Buckley v. Pounds, et al.
| Docket Number: | 2010-CA-01443-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2012 Opinion Author: Griffis, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Exclusion of testimony - Economic-loss report - Closing argument - Apportionment instruction - Additur Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 08-06-2010 Appealed from: Jefferson Davis County Circuit Court Judge: R. I. Prichard, III Disposition: JURY VERDICT OF $15,000 IN FAVOR OF APPELLANT Case Number: 2008-135P |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Torsha Buckley |
CARLOS EUGENE MOORE TANGALA LANIECE HOLLIS |
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| Appellee: | Herley R. Pounds, II and Pearl River Valley Electric Power Association | LEANN W. NEALEY CHYNEE ALLEN BAILEY PAUL MICHAEL ELLIS | ||
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 - Exclusion of testimony - Economic-loss report - Closing argument - Apportionment instruction - Additur |
| Summary of the Facts: | When Torsha Buckley’s vehicle was stopped at a red light, the back of her car was struck by a vehicle owned by Pearl River Valley Electric Power Association and driven by Herley Pounds, an EPA employee. Buckley filed a complaint alleging she had suffered injuries to her neck and shoulder as a result of the accident. She also claimed EPA was vicariously liable for Pounds’s negligent act. She sought damages for personal injuries including pain and suffering, mental anguish, emotional distress, lost wages; and past, present, and future medical, hospital and/or medically related expenses. Pounds and EPA admitted liability, but they denied Buckley had suffered any injuries in the accident. Partial summary judgment was granted on liability, leaving only the issue of damages to be determined at trial. The jury awarded Buckley $15,000 in damages. Buckley appeals. |
| Summary of Opinion Analysis: | Issue 1: Exclusion of testimony Dr. Vise was designated as an expert by EPA, and he conducted an independent medical evaluation of Buckley on November 19, 2009, and produced a written report of his findings. Dr. Vise died before trial. EPA then designated Dr. Gandy as their new expert. Dr. Gandy gave a video deposition on July 9, 2010. Before trial, EPA filed a motion in limine to exclude references to the IME by Dr. Vise, based on questions by Buckley during the video deposition of Dr. Gandy. The court granted the motion, and Buckley argues this was error. References to the report were excluded by the circuit court on motion filed by EPA. Buckley apparently did not file a response. The order does not state the basis for granting the motion. Since Buckley failed to present her assignment of error to the circuit court, she is barred from raising this error on appeal. Issue 2: Economic-loss report Buckley argues the circuit court erred by initially ruling Dr. Glover’s economic-loss report could be introduced into evidence but then, after EPA objected, ruling it was inadmissible. Buckley attempted to admit the report and resume of Dr. Glover into evidence during Dr. Glover’s testimony. As a result of an objection raised by EPA, the report and resume were only marked for identification. Admitting both the incident report as well as the testimony of the author of the report is unnecessary. To admit both would produce cumulative evidence that merely bolsters one or the other. Dr. Glover’s report was cumulative of her testimony. Issue 3: Closing argument Buckley argues that the court erred by failing to sua sponte strike portions of the defense counsel’s closing arguments. No objection was raised by Buckley during the closing argument. Buckley only objected after closing arguments, and after the jury had been sent out for deliberation. A contemporaneous objection must be made during closing arguments or the objection is waived. Issue 4: Apportionment instruction Buckley argues the circuit court failed to properly instruct the jury about EPA’s liability for aggravating her preexisting condition. There is no error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice. Here, the written instructions given to the jury properly presented the applicable law of the case. Issue 5: Additur The party seeking the additur bears the burden of proving his injuries, loss of income and other damages. The circuit court did not find any bias, prejudice or passion. On the contrary, it found “the jury fulfilled its oath in this matter and returned a verdict in no way shocking to the judicial conscience. The amount of damages awarded to [Buckley] was not inadequate, nor contrary to the overwhelming weight of credible evidence.” There is no error in the circuit court’s denial of an additur. |
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