IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-01997-SCT
THE CITY OF JACKSON, MISSISSIPPI
v.
THE ESTATE OF OTHA STEWART, DECEASED, BY AND THROUGH ITS ADMINISTRATOR, EMMA WOMACK
DATE OF JUDGMENT: 05/20/2008 TRIAL JUDGE: HON. WINSTON L. KIDD COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: PIETER JOHN TEEUWISSEN CLAIRE BARKER HAWKINS ATTORNEYS FOR APPELLEE: JAMES A. BOBO MARK C. BAKER, SR. BERNARD C. JONES, JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED -10/14/2010 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.
PIERCE, JUSTICE, FOR THE COURT:
¶1. In 2002, the Circuit Court of Hinds County in a bench trial found the City of Jackson
liable for a fall sustained by an elderly woman, which the plaintiff alleged caused a stroke.
Finding that a stroke was not foreseeable, we remanded the case for a new trial on damages.
The trial court awarded the maximum amount of damages under the Mississippi Tort Claims
Act, $250,000, after hearing testimony from Dr. Stephen Hayne, expert for the plaintiff, that the fall had caused a “traumatic brain injury” and not a stroke. Because of our great
deference to trial courts, we affirm.
STATEMENT OF THE CASE 1
¶2. Otha Stewart, left disabled by a stroke in 1978, attended an adult day care center at
the University of Mississippi Medical Center (UMMC) from 1993 to 1997. The City of
Jackson provided transportation for the infirm, like Stewart, to and from UMMC. On August
11, 1997, Stewart fell after taking a few steps toward the center. Doris Spiller, who drove
the City’s transport van, attempted unsuccessfully to break Stewart’s fall. Stewart hit her
head on the pavement and was taken to the emergency room, where, according to the
emergency room doctor, she had no swelling, her blood pressure was normal, and she seemed
fine. She was released, but her daughter, Emma Womack, was told to watch her for several
days.
¶3. The next two days, she stayed at home, but returned to the center on August 14 even
though she had told her daughter, Womack, that “she was still hurting and her head and legs
were still bothering her.” She fell in the bathroom that day at the center, but the fall was not
considered serious. She did not sleep well that night, and the next morning she regurgitated
her breakfast. Womack, her daughter, took her to the emergency room, where the staff
examined her, gave her prescriptions for pain and muscle relaxers, and released her.
1 Except where otherwise cited, these facts are taken from our prior opinion in this case, City of Jackson v. Stewart ex rel. Womack, 908 So. 2d 703 (Miss. 2005).
2 ¶4. Because Stewart continued to have problems, Womack took her to Dr. Calvin Ramsey
and Dr. Don Gipson, who believed Stewart had suffered another massive stroke “far worse
than the one she had in the 70's.”
¶5. Stewart sued the City and UMMC in August of 1998 on breach-of-contract and tort
liability theories.2 Dr. Ramsey testified at trial that he believed this stroke had happened
between Stewart’s August 11, 1997, fall and her August 19 visit with him. The daughter
testified that, prior to the fall Mrs. Stewart could walk with a quad cane and had limited
speech. According to Womack, she became “practically a total invalid” after the fall –
unable to eat, walk, stand, or communicate. Dr. Ramsey noted other problems – she had
difficulty swallowing which may have caused her bouts with pneumonia, immobility that
caused bedsores, and urinary tract infection – which motivated many hospitalizations and
were caused, according to Dr. Ramsey, by a second stroke. Plaintiff’s counsel’s opening
statement sums up its theory nicely: “ . . . [A]s a result of this fall and the resulting extension
of the stroke, Ms. Stewart [was] totally incapacitated.”
¶6. The trial court awarded Stewart’s Estate $500,000 on the tort claim (split equally
between UMMC and the City) and $500,000 on the breach-of-contract claim. UMMC and
the City appealed. We reversed and rendered judgment for the hospital, reasoning that they
had breached no duty owed to Stewart.3 Further, we held that awarding damages on tort and
contract theories of liability amounted to double recovery, and so we limited damages to the
2 A conservatorship was established for Mrs. Stewart with Womack being named conservator. When Mrs. Stewart died during the litigation, Womack was substituted as plaintiff. 3 Stewart ex rel. Womack, 908 So. 2d at 709.
