MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 2/2/2016 GRAY v. GRAHAM, NO. 2014-CA-00069-COA Civil http://courts.ms.gov/images/opinions/co110698.pdf Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Medical malpractice - Expert testimony - Standard of care - Conclusory affidavit HON. LAWRENCE PAUL BOURGEOIS JR. HARRISON COUNTY CIRCUIT COURT JONATHAN B. FAIRBANK, JOHN F. HAWKINS, EDWARD GIBSON STEPHEN PERESICH, JOHANNA M. MCMULLAN, MARY VAN SLYKE, LAUREN R. MCCRORY Judge Ishee Reversed and remanded. Facts: Analysis: Carol Gray filed a medical-malpractice suit against Eric Graham and Michelle Graham, asserting that the Grahams negligently failed to communicate the outcome of the biopsy they had performed on her, which concluded that Gray had multiple myeloma. The Grahams filed a motion for summary judgment arguing that Gray failed to establish causation through an expert opinion. The court granted the motion for summary judgment, and Gray appeals. In a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care. Here, the affidavits presented to the circuit court adequately support Gray s theory that the Grahams violated the applicable standard of care by failing to inform Gray of her diagnosis until a year after the results were received. The circuit court found that the expert s affidavit was conclusory and failed to properly establish causation such that summary judgment was appropriate. However, the expert provided specific reference to medical facts in support of his opinion. He swore that he had reviewed all of Gray s medical records from all pertinent times and medical providers. He chronicled the occurrence of Gray s spinal fractures, noting when she began treatment at M.D. Anderson. He then pointed out that the fractures increased during the year prior to her diagnosis but ceased after she was diagnosed and began treatment at M.D. Anderson. Finally, he averred within a reasonable degree of medical certainty that if Gray had been advised of her diagnosis in May 2009, when the Grahams were sent the results, and she had begun the appropriate treatment, she would not have suffered the spinal fractures she incurred the following year. Thus, the expert s affidavit constituted sufficient evidence to establish causation at this point in the litigation, and the grant of summary judgment is reversed and remanded. DISSENT WITHOUT SEPARATE OPINION Presiding Judge Griffis Page 1 of 10
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Topics: Personal injury - Premises liability - Dangerous condition - Knowledge - Doctrine of res ipsa loquitur - Circumstantial evidence Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: WALZ v. HWCC-TUNICA, INC., NO. 2014-CA-00620-COA http://courts.ms.gov/images/opinions/co109684.pdf HON. JOHNNIE E. WALLS JR. TUNICA COUNTY CIRCUIT COURT EDWARD P. CONNELL JR., CORRIE SCHULER ALFRED THOMAS TUCKER III Presiding Judge Griffis Affirmed. Civil Facts: Analysis: Darlene Walz brought a personal-injury action against HWCC-Tunica, Inc., the owner of the Hollywood Casino and Hotel in Tunica County. The circuit court granted HWCC s motion for summary judgment. Walz appeals. Walz argues that the factual differences between her statement and the statement of the hotel s employee are sufficient to defeat summary judgment. To succeed in a premisesliability claim, the plaintiff must show a negligent act by the defendant caused the plaintiff s injury; that the defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or the dangerous condition remained long enough to impute constructive knowledge to the defendant. Here, there is a question about whether Walz established that there was a genuine issue of a material fact in dispute as to whether a dangerous condition existed. However, Walz has failed to establish a genuine issue of a material fact in dispute as to the cause of the condition or the knowledge of HWCC. Walz relies on the doctrine of res ipsa loquitur. This circumstantial-evidence doctrine allows the jury to draw an inference of the defendant s negligence. Circumstantial evidence is sufficient when it leads to an inference of negligence on behalf of one party. But circumstantial evidence that still leaves many inferences available is not sufficient as proof for necessary elements of a claim. When Walz fell, she and her partner had just returned to their hotel room in the early morning hours after a long night of gambling. Furthermore, they had entered into the room at least twice before the fall occurred. Due to these circumstances, there are other reasonable inferences as to what caused Walz s fall. The circumstantial evidence surrounding the fall does not lend itself entirely to negligence on the behalf of HWCC. Thus, the evidence presented was not sufficient to create a genuine issue of material fact. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judg Barnes CONCUR IN PART WITHOUT SEPARATE OPINION Judge James Page 3 of 10
