the publication of the mississippi defense lawyers...

THE

MDLA QuarterlyTHE PUBLICATION OF THE MISSISSIPPI DEFENSE LAWYERS ASSOCIATION

VOLUME 32 • NUMBER 1 SPRING 2008

Issue Highlights:Fictitious Parties and Amendments Joining a Party under MississippiCivil Procedure Rule 9(h) and 15 – Revisited

The Medical Malpractice Primer for the CommunityHospital Defense Attorney

Who Said Love Doesn’t Cost A Thing? The Continuing Viability ofAlienation of Affection Claims

Jury Selection from the Defense Perspective

~ 2008 Board of Directors ~

~ Executive Committee ~

John B. Clark Recognized as Recipient of MDLALifetime Achievement Award

By C. Michael Ellingburg, Sr.

Each year the MDLA membership honors an attorney with the Lifetime Achievement Award. Thepurpose of this award is to recognize an attorney who has practiced law for at least 40 years, and whoexemplifies the ideals of the MDLA. During its annual meetingheld on January 26, 2008, MDLA honored John Clark withDaniel, Coker, Horton & Bell with MDLA’s third LifetimeAchievement Award.

John Clark graduated from the University of Mississippi withdistinction in 1963 and obtained his law degree from theUniversity of Virginia in 1966. Following his clerkship withUnited States Circuit Court Judge Coleman in 1967, John joinedDaniel, Coker, Horton & Bell where he has continuouslypracticed law to this day. In 1967 John also joined the militaryreserve where he served until 1975.

As an attorney he has been recognized by his peers throughan AV rating in Martindale Hubble; through his induction into theAmerican College of Trial Lawyers and service as its StateCommittee Chair; through his recognition as a Master of the Bench in the Charles Clark American Inns ofCourt; and, through his service in and election as President of the Mississippi Defense LawyersAssociation in 1992. John has also been named in “Best Lawyers in America.” This recognition by theBar is consistent with the character and integrity John has consistently demonstrated as one of the leadersof our firm. The confidence of his fellow owners in the firm is reflected by the fact that John served asfirm President from 1990 through 2001.

During John’s approximately 40 year career primarily representing the defendant, John hasconsistently provided that rare combination of an objective attorney who can fairly evaluate a case andbring to bear formidable negotiating skills, or equally formidable trial skills. John has tried hundreds ofcases to conclusion in the Mississippi state and federal courts before scores of judges. One would be hardpressed to find a judge who did not appreciate John’s decorum, professionalism and respect toward thecourt, or an adversary who did not recognize him as an ethical, talented and consistently preparedopponent.

Beyond his accomplishments as an attorney, John’s personal life reflects an attitude of service with aconsistent focus on giving back to the larger community in which he has practiced. This attitude reflectspositively on John and on the Defense Bar as a whole. He has been a faithful member of NorthminsterBaptist Church where he has served as a deacon and as Chairman of the Board of Deacons. He was alsoinvolved in the formation of the Salt and Light Ministry Foundation with which he has traveled toHonduras almost every year since 1995 to help bring food, shelter, education and spiritual support to someof the poorest people in Central America. Along the same line, John has actively participated in Habitatfor Humanity since it became active in the Jackson area approximately 20 years ago. Finally, John hasserved on the Board of Friends of Mississippi Public Broadcasting since 1981.

John’s character and achievements, demonstrated over a lifetime of law practice, epitomize what weshould all strive to accomplish in our careers as defense attorneys. If all attorneys followed John’sexample, it would significantly elevate the public perception of the legal profession generally and of thedefense bar specifically.

John B. Clark accepts the 2008 Lifetime AchievementAward from President James R. Moore, Jr.

A Message from the President Page 2

DRI Offers CLE in a Wide Variety of Substantive Law Areas Page 2

Mississippi Supreme Court Justice Jess H. DickinsonDiscusses the “Current State of the Profession” at the2008 Annual Membership Meeting

Trial Practice Academy Gives Participants“On their Feet” Experience Page 4

MDLA Young Lawyers Committed to Recruiting andService in Organization and Community Page 5

Stand Up For Our Profession and Our Judicial System Page 6

Fictitious Parties and Amendments Joining a Party underMississippi Civil Procedure Rule 9(h) and 15 – Revisited Page 7

The Medical Malpractice Primer for the CommunityHospital Defense Attorney Page 13

Who Said Love Doesn’t Cost A Thing? The Continuing Viablilityof Alienation of Affection Claims Page 15

Jury Selection from the Defense Perspective Page 20

Recent Decisions Page 24

2008 BOARD OF DIRECTORS

PresidentJAMES R. MOORE, JR.

Copeland Cook Taylor & Bush, P.A.

President ElectW. WRIGHT HILL, JR.

Page Kruger & Holland, P.A.

Secretary-TreasurerGOODLOE T. LEWIS

Hickman Goza & Spragins, P.L.L.C.

Vice PresidentsF. EWIN HENSON, III

Upshaw Williams BiggersBeckham & Riddick, L.L.P.

SHERRIE L. MOOREAllen Cobb Hood & Atkinson, P.A.

MARK H. TYSONMcGlinchey Stafford, P.L.L.C.

Directors: 2006-2008WILTON V. BYARS, III

Daniel Coker Horton & Bell, P.A.

HERMAN M. HOLLENSEDBryan Nelson, P.A.

SUSAN L. STEFFEYWatkins & Eager, P.L.L.C.

Directors: 2007-2009ROBERT S. ADDISON

Daniel Coker Horton & Bell, P.A.

WILLIAM G. ARMISTEADMitchell McNutt & Sams, P.A.

THOMAS L. CARPENTER, JR.Carr Allison Pugh Howard

Oliver & Sisson, P.C.

Directors: 2008-2010MICHAEL W. BAXTER

Copeland Cook Taylor & Bush, P.A.

JOHN D. BRADYMitchell McNutt & Sams, P.A.

J. SCOTT CORLEWBryan Nelson Schroeder

Castigliola & Banahan, P.L.L.C.

Immediate Past PresidentJAMES D. HOLLAND

Page Kruger & Holland P.A.

DRI State RepresentativeWILLIAM E. WHITFIELD, III

Bryant Dukes & Blakeslee, P.L.L.C.

Young Lawyers Division LiaisonLEMUEL E. MONTGOMERY, III

Butler Snow O’Mara StevensCannada, P.L.L.C.

Executive DirectorJANE L. BROWN

The MDLA Quarterly is published quarterly bythe Mississippi Defense Lawyers Association,P.O. Box 5605, Brandon, MS 39047-5605,Telephone: (601) 992-8645, Fax: (601) 992-2852, Website: www.msdefenselaw.org, E-mail:[email protected].

Publication of advertising does not implyendorsement of products, services or statementmade concerning them. All advertising copy issubject to approval. The Editor reserves theright to reject advertising.

Manuscripts are welcome and preparationinstructions may be obtained on request. Theright is reserved to select materials to bepublished. Material accepted for publicationbecomes property of the Mississippi DefenseLawyers Association.

State of opinions appearing herein are those ofthe authors and are not necessarily that of theEditor, Officers or Board of Directors of theMississippi Defense Lawyers Association.

THE

MDLA QuarterlyTHE PUBLICATION OF THE MISSISSIPPI DEFENSE LAWYERS ASSOCIATION

In This Issue:

Jeremy T. Hutto, Editor

VOLUME 32 • NUMBER 1 SPRING 2008

Editorial Board

Patrick T. Bergin

Tracy K. Bowles

Leo J. Carmody, Jr.

Richard T. Conrad, III

Robert J. Dambrino, III

Stephen W. Dummer

Raymond H. Fraser

Margaret S. Gratz

P.N. (Nick) Harkins, III

F. Ewin Henson, III

Shanda Y. Johnson

Lemuel E. Montgomery, III

Jeffrey G. Pierce

Daniel E. Ruhl

P. Nelson Smith, Jr.

Robert R. Stephenson

Gina B. Tompkins

Mark H. Tyson

Paul B. Watkins, Jr.

William E. Whitfield, III

2 The MDLA Quarterly • Spring 2008

A Message from the PresidentI had the

pleasure of attend-ing the recentMDLA Trial Prac-tice Academy heldat the HindsCounty Court-house. Based onmy observationsof the Academy

participants, I am happy to report that thefuture of the Mississippi DefenseLawyers Association is in good hands. Inaddition to the young attorneys fromdefense firms all over the state whoparticipated in the Academy, there wasalso a large turnout of law students fromMississippi College. I was pleasantlysurprised at the outstanding performanceof these young attorneys. To those firmsthat sent attorneys, you would be proudof their performance. I was equallyimpressed with the law students whoserved as witnesses and jurors. Not only

did the law students sacrifice a beautifulSaturday morning for this event, they didit for no more remuneration than donutsand a sandwich.

I also want to thank the members ofthe judiciary as well as the members ofour organization for giving their time toserve as judges and coaches. Withoutthem volunteering their time, there wouldbe no Academy. Last, but certainly notleast, thank you to this year’s TPAChairman, Louis G. Baine, III, and hiscommittee for soliciting the volunteersand overseeing the entire production. Ofcourse, without Jane Brown overseeingthe overseers, no MDLA function wouldoccur.

UPS has a popular slogan: “What canBrown do for you?” I find myself asking:“What can MDLA do for you?” Oneanswer is that through not only the TrialPractice Academy, but also through ourlaw school organizations, MDLA can putyou and your firms in personal contact

with up and coming law students in asetting not only where you can socializewith them, but also see them perform.The law student witnesses demonstrateda personality in the courtroom youusually do not get to see in an interview.

The recruitment of new lawyers is adifficult and time consumingresponsibility for every firm. MDLAmakes that job easier for you and yourfirms. Encourage your recruitingcoordinator to become involved not onlywith the Trial Practice Academy, but alsothe many functions sponsored by MDLAthrough the Young Lawyers section atboth Ole Miss and Mississippi College.Encourage your young attorneys toattend these events and meet the lawstudents in a comfortable social setting.Oftentimes, our junior attorneys are thebest judge of future talent. ■

James R. Moore, Jr.MDLA President

Continued on page 5

DRI Offers CLE in a Wide Variety of Substantive Law Areas

DRI is meet-ing and exceedingthe expectationsof defense law-yers on a nationalscale generally,but also on thestate and locallevel as well.Seminars on the

hottest topics in the defense practice aretaking place monthly all over thecountry. So, no matter whether you livein or near Las Vegas (Damages Seminar,March 26-28), Chicago (InsuranceCoverage and Claims, April 9-11), NewYork (Electronic Discovery, April 17-18), Phoenix (Trucking Law, April 17-18), San Francisco (Life, Health,Disability and ERISA, April 23-25),New Orleans (Drug & Medical Device,May 1-2), or the most hallowed of

seminar ground, Lake Buena Vista, FL(Disney World) (Employment Law, June5-6), you are never more than just a fewhours from the best education,entertainment and association with like-minded professionals that you canpossibly find in the legal defensebusiness. For those that have never beento a DRI Seminar, there are none better!You can learn from the best in aparticular field of law in a relaxedatmosphere and even pick up a client ortwo who either shares the room, rostrumor even the table with you. Thoughsometimes the word “networking” cantake on a rather pandering notionsometimes, relationships with otherlawyers and clients are constructed andmaintained even in a learningenvironment where our state barrequirements expect us to be for ourCLE. Networking contacts through DRI

can even take on the simplest and mostinexpensive forms through one of theorganizations committees, andListServe access. No time to “attend” afancy seminar, or press the flesh withhigh priced legal talent? Well, considerthe fact that virtually every high qualityDRI professional enhancementopportunity is audio and video tapedand can be purchased for a nominal feeand taken on the road, plane, train, or“beam me up Scottie” trip that you canimagine or make time for.

The opportunities for the defenselawyer at DRI are simply unsurpassed atany level. No other organization can ordoes offer its members the incredibleopportunities that DRI does and eachfits nicely within the confines of the

The MDLA Quarterly • Spring 2008 3

The Mississippi Defense LawyersAssociation hosted its AnnualMembership Meeting and Luncheon atthe Country Club of Jackson on January26, 2008 with 85 members inattendance. Several members of thejudiciary were honored guests, includingChief Justice James W. Smith, PresidingJustice Oliver E. Diaz, Jr. and AssociateJustice Jess H. Dickinson of theMississippi Supreme Court. PresidingJudge L. Joseph Lee, Associate JudgeDavid A. “Tony” Chandler, andAssociate Judge Virginia Carlton of theMississippi Court of Appeals were alsoin attendance. Also present were 13th

Chancery Court District Judge LarryBuffington, 16th Chancery Court JudgeRandy Pierce, and 7th Circuit CourtSenior Judge W. Swan Yerger. TheMDLA Annual Meeting is always wellattended by the judiciary, which speakswell of the reputation of the MDLAamongst judges.

Mississippi Supreme Court JusticeJess H. Dickinson was the guest speakerand provided a discussion of the currentstate of the profession in the wake of theongoing judicial bribery scandals in ourstate. Justice Dickinson’s speech wastimely, appropriate, and well received bythe audience.

Highlights of the meeting were therecognition of John B. Clark of Daniel,Coker, Horton & Bell for the MDLALifetime Achievement Award (seerelated article inside front cover), andthe presentation of a check from MDLAto Betty Daugherty, as Director of theMS Bar Lawyers and Judges AssistanceProgram. This check represented fundscollected from the MDLA membershipas part of the MDLA’s ongoing supportof the MS Bar Lawyers and JudgesAssistance Program.

The Annual Meeting marked thepassing of the gavel to incomingpresident James R. Moore, Jr., ofCopeland, Cook, Taylor & Bush, P.A.by outgoing president James D. Hollandof Page, Kruger and Holland, P.A. TheMDLA looks forward to Jim’sleadership in the coming year.

The Board of Directors met earlierthat day to discuss the ongoing businessof the Association which included theapproval of the 2008 Board of Directorsfollowed by committee reports on ourupcoming Trial Practice Academy, JointSeminar with Mississippi ClaimsAssociation and the DRI SouthernRegional Meeting.

Goodloe T. Lewis2008 Secretary-Treasurer

Mississippi Supreme Court Justice Jess H. Dickinson Discusses the“Current State of the Profession” at the 2008 Annual Membership Meeting

Michael B. Dickinson, William E. (Bill) Whitfield, III,Mississippi Supreme Court Justice Jess H. Dickinson and

Mississippi College School of Law Dean James Rosenblatt.

Outgoing President James D. Holland is congratulatedby Incoming President James R. Moore, Jr.

MDLA Director J. Scott Corlew, Vice President Sherrie L. Moore,Mississippi Court of Appeals Judge L. Joseph Lee and

Director Susan L. Steffey.

DRI State Representative William E. (Bill) Whitfield, III,(left) presenting the Exceptional Performance Award to

2007 MDLA President James D. Holland.

Luncheon speaker Supreme CourtJustice Jess H. Dickinson with

MDLA President James R. Moore, Jr.


On December 11, 1981, theMississippi Defense Lawyers Associ-ation held the first ever Trial PracticeAcademy at the Hinds CountyCourthouse in Jackson. Seventeen younglawyers paid $25.00 each to attend.During the twenty-seven years since thatfirst academy, fifteen more academieshave taken place, both in Jackson and,more recently, in Oxford. The list of pastchairman, speakers, coaches andparticipants is a virtual Who’s Who of theMississippi Defense Bar. Names likeJerome Steen, Tommy Bell, Swan Yerger,Scotty Welch, Natie Carraway, TomStennis, Orma Smith, Gerald Jacks,Dewitt Hicks and many others come tomind – lawyers who have made a lastingimpression on our profession andassociation. I was a participant in theclass of ’85 which included attorneys inalmost every defense firm in Mississippi.The Trial Practice Academy gave many

of us our first litigation experience.On February 29 and March 1, 2008,

a host of local, and some not so local,

judges and attorneys, joined by studentsfrom the Mississippi College School ofLaw, gathered at the Hinds CountyCourthouse for the 16th Trial PracticeAcademy. On Friday, the participantsand volunteer students attended aseminar with presentations on all aspectsof civil trial, including trial preparation,voir dire, opening statements, directexamination, cross examination andclosing arguments. Our speakersincluded Mike Baxter, Bill Dalehite,Diane Pradat, James Holland and AndyAlexander. The seminar was followedby a well-attended and wonderfulreception at Que Sera. Jane Brown cando a reception!

Saturday began with a continentalbreakfast for everyone involved in theAcademy. The highlight of the eventwas the six trials involving a car accidentcase. Presiding over the trials were theHonorable Kent McDaniel, formerCircuit Court Judge Robert Goza, formerCircuit Court Judge Robert Gibbs, 2008MDLA Lifetime Achievement Award

recipient John Clark, MDLA DirectorsSusan Steffey and Andy Alexander. Thetwelve trial teams were coached by JohnBrady, Michael Coleman, Wright Hill,Whit Johnson, Jim Moore, Mike Myers,Diane Pradat, Bobby Stephenson, JamieTravis, and Josh Wiener. Following thetrials, the judges and coaches discussedthe strengths and weaknesses of eachteam. A great lunch was provided by theMedical Assurance Company ofMississippi, which has been a strongsupporter of the academy. Thanks toMike Houpt, Chuck Dunn, Rob Jonesand all the folks at MACM for theirsupport.

Once again, the TPA was a hugesuccess. The comments we received bothduring and after the event were atestament to the hard work of allinvolved and the overall success of theAcademy. To all involved I again expressby sincere appreciation.

Louis G. Baine, III2008 TPA Chairman

Trial Practice Academy Gives Participants “On their Feet” Experience


Perhaps one ofthe most importantaspects of theYoung LawyersDivision of MDLAis its active com-mitment to recruit-ing. The YoungLawyers Divisionnot only recruits

new members from the Bar but also fromamong Mississippi’s law studentsthrough our two MDLA StudentChapters. This has been evident in theNorthern Region Division under thedirection of Christine Tatum andElizabeth Hadley.

Last fall, the Northern Region had itsrooftop social with the Ole Miss StudentChapter at the Daniel Coker law firmlocated just off the square in Oxford. Thesocial was a great opportunity forstudents to meet and discuss MDLA anddefense practice with our young lawyermembers and it also generated significantinterest in MDLA. The Northern RegionSpring Social will be Friday, April 11(Ole Miss vs. LSU weekend) and willagain take place atop Daniel Coker. Weare hopeful for a great Friday afternoonturnout from our young lawyers and lawstudent members alike. Look for flyersand email invitations soon, and manythanks to the Northern Region for theircommitment to recruiting and theirstrong partnership with the Ole MissStudent Chapter. Through their efforts,our Ole Miss Student Chapter is nowtwenty-five members strong andgrowing.

In the Central Division, the jointmeetings of the MDLA and DRI StudentChapter at Mississippi College School ofLaw are a continuing success. InFebruary, Mike McWilliams of ButlerSnow delivered a lecture on themechanics of taking and defendingdepositions in civil cases. Throughvisual aids and hands-on use of casematerials, Mike gave our MC StudentChapter members their first practicallesson in the strategy and art of deposinga witness.

In March, Anita Modak-Truran ofButler Snow lectured to the students onthe entertainment lawyer’s role inminimizing risk for client filmmakers aswell as the use of film and videographyat trial. Anita’s presentation washighlighted by actual video taken at thisyear’s Sundance Film Festival in ParkCity, Utah, featuring artists such aswriter-director Quentin Tarantino. It wasas entertaining as it was educational.

The Central Division will close thespring semester with a final studentmeeting in April featuring a panel ofsuccessful women in the legal professionwho will discuss their perspectives andexperiences in today’s law practice. TheStudent Chapter members are alsoinvited to attend the Central Division’sSpring Social on Thursday, April 17,2008 from 5:30 to 7:30 p.m. at theCrawdad Hole at Smith-Wills.

The Central Division springcommunity service project is underwaybut needs the added support of allMDLA members. To recap, the CentralDivision is collecting bed and bathsupplies (either travel-size purchases or

collected on our business travels) fordonation to Matt’s House and Sims’House, two Stewpot affiliated sheltersfor homeless women and children.Please keep this community serviceproject in mind on your business travels.Items can be delivered to any CentralDivision committee member. With thehelp of all MDLA members, we hope tomake a significant donation in early Juneand lend a helping hand to these two fineorganizations.

Last, it is a pleasure to report that the16th MDLA Trial Practice Academy wassuccessfully completed February 29 andMarch 1 at the Hinds County Courthousein Jackson. Thanks to the MDLA YoungLawyers who donated their time andeffort to recruiting jurors and witnessesand who served as jurors, coaches andwitnesses. With the help of the YoungLawyers, the Trial Practice Academywas a success.

As we enter 2008, our MDLA YoungLawyers Division remains active. Theyear has only begun, and already theRegional Divisions are making effortsand planning events to recruit newmembers from the Bar and from amongMississippi’s law students. The MDLAYoung Lawyers are active in theircommunities, they actively support theirtwo student chapters, and they have, bytheir actions, displayed uncompromisingsupport for MDLA in all of its endeavors.We look forward to even more successand progress throughout 2008. ■

Lemuel E. (Lem) Montgomery, IIIYoung Lawyers Division Liaison

MDLA Young Lawyers Committed to Recruiting andService in Organization and Community

participating efforts and privileges ofMississippi Defense Lawyer Associa-tion membership. Save the date thisyear for the DRI Annual Meetingplanned for the City of New Orleans onOctober 22-26, 2008. Lawyers from allover the country will converge on the

downtown district for the single largestdefense lawyer gathering in the nation.The CLE is always excellent and thefeatured speakers are alwaysentertaining and award winning. Yet, forall the resources, contacts, opportunitiesof professional advancement andenhancement, DRI’s membershipstipend is shamefully minimal – plus the

Continued from Page 2 actual “voice” support that you cancount on at the DRI offices in Chicagois truly a breath of fresh air. Check outthe resources now at the DRI website(www.DRI.org) and see what you’remissing. ■

William E. (Bill) Whitfield, IIIDRI MS State Representative


While it would be grosslyoverstating the case that theMississippi Bar and Judicial Systemare now facing an onslaughtproportionate to the AmericanRevolution, there is no question thatwithin the last year the Bar and theBench in Mississippi have takenwhat the public at large will see asseveral body blows. As a result ofcorruption investigations in theSouthern District of Mississippi, wenow see two former state courtJudges and one prominent lawyer inprison. In the Northern District, wehave a judicial bribery scandal inwhich two of the most prominentplaintiffs’ lawyers in the State havebecome ensnared, both of themhaving pleaded guilty to chargesrelating to judicial bribery orconspiracy. Another lawyer, lessprominent, has pleaded guilty topublic corruption charges as has aformer State Auditor. If one readsthe news accounts that come outalmost daily, it appears that

questions are also raised about aformer District Attorney and a sittingCircuit Judge in Hinds County.Whether any of the unadmittedcharges or allegations are validremains to be seen.

One only has to read the dailynewspapers or listen to talk radio asone travels across the State to becomeconvinced that the public at large isseriously disillusioned, if not totallycynical, about the Mississippi legalsystem.

Already there are calls for achange in the way we select judges,which may or may not be a bad thing,a commission to study the judicialsystem and no doubt there will beother suggestions or recom-mendations. Any crisis of confidencein an institution (e.g. the WatergateCrisis regarding the Presidency), willproduce reactions and no doubt changeat some level.

