Tag: Medical Malpractice

Mississippi Court of Appeals Decisions of November 29, 2022

The Mississippi Court of Appeals returned from Thanksgiving break with five opinions. Two cases are medical malpractice cases (one an appeal of summary judgment for lack of expert testimony and the other an appeal of a denied motion to compel arbitration). Two are criminal cases, and the other case is a custody case with cross motions for modification and a motion for contempt.

Davis v. State, 2021-KA-00908-COA (Criminal – Felony)
Affirming conviction of first-degree, deliberate design murder, holding that the trial court did not abuse its discretion in limiting the defense’s cross-examination of a detective to exclude testimony about other investigations and noting that the Confrontation Clause does not open the door to irrelevant testimony on cross-examination.
(10-0)

Mixon v. Berry, 2021-CA-00494-COA (Civil – Medical Malpractice)
Affirming summary judgment in favor of a doctor in a med mal case for lack of medical expert testimony, holding that summary judgment was proper because the plaintiff failed to produce sworn expert testimony to establish the applicable standard of care, breach, and proximate cause, and that the trial court did not err in not granting a 56(f) continuance that was not requested or in denying the motion for reconsideration.
(10-0)

Practice Point – Here is some useful black-letter law from this opinion:

Turnage v. State, 2021-KA-01229-COA (Criminal – Felony)
Affirming conviction of a high school teacher of two counts of sexual battery of a student, holding that there were no issues warranting reversal after reviewing appellate counsel’s Lindsey brief and independently reviewing the record.
(10-0)

Lamy v. Lamy, 2021-CA-00770-COA (Civil – Custody)
Affirming in part and reversing in part the chancery court’s rulings on competing complaints for modification and a motion for contempt, holding that the chancellor did not err in admitting evidence used by the GAL and attached to her report, did not err in classifying one agreed custody order as temporary but did err by interpreting that order as awarding sole physical custody to the mother, and did not err in not finding the mother in contempt.
(5-1-4: Judge McDonald concurred in part and in the result without separate written opinion; Chief Judge Barnes, Judge Westbrooks, and Judge McCarty concurred in part and in dissent in part without separate written opinion; Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Westbrooks, and Judge McCarty, and joined in part by Judge McDonald.)

Note – In response to the motion for contempt, the mother pleaded COVID in her explanation of why she kept the children during the father’s period of custody. The dissent didn’t buy the excuse:

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration in a wrongful death case, holding that the evidence in the record supported the trial court’s finding that the resident lacked the mental capacity to sign the nursing home’s arbitration agreement on the date of admission, that the resident’s daughter did not have authority to sign as his agent, and that the proof was sufficiently clear to affirm the trial court’s denial of the facility’s request for arbitration-related discovery.
(7-3: Judge Carlton dissented, joined by Judge Wilson and Judge Lawrence.)

Other Orders

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of September 20, 2022

The Mississippi Court of Appeals handed down nine opinions today and only one was PCR! There are three criminal cases (one of which reversed a conviction as to one count on a jury instruction issue). There are two MTCA cases (one reversing summary judgment in a med mal case and one reversing a bench trial judgment finding police-protection immunity), two divorce cases, and an involuntary commitment case.

Johnson v. State, 2021-KA-00571-COA (Criminal – Felony)
Affirming and part and reversing in part a conviction for burglary and automobile theft, holding that the conviction of burglary was supported by sufficient evidence and was not against the overwhelming weight of the evidence but reversing the conviction for auto theft because the jury was not properly instructed as to the value of the stolen vehicle. The case was remanded for retrial on the auto theft count.
(10-0)

Brock v. State, 2021-KA-00739-COA (Criminal – Felony)
Affirming conviction of possession of methamphetamine, holding that even if the defendant could prove that her counsel was ineffective she had not proven that but for such professional errors the result would have been different.
(10-0)

Guinn v. Claiborne, 2021-CP-00997-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision denying husband’s amended complaint for divorce, holding that the chancellor did not commit clear error in determining that the husband had failed to prove the elements for a divorce based on adultery or irreconcilable differences.
(10-0)

