IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO TS OMAR L. NELSON, ET AL.

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1 E-Filed Document Jan :08: CA COA Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO TS ANITA WHITE, ET AL. APPELLANTS v. OMAR L. NELSON, ET AL. APPELLEES BRIEF OF APPELLEES IN RESPONSE TO APPELLANTS MOTION FOR REHEARING ORAL ARGUMENT NOT REQUESTED J. WILLIAM MANUEL (MBN 9891) MARY CLAY MORGAN (MBN ) MICHAEL L. COWAN, JR. (MBN ) BRADLEY ARANT BOULT CUMMINGS LLP One Jackson Place 188 East Capitol Street, Suite 400 Post Office Box 1789 Jackson, MS Telephone: (601) Facsimile: (601) Attorneys for Appellees Omar L. Nelson and Omar L. Nelson, PLLC

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii CERTIFICATE OF INTERESTED PERSONS...1 INTRODUCTION...2 DISCUSSION...2 Motion for JNOV...3 Motion for New Trial...8 The trial court properly excluded evidence of the medical malpractice case Because the Plaintiffs voluntarily dismissed their negligence-based claims, it was proper that the gross negligence and reckless disregard claims did not go to the jury CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Cases BC s Heating & Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., 892 F. Supp. 2d 779 (S.D. Miss. 2012) Channel v. Loyacono, 954 So. 2d 415 (Miss. 2007)...6 Crist v. Loyacono, 65 So. 3d 837 (Miss. 2011)... 5, 6, 9, 10 Dean v. Conn, 419 So.2d 148 (Miss.1982)...5 Estate of St. Martin v. Hixson, 145 So. 3d 1124 (Miss. 2014)...4 Griffin v. Harkey, 215 So. 2d 866 (Miss. 1968)...7 Hankins Lumber Co. v. Moore, 774 So. 2d 459 (Miss. Ct. App. 2000)...8 Harris v. Payne, 254 Fed. App x, 410, (5th Cir. 2007) Huynh v. Phillips, 95 So. 3d 1259 (Miss. 2012) Johnson v. St. Dominics Jackson Mem l Hosp., 967 So. 2d 20 (Miss. 2007)...4 Lane v. Oustalet, 873 So. 2d 92 (Miss. 2004)...5 Lascola v. Barden Miss. Gaming, LLC, 349 Fed. App x 878 (5th Cir. 2009) McGhee v. Young, 138 So. 3d 259 (Miss. Ct. App. 2014)... 2, 8 Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442 (Miss. 2015)... 3, 4 Sherwin Williams Co. v. Gaines ex rel. Pollard, 75 So. 3d 41 (Miss. 2011)...4 ii

4 Singleton v. Stegall, 580 So.2d 1242 (Miss.1991)...6 Smith ex rel. Smith v. Gilmore Mem'l Hosp., Inc., 952 So.2d 177 (Miss. 2007) Union Carbide Corp. v. Nix, Jr., 142 So. 3d 374 (Miss. 2014)...4 White v. Nelson, No CA COA, 2016 WL (Miss. Ct. App. Jan. 5, 2016)... passim Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205 (Miss. 1996) Wilson v. City of Biloxi, No. 1:11cv126, 2013 WL (S.D. Miss. May 21, 2013) Other Authorities 38 American Jurisprudence, Negligence 50, 695 (1941)...7 Miss. R. App. P passim iii

5 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made in order that the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Anita White, Taurean Gardner and Rashaun Gardner, Plaintiffs/Appellants. 2. Gregory M. Johnston, Gregory M. Johnston Attorney at Law, P.C., counsel for Plaintiffs/Appellants. 3. Omar L. Nelson and Omar L. Nelson, PLLC, Defendants/Appellees. 4. James W. Manuel, Mary Clay W. Morgan and Michael L. Cowan, Bradley Arant Boult Cummings LLP, counsel for Defendants/Appellees. 5. Honorable John Emfinger, Circuit Court Judge. Respectfully submitted, this the 26th day of January, s/ J. William Manuel J. William Manuel (MS Bar No. 9891) 1