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CAMPBELL v. JONES, NO. 2014-CA-01281-COA Civil http://courts.ms.gov/images/opinions/co109292.pdf Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Personal injury - Reading jury verdict - Polling the jury - Motion to reform the verdict - Motion for new trial - Weight of evidence HON. VERNON R. COTTEN SCOTT COUNTY CIRCUIT COURT EUGENE COURSEY TULLOS, THOMAS D. LEE W. WRIGHT HILL JR. Chief Judge Lee Affirmed. Facts: Analysis: James Campbell sued James Jones, alleging that Jones caused a car accident resulting in mental and physical injuries to Campbell. Marquiz Thomas, a passenger in Campbell s car at the time of the accident, also sued Jones. Campbell s and Thomas s cases were consolidated. After a trial, the jury returned a verdict finding Campbell sustained $200,000 in damages and Thomas $5,000, but found Campbell to be eighty percent at fault, reducing his award to $40,000. Campbell appeals. Issue 1: Jury verdict Campbell argues that the trial court erred by ordering the clerk to read only a portion of the verdict prior to dismissing the jury. However, Campbell failed to make a contemporaneous objection. Campbell s failure to object bars this issue from appellate review. Issue 2: Polling the jury Campbell argues that the trial court should have ordered the jury to return and be polled regarding the apportionment of fault. However, he failed to make a contemporaneous objection, which bars the issue from review on appeal. Issue 3: Motion to reform the verdict Campbell argues that the trial court erred by failing to return the jury to reform the verdict. Here, the jury rendered a complete verdict. Additionally, Campbell agreed to the form of the special verdict submitted to the jury. There was no suggestion that the form of the verdict was ambiguous, confusing, or improper. Thus, this issue is without merit. Issue 4: Motion for new trial Campbell argues the trial court erred in denying his motion for new trial, because the verdict is against the overwhelming weight of the evidence. However, Campbell himself admitted the trailer s taillights were not functioning, which is a violation of state law. Due to this, the trial court instructed the jury that Campbell was negligent per se for his failure to have operational taillights on the trailer. Thus, the verdict is not against the overwhelming weight of the evidence. Page 5 of 10
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Topics: Contract - Reasonable opportunity to cure defects - Section 75-2-608 - Motion to alter or amend - Settlement agreement Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: MORRIS v. INSIDE OUTSIDE, INC., NO. 2014-CA-01451-COA http://courts.ms.gov/images/opinions/co109297.pdf HON. MICHAEL H. WARD HARRISON COUNTY CIRCUIT COURT WILLIAM E. WHITFIELD III, JOHNNY L. NELMS VIRGIL G. GILLESPIE Chief Judge Lee Affirmed. Civil Facts: Analysis: M.C. and Linda Morris filed a breach-of-contract suit against Inside Outside, alleging they withdrew their acceptance of cabinets they had ordered. The Morrises also generally claimed breach of express warranties and breach of the implied warranties of merchantability and fitness for a particular purpose. After a bench trial, the trial court entered a judgment in favor of IO and dismissed the Morrises complaint. The Morrises appeal. The trial court determined that the Morrises were not entitled to recovery because they revoked acceptance of the cabinets before giving IO a reasonable opportunity to cure the defects. Under section 75-2-608, prior to filing suit, a buyer must provide notice to the seller of the revocation of acceptance and afford the seller a reasonable opportunity to cure the defects. However, the seller s right to cure is not unlimited. There comes a time when enough is enough and a purchaser is entitled to seek revocation notwithstanding the seller s repeated good faith efforts. In this case, the trial court determined the Morrises were aware of the defects by June 19, 2006, the date the cabinet installation was complete. In fact, the Morrises were aware of many of the defects by June 14, 2006, when the owner of IO visited the house to inspect the cabinets and discuss the matter with M.C. and the installer. The owner waited until July 14, 2006, to place the order for replacement parts to cure the defects. The Morrises take issue with this delay, but the owner testified she was waiting to make sure nothing else needed to be ordered. The trial court stated that it had observed M.C. s demeanor throughout trial and noted much of M.C. s frustration resulted from the timeliness of the project. However, the trial court found the delay was due to the effects of Hurricane Katrina and thus was not unreasonable. The court did not abuse its discretion when it determined that IO was not given a reasonable opportunity to cure and that it heard no evidence that enough was enough. The Morrises also argue that the trial court erred in denying their motion to alter or amend because it failed to address the money paid to IO for items not delivered, $4,378.13 for the deposit on the granite and $1,407.05 for the sinks. However, the Morrises fail to demonstrate an intervening change in controlling law, availability of new evidence not previously available, or need to correct a clear error of law or to prevent manifest injustice. Since the contracts for these items state that no refund or exchange was available, only store credit, there is no error. The Morrises also argue that they entered into a binding settlement agreement with IO, but that IO failed to abide by its terms. However, the parties never entered into a binding settlement agreement. Initially, the Morrises attorney emailed IO s attorney that the parties had reached an agreement for IO to remove the cabinets and refund any money paid to it by the Morrises. However, IO s Page 7 of 10
