in the supreme court of mississippi · 2017-05-15 · in the supreme court of mississippi ola mae...

IN THE SUPREME COURT OF MISSISSIPPI _________________

2015-CA-01886_________________

HYUNDAI MOTOR AMERICA ANDHYUNDAI MOTOR COMPANY DEFENDANTS-APPELLANTS

v.

OLA MAE APPLEWHITE, ET AL. PLAINTIFFS-APPELLEES

______________________________________________________________________________

Appealed from the Circuit Court of Coahoma County______________________________________________________________________________

______________________________________________________________________________

APPELLEES’ BRIEF

__________________________________________________________________

ORAL ARGUMENT REQUESTED

Ralph E. ChapmanDana J. SwanSara B. RussoCHAPMAN, LEWIS & SWAN PLLCP.O. Box 428Clarksdale, Mississippi 38614Telephone: (662) [email protected]

Dennis C. Sweet, IIISWEET & ASSOCIATES PLLCP.O. Box 1178Jackson, Mississippi 39201Telephone: (601) [email protected]

Attorneys for Ola Mae Applewhite, Ceola Wade and Kenneth Cordell Carter

E-Filed Document Dec 13 2016 14:01:47 2015-CA-01886 Pages: 44

IN THE SUPREME COURT OF MISSISSIPPI


V. NO. 2015-CA-01886


CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order that the justices of the Supreme

Court or the judges of the Court of Appeals may evaluate possible disqualification or recusal:

1. Ola Mae Applewhite, as Personal Representative of the Estate of and WrongfulDeath Beneficiaries of Dorothy Mae Applewhite;

2. Kenneth Cordell Carter, as Personal Representative of the Estate of and WrongfulDeath Beneficiaries of Cecilia Cooper;

3. Ceola Wade, as Personal Representative of the Estate of and Wrongful DeathBeneficiaries of Anthony J. Stewart;

4. Ralph E. Chapman, Sara Russo, Dana J. Swan, Chapman, Lewis & Swan, Clarksdale,Mississippi, Counsel for Plaintiffs;

5. Dennis Sweet, Sweet and Associates, Jackson, Mississippi, Counsel for Plaintiffs;

6. Hyundai Motor America and Hyundai Motor Company;

7. Thomas N. Vanderford, Jr., Assistant General Counsel for Hyundai Motor America;

8. J. Collins Wohner and the law firm of Watkins & Eager, PLLC, Jackson, Mississippi,Counsel for Hyundai Motor America and Hyundai Motor Company;

9. Robert W. Maxwell and the law firm of Bernard Cassisa, Elliott & Davis, Metaire,Louisiana, Counsel for Hyundai Motor America and Hyundai Motor Company;

10. Kevin C. Newsom, Michael J. Bentley, and the law firm of Bradley Arant BoultCummings LLP, attorneys for Hyundai Motor America and Hyundai MotorCompany;

ii

11. Walter E. McGowan and the law firm of Gray, Langford, Sapp, McGowan, Gray, andNathanson, attorneys for Hyundai Motor America and Hyundai Motor Company;

12. Bill Luckett and the Luckett Tyner Law Firm, P.A., attorneys for Hyundai MotorAmerica and Hyundai Motor Company;

13. Alecia Shavonne Applewhite, daughter of Dorothy Mae Applewhite;

14. Brandon O’Keith Applewhite, son of Dorothy Mae Applewhite;

15. Latisha Kiara Applewhite, daughter of Dorothy Mae Applewhite;

16. De’ Jazhane Carter, daughter of Cecilia Cooper;

17. Honorable Alfred B. Smith, trial judge.

So certified, this the 13th day of December 2016.

Respectfully submitted,

s/Ralph E. Chapman Ralph E. ChapmanAn Attorney for Plaintiffs

iii

TABLE OF CONTENTS

STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. There is legally sufficient evidence to support the jury’s verdict and the judgment ofthe trial court should be affirmed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Appellees’/Plaintiffs’ expert, Micky Gilbert, provided reliable testimony andevidence that the Hyundai Excel was traveling at 18 mph at impact.. . . . . 5

B. Appellees’/Plaintiffs’ expert, James Mundo, provide reliable expert testimonythat the Hyundai Excel was defectively designed. . . . . . . . . . . . . . . . . . . 13

C. Hyundai is not entitled to judgment as a matter of law because there is noSupreme Court mandate for the Plaintiffs to circumvent. . . . . . . . . . . . . 19

II. The verdict was not infected by multiple prejudicial errors in the conduct of the trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The trial court did not err in excluding Hyundai’s evidence that the Excel’soccupants were not seat-belted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Evidence of Hyundai’s photographs of other vehicles that split apart wereproperly excluded.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

C. By failing to object to the venire procedure prior to impaneling the jury,Hyundai has waived any objection to the venire. Nor was there any influenceon the jury panel by Bishop Cary Sparks. . . . . . . . . . . . . . . . . . . . . . . . . . 26

D. The jury properly allocated no fault to Applewhite. . . . . . . . . . . . . . . . . . 33

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

iv

TABLE OF AUTHORITIES

CASESButler v. Chrestman,

264 So. 2d 812 (Miss. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

City of Jackson v. Estate of Stewart ex rel. Womack, 48 So. 3d 502 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Dedeaux Utility Co., Inc. v. City of Gulfport, 63 So. 3d 514 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Dedeaux Utility Co., Inc. v. City of Gulfport, 938 So. 2d 838 (2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Ekornes-Duncan v. Rankin Med. Ctr., 808 So. 2d 955 (Miss. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 37

Estate of Hunter v. General Motor Corp., 729 So. 2d 1264 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23, 34

Frierson v. Delta Outdoor, Inc., 794 So. 2d 220, 223 (Miss. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

Holiday Motor Corp. v. Walters,

790 S.E.2d 447 (Va. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Hunter v. State, 684 So. 2d 625 (Miss. 1996) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Hyundai Motor Co. v. Applewhite, 53 So. 3d 749 (Miss. 2011) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Irby v. Travis, 935 So. 2d 884 (Miss. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Jones v. Panola County, 725 So. 2d 774 (Miss. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23

Mack Truck, Inc., v. Tackett, 841 So. 2d 1107 (Miss. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

Miss. Transp. Com'n v. McLemore, 863 So. 2d 31 (Miss. 2003) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13

Moeller v. American Guarantee & Liability Ins. Co.,812 So. 2d 953 (Miss. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Moore v. State, 816 So. 2d 1022 (Miss. Ct. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Page v. Siemens Energy, 728 So. 2d 1075 (Miss. 1998) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Pittman v. Miss. Power & Light Co., 368 So. 2d 238 (Miss. 1979) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Roach v. State, 116 So. 3d 126 (Miss. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Univ. of Miss. Med. Ctr. v. Foster, 107 So. 3d 149 (Miss. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Walker v. State, 91 So. 2d 548 (Miss. 1956) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

White v. Stewman, 932 So. 2d 27 (Miss.2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21

Williams v. City of Cleveland, 848 F. Supp. 2d 646 (N.D. Miss. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

STATUTES

Miss. Code Ann. §11-1-63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Miss. Code Ann. §13-5-87.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Miss. Code Ann. §63-2-3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULES Miss. Rule of Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

IN THE SUPREME COURT OF MISSISSIPPI


V. NO. 2015-CA-01886


STATEMENT OF ISSUES

Appellant Hyundai has identified numerous issues on appeal to which the Appellees have

responded.

STATEMENT REGARDING ORAL ARGUMENT

The Appellees join in the request for oral argument.

STATEMENT OF THE CASE

This is a products liability suit arising out of an automobile accident which occurred between

a 1993 Lincoln Continental and a 1993 Hyundai Excel in Tunica County Mississippi which occurred

on or about July 9, 1995. The Plaintiffs’ deceased Dorothy Mae Applewhite, Cecilia Cooper, and

Anthony Stewart where occupants in the Hyundai, which split into three pieces during the collision.

The Plaintiffs brought suit in the Circuit Court of Coahoma County, Mississippi alleging enhanced

injuries resulting in their deaths.

The first trial was held from March 24, 2008 to April 3, 2008 and resulting in a verdict of

$4.5 million dollars. On February 10, 2011, this Honorable Court reversed and remanded for a

discovery violation in Applewhite I. Upon retrial from September 15, 2014 to September 26, 2014,

the jury returned a verdict of $10.5 million. From that verdict, this appeal was taken.

