
granted by the Court.
On interlocutory appeal, the Supreme
Court reviewed their standard of review
in a default judgment setting, and held
that they must affirm unless the trial
judge abused his discretion. The Court
then reviewed the standard for affirming
or setting aside a default judgment
noting that the balancing test consists
of: (1) the nature and legitimacy of the
defendant’s reasons for his default, i.e.,
whether the defendant has good cause
for default, (2) whether [the] defendant
in fact has a colorable defense to the
merits of the claim, and (3) the nature
and extent of prejudice which may be
suffered by the plaintiff if the default
judgment is set aside. After noting that
default judgments are “not favored” in
the law, the Court then analyzed each
24
element superimposed over the facts of
the case. The opinion tracks the reasons
that American States failed to answer
primarily citing to an administrative
oversight. Yet, the Court held their
reasons inadequate. The “colorable
defense” component was viewed
favorably to American States by the
Court, noting that it did appear that there
was reason to deny the claim. The third,
prejudice element, was reviewed and
determined to be in favor of the plaintiff
with the Court citing that “delay equals
prejudice.” Finally the Court reviewed
the request of American States under the
provisions of Rule 60(b)(2) and noted
that the “carelessness” and “lack of
diligence” on the part of American States
simply does not satisfy the “mistake” or
“excusable neglect” component of Rule
60. Affirmed.
Comment: This Court seems to be
establishing a fairly predictable cadence
when it comes to “liberality” on one
party or the other. While the contours of
the Mississppi Tort Claims Act and the
Medical Malpractice reforms continue to
erode, the Court in this case essentially
holds this insurance company to a
“strict compliance” standard of conduct
with no recognition of the fact that past
similar motions have historically been
overturned in favor of a trial on the
merits. The Court gives little weight to
the fact that “trials are preferred,” but
then takes a very benevolent approach
in the 3 prong standards in considering
this motion. This default was clearly the
product of “clerical oversight” which
under any objective analysis would
have sufficed to overturn this default.
To assume otherwise, that American
States just wanted a default judgment
taken against them for $600,000,
when if owed no coverage, would be
unreasonable. If either Rule 60 or the
first prong of “the standards” were not
meant for a situation like this, then
there is, at law, really no such thing as
a “mistake or clerical error.” The third
prong, “prejudice,” fails as well under
any objective analysis. To compare a
less than 30 day delay in joining issue
to having someone cough up $600,000
is clearly a disparate application of
equities. Frankly, if American States
can’t count on this or any other Court
to be fair with them on this type of legal
analysis, then they should think twice
about doing business in Mississippi.
As this opinion seeks every way to keep
the plaintiff in Court, it simultaneously
seeks to find ways that require the
defendant to be there, and when there,
to pay. Rule 54(b) Certification
Colom Law Firm, L.L.C., et al. v.
Columbus Municipal School District
Board of Trustees, et al. _____
So.2d _____, No. 2008-CA-00447SCT (Miss. June 4, 2009). Panel:
Waller, Dickinson and Kitchens;
no dissent; Appeal from Chancery
Court of Lowndes County, Judge Jon
Barnwell.
The Columbus Municipal School
District (“board”) voted to retain the
services of Dunn & Hemphill (“Dunn”)
as their legal counsel through July 2005.
The Colom Law Firm (“Colom”) was
also interested in submitting a proposal
for this representation. The board voted
on the Dunn proposal at a specially
called meeting that was not properly
called or noticed.
Colom filed suit
against the board suggesting that they
failed to comply with Mississippi law in
the acceptance of the Dunn proposal and
that his firm sustained damages. Part
of his relief was to declare the contract
with Dunn void. The Chancery Court
Judge determined on a motion for partial
summary judgment filed by the board
that the acceptance of the Dunn contract
was not void and certified this aspect
of the claim under Rule 54(b). Colom
appeals.
On appeal pursuant to Rule 54(b), the
Supreme Court considered the constraints
of Rule 54(b) and noted that the trial
court had not yet ruled on the issue of
damages or even the remaining merits
of the claim. The Judge simply ruled
on the legality of the board’s contract
with Dunn and did not dispense with
the remainder of the claim. The Court
noted that the Chancellor effectively
“bifurcated” the matter between it
and the appellate court which was not
contemplated by the provisions of Rule
54(b). Since the merits of the claim
remain pending before the trial court,
the judgment though certified, was not a
true Rule 54(b) certification and should
not have been certified for an appeal.
Appeal dismissed and remanded.
Comment: The Court essentially
relied upon a reference in the Comments
of the Rule that state: “A decision that
leaves a portion of the claim pending as
to all defendants does not fall within the
ambit of Rule 54(b).” While the Court
was certainly correct in dismissing
this appeal because of the piecemeal
nature in which the matter would have
ultimately been decided, it certainly
cannot be ignored that Rule 54(b)
itself, notwithstanding the comments
reference, does appear to permit this
type of an adjudication and appeal on
less than all of the outstanding issues
between parties. The net effect of this
decision is to essentially elevate the
“comments” of the Rules to specific
“Rule” status.
Legal Malpractice/
Discovery of Lawyers File
Lisa Edmonds and Larry Edmonds
v. Edward A. Williamson, et al. ____
So.2d ______, No. 2007-CA-00751SCT (Miss. June 25, 2009). Panel:
Graves, Lamar & Kitchens; Graves
for the Court; Appeal from Circuit
Court of Kemper County, Judge
Lester Williamson.
Lisa and Larry Edmonds hired
Williamson to represent them in the
multi-district Phen-Fen litigation. An
agreement was signed by Lisa dated
November 17, 2000. Williamson
associated Ed Blackmon and Michael
Miller in the pursuit of the claim.
Through mediation and negotiation,
a settlement was reached between the
Phen-Fen defendants (AHP), resulting in
a recovery for Lisa in the amount of $1.5
million. On May 9, 2001, the Edmonds
were given their settlement money, less
attorneys fees, costs and an MDL fee,
and signed a settlement agreement and
Release. Thereafter, Lisa and Larry
became dissatisfied with their recovery
and filed suit against Williamson and
Miller through George Healy IV. The
Edmonds’ changed lawyers several
times thereafter. During the lawyer
transition, they asked for their entire
original file from Healy who refused
because the file for the Edmonds also
contained other claimants in the PhenFen litigation, but he did allow them
to review their file and make copies of
such portions belonging to them, at their
cost. The trial court ultimately granted
summary judgment to Williamson (et
al.) and ordered that Healy simply had
to make his file available to them with
copies to be made at their costs. The
Edmonds appeal.
Court reviewed the granting of the
summary judgment as a “de novo” scope
of review. The Court then reviewed the
argument of Lisa that she had the right to
revisit the issue of attorneys fees, costs
and fees for breach of the fiduciary duty
of Williamson and Miller, and held that
since Lisa signed off on the settlement
agreement and Release, that she had
waived her right to contest these issues
and alternatively had waived her right
to dispute the sundry expenses and fees
that were deducted from her share of
the settlement. Larry Edmonds argued
that since he was not a signatory to the
representation agreement, that he was not
bound by it, and still maintained a right
to pursue a claim for loss of consortium
which Williamson did not do. The Court
held that the settlement check was made
payable to both Larry and Lisa Edmonds
and that both signed it. Consequently,
Larry was compensated for his claim and
beyond that, he could prove no injury or
damages. Finally, the Court reviewed
the issue of Healy providing his file, or
not, to the Edmonds for their review and
copying. The Supreme Court reviewed
the scope of review on this topic stating
that it was one of “abuse of discretion.”