W.C. v. J.C., 2021-CA-00237-COA (Civil – Other)
Affirming chancellor’s decision setting aside an agreed order of involuntary commitment and dismissing the action after treatment was completed, holding (1) the agreed order was properly dismissed because the motion to set aside was not untimely, (2) the chancery court did not abuse its discretion in determining that the terms of the order had been substantively complied with, (3) evidence from an professional organization monitoring the treatment for professional licensure was admissible, (4) the chancellor did not err in ruling that the petitioner had no standing to object to the motion to set aside the agreed order, and (5) there was no ground for the chancellor to convene a hearing to “protect the interests of the minor children.”
(9-1-0: Judge Wilson concurred in result only without separate written opinion.)

Smith v. State, 2021-CP-00915-COA (Civil – PCR)
Affirming the circuit court’s dismissal of a PCR motion, holding that the plaintiff did not prove an exception to the statute of limitations, that the sentence was not illegal, and that the indictment was not defective.
(8-2: Judge McCarty and Judge Emfinger concurred in part and in the result without separate written opinion.)

German v. State, 2021-KA-00933-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the circuit court’s finding that the defendant was sane when the crime was committed was supported by substantial evidence and the jury’s finding was not against the overwhelming weight of the evidence, and that the defendant waived issues related to the reliability of a medical expert’s testimony by failing to object at trial.
(9-0: Judge Westbrooks did not participate.)

Moss v. Moss, 2021-CA-00452-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision granting the wife divorce on the ground of habitual cruel and inhuman treatment, holding that there was substantial evidence to support that finding (read the facts for yourself if you have doubts), that the subject matter of wife’s expert’s opinions was adequately disclosed and was not even a basis for the chancellor’s decision, and the husband’s claim for separate maintenance was moot since the divorce was affirmed.
(10-0)

St. Andrie v. Singing River Health System, 2021-CA-00042-COA (Civil – Medical Malpractice/MTCA)
Reversing the circuit court’s grant of summary judgment dismissing the plaintiff’s independent negligence claim against the hospital on statute of limitations grounds, holding that the plaintiff’s claim that the hospital failed to protect the plaintiff from the doctor’s negligence arose out of the same conduct, transaction, or occurrence as the doctor’s negligence and therefore the independent negligence claims against the hospital related back to the date of the original complaint that asserted an independent negligence claim against the doctor and a vicarious liability claim against the hospital.
(7-2-0: Judge Greenlee concurred in result only, joined by Judge Emfinger and joined in part by Judge McDonald and Judge McCarty; Judge Lawrence did not participate.)

Phillips v. City of Oxford, 2021-CA-00639-COA (Civil – Personal Injury/MTCA)
Reversing the circuit court’s finding after a bench trial that the City was protected by police-protection immunity after an officer’s vehicle crossed an intersection against a red light and struck the plaintiff’s vehicle while the officer was responding to an emergency, holding that the facts of this case met the “exceptional circumstances” requirement for finding reckless disregard and that the officer acted with conscious indifference to the safety of the public and the certain parts of the police chief’s testimony were not credible.
( 5-4: Judge Lawrence dissented, joined by Judge Wilson, Judge Smith, and Judge Emfinger; Judge Greenlee did not participate.)

NOTE– The Court of Appeals declined the appellant’s invitation to adopt a “reckless disregard per se” rule and maintained the totality-of-the-circumstances analysis.

Other Orders

Ellis v. State, 2020-CP-00770-COA (denying rehearing)
Camphor v. State, 2021-CP-00048-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of September 13, 2022

The Mississippi Court of Appeals handed down five opinions today. These cases include two criminal convictions, medical malpractice, legal malpractice, and civil asset forfeiture.

