Mississippi Valley Silica Company, Inc. v. Dorothy Barnett

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-01296-COA

MISSISSIPPI VALLEY SILICA COMPANY, INC. APPELLANT

v.

DOROTHY BARNETT, INDIVIDUALLY AND APPELLEE
AS WRONGFUL DEATH BENEFICIARY OF
HOWARD BARNETT, DECEASED, AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF HOWARD BARNETT,
DECEASED

DATE OF JUDGMENT: 11/28/2012
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: JOHN D. COSMICH
MICHAEL D. SIMMONS
LAKEYSHA GREER ISAAC
ATTORNEYS FOR APPELLEE: PATRICK MALOUF
ROBERT ALLEN SMITH JR.
TIMOTHY W. PORTER
JOHN TIMOTHY GIVENS
DAVID NEIL MCCARTY
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: ENTERED JUDGMENT IN FAVOR OF
APPELLEE FOR $1,095,000, INCLUDING
$500,000 IN PUNITIVE DAMAGES, PLUS
EIGHT PERCENT POST-JUDGMENT
INTEREST, FOLLOWING JURY VERDICT
IN FAVOR OF APPELLEE; AND
AWARDED ATTORNEYS’ FEES OF
$212,312.50, PLUS POST-AWARD
INTEREST OF EIGHT PERCENT
DISPOSITION: AFFIRMED IN PART AND VACATED AND
REMANDED IN PART - 08/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
 EN BANC.

WILSON, J., FOR THE COURT:

¶1. From about 1960 to 1970, Howard Barnett worked for Mississippi Steel and Iron

Company (MSIC) approximately forty to sixty-five feet away from sandblasting operations.

Howard and a coworker both testified that silica sand supplied by Mississippi Valley Silica

Company (Valley) was one of two brands of sand used in the sandblasting. They also

testified that their work conditions were extremely dusty due to the nearby sandblasting

operations. Howard was eventually diagnosed with silicosis, and he filed suit against Valley

and other defendants, alleging that his disease was caused by his exposure to silica at MSIC.

Howard alleged that Valley’s sand was defective because it failed to provide adequate

warnings and instructions regarding the dangers of silica. Howard passed away after he filed

suit, and his wife, Dorothy Barnett, was substituted as the plaintiff in her individual capacity

and on behalf of all of Howard’s wrongful death heirs.

¶2. The case eventually proceeded to trial against Valley only, and the jury returned a

verdict in favor of Dorothy. The jury found that Dorothy had proven both economic and

noneconomic damages and assigned Valley thirty-five percent fault for Howard’s injuries.

The trial court then submitted the issue of punitive damages to the jury, and the jury returned

a verdict for punitive damages in the amount of $500,000. After judgment was entered on

the verdict, the trial court also awarded Dorothy attorneys’ fees. The trial court denied

Valley’s post-trial motions for judgment notwithstanding the verdict (JNOV) or a new trial

and to alter or amend the judgment, and Valley appealed.

2
¶3. On appeal, Valley raises a number of issues, which may be restated as follows: (1)

whether the judgment must be reversed and rendered because Dorothy never opened an estate

and lacks “standing” to recover “survival damages” in her individual capacity or as a

wrongful death heir; (2) whether Howard’s/Dorothy’s claim was barred by the applicable

statute of limitations; (3) whether the trial court erred by instructing the jury that Valley had

a duty to provide warnings to persons who might “reasonably be expected to be in the

vicinity of the product’s probable use and to be endangered by it if defective”; (4) whether

Valley is entitled to JNOV or a new trial because Dorothy failed to prove that Howard was

exposed to Valley sand or harmful levels of silica or that Valley breached its duty to warn;

(5) whether the trial court erred by submitting the issue of punitive damages to the jury; (6)

whether the statutory cap on punitive damages required the trial court to remit punitive

damages to $0; (7) whether the trial court misapplied the apportionment statute and the

statutory cap on noneconomic damages; and (8) whether the trial court’s award of attorneys’

fees was an abuse of discretion. We find no reversible error with respect to the first seven

issues and therefore affirm the circuit court’s judgment in favor of Dorothy for actual and

punitive damages. However, we conclude that the trial court abused its discretion by

awarding Dorothy $212,312.50 in attorneys’ fees without any supporting findings of fact or

conclusions of law. We therefore vacate and remand the award of attorneys’ fees for

redetermination based on appropriate findings and conclusions.

FACTS AND PROCEDURAL HISTORY

¶4. Howard Barnett worked for MSIC for thirty years. From about 1960 to 1970, Howard

3
worked in a covered area of MSIC’s facility on High Street in Jackson as a saw operator and

crane operator. During that time, he worked approximately forty to sixty-five feet away from

sandblasting operations. Howard and one of his former coworkers, Lee Burch, testified that

on a daily basis, their workspace was extremely dusty because dust from the sandblasting

operations carried easily through the air. Howard testified that he “ate a lot of sand” while

working at MSIC during this decade and that the “sand was rough up there” even when he

operated a crane. The sandblasting created enough dust that MSIC’s neighbor complained

about it. Howard and Burch both testified that they observed bags of silica sand

manufactured by Valley and Southern Silica being used in MSIC’s sandblasting operations.

¶5. After Howard retired, he developed significant pulmonary issues and other health

problems. His family practitioner, Dr. Charles Pruitt, initially diagnosed Howard as suffering

from chronic obstructive pulmonary disease (COPD) and treated him accordingly. However,

as Howard’s pulmonary health worsened, Dr. Pruitt eventually referred him to Dr. Julian

Rose, a pulmonologist. Dr. Rose treated Howard for several years and eventually diagnosed

him with silicosis. Howard passed away in February 2011.

¶6. Prior to his death, Howard filed the instant lawsuit against Valley and other

defendants. Howard’s complaint alleged that his lung injuries were caused by exposure to

silica and that Valley’s sand was defective because it failed to contain adequate warnings of

the dangers of silica. See Miss. Code Ann. § 11-1-63(a) (Rev. 2014). Certain defendants

subsequently filed motions for summary judgment, which Valley joined, arguing that

Howard’s injuries were discoverable in 2005, so the three-year statute of limitations had run

4
before he filed his lawsuit in 2010. However, the trial court denied these motions.

¶7. After Howard’s death in February 2011, his attorneys filed a suggestion of death and

motion to file an amended complaint to substitute his wife, Dorothy Barnett, as the plaintiff.

The trial court granted the motion, and Dorothy filed an amended complaint, individually and

on behalf of all of Howard’s wrongful death beneficiaries. After other defendants were

dismissed, the case eventually proceeded to an October 2012 jury trial against Valley only.

Dorothy’s only claim at trial was that Valley failed to provide adequate warnings of the

dangers of silica. It was undisputed that Valley’s sand was manufactured, marketed, and sold

for use in sandblasting operations. It was also undisputed that there were no warning labels

or safety instructions on Valley’s sand during the relevant period.

¶8. The jury found in favor of Dorothy and apportioned fault thirty-five percent to Valley,

thirty-five percent to Southern Silica, and thirty percent to MSIC. The jury also found

economic damages of $165,615.73; noneconomic damages of $1,034,384.27; and damages

for loss of consortium of $500,000. The trial court then submitted the issue of punitive

damages to the jury, and the jury awarded $500,000 in punitive damages. The trial court

entered judgment in favor of Dorothy for $1,095,0001 plus costs and post-judgment interest.

¶9. After judgment was entered, Dorothy filed a motion for costs and attorneys’ fees, and

Valley filed a motion for JNOV or a new trial and a motion to alter or amend the judgment.

In the latter motion, Valley argued that the judgment should be reduced pursuant to the

statutory cap on noneconomic damages, Miss. Code Ann. § 11-1-60(2)(b) (Rev. 2014), and

1
This amount consisted of thirty-five percent of the $1,700,000 in total compensatory
damages found by the jury plus the $500,000 award of punitive damages.

5
that the statutory cap on punitive damages, Miss. Code Ann. § 11-1-65(3)(a) (Rev. 2014),

precluded any award of punitive damages. The trial court denied Valley’s motions and later

awarded Dorothy attorneys’ fees in the amount of $212,312.50.

¶10. Valley filed a timely notice of appeal from the final judgment of the circuit court.

Additional facts and procedural history are discussed below in connection with the various

issues raised by Valley on appeal.

DISCUSSION

¶11. The issues raised by Valley on appeal are set out above in paragraph 3. We address

these issues in turn below.

I. The absence of an estate does not require reversal.

¶12. “The wrongful death statute allows the statutory heirs to recover damages for the

defendant’s wrongful, lethal conduct.” In re Estate of England, 846 So. 2d 1060, 1068 (¶23)

(Miss. Ct. App. 2003) (citing Miss. Code Ann. § 11-7-13 (Supp. 2002)). Therefore, “[t]o be

entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct

proximately caused the death.” Id. If the wrongful death plaintiff meets this burden, then

“any damages for personal injuries suffered by the decedent during [his] lifetime are [also]

recoverable in the wrongful death suit.” Id. at (¶25). However, if it is not proven that the

defendant’s wrongful conduct proximately caused the decedent’s death, “there [can] be no

recovery for the heirs under the wrongful death statute.” Id. at (¶26). In that case, any right

to recover damages for personal injuries that the decedent suffered during his lifetime would

belong to the decedent’s estate under the “survival statute.” Id.; see Miss. Code Ann. § 91-7-

6
233 (Rev. 2013).

¶13. Valley argues that the foregoing principles require us to reverse and render judgment

in its favor. Valley argues that the jury found that it “was not responsible for Howard’s

death,” and therefore Dorothy lacked “standing” to recover any damages related to Howard’s

exposure to silica. We disagree for three reasons, which we summarize briefly here and

explain in more detail below. First, a cursory reading of the jury’s verdict shows that the jury

actually found that Valley’s “failure to warn . . . was a proximate cause of Howard Barnett’s

lung condition and death” (emphasis added), which directly contradicts the basic premise of

Valley’s argument. This finding was inconsistent with another of the jury’s findings, but if

Valley intended to argue that one of two conflicting findings constituted a rejection of

Dorothy’s wrongful death claim, it should have requested clarification of the verdict. We

conclude that it waived this issue by failing to do so.

