Termination of Parental Rights

Termination of parental rights in Mississippi just became a lot harder.  Larry Primeax wrote an interesting blog post on the matter yesterday located here.  The article goes through the Chasm v. Bright case decided by the Mississippi Supreme Court a few weeks ago.  He makes about the same observations I did when I first read the opinion which is that termination of parental rights is almost impossible now if the parent has any involvement with the child. 

Abuse and Denial of Visitation

Yesterday, I discussed the Mississippi Court of Appeals opinion from Tuesday Strait v.Lorenz.   The opinion is located here.  There was one other interesting issue in the opinion.  If you believe abuse is going on, do you deny visitation?  In that case, the father had gotten an order of protection in another state but never applied for assistance in Mississippi.   The father was ultimately held in contempt for this.  The best course of action in these situations is to get court assistance immediately along with getting DHS involved if there is genuine proof of child abuse.  If you immediately seek assistance from the court with proper jurisdiction, the chances of a contempt finding go down dramatically. 

Visitation Interference as Grounds to Modify Custody

Yesterday, the Mississippi Court of Appeals decided Strait v.Lorenz.   The opinion is located here.  The issue in the case dealt with when extreme visitation interference justifies modifying custody.  There was expert testimony that the child was adversely affected by unsubstantiated abuse allegations along with the Father's interference and outright denial of visitation.  The Court of Appeals found that the trial court properly modified custody.  Couple of points to look at.  To me, if you are making this claim there needs to be an expert witness involved.  The best bet in this situation may be to get a court-appointed expert.  Be aware, insurance will normally not cover this.  The other item is that a number of the Albright factors were found to be neural or favoring the mother because of the abuse allegations which were unfounded.  This along with the cases cited in the opinion to me stand for the proposition that equity can negate Albright factors where a parent is clearly favored.  Also, you may want to look at continuity of care on this case.  I have been noticing a trend that the Appellate courts are getting more receptive to the argument that continuity of care consists more of what you do for a child as opposed to just having them more of the time. 

Discovery Dispute Round Two

Yesterday I talked about a discovery dispute in the Mississippi Rules of Civil Procedure.  This is a kind of part two of that.  Rule 26 also provides that:

(A) (i)  A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Now, that can seem pretty straight forward.  However, there are two views on it.  Defense attorneys often take the position that the only way to conduct discovery on an expert is through interrogatories without leave of court.  Plaintiff attorneys like myself take the position that you can use subpoenas and other means to obtain discovery of an expert and that the rule only applies to their opinions in the case.  To me, the defense position in this is just wrong.  The best way I have found to get around the problem is to ask any information you need on bias and such in the interrogatory.  If it is not provided in the interrogatory, file a motion to allow other means to get the information.  I don't think it is necessary but it completely kills any argument the defendant has.  Also, judges hate dealing with discovery disputes. 

Disclosure Dispute in the Rules

The Mississippi Rules of Civil Procedure has an interesting issue concerning disclosure of witnesses.  Rule 26(b)(1) provides as follows: 

"(1) In General.  Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party.  The discovery may include the existence, description, nature, custody, condition and location of any books, documents, electronic or magnetic data, or other tangible things; and the identity and location of persons (i) having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial.  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears  reasonably calculated to lead to the discovery of admissible evidence."
On the above, some attorneys take the position that the Rules only require the disclosure of names and contact information of witnesses.  Other attorneys, myself included, take the position that you can require the substance of their testimony to be produced also.  The purpose of the Rules is to prevent trial by ambush.  I know several judges who have granted motions to compel on the substance of the testimony of witnesses if it was specifically asked for in discovery. The case that addresses this issue is McKnight v. Jenkins located here.  The Court of Appeals found that the failure fully identify the substance of testimony in discovery was a proper basis to exclude the witness testimony at trial.  I was involved in the case post-trial handling the appeal.  Both arguments were presented and the Court of Appeals went with disclosure being required. 

Difficulty in Finding Expert Witnesses

Both Plaintiff and Defendant often have a hard time finding expert witnesses for a medical malpractice case.  In Tennessee, the Health Care Liability Act requires that health care professionals testifying as experts, in addition to other requirements, be licensed to practice in Tennessee or a bordering state. Tenn. Code Ann. § 29-26-115.

Recently, a Defendant (which is rare) had their expert struck for failure to follow the above.  In Gilbert v. Wessels, No. E2013-00255-SC-R11-CV (Tenn. Dec. 18, 2014), plaintiff filed a health care liability action against an ophthalmologist who had performed YAG laser surgery on him. Less than a month before trial, the defendant doctor filed a motion to waive the contiguous state requirement. Defendant sought to have a doctor from Florida testify who was alleged to be one of the three doctors in the country with the most experience with this procedure. Defendant supported his motion with an affidavit saying that defense counsel had spent 35 hours attempting to identify an expert in Tennessee or a contiguous state, an affidavit from a Tennessee ophthalmologist stating that testimony should be provided by someone who had performed the procedure, and a portion of plaintiff’s expert’s deposition acknowledging that the Florida doctor was one of the most experienced in the county at the relevant procedure.

The Plaintiff opposed defendant’s motion, and the trial court declined to waive the contiguous state requirement, finding that defendant “had not established that appropriate witnesses would otherwise be unavailable.”  Ultimately the Tennessee Supreme Court found this was proper.  This shows how much discretion the trial court has over expert witness testimony. 

New Year

Happy New Year's to everyone.  It is a good time to go through and update computers.  I recommend Norton Internet Security, Malwarebytes, and a round of Combofix to clean up everything.