Decisions – Miss.S.Ct. – Sept. 3, 2015

Reginald Jackson v. State –  Knife a deadly weapon – Jackson was charged with using a knife to rob a JSU student of his cell phone.  He was convicted and sentenced to 25 years.  On appeal he argues prosecutoriall misconduct in that the prosecution misstated evidence and made improper comments.  During the trial, the prosecutor kept stating that Jackson had a gun and had to correct himself.  The COA affirms. “Given the evidence of guilt, this Court finds that the prosecution’s repeated misstatements of evidence and improper arguments, in the absence of an objection, did not rise to the level of reversible error in this case.” And the question of whether a knife was a deadly weapon was for the jury.

Jennifer McIlwain v. Natchez Community Hospital et almed mal/standard of care – Hunter McIlwain was sick and his dad took him to Natchez Commmunity Hospital on  June 18, 2001.  He  had suffered a subarachnoid hemorrhage previously as a result of a motor vehicle accident.   After Dr. Wheelis conducted a physical examination of Hunter, he made a preliminary diagnosis of “possible new onset of diabetes. Gastroenteritis.” His differential diagnosis was “gastroenteritis, new onset diabetes and dehydration.” vital signs should be checked, at a minimum, every four hours. Hunter was admitted at 2:30 a.m. to a regular floor in the hospital with instructions to check his vitals every 4 hours.  . At 7:35 a.m., Hunter was found nonresponsive and twitching, with a temperature of 103 degrees. Hunter was then moved to the intensive care unit.   Believing that Hunter suffered from sepsis due to a ruptured appendix, Dr. Russ consulted Dr. Keith Smith, who chose to do an exploratory laparotomy and even though nothing was found, Hunter’s appendix was removed.  At that point, Dr. Russ became concerned about meningitis. Before she could order a spinal tap to test for meningitis, Dr. Russ was required to order a CT scan of Hunter’s head to make sure he did not have increased intracranial pressure. The CT scan was ordered at approximately 11:35 a.m. Dr. Russ received the results at approximately 2:45 p.m. at which time it was discovered that  he had a subarachnoid bleed.   Hunter was transferred  to the pediatric intensive care unit at the University of Mississippi Medical Center (UMMC).  Hunter was transferred to UMMC at 4:00 p.m. and arrived at approximately 7:40 p.m. He was pronounced dead at 11:08 a.m. the next morning.

After the jury hung, the court granted JNOVs for Dr Russ and Dr Wheelis.  The Miss.S.Ct. affirms the JNOV for Dr. Russ “because Plaintiff’s expert failed to articulate the standard of care for a minimally competent pediatrician.”  “As to Dr. Wheelis, we find that the Plaintiff offered sufficient evidence of the requisite elements, and the trial court’s grant of the motion for JNOV was improper.”

Reggie Elliott v. El Paso Corp., Tri State Gas et al. –   liability for gas explosion – Joe and Alma Elliott’s house in Holly Springs exploded on April 3, 2008, after natural gas leaked and filled up the house.  One person died and three were injured. The Elliotts filed suit  against Tri-State, El Paso Gas Corporation, Tennessee Gas Pipeline, Holly Springs and Chevron Phillips.  Tri-State supplied the odorant which was manufactured by Chevron Phillips.   El Paso Gas is the parent company of Tennessee Gas Pipeline  who was the distributor of the natural gas purchased by Holly Springs.  Amerigas is the propane supplier to the Elliott home.

The Elliotts blamed the explosion on  “odor fade.”  The gas leaked underground and ultimately migrated into the Elliotts’ basement. As it  traveled through the soil, the liquid odorant that was placed in the gas to give it a “rotten egg” smell (mercaptan) was stripped out the gas.

Defendants alleged that the accident was caused by propane gas (supplied by Amerigas) that was purged from a heater by Joe Elliott.

The trial court awarded summary  judgment (and entered a final judgment) to El Paso/TGP and CP and denied summary judgment to  AmeriGas and Tri-State. The Elliotts appealed the final judgment against them.  Tri-State filed an interlocutory appeal which was granted and the cases were consolidated.

The Court affirms summary judgment for  CPChem and  TGP and reverses the denial of summary judgment for  Tri-State on the grounds that  all of the claims fail as a matter of law.

Mississippi Commission on Judicial Performance v. Joe Dale Walker – The MJPC recommended removal and the payment of costs.  Walker agreed. The Court also agrees.

Katrice Jones v. Safeway Ins. –  automobile insurance –   refusing to extend Lyons to cases wherein the insured made a material misrepresentation in applying for insurance.  “Our analysis in Lyons, which assumed a valid insurance policy had been issued, prohibited the insurance company from excluding statutorily required coverage, but it created no duty to issue a policy. It did no more than address an invalid exclusion within a valid insurance policy.”

Intrepid v. Joseph S. Asa Bennett – Intrepid was leasing two parcels of agricultural land that came to be owned by Bennett.  Each lease had an initial 13 year term with two succeeding five year terms. The initial rent was $81,500 for the T.J. Carter Place and $120,000 for the Craigside Place. The lease allowed the rent to be increased for the five year periods based upon “an increase in land rent customary in the area for similar property.” In January 2009, Bennett demanded what Intrepid considered excessive rent. When Intrepid refused to pay the new amount, Bennett terminated the leases. Intrepid sued and the court granted judgment on the pleadings for Bennett on the grounds that the terms under which the rent could be raised were not sufficiently specific to be enforceable.  The Miss.S.Ct. affirms.

Miss. Bar v. Samuel Jones –  reciprical discipline – “The Tennessee Supreme Court, through its Board of Professional Responsibility, publicly censured Samuel Jones—an attorney licensed in Tennessee and Mississippi—after a Tennessee trial court twice dismissed his client’s divorce action because he failed to act. The Mississippi Bar filed a complaint for reciprocal discipline and requested that Jones be required to pay $210 in costs. Jones has admitted the allegations against him. We impose a public reprimand and charge Jones with the costs of this proceeding.”

The City of Gulfport v. Lyman Utilities – per curiam affirmance

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