380 So.3d 252
Miss. Ct. App.2023Background:
- On Aug. 22, 2017 Newton’s car struck the rear of a Big Tex car-hauler trailer being towed by David Kirk (driver for I.B. Logistics); Newton suffered severe, permanent injuries and multiple surgeries.
- Newton sued Kirk and I.B. Logistics; a Hinds County jury found Kirk 100% at fault and awarded $2,759,094.32 (past medical $292,582.32; past lost wages $78,762; future medical $784,229; future lost wages $604,121; noneconomic $1,000,000).
- Trial evidence was sharply contested: Newton testified Kirk merged into her lane; Kirk and an accident-reconstruction expert (Dr. Scarber) testified impact occurred in the left lane with Newton behind Kirk.
- Newton presented life-care and vocational experts (Martina) and an economist (Koerber) who relied in part on national LPN wage averages (and on annualized figures based on Newton’s short-term 2017 pay); defense experts used Newton’s 2016 actual income.
- Defendants moved for JNOV/new trial/remittitur arguing (1) insufficient evidence of fault, (2) verdict against overwhelming weight or tainted by juror bias, (3) Newton’s damages experts used improper national averages, and (4) prejudice from a witness comment about insurance.
- The trial court denied post-trial relief; the Court of Appeals affirmed, holding (inter alia) substantial evidence supported the verdict, expert methodology was not reversible error under the facts, and the insurance remark was not preserved for appeal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of evidence / JNOV (fault) | Newton: conflicting testimony supports jury finding she was struck when Kirk entered her lane; substantial evidence supports verdict | Kirk: accident reconstruction and other evidence prove Newton struck trailer from behind; verdict lacks substantial evidence | Denied JNOV. Court defers to jury’s credibility determinations and finds substantial evidence for fault attributed to Kirk |
| 2. New trial for weight of evidence or juror bias | Newton: jury properly weighed conflicting evidence; no record proof of juror bias or passion | Kirk: verdict against overwhelming weight; voir dire revealed anti-truck bias that tainted jury | New trial denied. Trial court’s discretion not abused; venire comments did not establish actual bias in record and defendant failed to follow up during voir dire |
| 3. Exclude/limit experts for using national wage averages | Newton: experts’ use of national LPN averages was conservative and supported by annualized actual pay; methodology admissible and jury can weigh it | Kirk: Rebelwood forbids speculative use of national averages when actual wage history exists; thus damages testimony was inadmissible or unreliable | Admissibility upheld. Here national average was lower than Newton’s annualized pay and experts explained bases; expert conflict was for jury to resolve |
| 4. New trial for mention of plaintiff’s lack of insurance | Newton: comment was volunteered and not used to prove negligence; trial court instructed witness to avoid insurance | Kirk: statement prejudiced jury, meriting new trial | Waived / no reversal. Defense did not contemporaneously object or move for mistrial/striking; issue not preserved for appeal |
Key Cases Cited
- Solanki v. Ervin, 21 So. 3d 552 (Miss. 2009) (jury is sole judge of witness credibility; conflicting evidence is for jury)
- Rebelwood Apartments RP, LP v. English, 48 So. 3d 483 (Miss. 2010) (expert wage opinions inadmissible where national averages lack foundation and contradict a claimant’s actual earnings history)
- Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993) (cross‑examination and adversarial testing are the traditional means to attack shaky but admissible expert evidence)
- Classic Coach, Inc. v. Johnson, 823 So. 2d 517 (Miss. 2002) (appellate review should not substitute its judgment for a jury on amount of verdict unless verdict indicates passion, prejudice, or corruption)
- Bobby Kitchens Inc. v. Mississippi Ins. Guar. Ass’n, 560 So. 2d 129 (Miss. 1989) (new trial appropriate only where verdict is against overwhelming weight of the evidence)
- Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311 (Miss. 1985) (accident‑reconstruction experts may testify, but jury remains ultimate finder of fact)