6 INTRODUCTION The Appellants ( Plaintiffs ) Motion for Rehearing should be denied for three separate and independent reasons. First, the motion merely repeats arguments already considered and rejected by this Court. Consequently, the Motion for Rehearing should be denied. See Miss. R. App. P. 40. Second, the motion also lacks merit and fails to cite any authority that indicates that the Court applied the wrong legal standard in reviewing the lower court s rulings on Appellants motions for judgment notwithstanding the verdict (JNOV) and for new trial. The Plaintiffs Motion for Rehearing should be denied for this independent reason. See McGhee v. Young, 138 So. 3d 259, (Miss. Ct. App. 2014) (failure to cite authority operates as a procedural bar). Third, the Plaintiffs Motion for Rehearing also lacks merit. Under the standards of review applicable in this case, the Court was required to view the evidence in the light most favorable to the nonmoving party and determine if the verdict was supported by substantial evidence, or, alternatively, whether the verdict was against the overwhelming weight of the evidence. The Court was not required to recite every disputed fact in its opinion under either standard. Consequently, the Court focused on the facts necessary to determine whether the trial court erred in denying Plaintiffs motion for JNOV and motion for new trial. This was the proper legal standard, and the Motion for Rehearing should be dismissed. DISCUSSION Plaintiffs Motion for Rehearing is merely a repetition of arguments already considered and rejected by this Court. Plaintiffs admits as much in their motion, providing that Plaintiffs 2

7 renew their... averments that JNOV or a new trial should have been granted. 1 (Appellants Motion for Rehearing at p. 14). The Mississippi Rules of Appellate Procedure explicitly prohibit such re-argument of the merits of an appeal in the guise of a motion for rehearing. Miss. R. App. P. 40 ( the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. ). On this ground alone, rehearing should be denied. Motion for JNOV Plaintiffs Motion for Rehearing is without merit. The Plaintiffs argument for rehearing ignores the applicable standard of review. On appeal, Plaintiffs challenged the trial court s denial of their motion for JNOV. The trial court s denial of a JNOV is reviewed de novo and will be affirmed if, viewing the evidence in a light most favorable to the verdict, there is substantial evidence to support the verdict. White v. Nelson, No CA COA, 2016 WL 46503, at *3 (Miss. Ct. App. Jan. 5, 2016) (citing Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442, 446 (Miss. 2015)). A motion for JNOV is a challenge to the legal sufficiency of the evidence..., and not a judicial reweighing of the evidence. See Mine Safety Appliance Co. v. Holmes, 171 So. 1 Plaintiffs first introductory paragraph in their Motion for Rehearing is also illustrative. Plaintiffs erroneously suggest, The effect, meaning and precedent of this Court s decision is essentially that it is not a breach of fiduciary duty for a Mississippi licensed attorney to file a case with multiple errors, litigate the case and ultimately dismiss the case with prejudice making no recovery for the client, all without the client s knowledge or consent. What is glaringly missing here is any mention of causation and damages. As this Court correctly observed: when the malpractice claim is based on an allegation of breach of fiduciary duty, the plaintiff must establish (1) the existence of an attorney-client relationship; (2) the acts constituting a violation of the attorney's fiduciary duty; (3) that the breach proximately caused the injury; and (4) the fact and extent of the injury. Crist v. Loyacono, 65 So.3d 837, 843( 15) (Miss.2011). The proof of proximate cause in cases involving a claim of legal malpractice based on a breach of fiduciary duty is to be tailored to the injury the client claims and the remedy he elects. Id. at 842( 14) (quoting Singleton v. Stegall, 580 So.2d 1242, 1245 (Miss.1991)). White v. Nelson, No CA COA, 2016 WL 46503, at *4 (Miss. Ct. App. Jan. 5, 2016) (emphasis added). Plaintiffs claims to the contrary are without merit. 3