CONCUR IN PART Judge James attorney refused the revisions made to it by the Morrises attorney, and the Morrises filed suit. Thus, there is no error. Page 8 of 10
Topics: Wrongful death - Discovery violation - Disclosure of expert opinion - Standard of care - Summary judgment sua sponte Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: MONROE v. BLEVENS, NO. 2013-CA-01964-COA http://courts.ms.gov/images/opinions/co109828.pdf HON. DALE HARKEY JACKSON COUNTY CIRCUIT COURT W. ERIC STRACENER JR., JOHN W. KITCHENS, WALTER ANDREW NEELY STEPHEN GILES PERESICH, JOHANNA MALBROUGH MCMULLAN, MARY WINTER VAN SLYKE Judge Fair Affirmed. Civil Facts: Analysis: William Ray died after Dr. Alexander Blevens allegedly failed to diagnose his fractured hip. The circuit court granted Blevens a mistrial after Ray s wrongful death beneficiaries attempted to introduce expert testimony not previously disclosed on the issue of the standard of care. The court then granted a defense motion to dismiss for a failure to meet the burden of proof on that issue. The wrongful death beneficiaries appeal. Issue 1: Discovery sanction The trial court found that the beneficiaries had never disclosed Dr. Bomboy s opinion on the standard of care during the time allowed by the scheduling order, and that it would be excluded for that reason. The trial judge analyzed the factors for cases where testimony of an expert witness is excluded as a discovery sanction. However, the beneficiaries deny that there was a discovery violation in the first place. The standard of care is an element of a plaintiff s burden of proof in a medical malpractice suit, and expert testimony is required to establish it. An expert must identify and articulate the requisite standard that was not complied with. The beneficiaries admit that prior to trial neither they nor Dr. Bomboy ever expressly stated, The standard of care is.... And, the supplemental designation, in addition to being conclusory and generally unspecific, lacks a clear articulation of a standard of care. The beneficiaries designation of Dr. Bombay stated, It is anticipated that Dr. Bomboy will testify that the Defendants violated the standard of care in numerous respects when providing care and treatment to William Wallace Ray. The designation was accompanied by a letter from Dr. Bomboy where he opined that Ray s hip was fractured when he fell before first going to the emergency room, and that his death was caused by a delay in diagnosing the fractured hip. Dr. Bomboy was later deposed and was repeatedly asked to explain his opinion regarding the standard of care. There may be some merit to the beneficiaries arguments that they could have put Dr. Blevens on notice of Dr. Bomboy s reasons that Blevens should have considered a hip fracture as a possible diagnosis. However, the record supports the trial court s finding that the beneficiaries failed to timely disclose the gravamen of Dr. Bomboy s opinion, i.e., that Blevens was required to order an x-ray to satisfy the standard of care. Malpractice suits in particular require complete and meaningful disclosures of expert opinions. Thus, the court did not err in limiting Dr. Blevens s testimony to his prior disclosures. Page 9 of 10
Issue 2: Dismissal The trial court entered an order dismissing the suit with prejudice. It left the nature of the dismissal ambiguous. But it appears that the trial court granted a summary judgment to Dr. Blevens. Parties facing summary judgment are entitled to notice that they must come forward with their evidence on a given issue, and they must have an opportunity to respond. The Mississippi Rules of Civil Procedure provide no express authority for a trial court to grant summary judgment on its own motion. However, in Peavey Electronics Corp. v. Baan U.S.A. Inc., 10 So. 3d 945 (Miss. Ct. App. 2009), the Court noted that the Fifth Circuit has held that trial courts can enter summary judgment sua sponte if the losing party was on notice that he had to come forward with all evidence. Here, given that the case had come to trial once before, there can be no doubt that the beneficiaries knew they had to come forward with all of their evidence. Thus, there is no error. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson CONCUR IN PART, DISSENT IN PART WITHOUT SEPARATE OPINION Presiding Judge Griffis DISSENT WITHOUT SEPARATE OPINION Judge James Page 10 of 10