Walker v. Gann, et al.
| Docket Number: | 2005-CA-01747-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-01-2007 Opinion Author: IRVING, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Personal injury - Jury instruction - Comment on evidence - Expert witness - M.R.E. 702 - Additur Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 06-04-2005 Appealed from: YALOBUSHA COUNTY CIRCUIT COURT Judge: Andrew C. Baker Disposition: JURY VERDICT IN FAVOR OF AMY WALKER IN THE AMOUNT OF $14,000, ASSESSING PLAINTIFF’S FAULT AT FORTY PERCENT RESULTING IN AN AWARD OF $8,400. Case Number: CV-99-0023-B-Y1 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | AMY WALKER |
JAMES H. WALKER |
||
| Appellee: | BOBBY GANN AND BENCHMADE, INC., A MISSISSIPPI CORPORATION | B. LEON JOHNSON WILTON V. BYARS ELIZABETH ROSS HADLEY |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Personal injury - Jury instruction - Comment on evidence - Expert witness - M.R.E. 702 - Additur |
| Summary of the Facts: | Amy Walker filed a personal injury action against Bobby Gann and Benchmade, Inc. The jury found that Gann was liable, and that Walker’s damages totaled $14,000. The jury also found that Walker was forty percent at fault for the accident, and the court therefore reduced her final award to $8,400. Walker appeals. |
| Summary of Opinion Analysis: | Issue 1: Jury instruction Walker argues that the court erred in refusing to grant her proposed jury instruction that the defendant was negligent as a matter of law in failing to keep a proper lookout. The general rule is that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him, he is conclusively bound by his own testimony, and cannot successfully complain if the court directs a verdict against him. The issue of whether Gann was negligent was contested. Gann’s unequivocal testimony was that he had, in fact, maintained a proper lookout by checking his mirrors before attempting to pass the truck in front of him. No evidence was offered to indicate that it was impossible for Gann to keep a proper lookout. Therefore, an instruction in this case that informed the jury that Gann was negligent as a matter of law would have been improper. Issue 2: Comment on evidence Walker argues that the court improperly commented on the evidence while giving its instructions to the jury. As proof, Walker points to the fact that the jury came to the same division of fault as the court gave in its example, that is sixty-forty. No objection was made by Walker when the judge gave the jury the sixty-forty percent example. Taken in context, it is clear that the example given to the jury was simply to aid their understanding of what would happen when they rendered their verdict, and how the form of their verdict should look. The statement, at best, constitutes harmless error that is procedurally barred in the absence of a contemporaneous objection. In addition, nothing in the judge’s explanation indicated anything about how the judge felt that the jury should rule, nor was the judge’s comment tantamount to commenting on evidence that had been presented. Issue 3: Expert witness Walker argues that the court erred in allowing the testimony of the defendants’ expert accident reconstructionist, because the defendants committed a discovery violation in not giving the grounds for the expert’s opinions. The designation clearly indicated that the expert would testify that “the sole cause of the accident was Amy Walker’s following too closely and failing to keep her vehicle under control by not braking and/or steering in such a manner to maintain control of her vehicle.” It follows reasonably from this summary that the expert might testify about the speeds, distances, and times involved in the accident. Furthermore, the testimony objected to was clearly in response to opinions given by Walker’s expert during his testimony. Walker also argues that the designation was insufficient to support the expert’s trial testimony because the expert testified that part of the cause of the accident was Walker’s failure to maintain a proper lookout. However, some of this testimony dealing with the issue of whether Walker maintained a proper lookout was also elicited as a result of testimony by Walker’s expert and other witnesses as to what happened. Walker also argues that the expert’s testimony lacked a reliable basis and should have been excluded. M.R.E. 702 allows expert testimony, where qualified and where the testimony will be of aid to the jury, as long as the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. The expert stated that he was basing his testimony and opinions on multiple pieces of evidence, including the layout of the accident scene, Walker’s testimony, Anthony Harbour’s testimony, Gann’s testimony, and the opinions and findings of the officer who investigated the scene. Hannah’s testimony was based on sufficient facts and data. The expert testified regarding his extensive training and experience in investigating accidents and their causes. Hannah explained how scientific principles supported his findings. Nothing indicates that those principles and methods were not applied reliably to the facts of the present case. The expert’s testimony was clearly relevant, and there was ample evidence that his testimony was reliable. Issue 4: Additur Walker argues that the court erred in refusing to grant an additur to supplement the jury’s finding of damages. Walker points out that she submitted an itemization of her medical expenses, totaling $43,690.40, the admission of which was uncontested by the defendants. Walker did not conclusively prove that the bills in question were incurred as a result of her injury. It is that very causation that was contested by the defendants and their evidence. Furthermore, even if Walker had proven that the bills were incurred as a result of her injury, the bills act only as prima facie evidence. Multiple expert witnesses offered on behalf of the defense contested both Walker’s physical and mental injuries. Furthermore, Walker’s own experts indicated that their diagnosis of Walker was dependent on the truthfulness of their discussions with her. There was ample evidence that many of the injuries claimed by Walker were either non-existent or were exaggerated. The jury’s award of damages in this case does not shock the conscience, nor does it indicate bias, passion and prejudice on the part of the jury. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