8 3d 442, 446 (Miss. 2015); (citing Johnson v. St. Dominics Jackson Mem l Hosp., 967 So. 2d 20, 22 (Miss. 2007)). The Court gives the nonmoving party the benefit of all favorable inferences that reasonably may be drawn from the evidence, and we will reverse the denial of a JNOV only if the facts are so overwhelmingly in favor of the moving party that reasonable jurors could not have arrived at a verdict against the moving party. Id. (quoting Union Carbide Corp. v. Nix, Jr., 142 So. 3d 374, (Miss. 2014)). Accordingly, the Court s analysis properly focused on the areas of the record that would, when viewed in the light most favorable to the verdict, indicate substantial evidence or whether the jury verdict was manifestly wrong. See White, 2016 WL This is exactly the approach required by law, and the Court was correct not to disturb the jury verdict. See Sherwin Williams Co. v. Gaines ex rel. Pollard, 75 So. 3d 41, 43 (Miss. 2011) ( [W]e will reverse [only] if the evidence, as applied to the elements of a party s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated. ). In support of their argument for rehearing on the trial court s denial of their JNOV motion, Plaintiffs present a list of facts they claim the Court failed to give proper weight. Setting aside the fact that this is an improper request under Rule 40 of Appellate Procedure for the moment, Plaintiffs fail to explain how the facts they cite are legally sufficient to support a claim for breach of fiduciary duty. To establish a legal malpractice claim based on breach of a fiduciary duty, Plaintiffs had to present proof of (1) the existence of an attorney-client relationship; (2) the acts constituting a violation of the attorney s fiduciary duty; (3) that the breach proximately caused the injury; and (4) the fact and the extent of the injury. Estate of St. Martin v. Hixson, 145 So. 3d 1124, 1129 (Miss. 2014). Plaintiffs list of facts fails to establish these elements. They point to no proof that any alleged breach of the duty of loyalty proximately caused them any injury. 4

9 The most glaring omission in Plaintiffs litany of facts they claim supports a JNOV and that they claim the Court did not give sufficient weight, is any proof that the Nelson Defendants actions proximately caused them a defined injury. To prevail against the Nelson Defendants under any legal theory, the Plaintiffs were required to prove they suffered damages. Here, there simply was no proof, beyond unsubstantiated speculation, of what amount the Plaintiffs would have obtained in settlement of their claims against Bristol-Myers in the absence of the Nelson defendants alleged malpractice and fraud. Consequently, not only would reweighing the facts be improper under Rule 40, it would be fruitless because Plaintiffs claims have no merit. Plaintiffs, in their Motion for Rehearing, also seem to claim again that, because their malpractice claims at trial were based on fraud and breach of fiduciary duty, they were not required to prove they would have prevailed in the underlying case to prove causation and damages. As they previously argued in their appeal, Plaintiffs base this contention on the case of Crist v. Loyacono, 65 So. 3d 837 (Miss. 2011). 2 Not only are the Plaintiffs wrong on the merits as discussed below, the Court addressed this very issue in its opinion. White, 2016 WL 46503, at *4 (finding that when the malpractice claim is based on an allegation of breach of fiduciary duty, the plaintiff must establish, inter alia, that the breach proximately caused the injury, and that proof of proximate cause in such cases is to be tailored to the injury the client claims and the remedy 2 Plaintiffs also cite Lane v. Oustalet, 873 So. 2d 92 (Miss. 2004). The Lane opinion, contrary to Plaintiffs assertions, is not in conflict with the Court s opinion. There, the Supreme Court noted that, in a breach of fiduciary duty based legal malpractice case, it is possible that there are circumstances in which a jury might determine the issue of an attorney s negligence without the benefit of expert testimony. Lane v. Oustalet, 873 So. 2d 92, 98 (Miss. 2004) (quoting Dean v. Conn, 419 So.2d 148, 151 (Miss.1982)). Because the only injury and remedy identified by the Plaintiffs was that they would have been successful on the merits of the underlying case, this was not one of the circumstances where a malpractice claim could be sustained without expert testimony. See Crist v. Loyacono, 65 So.3d 837, 843 (Miss. 2011) (proof of proximate cause is to be tailored to the injury the client claims and the remedy he elects. ). 5

