Lead Opinion
for the Court:
¶ 1. After an Illinois Central Railroad Company (Illinois Central) train struck and killed Sharon Young, a wrongful-death action was filed on behalf of Young’s two children, Tasandra and Shiron Young (collectively referred to as Appellees), against Illinois Central and the train’s locomotive engineer, Fred Herndon (collectively referred to as Appellants). A Holmes County Circuit Court jury found Illinois Central and Herndon negligent and awarded the Appellees $2,000,000 in compensatory damages, which was later reduced by the circuit court to $1,174,761. The Appellants appeal the judgment, and finding error, we reverse and remand the case for a new trial.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. On November 28, 2005, at approximately 12:05 p.m., Young was struck and killed by a southbound Illinois Central train while walking beside railroad tracks near her home in Tchula, Mississippi. Young was walking home and had allegedly accessed the railroad tracks from a worn path in the vegetation along the track. When first spotted by the train’s engineer, Herndon, Young was several hundred feet ahead of the train, slowly walking about 10-12 feet from the west rail. When the train’s conductor, J.R. Marchisio III, spotted Young, she was walking down the east track with her head down and did not appear to be attentive to the approaching train. When Herndon re
¶ 3. Young, who was twenty-four years old, suffered from schizophrenia. Between 2000 and 2004, she had been involuntarily committed ten times to the Mississippi State Hospital in Whitfield. Young’s mother, Sandra Young, again attempted to have Young committed in January 2005. Young was non-compliant with her medication and treatment for her schizophrenia and had a well-documented pattern of harmful and erratic behavior, such as drug use, and violent outbursts.
¶ 4. In October 2005, Young gave birth to her second child, Shiron. Sandra, who already had full custody of her granddaughter, Tasandra, obtained custody of Shiron as the hospital would not release the newborn into Young’s care. At the time of the accident, Young and her two children lived at Sandra’s home in Tchula. According to her family’s testimony, Young had been acting “fine” in the months leading up to her death. There was no evidence of drugs or alcohol in Young’s system at the time of her death.
¶ 5. A wrongful-death action was filed on behalf of the Appellees, alleging “negligence, gross negligence and willful and wanton conduct” by Illinois Central and Herndon, and requesting compensatory and punitive damages. Specifically, the Appellees contended that Herndon never blew the train’s horn to warn Young of the train’s approach and that Illinois Central knew that the tracks were routinely accessed by pedestrians and should have been aware of the danger of injury.
¶ 6. After a five-day trial in October 2009, the circuit court jury returned a verdict, assigning percentages of negligence as follows: (1) Young — 20%; (2) Herndon — 40%; and (3) Illinois Central— 40%. The jury awarded a general verdict of $2,000,000 in damages to the Appellees. The circuit court subsequently entered a judgment that amended the jury’s verdict to comply with Mississippi Code Annotated section 11-1-60 (Supp.2005), reducing the net award to the Appellees to $1,174,761.
¶ 7. The Appellants filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, and a motion for remittitur. The circuit court denied the motions. The Appellants cite several assignments of error, and the Appellees have filed a cross-appeal, contesting the circuit court’s denial of their request to submit the issue of punitive damages to the jury. Finding that the jury’s apportionment of fault was against the overwhelming weight of the evidence, we reverse the judgment and remand this case for a new trial consistent with this opinion.
I. Whether the circuit court erred in denying the Appellants’ motion for a JNOV.
¶ 8. The denial of a motion for a JNOV is reviewed de novo. U.S. Auto. Ass’n (USSA) v. Lisanby,
¶ 9. The Appellants claim that once Young, “a pedestrian trespasser or a licensee,” was discovered “on the tracks in a position of peril,” their duty was “to use ordinary care to refrain from injuring” her and to provide warning if time permitted. They cite Young v. Columbus & Greenville Railway,
[ I]f the engineer after becoming aware of the presence of the trespasser does nothing to warn him by sounding the whistle, and by taking such other reasonable action as would save the trespasser from death or serious injury, the railway company is liable as for a wanton or willful injury.
¶ 10. At trial, the Appellees submitted Jury Instruction P-3, which stated that if the railroad had knowledge of the public use of the paths near the tracks and had not taken action “to prevent or reduce the number of persons walking along and across the tracks,” then the jury may find that the Appellants owed Young “an audible warning of the train’s approach, and a duty to keep a proper lookout ahead for pedestrians on the traeks[.]” Regarding the propriety of the jury instruction, the Appellees cited Archie v. Illinois Central Gulf Railroad,
¶ 11. In this case, we find the argument regarding the type of duty owed by the Appellants to Young to be a distinction without a difference. The Appellees concede that the only basis for their negligence claim against Illinois Central and Herndon rests on whether or not Herndon blew the horn to warn Young of the approaching train. At oral argument before this Court, the attorney for the Appellees acknowledged that “if the horn did blow, we lose.”
