Mississippi Litigation Lawyer & Attorney : Bradley Arant Law Firm : Serving Jackson, Gulfport, Biloxi, Tupelo, Hinds County, 5th Circuit

In Smith v. Clement, No. 2006-CA-00018-SCT (April 2, 2008), the Mississippi Supreme Court reaffirmed the trial court's responsibility to act as a gate-keeper for introduction of expert testimony, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  In Smith, the defendant school district brought a third-party complaint against M&W, the installer of propane fuel systems used in the district's buses.  A bus fire had injured several students, and the district claimed that M&W's negligence was the proximate cause of the fire. 

The district moved for summary judgment; its expert, Richard Forbes, Ph.D., provided an affidavit in support of the motion.  The Forbes affidavit averred that the fire was caused by a leak in copper tubing, which had been improperly flared; and stated that, in Forbes's opinion, the copper tubing involved at the time of the fire was the same tubing that had been originally installed by M&W.  In response, M&W moved to strike Forbes's affidavit.  M&W's expert, Derek T. Nolen, provided an affidavit outlining his background in the analysis of mechanical systems and fires and explosions involving propane gas.  Nolen's affidavit also stated that no reliable or valid scientific principles existed from which Forbes could have opined that the copper tubing was the same as that originally installed.

The circuit judge granted M&W's motion to strike, holding that Forbes's opinions "expressed by . . . his affidavit are nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods."  The court also granted M&W's motion for summary judgment, finding that there was no genuine issue of material fact as to causation, as the plaintiffs had not offered credible expert testimony on this point. 

In its appeal, the district argued that Daubert requires that the circuit court hold a hearing as to the admissibility of Forbes's testimony.  The Supreme Court found this argument to be without merit:  "We 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 . . . the party sponsoring the expert's challenged testimony be given a fair opportunity to respond to the challenge."  Because the district did not respond for five months after M&W provided Nolen's affidavit to challenge Forbes's affidavit, the Supreme Court found that the trial court had not erred in striking Forbes's affidavit.

Presiding Justice Waller, joined by Presiding Justice Diaz and Justices Easley and Graves, dissented from the Court's opinion.  Justice Waller's dissenting opinion would reverse the grant of summary judgment for M&W and remand the case for further proceedings, on the basis that neither Forbes's nor Nolen's affidavit should be given greater weight than the other, and that a disagreement between two experts as to causation demonstrates that a material fact issue existed.  Such a disagreement, according to the Waller dissent, "goes to the weight of the evidence and should be heard at trial." 

Presiding Justice Diaz wrote separately to register his disagreement with the majority's approach.  Although the majority opinion points out that the plaintiff schoolchildren had settled separately with the school district, leaving only the district's claim against M&W, Justice Diaz's dissent argues that "the result of [the majority's] opinion is to derail the cause of action of two children who were terribly burned on a school bus."  In Justice Diaz's view, the majority's approach improperly "refused to allow [the] plaintiffs an opportunity to be heard regarding the expert testimony they wish to offer, departing from our rules, established precedent, and standard litigation practice."

For more information, contact Margaret Cupples.

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Wilson v. Strickland, No. 2005-CA-02235-COA slip op. (2007), was tried to a defense verdict in the County Court of Harrison County. The case arose from a car accident, in which the plaintiff – who is white – was a guest passenger in a car that “t-boned” a church van driven by the defendant, who is black. After striking two of three black venire members for cause, plaintiff’s counsel used his first peremptory challenge to strike the last black venire member. Asked to articulate a race-neutral reason for the challenge, see Batson v. Kentucky, 476 U.S. 79 (1986), plaintiff’s counsel responded that the juror’s information card revealed that she was a Baptist, and that she worked at the Department of Human Services. Because the church van belonged to a Baptist church (not a party to the case), plaintiff’s counsel stated that the juror might favor the defense. The juror’s employment at DHS was not mentioned again during the colloquy.