After noting the efforts made by Healy
to make their file available to them,
which included the right to make copies
at their expense, the Court held that the
trial court did not err in its production
order and affirmed it. Affirmed.
Daubert Standards/
Derivative Suits
Investor Resource Services, Inc., et
al. v. Marvin Cato, et al. _____So.2d
__________, No. 2007-IA-01458-SCT
(Miss. June 25, 2009). Panel: Waller,
Lamar & Pierce; Pierce for the
Court; Appeal from the Circuit Court
of Washington County, Judge Ashley
Hines.
Investors Resource Services sued
the defendants, Cato and Rainbow
Entertainment, Inc. arising out of their
claim that they, as minority shareholders,
were being defrauded in their investment
with the defendants. Prior to trial, the
plaintiffs moved, in limine, to keep
one of the defendant’s experts, Dr.
Glenda Glover, from testifying. It was
alleged that she was not a CPA and was
not otherwise qualified to give expert
opinion on the accounting issues in a
derivative and shareholder action that
was being pursued by Investors. The
trial judge agreed, and refused to allow
her to testify. Cato filed a motion for an
interlocutory appeal which was granted
by the Supreme Court.
On interlocutory appeal, the Supreme
Court reviewed its holding in Miss.
Trans. Comm'n v. McLemore, 863 So. 2d
31 (Miss. 2003) as to the relevancy and
reliability of the testimony of an expert
at trial. After reviewing the facts of the
case, the Court held that Dr. Glover’s
opinion, though not at the time coming
from a CPA, was “relevant.” While
noting that Dr. Glover may have inflated
her CV on the issue of her “reliability,”
the Court reviewed her credentials, noting
the many business schools attended and
degrees conferred and held that while
it may be up to another state board to
investigate the “puffing” of her resume,
she certainly had the qualifications to
25
testify concerning matters of accounting
and therefore would be allowed to do
so. The plaintiffs next argued that Dr.
Glover did not have enough expertise in
a derivative action in order to provide
competent and accurate testimony about
these types of suits. The Court reviewed
the fact that indeed the type of recovery
and defenses in a derivative suit are
challenging to understand, but that in
this case, the plaintiffs had alleged an
entitlement to individual shareholder
damages which would be something that
Dr. Glover could calculate competently
enough. Reversed and remanded.
Comment: While the Court did not
say so, it did not find “disqualifying”
the fact that a professional was not
“certified” in his/her particular field.
This certainly could also mean that one
taking a “board” and failing it might be
worse off than had the board not been
taken at all. The Court placed great
emphasis on the fact that Dr. Glover
had a long and distinguished career
in academia, but acknowledged that
her CPA license having lapsed was
not a disqualifying factor. This case
really didn’t do one thing or another in
connection with the Daubert standard.
If anything, it served to slightly lessen
the type of qualification needed for an
expert to get past Daubert.
Workers’ Compensation/
Statute of Limitations
Timmy Prentice v. Schindler Elevator
Company, et al. _____So.2d ____, No.
2007-CT-00815-SCT (Miss. June 25,
2009). Panel: En banc, Carlson for the
Court; Kitchens concurs result only
joined by Waller and Graves; Appeal
from Circuit Court of Hinds County,
Judge Swan Yerger.
While working for Schindler in April
1998, Prentice was injured when he fell
fifteen feet from a suspended portable
toilet that had been lifted after he
entered. Apparently not knowing that it
had been lifted, he stepped out and fell
resulting in his injury. After the fall, he
told his supervisor of the mishap, and
26
was told by his supervisor to obtain a
“report of injury” form, and send it to
Schindler’s Alabama office. He did so
but was then out of work for more than
5 days. Prentice later left the employ
of Schindler, but then returned to work
for the company in its Shreveport,
Louisiana office. Some of Prentice’s
medical bills were originally paid by
Schindler and Zurich, its carrier, but
payment on medical bills eventually
stopped. No indemnity benefits were
ever paid. In 2002, Prentice files a
“Petition to Controvert.” Schindler
and Zurich asserted before the ALJ that
the two year limitations period [§71-335(1)] had expired. The ALJ indicated
that the two year limitations period did
expire, but that the employer/carrier
were estopped from asserting the statute
because they did not properly comply
with reporting requirements of §71-367(1). The Full Commission affirmed.
Schindler/Zurich appealed to the Circuit
Court who determined that the statute
of limitations had run and dismissed.
Prentice appealed to the Supreme Court
who assigned the appeal to the Court of
Appeals. The Court of Appeals reversed
and reinstated the claim noting that the
failure of the employer to comply with
§71-3-67(1) would result in an estoppel
from asserting the defense of the
limitations of actions. Schindler and
Zurich appeal.
Court stated that their sole reason for
reviewing the decision was to simply
refine the legal precedent on this topic,
and held that while the opinion of the
Court of Appeals was correct, the failure
to properly report under §71-3-67(1), is
only one factor in determining whether
the employer/carrier is estopped from
asserting the statute of limitations.
Another factor highlighted by the Court
was whether compensation was actually
paid to the employee. There was none.
Martin v. L&A Contracting Company,
162 So. 2d 870 (1964); Holbrook ex rel.
Holbrook v. Albright Mobile Homes,
Inc., 703 So. 2d 842, 845 (Miss. 1997).
The Supreme Court stated then that
simply failing to file the appropriate
statutory report is just one factor to
look at when determining the running
of the statute. In this case the plaintiff
also contacted the carrier and was told
that they would be handling the bills as
they came in. Nothing was ever said or
done that suggested to the employee that
the employer was taking a petition that
controverted right to receive workers’
compensation benefits. Affirmed.
Comment: While Judge Kitchens
takes a very strict approach to the
estoppel issue in this matter by
suggesting that the employers failure to
file the appropriate report, alone, justifies
the imposition of estoppel on the part of
the employer in asserting the limitations
defense, at least his position provides
some degree of clarity to the bench
and bar. No doubt due to this decision,
after an injury employers will file these
reports, if nothing more than to start the
running of the limitations period.
Legislative Intent for Private
Cause of Action
Tunica County, Mississippi v. Christina
Bell Gray, et al. ____So.2d ____, No.
2008-CA-00952-SCT (Miss. July 23,
2009). Panel: En banc, Lamar for
the Court; Kitchens dissents, joined
by Chandler; Graves dissents w/o
opinion; Appeal from Circuit Court
of Tunica County, Judge Charles
Webster.
Clarence Leon Bell died while in the
custody of the Tunica County Sheriffs
Department on April 12, 2001 after
being arrested at a local casino for
disturbing the peace. An autopsy was
performed and the body later cremated
on April 20, 2001 upon the approval of
the Board of Supervisors pursuant to
the provisions of MCA §41-39-5 and
after the County Coroner was unable
to locate any family members. Family
members contacted the coroner on May
4, 2001 to claim the body, but by that
time, Bell had been cremated. Suit
was filed on June 17, 2004. The Circuit
Court Judge conducted a bench trial and
awarded the family members $5000 a
piece in damages for a total of $20,000
finding that the County of Tunica had
failed to follow the statutory waiting
period. Tunica County appeals.
