Decisions – Miss.S.Ct. Oct. 29, 2015

James K. Basil v. Roger Browning, Union County Election Commissionresidency requirement for County Superintendent election – – The Union County Election Commission found that  Roger Browning did not meet the residency requirements to run for Union County Superintendent of Education.  While Browning lives in Union County, he lives in New Albany which has a separate school district.  The Circuit Court overturned the Commission’s decision and issued an injunction requiring Browning’s name to be placed on the ballot for the general election.  The Democratic nominee, James K. Basil, (who is also the  incumbent) appealed. The Miss.S.Ct. reverses.  M.C.A. Sect. 37-5-71 provides the residency requirements for candidates for the position of county superintendent of education in specific counties but does not include Union County.  Browning is a resident of New Albany which is located in Union County.  “However, Union County and the Union County School District are not one and the same. The Union County Superintendent of Education serves as the director of all schools within the Union County School District which are outside the New Albany Municipal Separate School District.”  “Browning, a resident of the New Albany Municipal Separate School District, did not present any evidence to the circuit court indicating that he is a qualified elector of the Union County School District, the “county district [he] seek[s] to serve..”  “ For counties not identified in Section 37-5-71(2) of the Mississippi Code, qualified electors of a municipal separate school district or special municipal separate school district are not eligible to run for the office of county superintendent of education.” 

In the matter of the Mississippi Medicaid Pharmaceutical Average Wholesale Pricing Litigation: Sandoz v. State of Mississippi –  wholesale drug pricing –  The State of Mississippi sued Sandoz over the price of generic drugs manufactured and sold wholesale  by Sandoz to Mississippi pharmacies.  The State contends that the Mississippi Division of Medicaid was defrauded when it used Sandoz’ published “Average Wholesale Prices”  when calculating the amount it reimbursed pharmacies for drugs they dispensed to Medicaid patients. The State argued that the AWP was not merely a suggested or reference price, but instead meant the “average of wholesale prices that a wholesaler received from the sale of Sandoz drugs to pharmacies” and,  thus,  Sandoz committed fraud because it knew that its AWPs were greater than the prices pharmacies actually paid causing the State to overpay Mississippi pharmacies by $23 million.

The chancellor found against Sandoz and awarded  $23,661,618, –  the amount MS Medicaid overpaid due to Sandoz’s actions. The court also awarded the State $2,699,000 in civil penalties based on the Consumer Protection Act. The court imposed $3,750,000 in punitive damages for Sandoz’s willful and fraudulent misconduct. The court ruled against the State on whether Sandoz violated Mississippi’s Medicaid Fraud Control Act, and it denied the State’s post-trial motion for attorney’s fees, prejudgment interest, and other relief.  The Miss.S.Ct. affirms.

Madra Lyas v.  Forrest General and Pine GroveSOL//discovery rule –  In January 2003, Christopher Lyas died while receiving treatment at Pine Grove Behavioral Health Center which is  a subsidiary of Forrest General Hospital.   His widow was given a provisional Certificate of Death which listed the immediate cause of death as “pending” and a provisional autopsy report which listed the cause and manner of Christopher’s death as “pending toxicology,” but contained pathological diagnoses of “Hypertensive Heart Disease” and “Morbid Obesity.”  A hospital employee told Ms. Lyas that  Christopher probably had died of a heart attack. Seven years later, after meeting in person with the Forrest County Coroner, Madra was given Christopher’s final Certificate of Death, which professed “[c]hanges consistent with meprobamate and carisoprodol overdose” as the immediate cause of Christopher’s death. She filed suit against Pine Grove and Forrest General Hospital.  The circuit court dismissed it based on the SOL.  Ms. Lyas appealed and the Mississippi  Supreme Court reverses. “Because Madra has produced evidence of her reasonable diligence during the statutory period, a genuine issue of material fact exists on the issue of whether the statute of limitations was tolled. We therefore reverse the circuit court’s grant of summary judgment in favor of Forrest General and remand this case for a trial on the merits.”

Correy Dartez v. State –  Ineffective assistance – Dartez and  Victoria were both suffering from bipolar disorder and being treated at a nursing home when they met.  Victoria also had Downs Syndrome.  They married.  Dartez was worried about his ability to provide for the couple and attempted suicide.  Sometime later that month, after having been released from the hospital, Dartez smothered Victoria.  He then called 911 and stated he had just killed his wife. When officers arrived, Dartez was holding a knife and asked the officers to shoot him.  They tazed him instead.  Dartez was interrogated and he told law enforcement that  Victoria had been suffering ever since they got married and he was worried he could not afford her medications.  Dartez was charged with murder and, after a competency hearing was had, he was convicted.  “After the competency hearing, the trial court and both parties confirmed that no insanity defense was raised at trial. The trial court reminded Dartez’s attorney that if an insanity defense was raised, Dr. Smallwood’s full report might have to be produced.”   On appeal, Dartez argues that his attorneys were ineffective in failing to challenge his confession and in failing to mount an insanity defense.  The Miss.S.Ct. affirms.  “Whether Dartez’s trial counsel should have raised an insanity defense and whether trial counsel should have challenged Dartez’s confession involves facts not fully apparent from the record before us. Thus, we are unable adequately and properly to address Dartez’s ineffective-assistance-of-counsel claim on direct appeal.”

Ira Donnell Bowser v. State –  murder vs manslaughter – When Shabree Page’s car was found abandoned, her niece went to the apartment Shabree shared with her boyfriend Ira Bowser and found Shabree laying in the foyer with 29 stab wounds.  Bowser confessed to having killed her. Bowser was indicted for deliberate design murder.   The issue at trial was whether Page’s death was the result of deliberate design murder, depraved heart murder, heat of passion manslaughter, or self defense.   The jury found him guilty of deliberate design murder. On appeal he raises weight and sufficiency of the evidence.  The Miss.S.Ct. affirms.

Marshall Graves v. State –  sexual battery – ” Marshall Graves was convicted of fondling (two counts) and sexual battery (one count) and was sentenced to terms of fifteen years for each count of fondling and life as to one count of sexual battery, all to be served concurrently. Graves’s appellate counsel filed a brief in compliance with Lindsey v. State, 939 So. 2d 743 (Miss. 2005), certifying to this Court that the record presented no arguable issues for appeal. Graves has filed a pro se brief, asserting numerous errors.”

“After a thorough review of Graves’s pro se brief and the record, this Court finds that Graves’s appeal presents no arguable issues, and no supplemental briefing is necessary.”

2 thoughts on “Decisions – Miss.S.Ct. Oct. 29, 2015

  1. Pingback: Miss. Supreme Court Affirms $30 Million Bench Verdict | Mississippi Litigation Review & Commentary

  2. Pingback: Miss. Supreme Court Affirms $30 Million Bench Verdict | Mississippi Litigation Review & Commentary

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