E. I. DuPont de Nemours and Co. v. Strong
| Docket Number: | 2006-CA-01005-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-18-2007 Opinion Author: EASLEY, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Striking of expert witnesses - M.R.C.P. 37 - Affidavit testimony - M.R.E. 804(b)(5) - Expert testimony - M.R.E. 702 - M.R.E. 403 - M.R.E. 402 - Frequency, regularity, proximity jury instruction Judge(s) Concurring: SMITH, C.J., WALLER, P.J., AND CARLSON, J.; LAMAR, J. CONCURS IN PART WITHOUT SEPARATE OPINION. Non Participating Judge(s): DICKINSON, J. Dissenting Author : DIAZ, P.J. Dissent Joined By : GRAVES, J. AND JOINED IN PART BY RANDOLPH AND LAMAR, JJ. Concurs in Result Only: LAMAR, J.; RANDOLPH, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 01-17-2006 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: Jury Verdict in favor of Appellee Case Number: 2005-57-CV3 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | E. I. DUPONT DE NEMOURS AND COMPANY |
JOHN G. CORLEW
DEBORAH DEROCHE KUCHLER
ROBERT D. GHOLSON |
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| Appellee: | GLEN STRONG AND CONNIE STRONG | ALBEN N. HOPKINS ALLEN M. STEWART JAMES D. PIEL STEPHANIE BROOKS LESMES | ||
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| Topic: | Personal injury - Striking of expert witnesses - M.R.C.P. 37 - Affidavit testimony - M.R.E. 804(b)(5) - Expert testimony - M.R.E. 702 - M.R.E. 403 - M.R.E. 402 - Frequency, regularity, proximity jury instruction |
| Summary of the Facts: | Glen Strong and his wife, Connie, were among thirty-seven plaintiffs who filed suit in the Circuit Court of Jones County, Mississippi, Second Judicial District, against E.I. DuPont de Nemours Corporation in December 2002. At the same time, a larger group of approximately 2,200 plaintiffs filed a separate complaint against DuPont alleging similar injuries. The only major difference in the two complaints was that the plaintiffs’ names were different. Two Mississippi residents were named as defendants in the complaints, Waste Management of Mississippi and G.B. Boots Smith Corporation, a Laurel trucking company used to fix venue in Jones County. DuPont removed the cases to federal court. The federal court remanded the cases to the trial court. The trial court entered its initial case management order which specified that the plaintiffs and the defendants had to select three preliminary trial plaintiffs each, whose cases would be tried one at a time in six different trials. This was done to allow discovery to proceed. However, the plaintiffs did not have to disclose which plaintiff would be tried first. The plaintiffs designated the Strongs as the plaintiffs to be tried first. The plaintiffs voluntarily dismissed Waste Management as a defendant. DuPont unsuccessfully removed the case to federal court on the grounds of fraudulent joinder. Thereafter, Boots Smith filed for bankruptcy. The plaintiffs sought to sever Boots Smith due to the bankruptcy. DuPont again removed the case to federal court. The federal court found that the federal bankruptcy court had jurisdiction, but remanded the case to the trial court as matter of discretionary abstention. The trial court rescheduled the Strongs’ trial. The jury awarded Strong a $14,000,000 verdict in compensatory damages, and Strong’s wife was awarded $1,500,000 in loss-of-consortium damages. The trial court found sufficient evidence to submit punitive damages to the jury. However, the jury was unable to agree upon punitive damages, and the trial court granted a mistrial as to the punitive damages. DuPont appeals. |
| Summary of Opinion Analysis: | Issue 1: Striking of expert witnesses Finding that DuPont had abused the Mississippi Rules of Civil Procedure, the trial court struck nine of DuPont’s witnesses, including the majority of its designated experts. DuPont argues that this was error. Under M.R.C.P. 37 and the inherent power of the trial court to protect the integrity of its process, the trial court has the broad authority to impose sanctions for abuse-of-discovery violations. While the striking of DuPont’s expert witnesses is an extreme measure, the trial court acted within its discretion in imposing sanctions for abuse-of-discovery violations. Issue 2: Affidavit testimony The trial court admitted the affidavits of Strong’s treating physicians several days after the trial already had began. DuPont argues that the introduction of the affidavits was improper and highly prejudicial to its defense of lack of causation and the affidavits altered the physicians’ prior deposition testimony. The affidavits from the physicians, which altered their deposition testimony, clearly were not furnished to DuPont sufficiently in advance of the trial to provide DuPont with a fair opportunity to prepare to meet the affidavits. Nor did they afford DuPont notice of their intention to offer the statement and the particulars of the affidavits as required by M.R.E. 804(b)(5). The rules of evidence are clear that the use of affidavits in this context is impermissible. The Strongs attempted, several days into trial, to use affidavits to tailor the doctors’ deposition testimony, thereby adversely affecting a substantial right of DuPont to have sufficient advance notice of the information contained in the affidavits before trial. Issue 3: Expert testimony DuPont argues that the court erred in admitting testimony from the plaintiffs’ air modeling expert, who testified that in general, corporations act to intimidate and deceive regulatory agencies. The expert’s testimony was not specific as to Mississippi, as to DuPont’s plant in Mississippi, or as to DuPont. Pursuant to M.R.E. 702, it was improper to allow testimony lumping DuPont, based on its size, into a hypothetical with other large companies that may have a history of intimidating and deceiving regulatory agencies. In addition, under an M.R.E. 403 balancing test, the testimony was more prejudicial to DuPont than probative since it could mislead the jury with the accusations of hypothetical regulatory violations by DuPont. A former maintenance employee of DuPont’s DeLisle plant testified concerning his personal injury suffered in a maintenance-related accident. DuPont argues that a disgruntled former employee had no legitimate purpose in testifying about his alleged injury at DuPont’s DeLisle plant. Allowing this irrelevant line of testimony over DuPont’s repeated contemporaneous objections was error under M.R.E. 402. This former employee also testified that DuPont undermined plant safety and was deceitful both to DuPont’s headquarters and to the Mississippi Department of Environmental Quality about safety matters by preparing for their inspections. DuPont never objected to or cross-examined the employee as to a timeline for the alleged safety violations with regard to visits from DuPont’s headquarters and/or MDEQ. Accordingly, there was no error. Issue 4: Jury instruction DuPont argues that the court erred in refusing to grant its jury instruction regarding the “frequency, regularity, proximity" standard adopted in Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005). Because this standard was adopted only in asbestos litigation, the trial court did not abuse its discretion in denying the proposed jury instruction. |
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