On appeal to the Mississippi Supreme
Court, Tunica County argued that the
statute utilized by the plaintiffs to
predicate liability did not provide a
private right of action and that as such,
the trial court was in error in awarding
damages to the family. The Court
reviewed the provisions of §41-39-5 that
mandate a waiting period of 5 days after
notification to the Board of Supervisors
and observed that this notice did not
occur until April 16, 2001. The body
was cremated on April 20, only 4 days
after the notification was provided to
the Board. While the Court held that
the county coroner did not wait the
proscribed 5 day period, it nonetheless
reviewed the provisions of the Act to
determine if a “private right of action”
could be gleaned from the statute. “‘[T]
he general rule for the existence of a
private right of action under a statute
is that the party claiming the right of
action must establish a legislative intent,
express or implied, to impose liability
for violations of that statute.’ Doe v.
State ex rel. Miss. Dep’t of Corrections,
859 So. 2d 350, 355 (Miss. 2003).” The
plaintiffs contended that the waiting
period was intended to allow enough
time for the relatives to claim the body,
while Tunica County asserted that the
statute was enacted to provide for the
public health. The Court held that the
plaintiffs had not demonstrated that the
statute was intended by the Legislature
to provide for a private cause of action
and concluded that the trial court was
in error in finding such and awarding
damages. There is no private cause of
action that can be gleaned under the
provisions of §41-39-5 and therefore,
the award to the plaintiff is vacated.
Reversed and rendered.
Comment: Justice Kitchens dissents,
joined by Justice Chandler and would
hold that by virtue of the fact that the
statute contains no “mandate” to act
in a certain way by the County, that
the statute was “clearly” intended to
provide for a private right of action,
and therefore the award of damages to
the family for failure of the County to
await the mandatory five day waiting
period was justified.
Statute of Limitations/
Vanishing Premium Case
Daniel Weathers v. Metropolitan Life
Insurance Company, et al. ______
So.2d ______, No. 2007-CT-01180SCT (Miss. July 2, 2009). Panel: En
banc, Lamar for the Court; no dissent;
Appeal from Lowndes County Circuit
Court; Judge Lee J. Howard.
Weathers purchased an insurance
policy from Metropolitan through
its agent, McKie. The policy was
purchased in 1994, and Weathers
alleges that he was defrauded because
the premiums would not “vanish”
after ten years, as was represented
by McKie. Weathers became aware
that Metropolitan was involved in
class action litigation arising out
of “vanishing premium” policies
in 1999. He opted out of the class
action litigation and pursued his own
claim based upon the allegation that
McKie had misrepresented the terms
of the policy thereby suggesting that
he had been defrauded. The policy
did indicate that the “agent” could not
change the terms of the policy. The
policy also did expressly spell out that
there were other circumstances that
would require additional premium
payments by the insured beyond 10
years. Metropolitan filed a motion
for summary judgment suggesting
that the plaintiff should have known,
based upon a reading of the insurance
policy, that he was “lied” to when
the policy was delivered and did not
comport with the assertions of McKie,
the agent. The Circuit Court granted
Summary Judgment and dismissed the
case. The plaintiff appealed and it was
affirmed. The plaintiff filed a petition
for certiorari which was granted by the
Supreme Court.
Court noted their de novo standard of
review and featured MCA §15-1-49
that provides for a three year statute
of limitations which incorporates a
discovery rule for fraud. The Court
held that while the Court of Appeals
applied the correct statute, they made
the assumption that the “fraud” was
discernable when the policy was
delivered. The Supreme Court held
that if the policy was ambiguous on the
issue of the vanishing premiums, such
that the “fraud” could not be known,
then the limitations period would not
run until the “fraud” was “discovered”
which the Court held was an issue of
fact. Since the policy did provide that
there were other events that would
trigger the payment of premiums for
more than 10 years, and that these
events were not necessarily inconsistent
with the statements of McKie, then the
fraud would not be known until an event
occurred that revealed the fraud. This
is an issue of fact that must be decided
by the jury. Reversed and remanded.
Comment: Either Weathers has a
claim for fraud or he doesn’t, based
upon the terms of the policy vs. the
statements of McKie. If the insurance
policy required premium payments,
by its terms, beyond the 10 years
represented by McKie, then the
“fraud” should have been known at
the time of the delivery of the policy
and thus the limitations period begins
to run at the time of delivery of the
policy. What Weathers essentially
succeeded in doing, was preserving a
right to pursue a “fraud” claim, without
having to prove “fraud” merely by
alleging that the statements of McKie
were not necessarily “fraudulent”
only “unexpectedly false.” This lack
of expectation on the part of McKie
that the policy would “underperform,”
even though he admitted that he might
have made this representation, simply
is “consistent” with the terms of the
policy.
This case is just another
example of the apparent hostility of
the Supreme Court toward disposition
of claims under Rule 56. In this case,
27
the Court essentially found a fraud
with no fraud thus deferring the period
of limitations to the point when the
plaintiff finally realized that he might
have made a “bad investment” and no
longer wanted to assume the risk of it.
Arbitration
Covenant Health & Rehabilitation of
Picayune, et al. v. Estate of Mittie M.
Moulds, et al. ______So.2d ______, No.
2007-CT-01250-SCT (Miss. August 6,
2009). Panel: En banc, Randolph for
the Court; Graves specially concurs;
Appeal from Circuit Court of Pearl
River County, Judge R.I. Pritchard.
Mittie Moulds was admitted to the
Picayune Convalescent Center in
November 2000 and remained there
until just before her death in September
2004. She was admitted by her son,
James Braddock, who signed the
admission paperwork and then re-signed
subsequent paperwork, as revised,
submitted to him in 2002. After her
death in 2004, Braddock asserted a claim
against the nursing home for negligence,
then filed suit. The nursing home moved
to compel arbitration which was denied
by the trial court. The defendant filed
a motion for interlocutory appeal which
was granted by the Supreme Court and
then assigned to the Court of Appeals.
The Court of Appeals reversed the
decision of the trial judge and compelled
arbitration. Moulds-Braddock petition
for certiorari.
Supreme Court defined again their
scope of review and began a lengthy
discussion concerning the virtues of
arbitration, but reserving their right
to strike such a provision, or even a
contract, that contains such provisions
when unconscionable. The Court
reviewed several provisions in the
resident admission agreement noting
that several were unconscionable, some
even being admitted so by the nursing
home. The Court cautioned that any
arbitration agreement should be written
to provide intrinsic fairness for the
28
parties and that overreaching provisions
in an agreement will not be sanctioned.
In this agreement, the trial judge and
the Supreme Court held that the entire
agreement contained multiple provisions
of adhesion and were unconscionable
and therefore the provision providing for
arbitration was properly denied by the
trial court. Court of Appeals decision
is reversed.
Comment: The Supreme Court in this
case seemed to chide the defendant for
attempting to overwhelm the contract
with a variety of protectionist features
one of which included a provision for
arbitration. Justice Randolph certainly
gave note to the fact that arbitration
agreements are “favored” and that any
attempt to routinely find an arbitration
agreement per se unconscionable, may
well be improper under the provisions
of the FAA. Yet, while giving deference
to the right of the parties to agree on a
provision to arbitrate, the Supreme
Court refused to uphold this agreement
as stated.