Rowell v. State, 2021-KA-00793-COA (Criminal – Felony)
Affirming conviction of felony eluding after a high-speed chase, holding that the trial court did not err by refusing to instruct the jury on a lesser-included offense of failure to stop because no rational juror could have found the defendant not guilty of felony eluding but guilty of the lesser-included offense, that that the conviction was supported by sufficient evidence was not against the overwhelming weight of the evidence, and that the argument that testimony from revocation hearing should not have been admitted was procedurally barred.
(9-1-0: Judge Westbrooks concurred in result only without separate written opinion)

NOTE – I love it when an opinion comes right out with a roadmap like this one:

Having that lens through which to read the rest of the opinion saves the reader from spending a few pages feeling like he or she is trying to solve a mystery. I think this applies to brief writing as well and I do not always do this well.

Gardner v. Jackson, 2020-CA-01313-COA (Civil – Medical Malpractice)
Affirming a directed verdict in favor of a doctor in a medical malpractice case, holding that the circuit court did not err in granting the directed verdict based on the plaintiff’s failure to properly establish the national standard of care through expert testimony.
(9-0: Judge Emfinger did not participate)

Sims v. State, 2021-KA-00682-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming evidence and holding that the circuit court did not err in admitting an autopsy photo because there was probative value in showing the cause of death.
(10-0)

McGilberry v. Ross, 2021-CP-01076-COA (Civil – Legal Malpractice)
Affirming summary judgment dismissing a legal malpractice suit, holding that the plaintiff failed to produce any proof that the defendant breached the standard of care or her duty of loyalty and holding that the pro se appellant failed to cite authority or credible evidence to support her remaining claims.
(9-1-0: Judge Wilson concurred in result only without separate written opinion)

$153,340.00 v. State, 2020-CA-01409-COA (Civil – Other)
Affirming judgement of civil asset forfeiture, holding that the evidence supported forfeiture because the respondent provided no evidence that the money belonged to him other than his own testimony which lacked credibility, that the forfeiture was not an “excessive fine,” and that the evidence that the respondent met a drug-courier profile was sufficient to support the forfeiture.
(5-2-2: Judge McCarty concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge McDonald dissented without separate written opinion; Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Emfinger did not participate.)

Other Orders

Prowell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of August 30, 2022

The Mississippi Court of Appeals handed down eight opinions today. These decisions cover the MTCA, tax assessments, waiver of arbitration, a couple of criminal convictions, and a couple of PCR cases.

Belmer v. State, 2021-CP-00398-COA (Civil – Other)
Dismissing the plaintiff’s appeal from a decision of MDOC’s Administrative Remedy Program as moot because the plaintiff was released on parole during the pendency of the appeal and was not longer incarcerated.
(10-0)

Belmer v. State, 2021-CP-00410-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that it was procedurally barred and without merit.
(10-0)

NOTE– Yes, the first two opinions dealt with the same plaintiff. No typo this time.

Simpson County School District v. Wigley, 2021-CA-00009-COA (Civil – Personal Injury)
Reversing the circuit court’s judgment in an MTCA case against a school district alleging that the district failed to provide adequate supervision when children played tag while awaiting bus repairs, holding (1) that the plaintiff failed to provide sufficient evidence that the district proximately caused the injury that occurred during the course of what seems to have been a garden-variety game of tag and (2) that the plaintiff failed to prove that a failure to render aid caused the plaintiff’s damages
(6-3*: Judge Westbrooks concurred in part and dissented in part without separate written opinion; Judge Lawrence concurred in part and dissented in part, joined by Judge Westbrooks; Judge McCarty dissented, joined by Judge Carlton and in party by Judge Westbrooks and Judge Lawrence)

NOTE – The plaintiff argued that the district was liable for negligent supervision by failing to render timely and appropriate aid to the injured child, but the Court of Appeals noted the plaintiff presented no legal authority for such a duty and declined to rule on the issue of whether a duty existed since the causation element was lacking:

Wilson v. Lexington Manor Senior Care, LLC, 2021-CA-00072-COA (Civil – Contract)
Reversing the circuit court’s order compelling arbitration of a medical malpractice claim against a nursing home, holding that the nursing home waived arbitration by substantial invocation of litigation that included filing an answer with 38 defenses that did not include arbitration as a defense and filing a motion to dismiss and pursuing that motion to a ruling, all before filing a motion to compel arbitration.

