MOTION FOR REHEARING

Transcription

1 E-Filed Document Sep :06: CA COA Pages: 34 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT v. DOROTHY L. BARNETT, INDIVIDUALLY AND AS WRONGFUL DEATH BENEFICIARY OF HOWARD BARNETT, DECEASED AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF HOWARD BARNETT, DECEASED APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT HONORABLE WINSTON L. KIDD, CIRCUIT JUDGE MOTION FOR REHEARING John D. Cosmich (MSB # 8353) cos@cs-law.com Michael D. Simmons (MSB # 9828) mike@cs-law.com LaKeysha Greer Isaac (MSB # ) lakeysha@cs-law.com COSMICH SIMMONS & BROWN, PLLC Post Office Box Jackson, Mississippi T: F: Attorneys for Appellant/Defendant Mississippi Valley Silica Company, Inc.

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii INTRODUCTION... 1 POINTS OF FACT OVERLOOKED OR MISSAPPREHENDED BY THE MAJORITY... 1 ARGUMENT REGARDING THE MAJORITY S LEGAL ERRORS ENCOMPASSING THE ABOVE-LISTED POINTS OF FACT... 5 I. The Court Should Have Reversed and Rendered the Judgment as Void... 5 A. Mississippi Valley Was Not Required to Seek Clarification of the Verdict... 5 B. Mississippi Valley Never Waived the Plaintiff s Inability to Recover Survival-Type Damages... 8 C. The Majority Relied on Inapplicable Precedent When It Alternatively Addressed the Issue of Standing II. Plaintiff s Claims Were Time-Barred III. Mississippi Valley Owed No Duty to the Decedent, Who Was a Bystander IV. The Mississippi Supreme Court s Decision in Mississippi Valley Silica Co. v. Reeves, 141 So. 3d 377 (Miss. 2014), Required Dismissal of the Plaintiff s Claims V. The Mississippi Supreme Court s Decision in Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442 (Miss. 2015), Fails to Support the Verdict on the Issue of Causation VI. Plaintiff s Breach-of-Duty Evidence Was Insufficient as a Matter of Law Even if Mississippi Valley Owed the Decedent a Duty VII. The Jury Should Not Have Been Permitted to Consider Punitive Damages VIII. At the Bare Minimum, a Remittitur Should Have Been Granted A. Punitive Damages B. Noneconomic Damages CONCLUSION. 25 i

3 CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Cases Alcoa, Inc. v. Behringer, 235 S.W.3d 456 (Tex. App. 2007) AmFed Nat l Ins. Co. v. NTC Transp., Inc., No CA SCT, 2016 WL (Miss. Aug. 11, 2016)... 7 Bailey v. State, 952 So. 2d 225 (Miss. Ct. App. 2006) Bartley-Rice v. State Farm Mut. Auto. Ins. Co., 172 So. 3d 1227 (Miss. Ct. App. 2014)... 7 Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (Miss. 1935)... 5, 10 Bradfield v. Schwartz, 936 So. 2d 931 (Miss. 2006) Burley v. Douglas, 26 So. 3d 1013 (Miss. 2009)... 8, 9 Canadian Nat l Ry. Co. v. Waltman, 94 So. 3d 1111 (Miss. 2012) Coleman & Coleman Enters., Inc. v. Waller Funeral Home, 106 So. 3d 309 (Miss. 2012) Doe v. Jameson Inn, Inc., 56 So. 3d 549 (Miss. 2011)... 21, 22 Doe v. Roman Catholic Diocese of Jackson, 947 So. 2d 983 (Miss. Ct. App. 2006) Double Quick, Inc. v. Lymas, 50 So. 3d 292 (Miss. 2011) Eli Invs., LLC v. Silver Slipper Casino Venture, LLC, 118 So. 3d 151 (Miss. 2013) Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015)... 15, 16 iii

5 Estate of Holmes v. Pneumo Abex, L.L.C., 2011 IL App (4th) Estate of Hunter v. Gen. Motors Corp., 729 So. 2d 1264 (Miss. 1999) Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555 (Miss. 2007) Federated Mut. Ins. Co. v. McNeal, 943 So. 2d 658 (Miss. 2006) Gillen v. Boeing Co., 40 F. Supp. 3d 534 (E.D. Pa. 2014) Goff v. State, 14 So. 3d 625 (Miss. 2009) Ill. Cent. R.R. Co. v. White, 610 So. 2d 308 (Miss. 1992) In re Certified Question from the Fourteenth Dist. Ct. of Appeals of Tex., 479 Mich. 498, 740 N.W.2d 206 (Mich. 2007) In re City of Biloxi, 113 So. 3d 565 (Miss. 2013)... 9, 10 In re Estate of England, 846 So. 2d 1060 (Miss. Ct. App. 2003)... 5, 8, 9 In re Guardianship of Duckett, 991 So. 2d 1165 (Miss. 2008) In re N.Y. City Asbestos Litig., 5 N.Y.3d 486, 840 N.E.2d 115 (N.Y. 2005) Kirk v. Pope, 973 So. 2d 981 (Miss. 2007)... 9, 10 Lincoln Elec. Co. v. McLemore, 54 So. 3d 833 (Miss. 2010) Little v. Bell, 719 So. 2d 757 (Miss. 1998) Lott v. Alexander, 134 So. 3d 369 (Miss. Ct. App. 2014) iv