¶14. Second, we conclude that Valley’s objection is not a jurisdictional issue of “standing”

but a real-party-in-interest objection, which may be waived if not timely asserted. M.R.C.P.

17(a). We conclude that Valley waived the issue by failing to raise it until after judgment

had been entered on the verdict.

¶15. Third, even if Valley had preserved the issue by making a timely objection in the trial

court, we do not believe that Mississippi Supreme Court precedent requires us to reverse and

render judgment in favor of Valley. See generally Methodist Hosp. of Hattiesburg Inc. v.

Richardson, 909 So. 2d 1066 (Miss. 2005) (Richardson II). Rather, Rule 17(a) makes clear

that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the

7
real party in interest until a reasonable time has been allowed after objection for ratification

of commencement of the action by, or joinder or substitution of, the real party in interest.”

M.R.C.P. 17(a). Further, “such ratification, joinder or substitution shall have the same effect

as if the action had been commenced in the name of the real party in interest.” Id. Thus, at

most, we would remand the case to afford Dorothy a “reasonable time” to open an estate and

join it as a party. However, we need not do so in this case because we conclude that Valley

has waived any real-party-in-interest objection.

A. The verdict form does not establish that the jury
rejected Dorothy’s wrongful death claim. The verdict
form is internally inconsistent, but Valley waived any
argument based on the inconsistency.

¶16. Valley’s threshold argument on appeal is that “[b]ecause the Hinds County jury

expressly determined that . . . Valley was not responsible for Howard Barnett’s death, there

could be no recovery for his heirs under the wrongful death statute.” Appellant’s Br. at 8.

Valley argues that, based on this supposed express determination by the jury, Dorothy lacks

“standing” to recover survival damages. Id. In response, Dorothy seemingly accepts

Valley’s premise that “the jury did not find for [her] on her wrongful death claim,”

Appellee’s Br. at 21, but she contends that Valley’s argument is procedurally barred and

misinterprets relevant precedents. A clear understanding of the jury’s findings is necessary

to determine the legal effect of the verdict. The jury answered the first five questions of the

verdict form as follows:

VERDICT FORM

Answer “Yes” or “No” to all questions unless otherwise instructed.

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1. Do nine (9) or more of you find that Plaintiffs have proved by a
preponderance of the evidence that silicosis or silica-related diseases
were a substantial contributing cause of Howard Barnett’s lung
condition?

Yes T No

2. Do nine (9) or more of you find that Plaintiffs have proved beyond a
preponderance of the evidence that silicosis or silica-related diseases
wer[e] a substantial contributing cause of Howard Barnett’s death?

Yes No T

3. Do nine (9) or more of you find that Plaintiffs have proved by a
preponderance of the evidence that Howard Barnett had substantial
exposure to respirable silica from sand supplied by Mississippi Valley
Silica Company, Inc.?

Yes T No

If you[r] answer to the above question is “No,” you may stop at
this point and return this form into open Court as the verdict of
the jury. If your answer to the above question is “Yes,” you
must proceed to the next question on this form.

4. Do nine (9) or more of you find that Plaintiffs have proved by a
preponderance of the evidence that a failure to warn on behalf of
Mississippi Valley Silica Company, Inc. was a proximate cause of
Howard Barnett’s lung condition and death?

Yes T No

If you[r] answer to the above question is “No,” you may stop at
this point and return this form into open Court as the verdict of
the jury. If your answer to the above question is “Yes,” you
must proceed to the next question on this form.

5. What amount, if any, do nine (9) or more of you determine to be
Howard Barnett’s damages that were proximately caused and
contributed to by exposure to respirable silica? Enter the amount on the
line:

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 Economic Damages $ 165,615.73
Non-Economic Damages (pain and suffering) $ 1,034,384.27
Wrongful Death $ 0.00
Loss of Consortium $ 500,000.00
TOTAL (add amounts above) $ 1,700,000.00

¶17. Thus, in Question 4, the jury expressly found that Valley’s “failure to warn . . . was

a proximate cause of Howard Barnett’s lung condition and death” (emphasis added). The

jury’s answer to Question 4 directly contradicts Valley’s assertion on appeal that the “jury

expressly determined that . . . Valley was not responsible for Howard Barnett’s death.”

Moreover, the jury’s answer to Question 4 indicates that Dorothy is entitled to recover

damages under the wrongful death statute, Miss. Code Ann. § 11-7-13 (Supp. 2015). “To

be entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct

proximately caused the death.” England, 846 So. 2d at 1068 (¶23) (citing Berryhill v.

Nichols, 171 Miss. 769, 773, 158 So. 470, 471 (1935)). Thus, the jury found that Dorothy

had proven exactly what she needed to prove as a wrongful death plaintiff.

¶18. However, the jury’s answer to Question 4 is inconsistent with its answer to Question

2. The jury’s finding that Valley’s failure to warn proximately caused Howard’s death

logically required a finding that silica-related disease was a substantial contributing cause of

his death. Dorothy alleged that Valley’s conduct caused Howard’s silica-related disease,

which caused his death. No alternative causal chain was alleged. If such disease proximately

caused Howard’s death, it necessarily was a substantial contributing cause.2 Thus, the jury’s

2
See Glenn v. Peoples, 185 So. 3d 981, 986-87 (¶¶18-20) (Miss. 2015) (explaining
that in a case involving multiple tortfeasors, proximate causation requires proof that the
defendant’s conduct “was a substantial factor in bringing about the harm”).

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finding in response to Question 2 that silica-related disease was not “a substantial

contributing cause of Howard Barnett’s death” is inconsistent with its finding in response to

Question 4 that Valley’s conduct was a proximate cause of Howard’s death.3

¶19. Valley also emphasizes that the jury found no damages for “Wrongful Death,” but we

do not believe that anything can be inferred from that. The jury was instructed on the

meaning of noneconomic damages,4 but there were no specific instructions regarding

damages for “Wrongful Death,” damages for “Loss of Consortium,” or “Economic

Damages.” Given that the jury found that Howard/Dorothy had suffered economic damages

of $165,615.73 (for Howard’s medical bills), pain-and-suffering damages of $1,034,384.27,

and damages of $500,000 for loss of consortium, the fact that the jury made no additional

finding of “Wrongful Death” damages—a concept that the jury instructions left

undefined—does not imply a rejection of Dorothy’s wrongful death claim. Indeed, since

Dorothy did not put on evidence of any other economic damages, such as lost wages, it

would appear that the jury separately found all types of wrongful death damages that are

available under Mississippi law.5 Therefore, nothing should be inferred from the fact that

3
The completed verdict form returned by the jury suggests that the jury may have
experienced some indecision in answering Question 2. The jury appears to have checked
both “Yes” and “No” before finally settling on “No.”
4
The jury was instructed: “‘Noneconomic damages’ mean[s] subjective,
nonmonetary damages arising from pain, suffering, mental anguish, emotional distress,
physical impairment, loss of the enjoyment of loss [sic], loss of consortium, and other
nonmonetary damages. The term ‘noneconomic damages’ does not include punitive
damages.”
5
See Laney v. Vance, 112 So. 3d 1079, 1081 (¶6) (Miss. 2013) (“[D]amages [in a
wrongful death action] are limited to: ‘(1) the present net cash value of the life expectancy

11
the jury did not award any additional “Wrongful Death” damages.

¶20. Nonetheless, the jury’s answers to Question 2 and Question 4 are inconsistent. The

question is whether that inconsistency entitles Valley to any relief given that neither party

raised the issue before the jury was discharged. We addressed a similar issue in Bartley-Rice

v. State Farm Mutual Automobile Insurance, 172 So. 3d 1227 (Miss. Ct. App. 2014), a

negligence action involving an automobile accident. There, the jury returned a handwritten

general “verdict for the [two] defendants” that stated that “the accident was unavoidable” and

that “[t]he amount of damages [was] 0.” Id. at 1228 (¶7) (brackets omitted). However, in

a special verdict form the jury found that both the plaintiff and the defendants were guilty of

negligence that proximately caused the plaintiff’s injuries. Id. The special verdict form also

apportioned sixty-five percent fault to the defendants. Id. The trial judge reviewed the

handwritten general verdict and the special verdict form and told the attorneys that, in his

opinion, the two were “not really contradictory” and “[t]he end result [was] the same.” Id.

at 1229 (¶12). Based on the judge’s assurances, the parties agreed that it was unnecessary

to ask the jury to clarify its verdict. Id. The judge then read both the handwritten general

verdict and the special verdict form in open court and polled the jury. Id. at (¶13). Neither

party objected or requested clarification, and the judge discharged the jury and entered

judgment on the handwritten verdict for the defendants. Id. at (¶14). On appeal, the plaintiff

argued that a new trial was required due to the “obvious conflict” between the handwritten

of the deceased, (2) the loss of the companionship and society of the decedent, (3) the pain
and suffering of the decedent between the time of injury and death, and (4) punitive
damages.’”) (quoting McGowan v. Estate of Wright, 524 So. 2d 308, 311 (¶6) (Miss.
1988))).

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verdict and the special verdict form, but this Court held that the issue was procedurally

barred because it was not raised at trial. See id. at (¶¶15-16).

¶21. Similarly in this case, the verdict form and the jury’s answers were read in open court.

The trial judge then asked the parties if there were “[a]ny questions or comments,” and there

were none. The trial then proceeded to the punitive damages phase, and finally the jury was

discharged. Only later did Valley assert that the jury’s answer to Question 2 constituted a

rejection of Dorothy’s wrongful death claim. However, as explained above, Valley ignores

the jury’s finding in response to Question 4 that its wrongful conduct proximately caused

Howard’s death. Although the two answers are inconsistent, Valley never raised the issue

or sought clarification of the verdict before the jury was discharged. Under the reasoning of

Bartley-Rice, the issue is procedurally barred.

¶22. If Valley believed that an award of damages was precluded by one of two inconsistent

findings in the verdict form, it was incumbent on Valley to seek clarification of the verdict

while that was still possible. Having failed to do so, Valley cannot now challenge the

judgment based on the one finding that is helpful to its position while ignoring the jury’s

finding in favor of Dorothy. In response to Question 4, the jury found that Valley’s “failure

to warn . . . was a proximate cause of Howard Barnett’s lung condition and death.” This is

exactly what the law required Dorothy to prove in order to prevail on her wrongful death

claim. England, 846 So. 2d at 1068 (¶23).