It is distressing that there are thosein our profession who took the sameoath we did when we became

practicing lawyers, who have chosento commit crimes that corrupt thevery system they swore to uphold.However, it must be borne in mindand indeed conveyed to our clients,our lay friends and the public atlarge that while there may have beencorrupt lawyers and corrupt judges,they were exposed by lawyers andjudges and brought to justice. Thisis a clear illustration that the legalsystem works. We should nothesitate to defend our system ofjustice in this crisis. With any flawsthat it has, it is still the best systemthat has yet been devised on the faceof this earth for justly settling thedisputes of those who submitthemselves to it. We must not letany who would seek to obtain theirown advantage by this crisishamstring or curtail the system thathas been handed down to us from theEnglish Common Law through theFounding Fathers of this Nation andour forebears in the profession inthis State. ■

Ewin Henson is a partner in the Greenwood office of Upshaw, Williams, Biggers, Beckhamand Riddick, LLP. He is a graduate of Mississippi State University, B.A. (1972) and theUniversity of Mississippi School of Law, J.D. (with distinction) (1974). Mr. Henson is anative of Tallahatchie County, Mississippi, and is married to the former Claudia Birdsong,a native of Clarksdale. They have one son, Jeffrey, who is an NCIS agent stationed inJapan. Mr. Henson is a member of and past Chairman of the Mississippi BarProfessionalism Committee, 2008 MDLA Vice President, a member of the Federation ofDefense and Corporate Counsel and a Fellow of the Mississippi Bar Foundation.

Stand Up For Our Profession and Our Judicial SystemBy F. Ewin Henson, III

“These are the times that try most men’s souls. The summer soldier and the sunshine patriot will,in this crisis, shrink from the service of their country; but he that stands by it now, deserves the loveand thanks of man and woman.”

Thomas Payne, “The Crisis”, December 23, 1776

Fictitious parties and amendmentsunder Rules 9 and 15 continues to be anevolving topic in our Courts, and at timescan be confusing to the practitioner to thepoint that he or she may not even know aproblem exists until its too late. In anearlier MDLA article on this topic, thecurrent state of Mississippi law was dealtwith and one firm conclusion couldcertainly be drawn - that the contours ofRules 9 and 15 are almost mutuallyexclusive when “adding” or“substituting” parties. More recentdecisions seem to establish a clearerdistinction between the two rules. Areclamation of the earlier article will bebrief, with an emphasis on the mostrecent Supreme Court decisions. Rule 9will be dealt with in the classic context of“doe” defendants, while Rule 15generally features the concept of all otheramendments, whether they be addingparties or claims. An understanding ofboth may be necessary to claim or avoida “relation back” scenario. As before,both Rules are our baseline and bearrepeating here.

As it relates to the substitution,changing and/or addition of parties andclaims, Rule 15(c) controls and states:

Whenever the claim or defenseasserted in the amended pleadingarose out of the conduct, transaction,or occurrence set forth or attemptedto be set forth in the original

pleading, the amendment relatesback to the date of the originalpleading. An amendment changingthe party against whom a claim isasserted relates back if the foregoingprovision is satisfied and, within theperiod provided by Rule 4(h) forservice of the summons andcomplaint, the party to be brought inby amendment:

(1) has received such notice ofthe institution of the action thathe will not be prejudiced inmaintaining his defense on themerits, and

(2) knew or should have knownthat, but for a mistakeconcerning the identity of theproper party, the action wouldhave been brought against him.An amendment pursuant to Rule9(h) is not an amendmentchanging the party againstwhom a claim is asserted andsuch amendment relates back tothe date of the original pleading.(Emphasis Added).

Mississippi Civil Procedure Rule 9(h)provides that:

Fictitious Parties: When a party isignorant of the name of an opposingparty and so alleges in his pleading

the opposing party may bedesignated by any name, and whenhis true name is discovered theprocess and all pleadings andproceedings in the action may beamended by substituting the truename and giving the proper notice tothe opposing party.

Theoretically, the three differentsituations involving parties (new andcurrent) are: (1) the addition of a newparty (no fictitious party named), (2) thesubstitution of a misnamed or fictitiousparty (Rule 9 or 15), and (3) the assertionof new claims against existing and new(added, substituted or fictitious) parties.Each situation has a different rule towhich the practitioner must remainsensitive.

Clearly, the “addition” of a newparty or new claim after the running ofthe statute of limitations, short of fraudor minority, should result in a dismissalof the claim against that new party. Doev. Mississippi Blood Supply, Inc., 704So.2d 1016 (Miss. 1997). In Womble v.Singing River Hospital, 618 So.2d 1252(Miss. 1993), the Mississippi SupremeCourt highlighted that the plaintiff mustexercise “reasonable diligence”1 indiscovering the existence of a claimagainst another individual or entitysought to be joined, and this diligencemust be exerted within the period of theoriginal limitation. Once the plaintiffknows or should know the identity of thecorrect or new party in the exercise of“reasonable diligence,” he then has aduty to exercise “reasonable diligence”in bringing in the correct party. This“reasonable diligence” standard issimply incapable of a “bright line”timetable, and unfortunately could be theproduct of subjective perceptions of thetrial court (City of Jackson v. Presley,

William E. (Bill) Whitfield, III, is a partner in the Gulfport,Mississippi firm of Bryant, Dukes & Blakeslee, P.L.L.C., where hispractice focuses on Personal Injury Law, Medical Malpractice Law,Premises Liability, and Interstate Tort Defense. He attended MobileCollege, earning his Bachelor of Arts Degree in history in 1977, thenattended Mississippi College, graduating in 1981. Bill is a pastpresident of MDLA and is currently serving as the DRI StateRepresentative for Mississippi.

Fictitious Parties and Amendments Joining a Party under MississippiCivil Procedure Rule 9(h) and 15 – Revisited*

By William E. Whitfield, III

* Whitfield, III, William E. “Fictitious Parties and Amendments Joining a Party under Mississippi Civil Procedure Rule 9(h) and 15.” The MDLA Quarterly Dec. 2003:3-6.1 Based on the Court’s recent decisions to be discussed in this article, the “reasonable diligence” standard expressed in Womble was perhaps limited to a Rule 9(h) inquiry,

not Rule 15(c), even though the phrased “reasonable diligence” was used in the context of the discussion of both provisions. Both Bedford and Walker on the other hand,clearly limit the “reasonable diligence” inquiry to Rule 9(h).


942 So.2d 777 (Miss. 2006)); Harmon, etal. v. Regions Bank, 961 So.2d 693 (Miss.2007), reh den. August 16, 2007; Webb v.Braswell, et al., 930 So.2d 387 (Miss.2006); Harris v. Mississippi Valley StateUniversity, et al., 873 So.2d 970 (Miss.2004); Dowdle Butane Gas Company, etal. v. Walter S. Moore, 831 So.2d 1124(Miss. 2002); Bennett, et al. v.Madakasira, et al., 821 So.2d 794 (Miss.2002); Moeller, et al. v. AmericanGuarantee and Liability InsuranceCompany, 812 So.2d 953 (Miss. 2002);Hartford Casualty Insurance Company etal. v. Halliburton Company, 826 So.2d1206 (Miss. 2001); Pratt v. City ofGreenville, 804 So.2d 972 (Miss. 2001).This is so, notwithstanding that theSupreme Court has adopted a “strictscrutiny” or strict oversight standard.Doe v. Mississippi Blood Services, Inc.,704 So.2d 1016, 1019 (Miss. 1997).

Aside from Rule 9 and 15, Rule 212

has recently been implicated in thecontext of an amendment to a complaint.In Veal v. J.P. Morgan Trust Company,N.A. 955 So.2d 843 (Miss. 2007), theCourt conceptually added a third rule (orprocedure) to the mix when consideringthe proper contour of amendments,dealing with it in the context of an agreedorder permitting the “joinder” of parties.Veal filed suit against the owners of the

Autumn Leaves Nursing Home onDecember 26, 2002 arising out of thedeath of Smith. Prior to the filing of anyresponsive pleadings, an amendedcomplaint was filed on March 27, 2003 toreflect that the plaintiff was now “Veal onbehalf of the Estate.” A secondamendment was filed with permission ofthe existing parties that added J.P.Morgan Trust (and other defendants whowere) alleged to be additional owners ofAutumn Leaves and thus responsible forthe death of Smith. The newly addeddefendants moved to dismiss assertingthat the plaintiff was not simply“substituting” fictitiously named parties,but rather, had added additional

allegations and parties to the complaintsuch that the amendment required courtpermission under Rule 21.

The Circuit Judge dismissed theclaim against J.P. Morgan. On appeal,the Mississippi Supreme Court reviewedthe provisions of Rules 9(h), 15(c) and21, holding that the plaintiff was correctin the assertion that court approval wasnot required if the amendment was“merely” a substitution of a previouslyunknown party. However, the plaintiffadded new parties AND new claims tothe amended complaint, going beyondjust substituting unknown or fictitiouslynamed parties. The Court explained thatRule 9(h) was only a “mechanism tobring in responsible parties, known, butunidentified, who can only beascertained through the use of judicialmechanisms such as discovery.”3 Id at846 (citing Ralph Walker, Inc. v.Gallagher, 926 So.2d 890, 896-97 (Miss.2006) (emphasis added). The Courtnoted that the plaintiffs did not know ofthe allegations against these newdefendants when the original complaintwas filed, and Rule 9 could not be usedto “insure” against this anticipation (asopposed to an unanticipated prospect).The Court assumed a critical posture ofthose lawyers that identify “doe”defendants routinely as an “insurancepolicy” in case they haven’t suedeveryone that they intend to sue, stating:

Rule 9(h) does not say that a plaintiffmay include a fictitious partybecause the plaintiff suspects thatthere might be someone out therewho might have engaged in conductwhich might be actionable.

* * * * *

Rule 9(h) is not intended to serve asan insurance policy to plaintiffs whowish to protect themselves in casethey discover new defendants in thecourse of litigation.

Veal at 845-846.

The Court went on to suggestexamples of those instances in which a“fictitious party” is distinguished froman “additional” or new defendant with anew claim asserted:

[W]here a plaintiff suspects thatthere might have been othersinvolved in the procedure who mighthave been negligent, but is, at thetime suit is filed, unaware of whothey are or what negligent act theyare alleged to have committed, theplaintiff may not include a fictitiousparty in the complaint.

Veal at 846.

After distinguishing these types ofdefendants, the Court observed that:

Having said that, we find itimportant to point out that theexplicit language of Rule 9(h) doesnot require leave of the court toamend pursuant to Mississippi Ruleof Civil Procedure 15(a). In caseswhere it is unnecessary to amend thecontent or the substance of aplaintiff’s complaint, and the onlychange is to substitute thedefendant’s true name for thefictitious name Rule 9(h) applies,and leave of court is not required.

Veal at 846.

Concluding that the new defendantswere not “fictitious,” the Court stated:“[C]ounsel for the existing defendantscould not consent to an amendment ofthe complaint on behalf of the proposednew defendants.” Veal at 845. Becausethe existing defendants could not“consent” to the addition of new partiesand new claims, the Court held that Rule21 required that the parties be joinedonly upon an “order” of the court.Presumably, this means that an

2 Rule 21states: “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of itsown initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.” Rule 21 of Miss. R. Civ.

3 With this, the Court perhaps slightly contradicts itself based on language contained in Bedford v. Williams, 946 So.2d 335 (Miss. 2006), “Even if the plaintiff knowsthe true name of the person, he is still ignorant of his name if he lacks knowledge of the facts giving him a cause of action against the that person.” (emphasis added). Giventhe language in Veal as it relates to Rule 9, it would appear that Veal is either an understatement of the contours of Rule 9, or Bedford is an overstatement.


appropriate motion needs to be filed anda record made as to the appropriatenessof joining additional parties. Since theplaintiff did not secure an order of thecircuit court, the amendment wasimproper and the claim against J.P.Morgan was properly dismissed.Therefore, under Veal, it is clear that Rule9(h) is to be used only as a tool to identifythose parties whose identity (i.e., name)is unknown, but whose conduct and theclaim against them is at least“knowable.” But see, Sims v. Bear CreekWater Assoc., 923 So.2d 230 (Miss. Ct.App. 2005); cert denied, March 9, 2006(claim against defendant was specificallyunknown yet the court encouragedplaintiff to sue anyway under Rule 9(h)).

Nothing more is left of the inquiryother than to determine the nature andextent of “reasonable diligence.” Vealseems to be contrary to the prevailingpractice of resigning one’s self to theprospect that the plaintiff justifiablyidentified a “doe” defendant, and as such,new parties and new claims “relate back”if timely filed. The stated conclusionthen is that Rule 9(h) can only be used tojoin parties whose identity is unknownand for which the plaintiff is ignorant.

Veal was preceded by three othernoteworthy decisions the previous yearthat critically dealt with Rule 9(h) and15(c) from a logistical and formulaicstandpoint. A review of these decisionssuggests the Court’s intent on minimizingthe use of Rule 9(h) as an “insurancepolicy” for unknown claims andunknown parties, making sure that it isused in the right circumstances.

In Bedford Health Properties, LLCv. Estate of Williams, et al., 946 So.2d335 (Miss. 2006), the Supreme Courtpainstakingly dealt with the differencebetween Rule 9(h) and 15(c),highlighting that the contours of Rule9(h) are limited to certain situations – onebeing “ignorance.” Bedford defined“ignorance,” sort of, by tacit adoption ofearlier holdings in Rawson v. Jones, 816So.2d 367 (Miss. 2001), and Womble v.Singing River Hospital, 618 So.2d 1252(Miss. 1993), stating that facts orinformation which were or reasonablyshould have been available and obtained,regardless of actual receipt, will not be asubstitute for “ignorance” required by theRule:

[A] proper amendment pursuant toRule 9(h) will relate back to the dateof the filing of the original complaint.M.R.C.P. 15(c)(2); M.R.C.P. 9(h). InDoe v. Mississippi Blood Services,Inc., 704 So.2d 1016, 1019 (Miss.1997), this Court held: “The purposeof Rule 9(h) is to provide amechanism to bring in responsibleparties, known, but unidentified, whocan only be ascertained through theuse of judicial mechanisms such asdiscovery. It is not designed to allowtardy plaintiffs to sleep on theirrights.” See also Wilner v. White, 929So.2d 315, 322 (Miss. 2006); RalphWalker, Inc. v. Gallagher, 926 So.2d890, 896 (Miss. 2006). “[I]n order forRule 9(h) to apply, there must be asubstitution of a true party name for afictitious one.” Walker, 926 So.2d at896.In Womble v. Singing River Hosp.,618 So.2d 1252 (Miss. 1993), thisCourt set forth a guideline todetermine if a party was “ignorant”of the name of an opposing partypursuant to Rule 9(h). It is aprinciple of general application,though, that ignorance of theopposing party for fictitious partypractice extends beyond mere lack ofknowledge of the opposing party’sname. Even if the plaintiff knows thetrue name of the person, he is stillignorant of his name if he lacksknowledge of the facts giving him acause of action against that person.Womble, 618 So.2d at 1267. “Rule9(h) exists for the benefit of a partywho is ‘ignorant of the name of anopposing party and so alleges in hispleadings.’ ” Wilner, 929 So.2d at322. This Court has alsoacknowledged a reasonable diligencetest when substituting unknownparties pursuant the M.R.C.P. 9(h).Wilner, 929 So.2d at 322-23 (citingDoe, 704 So.2d at 1018-19); see alsoWomble, 618 So.2d at 1266-68.Reasonable diligence is a standardonly for determining the efforts madeto discover the true identity of anamed fictitious party under Rule9(h). Nguyen v. Mississippi ValleyGas Co., 859 So.2d 971, 978-79(Miss. 2002). “The relation back

privilege provided for fictitiousparties under Rule 15(c)(2) requiresthe plaintiff to actually exercise areasonably diligent inquiry into theidentity of the fictitious party.” Doe,704 So.2d at 1019.

Bedford at 341-342.

The Court suggested that“ignorance” is not the equivalent of“knowledge”, and the focus is on whatshould have been known with some basicacknowledgement of the facts andcircumstances. The plaintiff must betruly ignorant of the name of the party,which means information was notreasonably within the grasp of theplaintiff sufficient to identify the party.And ignorance, for right or wrong, is thekey component of the utilization of Rule9(h). Though conceptually criticized inVeal, and characterized as an “insurancepolicy,” Bedford continues a longstanding position of suggesting that“ignorance” may also suffice when aparticular “claim” is unknown to theplaintiff, but the party is known. As such,Veal may have been a slightoverstatement by limiting the applicationof Rule 9(h) to those situations in whichthe plaintiff is “ignorant” only of theidentity of the party.

The facts of Bedford were thatWilliams was a nursing home resident atConva-Rest of Northgate from October1992 until his death in December 2001.In December 2002, his estate filed acomplaint arising out of the death of thepatient against several defendants“affiliated” with the owners, operatorsand managers of the nursing home. Theestate, however, did not identify thecorrect name of the facilities where thepatient resided, although knowledgeableof this information. In July 2003, theestate filed a motion to substitute partiesand amend the complaint to joinadditional parties, i.e., the correct namedowners and operators of the facility. Thetrial court granted the motion over a yearlater in August 2004. Some of theoriginal defendants were dismissed andothers, specifically those that representedthe correct facility, were added in theirplace. No apparent effort was made todisplace (or actually replace) thenumbered or named “doe” defendants for


the now known defendants by name.After the amended complaint was filed,the newly named defendants filed amotion to dismiss, citing the fact that theplaintiff failed to properly “substitute”parties (“doe” defendant parties) andfailed to comply with the provisions ofRule 15(c) in amending the complaint.Alternatively, the defendants argued thatthe limitations period had run as to thenew parties. The trial court denied themotions by order in June 2005, butgranted the defendants permission toappeal.

On interlocutory appeal, theMississippi Supreme Court conducted adetailed review of the provisions of Rule9(h), and held that the Rule requires theplaintiff’s actual ignorance of the namesof the responsible parties for them toqualify as a fictitious party defendant.These new parties must be “unknown,”and an effort must be made in theexercise of “due diligence” to discoverthem prior to suit. If the parties are, or“should have been known” by theplaintiff at the time suit is filed, then theyare not true fictitious parties, and Rule9(h) does not apply. This means that anamendment to simply “add” newdefendants for those that should havebeen known in the first place may only beaccomplished by compliance with Rule15(c).

The Court went on to survey thecaselaw and requirements of Rule 15(c)and observed that its requirementsmandate that for the claim to “relateback,” the new defendants must have had“notice” of the suit, and they must havehad “knowledge,” within 120 days of theoriginal complaint being filed, and thatthey should be a party but for a mistakeon the part of the plaintiff.4 Super-imposed over these requirements is thatthe amended claim must arise out of thesame transaction or occurrence, arequirement clearly spelled out by theRule. The Court’s analysis of each of theadded parties was that all of thedefendants possessed commonality withthe original defendants. They had noticeof the suit and should have known that,

but for a mistake, they would have beenparties. They also possessed thisknowledge within 120 days of theoriginal complaint. As such, even thoughthey could not be “fictitious parties”under Rule 9(h), they could be joined as“additional parties” under Rule 15(c).Further, though the claim was assertedagainst different defendants afteramendment, the Court held that the claimarose from the same transaction oroccurrence. Two individual defendants,held not to have had reason to know ofthe suit, notwithstanding that it wasentirely reasonable to assume theirknowledge (because of their relationshipto the facility), should have beendismissed because imputing knowledgeof the suit to them would be nothing morethan speculation.

In Wilner v. White, 929 So.2d 315(Miss. 2006), the Supreme Court dealtwith a scenario where the plaintiffattempted to join a physician defendantvia amendment on the day that the statuteof limitations had run. On January 27,1997 Wilner underwent a laparoscopicprocedure performed by Dr. White atSinging River Hospital. She later filedsuit against Singing River, a nurse, and“doe” defendants on February 12, 1998.The plaintiff took Dr. White’s depositionon August 12, 1998. On January 27,1999, exactly two years from the date ofthe procedure, Wilner filed a motion toamend her complaint to join Dr. Whiteand his clinic (Gulf Coast OB/Gyn), andan “amended complaint,” filed withoutleave of court. Ultimately, the trial judgedenied the plaintiff’s motion to amendand dismissed the amended complaintjoining Dr. White. On appeal, the Courtof Appeals reversed and remanded theclaim with instructions to allow theamendment. After remand, White filed amotion for “summary judgment,” citingthe failure of the plaintiff to file the claimwithin the appropriate limitations period.The trial court granted summaryjudgment and the plaintiff againappealed. The Court of Appealssuggested that the plaintiff could havefiled a separate complaint on the date the

statute ran in order to preserve her claim,and that she should not lose her day incourt because she chose to file anamended complaint joining new parties.The defendants’ petition for certiorariwas later granted by the Supreme Court.

The Supreme Court deemedimproper the Court of Appeals ruling thatthe plaintiff could have filed a separatecomplaint which it would have been avalid, timely filed complaint. The Courtheld that this was an improper attempt tosplit a cause of action. This means that aplaintiff is limited to pursuing anappropriate remedy arising out of thesame transaction, by amendment, in thetrial court where the action is pending,and in the case that is filed. The SupremeCourt further held that simply because aplaintiff files a motion to amend withinthe appropriate limitations period, thisdoes not mean that the amendedcomplaint is timely filed. If the amendedcomplaint is filed outside of the statute oflimitations, it is not timely filed,regardless of whether it is filed withoutleave of court or as an attachment to amotion to amend. Until it is “validly”filed, it is of no consequence. The Courtappears to be saying that the plaintiffbetter secure timely trial court approval tofile an amended complaint. In addition, ifan amendment arises out of the sametransaction, another suit cannot beinstituted, but must be brought within theexisting case.

The Supreme Court continued bystating that for the amendment to apply toa non party (presumably which he wasnot “ignorant” of), the plaintiff mustcomply with the provisions of Rule 15(c):

After an original complaint has beenfiled, an amended complaint, exceptas otherwise provided by rule, maybe filed only upon seeking andreceiving leave of the court to do so.Thus, we respectfully disagree withthe reasoning applied by the Court ofAppeals in that we do not agree thatthe amended complaint can betreated, for purposes of the addedparties, as an original complaint.

4 Presumably, without the required notice within 120 days, “relation back” will not occur. This, of course, will probably only become an issue if a statute of limitationsruns during this ostensible period. If it does not, then the liberal amendments practice of the Rules would simply allow the addition of new parties, if properly joined basedupon the facts, and the case would proceed under orthodox pleading standards, subject to the normal Rules 12 and 56 defenses.


Wilner at 321.

