E-Filed Document Feb :10: IA SCT Pages: 23 ON APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSISSIPPI NO.

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1 E-Filed Document Feb :10: IA SCT Pages: 23 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO IA SCT SINGING RIVER HEALTH SYSTEM D/B/A SINGING RIVER HOSPITAL; EMERGENCY ROOM GROUP, LTD.; JENNIFER THOMAS-TAYLOR, M.D.; BENJAMIN W. HUDSON, M.D.; AND ALVA BRITT, R.N. APPELLANTS VERSUS TERESA VERMILYEA AND JULIE VERMILYEA KASBY AS THE WRONGFUL DEATH BENEFICIARIES OF RANDY VERMILYEA AND JULIE VERMILYEA KASBY, INDIVIDUALLY APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSISSIPPI NO ,174(1) JOINT BRIEF OF APPELLANTS SINGING RIVER HEALTH SYSTEM, JENNIFER THOMAS-TAYLOR, M.D., ALVA BRITT, R.N., BENJAMIN W. HUDSON, M.D., AND EMERGENCY ROOM GROUP, LTD. ORAL ARGUMENT REQUESTED Brett K. Williams (MSB No. 7224) A. Kelly Sessoms, III (MSB No. 9466) James E. Lambert, III (MSB No ) DOGAN & WILKINSON, PLLC 734 Delmas Avenue (39567) Post Office Box 1618 Pascagoula, MS Telephone: (228) Facsimile: (228) ATTORNEYS FOR APPELLANTS SINGING RIVER HEALTH SYSTEM, JENNIFER THOMAS-TAYLOR, M.D., AND ALVA BRITT, R.N.

2 John A. Banahan (MSB No. 1731) Jessica B. McNeel (MSB No ) Michael R. Moore (MSB No ) BRYAN, NELSON, SCHROEDER, CASTIGLIOLA & BANAHAN, PLLC Attorneys at Law 1103 Jackson Avenue (39567) Post Office Drawer 1529 Pascagoula, MS Telephone: (228) Fax: (228) ATTORNEYS FOR APPELLANTS BENJAMIN W. HUDSON, M.D., AND EMERGENCY ROOM GROUP, LTD. ii

3 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO IA SCT SINGING RIVER HEALTH SYSTEM D/B/A SINGING RIVER HOSPITAL; EMERGENCY ROOM GROUP, LTD.; JENNIFER THOMAS-TAYLOR, M.D.; BENJAMIN W. HUDSON, M.D.; AND ALVA BRITT, R.N. APPELLANTS VERSUS TERESA VERMILYEA AND JULIE VERMILYEA KASBY AS THE WRONGFUL DEATH BENEFICIARIES OF RANDY VERMILYEA AND JULIE VERMILYEA KASBY, INDIVIDUALLY APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel certify that the following persons or entities have an interest in the outcome of the case. These representations are made in order that the Justices of this Court may evaluate possible disqualification or recusal. 1. Jennifer Thomas-Taylor, M.D., Appellant 2. Alva Britt, R.N., Appellant 3. Benjamin W. Hudson, M.D., Appellant 4. Teresa Vermilyea, Appellee 5. Julie Vermilyea Kasby, Appellee 6. Honorable Robert P. Krebs 7. Brett K. Williams, A. Kelly Sessoms, III and James E. Lambert, III, Attorneys for Appellants Singing River Health System, Jennifer Thomas-Taylor, M.D., and Alva Britt, R.N. 8. John A. Banahan, Jessica B. McNeel and Michael R. Moore, Attorneys for Appellants, Benjamin E. Hudson, M.D., and Emergency Room Group, Ltd. 9. Marc Boutwell, Attorney for Appellees iii

4 Respectfully submitted, this the 28 th day of February, SINGING RIVER HEALTH SYSTEM, JENNIFER THOMAS-TAYLOR, M.D., and ALVA BRITT, R.N. BY: /s/ James E. Lambert, III JAMES E. LAMBERT, III BENJAMIN W. HUDSON, M.D., AND EMERGENCY ROOM GROUP, LTD. BY: /s/ John A. Banahan JOHN A. BANAHAN JESSICA B. MCNEEL MICHAEL R. MOORE iv