NOTE – The nursing home argued that it did not find the arbitration agreement until after the motion to dismiss had been briefed and heard. But the Court of Appeals was not persuaded by this argument since the arbitration agreement had been in the nursing home’s possession the entire time.
(8-2-0: Judge Carlton and Judge Emfinger concurred in the result only)

McNair v. State, 2021-KA-01121-COA (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that the evidence was sufficient to support the jury’s verdict and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

Perkins v. State, 2021-KA-00129-COA (Civil – Felony)
Affirming conviction of sexual battery and sentence as a non-violent habitual offender after the defendant’s counsel filed a Lindsey brief, holding that the one-page pro se brief denying the crime and making argument after declining to testify at trial did not reveal any basis for reversal.
(9-0: Judge Emfinger did not participate)

BBM Ventures, LLC v. Frierson, 2021-CA-00248-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s judgment affirming MDOR assessments for sales tax liability and for income tax liabilities, holding that the chancellor (1) did not err in ruling that the taxpayers had adequate notice and failed to appeal the sales tax assessment, (2) did not err in evaluating sales tax assessment that arguably did not account for personal use and donation of some inventory, (3) did not err in finding that the taxpayers failed to produce source documentation for the majority of their business expenses or affirming individual income-tax assessment, and (4) did not err in affirming the fraud penalty assessed in conjunction with one of the income-tax assessments.
(8-0: Judge Carlton and Judge McCarty did not participate)

Luckett v. State, 2021-CP-01248-COA (Civil – PCR)
Affirming the circuit court’s denial of a pro se PCR motion, holding that the plaintiff’s ineffective assistance of counsel and cumulative error claims lacked merit.
(9-0: Judge Emfinger did not participate)

Parker v. Ross, 2020-CA-01055-COA (denying motions for rehearing filed by five parties)

Finley v. PERS, 2021-SA-00089-COA (denying rehearing)

Smith v. Adams County Youth Court, 2021-CP-00196-COA (denying rehearing)

Pickle v. State, 2021-CP-00972-COA (denying rehearing)

Other Orders

Mississippi Supreme Court Decisions of July 21, 2022

The Mississippi Supreme Court handed down five opinions today after its two-week break. This eclectic array of cases covers a refused jury instructions on the right to stand your ground, medical malpractice, an election contest, a real property purchase, and a request by the AG to be heard on a nonexistent request for litigation expenses.

Williams v. State, 2021-KA-00336-SCT (Criminal – Felony/Self Defense)
Reversing manslaughter conviction in a case where the defendant killed her father by stabbing him during an altercation he initiated, holding that the trial court erroneously refused the defendant’s proposed jury instructions related to her right to stand her ground.
(9-0)

NOTE – Instructions that the defendant had a right to defend herself were held insufficient. Here are the two instructions that the trial court erred by refusing:

Taylor v. Premier Women’s Health, PLLC, 2021-CA-00493-SCT (Civil – Medical Malpractice)
Affirming judgment for the defendants following a unanimous jury verdict for the defendants in a med mal case, holding that the trial court did not err in refusing to grant challenges for cause of jurors who were patients of the defendant doctor and did not err in denying the plaintiff’s motion for JNOV that sought a finding that there was a breach of the standard of care.
(8-0: Chief Justice Randolph did not participate.)