The Supreme Court then went on todistinguish between the two types ofamendments under the Rules. The Courtanalyzed the requirements of Rule 9(h)which allows for the naming of “doe”defendants and subsequently addingthem as named parties. It was observedthat Wilner did initially identify “doe”defendants, but when Dr. White and hisclinic were later named, the number of“doe” defendants was not numericallyreduced as required by Doe v. MississippiBlood Supply, Inc., 704 So.2d 1016(Miss. 1997). The Court, in the contextof Rule 9, went on to discuss Womble,618 So.2d 1252 and Nguyen v.Mississippi Valley Gas Company, 2002WL 827628, (Miss. May 2, 2002), whichboth held that a plaintiff must “exercisereasonable diligence” in the discovery,identification, and substitution of a“doe” defendant party. The Court notedthat when identifying a “doe” defendantin an original pleading, a plaintiff mustallege that he is ignorant of the name ofthe unknown defendant, and mustspecifically allege that in his complaint.The Court held that because Wilner didnot comply with the provisions of Rule 9,the complaint could not relate back to Dr.White because he was known and wasfactually named in the originalcomplaint.

Finding Rule 9 to be an inappropriatevehicle for vindicating the filing of theamended complaint, the Court nextconsidered the amendment under theprovisions of Rule 15(c), and held thatthe conditions to “add” a party under thisRule begin with the requirement that theclaim arise out of the same transaction oroccurrence. If this requirement issatisfied, Rule 15 (c) then mandates thata newly added defendant must havereceived notice of the claim within thetime period under Rule 4(h) (calculatedfrom the original complaint) so that hewill not be prejudiced. The newly nameddefendant must also know or should haveknown that an action would be broughtagainst him, but for a mistake as to theparties’ identities. The Court held that

Wilner failed to demonstrate how Dr.White knew or should have known that,but for a mistake, he should have beenjoined as a party. Consequently, thejoinder of Dr. White was outside of thestatute of limitations, and the complaintwas properly dismissed under Rule 56.The Court observed that:

Thus, the only way for the claims inthe amended complaint againstWhite to relate back to the originalcomplaint would be if Wilner canmeet the other requirements of Rule15(c), the Rule 9(h) exceptionnotwithstanding. When an amendedcomplaint changes or adds a party,those requirements are: (1) the claimin the amended complaint must ariseout of the same conduct, transaction,or occurrence as that set forth in theoriginal complaint; (2) the newly-named defendant must have receivednotice of the action within the periodprovided by Miss. R. Civ. P. 4(h) suchthat the party will not be prejudiced;and, (3) the newly-named defendantmust have or should have known thatan action would be brought againsthim but for a mistake existing as tothe parties’ identities. Miss. R. Civ. P.15(c).

Wilner at 323.

In holding as the Court did, theyappeared to suggest, again, that Rule 9begins and ends with the assessment ofwhether the “doe” defendant was“ignorant” of the name, rather than theconduct of the defendant. And, ifignorant, whether the plaintiff namedthem fictitiously in the complaint. Then,upon joining him, whether a “doe”defendant reduction occurred. If not,then Rule 9 is essentially “off of thetable.” By default, Rule 15 becomes aconsideration, as augmented by Rule 4(in Wilner), which interestingly allows120 days for service. Curry v. Turner,832 So.2d 508 (Miss. 2002). The Court,with apparent incredulity, observed thatWilner was simply dilatory in seeking thejoinder of Dr. White, and held

categorically that the burden was uponher to demonstrate that Dr. White shouldhave known that he was going to be madea party to the suit. Absent such ademonstration, Wilner failed to show thatRule 4 (as a component of Rule 15(c))was implicated. Simply filing a motion toamend the complaint before the statute oflimitations runs will not toll the statute.See also Curry v. Turner, 832 So.2d 508(Miss. 2002).

Given the holding in Wilner, theCourt has taken the position that a newparty, not a fictitious party, must benamed and the Rule 15(c) criteriacomplied with by the limitationsdeadline. This is certainly a curiositygiven the apparent “grace period”presented by Rule 4(h).5 Yet, thisposition is certainly not without priorSupreme Court authority where the Courtstated: “[S]ince the amended complaintwas filed after the statute of limitationsran against these defendants and does notrelate back to the filing of the originalcomplaint, the trial court was correct indismissing these defendants.” Curry v.Turner, 832 So.2d at 514.

Just when you thought it was safe togo back into the water, the Court, onemonth prior to White, seemed to removethe concept of “reasonable diligence”from an amendment inquiry under Rule15(c) when divorced from the componentof discerning a “fictitious party” underRule 9(h).

In Walker v. Gallagher, 926 So.2d890 (Miss. 2006), Gallagher wasinvolved in an automobile accident withAnders on May 18, 1999. Anders wasemployed by Randy Hunt Trucking Inc.A complaint was filed on March 21,2002. Gallagher sought to amend hiscomplaint on March 15, 2004 to joinWalker and was granted leave to file theamended complaint, and did so on April9, 2004, almost 5 years after the accident.Gallagher asserted that Walker was anunknown party who owned the trailerbeing pulled by Anders and Hunt andtherefore, the amendment related back tothe date of the filing of the originalcomplaint in March 2002. Walker filed amotion to dismiss the pleading based

5 To be sure, Rule 15(c) does not say that the 120 period provided for by Rule 4(h) begins to run from the date of the original complaint. This is an apparentsuperimposition of the Court (see Walker v. Gallagher, 926 So.2d 890 (Miss. 2006)), although with some authority, as Rule 15(c) references “summons and complaint” inconnection with Rule 4(h), as opposed to “summons and amended complaint.”


upon the statute of limitations. Thismotion was denied by the trial judge.Walker filed for, and was granted, aninterlocutory appeal.

On interlocutory appeal, the Courtreviewed the provisions of Rule 15(c)allowing the amendment to a complaint“changing” a party, and stated that theamendment would relate back to the dateof the original complaint if: (1) it aroseout of the same transaction, (2) there wasnotice to the defendant of the claim, and(3) knowledge by the defendant that, butfor a mistake, the defendant would havebeen added as a party. These later tworequirements must take place within Rule4(h) 120 days of the filing of the“original” complaint. Gallagher arguedthat Walker was aware of the accidentand the damage to his trailer andtherefore should have known that hewould be made a party because of theinevitability of a lawsuit. The Courtobserved that simply being aware of anaccident does not impute knowledge of asuit or that one faces legal liability. TheCourt stated that it is not theresponsibility of a newly addeddefendant, such as Walker, to disprovehis own knowledge of the suit.

Gallagher next argued that absenceof proof of lack of notice is evidence ofnotice. This, the Court suggested, was“nonsensical.” “Clearly Walker did notreceive notice of the institution of theaction within 120 days after the filing ofthe complaint.” Id. at 895. The Courtheld that the “fictitious party” concept ofRule 9(h) would have no applicationbecause a plaintiff must allege in hispleading the lack of knowledge ofsomeone who should be a defendant. Inthis case, the plaintiff clearly knew of thepotential for the liability of others, butfailed to account for it.6 Further,“reasonable diligence” in discovering thetrue identity of a party only applies in thecase of a fictitious party under Rule 9(h).Rule 9 is not designed to allow tardyplaintiffs to sleep on their rights.Because Gallagher failed to demonstrateknowledge and notice on the part ofWalker within 120 days of the filing of thecomplaint, he failed to comply with theprovisions of Rule 15(c) and therefore,

the complaint against Walker shouldhave been dismissed by the trial court.

The fascination with the Court’sholding is not in how it applied the“relation back” provision (or not) of Rule15(c), but in how it seemed to discountthe notion of the necessity of “reasonablediligence” in either discovering the trueidentity of a “fictitious party” or inlearning of the nature of the conduct ofan unknown defendant. The currentCourt, as indicated in Wilner, seems to bevery critical of a plaintiff who essentiallysits on his rights in not joining adefendant that he should have. And,while not using the specific mantra of“reasonable diligence,” its echo is heardwithin the four corners of the Wilneropinion against the backdrop of a Rule15 inquiry.

As in Veal, Wilner certainly limitsthe utility of Rule 9(h) to somethingother than an “insurance policy” bysuggesting that it can only be used forthose limited situations when the act7 andthe actor is known, but his name not. Itis understandable that “reasonablediligence” would be necessary in thediscovery of the name of a “fictitiousparty” for later substitution, but it isindeed curious why the “reasonablediligence” standard would be de-emphasized under Rule 15 unless theCourt, by implication, has adopted amathematical formulation for when acomplaint could be amended to “add” aparty or cause of action. CertainlyWomble implicated “reasonable dili-gence” in the addition of a party, but thisvery well could have been because of theinextricable nature of the Rule 9 versusRule 15 inquiry then before the Court.Nonetheless, Walker suggests that the“reasonable diligence” criteria appliesonly under Rule 9(h) when a plaintiffattempts to discover an unknown partythat is described as such in the complaint.

Further, and seemingly contrary toRule 15(c), or at least contrary to theCourt interpretation of it in the past, theCourt holds that the “notice” and“knowledge” criteria must be satisfiedwithin 120 days of the filing of theoriginal complaint. The Court usessome curious language in suggesting that

Walker was a “changed” party, when infact he was an added party that was notsought to be “changed” or “identified” asa fictitious party. Though the Courtseeks to impose a much higher standardwhen “changing” (or said differently,adding) a party, it does so in the face ofseveral cases that seem to suggest amuch more liberal approach when“amending in” other parties after thelimitations period for bringing suit hasrun. See e.g. Pratt v. City of Greenville,804 So.2d 972 (Miss. 2001); Estes v.Starnes, 732 So.2d 251 (Miss. 1999).

The joinder of parties and claimsunder current Mississippi law can get alittle “weird” at times, but if one paysjust slight attention to the details of theprocedural contours, it is really not thatconfounding. The first thing to look forin a Rule 9(h) joinder should be theidentification of “doe” defendants in thecomplaint that were not placed there asan “insurance policy” to the plaintiff.Next, consider the definition of“ignorance” under prevailing concepts ofMississippi law and whether the plaintifffailed to “know” or “should haveknown” of the identity of the correctdefendant. If not, he is not “ignorant” ofthe true identity of the party. Similarly,make sure that the allegations of thecomplaint were changed, to some extent,to claim the protection of Rule 21. If theplaintiff fails the Rule 9 test, thenconsider whether the provisions of Rule15(c) are implicated by calculating thedate from the original complaint underRule 4(h) to determine whether theputative defendant knew or had reason toknow that, but for a mistake, he wouldhave been joined. If not, then, at the veryleast, the amended complaint may not“relate back” and could be “dismissable”against the putative defendant if filedclose enough to the period of limitations.Remember that filing a motion to amendthe complaint or even filing a separateaction will not suffice. With these simplerules, some claims can be dispatchedfairly early. But, it will take more energythan simple resignation that all latefilings simply “relate back” when mostactually may not. ■

6 Thus, the reason for the “insurance policy” pleading that was condemned in Veal.7 The “act” is not something that the Supreme Court in Veal seemed to believe was a justification for not identifying a “fictitious” party.


Robert J. Dambrino is a partner in the firm of Gore, Kilpatrick andDambrino, P.L.L.C., in Grenada, Mississippi. His primary practiceareas are medical malpractice and insurance defense litigation.Robin received his Bachelor of Arts degree from Millsaps College in1979 and graduated from the University of Mississippi School of Lawin 1981. He served in the United States Army and is presently aLieutenant Colonel in the Judge Advocate General’s Corp.

The Medical Malpractice Primer for theCommunity Hospital Defense Attorney

By Robert J. Dambrino, III

Simply stated, community hospitalsare those hospitals funded and overseenby county boards of supervisors. Theyare political subdivisions1 lead by a chiefexecutive officer known generally as anadministrator.2 Suits against them havebeen historically complicated byconflicting and oft-changing case lawwith its genesis in the venerable case ofPruett v. City of Rosedale3 and itsprogeny. The advent of the MississippiTort Claims Act4 was the long-awaitedresolution of the quagmire that hadbecome “sovereign immunity” law. Ourlegislature tackled and, to a large degree,decoded the labyrinthine body of caselaw developed over the years when suingthe State or its political subdivisions. Itcame in a political tidal wave of tortreform which also saw the revision andenactment of numerous substantive andprocedural laws which govern thepractice of law in the medicalmalpractice arena. Together, thislegislative cocktail resulted in a veritableminefield of procedural hurdles throughwhich the plaintiff must pass beforepermitted to present the merits of his

claim before a tribunal. This article is amuch-simplified primer for thepractitioner who finds him or herself in arepresentative capacity on either side ofcommunity hospital litigation.

The Enactments

There are a number of statutes whichmust find themselves on or near yourdesk in this world of community hospitalmalpractice. The most prominent is theMississippi Tort Claims Act. Thisenactment creates and defines theframework within which either party tothe case must work, live and die by.Timing and precision are paramount.Errors and Omissions coverage beware!

Preliminaries

One must be aware of thefundamental precepts applicable to thispractice. They are primarily the statutesof limitation and the notice requirementsof claims. Included are the “waitingperiod” for filing suit, the computation oftime algorithm, the damages rules, andthe trial practice provisions.

Statutes of Limitation

Statutes of limitation have alwaysbeen confusing when suing an arm of theState. The statute of limitationsapplicable to claims against CommunityHospitals is one (1) year.5 This is actuallya statute of repose, in a manner ofspeaking, as recently decided in Caves v.Yarborough6, where our Supreme Courtremoved all doubt that, as against aCommunity Hospital or other subdivisionof the State, this begins to run from thedate of the injury. Specifically, it does notbegin to run from the date of discovery ofthe alleged malpractice. Caves, Supra.

Thus, nothing within the language ofthe MTCA allows its one-yearlimitation for bringing a claim to betolled until the accrual of a cause ofaction, or the plaintiff’s “discovery”of the claim.7

Within that year notice must be givento the executive director or administratorof the community hospital. Notice to theChancery Clerk or the Chairman of theCounty Board of Supervisors issufficient.8

Notice

The requirements of the notice arestrictly adhered to, the omission of any ofwhich is fatal to the efficacy of thenotice. In pertinent part, Miss. Code Ann.§ 11-46-11(2) states as follows:

Every notice of claim required bysubsection (1) of this section shall be

1 Miss. Code Ann. § 11-46-1(i)(1993).2 Miss. Code Ann. § 41-13-10 (2002).3 421 So. 2d 1026 (Miss. 1982).4 Miss. Code Ann. § 11-46-1, et seq.(1993).5 Miss. Code Ann. § 11-46-11(3)(1993).6 No. 2006-CA-01857 SCT, SUPREME COURT OF MISSISSIPPI, 2007 Miss. LEXIS 614, November 1, 2007, Decided, As Corrected November 2, 2007.7 Id.8 Miss. Code Ann. § 11-46-7(1)(2002).


in writing, and shall be delivered inperson or by registered or certifiedUnited States mail. Every notice ofclaim shall contain a short and plainstatement of the facts upon which theclaim is based, including thecircumstances which brought aboutthe injury, the extent of the injury, thetime and place the injury occurred,the names of all persons known to beinvolved, the amount of moneydamages sought and the residence ofthe person making the claim at thetime of the injury and at the time offiling the notice.

The Mississippi Supreme Court has heldthat there are “seven required categoriesof information which must be included”in a notice of claim. South CentralRegional Medical Center v. Guffy, 930So.2d 1252, 1257 (Miss. 2006). These“seven required categories are as follows:(1) the circumstances which broughtabout the injury; (2) the extent of theinjury; (3) the time and place of theinjury; (4) the names of all personsknown to be involved; (5) the amount ofmoney damages sought; (6) the residenceof the person making the claim at thetime of the injury; (7) the claimant’sresidence at the time of filing the notice.”Id.; See also Miss. Code Ann. § 11-46-11(2). That statute’s language “clearlystates that ‘every notice of claim shallcontain a short and plain statement’addressing these seven categories ofinformation or facts upon which theclaim is based and this ‘shall be inwriting’”. Id at 1257-1258; See alsoMiss. Code Ann. § 11-46-11(2).(emphasis added). Therefore, “thelanguage contained in Miss. Code Ann. §11-46-11(2) is mandatory.” Id. Aparty’s “failure to provide any one ofthe seven categories is failure tocomply.” Id. “Either the written noticecomplies with Miss. Code Ann. § 11-46-11(2) by disclosing all seven requiredcategories of information, or it does notcomply with the statute by failing todisclose all seven required categories of

inform-ation.” Id. (emphasis added). Seealso Caldwell v. N. Miss. Med. Ctr., Inc.,956 So. 2d 888 (Miss. Ct. App. 2007).

Such language leaves no doubt that aplaintiff must include information abouteach of the seven mandatory categoriesof information. A common mistake madein notices is a simple reference to theresidence of the plaintiff. Unless thenotice classifies the given address as thatof the claimant at the time of the injuryand/or at the time of the notice, theplaintiff has failed to comply with thenotice requirement.

Under the MTCA suit cannot be filedagainst a community hospital until 120days after notice is given under the act.9

The effect of non-compliance with thenotice statute is that suit cannot be filedbecause it is premature. Notice is, then,prerequisite to the filing of suit, andinitiates a series of periods within whichsuit cannot be filed under statedcircumstances. During the initial 120 dayperiod:

[N]o action may be maintained bythe claimant unless the claimant hasreceived a notice of denial of claim.After the tolling period has expired,the claimant shall then have anadditional ninety (90) days to fileany action against the governmentalentity served with proper claimnotice. However, should thegovernmental entity deny any suchclaim, then the additional ninety (90)days during which the claimant mayfile an action shall begin to run uponthe claimant’s receipt of notice ofdenial of claim from thegovernmental entity.10

If suit has been filed, it will bedismissed without prejudice aspremature. It is at this point that theaforementioned statute of limitationslooms large. The attempted notice, beinginadequate, was ineffective to toll therunning of the statute of limitations. The

9 Miss. Code Ann. § 11-46-11(3)(2002).10 Id.

filing of suit was erroneous andnoncompliant with the statute, and thusdid not toll the statute, either.

Certificates of Consultation

The Mississippi Legislature hasdeemed it necessary in medicalmalpractice actions for Plaintiff’sattorneys to attach a certificate ofconsultation to any Complaint allegingmedical malpractice, as per the terms ofMiss. Code Ann. § 11-1-58 (Rev. 2002):

(1) In any action against a licensedphysician, health care provider orhealth care practitioner for injuries orwrongful death arising out of thecourse of medical, surgical or otherprofessional services where experttestimony is otherwise required bylaw, the complaint shall beaccompanied by a certificateexecuted by the attorney for theplaintiff declaring that:

(a) The attorney has reviewed thefacts of the case and has consultedwith at least one (1) expertqualified pursuant to theMississippi Rules of CivilProcedure and the MississippiRules of Evidence who isqualified to give expert testi-mony as to standard of care ornegligence and who the attorneyreasonably believes is know-ledgeable in the relevant issuesinvolved in the particular action,and that the attorney has con-cluded on the basis of such reviewand consultation that there is areasonable basis for thecommencement of such action; or

(b) The attorney was unable toobtain the consultation requiredby paragraph (a) of thissubsection because a limitationof time established by Section


Continued on Page 23

“… my blood approves, and kisses are abetter fate than wisdom”

- E.E. Cummings,“Since Feeling is First” (1926)

Mr. Cummings, meet Jerry Fitch, Sr.When the United States Supreme Courtdeclined to grant certiorari to the HollySprings, Mississippi businessman thispast January, thereby exhausting hisappeal of the Mississippi SupremeCourt’s decision affirming a $750,000alienation of affection verdict, the issueof whether the judicial system can, orshould, provide redress for romanticgrievances was again thrust into thenational conscience. And Mr. Fitch was,for lack of better terminology, out$750,000.

Part of Mr. Fitch’s problem, somemight say, was his residency. In additionto Mississippi, only six (6) other states,Hawaii, Illinois, New Mexico, NorthCarolina, South Dakota and Utah, stillallow claims alleging “spousal theft.” AsMr. Fitch proclaimed on ABC Network’s“Good Morning America,” the tort ofalienation of affection “needs to be offthe books. This is not right.”1

The notion of property, or, morespecifically, a person as property, lies atthe heart of both the origins of alienation

of affection law, and, at least to a certainextent, the controversy that surrounds thecause of action. As recognized by theMississippi Supreme Court, the tort ofalienation of affection “originated on thecommon-law belief that wives were thechattel of their spouse.” Saunders v.Alford, 607 So.2d 1214, 1215-16 (Miss.1992).

Given these analogies, it is easy tounderstand the controversy surroundingthe continuing viability of alienation ofaffection as a cause of action. Given thesheer number of states that have, eitherjudicially or legislatively, abolished thetort, an explanation of the continuingviability (propriety?) of what many viewas an archaic relic of the common law,inconsistent with modern times, wouldseem warranted.2

A. Elements of Alienation ofAffection

As set forth in the MississippiSupreme Court’s decision in Fitch:

The commonly stated elementsof the tort of alienation ofaffections are “(1) wrongfulconduct of the defendant; (2)loss of affection or consortium;

and (3) causal connectionbetween such conduct and loss.”Saunders, 607 So.2d at 1215. Seealso Camp v. Roberts, 462 So.2d726, 727 (Miss. 1985) (“where ahusband [wife] is wrongfullydeprived of his [her] rights to the‘services and companionship andconsortium of his [her] wife[husband],’ he [she] has a causeof action ‘against the one whohas interfered with his [her]domestic relations.’ ... Thehusband [wife] might then suefor ... alienation of affection....”). This Court has recognizedthat persuasion, enticement, orinducement which causes orcontributes to the abandonmentis a necessary component of“wrongful conduct.” JusticeDickinson recognized inChildren’s Medical Group v.Phillips, 940 So.2d 931 (Miss.2006) that in order “to maintainthis action it must be establishedthat the husband [wife] wasinduced to abandon the wife[husband] by some activeinterference on the part of thedefendant.” Id. at 934 (quotingStanton v. Cox, 162 Miss. 438,452, 139 So. 458, 460 (Miss.1932) (emphasis added).

Fitch v. Valentine, 959 So.2d 1012, 1025-26 (Miss. 2007).

B. The Origins of Alienation ofAffection: Judicial IntelligentDesign or Legal Darwinism?

While Jerry Fitch complains that itmarginalized his bank account, others seethe tort as serving an admirable purpose

Leo J. Carmody, Jr. is an associate in the Oxford, Mississippi officeof Robinson, Biggs, Ingram, Solop & Farris, P.L.L.C. His practiceincludes industrial accidents, environmental law, medicalmalpractice and bankruptcy matters, with a focus on appellatelitigation. He is a member of the American Bar Association, theMississippi Bar and the Mississippi Defense Lawyers Association.He is graduate of the University of North Carolina, and received hisJ.D. from the University of Mississippi School of Law.

Who Said Love Doesn’t Cost A Thing?The Continuing Viability of Alienation of Affection Claims and the Question of Whether the

Judiciary Can (or Should) Effectively Commoditize Affairs of the Heart

By Leo J. Carmody, Jr.