STATEMENT OF FACTS

A concise statement of facts by the Plaintiffs is as follows:

1

On or about July 9, 1995, Dorothy Mae Applewhite, deceased, was operating her 1993

Hyundai Excel. This vehicle was manufactured by Hyundai in Korea, and sold by the Defendants,

Hyundai Motor America, Hyundai Motor Company (hereinafter Hyundai or Defendants) and sold

again by Hallmark Toyota-BMW, Inc. Ms. Applewhite was returning from work and was driving

in front of one vehicle and behind another. She was headed southbound on Highway U.S. 61 in

Tunica County, south of Dundee, Mississippi at approximately 8:00 a.m. with Cecilia Cooper,

deceased, and Anthony J. Stewart, deceased, as guest passengers. The vehicle left the right lane of

U.S. 61 and went onto the unpaved shoulder, then came back onto the right lane of U.S. 61 and

thereafter crossed into or towards the northbound lane and collided with a 1993 Ford Lincoln being

operated by driver William Echelberger. The Applewhite Hyundai vehicle split into three

identifiable parts, and the occupants of the Applewhite vehicle were ejected or partially ejected and

spilled from the vehicle thereby sustaining fatal injuries.

Suit was filed on June 22, 1998. (Applewhite I). The subject Hyundai Excel was

manufactured and sold for the model years 1990 - 1994 and the suit alleged that the vehicle was

defectively designed so that it was not crashworthy. The first trial was held on March 24, 2008 to

April 3, 2008. At trial, the Plaintiffs were able to prove that the combination of the defective and

deficient design, along with deficient welds, rendered this vehicle defective and unreasonably

dangerous.

At the end of the first trial, the jury unanimously returned a verdict in favor of the Plaintiffs

and against the Defendant Hyundai in the amount of $1,500,000.00 for each of the three decedents’

beneficiaries. Defendant Hyundai appealed the first trial to the Mississippi Supreme Court. On

February 10, 2011, the Supreme Court reversed and remanded the case for a new trial because of a

discovery violation. See Hyundai Motor Co. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (hereinafter

2

“Applewhite I”). In accordance with the opinion, additional discovery was performed with one (1)

new expert (Micky Gilbert) utilized at the second trial by the Plaintiffs and three (3) new experts

(Acoff, Curry and Cho) by the Defendants. The Plaintiffs designated and provided a MRCP 26(b)(4)

opinion of Mickey Gilbert, along with his deposition. No objection was made to any additional

expert witness being substituted, designated or utilized by either party, other than is set forth in the

Motions filed which generally related to Daubert type factors. To the extent that Defendants now

raise as an error the mere substitution of an expert, such objection is waived. Frierson v. Delta

Outdoor, Inc., 794 So. 2d 220, 223 (Miss. 2001)(the trial court will not be held in error unless it has

had an opportunity to pass upon the question). Neither party can claim error in such regard having

made no objection before, during or after trial to the mere substitution of experts. The second trial

began on September 15, 2014 and lasted for ten (10) days when the jury returned a verdict for

$3,500,000.00 rendered for each of the three decedents in favor of their beneficiaries which totaled

$10.5 million. Hyundai has appealed the verdict and judgment from the second trial to this Court.

SUMMARY OF ARGUMENT

In Applewhite I, the Honorable Court reversed and remanded for a new trial based upon a

discovery violation of the Plaintiffs then accident reconstruction expert, Andy Webb. Contrary to

Hyundai’s agrument, there was no mandate that the Plaintiffs retain Webb as an expert. Instead, the

Plaintiffs withdrew Webb as an expert and designated Micky Gilbert as their new accident

reconstruction expert. Hyundai did not object to the designation of Gilbert as an expert, therefore

any objection was waived. Frierson, 794 So. 2d at 223 (the trial court will not be held in error

unless it has had an opportunity to pass upon the question). Indeed, both Plaintiffs and Hyundai

designated new experts. With respect to the crucial delta V, Gilbert arrived at the nearly identical

delta V that the previous expert Webb calculated, only Gilbert utilized a different methodology.

3

Upon remand, the experts start with a “clean slate.” White v. Stewman, 932 So. 2d 27, 33

(Miss.2006). Gilbert did not reverse engineer. The Defendant Hyundai nevertheless introduced

Webb’s opinion and testimony to the jury.

At trial, the jury heard testimony from both lay witnesses as well as expert witnesses. The

trial presented the classic case of the battle of the experts. The battle of the experts goes to the jury.

Mack Truck, Inc., v. Tackett, 841 So. 2d 1107, 1112 (Miss. 2003).

The jury properly allocated no fault for the enhanced injuries to the Plaintiff Applewhite. As

a crashworthiness case Plaintiffs may only recover for enhanced injuries which are caused by the

vehicle not being crashworthy. See Estate of Hunter v. General Motor Corp., 729 So. 2d 1264, 1272

fn 3 (Miss. 1999). Here the enhanced injury was death, not injury. None of the enhanced injuries

were caused by the driver Applewhite. The trial court properly excluded seatbelt non-use. Jones

v. Panola County, 725 So. 2d 774 (Miss. 1998). Hyundai was entitled to a fair trial and received

a fair trial. Ekornes-Duncan v. Rankin Med. Ctr., 808 So. 2d 955 (Miss. 2002). It was not entitled

to a perfect trial. Id.

ARGUMENT

A difference in opinions of experts simply goes to the weight of the evidence, and a jury after

hearing evidence from both the Appellees/Plaintiffs and Appellants/Defendants, found

Appellees’/Plaintiffs’ experts’ opinions to be more credible. “[T]he admission of expert testimony

is within the sound discretion of the trial judge. Therefore, the decision of a trial judge will stand

‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse

of discretion.’ ” Miss. Transp. Com'n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003) (internal

citations omitted). Defendants allege that Plaintiffs have “failed to make a showing sufficient to

establish an essential element of the claim” and as such are entitled to a favorable opinion from this

4

Court. However, a close inspection of Defendants’ position reveals their argument is nothing more

than the Defendants’ opinion. Plaintiffs offered expert testimony as to the delta V, or change in

velocity, experienced by the subject Hyundai Excel and its occupants, together with expert testimony

that the impact would have been, more likely than not, survivable had the Excel not broken into three

(3) pieces at impact, resulting in two pieces of the car being located 50 to 54 feet from the other and

the occupants with no place of safety. To the contrary of Defendants’ summary statement, Plaintiffs

offered evidence to support every element of their claim. The issue presented here is nothing more

than a difference of opinion, properly resolved by the jury.

I. There is legally sufficient evidence to support the jury’s verdict and the judgment ofthe trial court should be affirmed.

A. Appellees’/Plaintiffs’ expert, Micky Gilbert, provided reliable testimony andevidence that the Hyundai Excel was traveling at 18 mph at impact.

Plaintiffs’ expert, Micky Gilbert’s methodology cannot be attacked so Hyundai resorts to

weak and odd arguments that are simply not supported by the facts in this case. Hyundai extensively

cross-examined Gilbert on all his opinions as well as the crash testing that Hyundai’s experts

performed. A fact of litigation is having experts who interpret data differently. These differences

should not be used as a basis to exclude the testimony as long as it is reliable and relevant, which

Gilbert’s opinions and conclusions are in this matter. Hyundai fails to recognize that in attacking

his opinions in this matter, Gilbert relies on other testing as well. Hyundai would have this Court

believe that Gilbert simply reached into the thin air and magically pulled out the speed of 18 mph

for the Excel at impact, but a conclusion like this by the Hyundai is absurd. Gilbert inspected the

accident vehicle, the adverse vehicle (Lincoln) and reviewed all evidence from the accident scene.

Tr. 644-45. Gilbert analyzed the police report and police photographs to ascertain as much about

the vehicle and accident scene before he inspected it himself. Tr. 645-47. Gilbert’s inspection of

5

the subject Excel took several hours, and included taking vehicle inspection notes and photographs

and documenting the condition of the accident vehicle.

Hyundai accuses Gilbert of “reverse engineering” his opinion regarding the delta V of the

subject vehicle from Plaintiffs’ accident reconstructionist expert from the first trial, Andrew Webb.

Nothing could be farther from the truth. Gilbert utilized a different calculation in determining the

delta V of the subject Excel if it remained intact during the accident. Gilbert started from scratch

and performed his own reconstruction analysis. Further proof of Gilbert performing his own work

is that the speeds and the changes in velocity Gilbert calculated are different than those of Webb, and

this fact was recognized by counsel for Hyundai in Gilbert’s cross-examination. Tr. 730. Gilbert

used the linear momentum calculation because it utilized the two known factors from the evidence

of this case–the crush of the Lincoln and the deceleration rate of the subject Hyundai Excel. Linear

momentum is best suited for the accident scenario present in the case sub judice by being able to

account for a vehicle splitting into pieces.