¶ 12. The Appellants argue there was sufficient evidence that the train’s horn was blown and that Young was provided with adequate warning, and they submit that the circuit court erred in denying their JNOV, as “there is no basis upon which they may be held liable.” At trial, the train’s engineer, Herndon, testified that he blew the train’s horn to warn Young and blew it “practically almost till we stopped.” As the train came out of a curve north of where the accident occurred, Herndon was on the right (west) side of the train, and he spotted Young several hundred feet ahead, “attempting to cross the tracks.” Herndon testified that Young was approximately 10-12 feet from the west side of the rail and that “she was looking down.” As the train continued to advance, she moved towards the east side of the tracks and went out of Herndon’s line of sight. The train’s conductor, Mar-chisio, also testified that Herndon was blowing the horn coming out of the curve north of the impact site. Marchisio, who was located on the left side of the train opposite of Herndon, first observed Young on the east side of the track, “walking south.” He said Young walked straight down the track for approximately “25-30 feet.” Marchisio noted that Young’s head was down and that she never acknowledged the train’s presence. He yelled at her to “get out of the way,” but she did not.
¶ 13. Moreover, the train’s event recorder data showed that the horn and bell were activated before the accident. The majority of locomotives are required to have an “in-service event recorder” on board. See 49 C.F.R. § 229.135 (2011). The event recorder is similar to an airplane’s “black box” in that it preserves pertinent data regarding the train’s operations, such as speed, horn and bell activation, and distance traveled. The activation of the various systems is reflected by a binary code. Dr. Foster Peterson, Illinois Central’s expert witness, explained:
Basically, the event recorder is doing what we call “sampling” or looking at a number of different channels, different things happening on that locomotive actually many times a second; roughly ten times per second.... The speed and distance are calculated based on the number of revolutions that the wheel is making and how fast it’s making them, things like that. Air pressure, bell and horn; there are various ways to measure, whether it’s electrically or with an air switch or in other ways, all these various events. And so the total, you know, download is telling us what is happening on that locomotive and what the engineer is doing to control it.
Illinois Central downloaded the computerized data from the event recorder data ten days after the accident. At trial, Dr. Peterson stated there was nothing to show that this downloaded event recorder data was inaccurate. Dr. Peterson testified that the event recorder data showed that
¶ 14. The Appellees assert that there was “credible evidence ... that the train crew failed to blow the horn.” Six witnesses (including three members of Young’s family), who claimed to have been in the area when the accident occurred, testified on behalf of the Appellees that they did not hear any train horn or whistle. Sandra and Young’s two sisters were inside their homes near the railroad tracks, and all said that they did not hear the train’s horn. The other three witnesses — Shanna Sims, Kim Claiborne, and Deundra Wilson — were in automobiles stopped at the crossing just south of the accident site. Sims and her passenger, Claiborne, had spoken briefly to Young moments before the accident at a nearby intersection. Sims had attempted to drive across the tracks when the railroad crossing warning system came down, which forced her to back up and wait for the train. Sims testified that her window was cracked and that the radio was off. Claiborne also said her window was cracked; she noted the radio was on, but that it was turned “low.” Both women claimed that they did not hear any train horn. Wilson was driving his vehicle on the other side of the railroad tracks when he was forced to stop for the train, with the warning system also coming down upon his vehicle. He claimed that he backed his car up and proceeded in another direction. Wilson also stated that he did not hear the train horn even though his windows were down. None of the three witnesses observed Young’s being hit by the train, although Sims said she saw Young fall down but was not aware she was injured. None of the witnesses provided a statement to the police regarding the accident.
¶ 15. The Appellants contend that the train’s event recorder data is “objective, rehable” evidence that is superior to the eyewitnesses’ testimony. The Appellants cite Russell v. Mississippi Central Railroad,
¶ 16. In a recent case from the United States District Court of the Southern District of Mississippi, Brown v. National Railroad Passenger Corporation, No. 3:08cv559KS-MTP,
¶ 17. Several other jurisdictions have also held that event recorder data is not conclusive evidence so as to remove the issue from the jury. The United States District Court of the Central District of Illinois has held that a dispute between witness testimony and the event recorder data creates a question of fact and will survive summary judgment. In Petersen v. Union Pacific Railroad,
¶ 18. In Cornwell v. Union Pacific Railroad, No. 08-CV-638-JHP,
¶ 19. In Rivers v. CSX Transportation, No. 9-01-59,
¶ 20. Similarly, in Bouchard v. CSX Transportation, Inc.,
Pennsylvania case law clearly provides that testimony from a witness who was at the scene to the effect that he did not hear a train’s horn is competent evidence that no horn was blown. While this evidence may not be as compelling as the conflicting evidence presented by CSX from the train’s data recorder log, the weight of the evidence is for the jury, and not the District Judge, to assess.
Id. at 71-72 (internal citation omitted).
¶ 21. We note that there are cases where courts have found eyewitness evidence insufficient to rebut the event recorder data. In a recent case from the Nebraska Supreme Court, Dresser v. Union Pacific Railroad,
[ T]he testimony from the engineer and the conductor and the event record data show that the horn was activated. And no evidence supports a reasonable inference that there was some defect which prevented the horn from sounding when activated. To the contrary, the record shows the horn was working properly when it was tested 2 days after the accident. Thus, despite Rosencrans’ and McDonald’s statements that they did not hear the horn, there are no facts upon which a finder of fact could reasonably conclude that the horn did not sound when it was activated.