1 http://abcnews.go.com/TheLaw/story?id=4108324&page=12 To obtain a specific list of the states abolishing claims for alienation of affection, as well as the method employed in accomplishing the same, see Justice Dickinson’s

comprehensive history and critique of the tort, contained in his extremely thoughtful concurrence in Mississippi Supreme Court’s decision in Fitch v. Valentine, 959 So.2d1012, 1030-37 (Miss. 2007) (Dickinson, J., specially concurring) (Miss. 2007).


that should not be abandoned merely forconvenience or to suit modern trends. Inorder to understand the underpinnings ofthe differing opinions held by proponentsand opponents of alienation of affection,it is helpful to examine the cause ofaction’s origins:

The tort of alienation ofaffections was recognized inMississippi as early as 1926 inMcRae v. Robinson, 145 Miss.191, 110 So. 504 (1926). InCamp v. Roberts, 462 So.2d 726,727 (Miss. 1985), this Courtheld “[w]here a husband [wife]is wrongfully deprived of hisrights to the ‘services andcompanionship and consortiumof his [her] wife [husband],’ he[she] has a cause of action‘against one who has interferedwith his [her] domesticrelations.’ ” Id. at 727 (citingWalter v. Wilson, 228 So.2d 597,598 (Miss. 1969), overruled inpart on other grounds; Saundersv. Alford, 607 So.2d 1214, 1219(Miss. 1992)).

Bland, 735 So.2d at 422 (Smith,J., specially concurring)(emphasis added).

Going back a bit further:

In order to maintain purebloodlines and discourageadultery, Teutonic tribesrequired a wife’s lover tocompensate the husband for hiswife’s infidelity, allowing thehusband to buy a new wife andensure the legitimacy of hisoffspring. Hoye v. Hoye, 824S.W.2d 422, 423-24 (Ky. 1992)(citing Lippman, The Break-down of Consortium, 30 Colum.L.Rev. 651, 655 (1930)). TheAnglo-Saxons later allowedactions for marital interference

on the premise that wives werevaluable servants to theirhusbands. Helsel v. Noellsch,107 S.W.3d 231 (Mo. 2003).The action was analogous to amaster’s claim “against one whoenticed away his servant, inwhose services the master held aquasi-property interest.” O’Neilv. Schuckardt, 112 Idaho 472,733 P.2d 693, 696 (1986). Thus,in keeping with this belief, ahusband could “vindicate” hisloss in the marital relationshipthrough an action for alienationof affections, but a wife was notafforded the same right. Helsel,107 S.W.3d at 232.

Fitch, 959 So.2d 1030-31 (Dickinson, J.,specially concurring).

Not surprisingly, opponents ofalienation of affection routinely employits history as support for the propositionthat the tort remains sexist in nature,notwithstanding any compliance with themandates of equal protection.3 As JusticeDickinson further observed:

… [C]onsent was historicallyprohibited as a defense toalienation actions “based on thelegal inferiority of the wife whowas deemed incapable ofconsenting to the injury of hersuperior, her husband.” Hoye,824 S.W.2d at 425 (citing H.Clark, The Law of DomesticRelations in the United States,§ 4.2, p. 267 (1987)). And eventhough the cause of action hassupposedly moved beyond thoseoutdated roots, consent remainsa prohibited defense today, id., astoday’s case demonstrates. Asone commentator noted, “[t]heidea that one spouse can recoverfor an act the other spouse haswillingly consented to is perhapsbetter suited to an era thatregarded one spouse as the

property of another.” Prosser andKeeton, The Law of Torts, § 124at 917 (5th ed.1984).

Fitch, 959 So.2d at 1032 (Dickinson, J.,specially concurring).

C. The Past Is Not Passé:Mississippi’s Justification forAlienation Of Affection

As stated by the Mississippi SupremeCourt, “the purpose of a cause of actionfor alienation of affection is the‘protection of the love, society,companionship, and comfort that formthe foundation of a marriage....’ ” Bland v.Hill, 735 So.2d 414, 417 (Miss. 1999)(quoting Saunders, 607 So.2d at 1215).As the current Chief Justice of theMississippi Supreme Court, Jim Smith,explained in his special concurrence inthe Bland decision:

Should an individual be allowedto intrude upon a marriage tosuch an extent as to cause it tocome to an end? Does a spousehave a valuable interest in amarriage that is worthy ofprotection from the intrudingthird party? In my view, theanswer to both questions is in theaffirmative. The traditionalfamily is under such attack bothlocally and nationally these daysthat this Court should not retreatnow from the sound view of thetort of alienation of affectionsespoused by this Court inSaunders as entitling a spouse to“protection of the love, society,companionship, and comfort thatform the foundation of amarriage.” I do not believe thatunder the compelling facts ofthis particular case this Courtshould hold that the doctrine ofalienation of affections hasoutlived its usefulness as adeterrent protecting the maritalrelationship of a husband and

3 Under Mississippi law, “the tort of alienation of affections is equally applicable to women as men.” Fitch v. Valentine, 959 So.2d 1012, 1019, FN 10 (Miss. 2007)(citing Kirk v. Koch, 607 So.2d 1220, 1224 (Miss.1992)). According to Justice Randolph, this fact “avoid[s] any archaic notion that a wife is the property of her husband.”This writer, having recently become engaged to be married, can only hope that such likewise avoids the notion, however archaic or realistic, that a husband is the property ofhis wife.


wife in cases where the factsclearly warrant.The dissent states that this tortserves no legitimate purposewhatsoever in modern society,but rather, has simply beenextended past its time. This issomewhat akin to the view that“everybody else is doing it, soshould I.” While I agree that itappears society’s moral valueshave changed during moderntimes, I do not believeMississippi should get aboardthis runaway train. I would alsonot take away an offendedspouse’s only legal means toseek redress in our courts for thewrongful conduct of a thirdparty who willfully andintentionally interferes in andaids in destroying a marriage.

Bland v. Hill, 735 So.2d at 422 (Smith, J.,specially concurring) (internal citationsomitted).

Similarly, writing for the majority inFitch, Justice Randolph reasoned asfollows:

I cannot adopt the position of amajority of states and minimizethis activity which thelegislature has defined as acrime against public morals and

decency, and declared its penaltycomparable to similar conductbetween a teacher and pupil or aguardian and ward. TheLegislature has not seen fit tojoin the throngs who say theseare only “affairs of the heart,”“flings,” or “stepping out,” as ameans of attaching validity tosuch conduct.

Fitch, 959 So.2d at 1019, FN 11 (citingMiss. Code Ann. § 97-29-1, et seq.).4

D. A Plea for Modernity: The CaseAgainst Alienation of Affection

The debate over alienation ofaffection involves more than justconcerns about perceived notions withinthe law relating to the role of women insociety and modern morality. At the endof the day, it is the conduct of presumablyconsenting adults that causes such a claimto arise, a fact that in turn gives rise to awhole new realm of criticism for thelaw’s continuing existence.

As acknowledged by JusticeDickinson, one of the problems withalienation of affection claims is that theelements are simply too vague:

The element of “inducement”often proves perplexing, as thefactfinder must determinewhether the defendant or thealienated spouse was primarily

responsible for the other spousestraying.

Fitch, 959 So.2d at 1034-35 (Dickinson,J., specially concurring); see alsoStanton, 162 Miss. at 453, 139 So. at 461-62 (holding that “a stranger may, withoutliability, harbor a wife who has left herhusband,” so long as he does not persuadethe wife to leave her husband).5

The element of “wrongful conduct”is no less perplexing. This primaryelement of alienation of affection has,depending on one’s point of view, eitherevolved with time or become so elasticthat it has lost all tangible meaning. InStanton v. Cox, it was held that, tomaintain a claim for alienation ofaffection, it must be established that thewife was “induced to abandon” herhusband “‘by some active interference onthe part of the defendant.’” Stanton, 162Miss. at 450, 139 So. at 460. At somepoint, “active interference” becamesynonymous with “direct interference”with a marriage by a third party. Kirk v.Koch, 607 So.2d 1220, 1222 (Miss. 1992)(holding that, in order to sustain an actionfor alienation of affection, it must appearthat there has been “direct interference onthe defendant’s part, sufficient to satisfythe jury that the alienation was caused bythe defendant, and the burden of proof ison the plaintiff to show such interference… .”). As with Fitch, “wrongful conduct”is defined, however loosely, as conduct

4 Section 97-29-1 provides as follows:If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each,and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publiclyas husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.Miss. Code Ann. § 97-29-1 (2007).

Justice Randolph’s citation to Section 97-29-1 seems at odds with the Saunders case, which observed that “[t]he existence of criminal sanctions for conduct involvingadultery affords plaintiff nothing.” Saunders, 607 So.2d at 1219 (emphasis added).

5 One obvious question that seems to have been left somewhat unresolved by the case law is whether knowledge of the underlying marriage is required to sustain a claimfor alienation of affection. Notwithstanding the seemingly inherent requirement that inducement and/or wrongful conduct would require intent on the party guilty of suchconduct, the Mississippi Court of Appeals has extended the tort a three (3) year statute of limitations, rather than the one (1) year limit that typically applies to intentionaltorts. Hancock v. Watson, 962 So.2d 627, 631 (Miss. Ct. App. 2007); Carr v. Carr, 784 So.2d 227, 230 (¶ 8) (Miss. Ct. App.2000). That being said, there is certainly asuggestion that knowledge of the underlying marriage is inherent to the element of “wrongful conduct” in alienation of affection claims. In Stanton, the Mississippi SupremeCourt offered the following relevant discussion:

In an action for alienation of affection brought by an injured spouse, there must needs [sic] be a wrongful act on the part of the other spouse with a stranger, … .On the other hand, [the defendant’s] frank admission that she encouraged Cox to assume the relation of a lover to her, inducing him in every way possible to carryon that relation, even becoming engaged to him, although she knew that Cox was living with his wife, and not divorced from her, was a wrongful act on her part,which is emphasized by the fact that after Cox notified her that he had effected a reconciliation with his wife, and Mrs. Stanton had consented to abide by thatreconciliation she thereafter wrote him, … “We must not lose each other.” This tends to show a willful and active interference with the injured wife’s right to theconsortium or conjugal society, which is the basis of this character of action.

Stanton, 162 Miss. at 450-51, 139 So. at 461 (emphasis added).


constituting “persuasion, enticement, orinducement, [which] caused orcontributed to the abandonment of themarriage and/or the loss of affections byactive interference.6”

As some have argued, the indefiniteelements of alienation of affection’s haveresulted in an equally nebulous conceptof damages. In the words of JusticeDickinson:

The awarding of damagespresents another distinctproblem in these actions, as noclear standards for compensatingthe plaintiff exist. This opens thedoor for quasi-punitive damageawards, disguised as actualdamages, which are usuallytainted by passion and prejudice.

Fitch, 959 So.2d at 1035 (Dickinson, J.,specially concurring) (internal citationsomitted).

E. “Criminal Conversation” -Wonderfully Named and WiselyAbolished

In the context of Mississippi’scontinuing recognition of alienation ofaffection, the historical relation betweenthis tort and that of “criminalconversation” must be observed. Likealienation of affection:

The tort of criminal conversationcame into existence primarilybecause of the great importancethat feudal society placed oninsuring that the right ofinheritance to property, title, andoffice descended to legitimatechildren only. Conflicting claims

to titles, property, and estatescould lead to discord and evenviolence. The law afforded aremedy designed to preventillegitimate children by allowinga husband to sue another manwho had intercourse with hiswife.

Norton v. Macfarlane, 818 P.2d 8, 16(Utah 1991) (citations omitted).

The relation between alienation ofaffection and criminal conversation wasexpressly recognized by the MississippiSupreme Court in Saunders, where thetort of criminal conversation wasabolished on the basis that such had“outlived its usefulness”:

The torts of alienation ofaffection and criminalconversation, also known as“heart balm” actions, originatedon the common-law belief thatwives were the chattel of theirspouse. The purpose of a causeof action for alienation ofaffection is the “protection of thelove, society, companionship,and comfort that form thefoundation of the marriage … .”

* * *

The tort of criminalconversation, on the otherhand, is no more or less thanan act of adultery between thedefendant and the plaintiff’sspouse. …

Saunders, 607 So.2d at 1215-16(emphasis added) (internal citationsomitted).7

At common law, a claim for criminalconversation “was made upon theplaintiff’s proof that, while married to theplaintiff, the plaintiff’s spouse and thedefendant engaged in at least one singleact of sexual intercourse.” Fadgen v.Lenkner, 469 Pa. 272, 365 A.2d 147, 149(Pa. 1976). One of the primary concernsfavoring abolition of criminalconversation was the fact that it was nodefense that the defendant “did not knowthe wife was married but believed her tobe single,” or that “the wife representedherself as single … .” Id. at 1217 (citingHunt v. Hunt, 309 N.W. 2d 818 (S.D.1981) (emphasis added).

F. More Modern Viewpoints, OrMore Modern Rubbish?

Without a doubt, the judicialconsternation and general hand wringingthat accompanies the tort of alienation ofaffection is the fact that the voluntaryconduct of an apparently willing adult,one who ultimately faces noramifications, is needed to complete thecause of action. As stated by JusticeHarris, in his opening salvo abolishingthe cause of action under Iowa law, “[w]ehave become convinced that there is aninherent and fatal contradiction in theterm ‘alienation of affections.’ Thealienation belies the affection.”Fundermann v. Mickelson, 304 N.W.2d790, 791 (Iowa 1981) (emphasis added).

Justice Harris’s critique would seemonly more potent for Jerry Fitch, whoshared with Sandra Valentine thepresumable displeasure of having a juryassess the financial ramifications of theirrelationship at three-quarters (¾) of amillion dollars, but who (again,presumably) endured in solitude the

6 Obviously uneasy with the vagueness accompanying claims for alienation of affection, Justice Dickinson included the following in his special concurrence in Fitch:The Kentucky Supreme Court, quoting Justice Holmes, described the unfortunate rise of the legal fiction buttressing the common law tort of alienation ofaffections:

[A] common phenomenon ... familiar to the students of history, is this. The customs, beliefs or needs of a primitive time establish a rule or a formula.In the course of centuries the custom, belief, or necessity, disappears, but the rule remains. The reason which gave rise to the rule has been forgotten,and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and toreconcile it with the present state of things and then the rule adapts itself to the new reasons which have been found for it, and enters a new career. Theold form receives a new content and in time even the form modifies itself to fit the meaning which it has received.

Fitch, 959 So.2d at 1032 (Dickinson, J., specially concurring) (quoting Hoye, 824 S.W.2d at 425); see also Helsel, 107 S.W.3d at 233 (“When the reason for a rule oflaw disappears, so too should the rule.”).

7 While Saunders may have ended the possibility of civil liability for “an act of adultery” between a person and another person’s spouse, Section 97-29-1 continues toensure that criminal liability remains a possibility. Miss. Code Ann. § 97-29-1 (“If any man and woman shall unlawfully cohabit, whether in adultery or fornication, theyshall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months.”).


added humiliation of actually having topay.8 This same perspective seems tohave caught the attention of JusticeDickinson, who opined as follows:

… [T]he fact is that actions foralienation of affections arisefrom the willing participation ofone spouse. While the tortpurportedly exists to discouragethird-parties from disturbing themartial relation, in reality themarriage is unlikely to weakenwithout one spouse activelyconsenting to the wrongfulinterference. Human exper-ience is that the affections ofpersons who are devoted andfaithful are not susceptible tolarceny no matter howcunning or stealthful.

* * *

The tort is inherently unplanned,especially where sexual activityis involved, so the idea that theparties would contemplate thepossibility of a lawsuit and bedeterred is unrealistic. The truthremains that a spouse inclined toengage in an extramarital affairwill do so, and even if a would-be paramour would be therebydissuaded [by the threat of suit],a substitute is likely to be readilyfound.

Fitch, 959 So.2d at 1033-34(Dickinson, J., specially concurring)(internal citations and quotationsomitted); see also Fadgen v. Lenkner,469 Pa. 272, 280-81, 365 A.2d 147, 151(1976) (holding that “the cause of actionitself is an anachronism and that intoday’s society it is unreasonable toimpose upon a defendant such harshresults without affording any real

opportunity to inject logically validdefenses on the merits such as the role ofthe plaintiff’s spouse in the adulterousrelationship or the quality of theplaintiff’s marriage prior to theoccurrence of the acts constituting thetort.”) (emphasis added).9

G. Conclusion

The debate of jurists, oftenrewarding to barristers, is obviouslyfervent in the context of alienation ofaffection. While both the justificationsand critiques of the tort have changedwith time, that process has rendered twocurrent schools of thought, eloquentlystated by two of our Supreme CourtJustices:

One dissent suggests that “thesesuits inevitably do more to hurtfamilies than to help them.” Ifind more persuasive thecounter-argument that damageactually arises from theadulterous conduct which firstviolates, and then destroys, thetrust of not only the participants,but also of their respectivefamilies. To minimize and castas theoretical the obviousnegative consequences, such asthe erosion of the maritalrelationship and the disruptionto family unity ignores theseempirical truths. The dissent‘sfatalistic presupposition thatmarriages experiencing affairswill “crash and burn,” fails torecognize the reality offorgiveness and reconciliation.

Fitch, 959 So.2d at 1020, FN 12.

The theory that alienationactions must be retained as a

means of preserving marriagesand protecting families must failfor lack of support. While anadmirable sentiment, these suitsinevitably do more to hurtfamilies than to help them. Inmy view, when a marriage hascrashed and burned, the lawshould not provide animprimatur to fan the coals ofanger and resentment, extendingfurther into the future the timewhen healing can begin. This isparticularly true where childrenare involved. Enough difficultyexists already in the develop-ment of a civil relationshipamong divorced parents and thechildren of the marriage.

Fitch, 959 So.2d at 1033-34 (Dickinson,J., specially concurring) (internalcitations and quotations omitted).

So long as alienation remains, in thewords of Jerry Fitch “[on] the books,” sotoo will its critics. As stated by JusticeDickinson:

In Mississippi, though, the legalfiction that the common law tortof alienation of affectionspreserves a spouse’s right to themind and body of a partnercontinues to this day, only nowit is masked as the means tostabilize the marital union.

Fitch, 959 So.2d at 1032 (Dickinson, J.,specially concurring).10

If nothing else, the MississippiSupreme Court’s decision in Fitch v.Valentine, 959 So.2d 1012 (Miss. 2007)likely ensures that such claims willremain viable in Mississippi for theforeseeable future. ■

8 This same point is echoed in Justice Dickinson special concurrence in Fitch:No party involved in an action for alienation of affections emerges unscathed. While the harm to the defendant and unfaithful spouse is clear, “the action[also] diminishes the plaintiff’s dignity and injures his [or her] own reputation through the process of seeking money damages.”

Fitch, 959 So.2d at 1034 (Dickinson, J., specially concurring) (internal citations omitted).9 This same logic appears to have fueled the Saunders Court’s abolition of criminal conversation:

To the extent that the tort of criminal conversation provides a cause of action for adultery when the marriage commitment is dead, it serves no useful purposein awarding damages.

Saunders, 607 So.2d at 1217 (quoting Norton, 818 P.2d at 16-17 (reasoning that the tort “imposes total liability for the act of two people on only one of them.”)).10 While citation avoids plagiarism, it certainly does not obviate the need to express gratitude. Given the sheer number of citations to Justice Dickinson’s special

concurrence in Fitch, the author would be remiss in not thanking His Honor, and any anonymous clerks, associated with the production of the same. The author further wishesto commend these same persons for an opinion which was obviously well researched, and equally well reasoned and expressed.


Most experienced trial lawyers willtell you that jury selection is among themost important of trial skills, yet it is theleast understood. It is difficult to honejury selection skills because you canpractice them only at trial or at theoccasional mock jury exercises whichyour client may authorize in a big case.Different forms of alternative disputeresolution designed to promotesettlement and corporate America’stendency to be risk averse have reducedpro rata the number of civil trials. So juryselection remains somewhat of a mysteryeven to experienced lawyers. Since thisarticle may be read by younger triallawyers, some of the information is fairlybasic. But as with all phases of trial, solidfundamentals are critical to success.

Gauging the effectiveness of juryselection is also difficult since the trialoutcome, good or bad, is usuallyattributed to some combination of factors– judicial rulings, credibility of keywitnesses, effectiveness of cross-examination, effectiveness of finalargument, etc. – but not jury selection.But the fact is that many trial outcomeswould be materially different if certainjurors had not been selected and othershad. So it makes sense to illuminate thejury selection process to see if there aretechniques which can be employed tomaximize the prospect of a jury which

will be receptive to you, your client, andyour themes.

The Goals of Jury Selection

I believe that there are three distinctgoals which a defense practitioner shouldstrive to achieve during jury selection:identification of hostile jurors, testingdefense themes, and establishment ofrapport. There are no bright line rules forsuccess in reaching these goals and juryselection, as with all phases of trial,should comport with defense counsel’spersonality and style. What follows is adiscussion of approaches and techniquesthat I have used and seen others usewhich seem to be effective in selectingthe best possible jury given thecomposition of the venire, suchlimitations as the court may impose, andthe limited number of peremptorychallenges.

Identification of Hostile Jurors

Exposing bias is much moreconducive to selecting a defense jurythan trying to identify favorable jurors.Neutral jurors are your friends becausethey will not hurt you. Your opponentwill likely strike jurors who areobviously favorable to you, soconcentrate on finding the ones who will

hurt you, and utilize your limited numberof peremptory challenges on them unlessyou are successful in challenging themfor cause. It goes without saying thatthere is no limit on the number ofchallenges for cause, so each successfulone saves a peremptory. When pressing ajuror about biases against your client,keep that objective in mind.

A list of standard questions, tailoredto the facts of the case, is essential to anyeffective jury selection. Many treatisesand texts contain such lists which coverthe basics. Defense practitioners shoulddevelop their own for use as a templatein every case. As a defense lawyer,however, you always go last, so it iscritical that you listen very carefully tothe questions asked by plaintiff’s counseland the answers given. Skillful plaintiffslawyers will ask jurors every conceivablequestion including those inclined toexpose defense biases in order tomaximize “face time” before the venire,project their personalities, and establish apersonal bond.1

Jurors are usually somewhatenthusiastic when plaintiff’s lawyerbegins the process because it is new andcurious to them. By the time the defensestarts, however, they are often restive andwant to get on with it. Your questions inthis phase of the voir dire should be non-repetitive, probing, precise, and juror-specific, all designed to unmask defensebiases, in many cases as suggested byanswers given to questions by theplaintiff. Make sure that they understandthat there are no wrong answers and thatthey should not be afraid to speak up.

The custom in most jurisdictionswhich do not limit voir dire is that theparties examine the entire venire at once,so you have to keep track of manypeople. Use your time efficiently. Do notask every juror the same questionmoving from one row to the other. By the

Mercer “Bud” Clarke is President and a founding principal ofClarke Silverglate & Campbell, P.A. He specializes in defendingproduct liability (emphasis on pharmaceutical and medical device),toxic tort and professional malpractice claims, as well as complexclaims arising out of commercial and employment disputes. Mr.Clarke attended college at Washington & Lee University, where hereceived a Bachelor of Arts degree in Economics. Upon graduation,he served for two years as an officer in the United States Army, andin 1968, enrolled at the University of Florida School of Law, fromwhich he graduated in 1970.

Jury Selection from the Defense PerspectiveBy Mercer “Bud” Clarke

1 Occasionally I have been successful in convincing a judge to allow the lawyers to question the venire in equal time increments so as to level the “face time” playingfield. It is worth a try, especially in a lengthy case in which jury selection may last multiple days.


time plaintiff concludes, you should havea decent idea about neutral and evenfavorable jurors. Further questioning ofthem may expose their defense leaningsto the plaintiff. Sometimes you simplyhave to be guided by your instincts.Concentrate on the jurors about whomyou are suspicious and get to the bottomof it. Grounds for challenges for causeshould surface during this part of thequestioning.

