v. No CA SCT DOROTHY L. BARNETT, et al. ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY NO CIV ORAL ARGUMENT NOT REQUESTED

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1 E-Filed Document May :35: CT SCT Pages: 11 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT v. No CA SCT DOROTHY L. BARNETT, et al. APPELLEES SUPPLEMENTAL CERTIORARI BRIEF OF APPELLEES DOROTHY L. BARNETT, et al. ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY NO CIV ORAL ARGUMENT NOT REQUESTED David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: F: E: W: McCartyAppeals.com R. Allen Smith, Jr. THE SMITH LAW FIRM, PLLC 661 Towne Center Blvd., Suite B Ridgeland, Miss Timothy W. Porter Patrick C. Malouf John T. Givens PORTER & MALOUF, P.A. P.O. Box Jackson, Miss

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT v. No CA DOROTHY L. BARNETT, et al. APPELLEES CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Mississippi Valley Silica Company, Inc., Appellant 2. The Honorable Winston L. Kidd, Hinds County Circuit Court 3. John D. Cosmich, Michael D. Simmons, and LaKeysha Greer Isaac, of Cosmich Simmons & Brown, PLLC, Counsel for the Appellant 4. Dorothy L. Barnett, and all other heirs at law or wrongful death beneficiaries of Howard Barnett, Appellees 5. R. Allen Smith, Jr., of the Smith Law Firm, PLLC, and Timothy W. Porter, Patrick C. Malouf, and John T. Givens, of Porter & Malouf, P.A., and David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, Counsel for the Appellee So CERTIFIED, this the 30th day of May, Respectfully submitted, s/ David Neil McCarty David Neil McCarty Miss. Bar No Attorney for Appellees i

3 TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Supplemental Brief... 1 I. The Statute of Limitations Did Not Run on Howard s Claims... 1 A. Valley s failure to ask for a jury instruction dooms its time bar argument... 2 B. Valley s failure to renew its pretrial defense to statute of limitations bars its argument.. 3 C. The evidence at trial proved the claim was timely filed... 4 Conclusion... 5 Certificate of Service... 7 ii

4 TABLE OF AUTHORITIES Cases American Optical Corporation v. Estate of Rankin, et al., No CA SCT (reversed and rendered May 18, 2017)... 1, 3, 4 Angles v. Koppers, 42 So.3d 1, 5 (Miss. 2010)... 5 Crawford v. Custom Sign Co., 138 So. 3d 894, 898 (Miss. 2014)... 3 Lincoln Electric Co. v. McLemore, 54 So.3d 833, 837 (Miss. 2011)... 5 Miss. Valley Silica Co., Inc. v. Barnett, et al., No CA COA (August 23, 2016)... 1, 3, 4, 6 Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, (Miss. 2015)... 2 Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012)... 5 Statutes Miss. Code. Ann iii

5 Supplemental Certiorari Brief of Appellees Dorothy Barnett, et al. The Appellees Dorothy Barnett, et al., by and through her attorneys and pursuant to Rule 17(h) of the Mississippi Rules of Appellate Procedure, file this Supplemental Brief of support of their argument that the decision of the Court of Appeals was correctly decided in Miss. Valley Silica Co., Inc. v. Barnett, et al., No CA COA (August 23, 2016). It remains the position of Mrs. Barnett that this extensively briefed and argued case (in which Valley previously submitted 85 pages of briefs on six points of error, and presented over thirty minutes of oral argument), does not need further examination by the Supreme Court. The lengthy Opinion by the Court of Appeals considered each of Valley s numerous arguments and over 46 pages and 20 footnotes, deliberated thoughtfully on each point. Indeed, the Court even reversed the grant of attorney s fees in the amount of $212,312.50, as Valley had requested. This deeply reasoned Opinion should be affirmed on certiorari. To the extent there is utility in any further briefing, it is to emphasize that the Barnett decision is not impacted by the Supreme Court s reversal in American Optical Corporation v. Estate of Rankin, et al., No CA SCT (reversed and rendered May 18, 2017). The Court s reversal in AO v. Rankin centered exclusively on whether the statute of limitations had passed an issue which had been well preserved in that case by the presentation to a jury. Because Valley failed to preserve its pretrial argument that Mr. Barnett s injuries were time barred, failed to ask for a directed verdict on the statute of limitations, and failed to submit the issue to a jury for a determination, the decision in Rankin has no applicability in this appeal. I. The Statute of Limitations Did Not Run on Howard s Claims. For three reasons the claims of the Barnett Family are not time barred. Most importantly, as the Court of Appeals held, Valley s failures prior to and after trial to preserve its argument 1

