O’Keeffe v. Biloxi Casino Corp.
| Docket Number: | 2009-CA-01185-COA Linked Case(s): 2009-CA-01185-COA2009-CT-01185-SCT |
|
| Oral Argument: | 01-12-2011 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
||
| Court of Appeals: |
Opinion Link Opinion Date: 05-31-2011 Opinion Author: Irving, P.J. Holding: Affirmed. |
|
| Additional Case Information: |
Topic: Personal injury - Premises liability - Exclusion of expert witness - URCCC 4.04 - Exclusion of report - M.R.E. 703 - Jury instruction Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 02-12-2009 Appealed from: Harrison County Circuit Court Judge: Lisa P. Dodson Disposition: On February 9, 2009, a jury returned a verdict in favor of Casino Magic. Case Number: A2402-05-86 |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Edward M. O'Keeffe |
ROBERT O. HOMES JR. |
|
|
| Appellee: | Biloxi Casino Corp. d/b/a Casino Magic-Biloxi | KIMBERLY S. ROSETTI, KAREN K. SAWYER | ||
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. |
|
| Topic: | Personal injury - Premises liability - Exclusion of expert witness - URCCC 4.04 - Exclusion of report - M.R.E. 703 - Jury instruction |
| Summary of the Facts: | Edward O’Keeffe fell in the shower in his hotel room at Casino Magic in Biloxi, Mississippi. O’Keeffe brought a premises-liability action against Casino Magic. A jury returned a verdict in favor of Casino Magic. O’Keeffe appeals. |
| Summary of Opinion Analysis: | Issue 1: Exclusion of expert witness O’Keeffe argues that the circuit court erred in excluding a neurosurgeon as a late designated expert. He argues that the designation was timely under URCCC 4.04 because he designated the expert seventy-three days before the trial date. O’Keeffe mistakenly uses the continued trial date for purposes of determining timely designation under Rule 4.04. The circuit court granted a continuance for the express purpose of allowing O’Keeffe to fully recover from his surgery and to obtain the expert opinions of his neurosurgeon. When O’Keeffe encountered difficulties in obtaining his neurosurgeon’s deposition, he designated another neurosurgeon. The circuit court ordered that the new neurosurgeon’s testimony would be allowed only if O’Keeffe’s neurosurgeon refused to give a deposition. O’Keefee’s neurosurgeon gave a deposition; therefore, the circuit court did not abuse its discretion in excluding the new neurosurgeon’s testimony. Issue 2: Exclusion of report O’Keeffe argues that the circuit court erred in excluding portions of deposition testimony from one of his specialists that referred to the new neurosurgeon or his report, because the specialist’s reliance on the neurosurgeon’s opinions was permissible under M.R.E. 703. While Rule 703 allows an expert to use certain other sources in forming his or her own opinion, Rule 703 is not a vehicle for admissibility of otherwise inadmissible evidence. While Rule 703 does permit experts to rely on facts or data that are otherwise inadmissible, it may not be used to circumvent court orders. Therefore, the circuit court did not abuse its discretion in excluding references to the excluded neurosurgeon or his report. Issue 3: Jury instruction O’Keeffe argues that the trial court erred in granting jury instruction number six, because the instruction had the effect of eliminating the comparative negligence rule and resurrecting the open-and-obvious defense as a complete bar to recovery. Instruction number six simply defined the terms “danger” and “hazard”and explained that the mere occurrence of a fall or other accident on a business premises is not sufficient to attribute negligence to the owner–a correct statement of the law. The instruction required O’Keeffe to prove that a danger or hazard existed in order to recover, but it did not bar his recovery if he failed to exercise reasonable care. In fact, the jury was instructed that O’Keeffe could recover even if he was negligent. Instruction number six did not bar recovery if O’Keeffe failed to exercise reasonable care, and the jury was specifically instructed on comparative negligence in jury instruction number eleven. Furthermore, by requiring O’Keeffe to exercise reasonable care for his safety, instruction number six did not resurrect the open-and-obvious defense as a complete bar to recovery. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