Representing corporations againstindividuals who have been injured orclaim they have lost money because ofcorporate misdeeds can be challenging tosay the least. Studies by jury consultantshave shown that the widely publicizedscandals at Enron, Worldcom, and othercompanies have sensitized the public tocorporate misdeeds and managementgreed. Unmasking corporate bias isessential when representing a largecompany. Few jurors, however, will sayno to the question, “My client is acorporation – can you be as fair andimpartial in a case involving a corporatedefendant as you would be in oneinvolving a person?” There is no line ofquestioning guaranteed to identify thejuror with a corporate bias. Payingcareful attention to the answers tospecific questions by plaintiff’s lawyerwill yield hints as to who they may be.

Questioning each juror aboutcorporate bias becomes boringlyrepetitive, so it is appropriate to deviatefrom juror-specific questions at thisjuncture. At an appropriate time you canannounce that you represent XCorporation and need to find out how thevenire feels about corporations generallyand corporations in litigation inparticular. You may set the stage byacknowledging that corporate scandalshave been big news lately and ask if thesescandals have led them to believe thatmost corporations are prone to lie to thepublic, to act inappropriately, and tocover up their misdeeds. If Mr. Jonesthinks all corporations are untrustworthy,find out who else agrees with him andfollow up conversationally with thenegative jurors. Inducing jurors toparticipate by identifying themselvesaffirmatively is one of the besttechniques to tease information from thereluctant speakers.

Consistent with the goal of testingyour themes discussed below, you mayalso want to ask some questionshighlighting the positive rolescorporations play in society. You mightask a sophisticated juror, “Who ownscorporations?” The expected response of“stockholders” might then be followedby, “Why do ordinary people own stockin corporations?” Hopefully, your jurorwill explain about investments forretirement, pension plans, and the like. Ifnot, you can steer the discussion thatway. Then, “When a company makes aprofit, who benefits, and when it losesmoney, who gets hurt?” Again, theanswer should be stockholders who areordinary people trying to get ahead in theworld. If someone says that the topmanagement keeps all the profit, thatperson will be inclined to redistributesome of that profit to the plaintiff.

Testing Defense Themes

The goal is to learn with someconfidence who among the venire willbuy what you are selling and who willnot. While testing your themes, you mayrealize the added benefit of having somejurors condition others to the defensepoint of view. It all depends on yoursuccess in inducing jurors to engage in afrank discussion of their views.

This part of the questioning shouldfollow the juror-specific questionsdescribed above. It is not juror-specificand is addressed to the group. You mightbegin with some basic facts and thecontentions of the parties, and then askquestions about your themes which willstimulate the jurors to debate them. Oneapproach is to pose both sides of theissue. Some examples include: “Somepeople think that only those who helpthemselves deserve help from others.Others think that those who refuse tohelp themselves deserve help fromothers. What do you think, Mr. Jones?”“Does a patient with a medical conditionhave responsibility to seek medical helpwhich could cure it? Why?” “Somepeople think that if a person is hurt,someone else should have to pay. Howdo you feel about that?” As thediscussion progresses you move itaround the room insuring that jurors whoseem suspicious are called upon.

You can also ask for a show ofhands. “Some feel that they can rely onan injured person to testify as to whattheir monetary loss has been. Otherswould want to see some documents todecide. How many of you would relyonly on what the injured person said washer lost income. And how many wouldwant to see some documentation?” Youmay then follow up with those inclinedto accept the plaintiff’s word.

Another approach is to use one ormore simple hypotheticals completelyunrelated to the facts of your case whichare designed to elicit views of legalissues. For example, “You may be askedto consider causation in this case. Let megive you an example. Suppose a man waswalking down the sidewalk and fell intoan unmarked hole while being passed bya speeding car. Should the car driver beresponsible because he was speeding?Why not?” In closing you may remindthe jury about the juror who explainedthe absence of causation (do not usehis/her name if he/she is on the panel)while discussing your legal causedefense and advise them that the judge isgoing to tell them the same thing only inlegal terms. Offering the juror’s logic asanalogous to your logic about theabsence of legal cause combined with thejury instruction makes a powerful point.

If a juror gives an explanationparticularly favorable to your theme,he/she may persuade others who are onthe fence. A show of hands of those whodisagree yields more information onnegative jurors. You can pursue the issuefurther with them or not, depending onwhether you believe the benefit ofobtaining specifics outweighs theprospect that their reasoning may negatethe persuasive effect of your positivejuror. There are many twists and turnsduring this phase of questioning, and asis the case in much of the jury selectionprocess, you simply have to obey yourinstincts.

The point of this approach is toencourage dialog among the jurorsthemselves with you appearing as themonitor of the discussion. There is nolimit to the variety of questions whichwill stimulate jurors to take a position onyour themes. The questions should becarefully crafted and should naturally


lead to follow up questions. As jurorsbecome more involved in the debate, youwill begin to see patterns among thosewhom you were unable to “read” fromthe juror-specific questioning which willlead to decisions about exercise ofperemptory challenges and may lead tochallenges for cause.

Establishing Rapport

The third goal of jury selection isestablishment of rapport. Voir dire is theonly time during the trial in which youcan engage in a dialog with the peoplewho will decide your client’s fate.Whatever impression you make duringjury selection will remain throughout thecase. It is well known that most peopleare at least skeptical of the motives oftrial lawyers, plaintiff, and defense.Overcoming that skepticism during juryselection will lend credibility to youropening, your witnesses, and yourclosing.

You should engage in conversation,not lecture. You should be courteous andrespectful, not argumentative. Arguingwith a juror who does not like yourpositions will never convert them andwill tend to antagonize the others. Do notspeak down to the venire, treat them asequals. You should speak in plain,conversational English, not legalese.Your questioning should be crisp andefficient, not interspersed with delayswhile you review notes and confer withyour colleagues. You should exudeconfidence, not concern. A humorousanecdote is a great ice-breaker, but besure you have a good delivery by trying itout on others. If, at the end of juryselection, the panel likes you and hasbegun to trust you, this goal has beenachieved.

Exercising Peremptory Challenges

“Jury selection” is quite obviously amisnomer. Lawyers do not “select”jurors, they exclude them. Somejurisdictions allow unlimited challenges,so there is no strategy associated withexercising them. Most, however, limit thenumber of discretionary or “peremptory”challenges, and strategy becomes verymuch a part of the process.

After questioning is concluded andthe venire is excused, confer with yourcolleagues and label the individuals asfavorable, neutral, and unfavorable. Thegoal at this point is to ensure that theunfavorable jurors are not empaneled,so save your peremptory challenges aslong as possible. Courts generally donot preclude “strikebacks,” and anexercise of peremptory challenges canturn into somewhat of a game ofchicken between plaintiff anddefendant. After both sides “pass” onthe first six (in jurisdictions using sixperson juries), the court will askplaintiff if he/she accepts the jury. Onlythen will he/she be required to exercisea peremptory challenge, and jurornumber seven will take the place of thestricken juror. You will then be askedthe same question and must strike oraccept the jury as constituted, and theprocess continues.

Striking a neutral juror to reach afavorable one is risky if close behindhim are hostiles whom you do not wantand the plaintiff has enough challengesremaining to reach them. Should youuse your last challenge on number 10,whom you do not particularly like,when the one you really do not like isnumber 12? Will plaintiff exercise herlast challenge on number 11 to reachnumber 12? These are the types ofdecisions you have to make. Remember,the ultimate goal of your hard work is toidentify and exclude hostile jurors.Identification through skillfulquestioning but inability to exclude forlack of peremptory challenges defeatsthe whole purpose.

Practical Tips

You could succeed in empanelingthe best possible jury by asking all ofthe right questions, and still end up witha panel that does not think much of youas a lawyer or your client. To avoid thatperception, consider the following non-exhaustive list of things to keep in mindwhile you proceed through juryselection.

It bears repeating – be courteousand respectful no matter what responsesyou may receive from individuals.

Inability to address jurors by name,and calling them by the wrong name,detract considerably from youreffectiveness. Some veterans of thecourtroom are able to memorize thenames of the entire venire using varioustricks. Unless you have a photographicmemory, I would not recommend thistechnique. Everyone makes a chart ofsome kind, but include in yours arepresentation of the actual seatingarrangement for the venire. You shouldreconnoiter the courtroom prior to trialand talk to the bailiff about how thepotential jurors will be seated. Mostcourtrooms have rows of benches forcourt observers where the bailiff directsthe jurors to sit. If the benches look likethey will accommodate a maximum ofeight across, make a chart with rows often squares, to be safe, into which youinsert only the names of the jurors. Youthen will have an effective guide to thecorrect name and location for eachperson so that you can move quickly andefficiently from one to another in askingfollow up questions. Your notes fromquestioning by plaintiff’s counsel shouldbe on another chart.

Never interrupt or argue with ajuror.

Do not press the reluctant juror inthe discussion part of the questioning.Despite your best efforts to engagethem, some jurors simply will not wantto participate. Generally, they will notbe leaders, so there is no point inantagonizing them.

Prepare and rehearse. Everyonerehearses opening, closing and direct andcross of witnesses. Most lawyers do notrehearse voir dire. You must do this. Uselawyers or staff in your office as mockjurors and try out your questions to seewhere they will take you.

Although jury selection is moreextemporaneous than other aspects oftrial, running through your outline andobtaining the reactions of others isinvaluable in testing your approach andeliminating awkwardness.

Check the morning paper. Someplaintiffs’ lawyers have public relationsfirms which will cause a story about yourcase to appear in the newspaper on themorning of jury selection, and you


should be prepared to deal with itassuming the judge refuses a mistrial.

Avoid speech-making about whatjurors should and should not do.Indoctrination questions suggest that youare telling the jurors what to think insteadof finding out what they think. In suchcases jurors tend to be inhibited fromopenly sharing their true biases andopinions and may begin to resent you.

If the geography of the courtroompermits, move away from the lectern andas close to the venire area as possiblewithout violating the decorum of thecourt. Physical proximity promotes theconversational atmosphere you are tryingto achieve. You can always stroll back tothe lectern to resume your outline.

Conclusion

This article is not intended to dictate,mandate or indoctrinate. It contains

suggestions which have provensuccessful in empaneling truly unbiasedjurors, but the defense practitioner mustemploy them only to the extent and in amanner in which they fit within theindividual’s personality, style, andcomfort zone. As with all phases of trialpractice, voir dire must not appear forcedor contrived. If you have managed toempanel a non-hostile jury which isreceptive to your themes and has begunto view you as trustworthy, you have setthe stage for a favorable outcome. ■

15-1-36 would bar the actionand that the consultation couldnot reasonably be obtainedbefore such time expired. Acertificate executed pursuant tothis paragraph (b) shall besupplemented by a certificate ofconsultation pursuant toparagraph (a) or (c) within sixty(60) days after service of thecomplaint or the suit shall bedismissed; or

(c) The attorney was unable toobtain the consultation requiredby paragraph (a) of thissubsection because the attorneyhad made at least three (3)separate good faith attemptswith three (3) different experts toobtain a consultation and thatnone of those contacted wouldagree to a consultation.

Plaintiff must follow the tenets ofthis statute, and because he did not, thesuit must be dismissed. In Walker v.Whitfield Nursing Ctr., Inc., 931 So. 2d583 (Miss. 2006), our Supreme Courtfound as follows regarding the

consequences of failing to comply withthe requirements of the consultationstatute:

Without an attorney’s certificate ofcompliance of consultation with anexpert or a medical report from anexpert attached to the complaintwhen the case was filed as requiredunder the statute, Walker failed tostate a claim upon which relief can begranted. As such, Walker is leftunable to allege any claim of medicalmalpractice in the complaint. Thelanguage of Miss. Code Ann. § 11-1-58 is clear and unambiguous thatbased on the failure to comply withits mandatory statutory requirements,the complaint shall be dismissed.(emphasis added)

Id. at p. 591.

Plaintiffs’ attorneys still fail to attachtheses certificates to the Complaint.Most, if not all, circuit judges areuniformly enforcing this provision,resulting in the non-prejudicial dismissalof the complaint.

Timing and Waiver

The timing of the motion to dismissbased on notice deficiency and failure to

certify to expert consultation is quiteimportant. Waiting until the statute hasrun to file the notice-based or no-consultmotion to dismiss can close the door onthe case permanently. Waiting too long,though, can cost you the right to file it.One must consider and include the noticeissues as an affirmative defense package,and include it in your answer anddefenses.

Conclusion

This article could span the next thirtypages were it intended to fully flesh outall of the permutations and niceties of theTort Claims Act as applied to theCommunity Hospital. Suffice to say thatthere are effective provisions in the Actenabling the practitioner to fully protecthis client through early dismissal or, atthe least, through invocation of limitationof damages provisions11, elimination ofpunitive/exemplary damage demands12,and demand for bench trial in the homecounty of your hospital.13 Develop andimplement a checklist to assess and assertthe defenses discussed in this article,staying abreast of developments fromJackson as our Tribunals interpret theseimportant laws. Your CommunityHospital will benefit greatly. ■

11 Miss. Code Ann. § 11-46-15(1)(c)(1992).12 Id.13 Miss. Code Ann. § 11-46-13(1)(1993).

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NOTE: The following decisions areprovided to our readers as quickly aspossible and some may not have beenreleased for publication in thepermanent law reports. Thesesummaries were prepared by William E.Whitfield, III.

Consumer Protection Act/Automobiles

Coye A. Holman, et al. v. HowardWilson Chrysler Jeep, Inc. ____So.2d_____, No. 2005-CT-01154-SCT (Miss.Sept. 27, 2007). Panel: En banc,Waller for the Court.

The Holmans bought a 2002 Jeepfrom Howard Wilson Chrysler Jeep(“Wilson”) on July 30, 2002. Thevehicle had apparently been in a wreckbefore the sale, and was sold to theHolmans as a “new” vehicle. Suit wasfiled in Rankin County against Wilsonfor fraud and negligent concealment andmisrepresentation. Wilson argued thatthe sales contract which the Holmanssigned clearly indicated that the vehiclecould have sustained damage to it prior tosale. The Circuit Judge granted summaryjudgment to Wilson based upon theprovisions of the agreement. The Courtof Appeals affirmed. The Supreme Courtaccepted the appeal by writ of certiorari.

On appeal, the Mississippi SupremeCourt reviewed the provisions ofRegulation One of the Mississippi MotorVehicle Commission that required adealer to disclose, in writing, onlydamages that exceeded 6% of the salescost of the vehicle. Glass, tires, bumpers,and other components that can bereplaced by other new components, neednot be included in the calculation of the6%. Wilson suggests that RegulationOne clearly authorizes repairs to thevehicles that it need not disclosespecifically to a customer. The Courtreviewed the provisions of Restatement,Second of Torts, and held that a dealerthat withholds material information fromanother knowing that the customer isunder a particular assumption – in thiscase, that the vehicle was new may not

escape liability unless it specificallydiscloses this material fact. The Courtalso reviewed the potential liability ofWilson under the Consumer ProtectionAct and noted that the Holmans wereprovided with documentation thatsuggested that the vehicle was, in fact,not a new vehicle, which is what theyunderstood that they were buying. Sincethere was a genuine issue of material fact,the Supreme Court held that the CircuitCourt was in error in granting summaryjudgment to the defendants. Reversedand remanded.

Comment: The Court reviewed thearguments that were made by theMississippi Auto Dealers Association andthe Mississippi Consumer ProtectionCommission as it related to theinterpretation of Regulation One, andnoted that the intent of Regulation Onewas actually to allow a dealer to repair avehicle that was superficially damaged intransit and that could be repaired quiteinexpensively and easily by newcomponent replacement parts.Regulation One, as the Court noted,simply could not be held allow a dealer totake a nearly new but wrecked vehicle,repair it and then sell it for new.Curiously, the Court held that theHolmans had the burden of proof todemonstrate how the language in theagreement did not put them on notice thatthey were buying a vehicle that was not“possibly” wrecked, but it is most likelyan illusory burden since the Court,though by dicta, observed that languagein the agreement permitted by RegulationOne, was intended to authorize repairs ofa vehicle damaged in transit.

ERISA Plans/Preemption of State Law

Guardianship of Reshan DanielleHolmes, a minor v. Bauhaus USA, Inc.v. Lillie Regina Holmes Copeland, et al.____So.2d _____, No. 2006-CA-00465-SCT (Miss. Sept. 27, 2007). Panel: Enbanc, Graves for the Court; no dissent.

Reshan Danielle Holmes, a minor,was injured in an automobile accident.

Her mother, Lille Copeland, was coveredunder a group health plan throughBauhaus, an ERISA plan (“Plan”). Shefiled suit for her daughter, a dependantunder the plan that was ultimately settledfor $750,000. Medical expenses incurredthrough the plan were just over $46,000.The plan asserted its right to bereimbursed out of settlement proceeds,first, with the remainder going to theclaimant. An amount of $75,000 wasplaced into the registry of the ChanceryCourt pending settlement of the minorsclaim and a determination of theentitlement of the plan to be reimbursedfor the payment of medical expenses.The Chancery Court ultimately foundthat the minor was entitled to all of theproceeds and entered judgment for theminor. Bauhaus appeals.

On appeal to the MississippiSupreme Court, the first and focal issuewas whether ERISA preempts state lawand allows the plan to receive theirmedical expenses paid prior to makingthe claimant “whole.” The Court notedthat the state of Mississippi has a vestedinterest in a minor’s claims and minor’smatters, and that this interest is notpreempted by the provisions of ERISA,citing several cases that suggest supportof this concept via Mississippijurisprudence. The Court observed thatBauhaus had actually pursued this matterin Federal Court, short of theirpreemption argument, but was dismissedfor other reasons. The Supreme Courtheld that there was a presumption againstpreemption of state law under ERISA,especially in matters of “family law.”Affirmed.

Comment: The Court eluded to thefact that the plaintiff had cited to the“made whole” doctrine, notwithstandingthe holding in Yerby v. United HealthcareInsurance Co., 846 So.2d 179 (Miss.2002), ignored it, and then apparentlywent on to hold that this was a “familymatter.” In so doing, the Courtessentially “deep six’d” the “contract”(contracted under ERISA) that served asthe touchstone for the payment of thebenefits in the first place, and becausethis was an issue involving a “minor” and

Recent Decisions


thus a matter of “family law,” that ERISAwas preempted by state law.

Limitations of Actions/Tolling of Statute/

Injunctions/Foreclosures

Albert Chimento v. Robert Fuller, etal. _____So.2d _____, No. 2001-IA-00057-SCT (Miss. Sept. 27, 2007).Panel: Waller, Easley & Graves;Easley for the Court; Diaz concurs inresult only.

Fuller & Chimento purchased 31acres of property in Pearl River Countyon July 1990. They signed a promissorynote and a deed of trust to ChimentoHome Builders (CHB) in the amount of$95,000 and a second note to GeraldMills in the amount of $35,000. CHBassigned its interest to MohammedEsmail on July 19, 1990. Fuller/Chimento failed to pay the CHB noteassigned to Esmail, and he institutedforeclosure proceedings. Fuller sought toenjoin the foreclosure proceeding andnamed Mills to the suit but failed to servehim. In 1993, the Chancellor enjoined theforeclosure proceedings. Thereafter,Esmail assigned the note to Chimento. In1994, the Chancellor entered a temporaryinjunction and authorized Fuller toamend his complaint. Chimento filed acounterclaim. In June 1997, the Courtentered an order that indicated that thestatute of limitations on the Chimentonote was tolled in 1993. In 1998, Millsnotified Chimento and Fuller that he hadretained counsel. Previously, Mills hadnot participated in the proceedings. Thematter was tried in 1999 and the courtordered the property sold, which after anappeal to the Supreme Court, occurred in2003. An amount of $199,358 wasdeposited into the Court pendingresolution of the issue concerningwhether the claims of Mills against Fullerand Chimento were tolled by the 1993and 1997 injunction. Thereafter thechancellor found that Mills’ claim wastolled by the earliest injunction eventhough he was not a participating party inthe litigation and awarded the entireproceeds to him as his claim exceededthe amount on deposit with the court.Chimento appealed.

On appeal, the Mississippi SupremeCourt held that the claim of Mills was nottolled by the injunction that had beenentered in the claim against Chimentoand Esmail, and the fact that the noteindicated that the holder of the note didnot waive any lack of diligence incollection, did not operate to waive anyapplicable limitations period. In fact, theCourt highlighted the fact that theLegislature has codified a prohibitionagainst waiving any statute of limitationsbeyond that applicable by law. MCA§15-1-5. The Court noted that Millsnever became a party to the claimbetween Fuller, Chimento and Esmail ashe was never served, and the fact that,through counsel, he participated in thetrial, does not excuse his lack of initiationof proceedings on his own claim. Millssuggests that he was prohibited frompursuing any relief against Fuller andChimento on the note because of theinjunction, and argues that §15-1-57 tollsthe limitations period while he isprevented from pursuing his remedy.The Supreme Court stated that §15-1-57applies only if Mills is personallyprevented from pursuing his remedy andin this case, he was not. Conversely, if hewould have filed suit, then the injunctionlikely would have affected his claim, butthen his relief would have been initiatedtimely and his claim tolled. Finally, theCourt noted that Mills suggests thatFuller waived the defense of the statutewhen he continued to resist the claim ofMills in the context of the suit. TheCourt indicated that Fuller would nothave waived any particular defense of thestatute unless he filed something inresponse to Mills assertions. In this case,Mills filed nothing, because he was not aparty to the claim. Therefore, there wasnothing for Fuller to have waived.Reversed and remanded.

Comment: Although it might beeasy to conclude that the obligors on thenote got away with something, Millssimply failed to pursue the relief that hewas entitled to for an unreasonably longperiod of time. With an original note of$35,000 on the line, something shouldhave been reduced to writing within thecontext of the litigation to protect hisinterests. The net effect of this case isthat the money that was placed into the

registry of the Chancery Court wentdirectly to Fuller and Chimento, andMills essentially received nothing.

Unauthorized Practice of Law/Dismissal of Complaint

Carl Mitchell v. Progressive InsuranceCompany, _____So.2d ____, No. 2006-CA-01542-SCT (Miss. Sept. 27, 2007).Panel: Smith, Graves & Randolph;Randolph for the Court; Diaz concursin part; Easley and Graves concur inresults only.

Mitchell and Patrick Banfatti wereinvolved in an automobile accident inNew Orleans, Louisiana, on November27, 2002. Mitchell was insured byProgressive Gulf Insurance Company.His attorney, Karl Wiedemann, faxed aletter to Progressive in January 2003,asserting an uninsured motorist claim forMitchell. In December 2005, Wiedemannfiled a complaint against Progressive forMitchell in the Circuit Court of WayneCounty. Since Wiedemann was not alicensed Mississippi attorney, the circuitclerk refused the filing, and returned it toWiedemann. Later, on February 14,2006, Jeffrey Ellis, a licensed Mississippiattorney filed a complaint for Mitchell inWayne County. Progressive moved todismiss the complaint because it wasfiled after three years. The Circuit Judgegranted the motion observing that theoriginal complaint filed by Wiedemannwas not a valid filing and therefore didnot affect the running of the statute. Theplaintiff appealed.

