Ortman v. Cain

811 So. 2d 457, 2002 WL 18273
CourtCourt of Appeals of Mississippi
DecidedJanuary 8, 2002
Docket2000-CA-01816-COA
StatusPublished
Cited by7 cases

This text of 811 So. 2d 457 (Ortman v. Cain) 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
Ortman v. Cain, 811 So. 2d 457, 2002 WL 18273 (Mich. Ct. App. 2002).

Opinion

811 So.2d 457 (2002)

David ORTMAN, Appellant,
v.
Ellen CAIN, D.C., Appellee.

No. 2000-CA-01816-COA.

Court of Appeals of Mississippi.

January 8, 2002.
Rehearing Denied March 19, 2002.

*458 Stephen W. Mullins, Biloxi, Attorney for Appellant.

Stephen Walker Burrow, C. Brice Wiggins, Pascagoula, Attorneys for Appellee.

Before BRIDGES, P.J., LEE, and CHANDLER, JJ.

BRIDGES, P.J., For The Court.

¶ 1. David Ortman filed suit on December 29, 1997, in the Harrison County Circuit Court against Ellen Cain, D.C., for medical malpractice with the Honorable Kosta Vlahos presiding. The jury returned a verdict in favor of the defendant on October 19, 2000. Ortman has appealed and comes now to this Court with five issues which we quote:

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO STRIKE JUROR SARGEN MELLEN BASED ON HIS FAMILIARITY WITH THE DEFENSE EXPERT WITNESS;
2. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADMIT THE SWORN STATEMENT OF JOHNNY HULON INTO EVIDENCE.
*459 A. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PORTIONS OF DR. DANIELSON'S DEPOSITION AND DR. BRAGMAN'S TESTIMONY;
3. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW FOR OPENING STATEMENTS;
4. WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANTS SUDDEN EMERGENCY DEFENSE IN CONTRAVENTION OF MISSISSIPPI CASE LAW.
A. WHETHER THE TRIAL COURT ERRED IN STRIKING AN AGREED JURY INSTRUCTION ON PREEXISTING CONDITIONS; AND
5. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. David Ortman was working for Conn Construction in Gulfport when he felt a twinge in his back. On August 15, 1996, Ortman awoke to a great deal of pain in his back. Ortman called Conn Construction, and a co-worker was sent to take him to the doctor. Johnny Hulon picked Ortman up and took him to see Dr. Cain. Hulon helped Ortman into the doctor's office because he was in a great deal of pain and was having trouble walking by himself.

¶ 3. Dr. Cain brought Ortman into her examination room and placed him on an examination table. Dr. Cain obtained a brief history from Ortman, and proceeded to ask him some questions (i.e. was his body numb, etc.). Dr. Cain did not order an X-ray of his back. Dr. Cain tried to alleviate some of the pain Ortman was experiencing by applying pressure to the sacroiliac joint. This caused the examination table to drop, and Ortman began to experience even more pain than he had before the pressure. Ortman was unable to stand at all. An ambulance was called, and it transported him to Memorial Hospital in Gulfport. Ortman was diagnosed with a herniated disk and underwent surgery to repair his disk. After approximately ten days, Ortman returned to work.

STANDARD OF REVIEW

¶ 4. "Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion." Dobbs v. State, 726 So.2d 1267, 1274 (¶ 25) (Miss.Ct.App.1998).

¶ 5. The standard of review when dealing with jury instructions has been stated as "[r]ather, our job, as an appellate court, is to review the jury instructions as a whole to determine whether `the aggregate of the instructions, taken as a whole, fairly, though not necessarily perfectly, express the applicable primary rules of law.'" O'Flynn v. Owens-Corning Fiberglas, 759 So.2d 526 (¶ 31) (Miss.Ct.App.2000).

