Expert Backdoor Evidence

Edward M. O'Keefe v. Biloxi Casino Corp. NO. 2009-C A-01185-C

MRE 703

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

In a recent Slip and Fall case the Mississippi Supreme Court enumerated MRE 703 and allowed that experts can base opinions on facts or data that are not admissible in evidence, but MRE 703 cannot be used to "backdoor" evidence that would otherise not be admissible or has been disallowed by motion in limine.

http://www.mssc.state.ms.us/Images/Opinions/CO70409.pdf

Jury Instructions in Civil Cases

In, Dunn v. Yeager the Supreme Court of Mississippi looked at the larger picture of Jury instructions in Civil cases.

Typically regarding jury instructions, the trial court possesses considerable discretion to decide what is fair and equitable to both parties. The purpose of a jury instruction is to see that “the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it.” [Splain v . Hine s, 609 So. 2d 1234, 1239 (Miss. 1992)] (citing Rester v. Lott, 566 So. 2d 1266, 1269 (Miss. 1990)). We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence. . . . In analyzing the aggregate jury instructions, “defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly– although not perfectly – announce the applicable primary rules of law.”

The court goes on to examine the jury instructions given by each side for informed consent, and tests just how much discretion the court has in its choice of instructions.

Mississippi's Price Gouging Statute Upheld as Constitutional

After Hurricane Katrina the price of gas in Mississippi gas stations jumped by as much as 40 cents a gallon. As a result the Mississippi Legislature passed a bill which says that during a time of emergency, goods and services shouldn't cost more than the ordinary price for similar items "in the same market area at or immediately before the declaration of a state of emergency or local emergency."

The statute was tested when the Attorney General brought suit against Fair Oil co. and a judge agreed with Fair hope that the statute was unconstitutional because the phrases "same market area" and "at or immediately before" where too broad and vague enough to be considered unconstitutional.

The Mississippi Supreme Court reversed and remanded the case stating that "The alleged conduct being prosecuted is the raising of prices after the declaration of a state of emergency, absent justification," and this even without stated time and geographical restrictions in the statute.

Summary Evidence

In the recent case of United States v. Whitfield, 590 F.3d 325 (5th Cir. Dec. 11, 2009)(No. 07-60748) it was found that where records records were voluminous and inconvenient to use if not summarized the summary of these documents could be permissible so long as this summary is not simply allowing the Government to repeat its entire case-in-chief shortly before jury deliberations.

To use the word voluminous to refer to the amount of paper involved in any case involving transactions over a period of time is usually understatement. When I worked as a runner at a large Defense firm there was an empty office that was once called the "War Room" but was buried under boxes when the firm picked up a large corporate transactions case. There were probably 60 bankers boxes filled with discovery all of which had to be sifted through to prove damages in the case.

Federal Rules of Evidence Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

The Court is right to add the repetition component to the rule because if it were not a consideration either side would be able to present evidence, summarize it, present more evidence, summarize it, then summarize both together before arguing their entire case in closing arguments. The rule will save time for the court and may prevent an unfair advantage from being obtained.

Apellate Review

This Blog will review recent caselaw in the 5th circuit as well as the Mississippi Courts. Special attention will be paid to areas where the law in Mississippi has recently changed due to appellate decisions.