Rice v. Tohan et al

Filing 72

MEMORANDUM OPINION re 71 Order on Motion to Strike, Order on Motion for Partial Summary Judgment, Order on Motion in Limine. Signed by District Judge Sharion Aycock on 2/23/2017. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
CHARLENE D. RICE

PLAINTIFF

V.

CIVIL ACTION NO. 1:15-CV-182-SA-DAS

A&S TRANSPORTATION, INC.

DEFENDANT

MEMORANDUM OPINION
Charlene Rice originally filed this case in the Circuit Court of Lee County, Mississippi.
A&S Transportation, Inc. removed the case to this Court on October 23, 2015, invoking diversity
jurisdiction. A&S Transportation filed a Motion for Partial Summary Judgment [8] requesting
summary judgment in its favor on several issues. Rice responded [61], and A&S Transportation
replied [68] making this motion ripe for review.
Factual and Procedural Background
The claims in this case arise from an automobile accident that occurred on June 4, 2012.
The Plaintiff’s automobile collided with a tractor-trailer driven by an employee of the Defendant
after the driver of the tractor-trailer failed to stop at a stop sign, and failed to yield when merging
into the lanes of oncoming traffic in which the Plaintiff was traveling. The Plaintiff sustained
injuries in the accident and seeks compensatory and punitive damages. Defendant A&S
Transportation now requests summary judgment in its favor on all claims for damages related to
the Plaintiff’s right arm, including carpal tunnel, ulnar nerve, her middle finger, and
disfigurement, and on the issue of punitive damages.1

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Defendant A&S Transportation also moved for summary judgment on the issues of all claims for damages related
to the Plaintiff’s knees, all claims related to lost wages and decreased earning capacity, and all claims based on
negligence per se. In her response, the Plaintiff conceded these issues. Summary judgment is therefore granted in the
Defendant’s favor on the all claims for damages related to the Plaintiff’s knees, all claims related to lost wages and
decreased earning capacity, and all claims based on negligence per se.

Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. When such
contradictory facts exist, the Court may “not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000).
Damages Related to the Plaintiff’s Right Arm
Sometime after the accident, the Plaintiff underwent surgeries for carpal tunnel, to her
ulnar nerve, and to her middle finger. The Plaintiff alleges that she has scarring and
disfigurement because of these surgeries and that these surgeries were necessary to treat injuries
sustained in the accident. The Defendant argues that the Plaintiff cannot demonstrate, within a

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reasonable degree of medical certainty, that the injuries to her right arm were caused by the
accident. In support of its argument the Defendant points to particular portions of the deposition
testimony of the Plaintiff’s treating physician Dr. Alan Pritchard.2 The Plaintiff responds by
arguing that she can prove that her injuries were caused by the accident and that when
Pritchard’s testimony is considered in its totality, the requisite causal link is established.
The Court has reviewed the record in this case and finds that the Parties’ opposing
arguments as to the causal link between the Plaintiff’s injuries and the accident are the result of
conflicting testimony, and specifically, differing interpretations of the physician’s testimony.
This is precisely the type of factual controversy inappropriate for weighing and credibility
determination in the summary judgment context. See Little, 37 F.3d at 1075; Reeves, 530 U.S. at
150, 120 S. Ct. 2097. For this reason, the Defendant failed to demonstrate that the Plaintiff
cannot establish the existence of an element essential to her case. Celotex, 477 U.S. at 322, 106
S. Ct. 2548. Summary judgment is denied on the Plaintiff’s claims for damages related to her
right arm.
Punitive Damages
The Mississippi Code authorizes punitive damages if a claimant can “prove by clear and
convincing evidence that the defendant against whom punitive damages are sought acted with
actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the
safety of others . . . .” MISS. CODE ANN. § 11-1-65(1)(a). “Mississippi law does not favor
punitive damages; they are considered an extraordinary remedy and are allowed ‘with caution
and within narrow limits.’” Warren v. Derivaux, 996 So. 2d 729, 738 (Miss. 2008) (citing Life &

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The Defendant also objects to the admissibility of Pritchard’s testimony in a separate Motion to Strike [53] which
is addressed below.