10 he elects. ) (citing Crist v. Loyacono, 65 So. 3d 837, (Miss. 2011) (quoting Singleton v. Stegall, 580 So.2d 1242, 1245 (Miss.1991))). In Crist, the court held that the plaintiffs breach of fiduciary duty claims against their lawyers survived summary judgment, even in the absence of proof that they would have won the underlying lawsuit at trial. The Crist plaintiffs alleged that, but for the breach of fiduciary duty of the defendant lawyers, the plaintiffs would have been a part of a much larger settlement arranged by their other lawyer, Morgan, and therefore would have obtained settlements higher than that negotiated by the defendants. Id. at 840 n.1 (citing facts from Channel v. Loyacono, 954 So. 2d 415 (Miss. 2007)). Illustrating the reason proof of success in the trial of the underlying case was not necessary to support the Crist plaintiffs breach of fiduciary duty legal malpractice claim, the court gave the example of an attorney who fails to timely negotiate the settlement check on a doubtful claim. Id. at 843. In keeping with the court s admonition in both Crist and Singleton v. Stegall that proof of proximate cause is to be tailored to the injury the client claims and the remedy he elects, the court explained that under such circumstances, proof of success in the underlying trial was unnecessary. Id. at 842 (citing Singleton v. Stegall, 580 So. 2d 1242 (Miss. 1991)). Indeed, under the facts of Crist, the clients claimed their injury was the difference between the settlement they would have obtained but for their attorney s breach, and the amount they actually obtained. That amount was easily quantifiable and did not require proof of success at trial. For the Crist plaintiffs, they needed only to demonstrate the amount they would have obtained under the Morgan settlement, which Morgan was able to demonstrate through his own testimony concerning how he distributed the $39 million among his clients based on their injury level classifications. Id. at 845. The only way the Crist plaintiffs ultimately survived summary judgment on this very issue was by pointing to specific, quantifiable evidence testimony from Morgan 6

11 regarding the terms of an actual settlement of what the plaintiffs would have received as part of Morgan s verifiable $39 million settlement. Here, there was no other settlement in which the Plaintiffs allege they would have been a part. 3 Plaintiffs have failed to present any legally sufficient evidence of causation and damages. Consequently, the evidence overwhelmingly supports the jury s verdict in the Nelson Defendants favor, and the Court correctly refused to overrule the trial court order denying their motion for JNOV. Moreover, the Court already considered this issue, noting: Freese admitted he had never worked on a Plavix case; nor was he knowledgeable of any verdicts concerning Plavix. Furthermore, Freese acknowledged that in settlement negotiations, he informs a client that we could either win a significantly larger amount than they are offering, or we could win zero and the case could end up being worth nothing. So that's why you have settlements, because there is uncertainty in what the result would be. (Emphasis added). He offered no testimony of what a reasonable settlement would have been, taking into account the costs and uncertainty of the case. Moreover, Nelson s legal expert, Walter Morrison, testified that the warning label of Plavix specifically warned that the drug could cause TTP, which led him to believe that summary judgment in favor of Bristol Myers was highly likely had White not settled the case. Accordingly, the jury verdict, finding no liability for Nelson s recommending the settlement, was based on substantial evidence. White, 2016 WL 46503, at *4. Plaintiffs Motion for Rehearing also fails to cite any authority that indicates that the Court applied the wrong legal standard in reviewing the lower court s rulings on Appellants JNOV. 3 Plaintiffs claim that the damages estimate in the underlying state court medical malpractice case can substitute for proving causation is misplaced. Pointing to the damages estimate in no way proves that but for the Nelson Defendants handling of this action Plaintiffs would have recovered this sum. Indeed, this argument proves the Nelson Defendants point Plaintiffs grasp to what they believe they could have recovered in the underlying state medical malpractice case as evidence of causation and damages; however, they failed to provide expert testimony that but for the Nelson Defendants handling of the case that they would have been able to recover this sum. The estimate Plaintiffs point to is nothing more than a guess at what they might have been able to recover if they were able to prove causation in the underlying case. This does not meet the legal standard for proximate cause. See, e.g., Griffin v. Harkey, 215 So. 2d 866, 868 (Miss. 1968) ( The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. ) (quoting 38 American Jurisprudence, Negligence 50, 695 (1941)). 7