3 statutory maximum, $250,000.4 5 Finally, we held that “[because] stroke is not a foreseeable
consequence of the alleged negligence which led to Mrs. Stewart’s fall . . . the Estate may
not recover damages related to the stroke, whether or not it was caused by the fall on August
11, 1997.” 6 We remanded for a new trial on damages with instructions to “limit any damage
award against the City to $250,000, and to exclude from its award any damages attributable
to the stroke.” 7
¶7. At the new trial on damages, Dr. Steven Hayne testified for the plaintiffs that the fall
“injured [Stewart’s] central nervous system . . . consistent with the diffuse axonal injury.”
Further, he testified that “Ms. Stewart ultimately entered a downhill course over time. . . .
[H]er diminished mental capacity, diminished ability to avoid aspiration, 8 [and] her
diminished physical condition ultimately caused the demise of this patient.” Finally, he
testified that none of the injuries described were causally related to any stroke suffered by
Mrs. Stewart. Both sides stipulated to the introduction of the first trial transcript, but the City
offered no new testimony or evidence.
4 Id. at 711-12. 5 Miss. Code Ann. § 11-46-15(1)(b) (Rev. 2002). 6 Id. at 715. 7 Id. at 716. 8 Defined as: 1. the act of inhaling; 2. The removal of fluids or gases from a cavity by the application of suction. Dorland’s Illustrated Medical Dictionary 152 (25th Ed. 1974). We think, in context, he means that Mrs. Stewart was unable to avoid inhaling bits of food or drops of liquid, leading to pneumonia.
4 ANALYSIS
A. Did the trial court’s judgment violate the doctrine of the law of the case?
¶8. The question presented by the City is somewhat unwieldy: “Whether the lower court
erred in failing to limit damages to those from the fall on the curb.” The City argues that this
award violates the doctrine of the law of the case: Whatever is once established as the
controlling legal rule of decision, between the same parties in the same case, continues to be
the law of the case, so long as there is a similarity of facts.9 And the judgment of the trial
court was, at least rhetorically, limited to damages caused by the fall. The opinion order said:
[Dr. Hayne] testified that . . . it was his opinion . . . that the condition and treatment reflected by the medical records of Mrs. Stewart[] were causally related to the plaintiff hitting her head on pavement when she fell on August 11, 1997. He also testified that the plaintiff’s striking her head injured her brain and led to the continuous decline of her cognitive and physical abilities until her death on November 4, 2002. . . . The Court finds Dr. Hayne’s testimony credible on the issue of liability and damages.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CA-01997-SCT
THE CITY OF JACKSON, MISSISSIPPI
v.
THE ESTATE OF OTHA STEWART, DECEASED, BY AND THROUGH ITS ADMINISTRATOR, EMMA WOMACK
DATE OF JUDGMENT: 05/20/2008 TRIAL JUDGE: HON. WINSTON L. KIDD COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: PIETER JOHN TEEUWISSEN CLAIRE BARKER HAWKINS ATTORNEYS FOR APPELLEE: JAMES A. BOBO MARK C. BAKER, SR. BERNARD C. JONES, JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED -10/14/2010 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.
PIERCE, JUSTICE, FOR THE COURT:
¶1. In 2002, the Circuit Court of Hinds County in a bench trial found the City of Jackson
liable for a fall sustained by an elderly woman, which the plaintiff alleged caused a stroke.
Finding that a stroke was not foreseeable, we remanded the case for a new trial on damages.
The trial court awarded the maximum amount of damages under the Mississippi Tort Claims
Act, $250,000, after hearing testimony from Dr. Stephen Hayne, expert for the plaintiff, that the fall had caused a “traumatic brain injury” and not a stroke. Because of our great
deference to trial courts, we affirm.
STATEMENT OF THE CASE 1
¶2. Otha Stewart, left disabled by a stroke in 1978, attended an adult day care center at
the University of Mississippi Medical Center (UMMC) from 1993 to 1997. The City of
Jackson provided transportation for the infirm, like Stewart, to and from UMMC. On August
11, 1997, Stewart fell after taking a few steps toward the center. Doris Spiller, who drove
the City’s transport van, attempted unsuccessfully to break Stewart’s fall. Stewart hit her
head on the pavement and was taken to the emergency room, where, according to the
emergency room doctor, she had no swelling, her blood pressure was normal, and she seemed
fine. She was released, but her daughter, Emma Womack, was told to watch her for several
days.
¶3. The next two days, she stayed at home, but returned to the center on August 14 even
though she had told her daughter, Womack, that “she was still hurting and her head and legs
were still bothering her.” She fell in the bathroom that day at the center, but the fall was not
considered serious. She did not sleep well that night, and the next morning she regurgitated
her breakfast. Womack, her daughter, took her to the emergency room, where the staff
examined her, gave her prescriptions for pain and muscle relaxers, and released her.
