McGee v. Dollar General Corporation
ORDER granting 39 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 10/12/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 5:14-cv-90(DCB)(MTP)
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the defendant Dolgencorp,
LLC’s motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 (docket entry 39).
Having carefully considered the
motion, the plaintiff’s response, the memoranda of the parties and
the applicable law, the Court finds as follows:
Complaint that he slipped and fell on applesauce in a Dollar
General store in McComb, Mississippi, and was injured.
Complaint seeks damages for alleged physical injuries, pain and
suffering, and medical expenses.
Dolgencorp moves for summary
judgment on grounds that McGee has no admissible evidence of any
McGee’s Complaint seeks damages for alleged physical injuries,
pain and suffering, and medical expenses.
Dolgencorp asserts that
it is entitled to summary judgment because McGee has no admissible
evidence demonstrating any causal relationship between his alleged
fall and any alleged injury or damage he incurred as a result
McGee filed his Complaint in state court on June 16, 2014.
Dolgencorp removed the case to this Court on October 17, 2014, on
diversity of citizenship grounds, having learned on September 18,
2014, that the plaintiff was seeking in excess of $75,000 in
McGee alleged in his Complaint that on or about March 4,
2014, he was a customer in a Dollar General store in McComb,
Mississippi, when he slipped and fell on applesauce on the floor
and was injured. See Complaint, ¶¶ 4-5. McGee claimed he suffered
an injury to his lower back, and contended he was entitled to
damages for physical injuries, pain and suffering, and medical
expenses. Dolgencorp removed the case to this Court on October 17,
On January 15, 2015, the Court entered a Case Management
order setting McGee’s expert witness deadline for June 1, 2015, a
discovery deadline of September 1, 2015, and a trial date on this
Court’s February 2016 calendar.
On December 18, 2015, Dolgencorp filed a motion in limine to
limit the medical and damage information McGee could introduce at
The motion outlines McGee’s discovery deficiencies.
Docket Entry 18. On January 13, 2016, Magistrate Judge Parker held
a pre-trial conference in Natchez.
At the conference, Magistrate
Judge Parker ordered that McGee would be allowed to supplement his
expert witness designations and medical and damage evidence, and
provided that the supplementation was to be completed before
January 29, 2016.
See Docket Entry 21.
Magistrate Judge Parker
also reset the trial from the February 2016 term to the Court’s
June 2016 term.
When January 29, 2016 passed and McGee
did not supplement his expert or damage disclosures, Dolgencorp, on
March 22, 2016, filed an amended motion in limine to exclude
certain medical and damage evidence at trial. See Docket Entry 23.
Magistrate Judge Parker held a second pre-trial conference in
Natchez on May 10, 2016.
Following the conference, on May 16,
2016, the Court entered an Order granting Dolgencorp’s amended
motion in limine to exclude and limit some of McGee’s medical
evidence. This Order limited the medical expenses that McGee could
introduce into evidence at trial to the single bill of $7,062.00,
which he had previously produced in discovery.
It also prohibited
McGee from putting on any evidence at trial concerning his October
3, 2015, cervical and lumbar MRIs.
Finally, it limited the
testimony of McGee’s physicians to the 21 pages of medical records
which McGee had produced in discovery.
See Docket Entry 25.
On May 25, 2016, McGee filed a Motion to take the deposition
of Dr. Shamsnia.
See Docket Entry 26.
The Court granted McGee’s
Motion on June 1, 2016, allowing him to take Dr. Shamsnia’s
deposition out-of-time, and continued the trial of this case a
second time, resetting the trial for July 18, 2016.
By agreement of the Court and the parties, the July 18,
2016 trial date was moved to July 20, 2016.
See Text Entry of June
During Dr. Shamsnia’s deposition, which took place on July 6,
2016, the doctor provided no testimony that any of the treatment he
allegedly suffered in his alleged fall at Dolgencorp’s store on
March 4, 2014.
The doctor also provided no testimony that the
treatment he provided to McGee, or the costs of said treatment,
were reasonable or necessary. Dr. Shamsnia also testified that, by
the time he treated McGee, as reflected in the 21 pages of medical
records, he had not determined the nature, extent or cause of
McGee’s medical condition.
Dr. Shamsnia did not relate any of his treatment, contained in
the 21 pages of medical records the Court allowed him to testify
about, to McGee’s alleged fall at Dolgencorp’s store on March 4,
On July 12, 2016, Dolgencorp filed a motion in limine to
exclude all testimony, records, and bills of Dr. Shamsnia.