On appeal, the Mississippi SupremeCourt noted that the filing of thecomplaint by Wiedemann as anunlicensed Mississippi attorneyconstituted the unauthorized practice oflaw in the State of Mississippi, and thatthe filing of the original complaint forMitchell was essentially a nullity. Thefact that Progressive was on notice of theclaim of Mitchell prior to the running ofthe statute did not matter since the act offiling the original complaint had no legalsignificance. When the complaint wasproperly filed by a licensed Mississippiattorney, the statute of limitations hadrun. The Court observed that, “Theprimary purpose of statutory time


limitations is to compel the exercise of aright of action within a reasonable time.These statutes are founded upon thegeneral experience of society that validclaims will be promptly pursued and notallowed to remain neglected.” Thiscomplaint was filed outside of the statuteof limitations and was therefore untimely.The Court addressed the argument of theplaintiff that Progressive should beestopped from asserting the statute. Theynoted that, “[E]quitable estoppel existswhere there is a (1) belief and reliance onsome representation; (2) a change ofposition as a result thereof; and (3)detriment or prejudice caused by thechange of position.” In this case, theplaintiff did not demonstrate anyfraudulent conduct on the part of thedefendant, and therefore, equitableestoppel could not be used to excuse theuntimely filing of this complaint.Affirmed.

Comment: Though harsh, theapplication of the law to these facts wasproper. Rule 11 MRCP and Rule 46MRAP clearly suggest that the earlierfiling of this complaint wasunauthorized, and the later filing wasbeyond the three year statute oflimitations.

Punitive Damages/Bifurcation

Prudential Insurance Company ofAmerica, et al. v. Patty Stewart, et al._____So.2d _______, No. 2006-CA-01105-SCT (Miss. Sept. 27, 2007).Panel: En banc, Easley for the Court;Carlson specially concurring; Gravesdissents joined by Diaz.

Dr. Edsel Stewart applied for a lifeinsurance policy through Bateman andJMB Financial Group. The purpose ofthe policy was to pay for expected taxesof his estate upon death. The insuredwould be Dr. Stewart, with thebeneficiary as the Stewart Family Trust.Larry Stewart signed the application asthe applicant and Dr. Stewart signed theapplication as the proposed insured. Dr.Stewart paid Bateman $20,000 for whathe alleged was the premium on thepolicy, while Bateman stated that theamount was for tax and estate planningfor two years. The check was actually

written to Bateman and JMB FinancialGroup. Bateman attempted to procurethe policy based upon the applicationwith Prudential. Prudential ultimatelywrote the policy and sent it to Batemanfor delivery, but before it was delivered,Dr. Stewart suffered a stroke and wentinto a coma. The delivery instructionsrequired that Bateman actually meet withDr. Stewart and verify that all answers onthe application were correct. If theinsured was ill, disabled or died, then thepolicy was not to be delivered. It wasthen that Larry Stewart revealed that Dr.Stewart had sustained a stroke. Batemanthen returned the policy to Prudential,and a demand for benefits was laterrefused. Dr. Stewart died in October1999. The Stewart children and trustfiled a suit against Prudential assertingthat the policy was “issued” to the trustbased upon the signed application of Dr.Stewart. Prudential argued that the policywas not issued and was only valid if“delivered.” A jury trial resulted in averdict of $1.4 million compensatorydamages, $35 million in punitivedamages, and in excess of $500,000 inattorney’s fees. Prudential appealed.

On appeal, the Mississippi SupremeCourt initially reviewed their standard ofreview when considering a ruling by atrial court on a JNOV motion, and heldthat the trial court was error in notgranting a JNOV. Based upon the factsof this case, the Court held that there wasno contract since there was no “meetingof the minds.” “To create a contract ofinsurance there must be an agreementbetween the insurer and the insured.There must be a meeting of theminds....”. The Court noted that theapplication, though initially signed by Dr.Stewart, still had to be processed andunderwritten based upon his application.The carrier then sent their proposedpolicy to Dr. Stewart along with aninvoice for the first year’s premium of$105,000, which was not paid. Since Dr.Stewart was unable to accept the “offer”of Prudential to insure him as aconsequence of the conditions of thepolicy, Dr. Stewart could not accept theoffer of Prudential to insure him.Reversed and Rendered.

Comment: Justice Graves penned adissent in this case that took issue with

the Court’s holding arguing that therewas, in fact, a meeting of the minds basedupon the completed application that hadbeen filled out by Dr. Stewart before hebecame comatose. He went on toquestion the wisdom and efficacy of §11-1-65 that requires a bifurcation of thetrial when a punitive damage award issought, criticizing the utility of theprovision. Justice Carlson wroteseparately, taking issue with JusticeGraves’ arguments, and suggesting thathis attacks on the majority decision werebased upon a false notion of the Court’sprior holding in Bradfield v. Schwartz,936 So.2d 931 (Miss. 2006). “A carefulreading of Bradfield will cause anobjective, well-reasoned person toconclude that the dissent’scharacterization of Bradfield is not onlyunfounded, but untrue.” Justice Graveschides the majority for underestimatingthe ability of a jury to understand thedifference between the standards andrelevance of proof where punitivedamages are sought, while JusticeCarlson resents this implication, statingthat: “It is obvious that the dissent alsoperceives that trial judges will be morereluctant to seriously consider a motionfor a directed verdict after the jury hasbeen allowed to hear the evidencepresented in the punitive damages phase.Frankly, I am appalled at such asuggestion.”

Sanctions/Litigation Accountability Act

Choctaw, Inc., et al. v. Campbell,Cherry, Harrison, Davis & Dove,P.L.L.C., ____So.2d ______, No. 2006-CA-01621-SCT (Miss. October 4,2007). Panel: Waller, Easley &Carlson; Easley for the Court.

Campbell, Cherry, Harrison, Davis &Dove (“Campbell”) is a Texas law firmthat represented various groups ofplaintiff in two suits arising out ofsilicosis exposure. The suit was filed inNoxubee County and included over4,000 plaintiffs. After the suits werefiled, they were removed to FederalCourt and then transferred under theMDL Rules to Texas. While in Texas,

limited discovery was allowed toestablish multi-district subject matterjurisdiction. Later, the Texas FederalJudge remanded all cases filed byCampbell back to Noxubee County.Upon remand, the claims were dismissedby agreement of the parties to complywith Harold’s Auto Parts, Inc. v.Mangialardi, 889 So.2d 493 (Miss.2004). The dismissal order was withoutprejudice and reflected that each partywould bear their own costs. Thereafter,many of the defendants (“Choctaw” etal.) sued by Campbell, sought sanctionsagainst Campbell for the costs associatedwith the suits, asserting that the screeningprocess used by Campbell was nothingbut a “sham” and that sanctions shouldbe imposed under the provisions of theMississippi Litigation AccountabilityAct. The Circuit Court conducted ahearing and denied sanctions anddismissed the motion. Choctawappealed.

On appeal to the MississippiSupreme Court, Choctaw argued that thecircuit court erred by not awardingsanctions against Campbell againarguing that the screening process ofselecting putative plaintiffs was a sham,and was criticized by the Texas courtprior to remand from the MDL. TheCourt reviewed the standard establishedunder the Mississippi LitigationAccountability Act, holding that: “Todetermine whether a claim is frivolouspursuant to the statute, this Court looksto the definition of ‘frivolous’ found inM.R.C.P. 11. For purposes of Rule 11, aclaim is frivolous ‘only when, objectivelyspeaking, the pleader or movant has nohope of success.’ ‘Though a case may beweak or ‘light-headed,’ that is notsufficient to label it frivolous.’ Thus,sanctions are not justified if the plaintiffhad some hope of success when the claimwas filed. ‘To deem a question of law‘frivolous, groundless in fact or in law, orvexatious’ merely because there is noexisting Mississippi law on the subjectwould have a chilling effect on alllitigation involving questions of firstimpression.’ ” The Court went on tofeature the fact that the judge’s opinion inTexas was based upon her view of the

facts of the case before her, followed by afinding that she did not have subjectmatter jurisdiction. The standard ofreview in this case though is whether theCircuit Court judge “abused hisdiscretion” in not awarding sanctions.Since the defendants did not show that theclaims, pre-Mangialardi, were “frivo-lous,” superimposed by the fact that thedefendants had “agreed” to a dismissalwithout prejudice and that “each partywould bear their own costs,” the circuitcourt judge was not in error for denyingthe defendants motion. Affirmed.

Insurance/Duty to Defend

Progressive Gulf Insurance Company v.Dickerson & Bowen, Inc., et al.____So.2d ______, No. 2006-CA-01250-SCT (Miss. Oct. 4, 2007). Panel:Walker, Easley & Carlson; Easley forthe Court.

Leola Cooper filed a suit against BillyCarey in the Circuit Court of HolmesCounty arising out of an automobileaccident that occurred in September 1998.Progressive Gulf Insurance Companyinsured Carey. Suit was filed in January1999 against Carey. The complaint wasamended to join Dickerson & Bowen, Inc.with the plaintiff asserting vicarious andindependent claims. D&B was insured byTravelers Indemnity Company of Illinois.Progressive ultimately settled the claimagainst Carey, leaving D&B as the soledefendant. The claim went to trial andresulted in a jury verdict against D&B for2.5 million dollars. Travelers ultimatelysettled the matter with the plaintiff for$250,000, but then filed suit againstProgressive for indemnity of the amountspaid. Progressive and Travelers filedmotions for summary judgment. TheCircuit Court judge granted the motion ofTravelers finding that Progressive wasliable for the settlement plus attorneysfees. Progressive appealed.

On appeal, the Mississippi SupremeCourt reviewed the fact that D&B and itscarrier, through counsel, took the positionthat Carey was an “independentcontractor” throughout the litigation andnever demanded that Progressive, as the

carrier for Carey, assume their defense.The Court took the opportunity to reviewthe construction of “the” insurancecontract. “The interpretation of aninsurance policy is a question of law, notone of fact. Generally, under Mississippilaw, when the words of an insurancepolicy are plain and unambiguous, thecourt will afford them their plain,ordinary meaning and will apply them aswritten. Under Mississippi law,ambiguous and unclear policy languagemust be resolved in favor of the non-drafting party-the insured. Further,provisions that limit or exclude coverageare to be construed liberally in favor ofthe insured and most strongly against theinsurer.” [citations omitted]. Then, itwas noted that at no time prior to thejudgment and settlement with Cooper didTravelers ever tender or call uponProgressive to accept the defense of thisclaim. Only after settling with theplaintiff did Travelers demand thatProgressive assume the defense andreimburse it for the cost of the settlement.Since the demand left the carrier withvery little control over how the caseproceeded, the Court held thatProgressive was not responsible for thesettlement and judgment, and thus notliable to Travelers for the claim.Reversed and rendered.

Comment: The Court discussed aseries of cases in support of its positionthat Progressive was simply entitled tosome demand from D&B to assume itsdefense and observed that D&B, onlyafter the verdict, settlement and nowdemand, took the position that Carey wasliable and responsible to is for theaccident. Apparently, D&B took theposition that Carey was an independentcontractor and that it was not liable forhis torts. The Court noted in the opinionthat the jury even came back with averdict where the jury apportioned 90%of the fault to D&B. Since the facts of thecase are not set out, it is difficult tounderstand the basis for such a finding.Nonetheless, the Court seemeddisinclined to allow Travelers to take oneposition pre-verdict and then reverse itsposition after the verdict was returned inan effort to put Progressive on the hook.


Daubert Hearing/Motion in Limine/Experts

Affidavit

Lanikia Smith, et al v. CharlesClement et al. ____So.2d _____, No.2006-CA-00018- SCT (Miss. Oct. 4,2007). Panel: En banc, Diaz for theCourt; Smith dissents joined byDickinson, Carlson and Lamar.

Lanikia Smith and another childwere riding home on an Amory SchoolDistrict (“Amory”) school bus when itapparently caught fire burning bothchildren badly in 1995. Their parentsfiled suit against the Amory SchoolDistrict. Amory filed a third party claimfor indemnity against Clement andM&W Gas who converted the bus toburn propane in 1981. Clement filed amotion for summary judgment, attachingan affidavit of its expert concerning thecopper tubing that was apparentlyresponsible for the fire. Amoryresponded and filed an affidavit of itsown expert verifying that the coppertubing was installed by Clement. TheCircuit Court Judge held that the affidavitof the Amory School District wasinsufficient and conclusory under Rule702 and unsupported by facts andtherefore struck it and entered judgmentfor Clement. Amory and the plaintiffsappeal.

On appeal, the Mississippi SupremeCourt reviewed their prior holdingsunder Daubert (Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579, 113S.Ct. 2786, 125 L.Ed.2d 469 (1993)), andnoted the gate-keeping role of the trialcourt in assuring that the testimony of theexpert is indeed admissible and properlysupported. In this case, the Courtobserved that the trial court was tooquick to strike the affidavit of the expert,and in the exercise of that gate-keepingrole, was obliged to allow the proponentof the expert’s opinions a chance to atleast proffer them at a Daubert hearing.As such, the trial court abused itsdiscretion in not holding a Dauberthearing and the affidavit of the expert ofAmory should not have been stricken.Reversed and remanded.

Comment: The dissent detailed theactual opinion of the expert. By reading

the dissent, one learns that the essence ofthe claim against Clement was that he thatinstalled the conversion equipmentincluding the alleged failed copper tubing.Conversely, Clement submitted theaffidavit of an engineer specializing infailure analysis in propane fires and heopined that the identity of the individual,origin and date of installation of theinstaller of the copper tubing could not bedetermined by visual inspection. As such,the affidavit of the expert for Amory wassimply speculative. The dissent wouldhold that the expert’s affidavit shouldhave been excluded and stricken becauseof the unsupported conclusion that itespoused.

Workers’ Compensation/Statutory Penalties

AirTran, Inc., et al. v. Pamela Byrd,_____So.2d _____, No. 2006-CT-00674-SCT (Miss. October 11, 2007). Panel:En banc, Smith for the Court.

Byrd was a ticket agent for AirTran atthe airport in Gulfport. On July 31, 1999,Byrd fell while loading luggage onto aplane. She claims to have injured her “herneck, lower back, left and right shoulders,as well as the onset of fibromyalgia andvascular necrosis due to the fall. AirTrandenied benefits for her shoulders andlower back. Byrd filed a Petition toControvert on July 20, 2001.” Theadministrative law judge found that theinjuries were compensable and thisdecision was affirmed by the FullCommission. AirTran appealed thedecision to the Circuit Court whoaffirmed. The claim was appealed to theCourt of Appeals who affirmed thedecision of the Circuit Court Judge. Uponaffirmance by the Court of Appeals, Byrdmoved for the imposition of statutorypenalties under §11-3-23 of 15% whichwas denied. Byrd moved for certiorariappeal to the Supreme Court which wasgranted.

On appeal, the Mississippi SupremeCourt observed that the sole basis of theappeal was the applicability of theprovisions Mississippi Civil JusticeReform Act (House Bill No. 19, ThirdExtraordinary Session, 2002) thatessentially repealed the provisions of the

statute. The Court noted that “[i]n 2002,the Mississippi Legislature repealed §11-3-23 by passage of the Civil JusticeReform Act. Section 16 of the Act statesthat the act ‘shall take effect and be inforce from and after January 1, 2003,and shall apply to all causes of actionfiled on or after that date.’ ” The Courtnoted that AirTran had taken the positionthat since the claimant/plaintiff had not“filed” an appeal or a “cause of action,”[in a trial court] prior to the time that thestatute was repealed, that her claim was“filed” (in circuit court) after January 1,2003, and thus Byrd is not entitled to thestatutory penalty. The Supreme Courtstated that when Byrd filed her petition tocontrovert on July 20, 2001, that she hadinitiated a “cause of action,” thatpreceded the date of the statute thatrepealed the statutory penalty. As such,Byrd was entitled to the 15% penalty, andthe Court of Appeals was in error for notimposing it on an unconditionalaffirmance. Reversed and remanded.

Service of Process/Relation Back Doctrine

Douglas Long, et al. MemorialHospital at Gulfport et al. ____So.2d_____, No. 2006-CA-00875-SCT (Miss.Oct. 11, 2007). Panel: Waller, Easley& Carlson; Waller for the Court.

Lori McKinney filed a medicalmalpractice claim against Memorial onOctober 17, 2002 arising out of the deathof Huey P. Long that occurred onOctober 8, 2002. The next day, DougLong (and others) filed a similar suit butnaming only “fictitious party”defendants. Service of process was notissued to any defendant in either suit.The plaintiffs disputed the right of eitherto file the suit over the death of Long andthe matter ended up before the SupremeCourt in the cited decision of Long v.McKinney, 897 So.2d 160 (Miss. 2004).Upon remand in April 2005, the CircuitCourt Judge was directed that only onesuit would be pursued for the “wrongfuldeath” of Long. After remand and onJune 3, 2005, summons was issued toMemorial Hospital. On July 26, 2005, anamended complaint was filed naming Dr.Thomas Vaughn as a substituted


defendant. In August, Memorialanswered and filed a motion to dismiss.On November 23, the plaintiffs weregranted additional time to serve Vaughn.Vaughn was later served and filed amotion to dismiss. The Circuit Courtgranted both motions to dismiss. Theplaintiffs appeal.

On appeal, the Mississippi SupremeCourt observed that they had previouslyconsidered some of the issues related tothe wrongful death claim, and noted thatwhen they issued their order granting theinterlocutory appeal, that the case wouldbe stayed and that the statute oflimitations would be tolled during thependency of the interlocutory appeal.The Court observed that the mandatefrom the earlier case was issued on April15, 2005 and that process was not issuedto Memorial until June 3, 2005, after aninterlocutory appeal had been taken inApril 2003 and the stay order not entereduntil September 19, 2003. As such, theCourt observed that the “plaintiffs” failednot only to properly adhere to the 90notice of claim provisions of the Miss.Tort Claims Act, but also failed to issueand serve process for well over 120 daysunder Rule 4(h). As a consequence, theplaintiffs failed to issue process timelyand the circuit court did not abuse itsdiscretion in dismissing the claim. TheSupreme Court discussed a tacit “per se”finding that “good cause” would not befound unless the plaintiff made someeffort to serve process upon thedefendant within 120 days, and observedthat: “We agree with the Longs that thereis no concrete rule in Mississippi law thatgood cause automatically will be foundlacking when a plaintiff completely failsto cause a summons to issue for adefendant or does not attempt at all toserve a defendant within 120 days of thefiling of her lawsuit. This Court’sprecedent indicates the reasons offered todemonstrate diligence in light of thefailure to serve will be, and should be,reviewed even where the plaintiff ’sattempts at service are negligible ornonexistent. Even the cases offered byMemorial Hospital and Vaughan for therule that such a review is unnecessarydemonstrate this Court will at leastexamine the reasons offered beforefinding them insufficient.” [Emphasisadded]. Beyond this dicta, the Courtindicated that individual reasons for

failing to issue service of process will bereviewed on a case by case basis;however, in this case, the claim againstMemorial was property dismissed and notan abuse of discretion. Long cited to the“strained relationships” with McKinneyas justification for his failure to serveprocess on Memorial, yet the Courtindicated that their prior decision requiredthat each plaintiff serve as a fiduciary forthe other as it related to protecting theirrights under the wrongful death statute.As such, “strained relationships”notwithstanding, this was not “goodcause” in failing to properly perfectservice upon Memorial Hospital. TheCircuit Court therefore did not err indismissing the claim against Memorialwithout prejudice. As to Dr. Vaughn, theplaintiffs were prevented from pursuing aclaim against him when the circuit courtoriginally dismissed their claim and thenwhen the Supreme Court granted theinterlocutory appeal, staying all discoveryand tolling the limitations period. Uponremand of the claim to the circuit court,the statute of limitations then began to runagain. Since there was sufficient timeremaining on the original two year periodwhen the plaintiffs amended the claim tojoin the physician, the dismissal of theclaim against Dr. Vaughn was in error.Affirmed in part and reversed in part.

Comment: Without a specificunderstanding of the earlier decision ofthe Court as it relates to the outcome ofthe dispute between the plaintiffs, a casualreader of this decision would beessentially lost. An explanation of theimpact that the two original complaintshad on the outcome of the case here didmake a difference, but little is referencedin the decision as to why one complaintfiled by one of the plaintiffs impacts theoutcome as to the other. Curiously, theCourt steps back from earlier precedentthat found an absence of “good cause”when nothing was done to try to serveprocess upon a defendant, but did featurethe fact that each case would be examinedon its own merits to determine “goodcause.” There is no “bright line” fact thatthe Court recognizes to determine thepresence or absence of “good cause,”which is committed largely to thediscretion of the trial judge. Anotherinteresting feature of the case is a rebukeof the notion heretofore assumed underMississippi law (King v. American RV

Centers, Inc., 862 So.2d 558(Miss.Ct.App.2003)), that an amendedcomplaint would be viewed as a “new”cause of action. The Court was succinctto note that such an assumption has beenaddressed and overruled by the Court.(Wilner v. White, 929 So.2d 315 (Miss.2006)). When coupled with the statementin the Court’s opinion that dismissal of aknown defendant does not secure thedismissal of the entirety of the complaintif “fictitious parties” are joined (“Todismiss the entire action, when only theidentified parties are dismissed and thecomplaint articulates claims againstfictitious parties whose identity can bediscovered, is to deprive a plaintiff of thisbenefit.”), should give concern for thefinal conclusion of any case that contains“fictitious parties.”

Toxic Torts/Evidence

E.I. DuPont De Nemours & Co. v.Glen Strong, et al., ____So.2d ____,No. 2006- CA-01055-SCT (Miss.October 18, 2007). Panel: En banc,Easley for the Court; Diaz dissentswith opinion, joined by Graves;Randolph and Lamar join dissent inpart.

Strong filed suit against DuPont andothers arising out of his alleged exposureto dioxin. The case was removed severaltimes to Federal Court upon variousoccasions, but finally returned to statecourt where it was tried. A verdict wasentered for the plaintiff in the amount of$15.5 million. The plaintiff’s wife wasalso awarded damages in the amount of$1.5 million. A mistrial was declared onthe request for punitive damages due tothe failure of the jury to agree. After posttrial motions were denied, DuPontappealed.

On appeal, the Mississippi SupremeCourt reviewed the fact that the trialcourt struck several witnesses under Rule11, including experts of the defendant,finding the trial court did not “abuse itsdiscretion” in not allowing the witnessesto testify. The Court next reviewed theadmission of an “affidavit” of two of thetreating physicians of the plaintiff andheld that the “catch-all” provision ofRule 804(b)(5) allowed the material, but


only upon a showing that the materialhad been provided to the adverse partysufficiently in advance of trial so that theother party could prepare for it anddispute it if necessary. The Courtreviewed the fact that the affidavit wasprovided to the defendants during trial,and that this violated the provisions ofthe Rule. It was therefore error to allowthe affidavit during trial. The SupremeCourt next reviewed the fact that one ofthe plaintiffs experts was allowed toprovide testimony concerning howcorporations like DuPont “intimidate”governmental and environmental qualityinspectors and essentially “dress up” theplant when the inspectors arrive. TheCourt held that this testimony wasirrelevant and inadmissible under Rule403, and should not have been allowed.Another witness was allowed to testify atthe trial concerning his personal injury atthe DuPont plant, though his injury hadnothing to do with exposure to chemicalsor Dioxin. The Court held that thistestimony too was irrelevant and overlyprejudicial to have been allowed underthe provisions of Rule 403. Thetestimony of this witness, however, as tofrequent safety violations that occurred atthe plant was property allowed. Finally,the Court reviewed a jury instruction thathas become known as the “frequency,regularity and proximity” instruction.The instruction was approved inGorman-Rupp Co. v. Hall, 908 So.2d749, 757 (Miss. 2005), but was limited tocases where asbestos was an issue. TheSupreme Court held that such aninstruction, as was offered by DuPont,was properly refused. Reversed andremanded.