Gilbert surveyed the adverse vehicle in the accident, the Lincoln, and was able to assess the

crush damage to it and compare this damage to a known crush damage from a NHTSA crash test of

a Lincoln Continental. Tr. 675-81. The second known and critical component Gilbert analyzed was

the yaw motion of the subject Excel. Tr. 674, 692. When a vehicle yaws, it is losing speed, which

is a known quantity (deceleration rate), and the damage to the Lincoln Continental is known quantity.

Tr. 658-59, 677, 681. The NHTSA crash test further confirmed that Gilbert’s calculation for the

delta V of the accident was correct.

Contrary to what other experts did in this case, Gilbert did not utilize a computer program

to perform his work for him; instead, Gilbert took this known information and performed linear

momentum calculations by hand. Tr. 659, 661-62. This momentum calculation is where the pre-

6

impact speeds for the subject Hyundai were calculated by Gilbert. Tr. 661. The pre-impact speed

for the subject Hyundai was from 17.47 mph to 20.75 mph. Tr. 658. The initial speed of the subject

Hyundai was between 42.5 mph and 48 mph. Tr. 740. Gilbert further explains these calculations as

follows:

When you have two things going in, in a straight line or essentially a straight line –effectively, a straight line, you’ve got to take into account two items for each ofthose. And this is anywhere in space.. . .You’ve got to account for the weight and thespeed. That’s momentum. Weight is – momentum is weight and speed. And so it’sgot a balance. The momentum coming in has to equal the momentum coming out. And it doesn’t tell you exactly how they are going to bounce off or if one flowsthrough the other. But . . . linear momentum has to be preserved.. . . [T]he beforemomentum has to equal the after momentum. And by balancing those two sides ofthe equation, it gives you some of the unknowns in this accident.

Tr. 661-62.

Gilbert also took into account facts from the eyewitnesses, Runions and Jordan whose

description of the subject vehicle’s movement was consistent with Gilbert inclusion of three steer

reversals. Tr. 650-51. Another fixed piece of evidence Gilbert was able to use from these

eyewitnesses was the subject Excel’s speed. One eyewitness was in front of the vehicle and the other

behind the vehicle, and both of these vehicles were traveling at speeds between 45-50 mph, which

establishes the speed of the Excel prior to accident to be 50 mph. Tr. 651-52, 659. The scene

photographs allowed Gilbert to analyze the yaw marks of the subject Excel. From Gilbert’s analysis,

he was able to conclude that the whole yaw sequence was a three (3) steer event that occurred over

a minimum distance of 300 feet. Tr. 650, 669-70. Further evidence of the steers of the subject

Hyundai can be seen in the damage and abrasion patterns to the Excel’s tires. Tr. 654-55.

The cornerstone of Gilbert’s reconstruction is the subject Excel’s speed pre-impact and the

crush on the Lincoln. Gilbert, applying his engineering reasoning, did not calculate the total energy

calculations for the subject Hyundai Excel because you do not know the amount of energy required

7

to separate the subject Excel during the accident. Tr. 775. Gilbert utilized known quantities. He did

calculate the energy absorbed during the yaw and for the for the roll out after the impact. Tr. 775.

Gilbert also utilized energy calculations for comparing the crush on the subject Lincoln Continental

to the crush energy in the NHTSA test. Tr. 746. There was no crush energy information available

on the Hyundai Excel. Plaintiffs’ expert, Jim Mundo, did have sufficient information to calculate

total energy and determine whether the Hyundai Excel should be able to manage the energy of the

subject accident. Tr. 933-35. The trial court had this information before it when ruling on the

Defendant’s motion to exclude Gilbert, and the trial court recognized that Gilbert’s method was

reliable and trustworthy.

Gilbert utilized the known fact that the subject Excel is going to slow down from 50 mph

when the driver starts steering it back and forth and engages in multiple steering maneuvers. Tr.

658-59. Gilbert took the conservative approach and utilized 250 feet of slow down by the Excel

prior to impact, when in all actuality, this distance was more than likely longer. But, by utilizing the

shorter distant, Gilbert calculated the absolute highest speed the Hyundai Excel would have

experienced at impact. Tr. 674-75. Coupling this known information with a linear momentum

analysis, the speed at impact can be calculated.

Hyundai’s expert, Germane, arrived at the physically impossible impact speed of the Excel

of 40-45 mph, which is essentially the speed of the vehicle prior to several steer maneuvers over at

least 250 feet. Tr. 688-89. Germane had to disregard the eyewitness testimony of the drivers in

front and the rear of the collision. Interestingly, Germane did not account for the three steering

maneuvers. Germane’s reconstruction is also physically impossible based on his incredibly high

crush energy of 57 mph for the Lincoln vehicle, which would not have allowed the occupants of

Lincoln to have survived. Tr. 688.

8

Hyundai misconstrues Gilbert’s statement regarding testing. Gilbert was asked “can this

accident be replicated”. Tr. 696-97. Gilbert responded by stating it is impossible to replicate an

accident like the subject accident with a crash test.

There’s no way you can do that. I’ve tried to in accident’s were it’s been just ahandling where you are trying to follow steers. It’s difficult to just get your steersright. There are so many variables from a test track to a real-life situation. Youcannot possibly account for all of that.... This goes into vehicles interacting with eachother. Two motions of vehicles interacting with each other. You cannot possiblyeven attempt to replicate this type of accident with a crash test.

Id.

Gilbert recognized that there are numerous factors that cannot be controlled in a crash test

such as the way the vehicles come into each other, the rate of rotation, the way the vehicles are

moving, the way the vehicles are rolling, and the way the occupants are sitting in the vehicles. R.

1635-36. Micky Gilbert, based his opinions on the facts of this particular motor vehicle accident, on

known engineering principles, methodology and calculations, and upon published works, as well as

upon industry testing. The trial court recognized this when it denied Defendants’ Daubert motion

on Micky Gilbert.

Hyundai places significant weight on the new testimony of the eyewitnesses, Jordan and

Runions, and their opinions regarding the impact speed of the Hyundai Excel. Interestingly, these

new opinions were brought forth after these two eyewitnesses met with Hyundai well after the

accident occurred. (Emphasis our). The accident occurred in 1995. The credibility of the new

opinions nineteen years after-the-fact does not negate the evidence regarding initial speed prior to

control loss and prior to the accident which was one of the basis for Plaintiffs’ expert opinions.

Other witnesses were called at trial as well such as Ferrell Hunter, Jesse Powell, Leron Weeks, and

Gerald Cooper. Corroboration existed in the accident report, statements annexed thereto, condition

9

of both vehicles, day of accident, scene photographs, marks on the road, measurements noted in the

accident report, travel distance and configuration, pre-impact and impact of the Hyundai Excel with

the Lincoln and basic accident reconstruction principles. The jury heard, looked at and examined

all the evidence presented, the credibility of the witnesses’ testimony, and made their determination

of what facts to believe or not.

Despite how Hyundai misconstrues the eyewitnesses’ testimony, Jordan and Runions did not

reject Gilbert’s “interpretation” of their statements. In fact, both witnesses admitted to making the

previous statements with regard to their observations of initial speeds as to the speed of the Excel

before it went off the road. Tr. 1254-55, 1269-70, 1298, 1299, 1300, 1307-10, 1312-13, 1315. The

first time Runions testified to a speed of 55 mph at time of collision was nineteen years after the

accident and to Hyundais’ investigators and attorneys. Tr. 1270-71, 1274-75. Nowhere in the

statement given by Runions to the highway patrolman does he provide a speed of 55 mph. Tr. 1275-

76. The dispute was not about the initial speed, but whether the Excel decelerated by running off

the road more than once, and yawing and laying down rubber. Both accident reconstructionists agree

these movements would slow the vehicle down. The difference was that the defense expert,

Germane, manipulated the impact speed by changing his calculations regarding coefficient of friction

and distance. It was the defense expert who calculated his speeds at impact and worked backwards,

whereas the Plaintiffs’ expert, to his credit, calculated the deceleration rate based on the distance and

curve of the yaw from the observed speed estimates of the Excel before it left the roadway. The jury

was able to consider the credibility and reliability of all witnesses, including the eye witnesses

Runions and Jordan, and the testimony of Gilbert. This was a question of fact for the jury

There is no requirement under Daubert or the Rules of Evidence that a reconstructionist may

only offer opinions which have been proven by an actual crash test purportedly designed to replicate

10

an accident. Gilbert pointed out that in the Germane test designed to replicate the Gilbert

reconstruction, that among other things, Germane’s crash test had no yaw-yet the subject Excel was

in a yaw for over 250 feet; Gilbert’s roll angle was ten degrees and Germane welded the test vehicle

with a static roll angle of one degree and with no roll rate. Tr. 706-07, 709-10. As pointed out and

observed by the jury, in the Germane crash test, the tires did not roll, skid plates were chained to

non-moving and non-rotating tires and grease and soap were applied to the road at impact for the

metal skids. Tr. 1362-63; 1574, 1576. The test vehicle was rigged and welded with no idea how to

determine the effect of the same.