Simmons v. Town of Goodman, 2021-EC-00563-SCT (Civil – Election Contest)
Affirming trial court’s decision upholding the municipal election commission’s finding that the plaintiff did not qualify to run for mayor, holding that the plaintiff did not provide sufficient evidence that he was domiciled in Goodman for the amount of time statutorily required to run for mayor.
(9-0)

SRHS Ambulatory Services, Inc. v. Pinehaven Group, LLC, 2020-CA-01355-SCT (Civil – Contract)
Affirming summary judgment in favor of the defendant/seller of real property and its title insurance carrier, holding that the plaintiff’s purchase of real property was valid and enforceable because ratification of the purchase by the county board of supervisors was not required.
(5-1-3: Justice King concurred in result only without separate written opinion; Justice Griffis dissented, joined by Justice Kitchens and Justice Maxwell.)

Garcia v. State, 2021-IA-00632-SCT (Civil – Death Penalty – Post Conviction)
Vacating the trial court’s order granting the Attorney General’s “Motion for Notice of and an Opportunity to Be Heard on Requests for Litigation Expenses,” holding that the AG’s request was not only premature, but inapplicable because the defendant was represented by attorneys working for the Office of Capital Post-Conviction Counsel who are employed by the state and do not receive compensation or expenses for representing the defendant.
(9-0)

Hand Down List

Mississippi Court of Appeals Decisions of May 17, 2022

The Mississippi Court of Appeals handed down ten opinions today. One is a medical malpractice case that ran afoul of RFAs. There are several criminal appeals, a claim against an estate by a judgment-lien holder, several PRC cases including one with competing opinions on Eighth Amendment issues, and more.

Cunningham v. Mississippi Department of Corrections, 2021-CP-00428-COA (Civil – State Boards and Agencies)
Affirming circuit court’s denial of the plaintiff’s motion for judicial review of two ARP requests against MDOC, holding that the plaintiff failed to provide any documents to support his appeal and that, in any event, the plaintiff received sentencing credit for his pretrial detention.
(All judges concurred.)

Pickle v. State, 2021-CP-00972-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motions for writ of mandamus, alternative sentencing, and a new trial or for JNOV regarding his 1978 conviction of capital murder and life imprisonment, holding that the motion was untimely, successive, and meritless.
(All judges concurred.)

Thompson v. State, 2020-KA-01279-COA (Criminal – Felony)
Affirming a conviction of drive-by-shooting that followed a domestic dispute between the defendant, the defendant’s boyfriend, and the defendant’s boyfriend’s ex-wife. The narrative in the opinion is gripping. In short, it was alleged that an Amber alert was issued for the formerly-married couple’s child when the child was with the defendant and her boyfriend (the child’s father). The couple had a physical altercation with the ex-wife at her work place in the midst of which the defendant instructed the ex-wife to “catch me outside.” Later, the ex-wife apparently inadvertently caught the defendant outside while driving and the defendant shot the ex-wife in the arm. A jury convicted the defendant of one count of drive-by-shooting and the court of appeal affirmed, holding that the conviction was not against the overwhelming weight of the evidence, the circuit court did not err in allowing the circuit clerk to testify as an authenticating witness even though she was present throughout the trial where the defendant’s counsel did not object, the circuit court did not err in refusing the defendant’s proposes “mere suspicion” instruction which would have been cumulative, and the defendant’s counsel was not ineffective.
(All judges concurred.)

Unifund CCR Partners v. Estate of Jordan, 2021-CA-00761-COA (Civil – Wills, Trusts, and Estates/Judgment Liens)
Reversing the chancery court’s ruling that claims against the estate were not timely, holding that the judgment liens against the decedent survive the time-bar of probate and were reasonably ascertainable to the executrices of the estate.
(Chief Judge Barnes and Judge Lawrence concurred in part and in the result without separate written opinion. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Westbrooks concurred in part and dissented in part, joined by Judge McDonald.)

McLaughlin v. State, 2020-KA-00360-COA (Criminal – Felony)
Affirming conviction of capital murder, third-degree arson, conspiracy, and possession of a firearm by a felon, holding that the evidence was sufficient for each of the convictions, that the defendants was procedurally barred on appeal from raising an alleged Miranda issue and that there was no plain error on this issue, that the circuit court did not err in admitting a photograph of the victim’s brain sitting on the autopsy table to show the bullet path, and that retroactive misjoinder did not apply.
(All judges concurred.)