6 about the statute of limitations means that this issue escapes appellate review. Valley waived the argument by failing to renew it during trial or at motion for directed verdict. To the extent the Court of Appeals reached the merits, and unlike the plaintiff in Rankin, there was sworn proof that Mr. Barnett did not know that he had a lung disease. Furthermore, there was sworn proof from his doctor that he was never told. A. Valley s failure to ask for a jury instruction dooms its time bar argument. Unlike the Rankin case, where the parties submitted the issue of when the lung injury happened to the jury, in this appeal the issue was addressed pretrial and then never raised again until appeal. If there was a question of fact about when the discovery of the injury happened, Valley should have submitted it to the factfinder for resolution, since the question of whether the suit is barred by the statute of limitations is a question of fact for the jury.... Peoples Bank of Biloxi v. McAdams, 171 So. 3d 505, (Miss. 2015) (internal citation and quotation omitted). As this Court has repeatedly held, [a] determination of whether a cause of action is barred by the statute of repose may be properly decided by the trial court if it is clear that reasonable minds would not disagree on the decision, otherwise; the issue should be presented before a jury for determination. Crawford v. Custom Sign Co., 138 So. 3d 894, 898 (Miss. 2014). This recent law was underscored by the majority in Rankin, which declared [t]he discovery of an injury is an issue of fact to be decided by a jury when there is a genuine dispute. Rankin, at 24. It was the jury s determination of when the statute ran which was reviewed in that case. Id. at 49. 2

7 Unlike the parties in Rankin, Valley chose to not submit the question of if the statute of limitations ran to the jury. If it had wanted to combat the timeliness of the suit, it should have requested the jury to make that determination. As the Court of Appeals ruled, this failure dooms the assignment of error on appeal. The Court ultimately concluded that Valley could have requested a jury determination on that issue, but it did not. Barnett, at 48. This failure by Valley means the pretrial determination that the suit was timely filed must stand. B. Valley s failure to renew its pretrial defense to statute of limitations bars its argument. Because Valley only sought summary judgment on the statute of limitations issue, but did not ask for a directed verdict, it is procedurally barred for review on appeal. It was the request for a directed verdict which spotlight this issue in Rankin, and without such a motion, it cannot be considered now. The Court of Appeals ruled that Valley s limitations argument was barred because the company was merely trying to renew its objection to the circuit court s pretrial denial of summary judgment, and [s]uch a ruling is rendered moot and cannot be reviewed on appeal once a case proceeds to a trial on the merits. Barnett, at 43. The proper route after such a denial is the defendant should litigate the issue at trial, move for a directed verdict on that ground, and then request appropriate jury instructions. Id. at 44. Yet Valley did not do so in this case, effectively abandoning its claim that the statute had run by failing to present it to the jury. Id. at 44. The Court found it was even debatable whether Valley s post-trial motion for JNOV or a new trial preserved the issue that it now seeks to raise on appeal. Id. at 44. The Court ultimately concluded that Valley could have requested a jury determination on that issue, but it did not. Id. at 48. 3

