IN THE SUPREME COURT OF MISSISSIPPI. v. No CA APPELLEES MAGNOLIA and SOUTHWEST DISTRIBUTORS, Inc.

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1 E-Filed Document Oct :09: CA COA Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI AUNDREA ROBINSON APPELLANT v. No CA MARTIN FOOD STORES, Inc., d/b/a SUNFLOWER FOOD STORE OF APPELLEES MAGNOLIA and SOUTHWEST DISTRIBUTORS, Inc. REPLY BRIEF OF APPELLANT AUNDREA ROBINSON ORAL ARGUMENT REQUESTED On Appeal from the Circuit Court of Pike County, Mississippi No PCS David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: F: E: W: McCartyAppeals.com Jonathan C. Tabor Leigh-Ann Tabor Emily Henry Burch TABOR LAW FIRM, PA 308 East Pearl St., Suite 201 Jackson, Miss T: Attorneys for Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI AUNDREA ROBINSON APPELLANT v. No CA MARTIN FOOD STORES, Inc., d/b/a SUNFLOWER FOOD STORE OF MAGNOLIA and SOUTHWEST DISTRIBUTORS, Inc. APPELLEES CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Aundrea Robinson, Appellant 2. David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, and Jonathan C. Tabor, Leigh-Ann Tabor, and Emily Henry Burch, of Tabor Law Firm, PA, Counsel for the Appellant 3. R. Paul Williams, III, and Courtney M. Williams, of Williams & Williams, PLLC, Original Counsel for Appellant (withdrawn) 4. Martin Food Stores, d/b/a Sunflower Food Store of Magnolia, Appellee 5. Patrick M. Tatum and William L. Morton, III, of Upshaw Williams Biggers & Beckman, LLP, Counsel for Appellee 6. Southwest Distributors, Inc., Defendant in the trial court (dismissed) 7. Lorraine W. Boykin, of Currie Johnson Griffin & Myers, P.A., Counsel for Defendant Southwest Distributors (now dismissed) 8. The Honorable David H. Strong, Jr., of the Circuit Court of Pike County So CERTIFIED, this the 28th day of October, Respectfully submitted, s/ David Neil McCarty David Neil McCarty Miss. Bar No Attorney for Appellant i

3 Table of Contents Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Summary of the Reply Argument... 1 Statement Regarding Oral Argument... 1 Argument... 2 Issue I Issue II... 5 Conclusion... 8 Certificate of Service... 9 ii

4 TABLE OF AUTHORITIES Cases Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss. 2011)... 2 Bolden v. Murray, 97 So. 3d 710, 718 (Miss. Ct. App. 2012)... 6 East Miss. State Hosp. v. Callens, 892 So. 2d 800, 805 (Miss. 2004)... 7 Holmes v. Holmes, 628 So.2d 1361, 1365 (Miss. 1993)... 6 Hudson v. WLOX, Inc., 108 So. 3d 429, 432 (Miss. Ct. App. 2012)... 7 Kronisch v. United States, 150 F.3d 112, 128 (2d. Cir.1998)... 6 Rains v. Gardner, 731 So. 2d 1192, 1196 (Miss. 1999)... 7 Rivera-Guadiana v. State, 71 So. 3d 1221, 1224 (Miss. Ct. App. 2011)... 7 Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001)... 3, 4 Rules MRCP iii

5 Summary of the Reply Argument Because the grocery store admitted it lost crucial evidence, and further refused to produce video footage of Aundrea Robinson s injury, summary judgment should have never been granted. Taking the evidence in the light most favorable to Aundrea, this lost or destroyed information created a genuine issue of material fact in dispute. The trial court s failure to consider the critical lost or destroyed evidence warrants immediate reversal and remand. Furthermore, Sunflower has apparently conceded that the incident report filled out at the time of Audrea s injury and the missing footage from the 32 video cameras is either lost or destroyed. This admitted spoliation forbids affirming summary judgment, as it creates an incentive for parties to destroy key evidence in order to gain a litigation advantage. The Rules of Civil Procedure were created to stop just these type of sharp-edged games. Statement Regarding Oral Argument Pursuant to MRAP 34(b), oral argument would assist the Court in resolving this case. Since 2001, the Supreme Court has embraced a clear doctrine that forbids the loss or destruction of evidence for an advantage in litigation. When evidence is lost or destroyed, the Supreme Court allows a wide-ranging inference that it was favorable to the person who lost access to it. The grocery store in this case had high resolution recorded footage of the injury suffered by Aundrea Robinson, it was viewed by employees of the store, and there was a contemporaneously prepared incident report about the injury. This critical and unique information would have established every single relevant fact in this dispute. Nonetheless, the store refused to produce any of it in discovery. Despite the loss or destruction of critical information, the trial court still granted summary judgment in favor of the store. Oral argument will detail to the Court that summary judgment can never be granted when there is missing or destroyed evidence, and especially cannot be granted when the trial court 1