5 TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS... iii TABLE OF CONTENTS... v TABLE OF AUTHORITIES... vi STATEMENT REGARDING ORAL ARGUMENT... vii I. STATEMENT OF THE ISSUES... 1 II. STATEMENT OF ASSIGNMENT... 1 III. STATEMENT OF THE CASE... 1 IV. SUMMARY OF THE ARGUMENT... 4 V. ARGUMENT... 5 A. Standard of Review... 5 B. Mississippi law prohibits claims of negligence against a third party for a decedent s suicide... 6 C. Stare decisis dictates that Plaintiffs claims be dismissed D. Julie Vermilyea Kasby s claim fails as a matter of law VI. CONCLUSION CERTIFICATE OF SERVICE v

6 CASES TABLE OF AUTHORITIES PAGE: Haney v. River Oaks Hosp., 2006 CA SCT (Order, May 17, 2007) Laurel Daily Leader, Inc. v. James, 80 So. 2d 770 (Miss. 1955) Lester Engineering Co. v. Richland Water and Sewer Dist., 504 So. 2d 1185 (Miss.1987)... 5 Lyons v. Zale Jewelry Co., 150 So. 2d 154 (Miss. 1963)... 6 Morgan v. Greenwaldt, 786 So. 2d 1037 (Miss. 2001) Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890 (Miss. 2006)... 5 Shamburger v. Grand Casino of Miss. Inc./Biloxi, 84 F. Supp. 2d 794 (S.D. Miss. 1998) 7,8,9,11 State ex rel. Moore v. Molpus, 578 So. 2d 624 (Miss. 1991) State for Use and Benefit of Richardson v. Wedgeworth, 214 So. 2d 579 (Miss. 1968) ,6,7,9,10,12,14 Truddle v. Baptist Memorial Hosp. - Desoto, Inc., 150 So. 3d 692 (Miss. 2014) ,3,4,5,8,9,10,11,12,13 Tucker v. Hinds County, 558 So. 2d 869 (Miss. 1990)... 5 Turner v. Duke, 736 So. 2d 495 (Miss. Ct. App. 1999)... 12,13 Webb v. DeSoto County, 843 So.2d 682 (Miss.2003)... 5 RULES Miss. R. Civ. P. 12(b)(6)... 5 vi

7 STATEMENT REGARDING ORAL ARGUMENT The Appellants respectfully request oral argument. This appeal is the result of an erroneous ruling by the trial court which departed from the clear and sound precedent of this Court. The erroneous ruling would force Appellants to defend a claim which, as pled, is legally insufficient under Mississippi law. If allowed to stand, the trial court s ruling would have farreaching implications for medical providers throughout the State of Mississippi. Appellants respectfully submit that the decisional process would be significantly aided by oral argument. vii

8 JOINT BRIEF OF APPELLANTS COME NOW the Appellants, Singing River Health System ( SRHS ), Jennifer Thomas- Taylor, M.D., and Alva Britt, R.N., by and through counsel of record, Dogan & Wilkinson, PLLC, and Benjamin W. Hudson, M.D., and Emergency Room Group, Ltd., by and through counsel of record, Bryan, Nelson, Schroeder, Castigliola & Banahan, PLLC (collectively Defendants ), and file this their Joint Brief of Appellants, and would show unto the Court as follows: I. STATEMENT OF ISSUES Whether the trial court erred as a matter of law in determining that this Court s decision in Truddle v. Baptist Memorial Hosp. Desoto, Inc., 150 So. 3d 692, 696 (Miss. 2014), and the Irresistible Impulse Doctrine do not apply to a negligence action alleging third-party liability for a decedent s suicide. II. STATEMENT OF ASSIGNMENT Defendants respectfully submit that this case should be retained by the Supreme Court. In its erroneous ruling, the trial court recognized, yet ultimately rejected, this Court s recent decision in Truddle v. Baptist Memorial Hosp. Desoto, Inc., 150 So. 3d 692, 696 (Miss. 2014), despite its clear application to a medical-malpractice action alleging third-party liability for a decedent s suicide. Because a recent decision of this Court is at the crux of this appeal, important principles of stare decisis are at issue and necessitate that this case be retained by the Supreme Court. III. STATEMENT OF THE CASE While an unfortunate set of circumstances, the facts (as alleged) necessary to an understanding of the question of law determined by the order of the trial court are relatively succinct 1

