87 So. 3d 1083
Miss. Ct. App.2012Background
- Jury found Wackenhut and Hoskins 75% at fault for Fortune’s injuries at a Jackson, Mississippi McDonald’s; total award $1,000,000.
- Key damages: $600,000 pain and suffering, $194,000 past/future earnings, $106,000 past/future medical, $100,000 impairment.
- Fortune sued multiple defendants including Wackenhut; trial held November 30, 2009.
- Fortune’s expert economist used earnings-capacity to compute future lost wages; this methodology later deemed improper.
- Court addressed multiple evidentiary and instructional challenges raised on appeal, including admissibility of alcohol history and future surgery damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Earnings-capacity method admissibility | Fortune’s damages should be based on earnings-capacity; Dr. Glover’s testimony supported loss. | Earnings-capacity approach not supported by sufficient data; improper. | Reversed; cannot use earnings-capacity approach on remand. |
| Alcohol abuse evidence to life expectancy | Evidence of alcohol abuse relevant to life expectancy and earnings. | Alcohol history is prejudicial and irrelevant to damages. | Evidence admissible to show diminished life expectancy/employability on remand with limits. |
| Future surgery damages | Fortune may recover for future surgery costs based on physician opinion. | Testimony speculative; no evidence Fortune meets surgery qualifications. | Remand with condition: future-surgery damages only if medical certainty supports eligibility and need. |
| Contributory negligence jury instruction | Proffered D-ll instruction properly stated law on contributory fault. | Instruction should reflect defense theory and record facts. | Reversed; remand to allow instruction consistent with evidence. |
| Admission of Fortune's prior convictions | Criminal history relevant to employability and credibility. | Rule 404(b) and prejudice concerns bar such evidence. | Admissibility to be determined on remand; record insufficient to rule now. |
Key Cases Cited
- Rebelwood Apartments RP, LP v. English, 48 So.3d 483 (Miss. 2010) (limits expert reliance on earnings-capacity testimony)
- Pharr v. Anderson, 436 So.2d 1357 (Miss. 1983) (healthy condition evidence relevant to damages when life expectancy is in issue)
- Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss. 2001) (drug use evidence may be excluded when not causally related to damages)
- City of Jackson v. Spann, 4 So.3d 1029 (Miss. 2009) (reasonableness of expert testimony and admissibility standards)
- Kidd v. McRae’s Stores P’ship, 951 So.2d 622 (Miss. Ct. App. 2007) (whether expert speculation may be admitted for future treatment)
- Ware v. Entergy Miss., Inc., 887 So.2d 763 (Miss. 2003) (M.R.E. 403 balancing in evidentiary rulings)
- Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450 (Miss. 2010) (jury instructions must fairly announce the law and be supported by evidence)
- James v. Carawan, 995 So.2d 69 (Miss. 2008) (evidence related to damages and life expectancy considerations)