6 Methodist Hosp. of Hattiesburg, Inc. v. Richardson, 909 So. 2d 1066 (Miss. 2005) Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442 (Miss. 2015)... 17, 18 Miss. Dep t of Transp. v. Allred, 928 So. 2d 152 (Miss. 2006) Miss. Valley Silica Co. v. Barnett, No CA COA, 2016 WL (Miss. Ct. App. Aug. 23, 2016)... passim Miss. Valley Silica Co. v. Eastman, 92 So. 3d 666 (Miss. 2012)... 7 Miss. Valley Silica Co. v. Reeves, 141 So. 3d 377 (Miss. 2014)... 17, 18 N.H. Ins. Co. v. Sid Smith Assocs., Inc., 610 So. 2d 340 (Miss. 1992) Paz v. Brush Engineered Materials, 949 So. 2d 1 (Miss. 2007) Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505 (Miss. 2015) Powe v. Byrd, 892 So. 2d 223 (Miss. 2004) PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47 (Miss. 2005) Rich ex rel. Brown v. Nevels, 578 So. 2d 609 (Miss. 1991)... 6 Ridgway Lane & Assocs., Inc. v. Watson, 189 So. 3d 626 (Miss. 2016) R.J. Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2005) Satchfield v. R.R. Morrison & Son, Inc., 872 So. 2d 661 (Miss. 2004) v

7 Scaggs v. GPCH-GP, Inc., 23 So. 3d 1080 (Miss. 2009)... 6 Sherwin-Williams Co. v. Gaines ex rel. Pollard, 75 So. 3d 41 (Miss. 2011)... 18, 19 State Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So. 2d 1048 (Miss. 1985) Watts v. Radiator Specialty Co., 990 So. 2d 143 (Miss. 2008) Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997 (Miss. 2004) Wilks v. Am. Tobacco Co., 680 So. 2d 839 (Miss. 1996)... 5, 10 Statutes Miss. Code Ann (2)(a) Miss. Code Ann (2)(b)... 23, 24, 25 Miss. Code Ann Miss. Code Ann (a)(ii) Miss. Code Ann (c)(i)... 14, 20 Miss. Code Ann (c)(ii) Miss. Code Ann (e) Miss. Code Ann (f)(ii)... 14, 15 Miss. Code Ann (1)(a) Miss. Code Ann (3) Miss. Code Ann Miss. Code Ann Miss. Code Ann (2)... 13, 14 Miss. Code Ann , 24 vi

8 Miss. Code Ann Rules M.R.A.P , 25 M.R.A.P. 40(a)... 1 M.R.A.P M.R.C.P , 8 M.R.C.P. 17(a)... 8 Miss. R. Prof l Conduct vii

9 INTRODUCTION By a divided vote, the Mississippi Court of Appeals affirmed the trial court s judgment, and affirmed on all issues except for the award of attorneys fees. Appellant Mississippi Valley Silica Company, Inc. ( Mississippi Valley ) seeks rehearing of all rulings by the majority affirming the trial court pursuant to M.R.A.P. 40. The Rule sets forth the following standard: The motion shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. M.R.A.P. 40(a). As discussed below, the majority opinion contains several errors of law and fact that necessitate rehearing. POINTS OF FACT OVERLOOKED OR MISSAPPREHENDED BY THE MAJORITY 1. The majority erroneously found that the verdict form does not establish that the jury rejected Dorothy s [the Plaintiff s] wrongful death claim. Miss. Valley Silica Co. v. Barnett, No CA COA ( 15), 2016 WL (Miss. Ct. App. Aug. 23, 2016) (hereinafter Barnett, ( ) ). The misnomer in the preprinted text of Question 4 of the verdict form (the use of the word and as opposed to or between the terms lung condition and death ) fails to negate, or create an irreconcilable conflict with, the jury s response of No to the question of whether Plaintiff proved that silicosis or silica-related diseases caused Howard Barnett s death, Question 2, and the jury s non-award of Wrongful Death damages in the amount of $0.00 in response to Question 5. (R.E. at 54-55; Tr. at ). 1 This is made clear by the Plaintiff s acknowledgments on appeal that the jury declined to agree that silicosis or 1 Throughout this Motion for Rehearing, the Record is cited as R., the Record Excerpts accompanying the Brief of Appellant are cited as R.E., the Trial Transcript is cited as Tr., and the Supplemental Record is cited as S.R. 1

10 silica-related disease was a substantial contributing cause of Howard s death, and the jury did not find for Dorothy on the wrongful death claim.... (Brief of Appellee at pp. 16, 21) The majority erroneously found that [n]o alternative causal chain [for the death of Howard Barnett] was alleged by Mississippi Valley. Barnett, ( 18). Mississippi Valley not only alleged that the death of Howard Barnett was caused by processes other than silicosis, it elicited testimony from a board-certified cardiologist that Mr. Barnett died of congestive heart disease having nothing to do with silicosis. (Tr. at 615, , ). The jury clearly accepted this testimony in refusing to award the Plaintiff any damages for wrongful death. (R.E. at 54-55; Tr. at ) The majority erroneously found that nothing should be inferred from the fact that the jury did not award any additional Wrongful Death damages. Barnett, ( 19). The majority s rationale for this determination appears to be that the jury was not instructed on the meaning of wrongful death damages. Here, the majority overlooked the trial court s explicit instruction for the jury to consider [r]easonable and necessary expenses already incurred and funeral expenses. (Tr. at 698) (emphasis added). Funeral expenses are explicitly authorized by Mississippi s wrongful death statute, Miss. Code Ann The majority also failed to take note of Plaintiff s counsel s closing argument, in which he specifically told the jury as follows regarding the type of damages they were to award in the Wrongful Death blank in the verdict form: And then there s the wrongful death. A family separated, time alone. Love ones gone, and the time that they were going to be spending time together in the twilight years. (Tr. at 715). The only thing that can be inferred from the jury s non-award of $0.00 for Wrongful Death is 2 These concessions are consistent with Plaintiff s post-verdict representations to the trial court. Plaintiff[] could not predict the jury would find that there was no wrongful death claim. (R. at 5126). 3 Mr. Barnett s family physician, Dr. Charles Pruitt, admitting that the Plaintiff called him and asked that he mention silicosis in Mr. Barnett s death certificate also likely influenced the jury s finding that Mr. Barnett s death was not caused by silicosis. (Tr. at , 574). 2

