Deviney Construction Co. v. Marble
| Docket Number: | 2009-CA-01166-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-12-2011 Opinion Author: Lamar, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Personal injury - Burden of production - Presentation of witnesses - M.R.E. 611(a) Judge(s) Concurring: Carlson and Dickinson, P.JJ., Randolph, Kitchens, Chandler, Pierce and King, JJ. Non Participating Judge(s): Waller, C.J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 05-11-2009 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: After a trial, the jury found in favor of Marble and awarded him $2.5 million. Case Number: 251-07-772CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Deviney Construction Company, Inc |
JUSTIN J. PETERSON, W. WAYNE DRINKWATER, JR., W. HUGH GILLON, IV |
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| Appellee: | David Scott Marble | J. ASHLEY OGDEN, JAMES W. SMITH, JR. | ||
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: | Personal injury - Burden of production - Presentation of witnesses - M.R.E. 611(a) |
| Summary of the Facts: | Time Warner employee David Marble was injured when he touched a live electrical wire while attempting to splice a new cable into an old cable. He brought suit against Deviney Construction Company, Inc., alleging that Deviney negligently had dug up the electrical wire and then had failed to secure it. After a trial, the jury found in favor of Marble and awarded him $2.5 million. Deviney appeals. |
| Summary of Opinion Analysis: | The judge ruled before trial that witnesses could be called only once to the stand. Counsel for Deviney objected, expressing concern that this ruling would “handcuff” the defense. Deviney now argues that the trial judge’s ruling on the presentation of witnesses was reversible error. It points out that it was forced to conduct its examination of its only fact witnesses during Marble’s case-in-chief. It argues that the trial judge’s ruling was fundamentally unfair. M.R.E. 611(a) addresses the order of interrogation. But simply because a matter is left within the discretion of the trial judge does not mean that the trial judge can do anything he or she wishes. Sound discretion imports a decision by reference to legally valid standards. It is a fundamental tenet that a plaintiff in a civil suit has the initial burden of production (i.e., he must introduce evidence sufficient to establish each element of the claim asserted) before the defendant must present its case. The trial judge’s ruling violated this basic principle, as she forced Deviney to present evidence by questioning two of its defense witnesses before Marble had finished presenting his case. Deviney was forced to speculate as to what evidence Marble’s later witnesses would present and try to address that evidence during Marble’s case-in-chief. And Deviney was unable to recall its two fact witnesses to rebut any of the testimony offered by the eight plaintiff’s witnesses that followed. Our trial courts must recognize a litigant’s broad discretion as a matter of trial strategy to offer evidence in a manner that will most effectively present its case. A defendant should not be required to present his or her evidence during the plaintiff’s case. |
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