¶23. We also note that although Valley now argues that the jury’s negative answer to

Question 2 should have disposed of the entire case, the verdict form itself suggests otherwise.

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The verdict form—to which the parties agreed—instructed the jurors that if they answered

“Yes” to Question 3, then they were required to proceed to Question 4. On its face, this

instruction applied regardless of the jury’s answer to Question 2. Indeed, the structure of the

verdict form effectively rendered moot the jury’s answers to both Question 1 and Question

2. This probably was not what the parties had in mind, but it is what the verdict form said.

¶24. In summary, the fundamental premise of Valley’s argument—that the “jury expressly

determined that . . . Valley was not responsible for Howard Barnett’s death”—is contradicted

by the jury’s verdict. The jury expressly found that Valley’s wrongful conduct was a

proximate cause of Howard’s death, which is the essence of a statutory wrongful death claim.

The jury’s verdict was internally inconsistent, and one of its findings does support Valley’s

argument; however, Valley waived that argument by failing to seek clarification of the

verdict before the jury was discharged.6

B. Dorothy had standing to sue, and Valley waived any
objection that she is not the real party in interest.

¶25. Valley’s argument that Dorothy lacks “standing” to recover the damages that the jury

awarded also conflates Dorothy’s basic standing to sue with her ability to recover damages

on a particular claim. Valley’s real objection is that Dorothy, in her role as a wrongful death

beneficiary, is not the real party in interest to recover the particular damages awarded to her

because, in Valley’s view, the jury found that its conduct was not a proximate cause of

6
Even if Valley had preserved this issue, the appropriate relief would not be to
reverse and render judgment in Valley’s favor, as Valley argues on appeal. When a special
verdict contains irreconcilable findings such that the intent of the jury cannot be discerned,
it is not this Court’s role to pick one finding and “disregard” the other. First Bank of Sw.
Miss. v. Bidwell, 501 So. 2d 363, 366 (Miss. 1987). Rather, a new trial is required. Id.

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Howard’s death.7 The proper characterization of the issue is significant because “standing

is a ‘jurisdictional issue which may be raised by any party or the Court at any time,’” Kirk

v. Pope, 973 So. 2d 981, 989 (¶22) (Miss. 2007) (quoting City of Madison v. Bryan, 763 So.

2d 162, 166 (Miss. 2000)), but a “real-party-in-interest defense must be timely and may be

waived if tardily asserted,” id. at 988 (¶21). For the reasons discussed below, Dorothy had

“standing,” and Valley waived any claim that she was not the real party in interest with

respect to the damages that she ultimately recovered.

¶26. As our Supreme Court has explained, it is a mistake to “confuse standing to sue with

the right to relief.” White Cypress Lakes Dev. Corp. v. Hertz, 541 So. 2d 1031, 1034 (Miss.

1989). Thus, the rule that a suit must be prosecuted in the name of the real party in interest,

see M.R.C.P. 17(a), is distinct from and must not be confused with the jurisdictional doctrine

of standing. See Kirk, 973 So. 2d at 988-90 (¶¶20-29); Richardson v. Edwards, 127 F.3d 97,

99 (D.C. Cir. 1997) (applying Federal Rule of Civil Procedure 17(a)); FDIC v. Bachman, 894

F.2d 1233, 1235-36 (10th Cir. 1990) (same).8 “The law of standing is almost exclusively

concerned with such public law questions as determinations of constitutionality and review

of administrative or other governmental action.” Bachman, 894 F.2d at 1235 (quoting

Charles Alan Wright, The Law of Federal Courts § 13, at 60 (4th ed. 1983)). In contrast, the

7
As discussed in the previous section, the jury actually found that Valley’s wrongful
conduct was a proximate cause of Howard’s death. However, the discussion in this section
accepts, solely for purposes of argument, Valley’s contention that the jury found otherwise.
8
“[W]ith the exception of slight changes or deletions, Rule 17(a) of the Mississippi
Rules of Civil Procedure tracks the language from Rule 17(a) of the federal rules.” Kirk,
973 So. 2d at 989 n.9.

15
question whether a private party is the proper plaintiff “to bring a particular cause of action”

against another private party is generally a real-party-in-interest issue. Id. Indeed, the

Mississippi Supreme Court previously addressed the issue raised by Valley—i.e., a wrongful

death beneficiary’s ability to recover on a “survival claim”—as a real-party-in-interest

objection, not an issue of jurisdictional standing. See Richardson II, 909 So. 2d at 1072-73

(¶15).

¶27. With respect to Dorothy’s standing to sue, “[i]t is well settled that Mississippi’s

standing requirements are quite liberal.” Hall v. City of Ridgeland, 37 So. 3d 25, 33 (¶24)

(Miss. 2010) (quotation marks omitted) (quoting Burgess v. City of Gulfport, 814 So. 2d 149,

152 (¶13) (Miss. 2002)). “In Mississippi, parties have standing to sue when they assert a

colorable interest in the subject matter of the litigation or experience an adverse effect from

the conduct of the defendant, or as otherwise provided by law.” In re City of Biloxi, 113 So.

3d 565, 570 (¶13) (Miss. 2013) (quotation marks omitted) (quoting Hall, 37 So. 3d at 33

(¶24)). That is, the plaintiff has standing if her right “to assert a claim against a defendant

[is] grounded in some legal right recognized by law, whether by statute or by common law.”

SASS Muni-V LLC v. DeSoto Cty., 170 So. 3d 441, 446 (¶13) (Miss. 2015) (quoting City of

Picayune v. S. Reg'l Corp., 916 So. 2d 510, 525 (¶38) (Miss. 2005)); cf. Miss. Const. art. 3,

§ 24 (“every person for an injury done him in his . . . person . . . shall have a remedy by due

course of law”). “[S]tanding is to be determined as of the commencement of suit.” Delta

Health Grp. Inc. v. Estate of Pope ex rel. Payne, 995 So. 2d 123, 126 (¶13) (Miss. 2008)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 (1992)).

16
¶28. In this case, there is no dispute that “as of the commencement of suit,” id., Howard’s

personal injury claim against Valley was grounded in a legal right recognized by law. Nor

is there any dispute that when Dorothy filed her amended complaint and was substituted as

a plaintiff, she had a claim against Valley that was grounded in legal rights recognized by

law. As a wrongful death beneficiary, she had a claim against Valley under the wrongful

death statute for any damages caused by Valley resulting from Howard’s personal injuries

and death. See England, 846 So. 2d at 1068 (¶¶23-25). Accordingly, Dorothy had standing

to sue, and the circuit court had jurisdiction.

¶29. Thus, Valley’s objection does not go to Dorothy’s standing in any jurisdictional sense.

Rather, Valley’s argument is that although Dorothy originally had standing to pursue survival

damages as part of a wrongful death claim, her standing evaporated the moment the jury

returned a verdict that, according to Valley, found that Valley was not responsible for

Howard’s death. That does not raise an issue of Dorothy’s standing; rather, our Supreme

Court has treated that argument as a real-party-in-interest objection. See Richardson II, 909

So. 2d at 1072-73 (¶15). Stated differently, it is a non-jurisdictional argument, which may

be waived, that Dorothy was not entitled to recover on a particular type of claim. See

Bachman, 894 F.2d at 1235.

¶30. Because it does not implicate the court’s jurisdiction, “[a] real-party-in-interest

defense must be timely and may be waived if tardily asserted.” Kirk, 973 So. 2d at 988 (¶21)

(citing Rogers v. Samedan Oil Corp., 308 F.3d 477, 483-84 (5th Cir. 2002); Gogolin &

Stelter v. Karn’s Auto Imports Inc., 886 F.2d 100, 102 (5th Cir. 1989)). Thus, in Kirk, the

17
Supreme Court had no difficulty concluding that the defendant waived its real-party-in-

interest defense by failing to raise the issue until “after jury selection and just prior to the

start of the trial.” Id. at 989 (¶21).

¶31. Similarly, the United States Court of Appeals for the Fifth Circuit has held that a real-

party-in-interest objection must be raised at a point when “joinder of the real party in interest

remains ‘practical and convenient.’” In re Signal Int’l LLC, 579 F.3d 478, 487 (5th Cir.

2009) (quoting Rogers, 308 F.3d at 484). The objection may not be held in reserve in a way

that “hinders the ‘goal of judicial efficiency’ or manifests the defendant’s intention to ‘lay

behind the log’ in ambush.” Id. at 488 (quoting Rogers, 308 F.3d at 484). Thus, the

objection ordinarily will be deemed waived if it is raised for the first time shortly before or

during trial. See id. at 488-89; accord, e.g., RK Co. v. See, 622 F.3d 846, 850 (7th Cir.

2010); Sun Ref. & Mktg. Co. v. Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir. 1986).

¶32. Under Kirk, supra, and cases interpreting the parallel federal rule, Valley waived any

real-party-in-interest objection in this case by failing to raise the issue until after judgment

had been entered on the jury’s verdict. Although Dorothy did not open an estate or

specifically cite the survival statute,9 her amended complaint expressly sought “1. Wrongful

Death damages; 2. Damages entitled to the Estate; [and] 3. All Survival damages,” as well

as damages for “Pain and Suffering,” “Mental Anguish,” and other types of noneconomic

damages suffered by Howard prior to his death. If Valley believed that Dorothy was not or

might not be the proper party to recover some of these types of damages, then it should have

9
Miss. Code Ann. § 91-7-233 (Rev. 2013).

18
raised an objection under Rule 17(a) at a time when it was still practical and convenient to

join the real party in interest. Valley was not entitled to “lay behind the log” and raise this

non-jurisdictional issue for the first time after the trial was concluded and judgment was

entered. Gogolin & Stelter, 886 F.2d at 102. By failing to raise the issue until that point,

Valley waived this defense.

C. Even if Valley had timely raised the issue, Dorothy
would be entitled to a reasonable time to open an estate
and join it as a party.