9 and straightforward. 1 On October 12, 2014, after standing on a ledge of the Pascagoula River Bridge and threatening to jump to his death, Randy Vermilyea ( Decedent ) was brought to the Emergency Room at Singing River Hospital by Jackson County, Mississippi, Sheriff s officers. 2 CP After a few hours at Singing River Hospital, which included a psychiatric evaluation by two psychiatrists along with other medical staff, Decedent was discharged and left the hospital with his daughter, Julie Vermilyea Kasby. CP. 21. While driving home with Ms. Kasby, Decedent informed her that he was going to be sick and instructed her to stop the car while on the same bridge from which he previously threatened to jump. CP. 21. Decedent exited the car and committed suicide by jumping off the bridge. CP. 21. Arising out of Decedent s suicide, on or about November 13, 2015, Decedent s beneficiaries, Teresa Vermilyea and Julie Vermilyea Kasby (collectively Plaintiffs ) filed this medical malpractice/wrongful-death suit against Defendants, alleging that Defendants were negligent and that negligence was the proximate cause of Decedent s suicide. Julie Vermilyea Kasby individually asserted a claim for intentional infliction of emotional distress as a result of Decedent s suicide. 3 On February 29, 2016, Defendants SRHS and Dr. Thomas-Taylor 4 filed a Motion to Dismiss 5 1 For purposes of this Brief, the following abbreviations will be utilized: CP. (Clerk s Papers), R. (Trial transcript), and R.E. (Appellants Record Excerpts). 2 The facts are derived, in large part, from Plaintiffs First Amended Complaint, which, in considering a motion to dismiss, are construed as true. CP This information provides the Court with the facts and allegations as set forth by Plaintiffs, which served as the basis of Defendants Motion to Dismiss and the present interlocutory appeal. 3 Although titling the claim intentional infliction of emotional distress, Ms. Kasby clearly alleges that Defendants were negligent in failing to notify her of Decedent s previous suicide attempt. CP Defendant Alva Britt, R.N., had not been served at the time of filing of the Motion to Dismiss. 5 CP

10 and Memorandum in Support 6 based on well-established Mississippi law that, in order to recover against a third party for a decedent s suicide... a plaintiff must plead and prove: (1) the decedent was under an irresistible impulse rendering him or her unable to discern the nature or consequences of suicide, and (2) the irresistible impulse was proximately caused by the defendant s intentional conduct. Truddle, 150 So. 3d at 696 (Miss. 2014) (quoting State for Use and Benefit of Richardson v. Wedgeworth, 214 So. 2d 579, 587 (Miss. 1968)) (emphasis added). Because it is undisputed that Plaintiffs sought to impose liability upon third parties for Decedent s suicide, and Plaintiffs had not pled, nor offered any proof, that any intentional act by Defendants which proximately caused an irresistible impulse in Decedent to commit suicide, Defendants argued that Plaintiffs claims were insufficient as a matter of law, and this cause of action should be dismissed with prejudice. That motion was joined by Defendants, Dr. Hudson and Emergency Room Group. CP Plaintiffs filed a response to Defendants Motion to Dismiss. CP Dr. Hudson and Emergency Room Group filed a reply to Plaintiffs response, which was joined by Defendants, SRHS and Dr. Thomas-Taylor. CP A hearing on Defendants Motion to Dismiss was held before the trial court on May 12, R Following arguments of counsel, the trial court issued a bench ruling. R ; R.E After opining on the state of mental health in Mississippi and multiple public-policy issues surrounding mental health, including, inter alia, lack of funding and a reduction of beds at the State mental hospital, the trial court stated as follows: I, typically,... certainly follow stare decisis. I m certainly not one to make law. I know my place in the judiciary. But in this particular case, I m finding that Truddle does not apply. R. 19; R.E Other than citing public-policy issues 6 CP