1 Except where otherwise cited, these facts are taken from our prior opinion in this case, City of Jackson v. Stewart ex rel. Womack, 908 So. 2d 703 (Miss. 2005).
2 ¶4. Because Stewart continued to have problems, Womack took her to Dr. Calvin Ramsey
and Dr. Don Gipson, who believed Stewart had suffered another massive stroke “far worse
than the one she had in the 70's.”
¶5. Stewart sued the City and UMMC in August of 1998 on breach-of-contract and tort
liability theories.2 Dr. Ramsey testified at trial that he believed this stroke had happened
between Stewart’s August 11, 1997, fall and her August 19 visit with him. The daughter
testified that, prior to the fall Mrs. Stewart could walk with a quad cane and had limited
speech. According to Womack, she became “practically a total invalid” after the fall –
unable to eat, walk, stand, or communicate. Dr. Ramsey noted other problems – she had
difficulty swallowing which may have caused her bouts with pneumonia, immobility that
caused bedsores, and urinary tract infection – which motivated many hospitalizations and
were caused, according to Dr. Ramsey, by a second stroke. Plaintiff’s counsel’s opening
statement sums up its theory nicely: “ . . . [A]s a result of this fall and the resulting extension
of the stroke, Ms. Stewart [was] totally incapacitated.”
¶6. The trial court awarded Stewart’s Estate $500,000 on the tort claim (split equally
between UMMC and the City) and $500,000 on the breach-of-contract claim. UMMC and
the City appealed. We reversed and rendered judgment for the hospital, reasoning that they
had breached no duty owed to Stewart.3 Further, we held that awarding damages on tort and
contract theories of liability amounted to double recovery, and so we limited damages to the
2 A conservatorship was established for Mrs. Stewart with Womack being named conservator. When Mrs. Stewart died during the litigation, Womack was substituted as plaintiff. 3 Stewart ex rel. Womack, 908 So. 2d at 709.
3 statutory maximum, $250,000.4 5 Finally, we held that “[because] stroke is not a foreseeable
consequence of the alleged negligence which led to Mrs. Stewart’s fall . . . the Estate may
not recover damages related to the stroke, whether or not it was caused by the fall on August
11, 1997.” 6 We remanded for a new trial on damages with instructions to “limit any damage
award against the City to $250,000, and to exclude from its award any damages attributable
to the stroke.” 7
¶7. At the new trial on damages, Dr. Steven Hayne testified for the plaintiffs that the fall
“injured [Stewart’s] central nervous system . . . consistent with the diffuse axonal injury.”
Further, he testified that “Ms. Stewart ultimately entered a downhill course over time. . . .
[H]er diminished mental capacity, diminished ability to avoid aspiration, 8 [and] her
diminished physical condition ultimately caused the demise of this patient.” Finally, he
testified that none of the injuries described were causally related to any stroke suffered by
Mrs. Stewart. Both sides stipulated to the introduction of the first trial transcript, but the City
offered no new testimony or evidence.
4 Id. at 711-12. 5 Miss. Code Ann. § 11-46-15(1)(b) (Rev. 2002). 6 Id. at 715. 7 Id. at 716. 8 Defined as: 1. the act of inhaling; 2. The removal of fluids or gases from a cavity by the application of suction. Dorland’s Illustrated Medical Dictionary 152 (25th Ed. 1974). We think, in context, he means that Mrs. Stewart was unable to avoid inhaling bits of food or drops of liquid, leading to pneumonia.
4 ANALYSIS
A. Did the trial court’s judgment violate the doctrine of the law of the case?
¶8. The question presented by the City is somewhat unwieldy: “Whether the lower court
erred in failing to limit damages to those from the fall on the curb.” The City argues that this
award violates the doctrine of the law of the case: Whatever is once established as the
controlling legal rule of decision, between the same parties in the same case, continues to be
the law of the case, so long as there is a similarity of facts.9 And the judgment of the trial
court was, at least rhetorically, limited to damages caused by the fall. The opinion order said:
[Dr. Hayne] testified that . . . it was his opinion . . . that the condition and treatment reflected by the medical records of Mrs. Stewart[] were causally related to the plaintiff hitting her head on pavement when she fell on August 11, 1997. He also testified that the plaintiff’s striking her head injured her brain and led to the continuous decline of her cognitive and physical abilities until her death on November 4, 2002. . . . The Court finds Dr. Hayne’s testimony credible on the issue of liability and damages.