¶33. For the two distinct reasons discussed above, Valley waived its argument that Dorothy

lacks “standing.” However, even if Valley had timely raised the issue, we would conclude

that Dorothy would be entitled to “a reasonable time . . . after objection” to open an estate

and join the estate as a party. M.R.C.P. 17(a). Because Valley’s objection was not raised

until after trial, Dorothy was never afforded the “reasonable time” to substitute that Rule

17(a) allows.

¶34. The dissent concludes that Valley has not waived the issue and that the time to

substitute has passed. Relying primarily on this Court’s decision in England, supra, the

dissent maintains that we must reverse and render judgment for Valley. Although the

Mississippi Supreme Court’s decisions on this issue have been described as “confused,”

Richardson II, 909 So. 2d at 1075 (¶26) (Randolph, J., dissenting), its most recent decision

indicates that Dorothy remains entitled to an opportunity to open an estate and join it as a

party. For the reasons explained below, we conclude that relevant Supreme Court precedents

would not require us to reverse and render judgment in favor of Valley even if Valley had

19
preserved the issue.

¶35. In Wilks v. American Tobacco Co., 680 So. 2d 839 (Miss. 1996), wrongful death heirs

filed suit “exclusively” and “solely under [the] wrongful death statute,” alleging that the

defendant’s cigarettes caused the decedent’s lung cancer and death. Id. at 840, 842. The

circuit court entered judgment in favor of the defendant on the plaintiffs’ claim for “wrongful

death after the jury determined that cigarette smoking was not the proximate cause of the

decedent’s death.” Id. at 840. On appeal, the heirs argued “that even though the jury may

have found [the decedent’s] death unrelated to smoking, [they] were entitled to recover

damages associated with [his] lung cancer and other smoking related illnesses suffered

during his lifetime,” “such as medical bills and . . . pain and suffering.” Id. at 842. However,

the Supreme Court rejected this argument and affirmed the judgment in favor of the

defendant. The Court reasoned that there can be no recovery under the wrongful death

statute unless the plaintiff proves that the defendant’s conduct proximately caused the

decedent’s death. Id. at 843 (citing Berryhill, 171 Miss. at 471, 58 So. at 471). The Court

further explained:

[T]he heirs failed to alternatively base their cause of action on the survival
statute at any point in time during this litigation. The complaint and trial
proceeded exclusively under the wrongful death statute. [The defendant]
cannot be blamed for the heirs’ failure to alternatively pursue a cause of action
for personal injury under Mississippi's survival statute.

Id.

¶36. Several years later, in England, supra, this Court applied Wilks’s holding to a dispute

in chancery court between wrongful death heirs and their decedent’s ex-husband. England,

20
846 So. 2d at 1063-64 (¶¶4-9). Prior to her death, Betty England allegedly suffered injuries

caused by the drug Rezulin. She hired a law firm to pursue a claim against Rezulin’s

manufacturer, and she executed a holographic instrument that purported to assign $1,000,000

of any recovery to her ex-husband. After Betty passed away, her ex-husband attempted to

cause her estate to pursue a claim under the survival statute for injuries suffered during her

lifetime, and he argued that he would be entitled to $1,000,000 of any recovery. However,

Betty’s wrongful death heirs argued that the wrongful death statute superseded any survival

claim or rights of the ex-husband under the holographic instrument. See id. On appeal, this

Court resolved the dispute as follows:

[I]t is definite that, if Rezulin proximately caused Betty England’s death, any
damages for Betty’s personal injuries from Rezulin must be recovered in an
action for wrongful death, and could not be recovered by the estate under the
survival statute.

On the other hand, it is definite that if Rezulin did not proximately
cause Betty’s death, there could be no recovery for the heirs under the
wrongful death statute. . . .

....

Wilks makes clear that the proper resolution of this case is to allow the
estate administrator to assert both a wrongful death action and a survival action
against the manufacturers of Rezulin. If the jury finds that Rezulin caused
Betty’s death, then the estate is foreclosed from recovering in the survival
action for any personal injuries caused by Rezulin; that recovery would belong
solely to Betty’s wrongful death heirs. If the jury finds that Rezulin did not
cause Betty’s death, the estate may recover for any personal injuries caused by
Rezulin [under the survival statute]. If the estate recovers survival damages,
then [Betty’s ex-husband] could recover any amount from the estate to which
he is entitled under the holographic instrument.

Id. at 1068-69 (¶¶25-26, 29) (citations omitted).

21
¶37. In Richardson v. Methodist Hospital of Hattiesburg Inc., 807 So. 2d 1244 (Miss.

2002) (Richardson I), Linda Richardson, proceeding individually and on behalf of her

mother’s wrongful death heirs, alleged that the defendant hospital “caused or contributed to

her mother’s pain, suffering, and death by providing negligent and sub-standard nursing

care.” Id. at 1245 (¶4). The circuit court granted summary judgment for the hospital on the

ground that Linda’s expert was not qualified to testify regarding the applicable standard of

care or causation. See id. at 1246, 1248 (¶¶8, 18). The Supreme Court affirmed with respect

to Linda’s claim for “wrongful death,” id. at 1248 (¶19), but held that there was “a genuine

issue of material fact requiring a trial on her separate cause of action for [her mother’s] pain

and suffering.” Id. at 1247 (¶13). In reaching this conclusion, the Court specifically rejected

the hospital’s argument that Wilks’s holding barred Linda from recovering on such a claim.

The Court reasoned that although “the survival statute [was] not specifically cited in

[Linda’s] complaint, the pleadings . . . delineate[d] two specific causes of action and [were]

sufficient under our system of notice pleadings.” Id.

¶38. On remand, the hospital moved to dismiss on the ground that only the decedent’s

estate (and not her wrongful death heirs) could pursue a survival action but no estate had

been opened. Richardson II, 909 So. 2d at 1068 (¶3). The circuit court agreed and entered

an order dismissing the case. Id. Three days later, Linda filed a petition in chancery court

to open an estate for her mother, and the court granted her petition, appointed her as

administrator, and authorized her to join the circuit court action on behalf of the estate.

Linda then filed an amended complaint in circuit court in which she asserted a survival action

22
on behalf of the estate. Id. at (¶4). The hospital moved to dismiss, but the circuit court

allowed the survival action to proceed. Id. at (¶5). On interlocutory appeal, the Supreme

Court reaffirmed that Wilks did not bar Linda from pursuing a survival claim. See id. at

1071-72 (¶¶11-13). The Court also held that after the hospital’s first objection that the

wrongful death heirs were not the real parties in interest, the estate had been substituted

within a reasonable time pursuant to Mississippi Rule of Civil Procedure 17(a), id. at 1072-

73 (¶15), which provides as follows:

(a) Real Party in Interest. Every action shall be prosecuted in the name of
the real party in interest. . . . No action shall be dismissed on the ground that
it is not prosecuted in the name of the real party in interest until a reasonable
time has been allowed after objection for ratification of commencement of the
action by, or joinder or substitution of, the real party in interest; and such
ratification, joinder or substitution shall have the same effect as if the action
had been commenced in the name of the real party in interest.

M.R.C.P. 17(a) (emphasis added).

¶39. We acknowledge that it is somewhat difficult to reconcile Richardson II with Wilks.10

However, in Richardson II, the Supreme Court directly addressed Wilks and explained,

“Today’s decision simply allows the pain and suffering element, which was specifically

pleaded in the original complaint in the case sub judice, to remain viable.” Richardson II,

909 So. 2d at 1072 (¶13). The survival claim in Richardson “remain[ed] viable” even though

Linda Richardson initially proceeded individually and as a wrongful death heir, failed to cite

the survival statute in her complaint, and failed to open an estate until after the circuit court

had already granted summary judgment and the statute of limitations had run. Id. at 1071-72

10
See Richardson II, 909 So. 2d at 1073-75 (¶¶20-27) (Randolph, J., dissenting)
(stating that Richardson I and Richardson II have “confused our body of law in this area”).

23
(¶¶11-13); id. at 1075 (¶25) (Randolph, J., dissenting). Even in those circumstances, she was

entitled to an opportunity to open an estate and substitute it as the real party in interest.

Apparently, she preserved her survival claim simply by pleading a “pain and suffering

element . . . in the original complaint.” Richardson II, 909 So. 2d at 1072 (¶13).11

¶40. In the present case, Howard’s original complaint and Dorothy’s amended complaint

both pled damages based on Howard’s pain and suffering. Indeed, as noted above, Dorothy’s

amended complaint sought to recover, inter alia, “Damages entitled to the Estate,” “All

Survival damages,” and damages for “Pain and Suffering” and “Mental Anguish.” Under

Richardson II, this was sufficient to preserve a survival claim even though Dorothy failed

to open an estate or cite the survival statute in her amended complaint. Therefore, under

Richardson II, Dorothy’s claim for survival damages was not subject to dismissal on the

ground that she was not the real party in interest. Even if Valley had timely asserted this

objection, Dorothy would have been entitled to “a reasonable time . . . after objection” to

open an estate and add the estate as a plaintiff. M.R.C.P. 17(a) (emphasis added);

Richardson II, 909 So. 2d at 1072-73 (¶15). Therefore, even if the issue had been preserved,

we would not reverse and render judgment on this basis. Rather, we would remand to give

Dorothy a reasonable time to comply with Rule 17(a).12

11
This Court’s opinion in England describes the better procedure for pursuing
wrongful death and survival damages in a case such as this, but Richardson II indicates that
a plaintiff’s failure to follow that procedure does not foreclose the plaintiff’s opportunity to
substitute the real party in interest within a reasonable time after objection.
12
There is no bar to a post-judgment substitution under Rule 17(a). Such “post-
judgment ratifications have been deemed valid by [the Mississippi Supreme Court] and other
courts.” Kirk, 973 So. 2d at 990 (¶29).

24
¶41. In summary, we conclude that Valley has waived any objection to Dorothy’s

“standing,” which in reality is an objection that she is not the real party in interest.

Moreover, even if Valley had preserved the issue, we would only remand the case to give

Dorothy an opportunity to open an estate and join it as a party.

II. Whether Howard filed suit within the applicable limitations period
was an issue for determination by the jury.

¶42. Valley next argues that the circuit court should have granted its motion for summary

judgment or its motion for JNOV because Howard filed suit after the statute of limitations

had run. The applicable statute of limitations is three years, and because this case involves

a “latent disease,” the limitations period began to run when Howard “discovered, or by

reasonable diligence should have discovered, [his] injury.” Miss. Code Ann. § 15-1-49 (Rev.