11 surrounding mental health, the trial court provided no legal reasoning for its rejection of wellestablished Mississippi law. However, the trial court further opined on the issue which provided a glimpse into its departure from controlling precedent, stating that suicide is not an act[.] R. 20; R.E As a result, the Court denied Defendants Motion to Dismiss and proceeded to invite an interlocutory appeal, further stating that the trial court would welcome it in this case. R. 20; R.E On July 11, 2016, the trial court entered its order denying Defendants Motion to Dismiss, finding that Truddle... and the Irresistible Impulse Doctrine do not apply to this case. CP. 137; R.E The trial court entered a substantively identical Corrected Order on July 27, CP ; R.E From the trial court s order denying their Motion to Dismiss, Defendants filed a Joint Petition for Interlocutory Appeal and Motion to Stay. On September 21, 2016, a panel of this Court granted Defendants Petition for Interlocutory Appeal and Motion for Stay, resulting in the present interlocutory appeal. CP The same panel of this Court entered a Corrected Order on September 23, CP IV. SUMMARY OF THE ARGUMENT The trial court erred as a matter of law in determining that this Court s decision in Truddle and the Irresistible Impulse Doctrine do not apply to a negligence action alleging thirdparty liability for a decedent s suicide. Mississippi follows the general, American rule that suicide constitutes an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant. Therefore, in general, an allegation of third-party liability for an individual s suicide is not actionable, unless a plaintiff sufficiently pleads and proves facts to satisfy Mississippi s sole recognized exception to the general rule, i.e., the irresistible-impulse doctrine. To satisfy the 4

12 irresistible-impulse doctrine, a plaintiff must both plead and prove (1) the decedent was under an irresistible impulse rendering him or her unable to discern the nature or consequences of suicide, and (2) the irresistible impulse was proximately caused by the defendant s intentional conduct. Importantly, and as recently as 2014, this Court in Truddle not only re-affirmed the general rule against third-party liability for an individual s suicide and the irresistible-impulse doctrine, but also expressly held that both apply to medical-malpractice actions such as this case. In the case sub judice, Plaintiffs filed a medical-malpractice action alleging that Defendants were liable in negligence for Decedent s suicide. Wholly absent from Plaintiffs First Amended Complaint was any allegation that Defendants committed any intentional act which proximately caused an irresistible impulse in Decedent to commit suicide. Because such pleading is insufficient as a matter of law, the trial court erred in denying Defendants Motion to Dismiss. The trial court erroneously held that Truddle and the Irresistible-Impulse Doctrine do not apply to this medicalmalpractice, i.e., negligence, action alleging third-party liability for Decedent s suicide a decision which is plainly contrary to the express holding of Truddle. V. ARGUMENT A. Standard of Review A motion for dismissal under Miss. R. Civ. P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990)(citing Lester Engineering Co. v. Richland Water and Sewer Dist., 504 So. 2d 1185, 1187 (Miss.1987)). An appellate court is to review de novo the grant, or denial, of a motion to dismiss for failure to state a claim. Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss. 2006) (citing Webb v. DeSoto County, 843 So.2d 682, 684 (Miss.2003)). 5