Our instructions were merely that because any stroke was not a foreseeable result of the fall,
injuries resulting from that stroke ought not be considered in calculating damages.10
¶9. The plaintiffs failed under their old logic (a fall caused a stroke which caused various
other maladies) because the stroke was not foreseeable. They have crafted a new logic: a
fall caused a traumatic brain injury which caused various other maladies. Our prior decision
certainly did not suggest that traumatic brain injuries are unforeseeable results of head
injuries, so their new theory does not violate any law of the case. Essentially, the City asks
whether the trial judge ought to have given credence to a new theory about whether their
9 Fortune v. Lee County Bd. of Supervisors, 725 So. 2d 747, 751 (Miss. 1998). 10 Stewart ex rel. Womack, 908 So. 2d at 716.
5 negligence caused much of Mrs. Stewart’s sickness and suffering in her final years. We
interpret this as a challenge to the overwhelming weight of the evidence.
B. Was the trial court’s judgment against the overwhelming weight of the evidence?
¶10. The findings of fact by a circuit court judge, sitting without a jury, will not be reversed
on appeal where they are supported by substantial, credible, and reasonable evidence.11 The
sole evidence offered at the new trial on damages – the testimony of Dr. Steven Hayne – is
unavoidably contradictory to expert testimony offered by the plaintiff at the first trial. On
the other hand, Womack’s undisputed testimony from the first trial is that her mother’s fall
immediately precipitated her deteriorating health, pain and suffering, and extensive medical
bills. In total, the trial court’s determinations are not so manifestly wrong that we can disturb
them.
¶11. The inconsistencies in the evidence are troubling. In the original trial, the Plaintiff
presented extensive evidence that Stewart’s fall had caused an extension of her 1978 stroke.
Dr. Calvin Ramsey testified that Stewart’s “constellation of symptoms [after August 11,
1997] could have only been caused by a stroke.” Dr. Hayne, of course, testified that, based
upon his education, training, experience, and activities in the case, the cause of these ailments
“was not an exacerbation or extension of a stroke.” He testified that the fall produced
“severe” brain injuries that were not uncommon in elderly people experiencing similar blows,
resulting in mental and physical deterioration ending in death.
11 Phillips v. Miss. Dep’t of Public Safety, 978 So. 2d 656, 660 (Miss. 2008).
6 ¶12. We think both doctors for the plaintiff used the “differential diagnosis”
methodology,12 though Dr. Ramsey’s methodology was not very clearly articulated.
Differential diagnosis is a process whereby medical doctors determine which of two or more
diseases with similar symptoms is the one from which the patient is suffering, by a systematic
comparison and contrasting of clinical findings.13 By definition and by Dr. Hayne’s
admission, the plaintiff’s experts ruled out the credibility and accuracy of each other’s
diagnoses.
¶13. But this inconsistency does not disqualify Dr. Hayne’s opinion. We have said
“[w]here there is conflicting evidence, this Court must give great deference to the trial judge's
findings.” 14 The inconsistencies between these experts testimony about why Stewart took
such a drastic downturn so soon after the fall does not alter the uncontested fact that she did.
¶14. Womack testified that her mother was nonresponsive and unable to stand just five
days after the fall, and that she became practically an invalid, taking no pleasure in life. The
record is very clear that, though Stewart was disabled before the fall, her difficulties were
exacerbated in the near term following her fall. And based upon the medical records entered
into evidence, the trial court found that Stewart’s medical care cost more than $400,000 in
those final years. Dr. Hayne offered an opinion which causally linked Stewart’s deterioration
and rising medical costs to the negligent act of the City. The trial court found that opinion
12 Dr. Hayne called his methodology “[c]linical by exclusion.” Dr. Ramsey listed deteriorating physical symptoms associated with stroke and relied upon an August 19, 1997, hospital discharge report. 13 Stedman’s Medical Dictionary 492 (27th Ed.) 14 City of Jackson v. Spann, 4 So. 3d 1029, 1042 (Miss. 2009).
7 credible. For us to decide otherwise would be to say that the trial court was unmistakably,
clearly, plainly, or indisputably wrong.15 We would have to replace the trial court’s judgment
with ours.
¶15. In sum, the trial court was faced with the reality that in the near term after a fall that
sent her to the hospital, Stewart began to decline in physical and mental health. It found
credibility in the opinion of an expert operating under a well-established methodology that
the fall and the deteriorating health were causally related. The City offered no new evidence
to rebut that opinion testimony. And the trial court found for the plaintiff within its
discretion. We will not disturb that finding.
¶16. AFFIRMED.
WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. GRAVES, P.J., NOT PARTICIPATING.
15 Singley v. Singley, 846 So. 2d 1004, 1007 (Miss. 2002).