Gilbert v. Ireland

758 So. 2d 1050, 2000 Miss. App. LEXIS 114, 2000 WL 274227
CourtCourt of Appeals of Mississippi
DecidedMarch 14, 2000
DocketNo. 98-CA-00658-COA
StatusPublished
Cited by1 cases

This text of 758 So. 2d 1050 (Gilbert v. Ireland) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilbert v. Ireland, 758 So. 2d 1050, 2000 Miss. App. LEXIS 114, 2000 WL 274227 (Mich. Ct. App. 2000).

Opinions

PAYNE, J.,

for the Court:

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶ 1. This case is before the Court challenging the judgment of the Bolivar County Circuit Court, after a jury trial, in favor of Martha Jean Ireland against Roy Gilbert in the amount of $1,000,000 for Gilbert’s negligence arising from an automobile accident in which Ireland was injured. Aggrieved, Gilbert filed this appeal raising the following four issues for our review: 1) whether the trial court erred in admitting into evidence, over hearsay objection, a letter from plaintiffs deceased treating physician to plaintiffs attorney expressing an opinion that plaintiff was permanently disabled as a result of this accident; 2) whether the trial court erred in allowing plaintiffs economist, Cabell Shull, Ph.D., to testify concerning plaintiffs’s purported future lost wages; 3) whether the trial court erred in instructing the jury that it could award damages for loss of wage earning capacity; and, 4) whether the trial court erred in denying Roy Gilbert’s motion for judgment notwithstanding the verdict or alternatively for a new trial because the verdict of the jury was excessive, against the overwhelming weight of the evidence and indicates that the jury was influenced by bias, passion or prejudice.

¶ 2. After reviewing the briefs of the parties and applicable precedents, we find [1052]*1052merit in Gilbert’s first assignment of error regarding the admission of Dr. Lindsey’s letter. Accordingly, we vacate the judgment entered in favor of Ireland by the trial court below and remand for further action consistent with this opinion.

FACTS

¶ 3. On May 23, 1993, Ireland was driving northbound on Highway 1 south of Benoit, Mississippi. Gilbert was traveling along the same highway behind Ireland. Proceeding along the same path in between Ireland and Gilbert’s vehicles was a third vehicle driven by Lawrence Smith. Gilbert moved into the lane for southbound traffic and commenced passing Smith. As Gilbert moved passed Smith’s vehicle, Ireland executed a left turn into a private driveway that abutted the highway. As Ireland executed this turn, Gilbert struck her car near the driver’s side door.

¶ 4. Ireland was transported to the Bolivar County Hospital in Cleveland, Mississippi where she was treated and released, but she returned the next day complaining of back pain. She was treated by Dr. Arthur Lindsey, a general practitioner in Cleveland. Dr. Lindsey admitted Ireland to Bolivar County Hospital for treatment and physical therapy for approximately one week. Dr. Lindsey died prior to the trial. However, approximately fourteen months prior to the commencement of this action, Dr. Lindsey wrote to Ireland’s attorney summarizing his treatment and diagnosis. Over Gilbert’s objection, this letter was introduced into evidence as part of an exhibit containing Dr. Lindsey’s medical records.

¶ 5: Dr. Lindsey referred Ireland to Dr. John Frenz, a neurologist. Dr. Frenz was deposed, and a videotape of his deposition was entered into evidence. He assessed a seven percent permanent impairment to the body as a whole resulting from the automobile accident. Ireland was also treated by Dr. Rodrigo Galvez, a psychiatrist. He testified that Ireland suffered from post-traumatic stress disorder and had a sixty percent permanent impairment.

DISCUSSION AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE, OVER HEARSAY OBJECTION, A LETTER FROM PLAINTIFF’S DECEASED TREATING PHYSICIAN TO PLAINTIFF’S ATTORNEY EXPRESSING AN OPINION THAT PLAINTIFF WAS PERMANENTLY DISABLED AS A RESULT OF THIS ACCIDENT.

¶ 6. In Gilbert’s first assignment of error, he maintains that the letter from Dr. Lindsey addressed to counsel for Ireland constituted inadmissible hearsay. Ireland contends the letter is admissible under one or both of the following exceptions to the hearsay rule: M.R.E. 803(4), a statement made for the purpose of obtaining medical treatment, or M.R.E. 803(6) a record of a ■regularly conducted activity. Ireland’s arguments, as persuasive as they may be, cannot carry the day under current Mississippi law. Dr. Lindsey’s letter to Ireland’s counsel was hearsay not subject to the exceptions relied on by Ireland under M.R.E. 803.

¶ 7. We acknowledge that it is very unfortunate that Dr. Lindsey passed away prior to the trial of this matter. It is apparent from the most cursory reading of Dr,- Lindsey’s letter that the contents of his letter to Ireland’s counsel were very important to Ireland’s claims of injury. However, we are constrained by Mississippi Supreme Court precedent to find that Dr. Lindsey’s letter was, without question, inadmissible hearsay under both Mississippi Rules of Evidence 803(4) and 803(6).

Dr. Lindsey’s Letter Under M.R.E. 808(A)

¶ 8. M.R.E. 803(4) provides that a previous out of court statement by the declarant is admissible if the statement was made for the purpose of obtaining [1053]*1053medical diagnosis or treatment. The Rule states:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

Miss. Rules of Evid. 803(4). “Before admitting evidence pursuant to M.R.E. 803(4), a two-part test must be met: ‘the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and ... the content of the statement must be such as is reasonably relied on by a physician in treatment.’ ” Doe v. Doe, 644 So.2d 1199, 1206 (Miss.1994) (citing Jones v. State, 606 So.2d 1051, 1056 (Miss.1992)).

¶ 9. In this case, Dr. Lindsey’s letter was three pages of single spaced type. It communicated what treatments Dr. Lindsey prescribed, to whom he referred Ireland, what these referrals accomplished and revealed about her condition, and his diagnosis as of a date nearly four years prior to the trial. While Dr. Lindsey no doubt relied upon complaints made by Ireland in treating her, satisfying the second prong of the test outlined above, the complaints are not the subject of the letter. Further, it cannot be said that the letter is a statement consistent with the purposes of promoting Ireland’s treatment, but rather only a review of what was done in the course of Ireland’s treatment. Accordingly, the letter was not admissible under M.R.E. 803(4).

Dr. Lindsey’s Letter Under M.R.E. 803(6)

¶ 10. M.R.E. 803(6) provides for the admission of records of regularly conducted activities as follows:

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949 So. 2d 784 (Court of Appeals of Mississippi, 2006)

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Bluebook (online)
758 So. 2d 1050, 2000 Miss. App. LEXIS 114, 2000 WL 274227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-ireland-missctapp-2000.