Kilhullen v. Kan. City Southern Ry. Co.
| Docket Number: | 2006-CA-01564-COA Linked Case(s): 2006-CA-01564-COA ; 2006-CT-01564-SCT ; 2006-CT-01564-SCT ; 2006-CT-01564-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-01-2008 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Admissibility of affidavits - M.R.E. 701 - M.R.E. 702 - M.R.C.P. 56(c) - Discovery schedule Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-24-2006 Appealed from: SCOTT COUNTY CIRCUIT COURT Judge: Vernon Cotten Disposition: SUMMARY JUDGMENT GRANTED TO KANSAS CITY SOUTHERN RAILWAY COMPANY AND ROBERT W. LAY Case Number: 2001-CV-0332-SC |
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| Note: | Miss SCT reversed and remanded the COA judgment. See SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO54370.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | GIGI KILHULLEN |
BARRY W. GILMER,
REID S. BRUCE |
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| Appellee: | KANSAS CITY SOUTHERN RAILWAY AND ROBERT W. LAY | CHARLES E. ROSS, WILLIAM B. LOVETT |
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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. |
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| Topic: | Wrongful death - Admissibility of affidavits - M.R.E. 701 - M.R.E. 702 - M.R.C.P. 56(c) - Discovery schedule |
| Summary of the Facts: | Gigi Kilhullen sued Kansas City Southern Railway and Robert Lay, alleging that they caused the wrongful death of her husband, Thomas Kilhullen. Following discovery, the circuit court granted summary judgment on behalf of KC Southern. Kilhullen appeals. |
| Summary of Opinion Analysis: | Issue 1: Admissibility of affidavits Kilhullen argues that the affidavit of Jimmy Shelton, whom Kilhullen offered as a lay witness, was admissible as the opinion of a lay witness. Under M.R.E. 701, Shelton’s opinion was not admissible as lay testimony because it was based on scientific, technical, or other specialized knowledge. Essentially, Shelton’s opinion was that of an expert, except that he was not qualified as such. His opinion was based entirely on mathematical formulae and measurements. Presumably, they are the same measurements and formulae that an experienced accident reconstructionist would use to render his conclusions. Shelton, however, has no training or expertise as an accident reconstructionist. Therefore, his affidavit was properly excluded by the court. Kilhullen also argues that the court was in error for finding that the opinion of Jimmy Halfacre, an engineer hired by Kilhullen, was inadmissible. Under M.R.E. 702, a relevant expert who is qualified as an expert by knowledge, skill, experience, training, or education may testify if 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. Halfacre stated unequivocally that he was not qualified to render an opinion as an accident reconstructionist. While he was an engineer, his education was in electrical engineering and the majority of his experience was in conducting home inspections. Nowhere did Halfacre claim any knowledge of accident reconstruction or the methods and formulae normally used therein. Thus, the court did not abuse its discretion when it refused to admit Halfacre’s opinion. Kilhullen argues that the affidavit of Brett Alexander, an accident reconstructionist hired by Kilhullen, should have been considered by the court. Alexander’s affidavit was offered to prove that Halfacre’s conclusions were correct. Essentially, Alexander reevaluated the relevant data and formulae and confirmed that he reached the same conclusions as Halfacre. Kilhullen argues that Alexander’s affidavit was timely filed because the court had delayed a final hearing on the summary judgment motion pending the outcome of the court’s Daubert hearing and therefore, under M.R.C.P. 56©, she had until the day before the final hearing to file affidavits. Although the second hearing addressed the propriety of summary judgment, the only new information to be addressed at the hearing was the admissibility of Kilhullen’s expert witnesses. Any actual facts in support of summary judgment should therefore have been submitted prior to the January 2005 summary judgment hearing. After the January 2005 hearing, the court put a moratorium on any further discovery. Therefore, the court’s decision was not in error. In addition, the court correctly ruled regarding the use of Alexander’s affidavit, as Alexander did not offer any opinion as to Halfacre’s qualifications or expertise. Because Kilhullen’s proposed affidavits were properly rejected by the court, summary judgment was properly entered against Kilhullen. Kilhullen presented no other evidence to raise a genuine issue of material fact. Issue 2: Discovery schedule Kilhullen argues that the court erred in allowing the defendants to conduct discovery while at same time preventing her from doing so. The court put a moratorium on all discovery, except that the defendants were allowed to depose Kilhullen’s expert witnesses whose affidavits had just been submitted. The court did not abuse its discretion in so ordering. It appears that Kilhullen had known about the existence of all of the witnesses that she sought to depose for quite some time, but she had never sought to depose any of them. Under the circumstances, the court did not abuse its discretion in putting a moratorium on discovery. |
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