Thompson v. Echostar Communications Corp., et al.
| Docket Number: | 2010-CA-01993-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-29-2012 Opinion Author: Presiding Judge Irving Holding: Affirmed in part, reversed and rendered in part. |
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| Additional Case Information: |
Topic: Property damage - Expert testimony - M.R.E. 702 - Summary judgment - M.R.C.P. 56 - Products liability - Sanctions - M.R.C.P. 41(b) - Reasonable expenses - Contingent attorney's fees Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Dissenting Author : Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 12-01-2010 Appealed from: Carroll County Circuit Court Judge: Joseph H. Loper, Jr. Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE Case Number: 2000-0027-CV1-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Katherine Thompson |
DANIEL M. CZAMANSKE JR. |
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| Appellee: | Echostar Communications Corp. d/b/a Dish (Digital Sky Highway) Network, Tracking Enterprizes, Inc., and Echostar, Inc. | BRIAN B. HANNULA EDWIN S. GAULT JR. CAROLINE M. UPCHURCH | ||
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: | Property damage - Expert testimony - M.R.E. 702 - Summary judgment - M.R.C.P. 56 - Products liability - Sanctions - M.R.C.P. 41(b) - Reasonable expenses - Contingent attorney's fees |
| Summary of the Facts: | Katherine Thompson’s home was destroyed by a fire allegedly caused by a defective satellite receiver designed, manufactured, and sold by Echostar Communications Corporation. Thompson and her husband, Jimmy Thompson, filed suit against Echostar alleging that it was liable for the fire because it designed and manufactured a satellite receiver that had a propensity to overheat and catch fire. From July 19, 2005 to July 27, 2008, no action of record occurred in the case. On July 28, 2008, Thompson filed a supplemental designation of experts. In response, Echostar filed a motion to dismiss for failure to prosecute. The circuit court denied Echostar’s motion, but it ordered sanctions against Thompson and her attorneys. On September 27, 2010, Echostar filed a motion to exclude Thompson’s expert witness and a motion for summary judgment. The circuit court granted both motions. Thompson appeals. |
| Summary of Opinion Analysis: | Issue 1: Expert witness Thompson hired A.K. Rosenhan, a mechanical engineer and fire-protection engineering consultant, as her expert witness. Thompson argues that the circuit court erred in excluding Rosenhan’s opinions concerning the cause of the fire. Pursuant to M.R.E. 702, expert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief. The circuit court did not abuse its discretion in excluding Rosenhan’s testimony. Rosenhan provided no testimony that would have assisted the court or the ultimate trier of fact in deciding whether or not the satellite receiver caused the fire. In fact, Rosenhan admitted that he was unable to rule out alternative causes of the fire. Additionally, even though Rosenhan hypothesized that the fire began with Thompson’s satellite receiver, he never tested the receiver or any similar receiver. Rosenhan’s opinion was largely drawn from his conversations with Jimmy and was not based on scientific data. Issue 2: Summary judgment Thompson contends that the circuit court erred in granting summary judgment in favor of Echostar after excluding Rosenhan’s testimony. Under M.R.C.P. 56, the moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Thompson’s claim against Echostar is a products-liability claim. To survive a motion for summary judgment in a products liability case, the non-movant must show that the product was designed in a defective manner; which rendered the product unreasonably dangerous to the plaintiff; that the defective and unreasonably dangerous condition proximately caused the plaintiff’s damages; that the damages were not caused by an inherent characteristic of the product which cannot be eliminated without substantially compromising the product’s usefulness or desirability and which an ordinary person would recognize; that the defendant knew or should have known of the danger that caused the damage; and that there existed a feasible design alternative that would have, to a reasonable probability, prevented the harm without also impairing the product’s utility, usefulness, practicality or desirability. Thompson relied on Echostar’s creation of a second-generation power supply as evidence that the first-generation power supply contained defects. However, Thompson offered no evidence that the second-generation power supply was created in response to a problem with the first-generation power supply. Furthermore, she produced no evidence that her satellite receiver contained the allegedly defective first-generation power supply. Because Thompson failed to show that there were genuine issues of material fact, the circuit court did not err in granting summary judgment in Echostar’s favor. Issue 3: Sanctions Thompson argues that the circuit court erred in ordering sanctions against her and her attorneys because the court lacked the authority to award sanctions and the sanctions were unreasonable. Echostar filed a motion to dismiss, pursuant to M.R.C.P. 41(b), based on Thompson’s failure to prosecute her case. Instead of dismissing her case, the circuit court assessed two types of sanctions against Thompson and her attorneys: costs and expenses associated with discovery and attorneys’ fees based on the outcome of the case. Even though Rule 41(b) does not specifically mention sanctions, a court may impose lesser sanctions instead of dismissing a case for lack of prosecution. Lesser sanctions include fines, costs, or damages against a plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings. While the circuit court had the power to impose sanctions rather than dismissing the case, Thompson should only be required to pay the reasonable expenses that Echostar incurred as a result of her failure to prosecute the case. However, these expenses should not include the costs associated with Rosenhan’s or Lemley’s depositions. Thompson designated Rosenhan and Lemley as witnesses in 2002. Therefore, any delay in deposing Rosenhan and Lemley was not a result of Thompson’s delay in prosecuting the case against Echostar. Thompson also argues that the circuit court erred in awarding contingent attorneys’ fees to the successful litigant. As there has been no imposition of punitive damages here, the circuit court could not award contingent-attorneys’ fees to Echostar. Accordingly, the circuit court’s judgment regarding the award of costs, expenses, and contingent-attorneys’ fees is reversed and rendered. |
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