¶ 6. A motion for a new trial is left to the circuit court's discretion and raises issues regarding the weight of the evidence. Jackson v. State, 551 So.2d 132, 148 (Miss.1989). The standard of review for a challenge to the weight of the evidence is found in Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989):

In determining whether or not a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when it is convinced that the circuit court has abused its discretion in failing to grant a new trial.

See also Isaac v. State, 645 So.2d 903, 907 (Miss.1994); Newsom v. State, 629 So.2d 611, 615 (Miss.1993); Burrell v. State, 613 *460 So.2d 1186, 1190-91 (Miss.1993); Nicolaou v. State, 612 So.2d 1080, 1083 (Miss.1992); Parker v. State, 606 So.2d 1132, 1139-40 (Miss.1992).

ANALYSIS

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO STRIKE JUROR SARGEN MELLEN BASED ON HIS FAMILIARITY WITH THE DEFENSE EXPERT WITNESS.

¶ 7. Ortman raises this issue because the trial court did not allow him to use a "for cause" challenge to juror Sargen Mellen. Ortman then points out that a nurse, juror Bolden, was placed on the jury because Ortman had to use one of his peremptory instructions to exclude Mellen from the jury. Ortman argues the jurors were likely to put an inordinate amount of weight on the opinions Bolden had because of her health care background. Dr. Cain counters by stating that Ortman mis-applies the law in his arguments, and by pointing out Ortman failed to object to Bolden being placed on the jury.

¶ 8. Ortman believes there are several statements which should have caused the trial court to grant Ortman's "for cause" challenge to Mellen. The trial court asked Mellen if he had a positive opinion about chiropractors, and he stated he did but that it would not effect his verdict. Mellen was asked by counsel for Ortman if he had ever gone to a chiropractor and Mellen stated he had. Mellen also stated his father had been treated by Dr. Smith, who was one of the doctors testifying for the defense, and it was possible Mellen might give Smith's statements more credence because of the treatment.

¶ 9. In support of his contention that the trial court should have allowed him to use a "for cause" challenge to excuse Mellen, Ortman relies on the cases of Scott v. Ball, 595 So.2d 848 (Miss.1992) and Davis v. Powell, 781 So.2d 912 (Miss. Ct.App.2000). These two cases stand for the position that if a juror knows or is somehow connected to one of the parties, such that the connection would influence the way the juror decided the case, then the trial court should allow a "for cause" challenge in order to prevent a biased jury. Scott, 595 So.2d at 850, Davis, 781 So.2d at (¶ 21). These cases are distinguishable from this case, because they dealt with situations where the jurors knew one of the parties involved in the lawsuit. Here, Mellen did not know the parties involved in the case; Mellen only knew one of the witnesses who was testifying for Dr. Cain. The person with whom the juror is familiar makes a large difference in deciding whether the juror will be biased. If the juror is familiar with the party then there is a greater chance of prejudice than there is if the juror is only familiar with a witness.

¶ 10. Mellen stated his personal opinion concerning the testifying expert would not affect his decision on the verdict. The Mississippi Supreme Court has dealt with instances in which jurors have given assurances that they could be impartial. One such case is Scott v. Ball, 595 So.2d 848 (Miss.1992), one of the authorities Ortman bases his argument on, in which the court stated:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maggie Melvin v. Cleveland Nursing and Rehabilitation, LLC
159 So. 3d 623 (Court of Appeals of Mississippi, 2015)
Jackson v. State
935 So. 2d 1108 (Court of Appeals of Mississippi, 2006)
City of Jackson v. Calcote
910 So. 2d 1103 (Court of Appeals of Mississippi, 2005)
Adkins v. Sanders
871 So. 2d 732 (Mississippi Supreme Court, 2004)
Lucas v. Williamson
852 So. 2d 67 (Court of Appeals of Mississippi, 2003)
Samuel Adkins v. Curren J. Sanders
Mississippi Supreme Court, 2000

Cite This Page — Counsel Stack

Bluebook (online)
811 So. 2d 457, 2002 WL 18273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortman-v-cain-missctapp-2002.