Decisions – Miss.S.Ct. – April 17, 2014

Mississippi Valley Silica v. Reeves –  Reeves filed a silicosis lawsuit in 2007 against 32 defendants. He died in 2010 and his wrongful death beneficiary was substituted. At trial, there was a single remaining defendant, Miss. Valley. The jury found economic damages of $1489,464.40 with Valley 15% at fault, Clark Sand at 15% at fault, Reeves with 1% and “others” at 69%. The jury found $1.5 million in punitives against Miss. Valley. “However, the trial court in its final judgment held that the 2002 version of Miss. Code Ann. S 85-5-7 applied to the verdict, and that the 2004 statutory caps on punitive and noneconomic damages did not apply; it thus held Valley liable for 50% of the verdict plus the punitive-damages award, for a total judgment of $874,732.20.”

Reeves claimed to suffer from mixed-dustpneumoconiosis caused by a combination of exposures to asbestos and silica. He had previously filed an asbestos suit and thus to avoid the issue of claim-splitting he stipulated that the jury would be asked to confine its findings to “the silica component of the mixed-dust disease.” Reeves had worked as a brakeman and then a conductor at Illinois Central Railroad. He claimed that the engine he rode on as a brakeman had a braking system that sprayed sand on the tracks to prevent the train from slipping and this is how he inhaled sand. He also claimed to recall that bags of this sand were marked with the names of Clark Sand Co. and of Mississippi Valley Silica Co. He was not diagnosed with silicosis until after his death.

 The issues were as follow: 1) the plaintiff failed to prove that portion of damages due to silica alone; 2)  plaintiff failed to prove causation by silica or by the defendant; 3) failure to prove her failure-to-warn claim; 4) whether plaintiff’s employer and not the defendant was solely liable; 5) whether the trial court erred in awarding punitive damages and attorneys fees; 6) whether the court erred in imposing joint and several liability; 7) whether the court should have capped non economic and punitive damages and 8) whether a remittitur should have been ordered. 

The Miss. S. Ct. reverses and RENDERS finding that Reeves failed to present sufficient evidence to identify Valley’s sand as the proximate cause of Reeves’ injuries as a matter of law. 

Henley v. State –  Henley was found guilty of possession of burglary tools. The Miss.S.Ct. reverses and renders on the grounds there was insufficient evidence to demonstrate that Henley planned to use the pliers,bolt cutters and flashlight as burglary tools even though he was found near a gate of a recycling plant that had been removed. While possession of ordinary tools can be punishable under MCA Sect. 97-17-35,  in most cases the ordinary tools are possessed along with a tool peculiarly designed to aid in the commission of a burglary such as skeleton keys.  

Flowers v. Crown, Cork & Seal, USA – Flowers was diagnosed with a foot injury (ganglion cyst and bone spurring) in 2007 and advised to take six weeks off of work. After 4 weeks, Flowers asked to return to work and he did so even though his doctor advised him not to until Jan. 14, 2008 when he allowed Flowers to return if he wore a brace.  Eventually doctors advised that he not return to work at all.  Flowers filed a petition to controvert.  The AJ found that Flowers was entitled to temporary total disability from Sept. 21, 2007 to Jan. 14, 2008, the date he was cleared to return to work.  But he was not entitled to permanent benefits because he had never been assigned an impairment rating.  The Commission and the Circuit Court affirmed the AJ’s findings.   The Court of APpeals reversed finding that because Flowers had not reached MMI fir his foot he was entitled to receive temporary total disability until MMI was achieved.   On cert, the Miss.S.Ct. agreed with the Court of Appeals but for different reasons. Temporary total disability is available when the employee is completely unable to work.  The date he reaches MMI may coincide with the date he is cleared to work but not always.   If a claimant has not reached MMI but may return to work, then he is not suffering from a loss of wage earning ability and disability benefits would not continue.  

Smith v. State –  The Court had granted cert, in the case. Smith’s wife Jenny had two children from a previous relationship. Smith would take care of the kids while Jenny worked at Subway.   One night Smith called Jenny and told her that Ethan had hit seventeen-month-old  Ally twice with an iron and that he had called the hospital and had been told to keep an eye on the girl. That night Ally was taken to the hospital where she died from blunt foprce trauma to the head. Smith was charged with capital murder in her death.  There were two issues on appeal.  The first had to do with Facebook messages ostensibly exchanged between Smith and Jenny wherein Smith complained about Ally’s incessant crying.  The only authentication of the messages was via Jenny’s testimony.   The Ct. of Appeals found that this was sufficient authentication.  “[Jenny’s] testimony was that these documents are the Facebook messages between her and Smith. Indeed, [Jenny’s] testimony ‘support[s] a finding that the matter in question is what its proponent claims.’”   The Court also held that the messages were not hearsay.  “Two of the three messages were sent by Smith. These messages were Smith’s own statements, and both statements are therefore not hearsay under Mississippi Rule of Evidence 801(d)(2)(A), because they are admissions by a party-opponent.”   While Jenny’s message might be considered hearsay, any error was harmless since she took the stand and testified to the same. 

The second issue involved admission of testimony that the iron found in the couple’s house had no fingerprints on it.  The defense objected on the basis that the officer who testified was not competent to testify to the information.  Then, at closing, over the defense’s objection,  the prosecution argued  that no fingerprints were found on the iron and that, if the defense had wanted to test the iron, they had the opportunity. As it turned out, the officer had not been the one to test the iron and the defense raised this as a confrontation issue on appeal.  The Court held that the confrontation issue was waived since that was not the objection at trial. Nor was it plain error since the iron evidence was inconsequential.

On cert., the Miss.S.Ct. affirmed in part and vacated in part. The Court finds that the facebook messages were not properly authenticated but that the error was harmless.  The fact that a facebook message purports to come from its sender is not sufficient evidence to authenticate the message.  Authentication may be achieved if the sender admits sending it; the sender is seen composing it; business records of the internet service provider show that the communication originated from the purported sender’s personal computer or cell phone at a time when only the purported sender would have access to the device; the communication contains information that only the purported sender could be expected to know, etc. 

Ferguson v. State –  This case was also on cert.  Ferguson was riding with Robinson from Starkville to West Point when he learned that Robinson was going there to pick up marijuana. On the way back as luck would have it they encountered a check point and someone threw the marijuana from the car. Ferguson was found guilty of possession and sentenced to eight years. He raised four issues on appeal: sufficiency of the evidence, allowing the indictment to be amended to charge Ferguson as an habitual after the jury had been selected, 3) the denial of a motion for continuance so that Ferguson could hire counsel to replace his appointed counsel, and 4) ineffective assistance in that his attorney failed to object to the admissibility of the picture of a text message sent to his phone after the arrest, conceding that Ferguson was guilty of possession, and failed to ask the jury to find Ferguson not guilty. The Court of Appeals affirmed.  Ferguson requested cert. on the issues of whether the indictment was timely amended to reflect habitual status and, if so, whether the trial court was correct to deny a continuance.  The Miss.S.Ct. finds that the amendment was untimely and vacates the habitual portion of Ferguson’s sentence. 

 

 

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