13 B. Mississippi law prohibits claims of negligence against a third party for a decedent s suicide In the case sub judice, Plaintiffs have asserted a Wrongful Death/Negligence claim against Defendants, alleging medical negligence which proximately caused Decedent s suicide. CP However, the law in Mississippi regarding third-party liability for a decedent s suicide has long been established and renders Plaintiffs claims insufficient as a matter of law. As the Mississippi Supreme Court stated in Wedgeworth, there is a rebuttable presumption that a person will not destroy himself by suicide[.] Wedgeworth, 214 So. 2d at 585. As a result, suicide is an unforeseeable, intervening cause of death such that it breaks the causal connection between the wrongful act and the death. Id. at 586. Because suicide is an unforeseeable, intervening cause of death, the general rule is that a third-party cannot be liable for a decedent s suicide. The Wedgeworth Court recognized and re-affirmed this general rule, but fashioned one, limited exception. Id. The Court stated, where the suicide is committed in response to an uncontrollable impulse, recovery may be had if the mental state of the deceased was substantially caused by defendants intentional wrongful act[.] Id. at 587 (emphasis added). The Court expressed a sound rationale for declaring this sole exception to the general bar against third-party liability for a decedent s suicide, explaining that [a] higher degree of responsibility is imposed upon a wrongdoer whose conduct was intended to cause harm than upon one whose conduct was negligent. 7 Id. (citing Lyons v. Zale Jewelry Co., 150 So. 2d 154 (Miss. 1963)). Applying that 7 Based on the egregious facts in that case, the Wedgeworth Court found that the [d]efendants intentionally abused the criminal processes of the justices of the peace courts for the purpose of inflicting upon [the decedent] sufficient emotional distress to cause him to pay a civil debt and the court costs collected by defendants. Wedgeworth, 214 So. 2d at 581 (emphasis added). 6

14 rationale and exception, the Court held that Wedgeworth s claim should proceed to the jury, but did so because the consecutive wrongs of [the defendants] were not negligent but intentional torts. Id. at 587 (emphasis added). Following the seminal Wedgeworth decision, there is a dearth of decisions discussing or applying the law regarding the general bar against third-party liability for suicide or Wedgeworth s sole exception to the general rule, i.e. the irresistible-impulse doctrine. However, in 1998, the United States District Court for the Southern District of Mississippi had the opportunity to address the issue in Shamburger v. Grand Casino of Miss. Inc./Biloxi, 84 F. Supp. 2d 794, 798 (S.D. Miss. 1998). In that case, in addition to going into significant business debt, the decedent had written several bad markers at the Grand Casino, which the Grand turned over to the Harrison County, Mississippi, District Attorney. Id. at 796. Ultimately, decedent s debts forced him to file bankruptcy. Id. Decedent later committed suicide. Id. As a result of his suicide, decedent s heirs sued Grand, contend[ing] that Grand somehow caused the suicide and [was] therefore liable not only for the suicide, but also for a limitless range of purported injuries claimed to originate in the suicide. Id. The district court recognized that Mississippi follows the general, American rule that suicide constitute[s] an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant. Id. at 798. The district court further recognized that Mississippi is one jurisdiction [which has] recognized an exception to the common law rule, and ha[s] allowed recovery for intentional conduct resulting in suicide where the tortious conduct produces a mental illness resulting in an irresistible impulse to commit suicide. Id. (internal quotations omitted). Relying on this Court s decision in Wedgeworth, the district court stated: 7

15 Mississippi now apparently permits recovery if, at the time of suicide, the decedent was acting under an irresistible impulse proximately caused by the intentional wrongful conduct of the defendant. Accordingly, even if this Court were to determine that there is a factual issue regarding the alleged wrongfulness of Grand's actions, the suicide would preclude recovery as a matter of law unless the plaintiff can establish that Shamburger was acting under an irresistible impulse proximately caused by the Grand's alleged tortious conduct. Id. Based on plaintiff s claims in that case and the recognized lack of evidence to meet the irresistible-impulse exception, the district court properly applied Mississippi law and granted summary judgment to the defendants. Id. at 799. Following Shamburger, there again was a dearth of decisions applying Mississippi law regarding suicide and the irresistible-impulse doctrine. However, very recently, in Truddle, this Court again had the opportunity to address the general bar of recover[y] against a third party for a decedent s suicide[] this time in the context of a medical-malpractice claim. Truddle, 150 So. 3d at 696. In that case, the decedent, Carmichael, was admitted to the hospital for treatment of a number of ailments. Id. at 694. On the night before he was discharged from the hospital, Carmichael had an outburst allegedly resulting from a reaction to prescribed medication, Reglan. Id. Notes regarding the outburst were put in the Carmichael s file, but the defendant physician apparently did not read the notes. Id. Despite the Carmichael s mother s requests that he stay in the hospital, the defendant physician discharged him. Id. Carmichael returned a few days later complaining that the medications he was taking were making him crazy. Id. The defendant physician nonetheless wrote Carmichael another prescription for Reglan. Id. Two days later, Carmichael committed suicide. Id. Subsequently, Carmichael s mother, Truddle, sued the hospital and treating physician for, inter alia, medical negligence arising from his suicide. Id. at 694. The defendants filed motions for summary judgment assert[ing] that, under Mississippi law, 8

