I'm looking forward to presenting at
National Business Institute's upcoming course, “Mississippi Litigators'
Discovery Playbook: Depositions, E-Discovery, Subpoenas, and More” on Friday,
June 30, 2023. Check it out at https://www.nbi-sems.com/ProductDetails/96605ER!
Use Promo Code FSPN50A at checkout to get $50 off! Hope to see you
there!
Computer-generated re-creations which graphically depict disputed evidence “ must be based on scientific, identifiable, and objective facts.” Cox v. State, 849 So.2d 1257, 1273–74 (Miss.2003) (emphasis in original) (citing Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000); State v. Farner, 66 S.W.3d 188 (Tenn.2001); Pierce v. State, 718 So.2d 806 (Fla.Dist.Ct.App.1997)). Furthermore, any computer animation that is not based on accurate data or “actual, physical measurements” from the scene of the incident is mere speculation, Cox, 849 So.2d at 1273, for expert opinions are not admissible if “expressed in terms of mere possibilities,” West, 553 So.2d at 20.
The plaintiffs in Spano v. Whole Foods, Inc. contended that a child with severe allergies was injured after eating a mislabeled cupcake. The district court dismissed the claims as preempted by the Federal Food, Drug, and Cosmetic Act, and the Fifth Circuit reversed, stating that “[t]he question is whether Appellants have pled tort claims which have an independent state law basis,” and concluding that “[t]ey have”:
Each of their tort claims is ‘a recognized
state tort claim’ rather than ‘a freestanding federal cause of action based on
violation of the FDA’s regulations.’ Appellants ably lay out in their brief
that each of their allegations is based in state law. In response, Whole Foods
contends that “[e]very one of the … causes of action is specifically based on
federally mandated allergen warnings under the FDCA.” While each of the causes
of action does reference violations of FDA regulations, violations can only be,
and only are, presented as evidence to “prove [Whole Foods’] breach of the
state duty by showing that [Whole Foods] violated the FDA’s [food labeling]
regulations.’ If, as the case develops, it becomes clear that there is no
independent state duty upon which the Spanos can hang a particular claim, that
claim will be preempted. On the pleadings, none appear to contain that
fault.”
No. 22-50593 (April 14, 2023) (citations omitted).
Below is a recent personal injury case of interest. It shows that one should not sign a release without the UM carrier's permission if a UM claim is going to be pursued.
Mississippi Farm Bureau Cas. Ins. Co. v. Peteet, 2021-IA-01420-SCT (Civil – Insurance)
Reversing the denial of a motion to dismiss by a UM carrier, holding that the insured’s execution of a settlement agreement with the at-fault driver unlawfully cut off the UM carrier’s right of subrogation and the UM carrier therefore had no duty to pay the UM claim.In February, a three-member committee of the Mississippi Supreme Court requested public comments on a proposed change to the state’s rules of criminal procedure. It would require that defendants who can’t afford their own attorneys be represented the entire time they’re awaiting indictment.
The Supreme Court approved the rule change Thursday. It takes effect in July.
“This landmark change in Mississippi’s public defense system marks the end of the dead zone and is a huge step toward a criminal legal system that doesn’t unfairly punish people who are unable to afford an attorney,” said Cliff Johnson, who as director of the MacArthur Justice Center’s Mississippi office has long argued for such a change.
I had this random issue come up. In Mississippi, when both parents are deceased, two adult relatives within the third degree under the civil law must be made parties. Mississippi Code 93-17-5(1)(b).
Tennessee has a statute for payment of child support when a parent is killed by a drunk driver. The statute was one of the first in the country.
39-13-219. Restitution in form of child maintenance.
(a) Notwithstanding any law to the contrary, if a defendant is convicted of a violation of §
39-13-213(a)(2) or § 39- 13-218 and the deceased victim of the offense was the parent of a minor
child, then the sentencing court shall order the defendant to pay restitution in the form of child
maintenance to each of the victim's children until each child reaches eighteen (18) years of age
and has graduated from high school, or the class of which the child is a member when the child
reached eighteen (18) years of age has graduated from high school.
(b) The court shall determine an amount that is reasonable and necessary for the maintenance of the
victim's child after considering all relevant factors, including:
(1) The financial needs and resources of the child;
(2) The financial resources and needs of the surviving parent or guardian of the child, including
the state if the child is in the custody of the department of children's services;
(3) The standard of living to which the child is accustomed;
(4) The physical and emotional condition of the child and the child's educational needs;
(5) The child's physical and legal custody arrangements; and
(6) The reasonable work-related child care expenses of the surviving parent or guardian.
(c) The court shall order that child maintenance payments be made to the clerk of court as trustee
for remittance to the child's surviving parent or guardian. The clerk shall remit the payments to
the surviving parent or guardian within ten
(10) working days of receipt by the clerk. The clerk shall deposit all payments no later than the
next working day after receipt.
(d) If a defendant who is ordered to pay child maintenance under this section is incarcerated and
unable to pay the required maintenance, then the defendant must have up to one (1) year after the
release from incarceration to begin payment, including entering a payment plan to address any
arrearage. If a defendant's child maintenance payments are set to terminate but the defendant's
obligation is not paid in full, then the child maintenance payments shall continue until the entire
arrearage is paid.
(e)
(1) If the surviving parent or guardian of the child brings a civil action against the defendant
prior to the sentencing court ordering child maintenance payments as restitution and the surviving
parent or guardian obtains a judgment in the civil suit, then no maintenance shall be ordered under
this section.
(2) If the court orders the defendant to make child maintenance payments as restitution under this
section and the surviving parent or guardian subsequently brings a civil action and obtains a
judgment, then the child maintenance order shall be offset by the amount of the judgment awarded in
the civil action.