PRACTICE POINT – Seeking to exclude gruesome photographs of victims in criminal trials is an uphill climb:

Carter v. Total Foot Care, 2021-CA-00610-COA (Civil – Medical Malpractice/Requests for Admissions)
Affirming summary judgment in favor of the defendants based on the plaintiff’s failure to respond to the defendants’ requests for admissions that were deemed admitted, holding that the trial court did not err in deeming the RFAs as admitted–including an admission that the standard of care was not breached–where the plaintiff did not respond until after the defendants filed their MSJ which was more than five months after the RFAs were served. Additionally, the Court of Appeals held that the plaintiff could not rely on responses served in a related federal court proceeding.
(All judges concurred.)

MUSING– My experience is that RFAs are rarely used effectively. In the wild, they usually look like a cartoonish attempt to trick the other side. Something like a deadly CAPTCHA test. I think the best use of RFAs is to whittle down and actually define the contours of disputed issues. And, frankly, RFAs are a way to “shake” a lawsuit that is not being prosecuted and just needs to be dismissed.

Jolly v. State, 2021-KA-00318-COA (Criminal – Felony)
Affirming conviction of four counts of statutory rape, holding that the circuit court did not err in denying the defendant’s motion to suppress his statement to law enforcement because there was no merit to the defendant’s claims that he lacked capacity to voluntarily waive his rights or that he was coerced into waiving his rights and giving a statement.
(Judge Westbrooks concurred in part and in the result without separate written opinion.)

Hood v. A & A Excavating Contractors, Inc., 2021-CA-00207-COA (Civil – Property Damage/Statute of Limitations/Continuing Tort)
Affirming summary judgment dismissing the plaintiffs’ residential flooding claims against a developer and the operator of a gravel pit based on the statute of limitations, holding that the “discovery rule” did not toll the statute of limitations which began to run upon notice of the injury not the cause of the injury and the “continuing tort doctrine” did not apply where there were no “continual unlawful acts” by the defendants.
(McCarty concurred in part and dissented in part, joined by Judge Westbrooks and Judge Lawrence, and joined in part by Judge McDonald and Judge Smith. Judge McDonald dissented without separate written opinion. Judge Emfinger did not participate.)

NOTE– I though this was a helpful summary and application of the continuing tort doctrine:

Dortch v. State, 2021-CP-00103-COA (Civil – PCR)
Affirming the circuit court’s dismissal of the plaintiff’s PCR motion and motion to vacate judgment and finding no error in the circuit’s revocation of the plaintiff’s PRS.
(All judges concurred.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion related to the plaintiff’s 2011 conviction of felony evasion and sentence to life without parole as a habitual offender (with eight prior felony convictions), holding that the Eighth Amendment claim is barred by the doctrine of res judicata and without merit and that the circuit court did not err in refusing to consider mitigating circumstances surrounding Skinner’s juvenile convictions.
(Judge McCarty concurred in part and dissented in part. Judge McDonald dissented, joined by Chief Judge Barnes and Judge Westbrook, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

NOTE – The majority and the dissenting opinions contain robust discussions of the Eight Amendment analysis.

Other Order

 Tallent v. State, 2020-CP-01077-COA (denying motion for rehearing)

Hand Down List Page

Summaries of the Mississippi Supreme Court opinions of April 7, 2022

The Mississippi Supreme Court handed down five opinions today. I think Weber v. Estate of Hill will be a frequently cited case on the issue of medical expert causation testimony, especially in the medical malpractice context. There is also an insurance coverage decision (where the court granted interlocutory appeal and then affirmed the circuit court), another medical malpractice case dealing with a hospital’s lack of liability for treatment plans of independent physicians, a contempt of youth court case, and a Mississippi Bar disciplinary decision.

