IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CA-02357-SCT
RIVER REGION MEDICAL CORPORATION d/b/a
PARKVIEW REGIONAL MEDICAL CENTER
v.
THOMAS PATTERSON
DATE OF JUDGMENT: 12/19/2005
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JASON EDWARD DARE
L. CARL HAGWOOD
DAVID MARK EATON
ATTORNEYS FOR APPELLEE: PAUL KELLY LOYACONO
WILLIAM ALLEN HOOD
WILLIAM A. PYLE
JOHN DENVER FIKE
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND RENDERED - 11/29/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This case arises from a wrongful-death action brought in the Circuit Court of Warren
County, Mississippi. The trial court granted partial summary judgment to River Region
Medical Corporation (“River Region”) as to the claims of the deceased’s estate and Plaintiffs
sought no other economic damages. The remaining claims at trial were the Plaintiffs’
individual claims of loss of society and companionship. The jury awarded compensation in
the amount of $1,710,000 to the deceased’s husband, Thomas Patterson, and her two
daughters, Hallie and Brandy Nettles, for these individual claims. The minor daughters
subsequently settled their claims and no longer are involved in this case. It is undisputed
that Thomas Patterson did not present any evidence regarding his claim for damages. We
find that the trial court erred in denying River Region’s Motion for Judgment
Notwithstanding the Verdict as to Patterson’s claim. Accordingly, we reverse and render
judgment in favor of River Region.
FACTS
¶2. Jennifer Nelson Nettles was admitted to River Region for the birth of her child,
Brandy Nicole Nettles, who was born by cesarean section on December 26, 2001. Jennifer
Nettles passed away later that day while still a patient at River Region. After her death, the
decedent’s daughters, Hallie and Brandy Nettles, filed a wrongful death action against River
Region. Thomas Patterson, decedent’s estranged husband, later joined the suit.
¶3. On September 15, 2005, the trial court granted Defendant’s Motion for Partial
Summary Judgment as to the claims of the estate of Jennifer Nelson Nettles. The claims
remaining to be tried were for loss of society and companionship. At the close of Plaintiffs’
case in chief, Defendant moved for a directed verdict, arguing that the Plaintiffs had not met
their burden of proof regarding loss of society and companionship. At that time, counsel for
Plaintiffs stipulated that Plaintiffs were seeking no other damages. Defendant’s motion was
denied and the case proceeded to the jury.
¶4. After a jury verdict for Plaintiffs, Defendant filed its “Motion for Judgment
Notwithstanding Verdict, Motion for a New Trial or alternatively, Motion for Remittitur.”
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Again, Defendant argued that Plaintiffs had not proven loss of society and companionship.
Again, Defendant’s motion was denied. Defendant appealed to this Court, alleging six errors
by the trial court. The following year, Defendant settled with Hallie and Brandy Nettles.
DISCUSSION
¶5. River Region raised the following issues on appeal:
I. Whether the Trial Court Committed Reversible Error by Allowing
Eugene Michael Finan, M.D., to Express Opinions at Trial That
Were Not Previously Disclosed.
II. Whether Terry Siverly Was Qualified to Testify as to Nursing
Standards of Care.
III. Whether the Trial Court Committed Reversible Error by
Admitting Photographs.
IV. Whether the Trial Court Committed Reversible Error by
Excluding Evidence of Decedent’s Alleged Illegal Drug Use.
V. Whether the Trial Court Committed Reversible Error in
Instructing the Jury That All Damages Must Be Equally Divided
Between the Three Plaintiffs.
VI. Whether the Trial Court Erred in Denying Defendant’s Motion for
Directed Verdict as to the Claims of Thomas Patterson.
¶6. Because we hold that River Region was entitled to judgment notwithstanding the
verdict pursuant to Mississippi Rules of Civil Procedure 50(b) as to Thomas Patterson’s
claim, it is not necessary to address other assignments of error.
¶7. In reviewing denials of motions for judgment notwithstanding the verdict, this Court
uses the same standard as for motions for directed verdict. Twin County Electric Power
Ass’n v. McKenzie, 823 So. 2d 464, 468 (Miss. 2002).
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“Under this standard, this Court will consider the evidence in the light most
favorable to the appellee, giving that party the benefit of all favorable
inference that may be reasonably drawn from the evidence. If the facts so
considered point so overwhelmingly in favor of the appellant that reasonable
men could not have arrived at a contrary verdict, we are required to reverse
and render. On the other hand if there is substantial evidence in support of the
verdict, that is, evidence of such quality and weight that reasonable and fair
minded jurors in the exercise of impartial judgment might have reached
different conclusions, affirmance is required. The above standards of review,
however, are predicated on the fact that the trial judge applied the correct law.”
Id. (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709, 720 (Miss. 2001)).
