Decisions – COA – Sept. 22, 2015

Margaret Byrd v. Kenneth Stubbs, M.D.  –  med mal/superceding cause – Stubbs had been Byrd’s doctor for 15 years. In 2004 she had a diagnostic colonoscopy which showed that she suffered from diverticulitis.  After that she had some troubling symptoms that landed her in the hospital three time sin the nect two montjs.  The second visit was on ___.  The E.R. doctor did not notify Stubbs that his patient was in the hospital which was a breach of the standard of care.  Byrd was released and returned the next day when it was discovered that she was suffering from peritonitis.  Surgery was performed and Byrd was given a colostomy which was reversed in November.   Byrd filed suits against Stubbs, the ER doctor and the hospital.  By the time of trial, the only defendant left was Stubbs who testified that if the ER doctor had called him when Byrd presented at the ER the second time, she might have gotten treated for her peritonitis earlier and had fewer complications.  The jury found for Stubbs.  On appeal, Byrd argues that it was error to give a superceding cause instruction and especially this one which was erroneous. “Byrd claims that the jury should not have been instructed on the issue of superseding cause because both Dr. Stubbs’s actions and Dr. Seki’s actions were proximate causes of her injuries.”   The COA finds that the evidence put on by both sides supported the instruction and affirms.

Glenda Owens v. Carl Kelly –   car wreck/ cross examination regarding traffic ticket given as a result of accident  –  In 2005, Laura Wilburn turned out in front of an eighteen wheeler tractor-trailer that was hauling lumber on Highway 7 between Oxford and Holly Springs. Two of Wilburn’s grandsons, who were in the backseat of her car, suffered serious injuries in the collision. One of the grandsons sued the driver of the 18-wheeler and his employer arguing that he was speeding.   The jury returned a unanimous verdict finding Wilburn one-hundred percent at fault.

On appeal, the plaintiff argues that the trial judge erred by allowing Wilburn to be cross-examined about, and other limited references to, the fact that she was cited for failure to yield and paid a fine rather than contesting the citation. We conclude that Wilburn’s payment of the ticket was proper impeachment of her testimony, in which she generally sought to blame Taylor for the wreck. Therefore, the judge did not abuse his discretion by allowing Wilburn to be cross-examined on the subject. In addition, considered in the context of all the evidence at trial, and given that Wilburn’s payment of the ticket was proper impeachment, any other mention of the ticket during the course of trial was harmless, even assuming that it was error. Accordingly, we affirm.

Jimmy Shinn v. State motor vehicle theft of car worth very little – Shinn was convicted of stealing a 1983 Buick.   On appeal he argues that his trial counsel was ineffective for failing to:  t (1) request a jury instruction on petit larceny, (2) object to certain hearsay testimony, or (3) move to dismiss the indictment on double jeopardy grounds.  He also argue s that his case should be remanded so he can be sentenced for petit larceny since the car was worth very little.  The COA finds that the motor vehicle theft statute does not carry a requirement that the vehicle have any particular value.  As for . most of Shinn’s ineffective assistance claims, he will have to raise them in a pcr petition.

Howard Industries v. Rufus Robbins –  workers comp. – Robbins had worked for Howard Industries since 1993.  In 2005, at the age of 70, he fell at work and injured his right shoulder.  His doctor diagnosed him with a torn rotator cuff and the shoulder was operated on twice.   Robbins worked intermittently and returned to work for good in 2007.   He now makes more than he did before the injury.   The Commission found a 90% industrial lloss and awarded Robbins 180 weeks’ compensation at $304.83  beginning in June 2010.  Howard argues this is wrong because  Robbins can still work.   The COA affirms. “What Howard Industries contests is the Commission’s finding that Robbins’s occupational loss of use was greater than his functional loss. Occupational loss is the same as industrial loss. While functional loss disregards loss of ability to work, industrial loss is ‘the functional or medical disability as it affects the claimant’s ability to perform the duties of employment.’ Id. (citation omitted). With industrial loss, ‘[t]he question . . . is the degree of loss of use of the member for wage earning purposes[.]'”

Though Howard Industries cites two post-Jensen cases that found the worker’s industrial loss did not exceed his or her functional loss, Gaston v. Tyson Foods, Inc., 122 So. 3d 797 (Miss. Ct. App. 2013), and Lovett v. Delta Regional Medical Center, 157 So. 3d 88 (Miss. 2015), those cases do not mandate the same outcome here. Under Jensen, determining industrial loss is a fact-intensive inquiry, which must be made on a case-by-case basis. See Jensen, 828 So. 2d at 747 (¶20). The Commission determined the facts in this case supported a higher industrial loss than functional. Because the Commission supported this finding with substantial evidence, we must affirm.

Hubert Fulton v. State –  Fulton was convicted of possession with intent to distribute methamphetamine. “On appeal, Fulton argues that a narcotics investigator with the Harrison County Sheriff’s Office was improperly allowed to testify as an expert in the field of narcotics investigation and (in a separate pro se brief) that the evidence presented at trial was insufficient to support his conviction. We find that the narcotics investigator’s testimony was permissible and that the evidence was sufficient to support the conviction. We therefore affirm the conviction and sentence..”

Morris Grey v. Mississippi Commission on Environmental Equality  – environmental violations – Gray owns thirteen acres on the east bank of the Pearl River in Rankin County. In  September of 2008, an engineer with MDEQ saw that  seven acres of Gray’s property were undergoing heavy dirt work. No work permits had been issued for this site. Three weeks later,  MDEQ sent Gray a notice-of-violation letter informing him that  it was unlawful to dispose of wastes, including sediment,  that may be discharged into state waters without a storm-water permit.  Grey ignored the warnings. In  November 2010, MDEQ held a hearing at which Grey represented himself.  MDEQ  ended up assessing Gray $12,500 for each of the five days MDEQ observed a violation.  Gray’s appeal to the Rankin County Chancery Court which affirmed. On appeal to the COA, the COA notes that its review is limited and Grey is unable to  show that MDEQ’s finding (1) was not supported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the Commission’s power to make, or (4) violated Gray’s statutory or constitutional rights.

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