Id. at 719. In Miller v. Illinois Central Railroad,
¶ 22. In Price v. National Railroad Passenger Corp.,
[Although the credibility of negative evidence is generally a question for the jury, “in certain circumstances negative testimony will be insufficient to support a jury verdict.” Curtis v. Harmon Elec., Inc.,575 P.2d 1044 , 1047 (Utah 1978). This case presents such a circumstance.
The event recorder from the locomotive provides objective evidence that the horn in fact sounded the standard crossing warning sequence for more than half a minute prior to the accident. Accordingly, we think the negative evidence presented by Plaintiffs does not preserve a genuine issue of material fact, and summary judgment for Defendants on this issue was appropriate.
Id. at 709. However, in Clayson v. Union Pacific Railroad Company, No. 20040783-CA,
¶ 23. The Mississippi Supreme Court has reasoned:
Negative testimony rises or declines in the scale of probative weight according to the opportunity of the negative witnesses to hear and observe; whether their attention was directed to or diverted from the fact in issue; whether the particular fact was an unusual or only a common occurrence in the daily routine of their lives; whether the particular witness was normal in the sense of hearing and sight; and whether observant or indifferent to details.
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The testimony of witnesses that they did not hear the ringing of the bell on a locomotive as it approached a crossing, without proof that the witnesses listened for the bell, or that their attention was any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.
Maxwell v. Ill. Cent. Gulf R.R.,
In today’s case the greater weight of the credible evidence supports the view that the emergency whistle was sounded. On the other hand, the firmly established rule respecting the authority of courts to intervene when a jury has resolved a question of fact preclude us acting upon that view. Considering the evidence in the light most favorable tothe Plaintiffs, and giving the Plaintiffs the benefit of all favorable inferences that may reasonably be drawn therefrom, and taking the evidence on the issue of the sounding of the whistle in the aggregate, we may not escape the conclusion that there is in this record some credible evidence that the whistle never sounded.
Id. at 907 (emphasis added).
¶ 24. We find that the conflict between the event recorder data and the witnesses’ testimony presented a question of fact for the jury to resolve. Even if we wholly discount the “negative testimony” from Young’s family members who were at home and likely not attentive, as the sounds from the railroad would have become “a common occurrence in the daily routine of their lives,” there still remains testimony from Sims, Claiborne, and Wilson, who were sitting at the nearest railroad crossing and who did not hear the train horn blow. Sims testified she did not “recall” a horn blowing, and there was nothing to affect her ability to hear the horn. Sims stated that she and her passenger, Claiborne, were not listening to the radio and were waiting at the crossing for the train to pass.
¶ 25. In accordance with Maxwell, while “the greater weight of the credible evidence supports the view” that Herndon blew the horn, we are precluded from “acting upon that view,” as there is “some credible evidence that the [horn] never sounded.” Thus, we affirm the circuit court’s denial of the Appellants’ motion for a JNOV, a directed verdict, and peremptory instructions.
II. Whether the circuit court erred in denying the Appellants’ motion for a new trial.
¶ 26. “A motion for a new trial may be granted in several circumstances including where faulty jury instructions have been given, where the verdict is against the overwhelming weight of the evidence, or where bias, passion, or prejudice have tainted the jury’s verdict.” Fred’s Stores of Tenn., Inc. v. Pratt,
A. Whether the jury’s apportionment of fault was improper and against the weight of the evidence.
¶ 27. Mississippi follows the “comparative negligence doctrine,” which measures negligence “in terms of percentage, and any damages allowed shall be diminished in proportion to amount of negligence attributable to the person for whose injury, damage or death recovery is sought.” Meka,
i. Apportionment of fault to Illinois Central and Herndon
¶ 28. The Appellants contend there was “no basis to split or apportion liability between” Illinois Central and Herndon, its employee. Mississippi Code Annotated section 85-5-7(2) (Supp.2006) states in pertinent part that in any civil action based on fault, “an employer and the employer’s employee or a principal and the principal’s agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.” The Appellees argue that this distinction is irrelevant as Illinois Central will bear the monetary damages regardless. They state: “The only reasonable interpretation of the jury’s ’4CM0-20’ verdict in this case is that [Illinois Central] bears 80% of the fault for the subject action.”