¶8. River Region asserts that Patterson put on no evidence as to his individual claim. At
trial, Plaintiffs put on six witnesses, who all testified regarding the Defendant’s liability. No
witnesses testified to Plaintiffs’ claims for loss of society and companionship. Patterson
argues that, as a statutory wrongful-death beneficiary, he is not required to prove individual
damages. Patterson is correct in that his relationship to the decedent is all that is required for
him to recover a share of the damages which the decedent could have recovered “if death had
not ensued.” Such damages could include, among others, the decedent’s lost wages and pain
and suffering. However, no such claims were presented at trial. And because at trial the jury
considered only the individual claims of each Plaintiff, Patterson bore the burden of proving
his own claim of loss of society and companionship. This he did not do.
¶9. The Wrongful Death Statute (the “Statute”) in Mississippi, codified at Mississippi
Code Annotated Section 11-7-13 (Rev. 2004), mandates that there can be only one suit for
the benefit of all parties and that the damages for the injury and death of a married woman
are equally distributed between her husband and children. In Long v. McKinney, 897 So.
2d 160 (Miss. 2004), this Court addressed the beleaguered state of the law in wrongful-death
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actions. In Long, the Court aptly stated that “[n]o area of the law has historically provided
more muddled, misquoted and misunderstood procedural rules, than civil claims for wrongful
death.” Id. at 162-163. The parties were wrongful death beneficiaries who fought over who
would control the litigation when more than one chose to appear and be represented by
counsel. Id. at 162. In the present case, three plaintiffs were represented by one attorney in
one action. The dispute between the parties is not procedural in nature but rather substantive,
regarding the burden of proof which belonged to each plaintiff.
¶10. In Long, we stated “there are several kinds of damages which may be pursued, and
these damages are not due to the same claimants.” Id. at 169. (Emphasis added). “For
instance, the estate is entitled to recover funeral costs and final medical expenses. The
beneficiaries are entitled to recover for their respective claims of loss of society and
companionship. The wrongful-death beneficiaries are entitled to recover the present net cash
value of the decedent’s continued existence.” Id. (Emphasis added). Assuming Thomas
Patterson was a legitimate wrongful-death beneficiary, as we must do in giving him all
reasonable inferences, he would then be entitled to recover for himself any loss of society
and companionship he might prove, and to share equally in the damages which might have
been recovered by Ms. Nettles, “had death not ensued.” Miss. Code Ann. § 11-7-13 (Rev.
2004).
¶11. After Ms. Nettles’s unfortunate demise, it is true that under the statute, her husband
and children would be entitled to damages should they prevail in their wrongful-death action.
It is also true, therefore, that certain damages would have to be shared equally among them.
However, here the jury awarded damages solely for loss of society and companionship.
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These damages are separate from and possibly in addition to any damages they would share
equally – i.e., the damages of the estate and those suffered by Ms. Nettles.
¶12. In Long, the decedent’s daughter was the sole beneficiary of his will. Her brothers
were disinherited. Id. at 170. We noted that “a potential and incentive for Lori to vigorously
pursue the claims of the estate, and her individual claim for loss of society, is clearly present.
Each dollar recovered for such claims will inure entirely to the benefit of Lori, while other
dollars recovered must be divided among the wrongful death beneficiaries.” Id. (Emphasis
added). Here, by entering into the litigation and bringing an individual claim for loss of
society and companionship and nothing further, Patterson was then charged with proving
this claim. As River Region has correctly stated, “[u]nder Mississippi law, plaintiffs bear the
burden of going forward with sufficient evidence to prove their damages by a preponderance
of the evidence.” TXG Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991, 1016 (Miss.
1997). In a wrongful-death action where the decedent was electrocuted while renovating a
sewage lift station in Anguilla, Mississippi, his widow and his four children brought suit.
Entergy Miss., Inc. v. Hayes, 874 So. 2d 952, 953 (Miss. 2004). In that case, we noted “The
plaintiffs presented extensive testimonial evidence of the relationship each had with
[decedent] and their suffering as a result of his death in support of their damages claim for
loss of love, society, and companionship.” Id. at 954. Here, Patterson presented no evidence
regarding any damages sustained from loss of society and companionship. Claims of the
estate or other wrongful-death economic damages were not at issue. Therefore, River Region
was entitled to judgment notwithstanding the verdict as to Patterson’s claim.
CONCLUSION
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¶13. Plaintiff Thomas Patterson did not prove any damages for loss of society and
companionship. As the jury considered no other claims on his behalf, nor were any claims
remaining for the wrongful-death beneficiaries in their entirety, we find that River Region’s
Motion for Judgment Notwithstanding Verdict should have been granted.
¶14. REVERSED AND RENDERED.
WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, P.J.
GRAVES, JUSTICE, DISSENTING:
¶15. I disagree with the majority’s holding that River Region was entitled to judgment
notwithstanding the verdict (JNOV). Because I would affirm the jury verdict, I respectfully
dissent.
¶16. River Region did not raise an issue on appeal regarding the denial of the motion for
JNOV, and “this Court has long held that issues not raised on appeal are procedurally barred
from consideration.” Glover v. Jackson State Univ., 755 So. 2d 395, 398 (Miss. 2000).