11 that the jury did not believe the Plaintiff was entitled to such damages. 4. The majority erroneously found that only after the jury was discharged, did Valley assert that the jury s answer to Question 2 constituted a rejection of Dorothy s wrongful death claim. Barnett, ( 21). Here, the majority overlooked the following statement from Mississippi Valley s counsel during the jury instruction conference: But, for instance, if they say that it was a silica-related injury but it didn't cause the death, in other words, he had silicosis while he was alive but they didn't prove that it caused his death, then some of the damages wouldn't apply. (Tr. at 680). Plaintiff s counsel essentially agreed that the issue could be address[ed]... after it s done, i.e., after the verdict was rendered. (Tr. at ). 5. The majority erroneously found that Mississippi Valley did not raise the issue of the Plaintiff s inability to recover survival-type damages until after the trial was concluded and judgment was entered. Barnett, ( 32). This determination fails to consider the argument of Mississippi Valley s counsel referenced in the preceding paragraph. Further, the majority overlooks Mississippi Valley s Answer to the First Amended Complaint, which specifically asserted defenses regarding Plaintiff s claims for survival damages. (R. at 3607, 3619). The Answer was filed approximately one year and six months prior to the trial of this action. (R. at 3607; Tr. at 1). 6. The majority erroneously found that Mississippi Valley raised the statute of limitations as a ground for a new trial, not JNOV. Barnett, ( 44). This finding overlooks the last catchall sentence of Mississippi Valley s post-trial motion. Mississippi Valley requested that the trial court grant it a judgment notwithstanding the verdict in whole or part for the foregoing reasons, which included its statute of limitations defense. (R. at 4924, 4940, 4949). Thus, Mississippi Valley raised the subject defense as grounds for a new trial and JNOV. 7. The majority erroneously found that Dr. Julian Rose [Mr. Barnett s treating 3

12 physician] testified that he was first able to diagnose Howard with silicosis less than three years prior to the commencement of this lawsuit. Barnett, ( 48) (emphasis added). Actually, Dr. Rose testified that he did not diagnosis the Decedent with silicosis until December of 2010, which was approximately five months after the lawsuit was filed. (R. at 35; S.R., tab 6 at p. 9; Tr. at , ). 8. The majority erroneously overlooked the fact that the damages sought in this action encompassed medical expenses for respiratory treatments provided to Mr. Barnett as early as August of 2006, approximately four years prior to the filing of this lawsuit. (Tr. at ). 9. The majority erroneously overlooked the admission of Dr. Vernon Rose, Plaintiff s retained industrial hygienist, that he had no way of knowing whether Mr. Barnett s actual potential dose to respirable silica fell above or below levels recommended by certain professional agencies. (Tr. at 354). 10. The majority erroneously found that a letter written by Mississippi Valley s former president, Frank Bogran, in 1990 was admitted into evidence at trial without discussion or any on-the-record objection.... Barnett, ( 61). Mississippi Valley objected to any testimony at trial from Mr. Bogran via its Combined Motion in Limine and Objections to Plaintiff s Deposition Designations. (R. at , , 4305, ). Those objections implicitly encompassed the admission of any unsworn statement from Mr. Bogran. Further, Mr. Bogran s unsworn statements were discussed at the pretrial hearing on Mississippi Valley s Combined Motion in Limine, in which Mississippi Valley s counsel argued that the testimony of Frank Bogran should be excluded. (S.R., tab 5 at pp. 1-2, 37-40, 44-45). In addition, Mississippi Valley specifically objected to the admission of the 1990 letter and a second unsworn 4

13 writing from Mr. Bogran dated March 5, 1994, in its Objections to Plaintiff s Trial Exhibit List. 4 ARGUMENT REGARDING THE MAJORITY S LEGAL ERRORS ENCOMPASSING THE ABOVE-LISTED POINTS OF FACT The majority erred in each ruling affirming the trial court. The majority did not overlook the controlling law in most instances, but instead, found applicable precedent distinguishable and failed to apply statutes as written in affirming the circuit court s judgment in favor of Dorothy for actual and punitive damages. Barnett, ( 3). The majority further erroneously held that Mississippi Valley waived issues at seemingly every turn, and erected a procedural bar unimagined by the Plaintiff. The majority s numerous, substantial errors favoring the Plaintiff should not be allowed to stand. I. The Court Should Have Reversed and Rendered the Judgment as Void The dissent got it right. The jury determined that it could not attribute Barnett s death to silicosis either by cause or contribution. Barnett, ( 87) (Ishee, J., dissenting). Accordingly, Plaintiff was not awarded any wrongful death damages and the Plaintiff lacked the necessary standing to recover the survival damages awarded. See id. Only the Decedent s estate, which was never opened, possessed standing to recover survival-type damages pursuant to Miss. Code Ann (the survival statute). See Wilks v. Am. Tobacco Co., 680 So. 2d 839, 843 (Miss. 1996); Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (Miss. 1935); In re Estate of England, 846 So. 2d 1060, 1068 (Miss. Ct. App. 2003). Mississippi Valley neither waived this issue pursuant to a misnomer in the verdict form nor by operation of M.R.C.P. 17. Upon rehearing, the Court should correct its ruling and reverse and render the trial court s judgment. No other issue needs to be considered. A. Mississippi Valley Was Not Required to Seek Clarification of the Verdict 4 Neither Plaintiff s Trial Exhibit List nor Mississippi Valley s Objections are included in the record. Nonetheless, the filing of those documents in the trial court should be deemed stipulated since the duty of candor precludes Plaintiff s counsel from denying their existence. See Miss. R. Prof l Conduct

