Smith v. Minier
| Decision Date | 07 March 2023 |
| Docket Number | 2021-CA-01284-COA |
| Parties | LESLIE SMITH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARCUS D. SMITH APPELLANT v. ROSALINDE MINIER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF INGEBORG STEINER, AND WERNER ENTERPRISES, INC. APPELLEES |
| Court | Mississippi Court of Appeals |
BEFORE WILSON, P.J., WESTBROOKS AND EMFINGER, JJ.
¶1. Marcus Smith (Marcus) died of acute liver failure after being involved in a doublevehicle accident causing him neck and back pain. Afterward, his widow Leslie Smith (Smith) filed a wrongful death complaint individually and as a representative of his estate. The Defendants filed a joint motion for partial summary judgment, which the trial court granted and then dismissed Smith's wrongful death claim against all the Defendants. After review of the trial court's decision, we reverse and remand.
¶2. On April 2, 2013, Charles Emslie was driving eastbound in a tractor-trailer, owned by Landstar Ranger Inc. (Landstar), on Interstate 10 in Jackson County, Mississippi, when he drove into a fog that hindered his visibility and made him slow down. After receiving a report about the fog through the radio, Emslie tried to pull off the road. Unfortunately before Emslie could transition to the right shoulder of the interstate, he felt a vehicle strike his truck in the rear. Ingeborg Steiner,[1] driving a 2007 Buick van, was the driver of the vehicle that struck Emslie's truck and caused it to roll over and block the left eastbound lane. ¶3. Around midnight, Marcus, on behalf of MDV Nash Finch (MDV), was also traveling east when he saw the fog. Driving in the left lane, he unsuspectingly came upon the aftermath of Emslie and Steiner's collision. In his attempt to avoid the collision, he swerved but eventually lost control of the truck he was driving.
¶4. Randy Roy Sharp, who also worked for MDV, was sleeping in the back cot when Marcus began swerving. At that time, the truck traveled across the median, overturned, and did not stop until it reached the westbound lane. After a moment, Sharp and Marcus attempted to get out of the truck. They ultimately did not have time because less than a minute later, another tractor-trailer crashed into Marcus' rig.
¶5. Daniel Mitchell III, who was driving for Werner Enterprises Inc., passed by the Pascagoula and Moss Point exits on Interstate 10. After passing the exits, Mitchell realized that he was no longer able to see the side of the road. He started slowing down to get off the highway. The parties dispute how fast Mitchell was driving at the time. In any event, Mitchell then saw a "jackknifed" trailer blocking the road. Mitchell attempted to swerve around the trailer. Mitchell slammed on his brakes, but his trailer would not stop moving. Consequently, Mitchell crashed into Marcus' rig. Thereafter, Mitchell called his safety dispatcher and reported the incident.
¶6. The ambulance arrived and took Marcus to Singing River Hospital in Pascagoula, Mississippi. While in the emergency room, Marcus complained of neck and back pain to the emergency room physician. In response, Singing River subjected Marcus to a computed tomography (CT)[2] scan. The emergency physician requested a consult from the neurosurgeon, Dr. Kesterson, who then reviewed Marcus' CT scan and concluded that Marcus suffered from a Hangman's Fracture.[3]
¶7. When Smith arrived at Singing River, she was told that Marcus had a neck injury and pain on the right side of his chest. Dr. Kesterson prescribed Marcus a pain medication called Lortab, which is a combination pill consisting of hydrocodone (an opioid) and acetaminophen, namely Tylenol. That same day, Marcus was discharged from Singing River, and went home to Pensacola, Florida.