2012). Valley joined a pretrial motion for summary judgment based on the statute of

limitations, which was denied, but at trial Valley did not move for a directed verdict or

request a jury instruction on this issue. Valley then re-urged the issue in its post-trial motion

for JNOV or a new trial, but it did so under the heading “GROUNDS ON WHICH A NEW

TRIAL IS WARRANTED.” There, Valley briefly argued that “a new trial [was] warranted”

because the court “erred by failing to grant [its pretrial summary judgment] motion.” The

manner in which this issue was raised in the court below complicates our review on appeal.

¶43. First, we will not review the circuit court’s pretrial denial of summary judgment. Such

a ruling is rendered moot and cannot be reviewed on appeal once a case proceeds to a trial

on the merits. Gibson v. Wright, 870 So. 2d 1250, 1254 (¶8) (Miss. Ct. App. 2004) (citing

Black v. J.I. Case Co., 22 F.3d 568, 569-70 (5th Cir. 1994)); accord Britton v. Am. Legion

25
Post 058, 19 So. 3d 83, 84 (¶7) (Miss. Ct. App. 2008); l5B Charles Alan Wright et al.,

Federal Practice and Procedure § 3914.28, at 210-11 & n. 18 (2d ed. 1992 & Supp. 2016).

¶44. When, as in this case, a circuit court has determined that a genuine factual dispute

concerning the application of the discovery rule precludes summary judgment, the defendant

should litigate the issue at trial, move for a directed verdict on that ground, and then request

appropriate jury instructions. See generally Huss v. Gayden, 991 So. 2d 162 (Miss. 2008).

Valley did not do so in this case. It is also debatable whether Valley’s post-trial motion for

JNOV or a new trial preserved the issue that it now seeks to raise on appeal. It is true that

in Mississippi state court, a party may raise an issue in a post-trial motion for JNOV under

Mississippi Rule of Civil Procedure 50(b) even if it failed to raise the issue at trial in a

motion for a directed verdict under Rule 50(a). See New Hampshire Ins. v. Sid Smith &

Assocs. Inc., 610 So. 2d 340, 344 (Miss. 1992).13 However, Valley’s post-trial motion quite

clearly raised the statute of limitations as a ground for a new trial, not JNOV. Given the

manner in which Valley raised the issue post-trial, we easily could “conclude[] that [Valley]

is now procedurally barred from requesting this Court to review the legal sufficiency of the

evidence on appeal as [Valley actually] sought a new trial and not a [JNOV].” Harrison v.

McMillan, 828 So. 2d 756, 764 (¶22) (Miss. 2002).

¶45. Furthermore, before the circuit court, Valley argued that it was entitled to a new trial

because the court erred by denying its pretrial motion for summary judgment; however, as

13
In federal court, in contrast, “[a] motion under Rule 50(b) is not allowed unless the
movant sought relief on similar grounds under Rule 50(a) before the case was submitted to
the jury.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008).

26
we have explained just above, such a pretrial ruling becomes moot once the case proceeds

to trial, so it would not be grounds for a new trial. Finally, the one statute-of-limitations-

related argument that Valley seems to have preserved in the trial court simply does not

correspond to the issue that it seeks to raise on appeal. In the trial court, Valley raised a

claim that it was entitled to a new trial based on the statute of limitations, but in this Court

it argues that it is entitled to judgment as a matter of law on that ground. Despite these

various procedural difficulties, we will address the merits of Valley’s argument.14

¶46. In the circuit court, Valley took the position that Howard did not have silicosis or any

other silica-related disease. Valley maintained that Howard suffered only from COPD, which

Valley attributes to smoking, not silica. However, Valley also argues that if Howard did have

a silica-related disease, then he discovered or should have discovered his injury in 2005 or

no later than 2006. Accordingly, Valley argues that the statute of limitations had run before

Howard filed suit on June 10, 2010. In support of this argument, Valley cites the following

statement in Dr. Julian Rose’s April 2005 notes: “silicosis suspect.” Valley also cites the

April 2005 records of Dr. Robert Evans, which noted that Howard had been “seen recently

14
If we view the issue as whether Valley was entitled to JNOV, then we “consider
the evidence in light most favorable to [Dorothy], giving [her] the benefit of all favorable
inference[s] that may be reasonably drawn from the evidence,” and we will reverse only if
“the facts so considered point so overwhelmingly in favor of [Valley] that reasonable men
could not have [returned] a . . . verdict” for Dorothy. Coho Res. Inc. v. Chapman, 913 So.
2d 899, 904 (¶12) (Miss. 2005) (quoting Coho Res. Inc. v. McCarthy, 829 So. 2d 1, 8-9
(¶12) (Miss. 2002)). “A new trial may be granted where the verdict is against the
overwhelming weight of the evidence,” but we “give substantial weight, deference, and
respect to the decision of the trial judge,” and we will reverse only if the trial judge’s ruling
“amounts to an abuse of that judge’s discretion.” Id. at 908 (¶28) (citing Dupree v.
Plantation Pointe L.P., 892 So. 2d 228, 232, 235 (Miss. 2004)).

27
by Dr. Julian Rose and evidently [a] question ha[d] been raised regarding silicosis.” Finally,

Valley points to the following statement in Dr. Rose’s August 2006 treatment notes:

“sandblasting in past.” However, Dr. Rose testified that he was unable to diagnose Howard

with silicosis prior to June 28, 2007, and no evidence was presented that a doctor told

Howard that he had or might have silicosis prior to that time.

¶47. Our Supreme Court has held that when medical records or tests are “suggestive” of

a particular illness but a diagnosis is not made until a later date, “the determination of the

time at which [a plaintiff] knew or by reasonable diligence should have known of his illness

. . . is a fact question which must be resolved by a jury.” Ridgway Lane & Assocs. Inc. v.

Watson, 189 So. 3d 626, 630 (¶15) (Miss. 2016) (citing Phillips 66 Co. v. Lofton, 94 So. 3d

1051, 1059 (Miss. 2012)). Thus, in Watson, the plaintiff filed suit more than three years after

a radiology report raised the possibility that he had bronchiectasis but less than three years

after an actual diagnosis was made, and the Court held that the date on which the limitations

period began to run was a fact question for the jury. Id. In Lofton, the Court concluded that

a CT scan showing evidence of pulmonary fibrosis was insufficient to trigger the statute of

limitations given the plaintiff’s testimony that he was not made aware that he had fibrosis

until his doctor diagnosed the illness several years later. See Lofton, 94 So. 3d at 1059-60

(¶¶14-17). Finally, in Schiro v. American Tobacco Co., 611 So. 2d 962 (Miss. 1992), the

Court held that the statute of limitations began to run when the plaintiff, a former smoker,

was diagnosed with lung “cancer, an injury connected with smoking.” Id. at 965. The initial

discovery of the mass that turned out to be cancerous was deemed insufficient to trigger the

28
statute. Id.

¶48. We agree with Dorothy that the evidence in this case created a genuine issue of

material fact with respect to the applicability of the statute of limitations. Under Mississippi

law, notes in Howard’s medical records suggesting the possibility of silicosis are insufficient

to trigger the statute of limitations as a matter of law, and Dr. Julian Rose testified that he

was first able to diagnose Howard with silicosis less than three years prior to the

commencement of this lawsuit. Valley contends that Dr. Rose’s testimony was not credible,

but his credibility was an issue for the jury to decide. See, e.g., Jackson v. Griffin, 390 So.

2d 287, 289 (Miss. 1980). Furthermore, there is no evidence in the record that any doctor

told Howard that he had silicosis prior to Dr. Rose’s diagnosis. On the record in this case,

“the determination of the time at which [Howard] knew or by reasonable diligence should

have known of his illness . . . [was] a fact question [to] be resolved by [the] jury.” Watson,

189 So. 3d at 630 (¶15). Valley could have requested a jury determination on that issue, but

it did not. Valley is not entitled to judgment as a matter of law or a new trial on this issue.

III. The trial court’s instruction on Valley’s duty was consistent with
Mississippi Supreme Court precedent.

¶49. Valley next argues that the trial court committed reversible error in instructing the jury

regarding a manufacturer’s duty to warn. “The giving or refusal of jury instructions by a

circuit court is reviewed under an abuse-of-discretion standard.” Howell v. Equip. Inc., 170

So. 3d 592, 599 (¶16) (Miss. Ct. App. 2014). “[T]his Court does not review jury instructions

in isolation; rather, they are read as a whole to determine if the jury was properly instructed.”

Mitchell v. Barnes, 96 So. 3d 771, 775 (¶9) (Miss. Ct. App. 2012) (quoting Burton ex rel.

29
Bradford v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)). “Defects in specific instructions do

not require reversal where all instructions taken as a whole fairly—although not

perfectly—announce the applicable primary rules of law.” Id. (internal quotation marks

omitted). “However, if those instructions do not fairly or adequately instruct the jury, we can

and will reverse.” Id.

¶50. Valley specifically objects to the following instruction given by the trial court:

Mississippi law imposes upon the manufacturer of a product the duty to warn
anyone who may reasonably be expected to be in the vicinity of the product’s
probable use and to be endangered by it if defective. The manufacturer’s duty
to warn in Mississippi is non-delegable. Thus, the manufacturer’s warning
must be reasonably calculated to reach such persons and the presence of an
intermediary party will not by itself relieve the manufacturer of its duty.

Valley argues that Mississippi law does not impose such a duty to warn “bystanders.”

¶51. However, as Dorothy points out, the trial court’s instruction accurately reflects

Mississippi Supreme Court precedent on this point. In Swan v. I.P. Inc., 613 So. 2d 846

(Miss. 1993), the Supreme Court held:

Lack of an adequate warning is a defect which makes a product unreasonably
dangerous for strict liability purposes. This Court has extended this duty to
bystanders, holding that the duty imposed by [section] 402A [of the
Restatement (Second) of Torts] “exists in favor of anyone who may reasonably
be expected to be in the vicinity of the product’s probable use and to be
endangered by it if it is defective.”