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Cas. Ins. Co. of Tenn. v. Bristow, 529 So. 2d 620, 622 (Miss. 1988); Standard Life Ins. Co. v.
Veal, 354 So. 2d 239, 247 (Miss. 1978)).
Punitive damages should be awarded in addition to actual or
compensatory damages where “the violation of a right or the actual
damages sustained, import insult, fraud, or oppression and not
merely injuries, but injuries inflicted in the spirit of wanton
disregard for the rights of others.... [In other words, there must be]
some element of aggression or some coloring of insult, malice or
gross negligence, evincing ruthless disregard for the rights of
others, so as to take the case out of the ordinary rule.”
Id. (citing Bradfield v. Schwartz, 936 So. 2d 931, 936 (Miss. 2006) (alteration in original)).
The Plaintiff’s only evidence in support of her claim for punitive damages is her own
testimony. According to the Plaintiff, the Defendant only slowed briefly at the stop sign and
yield sign in the median before crossing over into her lane. The Plaintiff argues that the
Defendant’s disregard for these traffic control devices rises to requisite level of gross negligence
and reckless disregard. The Plaintiff also argues that the size, weight, and lack of
maneuverability of the truck that the Defendant was driving combined with the manner in which
it was driven support the imposition of punitive damages. The Plaintiff does not cite a single
analogous case in support of her argument.3
The Court’s own review of cases demonstrates that “in the automobile context, the
Supreme Court of Mississippi has been [and continues to be] extremely reticent to permit
punitive damages in cases involving the mere commission of traffic violations.” See Poe v. Ash
Haulers, Inc., No. 1:10-CV-234-SA-JAD, 2011 WL 2711283, at *3 (N.D. Miss. July 12, 2011)
(collecting cases) (quoting Dawson v. Burnette, 650 F. Supp. 2d 583, 585–86 (S.D. Miss. 2009)
(citing Walker v. Smitty’s Supply, Inc., 2008 WL 2487793, at *6 (S.D. Miss. May 8, 2008)); see
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The Plaintiff does cite to Mutual Life Ins. Co. of New York v. Wesson, 517 So. 2d 521, 528-30 (Miss. 1987) for the
general standard for the application of punitive damages, and C&C Trucking Co. v. Smith, 612 So. 2d 1092, 1102
(Miss. 1992), a case where the Mississippi Supreme Court upheld an award of punitive damages in a malicious
prosecution case. Neither of these cases bear any factual resemblance to the instant case.

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also Mayfield v. Johnson, 202 So. 2d 630 (Miss. 1967) (denying punitive damages even though
there was “no doubt that the appellee did not keep a proper lookout and have his car under
control to avoid striking the rear end of the appellant’s station wagon,” and there was “little
doubt that the appellee was operating his motor vehicle in excess of the forty mile per hour
regulation”); Maupin v. Dennis, 175 So. 2d 130, 131 (Miss. 1965) (finding that while the
evidence supported a finding that the defendant driver was indeed negligent by driving at an
excessive rate of speed, failing to keep his car under control, and failing to keep a proper
lookout, the conduct of the defendant driver “did not indicate any willful or wanton disregard for
the safety or property of others, but simply negligence in failing to exercise due care in the
operation of his car”); Dawson, 650 F. Supp. 2d at 584, 587 (dismissing the plaintiff’s claim for
punitive damages based on the allegation that the defendant failed to keep a proper lookout for
other vehicles as he executed a U-turn); Francois v. Colonial Freight Sys., Inc., No. 3:06-CV434, 2007 WL 4459073, at *5 (S.D. Miss. Dec. 14, 2007) (holding that the defendant’s alleged
failure to maintain a proper lookout did not rise to the level of conduct necessary to support an
award of punitive damages); Harris v. MVT Servs., Inc., No. 1:06-CV-251, 2007 WL 2609780,
at *1, 3 (S.D. Miss. Sept. 5, 2007) (finding the defendant entitled to summary judgment on the
plaintiff’s punitive damages claim where the driver of a tractor-trailer pulled into the path of the
plaintiff’s motor vehicle).
In the instant case, the Plaintiff’s allegations and arguments related to punitive damages
sound in general negligence and negligence per se. The Plaintiff has not brought forth any
competent evidence of actual malice, willfulness or wanton or reckless disregard. The facts in the
record, construing disputed facts in the Plaintiff’s favor, simply do not fall within the narrow
limits where an award of punitive damages would be appropriate. Put another way, the Court