Interestingly, Hyundai never offered a test which replicated the accident and resulted in an

Excel failing in the same manner in which the subject Excel failed, i.e. there was no crash test

offered to replicate the defenses’ theory of the case. According to the testimony of Hyundai’s expert,

Geoff Germane, the limits of the crash testing facility prohibited the testing of his theory. Tr. 1492.

Likewise, Gilbert testified the crash test which Hyundai did run, did not replicate his reconstruction

for a number of reasons which were specified at trial. These include, but are not limited to, the

inability of the crash test to reproduce the direction and yaw of the vehicles in the collision, the use

of metal skid plates on the road surface and substantial bracing at key stress points, and the soaping

and greasing of the track to reduce friction. It is simply an erroneous argument to suggest that only

those opinions which can be reproduced on a test track may be admitted at trial, and moreover,

conclusively determine one expert is right and one is wrong. The Mississippi Supreme Court has

held that “even if properly authenticated a motion picture must be excluded if it is ‘more likely to

....Prejudice the jury rather than to serve any evidentiary purpose.’ ” Pittman v. Miss. Power & Light

Co, 368 So. 2d 238, 240 (Miss. 1979) (citing Butler v. Chrestman, 264 So. 2d 812 (Miss. 1972)).

The relevancy of demonstrative evidence, such as the Hyundai’s crash test video and report, may

11

be challenged due to the dissimilar circumstances between the actual accident and the re-enactment.

Pittman, 368 So. 2d at 240. In Pittman, the plaintiffs challenged a motion picture offered by the

defendant as an attempt to recreate the accident. Id. The Mississippi Supreme Court held that the

motion picture was not relevant because of the dissimilarities between the actual accident and those

depicted by the re-enactment. Id. The court noted that specific factors from the re-enactment were

incapable of being reasonably duplicated because they were unknown, such as the speed of the

tractor when it hit the pole and the point of impact. Id. Furthermore, the court found that the

introduction of the re-enactment would “more likely mislead and prejudice the jury, rather than to

serve any evidentiary purpose.” Id.

Hyundai’s crash tests are so dissimilar to the actual crash and to the expert opinions that the

tests themselves should not have been allowed in to evidence. Nevertheless, the trial court allowed

these tests to be introduced. Just because a defendant runs a crash test, because it can, there is no

legal requirement that it must be believed. Yet over Plaintiffs’ objection, Hyundai was allowed to

introduce two additional tests and show these tests to the jury, and the trial court ultimately allowed

Hyundai to use the tests on cross-examination and to argue against the credibility of the Plaintiffs’

experts. The jury then had a fair opportunity to hear everyone’s argument as to the delta V forces

involved in this crash and the corresponding survivability. Hyundai’s own expert, Tom Patterson,

admitted that it is generally impossible to duplicate the motion of an accident with a crash test. Tr.

1734-35. The jury heard all this testimony and evidence and a question for the jury was created.

B. Appellees’/Plaintiffs’ expert, James Mundo, provide reliable expert testimony that the Hyundai Excel was defectively designed.

Plaintiffs offered evidence that the design of the Excel was so deficient that it could not

maintain its integrity when involved in an accident at below highway speeds. There was specific

12

evidence on the design failures at the key points where the Excel broke apart, and further there was

evidence of alternate designs that were economically feasible and technologically available at the

time of manufacture. Hyundai is re-arguing four motions in limine it filed on Mundo. The trial

court read the motions and Plaintiffs’ responses to these motions, as well as, listened to arguments

presented by both sides. The trial court had the benefit of Mundo’s deposition, prior trial testimony,

and this Court’s prior decision in Applewhite I. The trial court reviewed all the motions, responses

and evidence and found Mundo to be more than qualified to provide testimony and that his testimony

met the standards of Daubert, Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003) and

Miss. Rule of Evid. 702. This Court in Hyundai v. Applewhite, 53 So. 3d 749 (Miss. 2011)

discussed at length Mundo’s qualifications, opinions and basis for his opinions. This included his

findings on defect and alternative design. His testimony was the same on the issue of defect in the

new trial. No further discussion is warranted; however, the trial court performed an analysis of the

motions and denied the Defendants’ motions. The trial court did not abuse its discretion.

Hyundai once again challenges Mundo’s Finite Element Analysis. This Court addressed this

very issue in Applewhite I. Hyundai is attempting to make the same argument to this Court as they

did in Applewhite I. Hyundai criticized Mundo’s alternative design because it was “an unvalidated

computer simulation of a single component.” Id. at 757. In Applewhite I, this Court summarized

Mundo’s alternative design of the A-pillar.

Mundo used a computer- aided design program to create a simulation of hisalternative design to the A-pillar. Although the computer simulation of Mundo’sdesign alternative was the car’s A-pillar rather than the entire frame, he testified atlength about how his design would have included the strenthening of welds“throughout the cage structure.” Thus, contrary to Hyundai’s assertions, Mundo’s testimony indicated that his design alternative was not limited to asingle component.

Id. (emphasis added).

13

Again, Hyundai continues to re-argue an issue previously raised with this Court. Hyundai

seems to take issue with Mundo not performing “real-world testing”.

However, this Court previously addressed Hyundai’s issues with Mundo not performing

“real-world testing”.

Hyundai argues that Mundo was required to create a model of his alternative designand perform strength tests on the model in order to validate his opinion. Hyundaidoes not argue that the computer program Mundo used was somehow flawed. Rather, we are asked to hold that computer simulations alone are not sufficient tosupport expert testimony, which we decline to do. We are not prepared to say thatan expert must physically build a model of his alternative design in order todemonstrate its efficacy. Mundo’s utilization of a computer program for thatpurpose goes to the weight and credibility of such evidence and not to itsadmissibility.

Id. (emphasis added).

Hyundai blatantly misconstrues Mundo’s testimony during trial. When asked about crash

energies on cross-examination Mundo did testify that he did perform an energy calculation. Mundo

testified in detail regarding the crash energy for this subject accident.

I've been in the business for 40 years. I have, in my files, many, many, many spreadsheets where I've taken the weights of vehicles and the speed of the vehicles and havecalculated the kinetic energy of those vehicles. Whenever I go to inspect a car and Iread the police reports, I get a sense of what the velocities of the vehicles are. I havea sense of what the speeds are. I go to my charts and I look at them. So, I do have theenergies. However, the reconstructionist is the expert that has the final word. But asa design engineer, I already know what those energies are, based on information I getearly on in the case. So, I do have that information available to me.

Tr. 933.

Mundo further explains during cross-examination how he calculated the crash energies.

Now, understand, the weights don't change. We know what the velocities are, if I justtake the rough numbers coming from the police department. I already know what theenergy is. I already made a determination as to whether or not the energies involvedin the crash are manageable. What I don't have is the specific fine tuning on thatenergy that the reconstructionists do. But that does not stop me from looking at theaggregate and total energy and being able to determine whether or not even with that

14

maximum amount of energy, whether this vehicle could have been; should have beenable to manage that energy.

Tr. 934-35.

Mundo continually explains how he determined the crash energies necessary for his analysis

of the subject accident.

I do have the energy. I have the energy as a design engineer. I knew what the energywas when I inspected the vehicle. I knew what the mass was. I knew what thevelocity. I have so many spreadsheets with energy charts and graphs that I knew whatit was even before I began to write a report. If you want fidelity and fine tuning ofthat, that belongs over in the reconstructionist's shop. I don't necessarily need itbecause mass and velocities that are reported are accurate enough for my work.

Tr. 935.