Therefore, the issue of whether River Region was entitled to JNOV is procedurally barred
and not properly before this Court.1
¶17. The issue raised by River Region on appeal is whether the trial court erred in denying
the motion for directed verdict. While the standards of review for denial of directed verdict
1
Additionally, in arguing that it was entitled to JNOV, River Region asserted that
it was denied the opportunity to “disprove” that there was loss of society and
companionship. This presumes that these damages had indeed been proven.
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and denial of JNOV are the same, the motions are separate and distinct. Further, River
Region’s argument on appeal that the trial court erred in denying the motion for directed
verdict is without merit. River Region argued that a directed verdict was appropriate, in part,
because the plaintiffs had failed to introduce any evidence as to life expectancy as required
by Gatlin v. Methodist Medical Center, Inc., 772 So. 2d 1023 (Miss. 2000). Thereafter, the
trial court denied the motion for directed verdict, but allowed the plaintiffs to reopen their
case-in-chief pursuant to Gatlin to introduce evidence as to life expectancy. In Gatlin, this
Court found that the trial court should have allowed the plaintiff to reopen her case to present
evidence as to life expectancy. Thus, the trial court did not err.
¶18. River Region later renewed the motion, arguing in part that the plaintiffs’ claim
“should be limited to the date of death and time of trial.” The trial court properly denied the
renewed motion, as Patterson had introduced evidence of life expectancy for all of the
parties.
¶19. The majority also finds that damages for loss of society and companionship are not
to be equally distributed pursuant to Mississippi Code Annotated section 11-7-13. However,
the majority’s finding is contradicted by the statutory language. Mississippi Code Annotated
section 11-7-13 states, in relevant part:
Except as otherwise provided in Section 11-1-69, in such action the party or
parties suing shall recover such damages allowable by law as the jury may
determine to be just, taking into consideration all the damages of every kind
to the decedent and all damages of every kind to any and all parties interested
in the suit.
Miss. Code Ann. §11-7-13 (Rev. 2004).
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¶20. This Court consistently has found that this language in section 11-7-13 includes
damages for the loss of society and companionship. Specifically, this Court has said:
This statutory language has been held to include (1) the present net cash value
of the life expectancy 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. Jesco, Inc. v. Whitehead,
451 So. 2d 706, 710 (Miss. 1984); Sheffield v. Sheffield, 405 So. 2d 1314, 1318
(Miss. 1981); Dickey v. Parham, 331 So. 2d 917, 918-919 (Miss. 1976);
Thornton v. Ins. Co. of North America, 287 So. 2d 262, 265 (Miss. 1973);
Scott v. K-B Photo Service, Inc., 260 So. 2d 842, 844 (Miss. 1972); Boyd
Constr. Co. v. Bilbro, 210 So. 2d 637, 643 (Miss. 1968).
McGowan v. Wright, 524 So. 2d 308, 311 (Miss. 1988).
¶21. Section 11-7-13 further states, in relevant part:
Any amount, but only such an amount, as may be recovered for property
damage, funeral, medical or other related expenses shall be subject only to the
payment of the debts or liabilities of the deceased for property damages,
funeral, medical or other related expenses. All other damages recovered
under the provisions of this section shall not be subject to the payment of the
debts or liabilities of the deceased, except as hereinafter provided, and such
damages shall be distributed as follows:
Damages for the injury and death of a married man shall be equally
distributed to his wife and children, and if he has no children all shall go to
his wife; damages for the injury and death of a married woman shall be
equally distributed to the husband and children, and if she has no children all
shall go to the husband. . . .
Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added).
¶22. Clearly, section 11-7-13 includes damages for the loss of society and companionship.
Further, such damages are not for property damage, funeral, medical or other related
expenses. Therefore, such damages must fall into the category of “all other damages” which
“shall be equally distributed.” Moreover, this Court has upheld the equal distribution of such
damages. See Pannell v. Guess, 671 So. 2d 1310 (Miss. 1996).
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¶23. Section 11-7-13 does not contain any language as used by the majority that
“beneficiaries are entitled to recover for their respective claims of loss of society and
companionship.” An equal distribution of such damages may seem unfair. However, if this
Court respects its recent trend, then it must strictly construe the statute. See Caves v.
Yarbrough, 2007 Miss. LEXIS 613, *14 (Miss. 2007). See also Gannett River States Publ.
Co. v. Entergy Miss., Inc., 940 So. 2d 221, 224-26 (Miss. 2006); Arceo v. Tolliver, 949 So.
2d 691, 694 (Miss. 2006); Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006);
Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 590-91 (Miss. 2006); and Univ. of
Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006). A strict construction of the
statute would lead one to conclude that there would be no need for Patterson to prove
individual damages for loss of society and companionship.
¶24. Accordingly, I would find that the issue of whether the trial court properly denied the
motion for JNOV is procedurally barred from consideration. I would also find that the trial
court properly denied the motion for directed verdict. Because I would affirm the verdict of
the jury, I respectfully dissent.
DIAZ, P.J., JOINS THIS OPINION.
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River Region Medical Corporation v. Thomas Patterson
Combined Opinion