14 The majority s interpretation of the verdict form is erroneous. The purported irreconcilable conflict between the jury s answers to Questions 2 and 4 is nothing more than a misnomer in the preprinted text of Question 4. Cleary, the pertinent text of Question 4 should have stated lung condition or death and not lung condition and death. Yet, the misuse of a conjunction does not mean that Mississippi Valley was required to seek clarification of the verdict, or that Mississippi Valley waived the issue of Plaintiff s lack of standing by failing to do so. 5 The jury s intent that the Plaintiff receive nothing for Mr. Barnett s alleged wrongful death was made clear in its responses to Questions 2 and 5. (See supra 1). The majority s determination that nothing should be inferred from the fact that the jury did not award any additional Wrongful Death damages 6 is erroneous for the above-stated reasons. (See supra 2-3). Mississippi Supreme Court precedent regarding a misnomer in a summons analogously applies here. The Court has adopted the general view which holds that a misnomer is not fatal so long as the incorrectly-identified party knew what was meant. Rich ex rel. Brown v. Nevels, 578 So. 2d 609, 612 (Miss. 1991); see also Scaggs v. GPCH-GP, Inc., 23 So. 3d 1080, 1084 (Miss. 2009) (providing that judgments should be allowed to stand notwithstanding a misnomer if the identity of the persons sued and against whom judgment is rendered is not doubtful ). The Plaintiff undoubtedly knew that the jury meant she was not entitled to any damages for wrongful death given her representations in the court below and her statements to this Court on appeal. (See supra 1). Even prior to the verdict, counsel for both parties recognized that some of the 5 Conversely, an irreconcilable conflict would have existed in the verdict form had the jury answered No in response to Question 4 given its determination that silicosis or silica-related diseases caused Mr. Barnett s lung condition in response to Question 1. In that situation, switching out the conjunction and with or would not cure the discrepancy. 6 Barnett, ( 19). 6

15 damages wouldn t apply if the jury found that Mr. Barnett suffered from a silica-related injury that did not cause his death. (Tr. at ). There was no need for Mississippi Valley to seek clarification of the verdict before the jury was discharged since both parties understood the jury declined to award the Plaintiff any damages for wrongful death. Barnett, ( 21). The Court of Appeals determination that an issue was procedurally barred in Bartley- Rice v. State Farm Mutual Automobile Insurance Co., 172 So. 3d 1227 (Miss. Ct. App. 2014), has no application in this case. In Bartley-Rice, the plaintiff claimed that the trial court erred in failing to correct an obvious conflict in the jury s verdict. 172 So. 3d at The Court of Appeals found that the plaintiff could not raise the issue on appeal since she failed to object or seek clarification of the verdict before the jury was discharged. Id. at Bartley-Rice is distinguishable and inapplicable here because Mississippi Valley does not claim that the jury s verdict was contradictory on the issue of wrongful death damages. Id. at Mississippi Valley cannot be faulted for failing to seek clarification of an issue that needed no clarification to the parties. 7 The Mississippi Supreme Court recently declined to address an issue sua sponte that both parties conceded was not an issue before this Court. AmFed Nat l Ins. Co. v. NTC Transp., Inc., No CA SCT, 2016 WL , at *9 (Miss. Aug. 11, 2016). This Court should have done the same with respect to the misnomer in the verdict form. That there will be inaccuracies and inconsistencies in trial filings is to be expected given the constraints of time and demands of the judge and jury that litigants and their counsel must manage at trial. That an appellate court is able to identify those imperfections after the smoke has settled and gavel has 7 Even assuming, arguendo, that the verdict form contained an irreconcilable conflict, the trial judge [bears] the ultimate duty to instruct the jury properly. Miss. Valley Silica Co. v. Eastman, 92 So. 3d 666, 669, 673 (Miss. 2012) (reversing and remanding for a new trial where the trial judge refused, as opposed to reformed, a flawed jury instruction). 7

16 sounded is also not unusual. That the majority found a misnomer in the verdict form to constitute a procedural bar for Mississippi Valley is clearly erroneous. B. Mississippi Valley Never Waived the Plaintiff s Inability to Recover Survival-Type Damages The majority erroneously found that Mississippi Valley waived the issue of Plaintiff s lack of standing by operation of M.R.C.P. 17. Rule 17 states in pertinent part: Every action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.... M.R.C.P. 17(a) (emphasis added). Rule 17 was inoperative in the proceedings below because the Plaintiff, as the Decedent s surviving spouse, had the ability to prosecute a wrongful death action encompassing survival-type claims pursuant to the one suit rule for wrongful death litigation. When the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the one suit for wrongful death and is not actionable by the estate under the survival statute. Estate of England, 846 So. 2d at 1068; see also Burley v. Douglas, 26 So. 3d 1013, 1023 (Miss. 2009) (recognizing that section encompasses wrongful death and survival-type claims, and taking note of the statutory distinction between a party s authority to bring the wrongful-death action and the party s ability to recover damages from it ). Each wrongful-death claimant s ability to recover damages, and the point when that ability becomes available, is a separate question. Burley, 26 So. 3d at Mississippi Valley timely filed its motion for JNOV asserting the Plaintiff s inability to recover damages once the jury s verdict rendered the wrongful death statute inoperable and limited recovery to the Decedent s estate under the survival statute. (R. at ) Any request for dismissal on the basis of the Plaintiff s lack of standing to prosecute the litigation prior to the 8