Insurance/Priority of Coverage
Guidant Mutual Insurance Company
v. Indemnity Insurance Company of
North America _____So 2d. _____, No.
2007-CA-01593-SCT Consolidated
with No. 2006-CA-01472-SCT (Miss.
June 25, 2009). Panel: Carlson,
Lamar & Chandler; Chandler for
the Court; No dissent; Appeal from
Circuit Court of Marshall County,
Judge Henry Lackey.
James Hingle was a volunteer fireman
and was en route to a fire in his personal
vehicle on November 22, 2004, when
he collided with another vehicle being
driven by Sam and Ruby Anderson. The
Anderson’s sustained serious injuries
and ultimately filed two separate suits
in November 1995 – one against Hingle
individually, and another against him
and Marshall County. Guidant insured
Hingle on his personal vehicle with a
primary policy of 250/500 and another
for a $1 million personal umbrella. INA
provided business automobile coverage
through the county in the amount of
$300,000. Titan Indemnity provided
coverage to the Board of Supervisors in
the amount of $300,000. Both the INA
and Titan policies provided coverage
for “non-owned” vehicles. Ultimately
Guidant settled all of the suits for
$750,000 crediting various amounts
to its primary and umbrella policy for
Hingle. While the suits were pending,
INA filed a declaratory judgment
(dec) action seeking to adjudicate
its obligation to defend and provide
coverage to Hingle and the County
as opposed to the Guidant and Titan
policies. Motions for summary judgment
were filed but held in abeyance pending
the determination of the liability and
damages in the underlying Anderson
suit. After settlement, Guidant made
demand on INA to pay their policy
limits of $300,000 as a “co primary”
insured.
The trial court in the dec
action ultimately denied all motions for
summary judgment finding that Guidant
was not entitled to be indemnified
until their primary and umbrella were
exhausted and that INA was not obliged
to pay but was required to defend their
insured (Marshall County) in the suit
in which they were a party. Guidant
appeals, INA cross appeals.
Court reviewed their scope of review
(de novo). The Court then reviewed
the policy language of both the Guidant
and Titan policies which contained
very similar “other insurance” clauses,
which normally result in a “mutual
repugnancy” and proration of coverage
as primary carriers under each policy.
However, the Court stated that the policy
that attaches to the owner of the vehicle
is “primary” in Mississippi [Travelers
Indem. Co. v. Chappell, 246 So. 2d
498, 504 (Miss. 1971)], and therefore,
Guidant was “primary,” not INA. The
Court next considered the argument of
INA that the Guidant “umbrella” policy
must be exhausted before their policy
applies. To this, the Court noted that
the “umbrella” policy is not considered
“other insurance” in a “primary” policy
and that INA’s policy was next in line
as primary after the primary policy
of Guidant was exhausted and before
application of the umbrella policy.
INA next argued that Guidant was a
“volunteer” and that they should not be
obliged to reimburse or contribute to
any settlement undertaken by Guidant.
The Supreme Court stated that “... INA
is liable only for contribution up to its
stated limits of liability, if Guidant can
prove it was legally liable to settle, and
that the amount it paid the injured party or
parties was reasonable.” Upon this, the
Court held that remand was appropriate
to determine these facts.
INA next
argued that Guidant was obliged to
repay the attorneys fees that it paid in
the defense of their insureds, Marshall
County, in the underlying case. The
Court held that since the Guidant policy
was primary, that it indeed did owe the
duty to defend. INA was entitled to be
reimbursed for its attorneys fees upon the
presentation of sufficient documentation
such that Guidant could determine the
“reasonableness” and the “necessity” of
the fees. Reversed and remanded.
Comment:
Very
complicated
insurance case with multiple policies
at play. Based upon the restatements
of the insurance policy, it certainly
appears that the Court decided this case
appropriately. The only issue that could
have been resolved a little more “cleanly”
would have perhaps been to simply
assign “primary” status to all “primary”
policies and prorate the exposure and
then the umbrella policies simply assume
the position that they were intended for.
In this matter, it appears that the Court
assigned the Guidant policy as “first
primary” and then the INA policy as
“second primary.” No real resolution
was had concerning whether the Titan
policy with its ostensible coverage
might even had been “third primary.”
Over the Guidant and the INA policies,
it appears that the Guidant umbrella
was a true umbrella policy. Without
a very formulaic approach, which the
Court only partially adopted, it is likely
that this case will find its way back
to the Court at some point in time for
additional resolution.
Failure to Prosecute/
Legal Malpractice Claim
Ann Odem Hillman v. William B.
Weatherly, _____So.2d _____, No.
2008-CA-00589-SCT (Miss. August
13, 2009). Panel: Graves, Kitchens
& Chandler; Chandler for the Court;
Appeal from the Circuit Court of
Harrison County, Judge Roger T.
Clark.
Hillman filed suit against Weatherly
arising out of his handling of her case
for personal injuries sustained from an
automobile accident in September 1996.
Her allegation was that Weatherly
simply failed to timely pursue her claim
allowing the statute of limitations to run.
The original malpractice suit was signed
by Spyridon (a Mississippi lawyer)
and Salas, a lawyer licensed only in
Louisiana. Throughout the course of the
case, the case development was plagued
by discovery motions to compel, feigned
settlement discussions, withdrawal
and lack of timely replacement of
Mississippi counsel, depositions never
taken, and two motions to dismiss for
lack of prosecution. In February 2008,
the Circuit Judge dismissed the suit, with
prejudice, for failure of prosecution.
The plaintiff appeals.
noted its scope of review, being abuse
of discretion. It then catalogued the
many attempts at the starting and then
stopping of discovery, including the
lack of timely responses to discovery
being filed, and inability of the plaintiff
to secure Mississippi counsel in a timely
fashion. The Court was apparently
impressed with the fact that the circuit
clerk had twice moved to dismiss the
case for lack of prosecution and noted
the considerations controlling their
evaluation, “[t]here is no set time limit for
the prosecution of an action; a dismissal
with prejudice will be affirmed only if
there is a showing of a clear record of
delay or contumacious conduct by the
plaintiff, and where lesser sanctions
would not serve the best interests of
justice.” Am. Tel. & Tel. Co. v. Days Inn
of Winona, 720 So. 2d 178 (Miss. 1998).
After detailing the considerations
that justified the dismissal, the Court
reviewed the trial judges dismissal of the
claim with prejudice and held that the
delay of the plaintiff in this case resulted
in prejudice to the defendant since now
there were medical documents that were
unavailable that disputed the testimony
of the plaintiff as to her preexisting
medical conditions. The decision of the
trial court is affirmed. Affirmed.
Comment: Watch for this plaintiff
to pursue a second legal malpractice
claim arising out of the mishandling of
the first. The decision of the Supreme
Court affirming that of the trial judge
was clearly correct.
Medical Negligence/
Notice of Claim
Salvador Arceo, M.D., et al. v. Myrtis
Tolliver, as Administratrix of the
Estate of Tommie C. Tolliver, et al.
_____So.2d _____, No. 2008-CA00224-SCT (Miss. August 20, 2009).
Panel: En banc, Waller for the Court,
Randolph concurs; Graves dissents
joined by Kitchens; Appeal from
Circuit Court of Hinds County, Judge
Bobby Delaughter.