12 Accordingly, Appellants Motion for Rehearing should be denied on this basis as well. See McGhee v. Young, 138 So. 3d 259, (Miss. Ct. App. 2014) (failure to cite authority operates as a procedural bar). Motion for New Trial On appeal, Plaintiffs challenged the trial court s denial of their motion for a new trial. The denial of a motion for a new trial will be reversed [only] when the denial of the motion is manifestly wrong, and the verdict is substantially against the evidence presented at the trial. Hankins Lumber Co. v. Moore, 774 So. 2d 459, 464 (Miss. Ct. App. 2000). In their Motion for Rehearing, the Plaintiffs ignore the standard of review, and ask the court to give greater weight to the evidence they allege supported their claims presented at trial. However, the Court already considered this matter and determined that the evidence was not overwhelmingly against the verdict. Because this is a repetitive argument already ruled on, and because it has no merit, the Court should deny the Motion for Rehearing. Plaintiffs contend in their Motion for Rehearing, just as they did on appeal, that a new trial is in order because the trial court erred when it granted partial summary judgment on their claims related to their state court medical malpractice case. Plaintiffs appear to argue that the allegations they raised in their amended complaint relative to this medical malpractice case were intended to support their breach of fiduciary duty based malpractice claim as well as their negligence-based malpractice claim. According to Plaintiffs, the summary judgment dismissing Plaintiffs fiduciary duty-based legal malpractice claims related to the state court medical malpractice case was improper because, inter alia, the Court improperly applied the trial-within-a-trial test when it dismissed these claims. This argument, which the Court has already considered, has no merit. 8

13 First, Plaintiffs argument that the allegations they made in their amended complaint relative to the state court medical malpractice case supported a claim for fiduciary duty-based malpractice fails based on a cursory review of the amended complaint. The complaint only pleads fraudulent misrepresentation, legal malpractice, gross negligence/reckless disregard, and intentional conduct. R The legal malpractice claim alleges only that the Defendants breached the duty of care that they owed Plaintiffs, such that they were negligent. R. 508 at 30. Plaintiffs never properly pled a claim of breach of fiduciary duty relative to the state court medical malpractice case. Even if Plaintiffs had properly pled a fiduciary duty-based malpractice claim, as this Court has already found, Plaintiffs request to overturn the trial court s summary judgment has no merit. The allegation that somehow the fiduciary duty issue was not considered by the trial court is unfounded. Contrary to the assertions of the Plaintiffs, this issue was thoroughly briefed and argued prior to the trial court s ruling. And as the trial court s ruling makes clear, it rejected Plaintiffs claims of both negligence and breach of fiduciary duty arising out of the medical malpractice action: for the plaintiffs to recover for negligence-based legal malpractice or for legal malpractice based upon an allegation of breach of fiduciary duty.... R Contrary to Plaintiffs argument on appeal and now in their Motion for Rehearing, Plaintiffs must prove causation and damages in a breach of fiduciary duty claim. See Crist v. Loyacono, 65 So.3d 837, 843 (Miss. 2011) (confirming that in a breach of fiduciary duty claim, plaintiff must still prove that the breach proximately caused the injury. ). Trial-within-a-trial evidence is not necessary in all breach of fiduciary duty cases because proof of proximate cause must be tailored to the injury the client claims and the remedy he elects. Id. Whether expert testimony is necessary depends on the remedy and injury claimed by the Plaintiff. See id. For example, the court noted 9

