Treasure Bay Corporation, et al. v. Ricard


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Docket Number: 2006-IA-00831-SCT
Supreme Court: Opinion Link
Opinion Date: 11-08-2007
Opinion Author: DICKINSON, J.
Holding: Affirmed & Remanded
Additional Case Information: Topic: Wrongful death - Dram Shop Act - Expert opinion - M.R.E. 702 - Additional discovery - M.R.C.P. 56(f)
Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, RANDOLPH AND LAMAR, JJ.
Concurs in Result Only: GRAVES, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - WRONGFUL DEATH
Trial Court: Date of Trial Judgment: 05-10-2006
Appealed from: Jackson County Circuit Court
Judge: Dale Harkey
Disposition: Denied Appellant's Motion for Summary Judgment
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: TREASURE BAY CORPORATION d/b/a TREASURE BAY CASINO AND FIRE DOG, INC. d/b/a ADVENTURES BAR AND GRILL




 WALTER WILLIAM DUKES JE’NELL BLOCHER GUSTAFSON CYNTHIA DIANNE BURNEY DONALD RAFFERTY



  
  • Appellant #1 Brief
    		•
    Appellee: SHEILA RICARD, INDIVIDUALLY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF PHILLIP ROBINSON, DECEASED TOM P. CALHOUN, III JACKYE C. BERTUCCI  
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    Topic: Wrongful death - Dram Shop Act - Expert opinion - M.R.E. 702 - Additional discovery - M.R.C.P. 56(f)
    Summary of the Facts: Sheila Ricard, individually and on behalf of Phillip Robinson’s statutory wrongful death beneficiaries, filed suit against Treasure Bay Corporation d/b/a Treasure Bay Casino and Fire Dog, Inc. d/b/a Adventures Bar and Grill. The defendants filed motions for summary judgment which the court denied. The Supreme Court granted an interlocutory appeal.
    Summary of Opinion Analysis: Ricard’s suit against Treasure Bay and Adventures was brought pursuant to Mississippi’s Dram Shop Act which provides limited immunity for those selling or furnishing intoxicating beverages. When analyzing the facts of this case under the Act, the trial judge properly denied the defendants’ motions for summary judgment. Ricard has presented sufficient evidence to create a genuine issue of material fact as to whether the driver of the car which struck and killed Robinson was served alcohol by Adventures while he was visibly intoxicated. Accordingly, the court’s denial of summary judgment as to Adventures is affirmed. However, Ricard has provided insufficient evidence to create any genuine issues of material facts as to Treasure Bay. Nevertheless, because the plaintiff filed a M.R.C.P. 56(f) motion stating that she cannot obtain needed testimony, the denial of summary judgment as to Treasure Bay also is affirmed. The defendants argue that the trial court improperly relied on Dr. Hayne’s opinion because it was partially based upon a statement by the driver, which, according to the defendants, lacks credibility. The defendants do not doubt the driver made the statement; they simply don’t believe it was truthful. There is no decision from this jurisdiction or any other which holds that, to render an opinion, an expert must accept as true a witness’s entire statement. The truthfulness of a particular factual representation is a matter of credibility. Credibility is a question of fact that must be decided by the jury. No evidence has been presented that the plaintiff’s expert relied upon facts, data, or procedures that are not generally accepted in the scientific community which would prohibit the expert’s opinion under M.R.E. 702. Also, a factual basis exists for Dr. Hayne’s opinion that the driver was visibly intoxicated while at Adventures. If Dr. Hayne’s opinion is to be believed, Adventures served the driver alcohol at a time when he was visibly intoxicated. Dr. Hayne’s methodology was not challenged as improper, unreliable or unacceptable in the medical community in the record. Thus, his testimony was sufficient to present a material issue of triable fact as to whether Adventures is liable. There is, however, no factual basis for Dr. Hayne’s opinion that Treasure Bay served the driver alcohol while he was visibly intoxicated. Because the driver continued to drink after leaving Treasure Bay, Dr. Hayne has no basis for opining as to his level of intoxication at the time he left Treasure Bay. Nothing in the record indicates that the driver was visibly intoxicated when he left Treasure Bay to go to Adventures. Nevertheless, summary judgment as to Treasure Bay is inappropriate because the plaintiff has not been given a fair opportunity to complete discovery. After making several good-faith efforts to obtain testimony from the driver, Ricard filed a motion pursuant to M.R.C.P. 56(f). The trial court did not address the Rule 56(f) motion. The plaintiff demonstrated that she was unable to produce the driver’s affidavit because, on numerous occasions, he claimed that – as to any question other than his name – he would invoke his Fifth Amendment privilege against self-incrimination. The driver’s testimony would allow the court to determine whether issues of fact remain regarding whether the defendants, specifically Treasure Bay, served him alcohol while he was visibly intoxicated. The importance of this testimony, coupled with the diligence demonstrated by the plaintiff in obtaining the testimony, demonstrate a valid, good-faith reason for further discovery. Finally, the request that the driver’s deposition be taken in the presence of the court demonstrates additional good faith on the part of the plaintiff. Thus, the trial court’s denial of summary judgment is affirmed and this case is remanded for further proceedings consistent with this opinion.


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