IN THE SUPREME COURT OF MISSISSIPPI. v. No CA APPELLEE / CROSS-APPELLANT LOUISE TAYLOR REPLY BRIEF OF CROSS-APPELLANT BRENDA FORTENBERRY

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1 E-Filed Document Feb :41: CA SCT Pages: 8 IN THE SUPREME COURT OF MISSISSIPPI JOHNSON & JOHNSON, Inc., and ORTHO-McNEIL-JANSSEN PHARMACEUTICALS, Inc. APPELLANTS / CROSS-APPELLEES v. No CA BRENDA FORTENBERRY, as the Conservator of the Estate and Person of APPELLEE / CROSS-APPELLANT LOUISE TAYLOR REPLY BRIEF OF CROSS-APPELLANT BRENDA FORTENBERRY ON APPEAL FROM THE CIRCUIT COURT OF COPIAH COUNTY NO ORAL ARGUMENT NOT REQUESTED Timothy W. Porter John T. Givens PORTER & MALOUF, P.A. P.O. Box Jackson, Miss David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: F: E: dnmlaw@gmail.com W: McCartyAppeals.com Daniel J. McGlynn, pro hac vice MCGLYNN, GLISSON & MOUTON P.O. Box 1909 Baton Rouge, La

2 TABLE OF CONTENTS Table of Contents... i Table of Authorities... ii Statement Regarding Oral Argument... 1 Summary of the Reply Argument... 1 I: The Trial Court Should Have Automatically Started the Punitive Damages Proceeding... 1 Conclusion... 4 Certificate of Service... 5 i

3 TABLE OF AUTHORITIES Cases Bradfield v. Schwartz, 936 So.2d 931, 939 (Miss. 2006)... 2, 4 Causey v. Sanders, 998 So. 2d 393, 407 (Miss. 2008)... 3, 4 Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994)... 2 Statutes Miss. Code. Ann , 3 ii

4 Summary of the Reply Argument for Cross-Appellant Brenda Fortenberry When party is awarded compensatory damages by a jury, the trial should promptly and automatically proceed to a punitive damages hearing. Whether the proof during that hearing is sufficient to meet the clear and convincing standard for punitive damages is a separate and distinct issue altogether. Even though the jury in this case found for the plaintiff and awarded Ms. Fortenberry compensatory damages, the trial court refused to follow the clear procedure outlined in statute and precedent to proceed to the evidentiary hearing. This short circuit of the statute requires reversal and remand so that a punitive damages hearing may be held. Statement Regarding Oral Argument The trial court s denial of the automatic procedure to move from an award of compensatory damages to a punitive damages hearing is controlled by statute and detailed in two key Supreme Court cases. Both statute and precedent requires this second evidentiary phase, and require that the trial court promptly commence the hearing. Oral argument is not needed to reinforce the plain language of the Legislature nor this Court s precedent. I. The Trial Court Should Have Automatically Started the Punitive Damages Proceeding. Because precedent and statute require a trial court to promptly commence an evidentiary hearing on punitive damages, but the trial court short circuited that procedure, this case must be remanded in order to hold a punitive damages phase. The paramount question is whether the trial court should have started the punitives phase, not the separate issue of whether the plaintiff met the burden of punitive damages. The difference between the procedural issue and the burden of proof are distinct points, supported by both the core case relied upon by Ms. Fortenberry and the case relied upon by Johnson & Johnson. 1

5 The Legislature s punitive damages law is clear: If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact. Miss. Code. Ann (1) (c). As the Supreme Court has stressed, unlike the discretionary nature of may, the word shall is a mandatory directive. Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994) (heavy emphasis by the Court). This leaves no room for discussion as to the procedural approach required for a punitive damages phase if the word shall is used by the Legislature, it must be followed. Therefore once the jury in this case found compensatory damages, the trial court was required to immediately begin the punitive damages proceeding. This is distinct from the burden of proof which must be met by the plaintiff during that phase before the trial court submits punitive damages to the jury. Supreme Court precedent has ruled that starting the procedural phase is automatic. Bradfield v. Schwartz, 936 So.2d 931, 939 (Miss. 2006). In that case, the Court ruled that that once compensatory damages have been determined, the circuit court should have automatically proceeded to the punitive damages phase of the trial, where the judge and jury could then focus on the issue of punitive damages. Id. Just as in that case, once the jury here awarded compensatory damages, the trial court should have promptly commenced an evidentiary hearing. Yet the trial court refused to proceed in accord with statute; the oral ruling from the trial court was a blunt I just don t believe this is a punitive case. 38: Yet whether a jury should award punitive damages is 1 The entire sequence reads: [Counsel for Ms. Fortenberry]: Your Honor, we have a punitive plan we'd like to submit to the Court that we think that we rose to a level to get that issue before the jury. 2