8 In contrast, the company in Rankin specifically claimed in a motion for directed verdict that the statute of limitations had run. Rankin, at 33. Indeed, that was the vehicle through which the majority of the Court reversed and rendered the verdict: Accordingly, we hold that the trial court erred by failing to grant AO s motion for a directed verdict because Rankin s claims are time barred. Id. at 48. But for that directed verdict, the issue could not have been raised on appeal. Unlike the company in Rankin, Valley here failed to ask for directed verdict on this issue. As the Court of Appeals reasoned, this failure bars appellate review of this assignment of error. C. The evidence at trial proved the claim was timely filed. Even if the Court examines this issue despite Valley s twin failures, the evidence at trial was that Mr. Barnett filed suit within 3 years of his silicosis diagnosis. Therefore the statute of limitations did not run on his claims. In cases involving latent injury such as silicosis, the claim only arises once the Plaintiff is diagnosed with the disease. See Angles v. Koppers, 42 So.3d 1, 5 (Miss. 2010) (plaintiff s cause of action accrued at the latest in 2001, the date she was last diagnosed with an injury or disease ); Lincoln Electric Co. v. McLemore, 54 So.3d 833, 837 (Miss. 2011); Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012). A person has three years from that date of discovery in cases with latent injury to file suit. See Miss. Code Ann (2). The facts are undisputed. Howard filed his initial Complaint on June 10, :35. Therefore the Complaint reached back until June of His treating physician, Dr. Julian Rose, provided sworn testimony that he was unable to and therefore never diagnosed Howard Barnett with Silicosis prior to the 28th day of June, :1044. This exact date is when Howard s statute of limitation began running, and he met it by some 18 days. 4

9 Even though the statute of limitations issue is reviewed de novo, the law of Angles and Lincoln Electric is well settled. Valley ignored this established precedent to try to impute to Howard that he somehow should have known that he had a complex and subtle disease one which Valley s experts at trial disputed that he even had. Howard could have only learned he had silicosis from Dr. Julian Rose, and he learned it the moment the treating physician diagnosed him on June 28, There is simply no dispute that this was the date which triggered the statute. The Court of Appeals further held that there was evidence that Howard had no knowledge of his disease indeed, the Court ruled that there is no evidence in the record that any doctor told Howard that he had silicosis prior to Dr. Rose s diagnosis. Barnett, at 48 (emphases added). Despite concerns expressed behind the scenes in doctor s notes, Dr. Julian Rose testified that he was first able to diagnose Howard with silicosis less than three years prior to the commencement of this lawsuit. Id. at 48. Under Mississippi law, notes in Howard s medical records suggesting the possibility of silicosis are insufficient to trigger the statute of limitations as a matter of law, the Court concluded. Id. at 48. Therefore even if Valley had submitted the question to the jury, there was evidence enough to support a dispute over when the statute began to run. This issue was thoroughly explored by the Court of Appeals and should be affirmed. Under the facts of this case, Howard was diagnosed by his treating physician with silicosis in He timely filed suit less than 3 years later. Even though Valley argued Howard did not even have the disease, its argument that the suit was untimely filed must be denied, and the verdict must be affirmed. Conclusion For the reasons above, the opinion of the Court of Appeals should be AFFIRMED. 5

10 Respectfully submitted, this the 30th day of May, OF COUNSEL: R. Allen Smith, Jr. THE SMITH LAW FIRM, PLLC 661 Towne Center Blvd., Suite B Ridgeland, Miss Timothy W. Porter Patrick C. Malouf John T. Givens PORTER & MALOUF, P.A. P.O. Box Jackson, Miss s/ David Neil McCarty David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: 6

11 CERTIFICATE OF SERVICE I, David McCarty, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Muriel B. Ellis, Clerk MISSISSIPPI SUPREME COURT Attorneys for Appellant John D. Cosmich, Michael D. Simmons, LaKeysha Greer Isaac, and Mark Goldberg COSMICH SIMMONS & BROWN, PLLC And have further provided paper copies via U.S. Mail to the following: The Trial Court Honorable Winston L. Kidd HINDS COUNTY CIRCUIT COURT P.O. Box 327 Jackson, Miss On May 30, s/ David Neil McCarty David Neil McCarty 7