17 jury s verdict would have been premature and futile. Given the inapplicability of Rule 17 s real-party-in-interest provision, the majority erroneously failed to apply the rule that standing is a jurisdictional issue which may be raised by any party or the Court at any time. Kirk v. Pope, 973 So. 2d 981, 989 (Miss. 2007); see also In re City of Biloxi, 113 So. 3d 565, 570 (Miss. 2013). In Kirk, the Mississippi Supreme Court addressed the issue of standing after finding that the defendant waited too late to assert his realparty-in-interest defense. 973 So. 2d at The Court determined that although the plaintiff initially had standing to pursue a breach of contract claim, he lost the ability to pursue the claim in his own right upon filing for bankruptcy. Id. at In City of Biloxi, the Court found that Harrison County initially had standing to intervene and assert claims in an annexation proceeding. 113 So. 3d at 571. Harrison County lost any judicable interest in the proceeding, however, when it accepted payment on the disputed claim. Id. at The proceeding became moot necessitating dismissal when Harrison County lost its interest in the controversy. Id. at Plaintiff lost any present interest in this matter 9 when the jury found that there was no wrongful death. See Estate of England, 846 So. 2d at 1068 (providing that heirs cannot recover under the wrongful death statute in the absence of a finding that wrongful conduct proximately caused death). Plaintiff lacked any legal right recognized by law 10 under the survival statute to recover the survival-type damages since she was not the administratrix of the Decedent s estate. See Barnett, ( 84) (Ishee, J., dissenting) ( Implicit in recovery under the survival statute is the 8 The Court s holding that the bankruptcy trustee s ratification conferred proper standing is inapplicable in this action. Id. at In Kirk, the plaintiff s bankruptcy case was open at the time judgment was entered on the jury verdict. Id. at Thus, ratification was technically possible. Ratification is impossible in this case since it is undisputed that there was no estate open on the Decedent s behalf at the time of judgment. There can be no ratification by a non-existent estate. Burley, 26 So. 3d at Id. at City of Biloxi, 113 So. 3d at

18 existence of a decedent s estate and an administrator of the estate. ). Mississippi Valley sought dismissal at the appropriate time, after the jury s verdict rendered the wrongful death statute inoperable and the controversy moot, although it could raise the issue of standing at any time. City of Biloxi, 113 So. 3d at 570, 572. Mississippi Valley did not waive the fact of Plaintiff s inability to recover survival damages even if the majority is correct that Rule 17 s real-party-in-interest provision, as opposed to jurisdictional standing, is the relevant issue. Mississippi Valley recognizes that a real-partyin-interest defense must be timely and may be waived if tardily asserted. Kirk, 973 So. 2d at 988. Yet, the majority ignores that Mississippi Valley s Answer to the First Amended Complaint specifically asserted defenses regarding Plaintiff s claims for survival damages. The Answer was filed approximately one year and six months prior to the trial of this action, which was more than enough time for Plaintiff to open an estate on behalf of the Decedent. (See supra 5). 11 Notwithstanding Mississippi Valley s Answer, the inability of heirs at law to recover survivaltype damages in the absence of a wrongful death finding is not a new concept. In 1935, the Mississippi Supreme Court held that damages for suffering between the time of injury and death could only be recovered at a suit by the personal representative, not by the next of kin or heirs at law. Berryhill, 158 So. at 471. Plaintiff s highly competent, well-experienced counsel needed no reminder regarding this long-standing principle of Mississippi law. Cf. Wilks, 680 So. 2d at 843 (The Defendant cannot be blamed for the heirs failure to alternatively pursue a cause of action for personal injury under Mississippi s survival statute. ). Mississippi Valley hid nothing behind the log, and the majority s Rule 17 waiver holding is incorrect. Barnett, ( 32). C. The Majority Relied on Inapplicable Precedent When It Alternatively Addressed the Issue of Standing 11 There was also sufficient time for the Plaintiff to open an estate between the jury instruction conference on October 12, 2012, when Mississippi Valley s counsel stated that some of the damages would not apply, and the entry of judgment on November 28, (R. at 4870; Tr. at 673, 680). 10

19 The majority s alternative ruling that it would not reverse and render the judgment, but give the Plaintiff an opportunity to open and join an estate, is legally unsound. The principal authority cited by the majority in support of this ruling, Methodist Hospital of Hattiesburg, Inc. v. Richardson, 909 So. 2d 1066 (Miss. 2005), is distinguishable and inapplicable for several reasons. 12 First, the wrongful death claims in Richardson had previously been dismissed, necessitating that the defendant seek dismissal based on the plaintiff s lack of standing to prosecute the remaining survival claims. 909 So. 2d at Mississippi s one-suit rule for wrongful death litigation allowed the Plaintiff in this action to prosecute the wrongful death and survival claims together (that is, until the jury s verdict), negating any basis for Mississippi Valley to seek dismissal under Rule 17 s real-party-in interest-provision. Second, the plaintiff in Richardson was appointed as administratrix of the decedent s estate, enabling her to recover survival damages under the survival statute, and filed an amended complaint on behalf of the estate during the course of proceedings in the trial court. Id. at It is undisputed that the Plaintiff never opened an estate or sought to have the estate substituted in the court below. (R. at 1-34; R.E. at 1-52.) Third, Richardson was an interlocutory appeal from a trial court s refusal to dismiss survival claims. 909 So. 2d at The estate was permitted to prosecute the claims upon remand. Id. at 1067, There are no survival claims left for the Plaintiff to prosecute in the trial court. Mississippi Valley appealed from the Final Judgment by Verdict. (R. at 4870). Plaintiff cannot be permitted to open an estate and join it as a party 13 solely in order to reap the benefits of a void judgment. Barnett, ( 87) (Ishee, J., dissenting). [N]o one and no entity possessed the proper standing to recover the survival damages awarded. Id. 12 In addition or alternatively, Richardson was wrongly decided for the reasons set forth in Justice Randolph s separate dissent. Mississippi Valley will seek to argue those reasons before the Mississippi Supreme Court if necessary pursuant to M.R.A.P Barnett, ( 34). 11