6 distinct from whether proceeding to the punitives phase itself was warranted, and is controlled by a completely different subsection of the statute. 2 Johnson & Johnson primarily relies on a post-bradfield opinion from this Court to argue that punitive damages should not have been awarded. Yet whether the clear and convincing standard was met is not ripe, since the trial court did not follow the statute in proceeding to the punitives phase. As the Supreme Court explained, [t]he decision in Bradfield does not stand for the proposition that the trial court should automatically submit the issue of punitive damages to the jury for determination, but only that the trial judge should commence an evidentiary hearing before the jury on the issue of punitive damages.... Causey v. Sanders, 998 So. 2d 393, 407 (Miss. 2008) (emphasis added). Only at that point, at the conclusion of this evidentiary hearing in the second phase, the trial court has available all of the traditional options for determining whether or not the punitive-damages issue should be submitted to the jury. Id. This case embodies the precise distinction between commencing the punitive damages hearing and subsequently submitting the issue to a jury. Bradfield clarified that a party who is awarded compensatory damages is not automatically awarded punitive damages, but rather receives the opportunity to seek them during an evidentiary hearing. These two different concepts were mixed in the trial court s ruling. THE COURT: I understand that, Counsel. I just don t believe this is a punitive case. I don't see this being a case that would require jury consideration of punitive damages. I may be right or I may be wrong. That's my opinion, though. 38:483. After excusing the jury, the trial court then stated I do want to make it clear, for the record, that [counsel for Ms. Fortenberry] has requested a punitive damage hearing before this jury, and I acknowledged his request to do so. However, the Court has found that this is not a case that would be appropriate for the determination of punitive damages, and I have overruled his request. 38: It is subsection (1)(a) of the statute which addresses the burden: Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud. Miss. Code. Ann (1)(a). 3

7 Therefore Causey reinforces the exact same proposition as Bradfield: once compensatory damages are awarded, the trial court must proceed to an evidentiary hearing. The trial court s ruling that it did not believe this was a punitive damages matter was premature. It was only after the trial court promptly commenced the evidentiary hearing, and then the proof was presented, that such a ruling could be made. As the Court ruled in Bradfield, before we can evaluate the evidence and determine the nature of [the defendant s] conduct in this case, we must evaluate the procedure implemented by the circuit court under which such evidence was produced. 936 So.2d at 937. For it is essential that the court properly allowed the evidence to be considered in accord with the claim the evidence was submitted to prove, and that evidence regarding the plaintiff s claim for punitive damages was properly presented, heard and ruled on according to its substance and merit. Id. Just as in Bradfield, here the circuit court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages pursuant to the statutory mandates. Id. Like Bradfield, the trial court must be reversed and remanded in order to conduct an evidentiary hearing. Conclusion The trial court short circuited what should have been an automatic procedure to move from an award of compensatory damages to a punitive damages phase. Statute and precedent both require that the trial court proceed automatically to this evidentiary phase, and any rulings on whether the jury should consider the punitive damages must come afterwards. For this reason, this Court should REVERSE the trial court s denial of a punitive damages phase, and REMAND this case for that required evidentiary hearing. Respectfully submitted, this the 1st day of February, Attorneys for Appellee / Cross-Appellant 4 s/ David Neil McCarty David Neil McCarty

8 Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: W: Timothy W. Porter John T. Givens PORTER & MALOUF, P.A. P.O. Box Jackson, Miss CERTIFICATE OF SERVICE Daniel J. McGlynn, pro hac vice MCGLYNN, GLISSON & MOUTON P.O. Box 1909 Baton Rouge, La 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 Appellants Donna Brown Jacobs, Paul V. Cassisa, Jr., Adam J. Spicer, and Kathleen Ingram Carrington BUTLER SNOW, LLP And have further provided paper copies via U.S. Mail to the following: The Trial Court Honorable Lamar Pickard COPIAH COUNTY CIRCUIT COURT P.O. Box 310 Hazlehurst, Miss On February 1, s/ David Neil McCarty David Neil McCarty 5