16 a suicide is actionable only when a defendant's intentional wrongful act proximately caused an irresistible impulse resulting in the suicide. Id. at 695. The defendants further argued that Truddle never pleaded, nor could she create, a genuine issue of material fact as to any intentional wrongful act committed by the defendants that caused [decedent] to commit suicide. Id. In response, Truddle attempted to argue that Mississippi case law traditionally acknowledged the viability of negligence claims for suicide particularly where, as here, the [d]efendants allegedly owed the decedent some form of duty. Id. at 696 (internal quotations and brackets omitted). Thus, exactly like the Plaintiffs in this case, Truddle argued that medical malpractice, i.e. negligence claims as a result of suicide were viable under Mississippi law. Id. at In affirming the trial court s grant of summary judgment for defendants, the Court expressly rejected Truddle s interpretation of Mississippi law and explicitly held that the general bar of recovery against a third party for a decedent s suicide, and the sole exception, the irresistible-impulse doctrine, extend[] to medical-malpractice claims. Id. at 697. In so holding, the Truddle Court reaffirmed Wedgeworth s limited exception and expressly stated, to recover against a third party for a decedent s suicide... a plaintiff must plead and prove: (1) the decedent was under an irresistible impulse rendering him or her unable to discern the nature or consequences of suicide, and (2) the irresistible impulse was proximately caused by the defendant s intentional conduct. Id. at 696 (quoting Wedgeworth, 214 So. 2d at 587) (emphasis added). The Truddle Court further stated, [n]othing in Mississippi case law, save the irresistible-impulse doctrine... abrogates the general rule that suicide constitutes an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant. Id. (quoting Shamburger, 84 F. Supp. 2d at 798 (S.D. Miss. 1998)) (emphasis added). 9

17 Although Truddle affirmed the trial court s grant of summary judgment to the defendants, the Court s opinion makes clear that this issue is ripe for consideration on a motion to dismiss, for not only must a plaintiff prove facts satisfying the irresistible-impulse doctrine in order to overcome the general bar, the plaintiff must plead those facts as well. Id. at 696. The Court stated, [n]othing in Truddle s complaint goes beyond an argument that [defendants] were negligent in not recommending psychiatric evaluations[.] Id. at 697 (emphasis added). The Court further noted that the plaintiff must show that the defendant committed an intentional act that led to an irresistible impulse to commit suicide in order to prevail[,] but Truddle made no such allegation against [the defendants]. Id. (citing Wedgeworth, 214 So. 2d at ) (emphasis added). Because Truddle failed to allege any intentional conduct on the part of [the defendants] that proximately created an irresistible impulse [in the decedent] to commit suicide, as required by Mississippi law[,] the trial court was affirmed. Id. at 698 (emphasis added). Although required to be pled and proven, fatally absent from Plaintiffs First Amended Complaint are any allegations that Defendants committed an intentional act that created an irresistible impulse in the Decedent to commit suicide. CP Based on the clear, long-standing and recently re-affirmed precedent of this Court, such pleading, vel non, is insufficient to support a claim against a third party for a decedent s suicide. Thus, under Mississippi law, Plaintiffs plainly failed to state a claim upon which relief could be granted. Furthermore, the reason for the absence of the required allegations is obvious there are no facts in this case to support a claim that Defendants committed any intentional acts that created an irresistible impulse in Decedent to commit suicide. Assuming arguendo that Defendants were negligent in the manners alleged by Plaintiffs (which Defendants expressly deny), that negligence 10