Donaldson v. Cotton, 2020–CA-00581-SCT (Civil – Other/Contempt)
Vacating the a youth court judge’s order of contempt against a county prosecutor fining him for past and continuing refusal to draft youth court orders, holding that youth court judges have inherent authority to order a county prosecutor to prepare orders in youth court matters but that the alleged contempt was constructive criminal contempt and thus the attorney’s due process rights were violated. The order was vacated, the case was remanded, and the youth court judge was direct to recuse for further proceedings.
(Justice Coleman dissented, joined by Chief Justice Randolph and Justice Beam.)

Weber v. Estate of Hill, 2020-CA-00293-SCT (Civil – Medical Malpractice/Causation/Experts)
Denying rehearing and and modifying two paragraphs (¶ 37 and ¶ 38) of the original opinion. On direct appeal, the supreme court affirmed the circuit court’s denial of the defendants’ motion for JNOV that argued there was no admissible expert testimony on causation, holding that the testimony of one of the plaintiff’s medical experts provided a basis for a juror to reasonably conclude that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome even though that expert testified that he lacked the expertise necessary to quantify the degree to which the labor and delivery process aggravated the injury. On cross appeal, the supreme court reversed the circuit court’s reduction of the jury’s $2,538,322 award for non-economic damages, holding that this action filed in December 2002 was governed by Mississippi’s wrongful-death statute because the medical-malpractice noneconomic-damages cap was not in place until September 1, 2004.
(Justice Griffis dissented, joined by Justice Coleman and Justice Maxwell. Chief Justice Randolph did not participate.)

NOTE: This was a big win for the plaintiff and it is a must-read case on medical expert causation testimony, especially in the medical malpractice context. I have not read the record, but my understanding from the majority opinion and the dissent is that no expert specifically testified that a timely C-section delivery would have provided the baby with a greater-than-50-percent chance of a substantially better outcome. Instead, the supreme court allowed the jury to “connect the dots” (the “dots” being other pieces of expert testimony) in determining that the plaintiff satisfied that causation standard even though the plaintiff’s obstetrics and maternal-fetal medicine expert testified he was not qualified to connect these dots and give an opinion as to the percentage aggravation would be.

Mississippi Farm Bureau Casualty Insurance Company v. Powell, 2020-IA-00432-SCT (Civil – Insurance/Coverage)
On interlocutory appeal, affirming the circuit court’s denial of the insurance company’s motion for summary judgment seeking a declaratory judgment that it had no duty to provide coverage, no duty to defend/indemnify, and no duty to pay medpay benefits, holding that a fall from scaffolding that was erected on a trailer that was hitched to an insured pickup was an auto accident arising out of the use and ownership of the covered vehicles.
(Justice Maxwell concurred in result only, joined by Justice Chamberlain and Justice Griffis, and joined by Justice Coleman in part.)

St. Dominic-Jackson Memorial Hospital v. Newton, 2020-IA-00494-SCT (Civil – Medical Malpractice)
On interlocutory appeal, reversing the circuit court’s denial of the hospital’s motion for summary judgment, holding that the Mississippi law does not impose a duty on a hospital to require peer review of a treatment plan before allowing a doctor and patient to use its facilities.
(Justice Kitchens dissented, joined by Justice King.)

PRACTICE POINT: This is less-than-ideal feedback to receive from the supreme court…

Other Orders

Howell v. State, 2020-CA-00868-SCT (directing the parties to file supplemental briefs on the following issue: Whether the Court should overrule Rowland v. State, 42 So. 3d 503 (Miss. 2010), and any other case in which, and to the extent that, we have held the fundamental rights exception to the procedural bars may be applied to the three-year statute of limitations codified by the Legislature in the Uniform Post-Conviction Collateral Relief Act)

Bryant v. Bryant, 2020-CT-00883-SCT (granting cert)

Newell v. State, 2020-CT-01137-SCT (denying cert)

Thornhill v. Walker-Hill Environmental, 2020-CT-01181-SCT (granting cert)

The Mississippi Bar v. Malone, 2021-BD-00467-SCT (suspending attorney Robert W. Malone for two years)

Hand Down List