20 II. Plaintiff s Claims Were Time-Barred The majority s agree[ment] with Dorothy that a genuine issue of material fact existed regarding the statute of limitations is founded on a factual error that infected its legal analysis. Barnett, ( 48). As a preliminary matter, however, Mississippi Valley addresses the majority s conclusion that it could find Mississippi Valley was procedurally barred from raising the legal insufficiency of the evidence on appeal by failing to argue the statute of limitations as grounds for JNOV. See Barnett, ( 44). This finding overlooked the last catchall sentence of Mississippi Valley s post-trial motion, which had the effect of raising the time-bar as grounds for a new trial and JNOV. (See supra 6). Thus, the Court was fully authorized to reverse and render the judgment on the basis that Mr. Barnett filed suit after the expiration of the filing period prescribed by Miss. Code Ann See N.H. Ins. Co. v. Sid Smith Assocs., Inc., 610 So. 2d 340, 344 (Miss. 1992) (providing that a motion for directed verdict is not a procedural prerequisite to the grant of a motion for JNOV). The factual error leading the majority astray concerned the testimony of Dr. Julian Rose, Mr. Barnett s treating physician. (See supra 7). Dr. Rose s actual testimony that he did not diagnose Mr. Barnett with silicosis until approximately five months after the lawsuit was filed renders the diagnosis irrelevant for statute of limitations purposes. For instance, the Mississippi Supreme Court has used the terms disingenuous and without merit to describe a plaintiff s argument that her time to file suit ran after she received an expert opinion since the opinion was supplied approximately four months after she filed the complaint. Powe v. Byrd, 892 So. 2d 223, (Miss. 2004). Because Dr. Rose did not diagnose Howard with silicosis less than three years prior to 12

21 the commencement of this lawsuit, 14 the majority erred in finding the existence of a jury issue pursuant to Ridgway Lane & Associates, Inc. v. Watson, 189 So. 3d 626 (Miss. 2016). In Watson, the Mississippi Supreme Court affirmed the trial court s denial of the defendants motion for summary on personal injury claims. 189 So. 3d at 631. The following facts of record before the Court led to the existence of a fact question regarding when the plaintiff should have known about his illness: (1) an x-ray taken more than three years prior to the filing of the lawsuit was suggestive of the subject illness, bronchiectasis; but (2) the actual diagnosis of bronchiectasis was not made until 2010, which was within the filing period. Id. at 628, 630. There was no presuit diagnosis of the subject illness, silicosis, in this case. The absence of any discrepancy between a suggestive and actual presuit diagnosis distinguishes this case from Watson and necessitates a different analysis. Neither absolute certainty nor an expert opinion [is required] to vest the right to a cause of action under this state s products liability statute. PPG Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47, (Miss. 2005). The focus should be on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury. Id. at 51; see also Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 1001 (Miss. 2004) (holding that the discovery rule did not toll the statute of limitations since the plaintiffs failed to exercise reasonable diligence and the death certificate listed sepsis as a cause of death). Furthermore, the discovery rule has no application in the absence of a latent injury. See Doe v. Roman Catholic Diocese of Jackson, 947 So. 2d 983, 986 (Miss. Ct. App. 2006). The medical documentation cited in the majority opinion 15 shows that Mr. Barnett discovered, or by reasonable diligence should have discovered, his non-latent alleged injuries 14 Barnett, ( 48) (emphasis added). 15 Barnett, ( 46). 13

22 more than three years prior to the filing of this action on June 10, Miss. Code Ann (2) (emphasis added). The fact that Plaintiff sought damages encompassing expenses for respiratory treatments provided to Mr. Barnett as far back as August 2006, which was overlooked by the majority, further evidences that this cause of action vested more than three years before the Complaint was filed. (See supra 8). Unlike Wilson, there is no diagnosis less than three years prior to the initiation of litigation conflicting with these particulars and creating a genuine issue of material fact as to when Mr. Barnett should have known of his alleged injury. Therefore, this Court should have held that the trial judge erred in failing to grant Mississippi Valley s motion for JNOV (or motion for summary judgment) 16 because reasonable minds could not differ as to the conclusion that Plaintiff s claims are time-barred. Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, (Miss. 2015). III. Mississippi Valley Owed No Duty to the Decedent, Who Was a Bystander The majority erred in approving the trial court s bystander jury instruction, and in finding that Mississippi Valley owed a duty to Decedent. These rulings conflict with the express terms of the Mississippi Products Liability Act ( MPLA ), Miss. Code Ann , and recent precedent interpreting the MPLA. The MPLA does not contain the term bystander or any substantive equivalent. The terms user and consumer are consistently used in the statue. Miss. Code Ann (a)(ii), (c)(i), (c)(ii), (e), (f)(ii). The majority s finding that the statute s references to users and consumers are relevant to whether a product is defective in light of the knowledge of the product s ordinary users and consumers, and do not limit the class of parties who may sue for injuries, fails to consider that subsection (a)(ii) of the statute, which must be met in any MPLA claim, says nothing about the user or consumer[ s] knowledge. See 16 (R. at 1107, 1798, 4924, 4940, 4949). This Court would not have been the first to accept an appellant s argument that a trial judge erred by denying a motion for JNOV (and... motion for summary judgment) on the statute of limitations. Lincoln Elec. Co. v. McLemore, 54 So. 3d 833, 835 (Miss. 2010). 14