18 would still fail to create a cause of action against Defendants for Decedent s suicide. Defendants alleged negligence is not actionable. See Shamburger, 84 F. Supp. 2d at 798 (applying Mississippi law and stating, [e]ven if this Court were to determine that there is a factual issue regarding the alleged wrongfulness of Grand s actions, the suicide would preclude recovery as a matter of law unless the plaintiff can establish that [decedent] was acting under an irresistible impulse proximately caused by the Grand s alleged tortious conduct. ). Plaintiffs sole argument before the trial court was that, because Decedent had been in the alleged custody of Defendants and committed suicide after being released, Truddle did not apply. However, the Truddle Court addressed that exact scenario in its opinion, for the decedent in that case committed suicide upon being discharged from the defendant hospital. Truddle, 150 So. 3d at 693. Further, in holding that the general bar against a third-party s liability for a decedent s suicide and the irresistible-impulse doctrine extend to medical-malpractice claims[,] the Truddle Court noted: In Haney v. River Oaks Hospital, the plaintiff brought a medical-negligence action against a doctor and hospital where a patient committed suicide after being released from the hospital over her family's objections. Haney v. River Oaks Hosp., 2006 CA SCT (Order, May 17, 2007). The trial court granted the doctor's and hospital's motion for summary judgment, which this Court affirmed per curium. Id. Id. at 697 (emphasis added). Thus, Plaintiffs claim that Truddle does not apply because Decedent committed suicide after being released from Defendants custody is wholly vitiated by the Truddle opinion. The application of this Court s decision in Truddle to the present case is inescapable. Again, because suicide is a superseding, intervening cause of death, in order to state a viable cause of action against a third party for an individual s suicide, plaintiffs must plead and prove facts to satisfy the 11

19 irresistible-impulse doctrine. Plaintiffs in this case have plainly failed to do so. Instead, Plaintiffs have argued that such pleading is not required under Mississippi law an argument that already has been addressed and expressly rejected by this Court in Truddle. As Plaintiffs claims are insufficient as a matter law, the trial court erred in denying Defendants Motion to Dismiss. C. Stare decisis dictates that Plaintiffs claims be dismissed The appellate courts of this State long have adhered to the principle that stare decisis is foundational to our legal system. As a former Justice of this Court so eloquently stated: The doctrine of stare decisis is the bedrock of our system of jurisprudence. It has given direction and stability to the common law whose precepts constitute the larger part of the rules by which we live and are governed. It demands definiteness in the law, and that its rules be consistent so that they may be known. It has been said to be the most fundamental characteristic of the common law as distinguished from other systems. Laurel Daily Leader, Inc. v. James, 80 So. 2d 770, (Miss. 1955) (Gillespie, J., Special Opinion). The application of stare decisis results in a logical anticipation of what result the law will reach when considering various issues. Turner v. Duke, 736 So. 2d 495, 497 (Miss. Ct. App. 1999). Because of the fundamental importance of stare decisis, this Court explicitly has stated, absent powerful countervailing considerations, like cases ought to be decided alike, and long established legal interpretations ought not lightly be disturbed. State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991). The law regarding a third party s liability for a decedent s suicide is both clear and definite because suicide is a superseding, intervening cause of death such that it breaks the causal connection between the wrongful act and the death[,] as a general rule, a third party cannot be held liable for a decedent s suicide. Wedgeworth, 214 So. 2d at 585. This plain rule and its sole exception, 12