Comment: Justice Diaz dissentsand principally argues that the Courtshould not reverse the verdict of the jurybecause: (1) the evidence at issue wasproper; and (2) the Court is making ahabit in reversing large verdict awards.His arguments as to the former primarilyobserve that the evidence admitted wasnot prejudicial but even helped thedefendant, and that, as to the latter, hechronicles a number of cases where theCourt has reversed due to the size of theaward. Justice Diaz highlights that themajority opinion left many of these facts

out of their holding, which he apparentlyfelt diminished the culpability of DuPont.

Limitations of Action/Intentional Tort

Citi Financial Mortgage Co., Inc. v.Rosie Washington, et al. _____So.2d_____, No. 2005-IA-00311-SCT (Miss.October 25, 2007). Panel: En banc,Smith for the Court; Diaz, Easley andGraves dissent without separateopinion.

Rosie Washington, along with herdaughter, Catherlean Craft, obtained a carloan through Ford Consumer Finance,borrowing over $31,000 to be dischargedover the 180 payments. At the end of theloan, the borrows would have a balloon ofover $28,000. The loan was taken out inNovember 1995. In November 2001, thefiled a complaint against the successor ininterest to the note, Citi Financial,asserting “claims of breach of thecovenant of good faith and fair dealing,economic duress, negligence, intentionalinfliction of emotional distress,constructive fraud, rescission andcancellation, and violation of theMississippi Unfair or Deceptive Acts andPractices Act, Mississippi CodeAnnotated Section 75-24-3, et seq.(Rev.2000).” Citi Financial filed a motionfor summary judgment in December2004. The circuit judge denied, in part,the motion “on the issues of breach of thecovenant of good faith and fair dealing,negligence, intentional infliction ofemotional distress, fraud, statute oflimitations, and release of claims.” CitiFinancial filed this interlocutory appeal.

On interlocutory appeal, theMississippi Supreme Court reviewed theprovisions of §15-1-35 that required thepursuit of “intentional” claims be takenwithin one year. “The claim for intentionalinfliction of emotional distress is subjectto a one-year statute of limitations underMississippi Code Annotated Section 15-1-35 (Rev.2003). Southern v. Miss. StateHosp., 853 So.2d 1212, 1214 (Miss.2003).” The remainder of the claims,according to the Court, were governed bythe three year provision under §15-1-49.Since the plaintiff was on actual andconstructive notice of the terms and

conditions of the agreement, includingthe terms of the payout, their claim beganto run in November 1995, not on somesubsequent date thereafter. “The statuteof limitations for the claims in this casebegan to run when the plaintiffs hadnotice of the terms of the contract, whichwas at the time of the execution of theloan agreement, when the Plaintiffreceived the terms of the contract. Id. at¶ 11 (discussing Andrus v. Ellis, 887So.2d 175 (Miss. 2004)). Having signedand received a copy of the loan, whichcontained all the payment terms,Plaintiffs were on notice of the termscomplained of as of November 29, 1995.This Court held in Sellers that having

knowledge, regardless of whether thatknowledge was actual or constructive, ofthe terms of the agreement begins thestatute of limitations.” The Court wenton to hold that the plaintiffs should havefiled their claim within three years of1995 and waited to late to pursue theirclaim by filing in 2001. Consequently,the Circuit Court was in error in notgranting summary judgment to thedefendants. Reversed and rendered.

Jury Misconduct

Bobbie Johnson v. St. Dominic-Jackson Memorial Hospital,____So.2d _____, NO. 2006-CA-01696-SCT (Miss. October 25, 2007). Panel:Waller, Easley & Carlson; Waller forthe Court.

Johnson was admitted into St.Dominic’s Hospital in Jackson for gallbladder surgery. While there, sheexperienced nausea that requiredmedication. Her physician ordered thatphenergan be given to her by injection.After the injection, the plaintiff’s skinbecame inflamed and necrotic requiringskin grafting and debridement. Suit wasfiled by Johnson against St. Dominic’s inHinds County Circuit Court. A juryverdict was rendered for the defendant.The plaintiff appeals arguing that theverdict was against the overwhelmingweight of the evidence and that the juryshould be resummoned to address anissue connected with their deliberationunder MRE 606(b).

On appeal, the Mississippi SupremeCourt restated their standard of review in


connection with a claim of a litigant wasagainst the overwhelming weight of theevidence. As to this, the Court stated: “Ajury’s verdict is given great deference bythis Court, and ‘conflicts of evidencepresented at trial are to be resolved bythe jury.’ Lift-All Co. v. Warner, 943So.2d at 16; Blossman Gas, Inc. v.Shelter Mut. Gen. Ins. Co., 920 So.2d422, 426 (Miss. 2006); Venton v.Beckham, 845 So.2d 676, 687 (Miss.2003) (citing Jackson v. Griffin, 390So.2d 287, 289 (Miss. 1980)). Only if theplaintiff makes a strong case for error bythe trial court is this Court free to reversethe trial court’s denial of a motion for anew trial. The verdict must be contrary tothe substantial weight of the evidence inorder to warrant a reversal of the verdictand a new trial. Blossman Gas, Inc. v.Shelter Mut. Gen. Ins. Co., 920 So.2d at424. This verdict does not, as inBlossman, shock the conscience or reston a complete lack of evidence. Id. at426-27.” The Court next considered thefact that one of the jurors, after the juryhad been discharged and their verdictrendered, emailed the judge and alertedhim to some confusion that wasexperienced by her about one of thecourt’s instructions. The Supreme Courtnoted that the plaintiff suggests that thisis grounds for the re-summoning of thejury, reinstructing them and allowing thejury to continue their deliberations.Citing Rule 606(b), the Court noted thatthis was an effort on the part of a juror toimpeach her own verdict, and that this isnot permitted under the Rules. “‘Jurorswill not be able to function effectively iftheir deliberations are to be scrutinizedin post-trial litigation. In the interests ofprotecting the jury system and thecitizens who make it work, rule 606 [ofthe Federal Rules of Evidence] shouldnot permit any inquiry into the internaldeliberations of the jury.’ Robles, 862F.2d at 1205 (citing S.Rep. No. 93-1277,93d Cong., 2d Sess. 13-14 (1974)). TheUnited States Supreme Court has longheld that an individual attack on a juryverdict is unwise. McDonald v. Pless, 238U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed.1300 (1914). Mississippi law is whollyconsistent with this line of reasoning andwill not be disturbed.” The Courtconcluded that they could not review this

attack on the verdict observing that:“Speculation as to how the jury did or didnot interpret its instructions is not aquestion properly before this Court, beingprecluded by Mississippi Rules ofEvidence, common law, and theoverarching principles of res judicata.”Affirmed.

Requests for Admissions/Summary Judgment

David Scoggins v. Baptist MemorialHospital-Desoto, ____So.2d ____No.2006-CA-02004-SCT (Miss. October 25,2007). Panel: Diaz, Dickinson &Lamar; Diaz for the Court.

Scoggins underwent a colonoscopy atBaptist Memorial and sued the facility,along with certain doctors based upon atheory of negligence. Baptist answeredthe complaint and filed a set of discoveryalong with it, including a set of Requestsfor Admissions. Several months later,Baptist filed a motion for summaryjudgment asserting that the plaintiff hadfailed to respond to the Requests, andtherefore summary judgment wasappropriate as several of the requestssought an admission that the defendantswere not negligent. The circuit courtjudge entered judgment for the defendantand the plaintiff appeals.

On appeal, the Mississippi SupremeCourt reviewed the provision and purposebehind Rule 36, noting that it wasfashioned along the lines of the federalcounterpart “ ‘The purpose of [Federal]Rule 36(a) is to expedite trial byestablishing certain material facts as trueand thus narrowing the range of issues fortrial’. See Asea, Inc. v. Southern Pac.Transp. Co., 669 F.2d 1242, 1245 (9th.Cir.1981). This concept is taken veryseriously, as ‘[t]he matter is admittedunless, within thirty days after service ofthe request ... the party to whom therequest is directed serves upon the partyrequesting the admission a writtenanswer or objection addressed to thematter, signed by the party or by hisattorney....’ Miss. R. Civ. P. 36(a).Accordingly, ‘[a]ny matter admittedunder this rule is conclusivelyestablished unless the court on motionpermits withdrawal or amendment of theadmission.’ Miss. R. Civ. P. 36(b).” The

Court reviewed the fact that matters ofdiscovery are committed to the discretionof the judge and his decision will not bereversed except upon abuse. Theplaintiff argued that an illness of hisfamily prevented him from giving thisdiscovery the attention that it deserved,yet the Court indicated that he failed torequest permission either from Baptist orfrom the trial court to withdraw theadmissions. “It is well-settled that a trialcourt has the discretion to allowadmissions to be withdrawn even afterthey are admitted. See Earwood, 798So.2d at 516 (‘Mechanisms exist wherebya trial court may hold that an untimelyresponse does not constitute a deemedadmission because the trial court hasbroad discretion in pretrial matters.’)(emphasis in original). Conversely,‘because of the trial court’s broaddiscretion in such matters, it certainlymay also require that parties comply withthe rules as stated.’ Id.” As aconsequence, the plaintiff failed todemonstrate “justifiable cause” for hisfailure to respond timely, and the trialjudge would not be held in error for adecision committed to his discretion. “Asin the case of Martin v. Simmons,‘[t]heproblems encountered by the [plaintiff]in this case could easily have beeneliminated if a motion to withdraw oramend the answers had been filedpursuant to Rule 36(b) and if there werejustifiable excuse.’ 571 So.2d 254, 257(Miss. 1990); see also Sunbelt Royalty,Inc. v. Big-G Drilling Co., Inc., 592So.2d 1011 (Miss. 1992) (requests foradmission deemed admitted wheredefendant failed to respond for nearlynine months).” Affirmed.

Sovereign Immunity/Limitations of Action

Irene Caves, et al. v. BenjaminYarbrough, et al. _____So.2d _____,No. 2006-CA-01857-SCT (Miss.November 1, 2007). Panel: Smith,Dickinson & Lamar; Dickinson for theCourt; Easley concurs in part; Gravesdissents with opinion joined by Diaz &Waller.

Jimmy Caves experiencedabdominal pain on April 18, 2000 andwent to the Franklin County Memorial


Hospital emergency room. He wasevaluated for abdominal complaints andlater died on April 17, 2000. OnFebruary 13, 2002, Caves’ wife, Irene,submitted a “notice of claim” to thehospital and Dr. Yarbrough. She filedsuit on April 12, 2002 against Dr.Yarbrough and the hospital. Thedefendants filed a motion to dismissciting the provisions of the MississippiTort Claims Act. The trial court held thata “discovery rule” did apply under theMTCA, however in this case, IreneCaves knew well before she submittedher “notice of claim,” that she possesseda cause of action. As such, the circuitjudge dismissed the claim. The plaintiffappealed.

On appeal, the Mississippi SupremeCourt first reviewed its de novo standardof review. The Court then revisited priorcase law grafting a “discovery rule”within the provisions of the MTCA(Barnes v. Singing River Hosp., 733So.2d 199, 205 (Miss. 1999)), and heldthat those decisions were simply wrong,and overruled them. The plain meaningof the provisions of the statute do notincorporate a “discovery rule,” and assuch, the claim must be filed as providedfor by the statute, using the date of theaccident or injury as the first landmark.The Court went on to compare a “statuteof limitations,” with a “statute ofrepose,” and found that the one yearprovision provided under the MTCAwithin which to submit a “notice ofclaim” was a statute of repose. Since theCourt has adopted a strict construction inthe application of the MTCA, they heldthat the plaintiff must comply with themandatory provisions of the Act.Affirmed.

Comment: Justice Easley writesseparately to suggest that the conclusionsof the Court in this matter are correct, butobserves that a discovery rule wouldprovide more flexibility in theapplication of a statute unless and untilthe Legislature acts on a particularlyharsh statute. Justice Graves argues inhis dissent that it was clear that theLegislature intended that the MTCAincorporate a “discovery rule,” as it is astatute of limitations, not a statute ofrepose and that as a statute of limitations,

Mississippi law is clear that a “discoveryrule” is part of that concept. He suggeststhat a “discovery rule” has historicallybeen a part of Mississippi jurisprudenceunder the MTCA, and that this Courtshould not deviate from that policydecision.

Revocation andRenunciation of Wills

In the Matter of the Estate of ClydeWoodfield, et al. v. Sharon McCoyWoodfield, et al. _____So.2d _____, No.2004-CT-00238-SCT (Miss. November1, 2007). Panel: En banc, Carlson forthe Court; no dissent.

Clyde Woodfield married SharonMcCoy in 1966. Clyde executed a will in1973 that left all of his property to Sharon,his son John by a prior marriage, andMichael by his marriage with Sharon.Michael was involved in a seriousautomobile accident in 1997 that resultedin catastrophic injuries. John wasappointed his conservator. In 2001, Clydeexecuted another will that essentially leftMichael out of his will. On September 29,2001, Clyde died. John and Sharonsubmitted the 2001 will for probate.Sharon was appointed the executrix of theestate. In October 2001, John wasremoved as the conservator of the estateof Michael. The new conservator filed apetition contesting the 2001 will. Sharonthen filed a petition to submit the 1973will to probate and John filed a motion towithdraw the 2001 will. The Chancellorultimately held that the 2001 will waswithdrawn leaving the 1973 will the onlyexpression of the intention of the testator.As such, the estate of Clyde wasdistributed pursuant to the 1973 will andvarious monetary awards were madeagainst John. John appealed.

On appeal, the Mississippi SupremeCourt noted that the sole issue on appeal iswhether the withdrawal of the 2001 willremoved and withdrew the intent of thetestator to revoke all prior wills. TheCourt reviewed other decisions of theCourt where the withdrawal of a willdidn’t necessarily alter the intentions ofthe testator, unless for some reason, thelater will was not valid. In this case, the

Court noted that there was still the issueto be decided as to whether the 2001 willwas invalid, and, if so, then the 1973 willwould indeed be the last expression ofthe testator. However, if the 2001 willwas valid, and properly reflected theintentions of the testator, it simply cannotbe rendered invalid by the expressions ofone of the parties or beneficiaries underthe will, who do have the right torenounce their right to take under thewill. The Supreme Court therefore,reversed the finding of the Chancellorand remanded the claim back toChancery court for a determination ofwhether the 2001 will was invalid orvalid. If valid, then the 1973 will wasrevoked as expressed in the will. If the2001 will was invalid, then that wouldapply also to the revocation provision inthe 2001 will, and therefore require thatthe 1973 will be probated. Reversed andremanded.

Comment: The case dealt withvarious collateral forms of relief againstJohn, which though important andnecessary, muddle the real issueconcerning revocation or effectiveness ofthe 2001 will. Principally, the Court heldthat if the will is valid, then the same istrue for the revocation provision as welland the prior will simply cannot berevived.

Unavoidable Accident/Jury Instructions

Jackie Tentoni, et al. v. Warren W.Slayden, ____So.2d _____, No. 2005-CT-00529-SCT (Miss. November 8,2007). Panel: En banc, Carlson forthe Court; Diaz dissents joined byGraves.

Jackie Tentoni and her children weretraveling southbound on I-55 in CarrollCounty. It was raining and she wasfollowing behind an 18-wheeler. Shepulled into the right lane to pass the truckand then resumed her position in the righthand lane. Slayden was following herand as he attempted to pass Tentoni, inthe left lane as well, hydroplaned andstruck Tentoni allegedly forcing herdown an embankment and into sometrees. His speed at the time of the


accident was 68 in a 70 mph limit zone.Suit was filed by Tentoni and herchildren against Slayden for the accidenton January 13, 2000. A jury trial resultedin a verdict for the defendant. Theplaintiff appealed and the case wasassigned to the Court of Appeals. TheCourt of Appeals reversed and renderedon the issue of liability and remanded fora determination of damages. Slaydenfiled a petition for certiorari with theSupreme Court which was granted.

On appeal, the Mississippi SupremeCourt reviewed the facts of the case, andfirst reviewed the right of the trial courtto give a peremptory instruction on theissue of damages, and stated that as longas there is an issue of fact to be resolvedby a jury, the trial court should allow thejury to determine the traditional issues ofduty, breach and proximate cause. In thiscase, the trial judge properly allowed thejury to consider whether Slayden wasactually negligent. The Court nextreviewed a defense jury instructionwhich referenced an “unavoidableaccident,” and held that it was not errorto incorporate this term when balancedby other appropriate instructions incontext. The Supreme Court nextreviewed whether the verdict of the jurywas against the overwhelming weight ofthe evidence, especially in light of certainin appropriate comments made by thedefendants counsel during closing. TheCourt reviewed the remarks that featuredhow this suit has affected the state ofmind of the defendant, with the Courtholding that it is up to the trial judge tomake sure the arguments at trial are fairand not overly prejudicial. Since theverdict was supported by the weight ofthe evidence, it should not have beenreversed by the Court of Appeals.Reversed and the verdict of the juryreinstated.

Comment: Justice Diaz argues in hisdissent that the Court of Appeals wascorrect in its analysis of the claim, citingto the fact that this case was analogous totheir decision in Barkley v. MillerTransporters, Inc., 450 So.2d 416 (Miss.1984), and that the plaintiff was entitledto a peremptory instruction on the issueof liability. He cites to the fact thatSlayden admitted that he wasapproaching the speed limit under

conditions that were perilous and that thisalone is suggestive of a lack of due careand excessive speed under thecircumstances. This matter essentiallyhighlights the several cases in Mississippithat distinguish “cause in fact” from“legal cause.” One may not necessarilyincorporate the other and the two are notnecessarily synonymous. It does seemclear that an “unavoidable accident”instruction may have been a stretch underthese facts when the issue of due care isanalyzed. “Due care” certainly mustincorporate “conditions then and thereexisting,” and potentially, “hydroplaning”is a condition that a reasonable personshould guard against, if possible. Thedissent appears to ponder whethertraveling near the speed limit in torrentialrain would comply with the concept of“reasonable care.”

Dram Shop/Experts/Daubert

Treasure Bay Corp., et al. v. SheilaRicard, et al. _____So.2d _____, No.2006-IA-00831-SCT (Miss. November8, 2007). Panel: En banc, Dickinson forthe Court

Phillip Robinson was killed when hewas struck by a drunk driver, JoshuaDillmon, on October 23, 2002. Dillmonhad previously been to Treasure BayCasino and Adventures. When Dillmonstruck Robinson, a pedestrian, he drovesome distance down the road where heremained for approximately an hour, butthen returned to the scene where he wasadministered an intoxilyser, registering0.88%, and then arrested. Later, he wasgiven a blood test which registered 0.70%.After the accident, Dillmon admitted tohaving 4-5 beers at Treasure Bay andthree more beers at Adventures. Suit wasfiled against Treasure Bay and Adventuresfor serving Dillmon in an obviouslyimpaired state. Depositions taken ofemployees at both locations indicated thatno employee remembered Dillmon.Dillmon was ultimately indicted formanslaughter and refused to be deposedinvoking his Fifth Amendment rights.Both defendants filed a motion forsummary judgment asserting that theplaintiff failed to demonstrate thatDillmon was obviously or visibly

intoxicated at the time he was at theirplaces of business. The Circuit CourtJudge denied both motions based uponan affidavit of Dr. Stephen Hayne, whooffered an opinion on the effects ofalcohol on a human being. Thedefendants pursued this interlocutoryappeal.

On interlocutory appeal, theMississippi Supreme Court began byreviewing the provisions of §67-3-73preventing business establishments/proprietors from serving those visiblyintoxicated. Given the statute, the Courtheld that, as to Adventures, the affidavitof Dr. Hayne created a genuine issue offact, and because the plaintiff moved foradditional discovery under Rule 56(f),summary judgment was also properlydenied to Treasure Bay. The Courtreviewed the conclusions of Dr. Hayne asit related to the assumptions of fact, andheld that the Court could not reject theconclusions of an expert, simply becausetheir factual assumptions may not becredible. “Thus, it would be unsettlingfor this Court abruptly to reject all expertopinion which relies on a historicalaccount of the facts. Of course, whetheror not the facts relied upon are credible isa matter for cross-examination andcollateral attack at trial.” The Courtwent on to hold that even though thetruthfulness of the statements relied uponby Dr. Hayne may be suspect, they arenonetheless his assumptions and may notbe discounted simply because thedefendant believes them to be untruthful.The Court discussed the requirements ofthe trial court in assuring that theopinions of the expert maintainreliability, and in their “gatekeeping”role, have the obligation to guard theadmissibility of expert opinion byassuring that their methodology is sound.Yet, Rule 702 does not speak to thereliability of an expert’s opinion whenundergirded by a factual assertion of awitness. “While the factors listed above[Daubert factors] are not exhaustive, thisCourt never has held that for an expert’sopinion to be reliable, it must rely on astatement that is truthful in its entirety.”As to Adventures, if the opinion of Dr.Hayne is to be believed, his reliance onthe factual statement of Dillmon wouldjustify the denial of a motion for


summary judgment as to them on theissue of whether he was visiblyintoxicated when he arrived and wasserved alcohol. On the other hand, as toTreasure Bay, the Court held that therewas no factual basis to believe that theyserved Dillmon at a time when he wasvisibly intoxicated and Dr. Hayne’sopinion as to them is unreliable. Yet, theplaintiff had not been given anopportunity to fully secure sufficienttestimony to support Dr. Hayne’s opinionin light of the invocation of the privilegeagainst self incrimination by Dillmon.The Supreme Court observed that uponremand, the plaintiff should be given anopportunity to depose Dillmon, in court,so that she could confirm his state ofintoxication while at both Treasure Bayand Adventures. The trial judge mustmanage the proceeding to determinewhether any question, asked on anindividual basis, implicates the FifthAmendment rights of Dillmon, and ruleaccordingly, only if they do so. Affirmedand remanded.

Comment: The analysis of theCourt is logistically correct when itcomes to the assumptions of an expert,and it is true that routine assumptionsmade by an expert qualify as componentsof a valid opinion. Yet, the Court seemsto suggest that no matter howincredulous the opinion, there must besome deference given simply becausestatements of dubious quality areroutinely relied upon and Rule 702doesn’t prevent an expert from relyingupon questionable statements.

Service of Process/Waiver of Defense/Rule 4(h)

Mary Burleson, et al. v. Roy Lathem,et al. _____So.2d _____, No. 2006-CA-02025-SCT (Miss. November 15, 2007).Panel: En banc, Graves for the Court;Smith dissents with opinion.

