Decisions – Miss.S.Ct. – July 30, 2015

Illinois Central R.R. v. Luther McLain – sanctions – Luther McLain worked doing welding for Illinois Central.  In 2004 he filed suit under FELA alleging he had suffered back injuries as a result of his work,  A Hinds County jury awarded him $150,000 and the railroad has appealed. McLain was sanctioned for $10,500 for perjury. McLain’s complaint alleged injury as a result of repetitive motion over time.  At trial,  his story changed to his having been injured when he tripped over trackside debris  sometime in the 1970s (contradicting his deposition testimony).  On cross examination, McLain admitted calling one of his witnesses, Cecil Coker, who worked with McLain at the railroad and later at Right of Way Consulting, and asked him to not mention that McLain was lifting 40 pound objects when working at Right of Way. Illinois Central raises twelve issues starting off with the argument that McLain’s case should have been dismissed because of his perjury and including a SOL argument, jury instruction issues, etc. The Miss.S.Ct. reverses. “Given the severity of committing perjury and solicitation and the cumulative effect of the violations taken as a whole, we reverse the judgment against Illinois Central, and we render judgment here in favor of Illinois Central.”

Inn by the Sea Homeowners Assoc. v. Seeinn, LLC et al.  –   admissibility of expert opinions in construction suit –  After Katrina,  the Inn by the Sea Condos were rebuilt and a certificate of occupancy was issued  in 2009.  The Homeowners claim that within the year, they began to see defects in the construction and they filed suit.  Plaintiffs hired Michael Bailey of Kyle Associates as its expert structural engineer.   Bailey estimated costs to correct engineering design defects to be $1,830,000. Prior to trial, Bailey disappeared.  They hired a new expert, Ashton Avegno, who agreed with Bailey’s report but was unwilling to provide exact cost estimates because he was “not a qualified estimator or contractor and therefore cannot be liable for the accuracy of these numbers. If more accurate numbers are needed then a licensed contractor or cost estimator should be engaged to provide them.”  The court ended up excluding Avegno under MRE 702. This left the plaintiiffs with only Alfred Hayes of as their  expert architect.  “Hayes identified twenty-three design and construction defects which he estimated would cost $1,322,000 to repair. He subsequently updated his report in August 2012 and revised his repair estimate to $2,689,000 for the twenty-three identified defects.” The court did not exclude Hayes’ testimony but ordered the plaintiffs to supplement his report within two weeks.  Hayes provided an itemization for one of the 23 defects.  The defendants again moved to strike Hayes’ opinions and for summary judgment. The trial court granted both.  On appeal, the Miss.S.Ct. affirms.

Generally speaking, the annually published RS Means Construction Cost manual is a reliable industry source of data and has been used with approval in cases involving expert testimony on damages. See Traco Steel Erectors, Inc. v.Comtrol, Inc., 222 P.3d 1164 (Utah 2009); Hale v. Big H Constr., Inc., 288 P.3d 1046 (Utah Ct. App. 2012). But merely disclosing that a five-year-old RS Means manual is the general basis for the conclusory estimates on twenty-two of twenty-three items of alleged structural damages amounting to several million dollars does not provide a sufficient disclosure of data for a trier of fact to determine that the estimates have been calculated with reasonable accuracy orf or a defendant to meet the evidence.5 As it is, the testimony is unreliable because it fails to disclose the basis of the expert opinion.

In the Matter of the Estate of Joan Armstrong slayer statute –  John Armstrong, a severely mentally ill man, killed his eighty-year-old mother Joan Armstrong.  The Circuit Court of Jackson County determined that John was not competent to stand trial for the murder of Joan, and John was committed to the state hospital at Whitfield, where he remains. In the Estate case, his four siblings asked that the provision for John in their mother’s will be set aside under the slayer statute (prohibiting a murdered from benefiting from inheriting from his victim).   The chancellor granted their motion, and John, through his court-appointed guardian ad litem, appeals. “Finding that a hearing to determine John’s mental status at the time of the murder is necessary prior to granting the motion, we reverse and remand for a hearing consistent with this opinion. ”

The slayer statute, MCA Sect. 91-5-33 prohibits any person who  “shall wilfully cause or procure the death of another in any manner” from inheriting.  The key is the word “wilfully”

It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.

In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks 12 the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.

Memorial Hospital at Gulfport v. Barry G. White expert testimony in med mal – On August 8 2009, White showed up at the Hancock Medical Center’s ER complaining of slurred speech and tingling in his extremities.  A CT scan was negative and White was released.  He came again the next day and told nurses he thought he was having a stroke.  He was diagnosed with hypertension, given a prescription, and released.  He came again the next day and reported he had fallen an hour earlier.   He was transported to Memorial Hospital.  A CT scan was again negative but an MRI done the next day showed he had had a stroke.  White settled with Hancock Medical Center leaving Memorial as a defendnat.  At trial, White’s expert testified that had he been admitted as an inpatient at Memorial on August 9 he would have had more than a 50% chance of substantial improvement.  The circuit judge found for White.  On appeal, Memorial argues that White’s experts did not have medical literature to support their opinions.  The Miss.S.Ct. affirms.

Here, Memorial did not challenge the opinions of White’s experts as contrary to the scientific community. And it did not present medical literature that contradicted the opinions of White’s experts. Rather, this case presents nothing more than a classic example of a “battle of the experts.” White presented experts who supported a reasonable probability of a substantially better outcome, whereas Memorial offered expert testimony that supported only a potential chance of a substantially better outcome. And as we consistently have held, the fact-finder—in this case, the trial judge—determines the winner of a battle of experts.

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