¶8. Smith retrieved a fifty-six-quantity supply of Marcus' Lortab prescription from the Winn-Dixie pharmacy on April 3, 2013. When Dr. Kesterson was asked about the scheduled dosage he prescribed to Marcus, he stated that he prescribed for Marcus to take the medication "every six hours as needed." Dr. Kesterson further stated that "it was not a scheduled dosing, but just to take it if he feels like he needs some pain relief." But Smith's expert witness Dr. Neil Julie later testified that the prescription, as written on Marcus' medical chart, directed that Marcus be given "one to two tablets every four hours." Marcus' discharge summary directed Marcus to take "one tablet every six hours." Smith stated that she followed "the prescription from the bottle and did what the bottle said," which was "two tablets every six hours." Within six days, Smith was at home dialing 911 because her husband became "combative" and had blood in his urine. It is disputed whether Marcus took eight pills a day or approximately ten or eleven pills a day. Smith told the emergency responders that the entirety of the fifty-six-quantity supply was "gone." Smith also said that Dr. Kesterson never told her how many Lortab pills per day she needed to give to Marcus. Smith further stated that none of the doctors provided her with a maximum amount to give Marcus within twenty-four hours either. Responding to the call, Pensacola Escambia EMS arrived in an ambulance and drove Marcus to Sacred Heart Hospital. While at Sacred Heart, Marcus presented as having "acute fulminant liver failure secondary to Tylenol toxicity." Sacred Heart kept Marcus for "over the course of approximately [one] week" and eventually stabilized him. During this time, the doctors at Sacred Heart discovered that Marcus suffered rib fractures from the vehicular accident, in addition to his neck and back injuries. Once discharged, Smith retrieved Marcus' second-quantity supply of Marcus' hydrocodone prescription. The initial prescription was for 120 pills.
¶9. Four days later, Marcus returned to Sacred Heart. At this time, the doctors at Sacred Heart performed a liver biopsy. The biopsy showed Marcus as having "steatosis" and "secrosis," which indicated "acute Tylenol toxicity with liver failure." Again, Sacred Heart commenced with treatment and stabilized Marcus' liver. He was discharged on May 7, 2013. ¶10. A few months later, Marcus went to the University of Alabama at Birmingham Hospital (UAB). The UAB autopsy report later stated that on August 17, 2013, Marcus was, again, "combative," among other things. The autopsy report also stated that Marcus developed acute respiratory failure. Regrettably, however, the professionals at UAB were unable to prevent Marcus' death. On September 24, 2013, Marcus died as a result of acute chronic liver failure.
¶11. This wrongful death action began on September 8, 2015, as a result of Smith's filing a complaint requesting damages for pain and suffering on the basis of negligence and personal injury[4] against Emslie, Landstar, Steiner, Mitchell, Werner, and Progressive American Insurance Company (collectively "Defendants") in Jackson County, Mississippi.
Smith alleged that Emslie was negligent because he drove below the minimum speed limit and failed to use due care when slowing down and that Landstar was vicariously liable for Emslie's actions. Smith next alleged that Steiner acted negligently because she failed to yield, drove too fast during a fog, and drove while intoxicated. Additionally, Smith alleged that Mitchell acted negligently by failing to slow down during a severe weather condition, which led to his collision with Marcus' rig. Smith then alleged that Werner was vicariously liable for Mitchell's actions. Finally, Smith demanded that Progressive pay compensatory damages as Marcus' insurer.
¶12. The Defendants timely answered Smith's complaint. During an exhaustive discovery process, which had not yet been completed, the Defendants jointly moved for partial summary judgment as to Smith's wrongful death claim. The trial court held the summary judgment hearing on April 26, 2018, and granted the Defendants' motion for partial summary judgment. The trial court also dismissed Smith's claim for relief due to pain and suffering. ¶13. Smith petitioned for interlocutory review to the Mississippi Supreme Court on July 10, 2018. On October 25, 2018, in a 5-4 en banc decision, our supreme court denied the petition for interlocutory review.[5] On April 30, 2021, Smith moved for the trial court to reconsider its partial summary judgment order. On May 24, 2021, the Defendants requested the court to deny Smith's motion for reconsideration. On October 21, 2021, the trial court entered its final judgment in favor of the Defendants. Smith appeals from the trial court's final judgment.
¶14. During the above proceedings, the trial court dismissed Progressive.[6] Next, the trial court dismissed defendants Landstar and Emslie from the action due to their having settled their disputes with Smith outside of litigation. Later, the trial court dismissed Mitchell from the suit as agreed to by the parties. The remaining defendants are Steiner and Werner.
¶15. "This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc." McCary v. Wade, 861 So.2d 358, 360 (¶6) (Miss. Ct. App. 2003); Owens v. Brooks, 321 So.3d 1202, 1204 (¶4) (Miss. Ct. App. 2021).
¶16. Smith argues that the trial court's grant of partial summary judgment in favor of the Defendants should be reversed because (1) the trial court applied the incorrect foreseeability ...
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