¶ 29. The Appellants, over objection by the Appellees, submitted a jury instruction form, which allowed apportionment of fault to both Illinois Central and Herndon, separately. In fact, it was the Appellees who argued at trial that Hern-don and Illinois Central should have been “combined” as defendants. Consequently, although the Appellants now argue that both defendants ought to be combined for purposes of recovery, any error in apportioning fault between Illinois Central and Herndon is of the Appellants’ own making. Therefore, we find this issue is waived for consideration on appeal. See Savory v. First Union Nat’l Bank of Delaware,
ii. Apportionment of fault to Young
¶ 30. The Appellants argue that the jury’s apportionment of 80% fault to the Appellants and only 20% of fault to Young was against the overwhelming weight of the evidence. They refer to the fact that Young suffered from schizophrenia, which she failed to control with medication. The Appellants note that although several family members testified that Young was “fíne” in the months prior to the accident, there was sufficient evidence that Young was still suffering the effects of her illness. Dr. Mark Webb, a psychiatrist who testified at trial, stated in his report: “Ms. Young’s being hit by a train was caused or contributed to by her multi-
¶ 31. The Appellants further contend that, had she looked, Young would have seen the train, which was 6,903 feet long and weighed 12,096 tons. The accident occurred at mid-day; the weather was clear, and there was unrestricted visibility. There was testimony that, looking up the track from the point of impact, the train would have been visible from over 700 feet away. Furthermore, the train was traveling at only 43 miles per hour and should have been visible to Young for a minimum of fifteen seconds, had she been looking. The Appellants conclude that if Young “had exercised the minimum of care for herself, she would have seen the train and the headlight on the train, and if she had exercised only a minimum of ordinary care, she would have heard the train proceeding down the track on its approach, let alone the warnings sounded by Herndon.” Although much of the testimony regarding Young’s behavior was in conflict with her medical records, there was no evidence demonstrating that Young was experiencing any irrational or symptomatic behavior on the day of the accident. Her sisters and mother testified that she asked for money to buy a cigarette from the store, and an acquaintance, Claiborne, who saw Young on her way home said that she appeared “normal.”
¶ 32. However, we must agree with the Appellants that apportioning only 20% of negligence to Young was against the overwhelming weight of the evidence. Young was a trespasser or licensee to whom the Appellants owed a duty not to “willfully or wantonly” injure her. See Kendrick v. Quin,
¶ 33. Young was walking on the railroad cross-ties, an obviously dangerous activity, with her head down and inattentive to any approaching train.
A railroad-track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. This is true without regard to the place where the track is, whether in the country, where pedestrians are not expected to be, or at a public road crossing, or at a street crossing, or at the stations and depots of railroad companies, where persons are expected and invited to be present[.] ... [N]o matter where the track is located, any person who goes upon the same is bound to know that he is going upon a place where his presence would be attended with more or less danger. An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad-track at any place without using at least his sense of sight, if not that of hearing, to determine whether at the time and place he was about to cross the same there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend.
Holcomb v. Norfolk S. Ry.,
¶ 34. Based on our thorough review of the record, this Court can only conclude that the jury’s apportionment of fault and its verdict resulted from bias and prejudice against the Appellants, based on the testimony of the Appellees’ expert witness, Dr. Gary Long, that the event recorder data was faulty or had been manipulated in some manner. Dr. Long, over the objection of the Appellants, testified that it was “quite possible” to manipulate and alter the event recorder data. They contend that this was an “unsubstantiated assertion” for which Dr. Long provided no evidence and that Dr. Long “offer[ed] no explanation as to how the data could have been manipulated. or otherwise altered.”
¶ 35. Dr. Long admitted on cross-examination that he had no evidence that the data was manipulated:
Q. And matter of fact, while Mr. Barrett asked you some questions about fabrications or manipulation of data, isn’t it true, Dr. Long, that in spite of all of your expertise and all of your years of working with this stuff, as you’ve testified to, at your deposition you testified under oath you have no evidence that this data was fabricated or manipulated, did[n’t] you, sir?
A. I have no evidence of that. It could be just error which causes the problem, but that’s a possibility. It could be error or it could be fabricated. I just don’t know.
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Q. Even today, sir, you have no evidence that this event recorder data is manipulated or fabricated, do you, sir?
A. I don’t.
(Emphasis added). Further, Dr. Long offered no evidence that the event recorder data was “erroneous” or faulty. Although Dr. Long testified that data such as the wheel diameter had to be entered in order to provide accurate data, he furnished no information that the data was incorrectly entered.
¶ 36. In contrast, Dr. Peterson, testified that the data “absolutely” cannot be changed; rather, it merely “can be adjusted to account for time; in other words, known time of day.” Dr. Peterson submitted:
Q. Okay. What, if any, facts are at your disposal that would lead you to believe that this data is manipulated or inaccurate in any way?
A. I don’t have any evidence that it was manipulated or is inaccurate.
Q. Do you have an opinion to a reasonable degree — do you have any opinion to a reasonable degree of professional certainty as to whether the data on Exhibit 24 is accurate and reliable?
A. I would say that the data is accurate and reliable within the design of the system. I mean, it can only do what it’s designed to do, but in this ease I haven’t seen anything to indicate that it’s not performing as required.
(Emphasis added).
¶ 37. In Smith v. City of Gulfport,
¶ 38. The United States District Court of the Southern District of Mississippi has rejected identical testimony by Dr. Long. In Brown, the district court concluded: “Dr. Long’s speculative testimony on the alleged fallacy and possible manipulation of the train event data recorder is inappropriate, unsupported by relevant data or evidence, and would not be helpful to the jury.” Brown,
¶ 39. Like the district court in Brown, we find that Dr. Long’s “speculative testimony on the alleged fallacy and possible manipulation of the train event data recorder is inappropriate, unsupported by relevant data or evidence.” We also find it highly prejudicial.