20 the irresistible-impulse doctrine, result in a logical anticipation of what result the law will reach considering a claim arising from a decedent s suicide. Turner, 736 So. 2d at 497. Furthermore, while this general bar and the irresistible-impulse doctrine are long established, these rules recently were revisited by the Truddle Court in In a well-reasoned opinion, the Truddle Court re-affirmed these sound rules of law and consistently applied them to a medicalmalpractice action. In so doing, the Court honored the foundational principle of precedent. Defendants respectfully submit that this Court should not disturb these sound rules of law based on the doctrine of stare decisis. D. Julie Vermilyea Kasby s claim fails as a matter of law Plaintiff, Ms. Kasby, asserted a claim for intentional infliction of emotional distress against Defendants. She alleges that Defendants releas[ed] Randy Vermilyea, and [did] not notify[] her of his previous suicide attempt. CP. 25. Although alleging that failure caus[ed] intentional infliction of emotional distress, the claim clearly alleges a negligent act, i.e., failure to notify Ms. Kasby of Decedent s previous suicide attempt. CP. 25. However, Ms. Kasby s claim suffers from the same legal insufficiencies as Plaintiffs wrongful death/negligence claim. This Court has stated that it has been clear in holding that a plaintiff asserting a claim for mental anguish, whether as a result of simple negligence or an intentional tort, must always prove that the emotional distress was a reasonably foreseeable result of the defendant s conduct. Morgan v. Greenwaldt, 786 So. 2d 1037, 1044 (Miss. 2001) (citations omitted). There can be no dispute that any alleged emotional distress suffered by Ms. Kasby was the result of Decedent s suicide. Thus, as a threshold requirement to be liable to Ms. Kasby for emotional distress damages suffered as a result of Decedent s suicide, the suicide itself must have 13

21 been foreseeable. See Wedgeworth, 214 So. 2d at 585 (explaining that suicide is an unforeseeable, intervening cause of death. ). Because Plaintiffs did not plead, and cannot prove, that Defendants committed any intentional act that created an irresistible impulse in Decedent to commit suicide, Decedent s suicide, as fully explained supra, was not foreseeable. Therefore, Ms. Kasby s alleged emotional distress resulting therefrom also necessarily was not foreseeable and is not actionable. VI. CONCLUSION Based on the foregoing, Defendants respectfully submit that, under well-established Mississippi law, Plaintiffs claim is legally insufficient, and the trial court erred as a matter of law in denying Defendants Motion to Dismiss. Defendants request that the Court reverse and render the decision of the trial court and dismiss Plaintiffs case, with prejudice. Unless reversed, the order entered by the trial court will force Defendants to defend a claim which is legally insufficient. RESPECTFULLY SUBMITTED, this the 28 th day of February, SINGING RIVER HEALTH SYSTEM, JENNIFER THOMAS-TAYLOR, M.D., and ALVA BRITT, R.N. BY: /s/ James E. Lambert, III JAMES E. LAMBERT, III Brett K. Williams (MSB No. 7224) A. Kelly Sessoms, III (MSB No. 9466) James E. Lambert, III (MSB No ) DOGAN & WILKINSON, PLLC 734 Delmas Avenue (39567) Post Office Box 1618 Pascagoula, Mississippi Telephone: (228) Facsimile: (228)

22 BENJAMIN W. HUDSON, M.D. AND EMERGENCY ROOM GROUP, LTD. BY: /s/ John A. Banahan JOHN A. BANAHAN JESSICA B. MCNEEL MICHAEL R. MOORE John A. Banahan (MSB No. 1731) Jessica B. McNeel (MSB No ) Michael R. Moore (MSB No ) BRYAN, NELSON, SCHROEDER, CASTIGLIOLA & BANAHAN, PLLC Attorneys at Law 1103 Jackson Avenue (39567) Post Office Drawer 1529 Pascagoula, MS Telephone: (228) Fax: (228)

23 CERTIFICATE OF SERVICE I, James E. Lambert III, hereby certify that I have this day caused to be filed the foregoing JOINT BRIEF OF APPELLANTS via the Supreme Court s MEC system, which will send electronic notice to the following: Marc Boutwell Law Office of Marc Boutwell, PLLC Post Office Box 956 Lexington, MS I also caused to be hand-delivered, a copy of the foregoing to the following: Judge Robert P. Krebs 3104 South Magnolia Street Pascagoula, MS This the 28 th day of February, /s/ James E. Lambert, III JAMES E. LAMBERT, III 16