Eckman, et al. v. Moore
| Docket Number: | 2002-CA-00669-SCT Linked Case(s): 2002-CA-00669-SCT ; 2002-CA-00669-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-25-2004 Opinion Author: Carlson, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Wrongful death - Superseding cause instruction - Admission of photographs and day-in-the-life videos - Closing argument - Partial summary judgment - Apportionment Judge(s) Concurring: Pittman, C.J., Smith and Waller, P.JJ., Cobb and Dickinson, JJ. Non Participating Judge(s): Diaz and Graves, JJ. Dissenting Author : Easley, J. Procedural History: Jury Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 03-04-2002 Appealed from: Lee County Circuit Court Judge: Richard Bowen Disposition: The jury returned a verdict in favor of Appellees for $5 million. Case Number: 00-0174(B)L |
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| Note: | The motion for rehearing filed by appellants is granted. The original opinions are withdrawn and these opinions are substituted therefor. Reversed and Remanded. Easley, J., would deny. On the Court's own motion, the following language shall be stricken from the motion for rehearing filed by the appellants: The sentence on page 4, lines 7-9, beginning with "It" and ending with "anticipated;" the clause on page 6, lines 8-10, beginning with "majority's" and ending with "impartiality;" the sentence on page 7, lines 17-18 and page 8, line 1, beginning with "In" and ending with "question;" the clause on page 8, line 19, beginning with "the" and ending with "rights;" the clause on page 11, line 8, beginning with "It" and ending with "law;" the sentence on page 12, line 22 and page 13, line 1, beginning with "Had" and ending with "inescapable;" and the sentence on page 16, lines 12-14, beginning with "In" and ending with "process." The parties submitting the offending language are advised that this Court is not without options for violations of M.R.A.P. 40(c), including appropriate sanctions, which this Court will not hesitate to impose for future violations. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Walter W. Eckman, M.D. and Aurora Spine Centers-Mississippi, Inc. |
ROBERT K. UPCHURCH
DAVID W. UPCHURCH
JOSIAH DENNIS COLEMAN |
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| Appellee: | Linda Michelle Moore, Individually, and for and on Behalf of the Wrongful Death Beneficiaries of Jason Taylor Moore, Deceased | BOBBY L. DALLAS BRAD SESSUMS WALTER C. MORRISON, IV |
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| Topic: | Wrongful death - Superseding cause instruction - Admission of photographs and day-in-the-life videos - Closing argument - Partial summary judgment - Apportionment |
| Summary of the Facts: | The motion for rehearing is granted, and these opinions are substituted for the original opinions. Linda Moore, the wife of Jason Moore, filed suit against Dr. Walter Eckman, the Aurora Spine Centers-Mississippi, Inc., and North Mississippi Medical Center, alleging personal injury to Jason and Michelle in connection to the treatment provided to Jason. Jason died after the complaint was filed, and an amended complaint was filed on behalf of Michelle and the wrongful death beneficiaries of Jason. The jury returned a verdict in favor of Michelle and the wrongful death beneficiaries for $5 million and determined that Dr. Eckman and Aurora were 60% liable and NMMC was 40% liable. Dr. Eckman and Aurora appeal. |
| Summary of Opinion Analysis: | Issue 1: Superseding cause instruction Dr. Eckman argues that the court erred in denying his superseding cause instruction. Although a defendant is entitled to have the jury instructed on his theory of the case, a court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without evidentiary foundation. Two other jury instructions regarding nursing personnel failing to follow the proper standard of care were given. However, they failed to properly instruct the jury as to Dr. Eckman's theory of the case regarding superseding cause. The jury found NMMC to be negligent in a manner which proximately caused or contributed to the injury and death of Taylor Moore and found NMMC to be 40% at fault. Therefore, it is clear that the jury found that the nursing personnel negligently performed their duties, such as conducting proper neurological checks as ordered by Dr. Eckman, thus the superseding cause instruction was within the bounds of the evidence presented at the trial. The jury must be instructed on all material issues presented in evidence. Therefore, the court erred in denying the superseding cause instruction. Issue 2: Photographs/videos Dr. Eckman and Aurora argue that the court erred in admitting photographs and two day-in-the-life videos. Day-in-the-life videos are used in personal injury and medical malpractice cases to demonstrate to the jury the daily activities of the plaintiff, specific limitations that the plaintiff encounters, or the plaintiff's physical treatment or therapy. Courts have generally affirmed the admissibility of day-in-the-life videos where they truly depicted scenes from a "day in the life" of the victim, and the videos allowed the trier of fact to see how the victim's life had been changed by their injuries. However, due to their extreme prejudicial nature, the majority of the photographs and scenes from the videos admitted by the court in this case fall in the same category of those cases reversed and remanded for new trials. The first video depicts still wedding pictures and pictures of Taylor's stepson, who is not a party to this lawsuit, at a graduation ceremony and a ball game. While the wedding pictures may be admissible to show Taylor as he was before his injury, the proper place for these pictures is not in a "day in the life" video of Taylor Moore. The video also depicts Taylor engaged in physical therapy, Taylor being washed, clothed and fed by staff, and Taylor being visited by his wife and newborn son. These are the typical scenes which are found, and which should be found in day-in-the-life videos. The second video again shows Taylor in the rehabilitation center. However, Taylor's mother, who is also not a party to this lawsuit, is heard sobbing over her son "Momma loves you, Momma loves you." This scene is highly prejudicial and should have been excluded since it is both prejudicial and cumulative. In addition to the two day-in-the-life videos, Michelle was also allowed to introduce approximately seventy-five photographs. Among these photographs were photographs depicting Taylor in high school and identifying his high school activities, thirty-six photographs from Taylor and Michelle's wedding, fourteen miscellaneous family pictures, two photographs of Michelle in the hospital prior to giving birth, six photographs from Michelle's baby shower, which leaves only ten photographs of Taylor in the rehabilitation center. Courts must take caution in admitting such a large number of photographs. The thirty-six pictures admitted of the Moores' wedding are cumulative. The high school photographs are too remote in time from the events giving rise to the instant case to have probative value. Although Michelle is required to prove damages, in this case loss of consortium, the photographs of Mrs. Moore at her baby shower and in the hospital prior to giving birth are more prejudicial than probative. Issue 3: Closing argument Dr. Eckman argues that the court erred by allowing improper closing argument statements. The test in determining whether a lawyer has made an improper argument which requires reversal is whether the natural and probable effect of the improper argument creates an unjust prejudice against the opposing party resulting in a decision influenced by the prejudice so created. The comment at issue was that the defendants thought themselves above the law. Arguing that a party thinks he is "above the law" does not fall within the bounds of a case regarding standard of care. The purpose of this argument was not to assist the jurors in evaluating the evidence but to excite their passions and prejudices and, thus, improperly influence them. Issue 4: Partial summary judgment Dr. Eckman argues that the court erred in granting partial summary judgment as to any parties not actual parties to this lawsuit, because the ruling was contrary to section 85-5-7 and case law which allows a defendant to argue liability on the part of all parties at fault whether named in the lawsuit or not. Apportionment is an affirmative defense that must be pled and proven. Here, the court did not err by granting partial summary judgment in Michelle's favor. Dr. Eckman's Answer to Plaintiff's first set of Interrogatories, supplemental answers to plaintiff's interrogatories, and the deposition of Dr. Killeffer, filed as part of a supplemental exhibit, did not indicate any fault attributable to a third party. |
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