¶ 40. In closing, counsel for the Appel-lees argued:
Expert witness Dr. Gary Long told us about event recorders. You remember that. He said they’re manmade machines, and they certainly can malfunction, and they’re only controlled by the railroad.
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Let’s go back to Dr. Gary Long’s testimony. In addition to telling us that the event recorder is manmade and can certainly malfunction and is only controlled by the railroad, Dr. Long testified that information in the event recorder can be changed, it can be altered, and it can be manipulated.
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The event recorder ought to be thrown in the bottom of a gully somewhere after they got through messing with it.
¶ 41. The testimony by Dr. Long regarding the “possibility” of the manipulation of data should have been excluded. We find that the verdict was the result of bias and against the overwhelming weight of the evidence; accordingly, we reverse the judgment and remand for a new trial, consistent with this opinion.
B. Whether the amount of the jury verdict is against the overwhelming weight of the evidence.
¶ 42. The jury awarded a general verdict of $2,000,000. In allocating the damages, the circuit court awarded the Appel-lees all requested economic damages and awarded the remainder as noneconomic damages, adjusted to conform to the statutory maximum award. The Appellants claim that the verdict was excessive, citing Young’s mental illness and the fact that she was incapable of caring for her children. Based on our reversal and remand for a new trial on the issue of apportionment of fault, we find it unnecessary to consider this issue on appeal. However, we will address two other issues that may be pertinent on remand — the composition of economic damages and the imposition of punitive damages.
III. Whether the circuit court erred in allowing the jury to consider Young’s future Social Security disability benefits as damages and in denying the Appellants’ motion to exclude Dr. David Channell’s testimony regarding the value of future benefits.
¶ 43. It was stipulated that Young received annual Social Security disability benefits of $6,948. The Appellees sought to have Young’s future disability benefit payments awarded as damages. At trial, the Appellants filed a motion to exclude the expert testimony of an economist, Dr. David Channell, regarding these future disability payments. They argued that the future benefits should not be allowed as damages since Young had not made any contributions to the Social Security system, and Dr. Channell’s testimony was “entirely speculative.” The Appellants reasoned:
Number 1, the benefits that she was receiving at the time of her death are Social Security disability benefits. I could find no Mississippi case that ever allowed the receipt of Social Security disability benefits to be allowed to be projected into the future and then reduced back to present value so as to support a claim for those losses.
And that particularly ought to be the case in this situation where Sharon Young was never employed, never employable, never contributed anything to the Social Security system whereby this-the receipt of those benefits would be something in the nature of a collateral source to which Sharon Young herself had contributed.
The second reason for the exclusion of Dr. Channell’s testimony is that he wishes to take these benefits of some $6,000 a year and project them out over a, quote, work-life expectancy[.]
The circuit court allowed Dr. Channell’s testimony based on Sandra’s testimony that the majority of the benefits had been used to support Young’s children, but determined that work-life expectancy was not an appropriate measure of the future present value of the benefits. Dr. Chan-nell was then allowed to extend the pay
A. Award of future Social Security disability benefits as wrongful-death damages
¶ 44. The Appellants contend that the “net present value” of Young’s future disability benefits “were not intended to be in the nature of a wage loss”; therefore, they are “an improper element of damages in a wrongful death action.” Since this issue has not been addressed by the Mississippi Supreme Court, we requested additional briefing by both parties regarding this issue and as to whether, if such benefits are recoverable and constitute a “loss of support” to Young’s minor representatives, the award survives past the dependents’ majority.
¶ 45. Before addressing these issues, however, we must clarify the type of Social Security benefits that Young received. Although the parties’ arguments suggest that Young’s benefits were Social Security disability income (SSDI), it is apparent from the record and applicable statutory authority that Young, in fact, was receiving Supplemental Security Income (SSI). In order to receive SSDI, a person under age 24, such as Young, would have been required to meet a “recent work” test and must have been employed for at least “1.5 years of work during the three-year period ending with the quarter [her] disability began.” SSA Pub. No. 05-10029 (June 2012); see also 20 C.F.R. § 404.130, § 404.315 (2012). It is undisputed that Young only worked a few months and was disabled due to her mental illness. Furthermore, the 2005 rate for SSI payments for a twelve-month period was $6,948, the precise amount of benefits stipulated by the parties. See http://www.ssa.gov/ pressoffice/factsheets/colafacts 2005-alt. htm. Therefore, we will limit our analysis specifically to the issue of whether a decedent’s SSI benefits may be awarded as damages in a wrongful-death suit.
¶ 46. Mississippi’s wrongful-death statute, section 11-7-13 of the Mississippi Code Annotated (Rev.2004), states, in pertinent part:
Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.