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In Ford Motor Co. and World Rental Car Sales of Miss. v. Tennin, No. 2003-IA-02546-SCT, Ford was accused of multiple discovery violations during the pre-trial process. At trial, Ford got a unanimous defense verdict. In ruling on the post-trial motions, the Judge decided that the violations were so egregious that the Plaintiff was entitled to a new trial and the Court further awarded Plaintiff's counsel over $200,000 in fees and expenses for having to deal with the discovery issues. The Mississippi Supreme Court ultimately found that the Plaintiff failed to actively pursue motions to compel and get orders on the perceived violations. Without such orders, the trial court could not find a discovery violation that would warrant these sanctions. The Mississippi Supreme Court did find one violation of a discovery order by Ford and although it reversed the granting of a new trial, it remanded the case to the trial court for a determination of monetary sanctions that would be more in proportion to the violation of a single order.

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The United States Supreme Court issued its latest decision on the constitutionality of punitive damages awards in Phillip Morris USA v. Williams, No. 05-1256 slip op. (2007). The Court threw out a $79.5 million punitive damages award from an Oregon state court in a tobacco death case. This new decision clarifies that punitive damages cannot be used to punish a defendant for injury inflicted on nonparties to the litigation. Thus, the Court deemed it improper for the jury to have punished the tobacco company for the injuries it caused to all Oregon smokers.

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In a recent opinion, the Mississippi Court of Appeals held that a wrongful death claim must be brought within the limitations period governing the underlying action, even if the decedent does not die until after the limitations period has expired. May v. Pulmosan Safety Equipment Corp., et al., No. 2005-CA-01750-COA (Miss. Ct. App. 2007). The decedent, J.D. May, was diagnosed with silicosis in 1971. The Court held that J.D. May's claim accrued, at the latest, in 1997, when a medical record attributed his silicosis to workplace exposure to silica. J.D. May filed a complaint on March 18, 2002, and died two months later. May's wrongful death beneficiaries were substituted as parties in April of 2004. The defendants moved for summary judgment based on the three-year statute of limitations. May's wrongful death beneficiaries argued that, while May's claims may have accrued in 1997, their wrongful death claims did not accrue until May's death in 2002. The plaintiffs argued that applying the statute of limitations of the underlying tort would bar their wrongful death claim before it accrued.

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On January 4, 2007, the Mississippi Supreme Court, in Paz v. Brush Engineered Materials, Inc., No. 2006-FC-00771-SCT (Miss. 2007) answered a certified question of Mississippi law from the United States Court of Appeals for the Fifth Circuit. In a case appealed from the Southern District of Mississippi, the Fifth Circuit asked the Mississippi Supreme Court to determine whether the laws of Mississippi allow for a medical monitoring cause of action, whereby a plaintiff can recover medical monitoring costs for exposure to a harmful substance without proving current physical injuries from that exposure. The Plaintiffs were current and previous employees of the John C. Stennis Space Center in Mississippi and the Canoga Park facility in California. Boeing Company, represented by Roy Campbell and Melody McAnally of Bradley Arant, is the operator of those facilities. The employees claimed that they had been exposed to beryllium and that Boeing and other defendants should fund a court-supervised medical monitoring program to track any possible development of Chronic Beryllium Disease. However, none of the Plaintiffs had actually suffered physical injury from the alleged exposure.

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In two opinions issued on November 30th, the Mississippi Supreme Court handed down the most recent installments in its longstanding campaign to clarify the rules governing joinder of plaintiffs in mass tort cases. What first began as an overhaul of joinder jurisprudence in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss. 2004) has since become a series of attempts to emphasize the decision’s meaning and reach. In Albert v. Allied Glove Corp., (No. 2005-CA-01022-SCT) and Coleman v. A-Bex Corporation (No. 2005-CA-01022-SCT) the Court considered two appeals raising both the retroactive application of its changes to Miss. R. Civ. P. 20 and the forum non conveniens doctrine.

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