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finds that a reasonable jury could not find either malice or gross neglect and reckless disregard.
For these reasons, A&S Transportation’s Motion for Summary Judgment as to punitive damages
is granted.
Motion to Strike
In addition to its Motion for Summary Judgment, A&S Transportation filed a Motion to
Strike [53] and limit certain expert testimony. The Plaintiff responded that a number of the
witnesses whose testimony is the subject of the instant motion will not testify.4 The remaining
witnesses are Sara Tate, CFNP, Rodney Rodgers, NP, Dr. Victor Gray, Dr. Laura Gray, Dr.
Harry Bartee, and Dr. Alan Pritchard.
The Defendant objects to the testimony of Tate and Rodgers, both Nurse Practitioners,
arguing that nurses may not offer expert testimony on the issue of causation in Mississippi. The
Plaintiff concedes in her response that Tate, Rodgers, Dr. Victor Gray, and Dr. Harry Bartee will
not be called upon to offer testimony on causation. The Defendant’s objection to causation
testimony of nurse practitioners is therefore moot. Any objection that the Defendant may have to
the testimony of Dr. Laura Gray will be handled in the normal course of trial.
The Defendant’s final objection is to the testimony of Dr. Alan Pritchard. The record
indicates that Dr. Pritchard will likely be called upon at trial to testify about the Plaintiff’s
injuries to her right hand, and the causal link between the accident and the injuries. As noted
above the Defendant points to particular portions of Pritchard’s deposition arguing that he cannot
establish a definitive causal link between the accident and the injuries and his testimony should

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The Plaintiff has agreed by way of Stipulation [57, 58] or her Response [60] that several of the witnesses whose
testimony is the subject of this motion to strike will not testify. These witnesses will not testify and the Defendant’s
Motion to Strike is therefore moot as to them: Preston C. Gallaher, M.D., William Pillow, M.D., Dr. Paul Watkins,
Dr. Christie M. Theriot, Dr. Misty Mosley, Dr. Malinda Prewitt, Dr. Richard Seigler, Dr. Max Taylor, Dr. Sam
Newell, Jr., Dr. James Orender, Dr. Ashley Harris, Benjamin Stronach, M.D., R.M. Roberson, M.D., and Sammy R.
Green of Green’s Accident Reconstruction, LLC.

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therefore be excluded. The Plaintiff responds by arguing that viewing Dr. Pritchard’s deposition
as a whole does establish the requisite causal link. As the Court also noted above there are
numerous questions of fact and interpretation underlying this inquiry. The Defendant’s argument
relies on its specific interpretation of Dr. Pritchard’s testimony. This argument goes more to
weight than admissibility. For these reasons, the Defendant’s Motion to Strike Dr. Pritchard’s
testimony is denied without prejudice. Depending on the case ultimately presented at trial, the
Defendant may renew its objection at the appropriate time.
Conclusion
For all of the reasons fully explained above, the Defendant’s Motion for Partial Summary
Judgment [55] is GRANTED in part, and DENIED in part. Summary judgment is GRANTED in
the Defendant’s favor on the all claims for damages related to the Plaintiff’s knees, all claims
related to lost wages and decreased earning capacity, all claims based on negligence per se, and
on the issue of punitive damages. Summary judgment is DENIED as to the Plaintiff’s claims for
damages related to her right arm.
Because the Court here grants the Defendant’s motion for summary judgment as to
punitive damages, the Defendant’s Motion to Bifurcate [70] the proceedings is MOOT.
The Defendant’s Motion to Strike [53] is DENIED. Because the Plaintiff indicated that
the following witnesses will not testify at trial, the Defendant’s objection to their testimony is
MOOT: Gallaher, Pillow, Watkins, Theriot, Mosley, Prewitt, Seigler, Taylor, Newell, Orender,
Harris, Stronach, Roberson, and Green.
Because the Plaintiff indicated that the following witnesses will not testify as to causation
at trial, the Defendant’s objection to their testimony is also MOOT: Tate, Rodgers, V. Gray, and

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Bartee. For the reasons explained above the Defendant’s motion to strike Pritchard’s testimony is
DENIED without prejudice.
So ORDERED on this the 23rd day of February, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT COURT JUDGE

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