Mundo testified that he used Gilbert’s testimony and accident reconstruction, as well as his

many years in automotive design, performing crash testing and used the performance of the

components in the actual crash in this less than highway speed accident. Mundo, then through

Computer Aided Engineering performed a Finite Element Analysis (FEA), tested to failure the

components from the Hyundai Excel and Lincoln and applied the results to his analysis and

alternative design. All experts, including Hyundai’s experts, agreed this accident happened at below

highway speeds, and that it was foreseeable for this vehicle to be in this type of accident.

Hyundai has continually raised this issue regarding Mundo and have offered no new evidence

or particular ruling at trial which would support this Court overturning is prior ruling on the issue.

Obviously no expert has analyzed every other sub-compact vehicle. Hyundai attempts to burden

Plaintiffs with proving more than required by statute. They essentially argue that it is an element of

the Plaintiffs’ case in chief to prove how another vehicle would have performed in this accident. No

legal support has been cited by Hyundai, nor is it in Miss. Code Ann. §11-1-63 that would expand

Plaintiffs’ statutory burden to include an evaluation of the performance of other vehicles in an

15

accident the same as this accident. How would such an evaluation occur? Would the Plaintiffs have

to buy comparable vehicles and crash test them, or be burdened with investigating other accidents,

reconstructing those accidents and comparing them to this accident? Hyundai decided to try to

defend the performance or lack of performance of the 1993 Hyundai Excel in this below highway

speed accident by going to the internet and finding photos of vehicles which had broken apart

without regard to the speed of the accident, whether the vehicle hit a car, pole or concrete or metal

barrier. Substantial similarity was not even an afterthought. The only thing Hyundai did was gather

accidents of other vehicles broken in two, without any foundation offered as to similarity (that is to

say two similar vehicles in accidents at below highway speeds) and then make the quantum leap in

logic that other subcompacts would have performed the same way in this particular accident.

Hyundai attempts to burden Plaintiffs with an element that is not required in order to make their case

in chief. This cannot be a basis for reversing the jury’s verdict. To the contrary, Mundo presented

sufficient and reliable evidence that feasible engineering design changes in the Excel and its structure

that were known and available at the time of its design and manufacture would have prevented the

Excel from tearing apart during the subject accident. Mundo is extremely qualified in the area of

design of vehicles, and the Mississippi Supreme Court has found Mundo to be qualified and his

opinions to be reliable regarding alternative designs for the Excel.1 The Mississippi Supreme Court

1

Hyundai attempts to compare the present case to a recent case from the Supreme Court ofVirginia. See Holiday Motor Corp. v. Walters, 790 S.E.2d 447 (Va. 2016). These cases are notcomparable even though Mundo is an expert in both cases. First, in Virginia "there is no duty onthe part of vehicle manufacturers to design or supply a crashworthy vehicle". Holiday Motors,790 S.E. 2d at 455, and based on this, the court reversed and rendered judgment in favor of thevehicle manufacturer. The court found Mundo's opinion lacked foundation since Mundo did notperform a failure mode and effect analysis or other testing in the case. Id. at 458-59. This iscontrary to the present case because Mundo did perform extensive calculations and analysis anda finite element analysis, and the Mississippi Supreme Court has already found Mundo to bequalified and that his opinions were reliable. See Applewhite I, 53 So. 3d 749 (Miss. 2011).

16

in Hyundai Motor America v. Applewhite, 53 So. 3d 749, previously addressed Mundo’s work and

stated:

Mundo also offered an alternative design of the A-pillar, a beam that connects theroof of the car to its body on either side of the windshield. He testified that hisdesign would make the car significantly stronger and that implementing this designwould not be cost-prohibitive to Hyundai.

P26. Hyundai’s argument on this issue is that Mundo never refuted Hyundai’sevidence that his design of the Excel met or exceeded the state of the art forsubcompacts in 1993. However, Mundo testified that the design methods he usedwere available in 1993. While Hyundai presented expert testimony to the contrary,we do not find error in the trial judge’s conclusion that this difference opinion createda fact question for the jury and was not a basis for exclusion.

P27. Next, Hyundai criticizes Mundo’s alternative design because it was “aninvalidated computer simulation of a single component.” Mundo used a computer-aided design program to create a simulation of his alternative design to the A-pillar. Although the computer simulation of Mundo’s design alternative was the car’s A-pillar rather than the entire frame, he testified at length about how his design wouldhave included the strengthening of welds “throughout the cage structure.” Thus,contrary to Hyundai’s assertions, Mundo’s testimony indicated that his designalternative was not limited to a single component.

P28. Hyundai also argues that Mundo’s opinions about his alternative design werenot reliable without “real-world testing.” In other words, Hyundai argues that Mundowas required to create a model of his alternative design and perform strength tests onthe model in order to validate his opinion. Hyundai does not argue that the computerprogram Mundo used was somehow flawed. Rather, we are asked to hold thatcomputer simulations alone are not sufficient to support expert testimony, which wedecline to do. We are not prepared to say that an expert must physically build amodel of his alternative design in order to demonstrate its efficacy. Mundo’sutilization of a computer program for that purpose goes to the weight and credibilityof such evidence and not to its admissibility.

Hyundai’s experts simply disagreed thus creating a battle of the experts and a jury question.

The trial court did not abuse its discretion in allowing Mundo to testify on this issue.

Mundo’s opinion on the design defect was based on the design and the failure of the design

in a foreseeable accident at below highway speeds. This was an accident which occurred at below

highway speeds. Not only that, he calculated through an FEA analysis the strength of the defective

17

design and how the alternative design would increase the strength, something the defense experts

never did. While the defense experts freely criticized the FEA analysis, none of them performed

such an analysis and none of them calculated the amount of energy which they claim was required

to tear an Excel into three pieces. Interestingly, with the FEA and the data which went into the FEA

analysis not one single calculation, formula, or data point was challenged as erroneous by Hyundai.

The reason was that it was in fact accurate. Thus Hyundai has to nibble around the fringe of the FEA

analysis. Hyundai’s design expert, Tom Patterson (who did not perform an FEA), testified at trial

about Mundo’s FEA analysis and stated the same as he did in the first trial:

Q. You had no specific criticisms of any of Mundo’s calculations, is that right?A. We’re talking about the calculations based on this Finite Element Analysis?

Q. Yes.A. Of course, not. He created a finite model and he tested the finite model that hecreated. And I had no argument with the results of the test of the finite model hecreated.

Q. So, the Finite Element Analysis, you had no criticism of his calculations; is thatcorrect?A. I had no criticisms of his calculations of the model he created.

Tr. 1762.

Interestingly, Hyundai’s expert, Patterson is not even qualified to perform a FEA and did not

perform any computer analysis or any testing as to the strength of the parts of the Hyundai Excel.

Tr. 1730, 1756. The trial court considered the four motions filed regarding Mundo and all the

evidence and denied these motions. Hyundai has not brought forth any additional specific arguments,

errors or court rulings that would support a different ruling. The trial court did not abuse its

discretion when finding that Mundo’s opinions regarding the defective design of the Excel were

reliable. The jury heard all this testimony and took it into consideration when it rendered its verdict.

18

C. Hyundai is not entitled to judgment as a matter of law because there is noSupreme Court mandate for the Plaintiffs to circumvent.

Hyundai is laboring under the false assumption that somehow there is a mandate from this

Honorable Court that ordered the trial court to conduct the Plaintiffs/Appellees’ prior expert Andy

Webb to a Daubert hearing on his opinion that the Hyundai was experienced a delta V of 35 mph

at the time of impact. No such mandate exists nor does any such law of the case exists from

Applewhite I. Indeed, in Applewhite, this Court found no abuse of discretion in the trial court’s

admission of Webb’s testimony. Applewhite I, 53 So.3d at 755. However, this Court reversed and

remanded for a discovery violation.

According to Hyundai, “the Court concluded its opinion by stating that Hyundai’s

Daubert-based challenge of the reliability of Webb’s expert testimony could “be revisited on

remand.” First of all, the statement uses the word “could.” Second, the statement is mere dicta. It

has nothing to do with the basis for reversal. Therefore, it is not law of the case.

However, even if it did, the law of the case doctrine only applies to legal conclusions.