Id. at 852 (quoting Coca Cola Bottling Co. v. Reeves, 486 So. 2d 374, 378 (Miss. 1986))

(citations omitted).

¶52. Valley responds by arguing that Swan is no longer good law and has been superseded

by the Mississippi Products Liability Act (MPLA), Miss. Code Ann. § 11-1-63, which was

30
originally enacted in 1993. Valley contends that the MPLA impliedly precludes recovery by

a mere “bystander” because the statute consistently refers to a “user or consumer” of the

product. See id. However, we read the statute’s references to users and consumers as

relevant to the question whether the product is defective—e.g., the knowledge of the

product’s ordinary users and consumers must be taken into account, see id. § 11-1-63(c)(i),

(c)(ii), & (e)—not as a limitation on the parties who may sue for injuries caused by defective

products. The trial court gave jury instructions that were consistent with these provisions of

the MPLA. Moreover, even after the enactment of the MPLA, our Supreme Court has

continued to describe “[p]roducts liability” law as providing a cause of action for

“bystanders” who are injured by defective products. R.J. Reynolds Tobacco Co. v. King, 921

So. 2d 268, 271 (¶11) (Miss. 2005) (quoting W. Page Keeton et al., Prosser and Keeton on

Torts § 95, at 677 (5th ed. 1984)).

¶53. Read as a whole, the trial court’s instructions simply recognized a duty to provide a

reasonable warning concerning dangers of which the manufacturer knew or should have

known to those persons “who may reasonably be expected to be in the vicinity of the

product’s probable use and to be endangered by it if defective.” Furthermore, Howard was

not a mere casual “bystander” in the sense of a random passerby on an isolated occasion;

rather, he worked in close proximity to sandblasting for a decade and regularly observed

Valley’s silica sand in its original packaging. The trial court’s instructions were consistent

with the Supreme Court’s decision in Swan, and because Swan has not been overruled, they

were a fair statement of the law. Accordingly, the trial court did not err by giving the

31
instruction to which Valley objects.

IV. Dorothy presented sufficient evidence to sustain the verdict.

¶54. Valley next argues that it is entitled to JNOV or a new trial because on multiple issues

Dorothy’s proof was insufficient or the jury’s verdict was against the overwhelming weight

of the evidence.15 Specifically, Valley argues that Dorothy failed to prove that Howard was

exposed to any Valley sand, that he was exposed to harmful levels of silica from Valley’s

sand, or that Valley breached any duty to warn. We address these arguments in turn below

and conclude that, viewing the evidence in the light most favorable to Dorothy and granting

all reasonable inferences in her favor, there was sufficient evidence to support the verdict.

We also conclude that the trial court did not abuse its discretion in denying Valley’s motion

for a new trial.

A. Dorothy presented sufficient evidence that Howard was
exposed to Valley’s sand.

¶55. Valley argues that Dorothy failed to prove that Valley supplied sand to MSIC because

there was no evidence of sales from Valley to MSIC. However, Howard and Burch both

testified that sand supplied by Valley and Southern Silica was used regularly in MSIC’s

sandblasting operations. The two men also identified the sandbags of those two companies.

Citing Mississippi Valley Silica Co. v. Reeves, 141 So. 3d 377 (Miss. 2014), Valley argues

that their testimony was insufficient to prove exposure to any significant amount of Valley

sand. However, in Reeves, the decedent “clearly had difficulty remembering” the names of

any brand of sand used by his employer and “specifically remembered using Valley sand on

15
For the applicable standards of review, see supra n.14.

32
only one occasion.” Id. at 382-83 (¶17). One of the decedent’s coworkers also testified, but

he admitted on cross-examination “that he did not recall the name of the sand” to which the

decedent would have been exposed. Id. at 383 (¶18). As the Supreme Court put it, Reeves

was “not a case in which there was a dispute about how much sand Valley had sold to [the

decedent’s employer], or for how long. Rather, [the plaintiff] failed to show that Valley ever

sold sand to [the employer], with the possible exception of [a] single bag . . . .” Id. at 383-84

(¶21). Here, in contrast, Howard and Burch gave straightforward testimony that Valley sand

and Southern Silica sand were in regular use at MSIC’s High Street facility. It was up to the

jury to assess their credibility, see Jackson, 390 So. 2d at 289, and their testimony was

sufficient to sustain the verdict on this point. Dorothy was not required to uncover decades-

old invoices to prove her case.

B. Dorothy presented sufficient evidence that Howard was
exposed to harmful levels of respirable silica.

¶56. Valley next argues that even if there was sufficient proof of exposure to Valley sand,

there was insufficient proof that Howard was exposed to harmful levels of respirable silica.

However, Dr. Steve Haber, a certified B-reader16 who testified as an expert in pulmonary

diseases associated with silica exposure, testified that Howard had silicosis. Exposure to

harmful levels of silica is a prerequisite to such a diagnosis. See Mine Safety Appliance Co.

v. Holmes, 171 So. 3d 442, 451 (¶37) (Miss. 2015). Dr. Haber opined that Howard’s

16
“A B-reader is a doctor certified by [the National Institute for Occupational Health
and Safety (NIOSH)] to identify the presence of asbestos- and silica-related disease
precursors on chest x-rays.” Choctaw Inc. v. Campbell-Cherry-Harrison-Davis & Dove,
965 So. 2d 1041, 1047 n.10 (Miss. 2007).

33
exposure to fine airborne silica particles from sandblasting—which occurred five days a

week for a decade—was more than sufficient to cause silicosis. In addition, Dr. Vernon

Rose, an industrial hygienist, opined that Howard was exposed to extremely high

concentrations of respirable silica based on Howard’s testimony that, for ten years, he

worked for prolonged periods near sandblasting operations in conditions so dusty that he

could taste sand and see the dust. Dr. Rose relied in part on the findings of a study of silica

exposure levels at steel fabrication yards in Louisiana. Dr. Rose testified that the study found

that persons employed in positions similar to Howard’s were, on average, exposed to levels

of respirable silica in excess of the maximum levels recommended as safe by OSHA,

NIOSH, and the American Conference of Governmental Industrial Hygienists.

¶57. Valley argues that this evidence was insufficient as a matter of law because some of

the conditions in the study on which Dr. Rose relied may have differed from Howard’s work

conditions at MSIC. For example, the precise distance between the sandblasting operations

and the workers in the study is unclear. However, a plaintiff in a silica case “is not required

to” “offer any direct evidence of the level of [his] exposure” and “may show an unsafe

exposure or dose through circumstantial evidence, so long as that evidence is reliable.” Id.

at (¶34). In Holmes, the Supreme Court held that the plaintiff’s evidence on this issue was

sufficient to survive a motion for JNOV because he “offered evidence of extremely dusty

work conditions”; that he was exposed to concrete dust that contained silica, “though no one

[knew] exact[ly]” how much; and that he “suffer[ed] from silicosis, an injury known to be

caused by silica overexposure.” Id. at (¶35). The Court further explained that the plaintiff

34
“offered testimony, though not uncontroverted, that his x-rays were consistent with someone

with silicosis, which, by its very definition, requires a sufficient dose of silica.” Id. at (¶37).

Dr. Rose also testified in Holmes, and there he relied in part on a study suggesting that it was

more likely than not that the plaintiff’s work did not result in overexposure to silica. Id. at

(¶39). However, the Supreme Court held that the study’s limitations did not defeat the

plaintiff’s claim because his “substantial” “circumstantial evidence” of overexposure—his

“dusty work conditions . . . , exposure to concrete dust on multiple occasions, his diagnosis

of silicosis, etc.”—was sufficient to survive the defendant’s motion for JNOV. Id.

¶58. Holmes is on point, as it is not meaningfully distinguishable from the present case.

Like the plaintiff in Holmes, there was credible evidence that Howard’s work conditions

were extremely dusty, that he was exposed to silica, and that he ultimately developed

silicosis. As in Holmes, Valley raised questions about the study on which Dr. Rose relied,

but given the “substantial” “circumstantial evidence” presented at trial, those questions were

a matter for the jury to consider, not a ground for judgment as a matter of law or a new trial.

Id. Accordingly, we conclude that the trial judge properly denied Valley’s motion for JNOV

or a new trial on this issue.

C. Dorothy presented sufficient evidence that Valley
breached its duty to provide adequate warnings.

¶59. Finally, Valley argues that although its sandbags contained no warning labels during

the relevant period, there was insufficient evidence that it breached its duty to provide

“adequate warnings or instructions.” Miss. Code Ann. § 11-1-63(a)(i)(2). Valley primarily

argues that there was no proof that it “knew or in light of reasonably available knowledge

35
should have known about the danger that caused the damage for which recovery is sought.”

Id. § 11-1-63(c)(i). In Valley’s view, there was no evidence that it should have known during

the 1960s that sandblasting operations could expose “bystanders” such as Howard to harmful

levels of respirable silica.17

¶60. In response, Dorothy first points to a letter written by Valley’s former president and

part owner, Frank Bogran, which stated in part:

From 1960 to 1976, I was part owner and President of [Valley]. We were
primarily engaged in the processing and sale of sandblasting sand . . . . During
this period of time all of us in the industry were aware of the health hazards
inherent in the sandblasting industry. . . . Any responsible executive in this
industry would have known—should have known—that many European
countries had banned the use of silica sand as early as 1949 . . . .

Bogran wrote this letter in 1990, fourteen years after he left his employment with Valley. In

deposition testimony read at trial, Bogran claimed that he did not became aware that

sandblasting could cause silicosis until 1972. Dorothy also relies on the testimony of Dr.

Vernon Rose, who stated that silica exposures related to sandblasting had been a known

cause of silicosis for many decades prior to Howard’s exposures in the 1960s. However, Dr.

Rose admitted on cross-examination that studies he cited regarding “bystander exposure” to

silica were not published until the 1970s, after Howard’s period of exposure.

¶61. On appeal, Valley maintains that the Bogran letter was an unsworn prior inconsistent

statement that was admissible for impeachment purposes only, not as substantive evidence.