On July 9, 2002 Tommie Tolliver was
admitted to St. Dominic’s Hospital in
Jackson and later died on July 11, 2002
from meningitis and sepsis. A complaint
was filed on June 4, 2004. It was not
preceded by the “notice of claim.” An
amended complaint was filed on June
25, 2004 and a second on July 23,
2004. The defendants filed a motion
to dismiss which was denied by the trial
court and then appealed. The Supreme
Court reversed finding that Tolliver had
failed to comply with the statutory presuit notice requirements dismissing the
complaint. The mandate was issued on
March 15, 2007. Prior to the issuance of
the mandate, Tolliver sent a “notice of
claim” letter dated February 28, 2007.
This notice simply stated that the basis
of the claim was one for negligence
and invited settlement discussions. This
29
present action was commenced on May
9, 2007. The defendants filed a motion
to dismiss for failure of the plaintiff to
substantially comply with the notice of
claim provisions of §15-1-36(15). The
Circuit Court Judge held that the notice
did not substantially comply with the
provisions of the statute and dismissed
the claim without prejudice, finding that
the statute of limitations had not expired
under the provisions of the Mississippi
“savings statute.” §15-1-69 and that
suit could be refiled. Arceo and the
defendants appealed complaining that
the dismissal was not “with prejudice.”
Court reaffirmed their “de novo”
standard and reviewed 4 separate
errors/issues that were featured by
the defendants. The first issue dealt
with the sufficiency of the notice of
claim. The Court reviewed the notice
of claim submitted by the plaintiff
prior to the issuance of the “mandate”
on the initial appeal, and held that it
failed to “substantially” comply with
the provisions of §15-1-36(15). Since
the notice of claim did not substantially
comply with the statute, notwithstanding
that the parties had been defending the
matter for some years, the plaintiffs
notice was in effective “no” notice and
therefore insufficient. “Just as there
are no exceptions to providing notice
vel non, there are no exceptions to
the requirement that notices provide
information sufficient to fulfill the
statutory notice purposes. The mandatory
nature of the notice requirement is such
that what the recipient may or may not
actually have known is irrelevant.” The
plaintiff next argued that the “notice”
submitted served to stay the running
of the statute of limitations avoiding
the barring of her claim. The Court
held that the filing of the suit (June 2,
2004), served to toll the limitations
period which began to run again when
the Supreme Court issued its “mandate”
(March 15, 2007). At that time, there
was 38 days remaining on the statute
and the claim would have been barred
on April 23, 2007. The Court held that
the “notice” filed by the plaintiff on
30
February 28, 2007 did not comply with
the statute and therefore did not serve to
toll the running of the statute again. As
such, when the second complaint was
filed, May 9, 2007, it was barred by the
statute of limitations. The plaintiff next
argues that the “savings clause” under
MCA §15-1-69 allows the plaintiff
to file his suit again since the earlier
dismissal was not on the merits and
was for a procedural issue. The Court
highlighted the “duly commenced”
language of the statute and determined
that the “savings statute” would apply
to this case since the original dismissal
was a “matter of form,” and began to
run “concurrently” with the remaining
38 days on the original statute when the
mandate was issued (March 15, 2007).
The savings clause therefore provided
that the plaintiff had until March 14,
2008 to refile the claim. Since her
second complaint was filed on May
7, 2007, the savings statute made this
permissible.
The defendants next
argue that it was error for the trial
court not to have dismissed the claim
“with prejudice” citing the fact that
the limitations period had run. The
Court noted that the “savings statute”
authorized the filing of the second suit
in May 2007, but it too was subject to
the same defenses that existed against it
as the first (i.e. non compliance with the
notice of claim provision of the statute).
The Court noted that the savings statute
did not permit the refiling of successive
claims and since the second suit was
properly dismissed for failure of the
plaintiff to comply with the “notice
of claim” provision, that the savings
clause could not save now a third
attempt at filing. “By the plain terms
of the savings statute, its grace does not
extend to save a second suit.” “Tolliver
I was “the original suit.” Tolliver II was
a subsequent suit, permitted to be filed
because of the savings statute. Having
used the opportunity to refile, Tolliver II
was subject to the same rules of law as
any other case, including application of
the statute of limitation. That limitation
period having expired with no further
grace available to Tolliver, the trial court
should have dismissed this cause with
prejudice.” Reversed and rendered.
Comment: Justice Randolph correctly
argues in his concurrence that it is error
to assume that the original complaint
was properly filed when it occurred
absent a proper notice of claim. Since
the claim was not “duly commenced,”
the savings statute simply cannot apply
to breathe life into even the first suit. He
goes on to say that the Court’s holding
finding the lack of a condition precedent
as a “matter of form,” constitutes “...an
unspoken repudiation of the proposition
that the legislatively-mandated presuit-notice requirements of Section
15-1-36(15) constitutes ‘a condition
precedent to filing particular kinds of
lawsuits’.” The decision of the majority
he says “....grants litigants license to
spurn legislative directives, and rewards
those who intentionally fail to follow
statutorily-prescribed conduct. ‘While
the right under our state and federal
constitutions to access to our courts is
a matter beyond debate, this right is
coupled with responsibility, including
the responsibility to comply with
legislative enactments, rules, and judicial
decisions.’ Arceo, 949 So. 2d at 697.
Nullification of statutory requirements,
absent constitutional infirmity, is a
decision for the Legislature, not this
Court.” Justice Graves, joined by
Justice Kitchens, seemed to ignore the
fact that the plaintiff did not even make
an attempt to comply with the statute
suggesting that the defendants had been
defending this matter for years, and were
fully aware of the nature of the claim
and therefore, the plaintiff “substantially
complied” with the statute. Just when
you thought it was “safe to go back into
the water,” this Court does yet another
“bout face” and applies the “savings
statute” to an “unduly commenced”
claim by finding that the total failure
to comply with the statute is a “matter
of form” and therefore the claim tolled
until disposed of by final judgment or
order. The net effect of this holding
is to essentially, as Justice Randolph
suggests, forgive incompetence on the
part of those who “spurn legislative
directives.” It is truly amazing to see the
evolution of the Mississippi Tort Claims
Act which many of us have seen from
the beginning until present. From the
engrafting of an “discovery rule” into
the MTCA, to decisions suggesting that
the defendant must move for a “stay of
proceedings,” from strict compliance to
substantial compliance, back to strict
compliance and now again back to
substantial compliance, and now issues
of tolling and savings, the evolution is
quite dizzying.
Sovereign Immunity/
Limitations of Actions
Nina Price, et al. v. Steven Clark,
M.D., et al. _____So.2d _____, No.
2007-CA-01671-SCT (Miss. July 23,
2009). Panel: En banc, Carlson for
the Court; Graves dissents; Dickinson
concurs, Randolph concurs; Appeal
from Circuit Court of Bolivar County,
Judge Charles Webster.
Albert Price died on August 14, 2004
as a result of a pituitary tumor. His
wife, Nina, filed suit on August 31,
2004 having preceded her complaint
with a notice of claim letter served the
day before. The original complaint
named Clark, various clinics and other
physicians. Dr. Clark was later served
with summons in December 2004. A
second notice of claim was served on
Clark and additional defendants in
February 2005. An amended complaint
was filed without permission in June
2005. A second amended complaint was
filed in November 2005. All defendants
filed motions to dismiss in December
2005 asserting that the plaintiff had failed
to properly follow the requirements
of §15-1-36(15) as to prior notice of a
claim and that the plaintiffs further failed
to precede their complaint against Tort
Claims Ac defendants with a properly
constructed “notice of claim.” After
additional motions and amendments
filed, the plaintiff dismissed some
defendants voluntarily, and the Court
dismissed the remainder of the claim
for failure of the plaintiff to comply
with the limitations period applicable to
claims against tort claims and non tort
claims act defendants. Price appeals.