Moeller v. American Guarantee and Liability Ins. Co. 812 So. 2d 953, 960 (Miss. 2002). It does not

apply when the facts change. Id. Indeed, the Mississippi Supreme Court has on several occasions

allowed experts to change their opinions upon remand when the prior methodology had been found

to be unreliable. For example in Dedeaux Utility Co., Inc. v. City of Gulfport, 938 So. 2d 838 (2006)

(Dedeaux I), an eminent domain dispute suite arose between the City of Gulfport and Dedeaux

Utility Company Company. The City of Gulfport called as their only expert James M. Stokes, a

certified public accountant, who testified as to value of Dedeaux Utility’s condemned property using

the discounted cash flow method, which is a method of calculating the value of an income stream.

Those calculations were based upon rates from the Public Service Commission. On appeal, the

19

Supreme Court held that this methodology based on rates from the Public Service Commission were

unreliable and that the trial court was in error in not striking his testimony.

We find that the trial court erred when it denied Dedeaux's motion to strike Stokes'stestimony because his entire appraisal was based on data based on rates fixed by thePublic Service Commission. Rule 702 of the Mississippi Rules of Evidence providesthat expert testimony is admissible if: (1) the testimony will assist the trier of fact;(2) the witness is qualified as an expert; (3) the testimony is based upon sufficientfacts or data; (4) the testimony is the product of reliable principles and methods; and(5) the witness has applied the principles and methods reliably to the facts of thecase. Stokes's testimony was not based on sufficient facts and data and was thereforeunreliable. Therefore, the trial court erred in admitting that testimony.

Id. at 842-43.

The case was reversed and remanded for a new trial. A new trial was had and Stokes was

allowed to testify and utilize a new methodology and arrive at a different valuation for Dedeaux’s

property. Dedeaux argued the expert should not have been allowed to testify because of the law of

the case or that he should be subject to cross examination. Both were rejected by both the trial court

and by this Court in Dedeaux Utility Co., Inc. v. City of Gulfport, 63 So. 3d 514 (2011) (Dedeaux

II). In the second trial, Stokes changed his methodology to the depreciated replacement-cost

methodology, an entirely different methodology from the previous methodology which the Supreme

Court held to be unreliable. In rejecting the law of the case argument, the Court noted that they did

not hold that Stokes could not testify and that the facts had changed.

Preliminarily, this Court finds the “law of the case” doctrine inapplicable to the issueof whether Stokes should have been permitted to testify. That doctrine provides that“[w]hatever is once established as the controlling legal rule of decision, between thesame parties in the same case, continues to be the law of the case, so long as there isa similarity of facts. In Dedeaux I, this Court did not foreclose subsequent testimonyby Stokes, but simply held that Stokes's testimony at the first trial was “unreliable”as it was “not based on sufficient facts and data....” Dedeaux I, 938 So. 2d at 843. AsStokes's testimony on retrial included the use of the depreciated replacement-costmethodology, the “law of the case” doctrine has no application thereto.

Id. at 539.

20

“A new trial provides a clean slate. The issues must be retried, and the parties may thus

present evidence differently.” White, 932 So. 2d at 33. Similarly in City of Jackson v. Estate of

Stewart ex rel. Womack, 48 So. 3d 502 (2010), at the first trial in a tort claim wrongful death case,

the City of Jackson was sued when the plaintiff fell on a pavement and hit her head and allegedly

suffered a stroke which caused other maladies. At a bench trial, she was awarded $500,000.00 on

the tort claim but the Supreme Court reversed and remanded on damages and held that a stroke was

unforeseeable. Upon retrial, the plaintiff’s medical expert testified that the deceased instead suffered

a traumatic brain injury, which was foreseeable, and not a stroke. The City of Jackson on appeal to

the Supreme Court argued the law of the case doctrine, which this Court rejected.

The plaintiffs failed under their old logic (a fall caused a stroke which caused variousother maladies) because the stroke was not foreseeable. They have crafted a newlogic: a fall caused a traumatic brain injury which caused various other maladies. Ourprior decision certainly did not suggest that traumatic brain injuries are unforeseeableresults 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 anew theory about whether their negligence caused much of Mrs. Stewart's sicknessand suffering in her final years. We interpret this as a challenge to the overwhelmingweight of the evidence.

Stewart, 48 So. 3d at 505.

The Plaintiffs chose to withdraw as an expert Andy Webb and to designate Micky Gilbert

Indeed, Gilbert’s report was disclosed on May 29, 2012 and he was formally designated on June 5,

2012. R. 203. Shortly thereafter, Webb was withdrawn as an expert. R. 226. Hyundai can claim

no prejudice nor surprise. Had Hyundai wished to pursue this imagined law of the case or mandate

argument, it should have been brought to the attention of the trial court. Any such argument is now

waived. Frierson, 794 So. 2d at 223 (the trial court will not be held in error unless it has had an

opportunity to pass upon the question). The mandate notifies the trial court that it can proceed with

21

case upon remand and includes a copy of the court’s opinion. It was issued on March 3, 2011.

With respect to Gilbert, Hyundai brought a Daubert challenge but never argued any violation

of this Court’s mandate, nor the law of the case with respect to Webb. Assuming arguendo that the

law of the case applies, which is does not, any such argument has now been waived. However, it

should noted, that both Webb and Gilbert arrived at approximately the same delta V of 35 mph

despite the new trial giving the new expert “a clean slate.” There is no merit to Hyundai’s argument.

Hyundai even attempts to argue that they are now entitled as a matter of law to a judgment

in Applewhite I because Webb’s calculations in Applewhite I were unreliable. That is preposterous.

This Court never said that. Indeed, in Applewhite I, this Court held that the trial court did not err in

admitting the testimony of Webb. It did not find that his testimony was unreliable. The holding in

Applewhite I was reversed and remanded, not reversed and rendered. Hyundai should stick to the

present appeal. Not to the past. This Court did not hold that a Daubert hearing “must” be now held

for Webb. Any such language was dicta. In fact, this Court did not hold that the Plaintiffs’ must use

Webb as an expert. Indeed, the Plaintiffs chose to withdraw Webb and substitute Gilbert as an

expert, which they have every right to do, and Hyundai made no objection. No objection was made

on the new pretrial order and this was not raised as an assignment of error in their pretrial motions.

In the pretrial order, the proof conforms to the evidence. There is no merit to this assignment of

error.

II. The verdict was not infected by multiple prejudicial errors in the conduct of the trial.

A. The trial court did not err in excluding Hyundai’s evidence that the Excel’soccupants were not seat-belted.

Hyundai next complains that the lack of evidence of seatbelt usage by the Plaintiffs should

have been admitted. However, case law in Mississippi is clear that the non use of seatbelts is

22

inadmissable. Jones v. Panola County, 725 So. 2d 774 (Miss. 1998). This applies even in a

crashworthiness case. Estate of Hunter, supra, 729 So. 2d at 1269. In this particular crash, since

the vehicle separated, there was no real evidence that seatbelt usage would have done the Plaintiffs

any good as they would have been ejected anyway. Being coupled to a portion of a vehicle which

separates was never advanced nor proffered, nor was being coupled to a seat lying in the roadway

advanced. Therefore, any evidence of the use or non use of seatbelts would not be an issue for the

jury and would serve only to prejudice the Plaintiffs or to confuse the jury. Further, the exclusion

of evidence is left to the sound discretion of the trial court. Butler, 264 So. 2d at 816 (Miss. 1972).

In the case sub judice, there was no basis for allowing evidence, statement or argument about

seat belt non-usage. The car was either defectively or designed or it was not. The vehicle was

expected to be contacted by one belted or not belted in collisions. No expert has opined that the car

would not have broken into three pieces if the occupants had been belted. There is no probative

value in allowing seatbelt non-usage into evidence on the issue of whether the subject car was

crashworthy, and its introduction on the issue of the cause and severity of a Plaintiffs’ injuries or

to establish Plaintiffs’ negligence is flatly prohibited under Mississippi law. See Estate of Hunter,

supra, and Miss. Code Ann. §63-2-3. The only reason for allowing evidence of seatbelt usage in the

case sub judice is for its confusion or prejudicial effect which clearly violates Mississippi law, and

as such, the trial court properly excluded this evidence. The trial court did not abuse any discretion

in excluding the seatbelt issue. Indeed, the trial court carefully considered the law in Mississippi as

it pertains to seatbelt usage and made the proper decision.