23 also Miss. Code Ann (f)(ii) (design defect). In any event, the majority s interpretation cannot operate to insert the term bystander into the MPLA. The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching upon the power of the Legislature. Lott v. Alexander, 134 So. 3d 369, 373 (Miss. Ct. App. 2014). The importance of the MPLA s references to users and consumers, and not bystanders, is evidenced in the Mississippi Supreme Court s recent decision in Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). In Elliott, the plaintiffs (or Elliotts) brought suit after their home caught fire and exploded due to a natural gas leak in a pipeline running underneath the street adjoining the home.181 So. 3d at As part of their failure-to-warn claim, plaintiffs were required to prove that the ordinary users and consumers of the subject product, natural-gas odorant, would not realize the potential for odorant fade. Id. at 274. There was no evidence that utility and pipeline companies, the customary users of natural-gas odorant, were unware of this potentiality. Id. [E]ven more importantly, it [wa]s undisputed that the Elliotts were not ordinary users or consumers of natural gas. Id. Thus, their claims against the... manufacturer... for failure to warn [we]re barred by the MPLA. Id. at 275. Plaintiff s MPLA claims against Mississippi Valley should have been similarly barred. Mr. Barnett was not an ordinary user or consumer of silica sand. He was a bystander, working approximately sixty-five (65) feet away from sandblasting operations. (Tr. at 114, ). There was no citation to Elliott in the majority opinion. Instead, the majority found pertinent the reference to bystanders in R.J. Reynolds Tobacco Co. v. King, 921 So. 2d 268, 271 (Miss. 2005). This reference was dictum since suit was brought on behalf of a deceased smoker, Mary Lee Latham. Id. at 269. Latham smoked cigarettes, i.e., she was a user or consumer of the product at issue. Id. at

24 The majority s bystander rulings also result in unsound public policy. The majority sought to limit the scope of its duty analysis by emphasizing that the Decedent was not a mere casual bystander... [since] he worked in close proximity to sandblasting for a decade.... Barnett, ( 53). Just as there are no references to bystanders in the MPLA, there are no references to work or employment. Thus, what is to stop another court from taking the majority s holding and applying it to bystanders have nothing to do with a sandblasting worksite, or even an office worker at the subject site? Why not find that a sand supplier owes a duty to persons working at a retail establishment located downwind from a sandblasting operation? How about an individual regularly commuting through clouds of sand generated by a sandblasting operation located next to a major thoroughfare? The possibilities and potential for liability are nearly endless when a court strays from the MPLA s roadmap and liability limitations. Elliott, 181 So. 3d at 268. The Mississippi Supreme Court has recognized public policy concerns weighing against virtually unlimited liability on more than one occasion. See, e.g., Paz v. Brush Engineered Materials, 949 So. 2d 1, 8-9 (Miss. 2007) (taking note of policy considerations in refusing to recognize a cause of action for medical monitoring); Satchfield v. R.R. Morrison & Son, Inc., 872 So. 2d 661, (Miss. 2004) (recognizing numerous policy concerns problems of proof of the damage suffered; exposing the defendant to an endless number of claims; and economic burdens on industry in finding no duty was owed to a witness/bystander to an explosion causing multiple fatalities); Little v. Bell, 719 So. 2d 757, 763 (Miss. 1998) (declining to abolish the common-law distinctions between trespassers, licensees, and invitees because such action would subject all landowners to unwarranted and unlimited liability ). Mississippi Valley should not be held to owe a duty to every individual regularly passing through a cloud of sand. 16

25 IV. The Mississippi Supreme Court s Decision in Mississippi Valley Silica Co. v. Reeves, 141 So. 3d 377 (Miss. 2014), Required Dismissal of the Plaintiff s Claims As an initial matter, the majority erred in finding the lack of proof of sand sales from Mississippi Valley to Mr. Barnett s employer, Mississippi Steel and Iron Company ( MSIC ), to be irrelevant. Dorothy was not required to uncover decades-old invoices to prove her case. Barnett, ( 55). The failure of the plaintiff to present invoices or other records showing sales of sand from Mississippi Valley to the decedent s employer was a key component of the Mississippi Supreme Court s decision to reverse and render the judgment in Reeves, 141 So. 2d at 383, 384. Thus, the majority s decision to give no weight to this absence of proof constituted legal error. Furthermore, the majority erred in distinguishing Reeves from the facts of this case. The majority chiefly found Reeves distinguishable because Howard and Burch [a co-worker] gave straightforward testimony that Valley sand and Southern Silica sand were in regular use at MSIC s High Street facility. Barnett, ( 55). This determination overlooks that Mr. Barnett and Mr. Burch did not use sand as crane operators and saw operators, and that the testimony of both men regarding seeing bags of sand at MSIC came in response to leading questions by Plaintiff s counsel. 17 (Tr. at 115, 123, , ). There is no meaningful distinction between the sparse product identification evidence at issue in Reeves and in this case. 141 So. 3d at 382. As insufficient proof exists to show that Mississippi Valley Silica sand injured... [Mr. Barnett], the plaintiff s case must fail. Id. at 384. V. The Mississippi Supreme Court s Decision in Mine Safety Appliance Co. v. Holmes, 171 So. 3d 442 (Miss. 2015), Fails to Support the Verdict on the Issue of Causation The majority s analysis of whether the Plaintiff offered sufficient proof of causation rests 17 Reeves, 141 So. 3d at 382; cf. Double Quick, Inc. v. Lymas, 50 So. 3d 292, 299 (Miss. 2011) (holding that the speculative testimony of expert witnesses, including affirmative responses to leading questions, failed to establish proximate cause). 17