(Emphasis added). The Appellees contend that “the plain meaning of the language of the statute ... cast[s] an all-inclusive net in which future Social Security disability payments must be included as an elements of damages.” Indeed, the Mississippi Supreme Court has interpreted this statutory language to be “far-reaching” and “clear.” See Choctaw Maid Farms, Inc. v. Hailey,
¶ 48. Although a “power to labor” requirement has not been mandated by the Mississippi Supreme Court, as far back as New Deemer Manufacturing Co. v. Alexander,
¶ 49. We find that Young’s SSI benefits are not the type of benefits “rooted in the earnings of the decedent” as outlined in New Deemer, and may not be awarded as the present net cash value of the decedent. Under the Social Security Act, SSI was established for the aged, blind, and disabled to “assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.” 20 C.F.R. § 416.110 (2012) (emphasis added). “SSI payments are a form of public assistance and have nothing to do with earnings a person may have had.” Tenn. Dep’t of Human Servs. ex rel. Young v. Young,
¶ 51. In Avery v. Collins,
¶ 52. In addressing this issue of loss of support, or “gratuities,” to wrongful-death beneficiaries, the Mississippi Supreme Court determined in New Deemer that recovery of the present net cash value of the deceased and loss of support would not be permitted, as this would be considered “double damages.” New Deemer Mfg.,
The rights other than for loss of companionship, protection, and society of all the parties is rooted in the earnings of the decedent during his expectancy. So far as the present case is concerned ... the suit may be brought by one for all, or all may join in one suit, and the jury are to consider all the rights that all of the plaintiffs have and all damages that fall to each of them. But it is manifest that so far as the support is concerned that such support had the decedent lived must come out of his earnings. There was no other source of income in the present case for these benefits to flow from.
Id. (emphasis added).
¶ 53. Unlike New Deemer, Young did have a “source of income” other than earnings from which she supported her chil
¶ 54. As a result, we find that the circuit court erred in allowing the total amount of Young’s calculated future SSI benefits, based upon her life expectancy, to be considered by the jury. The circuit judge stated that the benefits should be allowed as damages as they went “for the care and benefit of the children”; yet the award that does not consider the amount of support and the number of years the children would have been dependent upon the mother is not an accurate measure of their damages.
B. Dr. Channell’s Expert Testimony
¶ 55. At trial, Dr. Channell acknowledged that he was not an expert on “Social Security regulations concerning the qualification and payment of [disability] benefits.” He was accepted by the court, rather, as an expert in economics and finance. Dr. Channell calculated that Young’s future disability benefits would be $212,057, and the jury was allowed to consider this as an element of economic damages.
¶ 56. The Appellants objected to this testimony at trial and, on appeal, the Appellants reassert that Dr. Channell’s testimony was “inherently speculative” and “should have been excluded due to a lack of sufficient foundational facts and a reliable methodology.” Specifically, they note Dr. Channell’s lack of expertise concerning Social Security regulations and his failure to consider Young’s schizophrenia when calculating her life expectancy.
¶ 57. Mississippi has adopted the standards from Daubert v. Merrell Dow Pharmaceuticals, Inc.,
¶ 58. We find no error in the circuit court’s denial of the Appellants’ motion to exclude Dr. Channell’s testimony. The supreme court has previously recognized and allowed expert testimony by Dr. Channell regarding the calculation of life expectancy and personal consumption to determine a damage award. See Greyhound Lines, Inc. v. Sutton,
¶ 59. In Illinois Central Railroad v. Hawkins,
[Illinois Central] makes no arguments why his figures are wrong other than referring to other testimony regarding [decedent’s] sporadic work history and mental problems. This Court finds that this other testimony addresses the problem [Illinois Central] sees with Channell’s figures, in that it rebuts his conclusion that she would have had a permanent minimum wage job. As this Court has stated, “when evidence is in conflict, the jury is the sole judge of both the credibility of a witness and the weight of his testimony.” Weathersby Chevrolet Co. v. Redd Pest Control Co.,778 So.2d 130 , 133 [ (¶ 10) ] (Miss.2001). Thus, this was a fact issue lying in the province of the jury, and we find no abuse of discretion in allowing this testimony.
The Appellants presented no evidence to rebut Dr. Channell’s testimony and report, except to note Young’s mental illness and to question whether her life expectancy should have been shorter based upon this fact. On remand, if the Appellants wish to provide additional evidence, they may do so; however, nothing in the record supports their argument that Dr. Channell’s testimony was insufficiently reliable or speculative.
160. Consequently, we find no error in the circuit court’s denial of the Appellants’ motion to exclude Dr. Channell’s testimony.
CROSS-APPEAL
¶ 61. As the circuit court found no evidence “that could arise to the level of actual malice or gross negligence on the part of the defendant,” the issue of punitive damages was not presented to the jury for consideration. The Appellees have filed a cross-appeal, asserting that the court committed reversible error by refusing to allow punitive damages to be considered by the jury.