Further, there is no basis that Stewart remained in the vehicle as stated in footnote 9, page

36 of brief of Hyundai. Indeed, the footnote is totally incorrect in that Dr. Burton never agreed in

a proffer in the trial sub judice that Stewart would have “minimized his risks of fatal injuries by

23

wearing a seatbelt.” The cite to R. 1554 in footnote 9 is a proffer made in Applewhite I and attached

as an exhibit to a motion in limine filed by Hyundai prior to trial. No such proffer was ever made

in the trial below during Dr. Burton’s cross-examination. His entire cross-examination can be found

at Tr. 1072-1100. There was never any proffer made of Dr. Burton pertaining to seatbelt usage in

the case sub judice. No error can be placed on the trial court for the exclusion of the seatbelt usage

from Dr. Burton’s alleged opinion concerning Stewart. Univ. of Miss. Med. Ctr. v. Foster, 107 So.

3d 149, 155 (Miss. 2013) (in the absence of a meaningful proffer at trial, we will not place the the

lower court in error for excluding evidence), quoting M.R.E. 103(a)(2). Indeed, Hyundai does not

challenge Dr. Burton’s testimony.

There was no claim at trial by Plaintiffs that Stewart was fully ejected. Instead, the entire

case was tried on the fact that Stewart was partially “ejected.” The Plaintiffs’ expert Dr. Burton

testified, based on the facts, that Stewart was partially ejected. In the opinion of this Honorable

Court, the Court noted that “Applewhite and Cooper landed on the pavement, and Stewart was found

partially inside the passenger compartment.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749, 752

(Miss. 2011).

Further, Hyundai made this very same seatbelt usage argument to this Court in Applewhite

I, therefore the argument was before this Honorable Court. Should this Court have wished to reverse

based upon the abuse of discretion of the trial court in excluding evidence, it would have done so

in Applewhite I, but chose not to. This argument of Hyundai has no merit.

B. Evidence of Hyundai’s photographs of other vehicles that split apart wereproperly excluded.

The trial court considered the argument on whether or not to allow evidence of other vehicles

that were torn apart in accidents and granted a motion in limine on the photographs based on their

24

prejudicial effects. However, the trial court allowed the Hyundai to introduce evidence that

Hyundai’s experts had seen other vehicles, not just Hyundais, that had been torn apart in accidents.

Plaintiffs objected to this evidence because it was known that there would be no foundation as to the

similarity between the subject two car accident at below highway speeds, the majority of the other

accidents offered by Hyundai were single high speed accidents with fixed objects, or unknown

circumstances, and the vehicles in the other accidents were not shown to be substantially similar to

the subject vehicle. Despite Plaintiffs’ objection, the trial court allowed Hyundai to bring this

testimony out in their case-in-chief. Tr. 1793. The trial court, in its discretion, simply did not allow

Hyundai to show pictures of other vehicles that had split apart. The trial court stated in the record

that the admission of pictures would be “more prejudicial than probative and confusing to the jury

to have these other makes and models displayed to the jury.” Id. Further, these pictures did not

provide any facts regarding how these other accidents occurred or why these vehicles split apart.

There was no offer of proof made that these crashes of these vehicles which split apart occurred at

highway speeds or below highway speeds. There was no proof that these accidents were comparable

crashes, which are required under Mississippi law. Irby v. Travis, 935 So. 2d 884, 894 (Miss.

2016)(evidence of prior accidents will only be admitted upon a showing of substantial similarity of

conditions). Further, the Plaintiffs did not offer proof that four other Hyundai Excel had split apart.

Tr. 1795-97.

Hyundai was attempted to demonstrate that vehicles tear in half all the time without giving

the details of the facts of any of those occurrences. The purpose was to mislead the jury as to the

similarity between those accidents and the subject accident. If Hyundai had information to show

substantial similarity (which they did not offer in the pre-trial motions), they should have made an

offer of proof, which they failed to do. Hyundai was not unfairly prejudiced because they did in fact

25

get before the jury evidence that other vehicles had torn apart in accidents. If anything, it was error

to allow this evidence in without a proper foundation.

C. By failing to object to the venire procedure prior to impaneling the jury,Hyundai has waived any objection to the venire. Nor was there any influenceon the jury panel by Bishop Cary Sparks

Hyundai did not object to the jury panel prior to its impaneling, nor did they object during

the jury selection process, and not during the trial itself which took two full weeks. Instead, Hyundai

waited to object long after the verdict. They sent no inquiries to the circuit clerk until after a verdict

was rendered against them. The circuit clerk was present during the entire jury selection process,

and every day at the start of trial. No inquires were made. The names and addresses of the registered

voters was provided to all parties more than two weeks in advance of trial and Hyundai engaged

numerous consultants prior to trial to sift through the panel list. When those who showed up for voir

dire were called out and identified by the circuit clerk in open court, Hyundai never objected or

inquired of the whereabouts of those who did not appear in person. Now after the verdict, Hyundai

seeks to attack the very process that they were aware of and participated in. Certainly, no such issue

would have been raised and no inquiries to the circuit clerks office been made had the verdict been

in favor of Hyundai. Having laid in wait, however, Hyundai has waived any objection to the manner

in which the jury was drawn, summoned, or impaneled. Miss. Code Ann. §13-5-87 which provides:

All the provisions of law in relation to the listing, drawing, summoning andimpaneling juries are directory merely, and a jury listed, drawn, summoned orimpaneled, though in an informal or irregular manner, shall be deemed a legal juryafter it shall have been impaneled and sworn, and it shall have the power to performall the duties devolving on the jury.

The case cited by Hyundai, Page v. Siemens Energy, 728 So. 2d 1075 (Miss. 1998) is not

analogous. In Page there was a cross section of persons who were eligible to serve (those over the

age of 65 and those who had served within the last 2 years) that were not summoned for jury duty

26

and the parties were not aware that eligible jurors were not summoned. There is no allegation (and

certainly no proof) from the Huyndai that an entire class of eligible persons were not called in the

case sub judice. Moreover, in Page the plaintiff, similar to Hyundai, claimed that they did not get

a fair cross section of jurors because the panel was skewed disproportionately to one district. Unlike

the case sub judice, the trial judge in the Page case, after the trial but during that same term, actually

ordered the clerk to empty the jury wheel and refill it because of the “disproportionate number of

jurors from West Jackson County were drawn from the jury wheel for the current term.” Id. at 1077.

In other words there was actual proof of a skewed panel or a panel of persons disproportionately

drawn from only one part of the county. Yet the Supreme Court stated:

The Pages believe that they were entitled to have a jury which included aproportionate number of jurors from the east side of Jackson County as opposed tothe west side of Jackson County. This Court has previously rejected such anargument.

Id. at 1082 (Internal cites omitted)

Simply put, no party is entitled to a particular cross section of jurors.

As to the issue of whether an objection regarding the impaneling of the jury has been waived,

in addition to the statute noted previously, numerous opinions have addressed this issue and come

to the same conclusion. In Hunter v. State, 684 So. 2d 625 (Miss. 1996), the Supreme Court quoting

Conner v. State noted, “This Court has often held that a party waives any and all claims regarding

the composition of his jury if he fails to raise an objection before the jury is sworn.” Id. at 631.

(Emphasis added).

The Supreme Court in Walker v. State, 91 So. 2d 548 (Miss. 1956) stated:

In like manner it must be said that the accused in this case was not denied anopportunity to object to the qualifications of the petit jurors who tried him. On thecontrary it must be said that he opened not his mouth against them, butvoluntarily accepted them to determine his guilt or innocence. After a jury has

27

been empaneled and sworn, it is deemed to be a legal jury. Section 1798, Codeof 1942.

Id. at 551-52. (Emphasis added).

Section 1798 of the Code of 1942 is now known as Miss. Code Ann. § 13-5-87, quoted above.

The Court of Appeals in Moore v. State, 816 So. 2d 1022 (Miss. Ct. App. 2002) held:

All the provisions of law in relation to the listing, drawing, summoning andimpaneling juries are directory merely, and a jury listed, drawn, summoned orimpaneled, though in an informal or irregular manner, shall be deemed a legal juryafter it shall have been impaneled and sworn, and it shall have the power to performall the duties devolving on the jury. Miss.Code Ann. § 13-5-87 (1972). See alsoAdams v. State, 537 So.2d 891, 894 (Miss.1989). The Mississippi Supreme Court hasinterpreted this provision to mean that substantial compliance with the statute willnot warrant the quashing of the venire. Griffin v. State, 494 So.2d 376, 379(Miss.1986). Additionally, the court has stated that a jury panel should not bequashed unless the defendant can show that the failure to comply with thestatute amounts to "actual fraud, prejudice, or such a flagrant violation of dutyas to amount to fraud." Pulliam v. State, 515 So.2d 945, 948 (Miss.1987). See alsoHarris v. State, 406 So.2d 823, 824 (Miss.1981). Id. at 1026. (Emphasis added).