6 completely ignores the lost evidence. Oral argument will also detail that the Supreme Court s broad doctrine prohibiting spoliation extends to all phases of a case, pretrial, trial, and otherwise. Reply Argument I. The Destroyed or Lost Evidence Forbids Summary Judgment. Because the critical evidence in this case regarding Aundrea s claims was either lost or destroyed by Sunflower, there was a material issue of genuine fact in dispute which prevents summary judgment. The summary judgment standard is well established, and a case will not be dismissed so long as there is evidence in dispute. See Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss. 2011). All evidence will be viewed favorably to the nonmovant, who is given the benefit of every reasonable doubt as to the existence of a genuine issue of material fact. Id. (emphasis added). Viewed through that lens of every reasonable doubt, summary judgment must be reversed. We start with the admitted facts Aundrea Robinson fell at the Sunflower store. After his fall, the store took an incident report filled with his impressions as well as those of the store employees. This incident report was given to the store s insurance company, who called Aundrea later that same afternoon. Sunflower also admits that there were 32 cameras in its store, and its employees testified they recorded footage of Aundrea s fall, and that the footage was so high in resolution they could see the puddle which caused him to slam to the floor. In its brief, the grocery store does not devote one syllable in its recitation of facts to either the cameras or the incident report. Nor does Sunflower try to dispute that it had footage of Aundrea s injury, that it was watched by store employees, and that there was an incident report. Sunflower ignores that the critical evidence in this case was either lost or destroyed. The only 2

7 conclusion is that the grocery store admits spoliation but believes it has no legal effect. This is not the law in Mississippi. By the time of the summary judgment hearing, the store had refused to produce this key information either by stonewalling or meekly conceding to the trial court that it had somehow lost the incident report. Giving Aundrea every reasonable doubt, this information must be considered favorable to him. The fact that the evidence has been lost or destroyed by Sunflower does not halt this inference. In Mississippi, damaged evidence is also viewed in favor of the person who sought it and a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss. Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). The Thomas case explicitly applies to the burden of proof when it has been restricted through spoliation. When evidence is lost or destroyed by one party (the spoliator ), thus hindering the other party s ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss. Thomas, 781 So. 2d at 133 (emphasis added). The rule of Thomas is a burden shifter where the party who has been harmed by spoliation has a much lighter burden at trial or by inference, at any other phase of the case. Thomas did not involve summary judgment or a trial; it reached appeal after a chancellor affirmed the finding of the Mississippi Gaming Commission. Id. at 127. Yet its rule is broad enough to be applied in other contexts, as the Court emphasized that Because the presumption of unfavorability is not solely confined to the specific issue of what information was contained in the missing evidence, the fact finder is free to draw a general negative inference from the act of spoliation, regardless of what the spoliator s rebuttal evidence shows. Id. at 133 (emphasis 3