Docket Entry 34.
On July 13, 2016, the Court entered an Order continuing the
July 20, 2016 trial setting.
See Docket Entry 35.
stated, in part:
With the trial date one week from today, and no response
to the motion yet filed, the Court finds that the trial
should be rescheduled yet again. The motion in limine,
if granted, could result in the exclusion of Dr.
Shamsnia’s records and bills from evidence, based on the
lack of any testimony by Dr. Shamsnia that his treatment
of the plaintiff was causally related to any injury he
allegedly suffered at an alleged fall in the defendant’s
store, and the lack of any testimony by the doctor that
the treatment he provided was reasonable or necessary, or
that the costs incurred for the treatment provided were
reasonable and standard.
Furthermore, Dr. Shamsnia
stated that he had not made any determination or
conclusion regarding the nature and extent of the
plaintiff’s medical condition, nor the cause of his
conditions. In short, the Court is reluctant to call in
a jury with the threshold issues of causation yet to be
See Docket Entry 35.
On July 25, 2016, after Dolgencorp’s latest
in limine motion was fully briefed, the Court entered an Order
granting Dolgencorp’s motion, excluding from evidence at trial all
of Dr. Shamsnia’s testimony, his twenty-one pages of medical
records, and his single medical bill.
See Docket Entry 38.
result of this ruling, McGee has no medical evidence, or other
competent evidence, establishing that he suffered any injury as a
result of the alleged fall.
Now pending before the Court is Dolgencorp’s Motion for
Summary judgment is required “if the movant
shows that there is no genuine dispute as to any material fact and
Fed.R.Civ.P. 56(a); Graham v. Hodge, 69 F.Supp.3d 618, 624 (S.D.
“Summary Judgment is mandatory ‘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.’”
Id. at 625 (quoting
Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766
(5th Cir. 2011); Celotex Corp. v. Catrett, 477 U.S. 317, 322
“Merely proving that an accident occurred is not sufficient to
prove liability; instead, a plaintiff must show that the owner or
operator of the business was negligent.”
Penton v. Boss Hoggs
The plaintiff “must produce sufficient
evidence of the essential elements of a claim of negligence - duty,
breach, causation, and damages.”
Wilson v. Wal-Mart Stores, Inc.,
161 So.3d 1128, 1131 (Miss.Ct.App. 2015).
Proximate cause is an
essential element in an action for negligence. Welford v. Thomley,
2012 WL 3264555, *1 (S.D. Miss. Aug. 8, 2012).
McGee seeks three categories of damages in his Complaint:
physical injury to his lower back, pain and suffering in his lower
back, and medical expenses. As set forth in more detail below, the
plaintiff has no competent evidence to show that any of these
claimed injuries or damages are causally related to his incident at
The first claim for damages in McGee’s Complaint is for
medical expenses for an alleged back injury.
Complaint, ¶ 7.
Pursuant to this Court’s Order of May 16, 2016, the only evidence
of medical treatment or medical expenses McGee could introduce at
a trial is a medical bill of $7,062.00 from Dr. Shamsnia, twentyone (21) pages of medical records from Dr. Shamsnia, and Dr.
Shamsnia’s testimony related to those records.
See Docket Entry
However, pursuant to this Court’s Order of July 25, 2016, all
testimony and evidence of McGee’s treating physicians regarding
McGee’s alleged back injury, including Dr. Shamsnia’s medical bill,
evidence, as well.
See Docket Entry 38.
Therefore, since McGee
cannot present any evidence of any medical treatment or medical
expenses, he cannot recover any damages for same.
The next damages claim in McGee’s Complaint is for an alleged
physical injury to his back.
Complaint, ¶ 7.
The Court’s Order of
July 25, 2016 precludes McGee from putting on any medical evidence
to support his physical injury claim.
The only potential evidence
McGee could provide is his own testimony.
However, the law is
clear that a “lay witness may not testify as an expert and give
expert testimony as to the character or extent of a personal injury
which he has sustained.”
Dennis v. Prisock, 221 So.2d 706, 710
As a lay person, McGee is not qualified to testify
about the medical diagnosis of his back injury or any necessary
He is also not competent to testify about his
own medical prognosis or treatment, or medical causation.
testimony must be given by a medical expert.
See Welford v.
Thomley, 2012 WL 3264555 at *5; Graves v. Graves, 531 So.2d 817,
822 (Miss. 1988).