¶ 62. “Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are
¶ 63. The Appellees contend that Illinois Central “had actual knowledge that its railroad track in essentially all of Tchula was commonly used by pedestrians as a longitudinal and lateral pathway.” They reference two prior accidents in Tchula several years prior concerning pedestrians struck by a train, and they claim Illinois Central’s “persistent indifference to public safety” warranted the imposition of punitive damages. Counsel for the Appellees stated at trial:
Our sole theory of recovery is failure to sound the warning, the horn. And the failure to fence was just part of the acquiescence that went into it in the analysis leading to their elevated duty of reasonable care.
¶ 64. The supreme court has held “that prior-accident evidence is admissible to show the railroad’s knowledge of a dangerous condition at the crossing, only when the prior-accident evidence involves accidents which are ‘similar.’ ” Irby v. Travis,
¶ 65. As to the duty owed to Young, the Mississippi Supreme Court has stated:
It is settled in this State that the servants of a railroad company in charge of its train are under no duty to keep a lookout for trespassers on the railroad track, and are required only to exercise reasonable care to prevent injuring a trespasser after they have discovered and realized his peril. The test of responsibility arises when the engineer becomes aware of the presence and peril of the trespasser. Until made aware of the presence and peril of the trespasser, there could not be wilful negligence or wanton misconduct toward an unrecognized, undiscerned trespasser.
See Ill. Cent. Gulf R.R. v. Ishee,
If the trespasser is an adult and apparently in possession of his faculties, ... the engineer is entitled to expect the person to hear the warning signals and remove himself from danger.... Specifically, then, upon seeing a person in danger, the “reasonable duty” has been fleshed out to mean that the whistle is to be blown if there is time within which this may be done.
Maxwell,
¶ 66. The Appellees submit that the train crew failed to sound the train’s horn and merely “watched their 42-mph train approach a pedestrian from behind for over seventeen (17) seconds.” They
¶ 67. Herndon testified that he saw Young and blew the horn as a warning; the event recorder data confirms his testimony. The Appellees submitted contrary evidence by witnesses that the horn was not blown. While the Appellees’ evidence is sufficient to survive a JNOV, we find that it is not clear and convincing evidence that Illinois Central or Herndon acted with malice or reckless disregard for Young’s safety. Accordingly, we find no error in the circuit court’s finding that the issue of punitive damages should not be submitted to the jury. This issue is without merit.
¶ 68. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED ON DIRECT APPEAL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. THE JUDGMENT IS AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES/CROSS-APPEL-LANTS.
Notes
. Mississippi Code Section 11 — 1—60(2)(b) (Supp.2005) provides that for any civil action filed on or after September 1, 2004, a plaintiff may not be awarded "more than One Million Dollars ($1,000,000.00) for noneconomic damages.” Neither party has challenged the circuit court's allocation between economic and noneconomic damages on appeal.
. These amounts reflect the 20% apportionment of fault attributable to Young.
. Archie concerned a pile of burning cross-ties that was blocking a "beaten path” on the tracks frequently used by pedestrians. When David Archie attempted to cross over the burning pile by walking on a cross-tie that had been placed over a ditch "forming a make-shift bridge,” he fell and was seriously injured. Archie, 709 F.2d at 288. The Fifth Circuit Court of Appeals held that whether the railroad had knowledge of the path and its frequent use was a question of fact for the jury. Id. at 290. In another case mentioned by the Appellees at trial, Illinois Central Railroad v. Dillon,
. The Appellants objected to the language accusing Illinois Central of knowledge and acquiescence; however, they do not challenge Jury Instruction P-3 on appeal.
. Russell concerned photographic evidence and engineer surveys that completely contra-dieted oral testimony. Id. at 748-49,
. While our case concerns a motion for a JNOV, not summary judgment, both concern whether the testimony creates an issue of fact for a jury to resolve. In finding there to be a genuine issue of material fact for trial, the Brown court acknowledged: "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Brown,
. We acknowledge that the veracity of some of the witnesses’ testimony in this case was questioned by the Appellants at trial. For instance, Sims claimed that she drove her car across the tracks immediately after the accident, even though the photos and testimony show the train was blocking the crossing for approximately an hour after the accident. The Appellees’ expert witness admitted that he could not "understand how [that testimony] could have been true,” concluding that the witnesses must have been "mistaken.” However, the issue of a witness's credibility is for the jury to determine. Noblin v. Burgess,
. This Court reaches its conclusion without considering the testimony offered by the Ap-pellees’ expert witness, Dr. Gary Long, as to the "possibility” that the event recorder data could be manipulated. Compare Brown,
. We note that while the Appellants detailed their argument regarding Dr. Long's testimony in the portion of the brief supporting a JNOV, they incorporated their arguments by reference in their request for a new trial.
. According to Dr. Peterson and Dr. Long, the event recorder data requires an input of the wheel diameter to accurately record pertinent data, such as speed, braking, and the timing of the utilization of the horn and whistle. Dr. Peterson testified that the diameter of the wheel is "important because that’s what’s letting the event recorder software calculate for how many times that wheel turned, how far did it actually travel, the distance and how fast was it traveling. So you’re adjusting the data for those — those things that have to be input by the user.” However, as Dr. Peterson stated, the input of the wheel diameter is required to calculate "speed and distance travel.” It does not affect the operation of the train’s horn or whistle.