On May 15, 1999, Bobby Shiers wasshot by Roy Lathem on his Hunting Clubproperty in Hinds County, Mississippi.Shiers, who later died, was apparentlyfleeing from law enforcement authoritiesin Edwards, Mississippi. Suit was filed15, 2002 in Warren County by MaryBurleson alleging wrongful death of

Shiers. At the time suit was filed, Lathemwas incarcerated for the shooting in HindsCounty. Lathem was served on September17, 2002, 125 days after the complaintwas filed. Lathem answered on October15, 2002. On August 13, 2004, the circuitjudge dismissed the complaint for failureto prosecute. Burleson filed a motion toreinstate the complaint in April 2005, andthen a motion to amend the complaint inAugust 2005. The Court entered an Orderon August 16, 2005 reinstating thecomplaint and allowing the amendment.Burleson filed another motion to amendthe complaint on August 26, 2005, whichwas granted on April 13, 2006. On May 9,2006, Lathem filed his answer to theamended complaint and included anaffirmative defense that Burleson hadfailed to serve process on the originalcomplaint within 120 days under Rule4(h). Lathem filed a motion to dismisswhich was granted by the circuit judge.Burleson appeals.

On appeal, the Mississippi SupremeCourt first noted their standard of reviewwhen a trial court dismisses a claim underRule 12 - that being one of a “de novo”standard. The Court next considered theargument that Lathem has waived hisRule 4(h) defense by not pleading it as anaffirmative defense in his original answer.Lathem argued that his recitation to thestandard “failure to state a claim” defense,citing Rule 12, was sufficient to preservethis defense. The Supreme Court held thatit was Lathem’s responsibility tospecifically plead his defense to thecomplaint under Rule 4(h), which he didnot do. As such, Lathem waived thisdefense. The Court went on to note that aRule 4 defense can be included even in aproperly amended answer if done as amatter of course under the provisions ofRule 15, and can even be included andraised in an amended answer if permittedby leave of the trial court. Featured wasthe difference between the Federal andState Rules which permit an unlimitednumber of amendments “as a matter ofright” within 30 days of filing the originalanswer. The Supreme Court rebuked thedefendant in not raising the defense untilmore than three years after the originalsuit, stating “Lathem simply waited toolong pursuant to Rule 15(a). Thus,Lathem has waived insufficiency of

process and insufficiency of service ofprocess as affirmative defenses.”Reversed and remanded.

Comment: Justice Smith assumed amore practical posture in his dissent thatfrankly would probably have carried theday, had the defendant at least filed amotion to amend his answer to raise theRule 4 defense before he did. Hehighlights the fact that the plaintiffcertainly was not timely in the manner inwhich this litigation was pursued andeven had to petition the court to reinstatethe case due to dismissal for lack ofprosecution. There is no question that thetimeline left a lot to be desired from apursuit standpoint; however, thedefendant did raise the issue ofinsufficiency of process in a properlyfiled answer which the Court apparentlyfelt to be too late in the game to salvagethe issue. One thing that the practitionerwill want to remember about this case isthat the Court did not appear to adopt thenotion that simply pleading the “catchall” Rule 12 defenses, preserved the“insufficiency of process” issue. Notonly does it appear that it must bespecifically pleaded, it also must beraised simultaneously when filing ananswer to the complaint.

Venue/Priority of Jurisdiction

RAS Family Partners, L.P., et al. v.Onnam Biloxi, L.L.C. ____So.2d______, No. 2006-IA-00976-SCT and2006-IA-01414-SCT (Miss. November15, 2007). Panel: Diaz, Carlson &Randolph; Diaz for the Court; nodissent.

Onnam contracted with Sims of RASFamily Partners to lease certain propertyon the Biloxi Back Bay and to purchaseother property adjacent to it that wasowned individually by Sims. Theagreement was conditioned upon variousevents precedent that related to licensingand permitting of the property for acasino site. The parties agreed upon thearrangement, prior to Hurricane Katrina,to close on September 30, 2005. Afterthe hurricane, Sims notified Onnam thatthe agreements had lapsed by their terms.Onnam filed suit in Federal court toenforce the agreement. His suit was


dismissed due to a provision in theagreement that limited venue to statecourt. RAS, on the other hand, filed suiton December 27, 2005 in Circuit CourtHarrison County for a declaratoryjudgment that the agreement was void.Sims was later joined by amendment inthis suit for relief. Onnam, thereafter onJanuary 24, 2006, filed suit in HarrisonCounty Chancery Court for specificperformance. Service of process on bothsuits occurred nearly simultaneously.Both parties filed motions in each courtto have the other suit transferred to theother court. Both courts denied eachmotion. Onnam, RAS and Sims appealin this consolidated appeal.

On appeal, the Mississippi SupremeCourt reviewed the nature of thejurisdiction of Circuit Court versusChancery Court and observed that theChancery Court was a court of “limited”jurisdiction, where Circuit Court is acourt of “general” jurisdiction by virtueof the Mississippi Constitution. Suits inCircuit Court may award equitable reliefas long as the core of the relief requestedis legal in nature. On the other hand,relief in Chancery Court should primarilybe “equitable,” but may also include“legal” claims. As such, both courts canexercise jurisdiction over the individualclaims asserted. RAS/Sims argued thatthe Chancery Court was in error for nottransferring the Chancery Court claim toCircuit Court under the doctrine of“priority of jurisdiction.” The Court heldthat the doctrine of priority ofjurisdiction could be invoked, as long ascompeting courts properly hadjurisdiction of the claim at the outset. Ifso, then the court first vested withjurisdiction of the claim retains the claimfor all purposes, both legal and equitable.“The ‘first to file’ or ‘race to thecourthouse’ rule is well-established inMississippi case law: ‘[w]here two suitsbetween the same parties over the samecontroversy are brought in courts ofconcurrent jurisdiction, the court whichfirst acquires jurisdiction retainsjurisdiction over the whole controversyto the exclusion or abatement of thesecond suit.’” The Supreme Court notedthat RAS/Sims was first to file in thismatter, and therefore, the Circuit Court

should properly assume jurisdiction overthe claim for all purposes. TheChancellor’s decision was reversed andthe claim remanded with instruction thatthe Chancery Court that the action betransferred to the Circuit Court ofHarrison County.

Experts/Weight of Evidence/Accident Reports

Elizabeth Fleming v. Brandy Floyd,_____So.2d _____, No. 2005-CT-00042-SCT (Miss. November 29, 2007). Panel:En banc, Carlson for the Court; Diazdissents, joined by Graves.

Fleming was exiting her drivewaypreparing to head west on Old SpanishTrail in Ocean Springs, when she was hitby Floyd, who was proceeding eastward.After the accident, the investigatingofficer determined and noted on his reportthat Fleming failed to yield the right ofway. Fleming though secured an expertthat determined that Floyd was speedingat the time of the accident, and that herfailure to notice Floyd upon her exit wasdue to her excessive speed. Fleming suedFloyd for injuries arising out of theaccident. A jury trial resulted in a verdictfor Floyd. The Court of Appealsdetermined that the verdict of the jury wasagainst the overwhelming weight of theevidence and reversed and remanded for anew trial. Floyd petitioned for certiorariwhich was granted by the Court.

On appeal, the Mississippi SupremeCourt noted the position taken by theCourt of Appeals on two of the threeissues that were raised by the parties. Thefirst was the introduction and allowanceof testimony concerning the conclusionsof the investigating officer’s report thatFleming had failed to yield the right ofway. At trial, the parties stipulated to theadmission of the report, but not to theseparate code sheet explaining the detailsnoted on the report. The plaintiff, theCourt found, had “opened the door,” inutilizing other data from the code sheetbased upon a stipulated report through herexpert and, therefore, Floyd was perfectlyentitled to discuss the other conclusions ofthe officer, without putting him on thewitness stand. As such, Fleming waivedany argument that she may have had

concerning the admissibility of theopinions of the officer noted on thereport. The Supreme Court next tooknote of the second argument addressedby the Court of Appeals-that of the trialcourt’s failure to grant a directed verdictfor the plaintiff, Fleming. The Courtobserved that Fleming never asked for adirected verdict, but did seek aperemptory instruction and a JNOV. Asto the entitlement of Fleming to adirected verdict, the Court noted that theevidence in defense of Floyd’s speedindeed was weak, but it was not of thequality that would entitle Fleming to adirected verdict. The Court reviewed thethird component of the point of errorraised by the plaintiff, and commented onby the Court of Appeals, which waswhether the verdict of the jury wasagainst the overwhelming weight of theevidence. The Court of Appeals held thatthe verdict was against the weight of theevidence in that the excessive speed ofFloyd could simply not be ignored and,therefore, the jury gave too much weightto the fact that the investigating officerfound that Fleming failed to yield theright of way. On this point, the Court ofAppeals noted that the defendant had noexpert to dispute the fact that she wasspeeding, and as such, that issue stoodun-rebutted. The Supreme Court heldthat the testimony of an expert can berejected by a jury and reviewed case lawthat suggested that the weight and worthof all witnesses is up to the jury todetermine. They can reject them in wholeor in part, and can accept them in wholeor in part. The Court noted an exceptionto this rule: “...an exception to this rulemay arise in exceedingly rare caseswhere, from the whole circumstances,the testimony is contradictory andunreasonable, and so highly improbablethat the truth of it becomes so extremelydoubtful that it is repulsive to thereasoning of the ordinary mind. In such acase we think it proper to award a newtrial on the facts, and let another juryhave an opportunity to weigh and judgethe testimony at another time, and underdifferent circumstances. Thomas v. State,129 Miss. 332, 92 So. 225, 226 (1922)(quoted in Edwards v. State, 736 So.2d475, 485 (Miss.Ct.App.1999)).” TheCourt held that there was sufficientevidence in the record from the


plaintiff’s own expert that could havebeen utilized by the jury to justify averdict against her, though thetestimony that Floyd was speeding maynot have been adequately responded to.“Certainly, when we consider thetotality of the record, classic jury issueswere created by the conflictingtestimony of the witnesses, and thus itbecame the responsibility of theproperly-instructed jury to determinewhat weight and credibility it wished toassign to the testimony of the variouswitnesses.” The decision of the Court ofAppeals is reversed and the verdictreinstated.

Comment: Justice Diaz takes theposition and argues that the verdict ofthe jury was against the overwhelmingweight of the evidence and it is clearthat Floyd bore at least someresponsibility for the accident. In hisview, the vindication of Floyd in thisaccident “strains credulity” and“sanctions an unconscionable result.”Justice Diaz, as joined by JusticeGraves, would reverse and remand. TheCourt’s decision points out that theadmission of police reports and thesolicitation of testimony upon themshould be done with great care andcaution. As the Court noted, there is a“point of no return,” where it all comesin, good and bad, especially if used byan expert without objection.

Non-Economic Cap of Damages

Estate of Stacey Klaus, et al. v.Vicksburg Healthcare, L.L.C., et al.____So.2d ____, No. 2006-IA-00675-SCT (Miss. November 29, 2007, reh.den. January 31, 2008). Panel: Enbanc, Randolph for the Court; Diazdissents, joined by Graves.

Alta Klaus filed this medicalmalpractice claim on July 18, 2005,against the defendants arising out of thedeath of her daughter Stacey. Thedefendants responded and the plaintiffsfiled a motion for declaratory judgmentasserting that the “non-economic” capof $500,000 under the provisions of§11-1-60, applied singularly to “all”wrongful death beneficiaries. Thedefendants argued that the cap was

inclusive of all beneficiaries and that thestatute provided a limitation of $500,000in non economic damages regardless ofthe number of claimants. The circuitjudge ruled that the cap applied as to allclaimants and that the plaintiffs werelimited to a singular award of $500,000 ifthey recovered at trial. The plaintiffsappealed.

On interlocutory appeal, theMississippi Supreme Court reviewedtheir “de novo” standard of review, andnoted that only in the event of anambiguity of a legislative act, will theyresort to a determination of legislativeintent as a matter of statutoryconstruction. The provisions of §11-1-60(2)(a) were reviewed with the Courtnoting that there was no specific wordingin the statute that limited the economicloss cap to each claim or each claimant.The plaintiffs argued that the provisionsof the Wrongful Death Statute, §11-7-13created an ambiguity when the twostatutes were read together since thestatute created a right of action fordamages by each wrongful deathclaimant. The Court reviewed the case ofMiss Dep’t of Transp. v. Allred, 928 So.2d 152 (Miss. 2006), where the Courtheld that, under the Miss. Tort ClaimsAct, the plaintiffs were limited to therecovery that was provided for by statuteif it arose out of a single cause. As such,the statute would be read in pari materiawith each other to harmonize them;therefore, the provisions of the statutethat cap all non-economic damages toone award of $500,000 appear to be theclear expression of the legislature. “Byenacting Mississippi Code AnnotatedSection 11-1-60(2)(a), the Legislatureexpressly instituted a cap on non-economic damages recoverable by ‘theplaintiff.’ Mississippi Code AnnotatedSection 1-3-33 provides that wordswritten in the singular are to be read inthe plural. In light of Mississippi CodeAnnotated Section 1-3-33 and thisCourt's decision in Allred, the cap onnon-economic damages applies toplaintiff or plaintiffs. Therefore, the capon non-economic damages in MississippiCode Annotated Section 11-1-60(2)(a)applies to all plaintiffs who bring awrongful-death action pursuant toMississippi Code Annotated Section 11-7-13.” Affirmed and remanded.

Comment: Justice Diaz argues thatthe statute clearly applies to eachclaimant and therefore each plaintiff isentitled to a separate, capped award of$500,000 for non economic losses.“[S]uch a construction gives effect tothe Legislature’s intent in enacting –limiting the amount of non-economicdamages awarded in medicalmalpractice cases, because eachbeneficiary will not be allowed torecover more than $500,000 in non-economic damages. This approach doesnot subvert the cap created by theLegislature. Rather, it balances theLegislature’s goal of protecting thehealth care industry with the mandate ofthe wrongful death statute that allwrongful death beneficiaries be fullycompensated for their claims.”Summarily, he states that: “Based on aplain reading of the statute, it is clearthat the Legislature intended to cap theamount of non-economic damages thatcould be recovered by a single plaintiffin a single medical malpractice cause ofaction. However, it is not apparent thatthe Legislature intended to cap the totalamount of non-economic damages thatcould be recovered by multipleplaintiffs in a wrongful death actionpremised on medical malpractice at$500,000.” He observes that: “Theultimate purpose of Section 11-1-60 wasto alleviate the perceived medicalmalpractice liability insurance crisis inMississippi. See id. at 1001-1003,1034-37. Specifically, Section 11-1-60was designed to put an end to excessivedamage awards in medical malpracticecases, which, in turn, would help bringdown the cost of medical malpracticeinsurance in the state.” (Emphasisadded). It is clear that a strata of ourCourt remains cynical to the economicviability and availability of affordablehealth care for the entirety of thecommunity when juxtaposed to theopportunity to pursue virtually limitlesspersonal injury damage awards. Suchan approach virtually assures that oneday, collective health care and thedisparate outcomes that come with it,will be the only option due to the lack ofavailable, vis insurable, health carefacilities and health care givers, inMississippi.


Wrongful Death/JNOV/Separate Damages

River Region Medical Corporation, etal. v. Thomas Patterson ______So.2d______No. 2005-CA-02357-SCT (Miss.November 29, 2007). Panel: En banc,Smith for the Court; Graves dissentsjoined by Diaz.

Jennifer Nettles was admitted toRiver Region for the birth of a child.After undergoing a C-Section, Jenniferdied later that day. Suit was filed on herbehalf by her daughters, later joined byher estranged husband, ThomasPatterson. River Region moved forpartial summary judgment as to theclaims of estate against the hospitalwhich was granted. The only remainingclaim to be tried was that of “loss ofsociety and companionship” which theplaintiffs stipulated was all thatremained. A jury trial resulted in averdict for the plaintiffs in the amount of$1.7 million. After the verdict, thedefendants moved for a JNOV or NewTrial which was denied by the trial court.The defendant argued that the plaintiffs

had not proven their claim of “loss ofsociety and companionship.” RiverRegion appealed. After the appeal, thedaughters of Nettles settled their claimleaving only Patterson to pursue thisappeal.

On appeal, the Mississippi SupremeCourt first reviewed their standard ofreview when they are being asked toreconsider a trial court’s decision to denya request for a JNOV. “Under thisstandard, this Court will consider theevidence in the light most favorable tothe appellee, giving that party the benefitof all favorable inferences that may bereasonably drawn from the evidence. Ifthe facts so considered point sooverwhelmingly in favor of the appellantthat reasonable men could not havearrived at a contrary verdict, we arerequired to reverse and render. On theother hand, if there is substantialevidence in support of the verdict, that is,evidence of such quality and weight thatreasonable and fair minded jurors in theexercise of impartial judgment mighthave reached different conclusions,affirmance is required. The above

standards of review, however, arepredicated on the fact that the trial judgeapplied the correct law.” The Court nextreviewed their prior holding in Long v.McKinney, 897 So.2d 160 (Miss. 2004),noting that there were distinct claims thatcould be made by a claimant that resultfrom the death of an individual. “[T]heestate is entitled to recover funeral costsand final medical expenses. Thebeneficiaries are entitled to recover fortheir respective claims of loss of societyand companionship. The wrongful-deathbeneficiaries are entitled to recover thepresent net cash value of the decedent’scontinued existence.” Id. (Emphasisadded). “Assuming Thomas Patterson wasa legitimate wrongful-death beneficiary,as we must do in giving him all reasonableinferences, he would then be entitled torecover for himself any loss of societyand companionship he might prove, andto share equally in the damages whichmight have been recovered by Ms.Nettles, ‘had death not ensued.’” TheSupreme Court then viewed the quantumof proof that was put on at the time of trialand noted that, “[a]t trial, Plaintiffs put onsix witnesses, who all testified regardingthe Defendant’s liability. No witnessestestified to Plaintiffs’ claims for loss ofsociety and companionship.” As such,there was no proof put on at trial as to thenature and the damages that should havebeen sought by Patterson in theestablishment of the “loss of society andcompanionship” of Nettles. The plaintiffargued that since he was a “wrongfuldeath beneficiary” it was not necessary forhim to prove his individual claim for“society and companionship.” “Pattersonis correct in that his relationship to thedecedent is all that is required for him torecover a share of the damages which thedecedent could have recovered ‘if deathhad not ensued.’ Such damages couldinclude, among others, the decedent’s lostwages and pain and suffering. However,no such claims were presented at trial.And because at trial the jury consideredonly the individual claims of eachPlaintiff, Patterson bore the burden ofproving his own claim of loss of societyand companionship. This he did not do.”Reversed and rendered.

Comment: Justice Graves argues in adissent that a “strict construction” of thewrongful death statute does not require

Patterson to establish his individualclaim of entitlement to “loss of societyand companionship” since the statuterequires that the wrongful death damagesbe distributed equally among thebeneficiaries of the estate and claim.Therefore, he argues, there is no“individual” claim and as such, thedecision of the trial court to deny themotion for JNOV was correct. Theimplicit nature of the holding of theCourt does seem suggest that eachclaimant introduce evidence of theirlosses. In this case, Patterson, as the soleplaintiff on appeal, apparently failed toput on any proof of his individual losses,which may have resulted from his statusas the “estranged” husband of Nettles.Since the daughters “settled” their“individual” claims arising out of thesuit, they alone apparently receivedmoney for the death of their mother to theexclusion of Patterson, though all werewrongful death beneficiaries.

Premises Liability/Failure to Secure

Rosie Thomas, et al. v. The ColumbiaGroup, L.L.C., et al. _____So.2d______, No. 2006-CA-01945-SCT(Miss. November 29, 2007). Panel:Smith, Graves & Randolph; Smith forthe Court.

Wilson Thomas was shot and killedby Cornelius Young at the Shady LaneApartments in Yazoo City. Shady Lanewas controlled by the Columbia Group.One week prior to the shooting, Thomasand Young had gotten into an altercationwhere Thomas was shot but not seriouslyinjured while on the property. Thomaslived with his girlfriend at the apartmentcomplex though he was not shown on thelease as an occupant. Rosie Thomas filedthis claim for wrongful death against TheColumbia Group, arising out of theirfailure to maintain the safety of theirpremises that resulted in the death ofWilson. The defendant filed a motion forsummary judgment which was initiallydenied by the circuit court judge, butlater granted. The plaintiff appealed.

On appeal, the Mississippi SupremeCourt held that the grant of summaryjudgment should only occur in the


absence of a genuine issue of materialfact. The Court reviewed the duty,breach, and proximate cause analysis,beginning with a review of the status ofthe deceased on the property of thedefendant. There was evidence thatsuggested that Thomas was a knownresident to the property manager andnotwithstanding that Thomas was not onthe lease, he was permitted to reside atthe Shady Lane apartments. Shady Laneargued that Thomas was not an invitee,and therefore, the only duty to him wasnot to willfully injure him. To this, theCourt stated that whether he was aninvitee or other form of occupant is aquestion of fact. The Court nextanalyzed the “breach” component andstated that the record demonstrated thatShady Lane was in a high crime area,there had been other shootings at thecomplex over the years, and that theapartment manager in this matter wasaware that an earlier shooting hadoccurred between Thomas and Youngapproximately a week before his death.

Further, there was some testimony that theproperty manager had banned Young fromthe property and that his entrance resultedfrom proceeding through a gated openingto the complex. Therefore, whetherShady Lane breached their duty toThomas was likewise an issue of fact.The proximate cause component of theclaim must be viewed from the standpointof the foreseeability of the violence. TheCourt again featured the fact that Thomasand Young had feuded earlier, and thatshootings were not completelyunpredictable at the complex. “In order toestablish legal causation, or foreseeability,in cases of assault by a third person, onemust show actual or constructiveknowledge of the assailant’s violentnature, or actual or constructiveknowledge that an atmosphere of violenceexists on the premises. Gatewood, 812So.2d at 220. Evidence of an existingatmosphere of violence may include ‘theoverall pattern of criminal activity prior tothe event in question that occurred in thegeneral vicinity of the defendant’s

business premises, as well as thefrequency of criminal activity on thepremises.’ Lyle v. Mladinich, 584 So.2dat 399.” The Court held that there was agenuine issue of fact that as to whetherthere was an atmosphere of violence suchthat the shooting was foreseeable andotherwise not an intervening cause.Reversed and remanded.

Comment: Given the facts of thecase, it appears that for the defendant tohave anticipated this shooting may haverequired much foresight. Nonetheless, itprobably cannot be ignored that Young’spresence on the property was likely acatalyst to violence. In order to preventthe factual scenario encountered by theactors herein, it appeared that theapartment manager had several options,including but not limited to: (1) kickThomas out for not properly being there;(2) prevent the entry of Young on to theproperty; and (3) post a guard at the gate.Practically speaking, this may not havebeen feasible or unreasonable under thecircumstances.


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Calendar of Events

New MembersMarlena P. Pickering

Baker Donelson Bearman Caldwell & Berkowitz, P.C.Jackson, Mississippi

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Bryant Dukes & Blakeslee, P.L.L.C.Gulfport, Mississippi

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Butler Snow O’Mara Stevens & Cannada, P.L.L.C.Jackson, Mississippi

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Hickman Goza & Spragins, P.L.L.C.Oxford, Mississippi

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