See M.R.E. 613; Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 91 (¶23) (Miss. 2013); Bailey

17
Valley also argues that it owed no duty at all to “bystanders.” We have addressed
this argument in Part III, supra.

36
v. State, 952 So. 2d 225, 237 (¶27) (Miss. Ct. App. 2006). However, the Bogran letter was

admitted into evidence at trial without discussion or any on-the-record objection or request

for a limiting instruction; therefore, it is unclear that the letter was admitted solely for

impeachment.18 Moreover, the Bogran letter was actually admitted into evidence, even

though Bogran admitted in his deposition testimony that he made the statements in the letter.

“It is well-settled that, where a non-party witness admits to having made a prior inconsistent

statement, the statement should not be received into evidence for any purpose.” Bailey, 952

So. 2d at 237 (¶27). That is, if the witness admits that he made the prior statement, the

written statement should not be admitted. Brown v. State, 682 So. 2d 340, 345 (Miss. 1996).

Thus, the fact that the Bogran letter was introduced into evidence suggests that it was

admitted as substantive evidence, not just for impeachment.

¶62. Regardless of the evidentiary status of the Bogran letter, we conclude that there was

sufficient evidence for a jury to find that, between 1960 and 1970, Valley “knew or in light

of reasonably available knowledge should have known about the danger” inherent in the use

of silica in sandblasting operations, even as it related to a so-called bystander such as

Howard. Miss. Code Ann. § 11-1-63(c)(i). Valley’s argument seems to be that while

perhaps it knew enough to have had a duty to warn persons who were directly engaged in

sandblasting, it did not know enough to warn persons such as Howard, who merely worked

in close proximity to sandblasting operations. However, we cannot conclude that this fine

18
At trial, plaintiff’s counsel argued that a different letter written by Bogran was
admissible as a statement against interest. See M.R.E. 804(b)(3). However, counsel
ultimately withdrew his request to introduce that letter into evidence, and it was marked for
identification only.

37
distinction can serve to limit Valley’s duty as a matter of law. We reiterate that Howard was

not a “bystander” in the sense of a random passerby. He worked close enough to the

sandblasting that his working conditions were extremely dusty and he “ate a lot of sand.”

Given that there was sufficient evidence that Valley was aware of a relationship between

sandblasting and silicosis, we conclude that there was sufficient evidence for a jury to find

that Valley knew or should have known that silica was a danger to persons working in such

close proximity to sandblasting.

V. The trial court did not err by submitting the issue of punitive damages
to the jury.

¶63. “[P]unitive damages are not favored in the law and are to be allowed only with caution

and within narrow limits,” i.e., “only in extreme cases.” Tideway Oil Programs Inc. v. Serio,

431 So. 2d 454, 460 & n.1 (Miss. 1983). Therefore, punitive damages are not recoverable

unless the plaintiff “prove[s] by clear and convincing evidence that the defendant . . . acted

with actual malice, gross negligence which evidences a willful, wanton or reckless disregard

for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11-1-65(a). “In

determining the propriety of submitting the issue of punitive damages to the jury, the trial

court decides whether, under the totality of the circumstances and viewing the defendant’s

conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or

gross neglect/reckless disregard.” Doe ex rel. Doe v. Salvation Army, 835 So. 2d 76, 79 (¶6)

(Miss. 2003). Valley argues that the trial court erred by submitting the issue of punitive

damages to the jury because there was insufficient evidence to support such a finding.

¶64. Based on the evidence already discussed, we conclude that the trial court did not err

38
in submitting the issue of punitive damages to the jury. As noted in the preceding section,

the jury heard evidence that Valley placed no warning on its sandbags even though silicosis

had been a known danger of sandblasting for decades. Thus, this was not a case in which a

defendant provided some warning that was ultimately deemed inadequate. Rather, the

evidence permitted an inference that Valley did nothing at all to warn of a known and deadly

risk. Viewing the evidence in the light most favorable to Dorothy, see Stewart v. Gulf Guar.

Life Ins., 846 So. 2d 192, 202 (¶40) (Miss. 2002), a reasonable trier of fact could have found

that Valley’s conduct evidenced a reckless disregard for the safety of others. Accordingly,

the trial court did not err by submitting this issue to the jury.

VI. The trial court was not required to remit the award of punitive
damages to $0.

¶65. Valley next argues that punitive damages cannot be awarded against it because it has

a net worth of zero. In support of this argument, Valley introduced into evidence the

liquidation plan and the final decree from its federal bankruptcy proceeding. Valley relies

on Mississippi Code Annotated section 11-1-65(3)(a)(vi), which provides that for a defendant

with a net worth of less than fifty million dollars, “no award of punitive damages shall

exceed . . . [t]wo percent . . . of the defendant’s net worth.”

¶66. In response, Dorothy argues that Valley’s net worth is not really zero because “Valley

has massive assets in the form of multiple insurance policies.” However, the defendant’s net

worth must “be determined in accordance with Generally Accepted Accounting Principles”

(GAAP), Miss. Code Ann. § 11-1-65(3)(b), and Dorothy presented no evidence that

insurance policies are treated as assets under GAAP. See In re Miss. Medicaid Pharm.

39
Average Wholesale Price Litig., 190 So. 3d 829, 846 (¶41) (Miss. 2015) (opinion of

Chandler, J., joined by Kitchens and King, JJ., affirming). Accordingly, we agree with

Valley that its net worth is zero for purposes of the statutory cap on punitive damages.

¶67. Based on its net worth of zero, Valley argues that punitive damages cannot be

awarded against it because two percent of zero is zero. However, the Mississippi Supreme

Court previously reached a different conclusion. In Canadian National Railway Co. v.

Waltman, 94 So. 3d 1111 (Miss. 2012), the Court stated that section 11-1-65(3)

merely establishes that net worth is considered—not that it is solely
considered—in determining the amount of punitive damages, and it is used to
calculate the statutory cap for punitive damages. We do not see how a
statutory cap based on net worth suggests that there is a minimum net worth,
such as zero, that will “cut off” the award of punitive damages. Hence, [a
company] potentially could be liable for punitive damages, even if it were
determined that the company presently has a negative net value.

Id. at 1119 (¶22) (emphasis added).

¶68. Valley argues that “with all due deference to the Mississippi Supreme Court,

Waltman’s consideration of the statutory cap on punitive damages was pure dicta” because

“[t]he issue before the Court was personal jurisdiction, as opposed to any damage award.”

While it is true that the Supreme Court did not apply the punitive damages cap in Waltman,

its interpretation of the statute was part of its analysis of whether the plaintiffs’ allegations

were sufficient to justify piercing the corporate veil and to establish a prima facie case of

personal jurisdiction. See id. at 1119-20 (¶¶22-24). Exactly how significant the point was

to the Court’s analysis is unclear, but we do not believe that its interpretation of the punitive

damages statute can be dismissed as mere “dicta.”

40
¶69. Although neither party cited the case, we note that only three months after Waltman

handed down, the Supreme Court applied the punitive damages cap in a case in which the

circuit court found that the defendant had a net worth of zero. See Coleman & Coleman

Enters. Inc. v. Waller Funeral Home, 106 So. 3d 309, 319-20 (¶¶30-33, 35) & n.9 (Miss.

2012). In that case, the Supreme Court affirmed the circuit court’s post-trial reduction of

punitive damages to $0, but the Court did not mention Waltman or address whether the

reduction was required by the statute. Rather, the Court only held that the plaintiff had

waived any objection to the trial court’s order by failing to introduce evidence that the

defendant had a positive net worth. See id. Because Coleman & Coleman Enterprises was

decided based on principles of waiver, we cannot conclude that the decision overrode

Waltman’s express statement that our punitive damages statute permits an award of punitive

damages against a defendant with a negative net worth.

¶70. Valley’s argument that the punitive award must be reduced to $0 is consistent with

the language of the punitive damages statute. However, we are bound to follow Mississippi

Supreme Court precedent. Accordingly, under Waltman, we conclude that the trial court did

not err by denying Valley’s motion to reduce the punitive award to $0.19

19
Valley also makes a cursory argument that the punitive award should be reversed
and rendered because it does not serve the purpose of punitive damages. “[T]he primary
purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the
future by the defendant and others . . . .” Miss. Code Ann. § 11-1-65(1)(e); see also Tideway
Oil, 431 So. 2d at 460 (“[Punitive] damages are assessed as a warning and example to deter
not only the offender but others similarly situated from committing like offenses in the
future.”). Valley argues that the punitive award in this case serves no specific deterrent
purpose because it is bankrupt and out of business. It also argues that the award serves no
general deterrent purpose because there is no “evidence of any manufacturer presently
selling sand without a warning label.” However, Valley does not cite any authority holding

41
 VII. The trial court correctly applied the apportionment statute and the
noneconomic damages cap.

¶71. As noted above, the jury found total economic damages of $165,615.73; noneconomic

damages of $1,034,384.27; and damages for loss of consortium of $500,000. The jury also

assigned thirty-five percent fault to Valley. Based on these findings, the trial court entered

judgment for Dorothy for economic damages of $57,965.51; noneconomic damages of

$362,034.49; and damages for loss of consortium of $175,000. See Miss. Code Ann. § 85-5-

7(2) (Rev. 2011). The trial court concluded that the statute capping noneconomic damages

at $1,000,000, see Miss. Code Ann. § 11-1-60(2)(b), did not require a further reduction

because the judgment awarded Dorothy noneconomic damages, including for loss of

consortium, of only $537,034.49.

¶72. Valley argues that the trial court applied the relevant statutes in the wrong order.

Valley believes that the court first should have applied the $1,000,000 cap on noneconomic

damages and then reduced that amount based on Valley’s percentage of fault. Had the trial

court done so, Valley would have been liable for a total of only $350,000 in noneconomic

damages. This is an issue of statutory interpretation, which we review de novo. Conrod v.

Holder, 825 So. 2d 16, 18 (¶7) (Miss. 2002).

¶73. Section 11-1-60(2)(b) provides that “in the event the trier of fact finds the defendant

liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for

that punitive damages may not be awarded against a defunct entity. Moreover, the purpose
of punitive damages is to deter not only identical misconduct but all “similar misconduct.”
Miss. Code Ann. § 11-1-65(1)(e) (emphasis added). Even if no company today sells silica
sand without a warning label, an award of punitive damages has the potential to deter
similarly reckless conduct in other contexts.