8 added). In civil cases in circuit court, like this one, the factfinder will only deliberate on these issues after summary judgment has been hurdled. That Thomas embraces this approach is highlighted by its focus on how spoliation harms the system of justice: Requiring an innocent litigant to prove fraudulent intent on the part of the spoliator would result in placing too onerous a burden on the aggrieved party, the Court reasoned. Id. To hold otherwise would encourage parties with weak cases to inadvertently lose particularly damning evidence and then manufacture innocent explanations for the loss. Id. In this way, the spoliator could essentially destroy evidence and then require the innocent party to prove fraudulent intent before the destruction of the evidence could be used against it. Id. The warning of Thomas was not heeded in this case. The trial court did not shift the burden properly, and instead condemned Aundrea for not mustering evidence which he never had and could not obtain evidence which Sunflower even admits was lost in part. This is an impossible burden that no party can ever carry. Summary judgment must be reversed in order to allow this case to move forward in light of the store s admitted spoliation. Sunflower does not protest that it did indeed turn the recordings of Aundrea over in discovery, or that the incident report was preserved and submitted as an exhibit, or that its managers and employees did not actually watch the high-quality digital video of the puddle and Aundrea s fall. Sunflower takes the brazen stance that while it did not turn over the discovery despite precise discovery requests asking for it and the reality that the recordings and the report are crucial, critical evidence it simply does not matter. The store argues that the argument was not presented to the trial court, despite even quoting a passage from Aundrea s counsel specifically invoking the doctrine of spoliation before the trial court. 4

9 The reality is that a substantial part of Aundrea s argument against summary judgment before the trial court was focused on the missing and presumably destroyed evidence. Counsel for Aundrea argued why summary judgment should have been denied because of the lost incident report, because several store employees confirmed there was an accident report but it was not produced, and specifically discussing the missing video. See 3:9-10, 11, and 12. There s also a serious spoliation issue with the fact that there are several parties in this case testifying that there was video, yet that's not been turned over, counsel for Aundrea argued, also invoking that there has been an incident report filled out by both plaintiff and parties for the defense. 3:14. Aundrea s lawyer argued to the trial court that this lost or destroyed evidence prevented summary judgment. 3:14. This issue was raised before the trial court, but never addressed in the order granting summary judgment. Sunflower is directly invoking that which was prohibited in Thomas: that Aundrea prove that which he cannot due to their loss or destruction. Because the lost or destroyed incident report and camera footage creates a genuine issue of material fact, and taken in the light most favorable to Aundrea the evidence is positive for his case, summary judgment must be reversed. II. The Spoliation Rule Must Apply Throughout a Case or Its Purpose Is Defeated. Because the spirit of Thomas was meant to encourage fair litigation and stop destruction of evidence, it must be applied throughout a case. To the extent any cases state otherwise, they must be overruled in order to honor Supreme Court precedent and the spirit of the Rules of Civil Procedure. In its brief, the grocery store also urges that this Court follow a different rule than Thomas, arguing that spoliation, without more, is not enough to survive summary judgment. Response Brief, at 9. In support of ignoring binding law, Sunflower cites to a Court of Appeals 5

10 case. Because the Court of Appeals has materially deviated from the rule and language of the Supreme Court in Thomas, the case cannot be applied. One of the reasons the Rules of Civil Procedure were adopted was to bring an end to the era of trial by ambush and litigation through gamesmanship. The Rules shall be construed to secure the just, speedy, and inexpensive determination of every action. MRCP 1. The Courts have endeavored to eliminate the old means of ambush and surprise that were prevalent before the adoption of the Rules, and to continue revising the text of the Rules and the interpretation of them in order to do justice. For improper utilization of the rules invariably results in the type of gamesmanship and ambush techniques... that the rules were designed to abolish. Holmes v. Holmes, 628 So.2d 1361, 1365 (Miss. 1993). The Thomas case embraces the spirit of the Rules and created a clear doctrine to halt any improper games in discovery where one side might destroy evidence in order to gain an advantage. Nonetheless, in 2012 the Court of Appeals wandered far afield from the spirit of the Rules and the clear anti-spoliation doctrine of Thomas to the confines of the Second Circuit, which covers federal appeals in Connecticut, New York, and Vermont. See Bolden v. Murray, 97 So. 3d 710, 718 (Miss. Ct. App. 2012). After multiple citations to the settled law of Thomas, the Court leapt some 1,000 miles from Mississippi and suddenly declared: Finally, for purposes of summary judgment, the destruction [or spoliation] of evidence, standing alone, is not enough to allow a party who has produced no evidence or utterly inadequate evidence in support of a given claim to survive summary judgment on that claim. Kronisch v. United States, 150 F.3d 112, 128 (2d. Cir.1998). Id. at 718. Adopted wholesale from dicta in a Second Circuit case, this new rule flatly contradicts the Supreme Court s stern policy against spoliation announced in Thomas. 1 It effectively requires spoliation plus other evidence in order to hurdle summary judgment. As 1 This Supreme Court-defying rule has found purchase in a later decision of the Court of Appeals. See Cofield v. Imperial Palace of Mississippi LLC, 147 So. 3d 364, 367 (Miss. Ct. App. 2014). 6

