Peer Review of Expert Testimony

The Mississippi Supreme Court decided Memorial Hospital at Gulfport v. White last Thursday located here.  The trial court had returned a Plaintiff verdict which the Defendant attacked on appeal by arguing the expert testimony of the Plaintiff was inadmissible since it was not supported by medical literature.  The following quote is the analysis of that issue which is worth filing away:   

“…under our precedent, medical experts are not required to support their opinions with medical literature.  We did state in Hill v. Mills that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community.”  But we made it clear that we were not creating a requirement that an expert’s opinion be supported by peer-reviewed literature.  Indeed, we stated that we were not retreating from our ruling in Poole, where we held that peer-reviewed literature and publications are not absolutely required, and their absence does not constitute automatic inadmissibility. Here, Memorial did not challenge the opinions of White’s experts as contrary to the scientific community.  And it did not present medical literature that contradicted the opinions of White’s experts.  Rather, this case presents nothing more than a classic example of a  “battle of the experts.”  White presented experts who supported a reasonable probability of a substantially better outcome, whereas Memorial offered expert testimony that supported only a potential chance of a substantially better outcome.  And as we consistently have held, the fact-finder—in this case, the trial judge—determines the winner of a battle of experts.”

Slayer Statute Claims

The Mississippi Supreme Court decided the Estate of Armstrong v. Armstrong yesterday located here.  This was a case of first impression dealing with whether a mentally incompetent person can be disinherited under the Mississippi Slayer Statute when they cause the death while mentally ill.  The Mississippi Supreme Court reversed the trial court and found that killing an individual while mentally ill does not qualify as willful which prevents the person from being disinherited. 

Removal Based on Punitive Damages Claim

A case may be removed to federal court based on complete diversity of citizenship and more than $75,000.00 in controversy.  Does an unspecified amount of damages allow jurisdiction?  If there is a claim for punitive damages, yes.  An unspecified demand for punitive damages alone is sufficient to meet the jurisdictional limit of this Court pursuant to Mississippi law. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Myers v. Guardian Life Ins. Co. of America, Inc., 5 F. Supp. 2d 423, 428-429 (N.D. Miss. 1998); Marcel v. Poole Co., 5 F.3d 81, 84-85 (5th Cir. 1993); Allstate Ins. Co. v. Hilben, 692 F. Supp. 698, 701 (S.D. Miss. 1988); see also, Montgomery v. First Family Fin. Serv. Inc., 239 F. Supp.2d 600,605 (S.D. Miss. 2002) (Mississippi federal courts consistently hold that an unspecified amount claimed as punitive damages under Mississippi law is deemed to satisfy the amount in controversy requirement for federal jurisdiction).

Equity and the Law

It  has  been  said:  “[E]quity  must  follow  the  law.    But  where  the  law  provides  no
remedy,  equity may  do so.” To that  since “equity must follow the  law,” where the law prohibits a remedy, equity may not do so.   This was illustrated in a case the Mississippi Court of Appeals decided on Tuesday which was Mosley v. Triangle Townhouses, LLC located here.  The issue in the case was whether an individual could get a finder fee in the absence of a real estate license.  The Court of Appeals affirmed the trial court in finding that since the plaintiff was not a licensed agent, he had no legal right to a fee and equity could not create a remedy in violation of law. 

Reasonable Cost of Medical Bills

The Mississippi Supreme Court issued the following order on a case last Thursday located here.  The order reversed a circuit court judge's refusal to allow a defendant to depose a hospital regarding their fee schedule to show whether certain charges were reasonable and/or necessary.  This potentially opens Pandora's box on an accident case if a defendant wants to go through the expense.  I would expect there to be a bunch of motions in limine filed by both sides on these type issues.   

Need for Legislative Changes

I attended Debbie Bell's family law seminar on Friday.  One of the issues was dealing with the legalization of same-sex marriage now.   Approximately 483 Mississippi statutes refer to the marriage relationship as between husband and wife.  As a result, many of the statutory rights of a same-sex spouse may not apply as many of the statutes are to be strictly construed.  I am expecting a ton of litigation at some point over the meaning of the statutes and whether strict construction will be applied or a more liberal interpretation. 

Waiver of Objections to Discovery

There is federal authority that provides that failing to object to discovery requests during the thirty (30) days to respond or to request an extension waives any objections.  There is no law dealing with this in Mississippi Courts but most judges take the position that as long as parties agree on a set time frame to respond, not objections are waived.  There is law to the contrary though.  Courts have found objections waived, including those based on attorney-client privilege and the work-product protection, where a party serves no response at all for a lengthy time after a response is due, where the party fails to provide a privilege log, and where the nature of the information requested suggests that an objection would normally be made. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (stating that "a failure to object to discovery requests within the time required constitutes waiver of any objection"); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (finding that untimely service of responses to interrogatories waives objections where no response or objection at all was provided); see also Horace Mann Ins. Co., 238 F.R.D. at 538 (holding an untimely assertion of attorney-client privilege was waived when asserted twenty-two days late, without a privilege log, and where the dispute by its very nature involved communications between battling insurance companies and their lawyers); Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 661-62 (D. Colo. 2000) (finding a claim of privilege waived where the defendant failed to file objections to interrogatories until 71 days after the interrogatories were served); Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994) (deeming waived a work-product objection asserted nearly four months after the document request was served).