42
noneconomic damages.” The statute further provides that “[i]t is the intent of this section

to limit all noneconomic damages to the above.” Id. Section 85-5-7(2) provides that “the

liability for damages caused by two (2) or more persons shall be several only, and not joint

and several and a joint tort-feasor shall be liable only for the amount of damages allocated

to him in direct proportion to his percentage of fault.” We conclude that the circuit court’s

judgment is consistent with both of these statutes.

¶74. First, as to section 11-1-60(2)(b), the judgment does “not award the plaintiff more

than One Million Dollars . . . for noneconomic damages.” In its verdict, the jury found that

Howard/Dorothy had suffered noneconomic damages in excess of $1,000,000, but a jury’s

finding is not the same thing as an “award.” See Tucker v. Marcus, 418 N.W.2d 818, 823

(Wis. 1988) (“[T]he jury’s finding that there had been injury suffered, and ascertainment of

a sum which would fairly compensate the respondent for the injury suffered, did not

constitute an ‘award’ of actual damages. An ‘award’ represents a remedy recoverable in

accordance with an order for judgment.”); accord Lira v. Davis, 832 P.2d 240, 245 (Colo.

1992). The noneconomic damages apportioned to Southern Silica and MSIC should not be

viewed as part of the “award” because neither of those entities was a party at trial, and the

jury’s findings that their conduct caused damages do not give rise to any liability. Rather,

the damages apportioned to those two entities served only to reduce Valley’s liability.

¶75. The trial court’s judgment also complies with section 85-5-7(2) because it holds

Valley liable for precisely thirty-five percent of the total noneconomic damages found by the

jury. Miss. Code Ann. § 85-5-7(2). Accordingly, pursuant to the judgment, Valley is “liable

43
only for the amount of damages allocated to [it] in direct proportion to [its] percentage of

fault.” Id.

¶76. For the above reasons, we conclude that the trial court properly applied both section

11-1-60(2)(b) and section 85-5-7(2) and that no further reduction in the judgment was

required.20

VIII. The award of attorneys’ fees must be vacated and remanded for a
determination based on appropriate findings of fact and conclusions
of law.

¶77. “Where punitive damages are awarded by the jury, attorneys’ fees are justified.” Miss.

Power & Light Co. v. Cook, 832 So. 2d 474, 486 (¶40) (Miss. 2002). As we have upheld the

award of punitive damages, we also conclude that the trial court did not err by awarding

attorneys’ fees to Dorothy.

¶78. “The fixing of reasonable attorneys’ fees is a matter ordinarily within the sound

discretion of the trial court[.]” Id. at (¶39) (quoting Gilchrist Tractor Co. v. Stribling, 192

So. 2d 409, 418 (Miss. 1966)). “The reasonableness of an attorney’s fee award is determined

by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional

Conduct.” Id. at (¶40). “These factors are sometimes referred to as the McKee factors.” Id.

20
A federal district judge similarly held that our comparative negligence statute, Miss.
Code Ann. § 11-7-15 (Rev. 2004), should be applied before the statutory cap on
noneconomic damages, rather than vice versa. See Graves ex rel. W.A.G. v. Toyota Motor
Corp., No. 2:09CV169KS-MTP, 2012 WL 1596723, at *11-*12 (S.D. Miss. May 4, 2012)
(Starrett, J.). In that case, the court reduced noneconomic damages from $2,500,000 to
$1,500,000 based on the plaintiff’s forty percent comparative fault and then to $1,000,000
based on the statutory cap. The court rejected the defendant’s argument that noneconomic
damages should have been reduced to $1,000,000 based on the cap and then to $600,000
based on the plaintiff’s comparative fault. See id.

44
at 486-87 (¶40); see McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The trial court

may also exercise its own judgment as to an appropriate fee award, based on the court’s

experience and observation. See Miss. Code Ann. § 9-1-41 (Rev. 2014).

¶79. In the court below, Dorothy initially requested an unspecified amount of attorneys’

fees. It appears that Dorothy subsequently supplemented her motion by providing detailed

records of her attorneys’ time to the trial judge for in camera review. Dorothy’s supplement

apparently requested $212,312.50 in fees. However, the supplement does not appear to have

been filed with the court, and it is not a part of the record on appeal. Valley filed an amended

response in opposition to Dorothy’s request for attorneys’ fees and raised various objections

to the requested amount. The trial court subsequently granted Dorothy’s motion for

attorneys’ fees in an order that simply stated as follows:

THIS CAUSE having come on to be heard on Plaintiffs Motion for
Award of Costs, Attorneys’ Fees, and Other Relief. The Court, having
reviewed the pleadings and arguments of the parties, and being otherwise
advised in the premises, finds that the motion is well taken and should be
granted. The Court finds that $212,312.50 is reasonable in relation to the
results obtained in this case.

IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff’s
Motion for Award of Costs and Attorneys’ Fees is Granted in the amount of
$212,312.50 plus an interest rate of 8% per annum until fully paid.

The trial court made no further findings concerning the reasonableness of the fee or Valley’s

objections.

¶80. The trial court’s one-page order would be insufficient to justify an award of attorneys’

fees of this magnitude even if the record contained counsel’s time records, which it does not.

Our Supreme Court has expressly mandated that a trial court’s determination of reasonable

45
attorneys’ fees must “consider the eight factors enumerated in Rule 1.5 of the Rules of

Professional Conduct.” BellSouth Pers. Commc’ns LLC v. Bd. of Supervisors of Hinds Cty.,

912 So. 2d 436, 448 (¶39) (Miss. 2005). At least when a party requests a fee award as

substantial as in this case, “trial court judges must follow the appropriate procedure and make

the requisite findings of fact necessary to insure a losing litigant is only made to compensate

his adversary for fees and expenses which were reasonably incurred.” Id. The trial court in

this case failed to make any such findings. Accordingly, the award of attorneys’ fees must

be vacated and remanded to the trial court, and on remand the trial court should determine

and award reasonable attorneys’ fees based on findings of fact and conclusions of law related

to the McKee factors. See id.; Cook, 832 So. 2d at 487 (¶¶41-42).

CONCLUSION

¶81. For the foregoing reasons, we affirm the November 28, 2012 judgment of the circuit

court in all respects. We vacate and remand for further proceedings consistent with this

opinion only with respect to the February 27, 2014 order granting attorneys’ fees.

¶82. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED IN PART AND VACATED AND REMANDED
IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., FAIR AND GREENLEE, JJ.,
CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY CARLTON, J.

ISHEE, J., DISSENTING:

¶83. With respect to the majority, I must dissent on the issue of Dorothy’s standing. After

46
Barnett’s passing, Dorothy pursued Barnett’s claims under the wrongful-death statute. The

wrongful-death statute provides for a decedent’s statutory heirs to recover “all the damages

of every kind to the decedent . . . [including] property damages and funeral, medical, or other

related expenses incurred by or for the deceased as a result of such wrongful or negligent act

or omission or breach of warranty.” In re Estate of England, 846 So. 2d 1060, 1068 (¶24)

(Miss. 2003) (quoting Miss. Code Ann. § 11-7-13 (Supp. 2002)).21 The wrongful-death

statute allows for recovery by heirs regardless of whether an estate has been opened for the

decedent. Id. at 1065-66 (¶14) (quoting Miss. Code Ann. § 11-7-13).

¶84. Certain recoverable damages not specifically allotted by the wrongful-death statute

are attainable through Mississippi’s survival statute, which “allows an estate administrator

to commence and prosecute any personal action which the decedent might have commenced

and prosecuted . . . [and] [a]ny recovery from such action becomes an asset of the estate . .

. .” Id. at 1068 (¶21) (citing Miss. Code Ann. § 91-7-233 (Rev. 1994); Miss. Code Ann. §

91-7-91 (Rev. 1994)).22 Implicit in recovery under the survival statute is the existence of a

decedent’s estate and an administrator of the estate. As stated in Long v. McKinney, 897 So.

2d 160, 174 (¶60) (Miss. 2004): “In the event the litigants wish to pursue a claim on behalf

21
The applicable version of the wrongful-death statute for this case was updated in
2004. Nonetheless, the language from the 2002 version of the statute as cited in Estate of
England is identical to the 2004 version save for the addition of the phrase “or of any
unborn quick child” to the list of persons for whom heirs may recover damages. All
references made to the statute in Estate of England remain viable for this analysis.
22
The language used in sections 91-7-233 and 91-7-91 remains untouched at present.
Hence, the supreme court’s references to both statutes in Estate of England are also
applicable to the instant case.

47
of the estate of the deceased, such estate must, of course, be opened and administered

through the chancery court.”

¶85. Furthermore, the wrongful-death statute recognizes the “one-suit rule,” mandating that

only one suit shall be commenced for recovery of damages for the decedent. Estate of

England, 846 So. 2d 1060, 1068 (¶¶24-25) (quoting Miss. Code Ann. § 11-7-13). In that

vein, the Mississippi Supreme Court has made it clear that an “estate administrator [may]

assert both a wrongful[-]death action and a survival action” in one suit. Id. at 1069 (¶29)

(citing Wilks v. Am. Tobacco Co., 680 So. 2d 839, 840 (Miss. 1996)).

¶86. In the present case, Barnett instituted the action himself at the commencement of the

suit. However, upon his death, Dorothy filed an amended complaint wherein she substituted

herself in his place to pursue wrongful-death damages. An estate was never opened. Hence,

it goes without saying that neither Dorothy nor any other party was ever an administrator or

executor of Barnett’s estate. By way of the amended complaint, Dorothy’s only capacity for

recovery became by and through the wrongful-death statute. As such, Dorothy was not

entitled to recoup any hypothetical survival damages – only wrongful-death damages.

¶87. At the close of the trial, the jury determined that it could not attribute Barnett’s death

to silicosis either by cause or by contribution. Accordingly, while Dorothy had standing to

recover wrongful-death damages, she was not awarded any. The jury only awarded survival

damages. Since an estate was never opened for Barnett, there was not a party to the action

with standing to recover the survival damages awarded. As such, I am of the opinion that

we are without authority to dispose of this case in any way but to reverse and render the

48
judgment as void since no one and no entity possessed the proper standing to recover the

survival damages awarded.

CARLTON, J., JOINS THIS OPINION.

49