Court first reviewed the dismissal of
the first complaint filed by the plaintiff,
without prejudice, for failure to precede
it with a 60 day notice of claim letter.
Since the Court is applying a “strict
compliance” standard, regardless of
what the defendants knew or did not
know, the trial judge did not err in
dismissing the claim without prejudice.
The Court then reviewed the compliance
by the plaintiff of the “notice of claim”
requirements under §11-46-11(2) as to
the MTCA defendants, and held that
the plaintiff did not strictly comply
with the requirements of the statute
and therefore, her notice of claim to the
MTCA defendants was insufficient. The
plaintiff next argues that her filing of the
first, August 2004, complaint, tolled the
statute of limitations and therefore only
upon dismissal of that or any subsequent
complaint, will the limitations period
resume running. The Supreme Court
noted that the trial court did not accept
the notion that the first complaint was
properly filed and was thus a nullity
which resulted in a dismissal of the
complaint against the defendants with
prejudice. The Supreme Court held that
the first complaint did toll the limitations
period, and that until dismissal, the
tolling period would not begin to run
again. The Court next reviewed the
component of the trial courts dismissal
that focused on the failure of the various
amendments joining additional TCA
and non TCA parties to “relate back.”
The trial court held that the plaintiff
was on reasonable notice that some of
the defendants, as later joined, were not
“substituted” parties, but were actually
“newly joined” into the suit, were
untimely and as such, claim against
them were barred since the limitations
period had run. The plaintiff argued
that the defendants had waived their
limitations and “notice” defenses, by
participating in the litigation. The
Court observed that it was the plaintiff
that requested that the defendants defer
response to the complaint until well late
in the litigation and as such, there was
no waiver. Finally, the Court considered
the plaintiffs “open courts” argument
and held that the legislative filing
requirements were not unconstitutional
and therefore the open courts provision
of the Mississippi Constitution were not
violated. Affirmed in part, Reversed
and remanded in part.
Comment: The total opinion in this
matter went 66 pages and is a must read
for those doing Medical Malpractice
and Tort Claims Act claims. The
circuitry of the facts, which included
tort claims act defendants and non tort
claims act defendants, can become
extremely convoluted in considering
this fact summary and therefore, this
summary simply opted to “hit the
high spots.” The high spots of this
opinion relate primarily to the fact
that the Court has now sanctioned an
unauthorized filing of a complaint as
a tolling mechanism, but affirmed the
strict compliance expectations for the
notice of claim provisions as well as the
statutory waiting period prior to filing
of the complaint. This decision also
contains an excellent discussion under
Womble v. Singing River concerning
the difference between “new” and
“substituted” parties, contrasting the
difference between Rule 9(h) and
15(c) MRCP. Justices Dickinson and
Randolph file interesting concurring
opinions, the former agreeing with the
concept of tolling by filing a complaint,
while the later expresses bewilderment
as to why the first complaint had any
vitality at all. Justice Graves dissents
to the holding of the majority and again
shows his dislike of the Tort Claims
Act and the responsibilities that it
places on the lawyers and provides
encouragement to the plaintiffs bar on
the “open courts” concept. The real
departure from prior case law with this
decision is the fact that an improperly
filed complaint apparently has enough
legitimacy to toll the limitations periods
from running, and allows the plaintiffs
lawyer to simply ignore the obligation
to timely file a notice of claim.
31
Sovereign Immunity/
Notice of Claim
Leon Stuart, Individually, et al., v.
The University of Mississippi Medical
Center, _____ So. 2d _____, No.
2007-CT-00864-SCT (Miss. August
20, 2009). Panel: En banc, Graves
for the Court; Randolph specially
concurring; Appeal from Circuit
Court of Hinds County, Judge Bobby
Delaughter.
Shirley Stuart was admitted to
University Medical Center (UMC)
on December 10, 2002 with difficulty
breathing and died on December 11,
2002 from a pulmonary embolism. On
December 4, 2003, UMC was served
with a “notice of claim” on behalf of the
wrongful death beneficiaries of Shirley
Stuart. On January 14, 2004, suit was
filed. In February 2004, UMC filed their
answer which included the defenses of
the Tort Claims Act, including the failure
of the plaintiff to wait 90 days from
the “notice of claim” before filing suit.
Discovery proceeded and then UMC
filed a motion for summary judgment
on June 14, 2006 arguing that the
plaintiff failed to file after the lapsing of
the 90 day waiting period. The circuit
court granted the motion of UMC. The
plaintiff appealed. The appeal was
affirmed. The plaintiff petitions the
Supreme Court via certiorari.
Supreme Court noted their de novo
standard of review and featured that
past opinions of the Court had held that
compliance with the 90 day waiting
period was “jurisdictional.” Carr v.
Town of Shubuta, 733 So. 2d 261,
265 (Miss. 1999) (citations omitted)
(stating that a “notice of claim statute,
like a notice of injury statute, ‘is not
a statute of limitation but imposes
a condition precedent to the right to
maintain an action’” and finding that
plaintiff had substantially complied
with Section 11-46-11(2)); Jackson
v. Lumpkin, 697 So. 2d 1179, 1181
(Miss. 1997). The Court detailed the
32
participation of UMC in the discovery
process with included the selection of
a trial date and entry of a scheduling
order. The Court OVERRULED Carr
and Lumpkin, finding that the waiting
period proscribed by the MTCA was
a substantive requirement of the Act
that was “waivable” Since UMC had
failed to raise their appropriate defenses
under the Act until over 2 years after
filing their answer, it had waived their
jurisdictional argument. The decision
of the trial court was therefore reversed.
Comments: This Court again appears
to weaken the Tort Claims Act and the
dictates of the Legislature in enacting
the reforms imposed with the advent
of the MTCA. There is nothing in the
statute that suggests that the provisions
of the statute are “waivable,” and
unless the Legislature returns to address
the “piecemeal” dissolving of the
protections of the Act, the “stare decisis”
decisions of the Court will be practically
engrafted into the Act. “Waiting for
that length of time and doing nothing
to prevent the case from proceeding
is unreasonable and inexcusable.”
This Court is expanding the concept
of waiver again, and the practitioner
would do well to make sure that any
suspicious extension of any theory of
the plaintiff beyond the specific dictates
of the statute (such as the demand for
a jury trial, an entitlement to punitive
damages, etc.) should be pretermitted
immediately with a motion to dismiss
or for summary judgment.
Administrative Law/PERS Appeal
Public Employees’ Retirement System
v. Jannie M. Dishmon, ____So.2d
_____, No. 2008-CC-01183-SCT
(Miss. August 23, 2009). Panel: En
banc, Pierce for the Court; Lamar
dissents; Appeal from the Hinds
County Circuit Court, Judge Tommie
Green.
Dishmon was an employee of the
Warren County DHS and responsible
for qualifying various people for
AFDC and Food Stamps. In July 1996,
Dishmon took a leave of absence due
to her diabetic condition, osteomyelitis,
cellulitis, vascular disease, arthritis,
carpal tunnel syndrome, anxiety and
depression. In March 1997, she filed a
claim for disability benefits under the
Public Employees Retirement System.