14 that if the Plaintiff was claiming that the breach of fiduciary duty caused injury entirely separate from the merits of the underlying case, then expert testimony to prove the trial within a trial may not be necessary. Id. at 843. Here, with regard to the state court medical malpractice action, the only injury and remedy identified by the Plaintiffs was that they would have been successful on the merits of the underlying case. They claimed no damages that were entirely separate from those merits, as the trial court correctly found. As such, consistent with the holding in Crist, the trial court held that Plaintiffs could not meet their burden on proximate cause and granted summary judgment. Nothing Plaintiffs point to in their Motion for Rehearing suggests they claimed damages that were separate from the merits in the underlying medical malpractice case. To have established their legal malpractice claim, whether negligence-based or fiduciary duty-based, founded on the underlying state court medical malpractice case, Plaintiffs had to show that the actions or omissions of the Nelson Defendants proximately caused the Plaintiffs to fail to be successful in that action. Plaintiffs put on no such evidence, and the trial court correctly concluded that Plaintiffs failure to provide expert testimony from a medical expert on the issue of medical malpractice required dismissal of Plaintiffs legal-malpractice claims relative to the medical-malpractice case. The trial court s partial summary judgment ruling was proper. Smith ex rel. Smith v. Gilmore Mem'l Hosp., Inc., 952 So.2d 177, 180 (Miss. 2007) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss. 1996)) (plaintiff is required to make a showing sufficient to establish the existence of an element essential to that party s case, and on which will bear the burden of proof at trial. ). As the trial court found, Plaintiffs failure to offer medical expert testimony in this case was fatal to their legal malpractice claims based on the state court medical malpractice action. R. 10

15 Plaintiffs sole remedy chosen with regard to the medical malpractice action was related to the underlying merits of the case. By selecting that remedy, they were required to prove that, but for the Nelson Defendants alleged acts or omissions, Plaintiffs would have been successful in the medical malpractice action, and because expert testimony was required to make that showing, Plaintiffs failure to designate a medical expert was dispositive of their legal malpractice claims based on the medical malpractice lawsuit. The trial court s summary judgment ruling was proper, and the trial court properly denied Plaintiffs motion for a new trial on this basis. Plaintiffs arguments regarding this issue in their Motion for Rehearing have no merit. This issue also was considered by the Court and ruled on in its opinion. Because the Court applied the correct legal standard and this is a mere repetitious argument of matters already considered by the Court, the Motion for Rehearing should be denied. See White, 2016 WL 46503, at *6 ( With regard to the state med-mal claim, the only injury alleged by White was that the claim would have been successful on the merits.... As White failed to designate a medical expert witness for the medmal claim, we cannot find error in the trial court s grant of partial summary judgment on this issue. ). The trial court properly excluded evidence of the medical malpractice case. In their Motion for Rehearing, Plaintiffs again argue that they were prohibited from effectively being able to prosecute their case due to the trial court s evidentiary rulings regarding the underlying medical malpractice action. This issue was addressed by the Court, and the Motion for Rehearing should be denied. See White, 2016 WL 46503, at *5-*6. The issue also lacks merit. As noted above, the trial court properly found that the Plaintiffs were unable to meet their burden of showing that the Nelson Defendants actions or inactions with regard to the state court medical malpractice action proximately caused them to suffer damages. In light of the trial court s summary judgment order, the Nelson Defendants moved the trial court 11

16 to exclude any and all mention before the jury of the handling of that medical malpractice action. R However, Plaintiffs were not summarily prohibited from introducing any evidence regarding the state court case at trial. Instead, the Court granted the Nelson Defendants motion in limine in part and denied it in part. R. 2131; Tr Pursuant to the Court s order, the Plaintiffs expert, Mr. Rich Freese, was permitted to reference certain issues related to the medical malpractice action, including damages estimates conducted by Winston Thompson and the potential for a claim against the medical providers to have been included in the federal court complaint against Bristol-Meyers. R As Plaintiffs had the opportunity to present this evidence to the jury, there was no undue prejudice against the Plaintiffs case. At trial, Plaintiff presented evidence that Mr. Nelson and Mr. Thompson had a professional relationship and that Mr. Nelson referred the case to Mr. Thompson. Second, Plaintiffs were allowed to argue and infer that Mr. Nelson was involved in Ms. White s case even after it was turned down by Sweet and Freese. And finally, counsel for Plaintiffs specifically questioned both Ms. Whalen and Mr. Thompson about the economic loss damages and their later damages estimates relating to the medical malpractice action. Tr Further, the Court s ruling on the Motion in Limine specifically allowed for Mr. Freese to testify as to those damages. Therefore, the trial court allowed Plaintiffs to present proof on all of the issues that Plaintiffs claimed made the medical malpractice case relevant---despite the trial court s ruling prohibiting mention of the case itself. As such, there was no prejudice to Plaintiffs. Evidence regarding the underlying medical malpractice would have caused confusion and unfair prejudice that would have clearly outweighed any probative value. As such, the trial court committed no error in rejecting this argument for a new trial. This issue has no merit. 12

