Decisions – MSSCT – 12/7/17

Christopher Pollan v. Andrew Wartak, M.D., Individually and d/b/a Internal Medical Associates; Clay County Medical Corporation d/b/a North Mississippi Medical Center-West Point; Angie Turnage, C.L.P.N.; William C. Larmour, R.N.; and Ashley Thomas Davis, R.N. –  medical malpractice/survival claims/SOL – In October 2008, fifty-five-year-old Shirley Pollan presented at the NMMC ER complaining of  dizziness, vomiting, and an inability to stand. Blood tests showed that her blood serum levels were too low and in treating the condition, the ER increased her sodium too rapidly.    Once released she suffered from neurological symptoms and was unable to work. She died in January 2011.  At autopsy report issued in July  2011 listed  Shirley”s cause of death as central pontine myelinolysis  following rapid sodium correction. Her son filed a wrongful death suit against the defendants in January 2013.  The lawsuit included wrongful death claims, survival claims, and estate claims.  The defendants filed for summary judgment on the survival claims arguing that the 2-year SOL began to run wither when she was discharged from NMMC or when her doctor first suggested in November 2008 that her condition was related to the rapid increase of sodium. The trial court granted the motion and the MSSC granted Pollan’s interlocutory appeal.  The Court affirms finding that “reasonable minds could not differ as to when Shirley knew of her injury, the cause of the injury, and the relationship between the defendants and the injury.”



Xavier Johnson v. State of Mississippi –  two-theory instruction –  Johnson was convicted in Madison County of  (1) burglary of a dwelling; (2) aggravated assault; and (3) conspiracy to commit credit-card fraud all arising out of the robbery of  an elderly man and his wife in Canton.  The wife found her husband beaten  in  their  yard. He suffered a traumatic brain injury. Johnson was apprehended after his girlfriend was caught using a credit card belonging to the victims.  On appeal Johnson argues that there was insufficient evidence of breaking because he could have obtained access to the purse inside the house without having broken into the house if the male victim had left the door open when he left the house tp pick up the newspaper.  The Court holds that “regardless of whether Johnson entered an open, shut, or partially closed door, sufficient evidence was presented to show a constructive breaking.”  Johnson argues that both his aggravated-assault and burglary convictions were based on circumstantial evidence and, thus. he was entitled to a two-theory jury instruction which would have told the jury  that if the facts were  susceptible of two interpretations, one favorable and the other unfavorable to the defendant, the jury must find the facts in favor of the defendant.  The Court finds no error.  Johnson also argues that his trial counsel was ineffective – an issue the Court refuses to decide on an incomplete record. Johnson also complains of a vague indictment, etc.

John Renner v. Retzer Resources, Inc. and Velencia Hubbard, Individually and in Her Capacity as Manager of McDonald’s –  trip and fall/missing video –  Renner fell in a McDonald’s after he tripped on a high chair. The high chairs were stored in such a way that the legs stuck out into the aisle.  When Renner filed suit two and half years later, McDonald’s claimed it had lost a video of the incident.  The trial court granted summary judgment. The MSSC reverses and remands. finding that  “Renner established sufficient facts, which, if believed, would defeat a motion for summary judgment.”  As for the video, “[t]he facts, as they are available now, indicate only that the IT employee claims no video of the fall exists. Whether the risk management company has or had the video is in dispute. If further discovery indicates that spoliation occurred, the trial court should approve a spoliation jury instruction, if appropriate.”

Maurice Brown v. State of Mississippi –  armed robbery – Brown was convicted in Hinds County of  armed robbery after he broke into the house of 81-year-old Mattie Moore and her grandchildren.  Mattie died before the trial but her granddaughter, a nurse, testified that she had gotten off work early in the morning, fell asleep on the couch, and woke up to find  Moore in the house wielding a shotgun.    Mattie was known in the neighborhood for selling chips and candy out of her home and Brown stole the cigar  box in which she kept money. Brown’s brother Jonathon testified that what really happened was that he had gone to the house to confront one of Moore’s grandsons about something he said. The grandson wasn’t there but Mattie was in the driveway and asked him to help her into the house. While doing so he stole the cigar box and some cigarettes and his brother was standing in the doorway. Neither of them, Jonathon testified, had a gun.  On appeal, Brown argues only that the evidence was not sufficient to support the verdict.


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