The medical review board and disability
appeals committee both denied her
request for disability.
Dishmon
appealed the committee’s decision to
the Circuit Court of Hinds County who
reversed finding that the decision was
not supported by substantial evidence
and was arbitrary and capricious.
PERS appealed to the Supreme Court
who later reversed finding that one of
the physicians who sat on the medical
review board also sat on the appeals
committee and this failed to afford
Dishmon effective objective review
of the initial decision of PERS on her
claim for disability. On remand, the
review board and appeals committee
conducted again their inquiry and review
and determined that Dishmon was not
disabled as defined by statute [§25-11113]. Dishmon again appealed their
decision to the Circuit Court who again
found their decision not supported by
substantial evidence and was arbitrary
and capricious. PERS appeals.
Court defined their scope of review as
limited to a determination of whether
the decision of the administrative body
was (1) not supported by substantial
evidence, (2) arbitrary or capricious,
(3) beyond the scope or power granted
to the agency, or (4) violates one’s
constitutional rights. “A rebuttable
presumption exists in favor of the
action of an administrative agency,
and the burden of proof is on the party
challenging an agency's action.” The
Court further observed that “[t]his
Court is not entitled to substitute its
own judgment for that of PERS, and it
is impermissible for a reviewing court to
reweigh the facts of the case.” Defining
the contours of their review, the Court
noted that it was not its obligation to
determine the existence of “substantial
evidence” of “disability, “but whether
the record contains substantial evidence
to support PERS’ finding that Dishmon is
not disabled.” The Court then reviewed
the substance of the proof put on by
Dishmon that included the existence
and origin of all of the health complaints
that she had, and the diminishment
of each by PERS in their order that
noted that none of the conditions are
disabling or they are controlled by
medication and diet. The committee
essentially ignored the opinions of
Dishmon’s treating physician, disputing
his conclusions and even diagnosis.
While not specifically saying so, the
Supreme Court intimated that it was
the responsibility of the committee to
conduct an independent examination of
Dishmon were they to ignore her own
treating physician, but went on to hold
that the decision of the committee did
not contain “substantial evidence” to
support the denial of disability. “While
PERS correctly points out that it is not
required by law or regulation to secure
an independent medical examination,
such failure may constitute a factor in
determining whether or not the agency
has presented sufficient evidence to
support its finding that the claimant is
not disabled.” “This Court finds that the
Committee’s analysis is without support
in the record. When coupled with the
fact that PERS chose not to exercise
its right to an independent medical
examination, this Court is unable to find
that PERS’ decision denying disability
benefits in this matter is supported by
the evidence.” Affirmed.
Comment: Justice Lamar dissented
and suggested that the standard of
review was simply not followed in this
case. She argues that the PERS board
is the “fact finder,” not the Court,
and that obliquely requiring PERS to
come forward with its own evidence
that Dishmon was “not” disabled,
impermissibly shifts the burden to
PERS.
The decision of the Court
clearly seemed to hinge on the fact that
the board did not apparently attempt
to support the record with a contrary
finding and determination, and instead,
relied upon the physician members of
the committees to review the medical
proof. The apparent disconnect in this
case is that the committee members
believed themselves capable to
appropriately reviewing the evidence
presented and making a decision, while
the Circuit and Supreme Court were
more interested in what the “record”
had to say. Apparently the two were not
necessarily compatible.
Sanctions/Delays in Rulings
Miss. Comm. on Judicial Perf. v. Judge
William Agin, _____So.2d _____, No.
2009-JP-00082-SCT (Miss. September
19, 2009). Panel: En banc, Lamar
for the Court; appeal from the Miss.
Comm. on Judicial Performance,
Judge William Lackey.
Judge William Agin, County Court
Judge in Madison County, was issued
Madsen, Kneppers & Associates, Inc., a multidisciplinary construction consulting firm, provides
creative solutions to the Construction, Legal and Insurance industries.
Our Service Solutions
• Property Loss and Builder’s Risk Insurance Claims
• Construction Defects and Liability Insurance Claims
• Construction Contract Disputes
Our Professional Team
• Architects
• Structural, Civil and Mechanical Engineers
• Roofing and Waterproofing Consultants
• Construction Managers
• Construction Cost Estimators
• Infrared Thermal Imaging
650 Poydras Street, Suite 1530, New Orleans, LA 70130::504.274.0060
Contact: David Stieffel::[email protected]
WWW.MKAINC.COM
ATLANTA::CALGARY::CHICAGO::DALLAS::DENVER::FT LAUDERDALE::HOUSTON::LAS VEGAS::NEW ORLEANS
NEWPORT BEACH::PENSACOLA::PHOENIX::PRINCETON::SACRAMENTO::SAN DIEGO::SEATTLE::TAMPA::WALNUT CREEK
33
a public reprimand by the Mississippi
Judicial Performance Commission on
June 11, 2009, for violation of various
judicial canons that result from his failure
to rule, timely, on a case styled: Brown
v. Quick-N-Easy Grocery, et al., filed in
Madison County. A hearing was held
before the Judicial Commission presided
over by Judge William Lackey who found
that Judge Agin’s conduct constituted
willful misconduct in office, a persistent
pattern of not performing the duties of
his office and conduct prejudicial to the
administration of justice. A fine was also
recommended in the amount of $100 to
include a public reprimand. Upon these
recommendations, the Supreme Court
reviews the findings and holdings of the
commission.
The Supreme Court, upon review
of the recommendations of the
Commission, first examined the finding
on the part of the Commission that the
conduct of Judge Agin was “willful” and
noted that the testimony demonstrated
the existence of a fairly oppressive
34
caseload, but his docket nonetheless
was up-to-date, with the exception of
the underlying case, and this was all
compounded by some health problems.
The Court clearly suggested that Agin
was negligent, but not willful, in his
conduct and that for this reason, the
findings of the Commission as to
willfulness could not stand. The Court
then reviewed the six factors approved
by them in reviewing the misconduct
of a judge: (1) length and character
of service, (2) existence of prior case
law on point, (3) magnitude of the
offense and harm suffered, (4) whether
the conduct is isolated or evidences a
pattern of conduct, (5) existence or not
of moral turpitude, and (6) presence
or absence of mitigating factors. The
Court reviewed all of the factors, finding
most did not compliment the judicial
conduct of the judge, noting especially
that this is the second time that Judge
Agin has been before the Commission
on related complaints. Miss. Jud. Perf.
Comm. v. Agin, 987 So.2d 418 (Miss.
2008). Finding that the evidence of the
Commission supported the punishment,
the Supreme Court held that the discipline
recommended by the Commission
would be the Order of the Court. The
Commission’s findings though as to
“willfulness” would be reversed. Judge
Agin is fined $100 and is to undergo a
formal public reprimand.
Comment: There was no suggestion
in the opinion of the Court as to what
constituted an appropriate delay. The
Court did certainly observe that the trial
judge has a duty to issue a timely ruling
in a case that is pending before him or
her, but really left it up to the judge as to
how he or she manages his or her docket.