26 almost entirely on inapplicable precedent, viz., Holmes. In Holmes, the plaintiff sued a respirator manufacturer claiming that its respirator failed to protect him from respirable silica while jackhammering concrete. 171 So. 3d at 445. General testimony regarding dusty work conditions favored liability in Holmes because the plaintiff did not have to identify the manufacturer of sand composing the dust in order to prove his case against the defendant respirator manufacturer. 171 So. 3d at 451. Any silica sand, regardless of its manufacturer, making its way past the protections of the respirator and into the plaintiff s lungs supported causation in Holmes. In this action, Plaintiff was required to show that Mr. Barnett s injuries resulted from the inhalation of Mississippi Valley sand. See Reeves, 141 So. 3d at 382. The sparse proof that sand bags labeled Valley were observed at MSIC was insufficient as a matter of law to prove that Mississippi Valley caused Mr. Barnett s purported injuries. Id. at 382, 383. The majority s focus on dusty working conditions pursuant to Holmes, and not whether the dust was composed of Mississippi Valley sand pursuant to Reeves, was legally unsound. The majority s reliance on the testimony of Dr. Vernon Rose, Plaintiff s retained industrial hygienist, under the rubric of Holmes was also flawed. There was no basis for the expert calculations of exposure offered by the plaintiff, as they merely measured total sand exposure and did not establish that the sand inhaled by... [Mr. Barnett] was purchased from Valley. Reeves, 141 So. 3d at 383. Even overlooking Dr. Rose s inability to quantify Mr. Barnett s level of exposure to Mississippi Valley sand, he extrapolated both dose and duration with only circumstantial supporting evidence, engaging in a classic logical fallacy: post hoc ergo proctor hoc. Sherwin-Williams Co. v. Gaines ex rel. Pollard, 75 So. 3d 41, 46 (Miss. 2011). Dr. Rose admitted there was no way of knowing whether Mr. Barnett s actual potential dose to respirable silica fell above or below levels recommended by certain professional agencies. (Tr. at 18

27 354). 18 Further, the analytical gap between the data in a 1974 study regarding bystander exposure and the opinion proffered by Dr. Rose was simply too great 19 to support liability for all of the reasons previously outlined by Mississippi Valley. (Reply Brief at p. 16). The trial judge improperly denied Mississippi Valley s motion for JNOV given the unreliable circumstantial evidence presented by the Plaintiff in support of causation. VI. Plaintiff s Breach-of-Duty Evidence Was Insufficient as a Matter of Law Even if Mississippi Valley Owed the Decedent a Duty It is not entirely clear what evidence the majority found sufficient to sustain the finding that Mississippi Valley breached a duty to provide adequate warnings. The majority took note of Mississippi Valley s argument that a 1990 letter written by Mr. Bogran could not be admitted as substantive evidence since it conflicted with his later sworn testimony. However, the majority also found that the Bogran letter was admitted into evidence at trial without discussion or any on-the-record objection.... Barnett, ( 61). Mississippi Valley objected to the admission of Mr. Bogran s testimony and unsworn statements prior to the trial of this action. (See supra 10). Mississippi Valley s in limine objections preserved its ability to attack the 1990 letter on appeal. See Goff v. State, 14 So. 3d 625, 640 (Miss. 2009). Thus, there was no basis for the majority to consider Mr. Bogran s letter as substantive evidence supporting the verdict. Bailey v. State, 952 So. 2d 225, 237 (Miss. Ct. App. 2006). To the extent the majority s breach-of-duty ruling relied on Dr. Vernon Rose s general testimony regarding knowledge of sandblasting causing silicosis prior to the Decedent s exposure in the 1960s, such reliance was erroneous. The majority correctly recognized Dr. Rose s admission that studies regarding bystander exposure did not come out until after the 18 Cf. Sherwin-Williams Co., 75 So. 3d at 45, 46 (finding similar contradictory expert testimony insufficient to prove causation). 19 Watts v. Radiator Specialty Co., 990 So. 2d 143, 149 (Miss. 2008). 19

28 exposure period. Barnett, ( 60). Yet, it erred in holding that th[e] fine distinction between the risk of danger to a sandblaster versus the risk to a bystander could not limit Mississippi Valley s duty. Barnett, ( 62). The refusal to give meaning to this distinction effectively imposes strict liability on Mississippi Valley by eviscerating the following requirement of proof under the MPLA: the manufacturer... knew or in light of reasonably available knowledge should have known about the danger that caused the damage.... Miss. Code Ann (c)(i). The danger purportedly causing damage in this case was Mr. Barnett working approximately 65 feet away from sandblasting operations. (Tr. at 114, 133). No evidence was presented at trial that Mississippi Valley knew or had reason to know that individuals working under such conditions, i.e., bystanders, were at risk of contracting silicosis prior to or during the exposure period. (Tr. at 344, 351). Requiring Mississippi Valley to issue a warning under these circumstances dictates a duty of omniscience, raising the specter of unlimited liability. The determination that Mississippi Valley could be held liable for failing to warn a bystander about the dangers of exposure to silica sand in the absence of any published studies regarding bystander exposures should be revisited on rehearing. 20 VII. The Jury Should Not Have Been Permitted to Consider Punitive Damages 20 A brief aside into the analogous issue of liability for take-home exposure to asbestos should assist in spotlighting the majority s error. Most of the jurisdictions considering this issue have refused to recognize a legal duty. See Gillen v. Boeing Co., 40 F. Supp. 3d 534, 541 (E.D. Pa. 2014) (listing cases). Some courts focus on the lack of any relationship between the defendant and the injured party in addressing liability. See, e.g., In re Certified Question from the Fourteenth Dist. Ct. of Appeals of Tex., 479 Mich. 498, 740 N.W.2d 206, (Mich. 2007); In re N.Y. City Asbestos Litig., 5 N.Y.3d 486, 840 N.E.2d 115, 122 (N.Y. 2005). Others primarily consider whether the risk of injury from take-home exposure was reasonably foreseeable during the exposure period. See, e.g., Estate of Holmes v. Pneumo Abex, L.L.C., 2011 IL App (4th) , 24-27; Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 462 (Tex. App. 2007). Opinions representative of the latter group recognize knowledge of the general dangers of asbestos predating the exposure period, but nonetheless center the analysis on when the dangers of secondhand exposure became reasonably foreseeable. See Estate of Holmes, 2011 IL App (4th) , 24-27; Alcoa, 235 S.W.3d at Here too, any foreseeability determination should specifically consider when Mississippi Valley knew or should have about the risks of danger to bystanders to sandblasting operations, such as the Decedent, as opposed to knowledge regarding a general link between silicosis and sandblasting. 20