. Further, when asked about the likelihood that the event recorder would show the horn being blown when it was not, Dr. Peterson testified: “Not that I can come up with.” Rather, he said that the data was far more likely to fail to show activation even though the horn was blown, usually attributable to mechanical or electrical issues.
. Although the Appellants objected to Dr. Long’s testimony regarding "possibilities,” they did not challenge his expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
. In Choctaw Maid, the supreme court allowed the award of hedonic damages to compensate for the loss of the enjoyment of life. In 2003, the Mississippi Legislature rejected the right to hedonic damages by enacting Mississippi Code Annotated section 11-1-69(2) (Supp.2008), which states: “In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.” While this legislative action provided the opening clause in section 11-7-13, the language regarding the award of "all damages of every kind” has remained.
. The Appellees’ expert witness used a thirty-percent consumption rate in the calculations.
. Other jurisdictions have analyzed whether to award future disability benefits as damages based upon the loss of support to the beneficiaries. In Estate of Holt v. State Farm Fire & Casualty Co.,
. The jury awarded a general verdict of $2,000,000. The circuit court amended the jury's verdict, reducing the net award to the Appellees to $1,174,761. The net award contained all economic damages considered by the jury, including the loss of Social Security disability benefits.
This figure submitted by Dr. Channell represents $302,940, which is the estimated total amount of disability benefits over Young's life expectancy, minus a thirty-percent reduction based upon personal consumption. This figure was then decreased in the circuit court’s judgment to $169,646 to reflect Young’s 20% allocation of fault.
Dissenting Opinion
dissenting:
¶ 69. The majority finds that Illinois Central should be granted a new trial because Dr. Long’s testimony that it is “quite possible” to manipulate and alter the event data recorder, without offering any evidence as to how that could be done, was extremely prejudicial, resulting in the jury allocating only 20% of fault to Sharon. I disagree. Therefore, I dissent. I would affirm the jury’s verdict.
¶ 70. A circuit court’s decision to deny a motion for a new trial is reviewed for abuse of discretion. Adcock v. Miss. Transp. Comm’n,
¶ 71. The jury’s verdict apportioned 20% of fault to Sharon, 40% to Illinois Central, and 40% to Herndon. Illinois Central contends that there is no basis for the jury’s apportionment of fault to both Illinois Central and its employee, Herndon, given that Illinois Central was vicariously liable for any negligent acts committed by Herndon in the course and scope of his employment. However, it was Illinois Central’s own jury instruction that called upon the jury to apportion fault among Sharon, Herndon, and Illinois Central.
¶ 72. Illinois Central also argues, and apparently the majority agrees, that the jury should have assigned more blame for the accident to Sharon’s negligence. However, our supreme court has previously rejected the argument that the failure to assign more blame to the decedent warrants a new trial. Ill. Cent. R.R. v. White,
¶ 73. The majority correctly finds that it was the province of the jury to determine whether the train’s whistle was blown, despite the conflict between the data from the event data recorder indicate ing that the whistle was blown and the testimonies of several witnesses, without a stake in the case, stating that the horn was not sounded. On these facts, I cannot see how Dr. Long’s statement was so prejudicial. At best, it was harmless error. There is no evidence that Dr. Long’s statement influenced the testimonies of the independent witnesses.
¶ 74. The evidence does not support a finding that the jury was somehow inflamed by Dr. Long’s simple statement of belief regarding the event data recorder. Moreover, a motion for a new trial implicates the considerable discretion of the trial judge. The evidence does not support a finding that the trial judge abused that discretion.
¶ 75. For the reasons presented, I dissent. I would affirm the judgment of the circuit court.
LEE, C.J., CARLTON AND RUSSELL, JJ., JOIN THIS OPINION.
. Instruction D-20 reads, in pertinent part:
If you find by a preponderance of the evidence that both Young and one or more of the Defendants were guilty of negligence which proximately contributed to the accident, then your verdict should be in the following form:
"We, the juxy, find ... the causal negligence for the accident to be”
Sharon Young: _%
Fred Herndon: _%
Illinois Central: _%
(With the total percentages being 100%).
We, the jury, find the PIaintiff[s]’ total damages to be in the amount of $_”
. Instruction D-l 1 reads, in pertinent part: The Court instructs the jury that if you find that the Defendants were negligent and that such negligence, if any, contributed to the accident in question, and if you further find that Sharon Young’s negligence contributed to the accident in question, then the damages recoverable by the Plaintiffs must be reduced in proportion to the amount of Sharon Young’s negligence.
. Instruction D-22 reads, in pertinent part:
You are instructed that mentally impaired persons are required to exercise the same degree of care as un-impaired persons under the same circumstances.
You are instructed that if any impairment to Sharon Young prevented her from realizing that the train was approaching, and if you further find that a reasonably careful person without such impairments under the same circumstances would have taken steps to avoid the accident, you are instructed that Sharon Young was negligent.