This case is certainly one to look at
and somehow get before the Court the
next time that a trial judge is sitting on
your case. One would have to consider
strongly the consequences of beginning
this process in light of the fact that the
judge would remain the trial judge on
other matters unless he voluntarily
recuses himself from the case. ■
MISSISSIPPI DEFENSE LAWYERS ASSOCIATION
Application for Membership
(Please type or print)
Name __________________________________________________________________________
(Full Name - Last Name First)
Firm Name______________________________________________________________________
Business Mailing Address__________________________________________________________
(P.O. Box or Street, City, State, Zip)
Home Address __________________________________________________________________
(P.O. Box or Street, City, State, Zip)
Business Telephone _______________________ FAX __________________________________
E-mail __________________________________
Date of Birth _____________________________ Date Entered Practice _____________________
MS Bar #________________________________ DRI Member (circle)
YES
NO
Please indicate your law practice areas (1 and 2):
[
]
Alternate Dispute Resolution
[
]
Life, Health and Disability
[
]
Business Litigation
[
]
Medical Liability and Health Care Law
[
]
Drug and Medical Device
[
]
Product Liability
[
]
Economics and Management of Law Practice
[
]
Professional Liability
[
]
Employment Law
[
]
Toxic Torts and Environmental Law
[
]
Governmental Liability
[
]
Trial Tactics and Techniques
[
]
Industry-wide Litigation
[
]
Trucking Law
[
]
Insurance Law
[
]
Workers’ Compensation
[
]
Lawyers’ Professionalism and Ethics
[
]
Other: __________________________
In compliance with the MDLA Bylaws, I hereby declare that my representation in the handling of litigated cases
is primarily for the defense and I meet the requirements as listed on the reverse side of this application.
______________________
(Date)
______________________________________
(Signature of Applicant)
For General Membership:
For Associate Membership:
____________________________________
____________________________________
(Signatures of two nominators required)
(Signature of Nominator – MDLA General Member)
(Signature of one sponsor required)
(Signature of Sponsor – MDLA General Member)
____________________________________
(Signature of Nominator – MDLA General Member)
Mail to: Mississippi Defense Lawyers Association, P.O. Box 5605, Brandon, MS 39047-5605
MISSISSIPPI DEFENSE LAWYERS ASSOCIATION
Application for Membership
I desire to become a member of the Mississippi Defense Lawyers Association, and if approved
by the Membership Committee and Board of Directors, agree to abide by the association’s bylaws. Further, I certify that I meet the requirements of the class of membership for which I apply,
in accordance with Article III of the bylaws.
My check covering initiation fee and annual dues is enclosed.
Class of membership for which you are applying:
[
]
GENERAL (In Practice for Ten or More Years)
Requirements: (1) Member in good standing of the Mississippi State Bar;
(2) In private practice and engaged, primarily for the defense and/or on behalf
of management in handling and conducting litigation involving, by way of
example and not in limitation, tort actions of all types, so-called Title VII and
similar actions of labor, anti-trust and other commercial actions, or if not in
private practice, then engaged in supervising or otherwise administratively
dealing with such litigation for insurance carriers, utilities, railroads,
manufacturers, and other industrial and commercial entities; (3) Continuously
engaged in the activities described in (2) for ten consecutive years
immediately prior to acceptance for general membership; and (4) Manifested
a genuine interest in, or sympathy with, the purposes of this association as
expressed in Article II of the bylaws.
Initiation Fee:
Annual Dues:
Total Payment:
[
]
$ 30.00
175.00
$205.00
ASSOCIATE (In Practice for Less Than Ten Years)
Requirements: All of the requirements for general membership above except
have practiced for less than ten years; and officially sponsored by a general
member in good standing who is charged with the responsibility of notifying the
association’s executive director if the associate member ceases to meet the
qualifications for membership described herein.
Associate members shall be entitled to full benefits of membership except
they shall not be eligible to vote or to hold office.
Initiation Fee:
Annual Dues:
Total Payment:
$15.00
0.00 First year waived (subsequent annual dues of $100.00)
$15.00
JOIN US FOR DRI’S 14TH ANNUAL MEETING—
HELP US CELEBRATE DRI’S 50 TH ANNIVERSARY, LINCOLN’S 200 TH BIRTHDAY, AND
LAWYERS’ IMPORTANT ROLE IN THE CIVIL JUSTICE SYSTEM.
BLOCKBUSTER SPEAKERS
MEETING HIGHLIGHTS INCLUDE:
World-renowned
historian, author
and NBC
commentator
Doris Kearns
Goodwin
Former Secretary
of Labor under
George W. Bush,
Elaine L.
Chao
Assistant U.S. Attorney for the
Central District of Illinois and
the government’s lead counsel
in the Oklahoma City bombing
case, Joseph H. Hartzler
r &BSOVQUP15.25 HOURS OF CLE CREDIT through
PVSJOGPSNBUJWFQSPHSBNNJOH
r 5FBNVQXJUIDPMMFBHVFTUPIFMQPVUUIFDPNNVOJUZXJUI
UXPPQQPSUVOJUJFTUPTFSWFSFQBDLBHJOHCVMLGPPETBUUIF
GREATER CHICAGO FOOD DEPOSITORY and
donating blood through LIFESOURCE !
r #FDPNFQBSUPGUIFDPNNJUUFFMFBEFSTIJQBOEBUUFOEB
COMMITTEE MEETING
NET WORKING AND
ENTERTAINMENT
PQQPSUVOJUJFTBCPVOEUIJTZFBS
r 8FEOFTEBZFWFOJOHT
'JSTU5JNF"UUFOEFFT%3*
/FX.FNCFS3FDFQUJPOBOE
8FMDPNF3FDFQUJPO
r %JWFSTJUZ3FDFQUJPO
r /FUXPSLJOHSFDFQUJPOBUUIF
John G. Shedd Aquarium on
Thursday
r :PVOH-BXZFST'SJEBZ
evening networking
SFDFQUJPO
r ăF1SFTJEFOUT(BMBPO
Saturday night features
Chicago’s renowned
4FDPOE$JUZăFBUSF(SPVQ
DON’T MISS THIS OPPORTUNITY TO EXPLORE
A CITY FULL OF LIFE, ATTEND OUTSTANDING
EDUCATION PROGRAMS AND VISIT WITH
FRIENDS AND COLLEAGUES, NEW AND OLD!
Visit www.dri.org or call (312) 795-1101 to register or for more information.
Calendar of Events
DRI Annual Meeting
Sheraton Chicago Hotel and Towers
Chicago, Illinois
October 7 – 11, 2009
Joint Seminar of MS Claims Association and MDLA
River Room Conference Center
Flowood, Mississippi
October 22, 2009
2010 Annual Membership Meeting and Luncheon
Country Club of Jackson
Jackson, Mississippi
January 30, 2010
DRI Southern Regional Meeting
Marriott World Resort Center
Orlando, Florida
June 3-6, 2010
Mississippi Defense Lawyers Association
Post Office Box 5605
Brandon, Mississippi 39047-5605
Address Service Requested
PRST STD
U.S. Postage
PAID
JACKSON, MS
PERMIT NO. 670

MDLA Quarterly

Transcription

Similar documents

Funny Pets - Today in Mississippi

Divorce Packet (Self Help)

JANOi2O14 - Wayne County Circuit Court

Mississippi Map Turtles

akedemiks

Positioned for Progress Conference Tackles State`s

V-DAMP® 3771G Sound Deadener

Ceiling Medallions - Trim-Tex