11 the Supreme Court recognized in Thomas, this premise is self-defeating and can never be met, because crucial information cannot be replicated. There are many foreseeable situations where there is only one incident report, like this case, or one minute of relevant security camera footage. If that unique and critical evidence is lost or destroyed, a party s ability to meet the summary judgment burden is shattered. The Supreme Court s rule in Thomas is a safety device that prevents that harm; the Bolden case from the Court of Appeals turns it off. The Court of Appeals adoption of Second Circuit dicta dramatically raises the burden of summary judgment and incentivizes the destruction or loss of evidence. Parties like the Sunflower will see that they can obtain dismissal of valid suits by simply losing evidence. Even when they later admit that the evidence existed, it will not be enough to survive summary judgment. This reduces litigation to a game of who can destroy evidence first, which undermines the integrity of the entire judicial system, and injects a virus directly into the Rules of Civil Procedure, which were crafted to cure exactly these types of situations. As a result, to the extent that Bolden and Cofield conflict with Thomas, or eviscerate its clear rule, they must be overruled. See Rains v. Gardner, 731 So. 2d 1192, 1196 (Miss. 1999) (where the Supreme Court declared that the Court of Appeals is duty bound to follow this Court s precedent ); East Miss. State Hosp. v. Callens, 892 So. 2d 800, 805 (Miss. 2004) (Court of Appeals has recognized in its own jurisprudence that as an intermediate appellate court it was duty-bound to follow Supreme Court precedent); Hudson v. WLOX, Inc., 108 So. 3d 429, 432 (Miss. Ct. App. 2012) ( this court lacks authority to overrule Mississippi Supreme Court precedent ); Rivera-Guadiana v. State, 71 So. 3d 1221, 1224 (Miss. Ct. App. 2011) (as an intermediate court, the Court of Appeals must follow supreme court precedent ). There was evidence in the form of an incident report and video camera footage that detailed the reality of the injuries suffered by Aundrea Robinson. That evidence has been lost or 7

12 destroyed. Sunflower must not be allowed to gain an advantage in litigation over Aundrea due to its spoliation. For this reason, the precedent of Thomas must be restored, the spirit of the Rules of Civil Procedure honored, and summary judgment reversed. Conclusion All parties agree Aundrea fell that day at the Sunflower, and that the store had 32 cameras in the store filming Aundrea as he shopped and was hurt. The trial court failed to consider this critical missing evidence and a missing incident report. The trial court also failed to consider this missing evidence in Aundrea s favor. This legal error warrants reversal and remand. This order granting summary judgment must be REVERSED, and this case REMANDED for trial. Respectfully submitted, this the 28th day of October, s/ David Neil McCarty David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: Jonathan C. Tabor Miss. Bar No Leigh-Ann Tabor Miss. Bar No Emily Henry Burch Miss. Bar No TABOR LAW FIRM, PA 308 East Pearl St., Suite 201 Jackson, Miss T: E: eburch@taborlawfirm.net W: 8

13 CERTIFICATE OF SERVICE I, David McCarty, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Muriel B. Ellis, Clerk MISSISSIPPI SUPREME COURT Attorneys for Appellees Patrick M. Tatum William L. Morton, III UPSHAW WILLIAMS BIGGERS & BECKHAM, LLP And that I have further served a paper copy via first class U.S. Mail on the following: The Trial Court Honorable David H. Strong, Jr. PIKE COUNTY CIRCUIT COURT P.O. Drawer 1387 McComb, Miss On October 28, 2015, s/ David Neil McCarty David Neil McCarty 9