Since McGee cannot put on any medical evidence
at trial regarding his physical injury claims, and he is not
competent to testify regarding the cause of any physical injury or
condition he may have, he cannot meet the causation element of his
negligence claim regarding any alleged personal injury he suffered
from the alleged incident.
McGee’s final claim for damages is for alleged pain and
suffering in his lower back.
Complaint, ¶ 7.
cannot present any competent evidence that his alleged pain and
suffering is the result of any physical injury. In Mississippi, it
has long been established that, to recover damages for pain and
suffering, a plaintiff must relate that pain and suffering to an
actual physical injury.
See M.&A. Motor Freight Lines, Inc. v.
Villere, 1 So.2d 788 (Miss. 1941).
In Villere, the Court found
improper a jury instruction that failed to relate the plaintiff’s
alleged pain and suffering to a physical injury.
For the same reason, we shall not review any of the
instructions except two given for the plaintiff. The
first is as follows: “The court instructs the jury that
if you believe from a preponderance of the evidence in
this case that the plaintiff is entitled to recover
herein, then in assessing damages you may take into
consideration the pain and suffering of the plaintiff,
his mental anguish, if any, the bodily injuries sustained
by him, his pecuniary loss, if any, his loss of power and
capacity for work, if any, and its effect upon his
future, if any.” In view of the necessity for a reversal
of the case, it is not inappropriate to point out that
the serious defects in this instruction include the
failure to relate any pain and suffering causally to
physical injury, which in turn must be causally and
proximately related to the negligence which is the basis
of liability, and to require that all findings both as to
liability and as to injuries be based upon a
preponderance of the evidence. Such instruction, even
when so reformed, is not proper unless other instructions
predicate liability upon such acts of negligence as have
been set forth in the declaration and developed by the
evidence. McDonough Motor Express v. Spiers, 180 Miss.
78, 176 So. 723, 177 So. 655; Graham v. Brummett, 182
Miss. 580, 181 So. 721.
Villere, 1 So.2d at 790 (emphasis added).
admissible evidence that he suffered any personal injury as a
result of the subject incident, are analogous to the claims for
Mississippi law where there is no evidence of any physical injury,
nor medical evidence to support a claim that the alleged emotional
distress is causally related to the alleged incident. See Simonton
v. Moore, 38 So.2d 94, 96 (Miss. 1948)(holding that an award for
mental suffering was not allowed absent a connection with a
physical injury); American Bankers’ Insurance Co. v. Wells, 819
So.2d 1196 (Miss. 2001)(holding that a plaintiff cannot recover
emotional distress damages as a result of negligence, absent proof
of physical manifestation of injury or demonstrable physical harm);
Marchbanks v. Dolgencorp, Inc., 2008 WL 5050136, *8 (N.D.Miss.
plaintiff had no medical proof that her depression and difficulty
sleeping were triggered by the alleged incidents).
In this case, McGee has no evidence he will be able to submit
to a jury demonstrating that he suffered any injury to his lower
back as a result of the incident at Dollar General.
it is without dispute that McGee had suffered an injury to his
lower back prior to the alleged incident at Dollar General, which
required surgery, and for which he was seeking treatment for pain
prior to and at the time of said incident at Dollar General.
Mississippi law is clear that one cannot recover for emotional
distress founded on negligence without proof of a physical injury.
McGee has no such proof here; and, without proof of a physical
injury caused by the incident at Dollar General, he cannot recover
for his pain and suffering.
Accordingly, his pain and suffering
claim must be dismissed.
McGee has no evidence of any medical treatment or medical
expenses, so he cannot recover any damages for same.
He is not
qualified to testify about any physical injury to his back, and he
has no competent evidence that any alleged back injury was causally
related to the incident at issue.
Thus, he cannot recover any
damages for any alleged physical injury to his back.
since he has no admissible evidence that he suffered any injury as
a result of an incident at Dollar General, he cannot prove he
incurred any pain and suffering as a result thereof.
has no evidence he suffered any injury or damages as a result of
the incident, he cannot meet his burden of proof on the causation
element of his negligence claim against Dolgencorp.
Dolgencorp’s Motion for Summary Judgment must be granted, and
McGee’s lawsuit must be dismissed with prejudice.
IT IS HEREBY ORDERED that the defendant Dolgencorp, LLC’s
Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56 (docket entry 39) is GRANTED.
A Final Judgment dismissing this cause with prejudice shall be
entered of even date herewith.
SO ORDERED, this the 12th day of October, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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