17 And again, this is an issue the Court considered. Specifically, the Court provided, White suffered no prejudice as a result of the exclusion of this evidence; therefore, we find no abuse of discretion in the trial court s ruling, and the trial court did not err in denying White s motion for a new trial. White, 2016 WL 46503, at *6. Denial of the Motion for Rehearing is proper. See Miss. R. App. P. 40. Because the Plaintiffs voluntarily dismissed their negligence-based claims, it was proper that the gross negligence and reckless disregard claims did not go to the jury. Finally, Plaintiffs argue that the trial court erred by not allowing them to present their gross negligence and reckless disregard claims to the jury. Plaintiff s Motion for Rehearing on this issue should be dismissed under Rule 40, as it was already considered and rejected by the Court. See White, 2016 WL 46503, at *7-*8. This argument is also meritless because Plaintiffs voluntarily dismissed all negligencebased claims on the eve of trial. Where the proof does not meet the standard for negligence, claims with a higher burden like gross negligence or intentional torts also must fail. See, e.g., Harris v. Payne, 254 Fed. App x, 410, (5th Cir. 2007) ( Under Mississippi law, the reckless disregard standard is not satisfied by conduct that is merely negligent. ); see also Huynh v. Phillips, 95 So. 3d 1259, 1264 (Miss. 2012) (because summary judgment dismissing negligence claim was proper, gross negligence claim s dismissal was necessarily proper); Lascola v. Barden Miss. Gaming, LLC, 349 Fed. App x 878, 885(5th Cir. 2009) (same); Wilson v. City of Biloxi, No. 1:11cv126, 2013 WL , at *7 (S.D. Miss. May 21, 2013) (same); BC s Heating & Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., 892 F. Supp. 2d 779, (S.D. Miss. 2012) (same). Plaintiffs voluntary dismissal necessarily included any separate claims that the Nelson Defendants grossly or recklessly breached the duty of care. Therefore, it would have been error for the Plaintiffs gross negligence and reckless disregard claims to have gone to jury. This issue 13

18 has no merit, and Plaintiffs Motion for Rehearing is merely an attempt to reargue a matter the Court already considered. Accordingly, the Motion for Rehearing should be denied. CONCLUSION Because Plaintiffs Motion for Rehearing points to no legitimate misapprehensions of law and is nothing but a regurgitation of her arguments already consider by the Court, Nelson respectfully requests that the Court deny Plaintiffs Motion for Rehearing. RESPECTFULLY SUBMITTED, this the 26 th day of January, OMAR L. NELSON AND OMAR L. NELSON, PLLC, Appellees /s/ J. William Manuel J. WILLIAM MANUEL (MBN 9891) MARY CLAY MORGAN (MBN ) MICHAEL L. COWAN, JR. (MBN ) Bradley Arant Boult Cummings LLP One Jackson Place 188 East Capitol Street, Suite 400 Post Office Box 1789 Jackson, MS Telephone: (601) Facsimile: (601) wmanuel@babc.com mmorgan@babc.com mcowan@babc.com Attorneys for Appellees 14

19 CERTIFICATE OF SERVICE I, the undersigned attorney of record, do hereby certify that I have this the 26th day of January, 2016, filed with the Clerk of the Court using the MEC system, which will deliver copies to all counsel of record: Gregory M. Johnston Attorney at Law, P.C. P.O. Box 1691 Madison, MS Attorneys for Appellants and that I have caused copies of the above to be delivered by United States mail, first-class postage prepaid, to the following: Honorable John Emfinger Madison County Circuit Court P.O. Box 1626 Canton, MS Trial Judge and to the following, who were parties to this action in the trial court but who have not entered an appearance in the Mississippi Supreme Court: none /s/ J. William Manuel J. WILLIAM MANUEL (MBN 9891) MARY CLAY MORGAN (MBN ) MICHAEL L. COWAN (MBN ) 15