114 So. 3d 783
Miss. Ct. App.2013Background
- Hathaway sued Dr. Lewis and Dr. Mathis for negligence over a post-surgical bone fragment; MRI opinions diverged; the jury sided with defendants in February 2011.
- Trial featured competing expert testimony: Hathaway's expert Dr. Jones suggested a fragment; defense expert Dr. Sze testified the post-op images showed a bone spur, not a fragment.
- Hathaway moved for a new trial on February 10, 2011 based on Dr. Sze's allegedly untruthful testimony; an amended motion included Dr. Jones's affidavit.
- The Jones affidavit was not timely filed with the Rule 59(b) motion, violating the requirement that affidavits accompany the motion.
- The circuit court denied the motions; Hathaway appealed arguing falsity of Sze's testimony and error in denial of the new-trial motion.
- The court affirmed, holding no reversible error based on Rule 59 timing, Rule 60(b)(1) (fraud/misconduct), and Rule 60(b)(3) (newly discovered evidence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and sufficiency of the Rule 59 motion | Jones affidavit shows Sze lied; merits new trial. | Affidavit not timely; no evidence of false testimony. | Motion untimely; no basis for new trial. |
| Fraud, misrepresentation, or misconduct under Rule 60(b)(1) | Sze testimony was knowingly false; merits relief. | Conflicting experts; not fraud; trial outcome proper. | Not proven as fraud/misconduct; trial standing. |
| Newly discovered evidence under Rule 60(b)(3) | Dr. Jones’s affidavit and book material could change result. | Jones affidavit not newly discovered; book impeachment insufficient. | No relief; evidence not newly discovered or material. |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (new-trial standards; weight of evidence governs review)
- Herring v. State, 691 So.2d 948 (Miss. 1997) (weight-of-evidence standard for new trials)
- Hill v. Mills, 26 So.3d 322 (Miss. 2010) (conflicting expert testimony resolved by jury)