There has been no allegation, and certainly no proof of fraud, prejudice or flagrant violation

of duty as to amount to fraud in Hyundai’s Motion. See also Williams v. City of Cleveland, 848 F.

Supp. 2d 646 (N.D. Miss. 2012).

Hyundai has waived any and all objections to the impaneling of this jury, and have failed to

allege or offer competent proof that would necessitate a new trial as a result thereof. There is no

merit to this argument.

Hyundai then makes the outrageous statements that the Plaintiffs’ counsels hired Bishop Cary

Sparks to influence the jury and that the trial court erred in failing to conduct full discovery on this

matter based upon newly discovered evidence. There is no truth to this allegation.

Hyundai’s claim of “newly discovered evidence” apparently deals with Bishop Sparks being

in the Courtroom during the trial of this case. Hyundai failed to provide the trial court with any

28

evidence to support these allegations of improper influence on the jury. During the hearing on

Hyundai’s post-trial motions, Hyundai provided alleged witness testimony from three attorneys who

contacted the defense attorneys about Sparks. The testimony adduced at the hearing on April 21

(less than one business day from when the supplemental motion was filed) did not reveal that any

outside influence was placed on the jury. The testimony produced was confusing, contradictory and

failed to state any credible information that there was any outside influence. This conversation

between Sparks and Mary Margaret Gay and her associate, Sara Budslick, took place at the Hinds

County courthouse on April 9, 2015, over six (6) months after the verdict was reached in this trial.

It was a brief conversation between Sparks, Mary Margaret Gay and Sara Budslick. Tr. 2396. These

ladies did not put any credit on what Sparks was saying. The associate even took these conversations

with Sparks as he was trying to impress two ladies. Tr. 2395. Sparks made general comments to

these ladies about preaching revivals in a city or county prior to trial. However, Mrs. Gay admitted

that Sparks did not say where he preached a revival prior to the trial of the subject case. Tr. 2383.

Also, Mrs. Gay admitted that Mr. Sparks did not say he contacted any juror in this case. Tr. 2383-

84.

According to Ms. Budslick, Sparks stated he would preach a revival circuit prior to a trial and

potential jurors would see him. Sparks also allegedly told her that it took a couple of days for jury

verdict because one of the jurors could not read or write. This statement is completely discredited

because the record shows that the jury was only out from noon to mid-afternoon on the same date

they retired when a verdict was reached and they never recessed. Additionally, the testimony that

jurors could not read and write is obviously erroneous as each juror filled out their own juror

information card and was questioned by the Court regarding the same.

Again, Ms. Budslick stated she was not taking Sparks seriously and did not ask him any

29

questions. Tr. 2394-95. Ms. Budslick did further state that Sparks did not indicate to her that he

talked to the jury before, during or after trial. He did not indicate to her that he had any influence

on the jury. Id.

The third individual, Kevin Gay, actually did not have any conversation with Sparks

concerning jury issues. Kevin Gay’s testimony at the hearing was hearsay based solely on what his

wife told him. Tr. 2352, 2361. Even Kevin Gay did not give “a whole bunch of credit” to what

Sparks was saying. Tr. 2351. Kevin Gay called the defense attorney, Collins Wohner, because he

wanted to know who Sparks was.

Hyundai’s witnesses never testified to any direct act that was committed to influence or

communicate with the jury or juror. Nothing said suggests any impropriety. The testimony relating

to the $10 million verdict as opposed to the Plaintiffs’ request for $21 million was discussed. A

request for damages was made during closing arguments, after which the jury instructions were read

and the jury immediately retired to deliberate. This conversation had to occur after the end of the

trial because the “verdict” is at the conclusion and no request for $21 million in damages was made

until the closing arguments. The closest, possible evidence addressed at the hearing on Hyundai’s

motion established that this comment, if made, was in relation to a conversation after the case. In

fact, the time reference given by Ms. Budslick of the preaching and a call from a friend, whose aunt

was a juror, was a “couple of weeks” back. The subject trial was in September 2014. Further, Ms.

Budslick clearly stated that Sparks did not indicate he spoke to any juror or influenced anyone.

At all times, the jury was managed by one, if not two, bailiffs. All cellphones were deposited

with the bailiff and checked. Deliberations were conducted in private, behind closed doors without

the entry of any persons and with the bailiffs sitting at the door. It is hardly likely that any

communication could have been made when the jury was deliberating.

30

Sparks testified under oath at the hearing. Sparks testified that he was not hired in any

capacity by Plaintiffs’ attorneys. Tr. 2405. As a matter of fact, he was one of the Plaintiffs’

attorneys’ cousin, and he had been invited to the trial to see “great lawyers”. Tr. 2405-06. Sparks was

not at the trial the day of jury selection and he was not asked his opinion on the jury. Tr. 2406.

Furthermore, Sparks has never preached in Clarksdale or Coahoma County. Tr. 2402. He never

heard of a juror that could not read or write. Tr. 2409.

There is no proof that Sparks did anything improper involving the case sub judice. During

voir dire, the attorneys for both sides fully questioned all prospective jurors as did the trial court.

The trial court inquired and admonished the jury each morning, before and after the noon break and

at the close of each day for the jurors to wait to talk until the end of trial to discuss the case, and the

trial court regularly inquired as to whether the jurors had spoken to anyone. Each and every time the

jury appropriately responded that they had followed the trial court’s instructions. No motion or

objection was pursued by Hyundai on any such issue.

The record is absolutely vacant and void of any proof that Sparks had been retained and/or

paid by any of Plaintiffs’ counsel. Tr. 2406. The record is further void of any possible

communication or contact by Sparks with the jury.

The testimony put on at the hearing below on this motion makes it extremely clear that

Sparks was not hired to perform any work in this matter. Sparks simply came to the trial to watch

his attorney cousin in a trial. There has been no evidence that Sparks came in to Coahoma County

or Clarksdale to preach revivals at any time before the trial. There has been no evidence that Sparks

had any contact with jury before, during or after trial. Simply put, there has been no evidence of any

actions by Sparks besides the fact that he came into an open courtroom to watch a trial.

Hyundai cites to Roach v. State, 116 So. 3d 126 (Miss. 2013) as to whether an investigation

31

is warranted. This Court held that it was generally reluctant to “reconvene and question jurors for

potential instances of bias, misconduct, or extraneous influences after a verdict has been reached,

and such inquiries should not be entertained where it was a mere fishing expedition”. Id. at 131.

This Court further held that “public policy requires a finality to litigation”. Id.

The court in Roach provided a procedure when allegations of jury misconduct or extraneous

information arose. An investigation is only warranted “if the trial judge finds that good cause exists

to believe that there was in fact an improper outside influence or extraneous prejudicial information”.

Id. at 132. Second step is to determine whether the communication was made and the nature of said

communication. Id. If a communication was made, the court must then determine if reasonably

possible that the communication altered the verdict. Id.

The court in Roach recognized that “[i]n any trial there is initially a presumption of jury

impartiality”. Id. at 133. The court stated that “[t]o warrant an investigation, the party contending

misconduct occurred must make an adequate showing to overcome the presumption in this state of

jury impartiality”. Id.

At the very minimum, it must be shown that there is sufficient evidence to concludethat good cause exists to believe that there was in fact an improper outside influenceor extraneous prejudicial information . . . . Although a minimal standard of a goodcause showing of specific instances of misconduct is acceptable, the preferableshowing should clearly substantiate that a specific, non- speculative impropriety hasoccurred.

Id. (quoting Gladney v. Clarksdale Beverage Co., Inc., 625 So. 2d 407 (Miss. 1993)).

The inquiry in the present matter, should stop at the first step. There has been no testimony

or evidence of any improper outside influence on the jury by Sparks. However, if the trial court

continues to the second step, it would conclude that there has been no communication made by

Sparks with the jury. Hyundai was simply on a fishing expedition that was solely based on Sparks

32

allegedly trying to impress two female attorneys over 6 months after the verdict was reached in this

case. Tr. 2418-19. This fishing expedition was stopped and finality was given to this litigation.

Hyundai presented no evidence or testimony that warranted further discovery into these matters or

was allowed to harass the former jurors with questions. R. 3569-70.

Based on the above law, Hyundai’s motion and evidence, or lack thereof, warranted no

further investigation or inquiry and was denied. Absolutely no evidence was provided that there was

any improper outside influence on the jury or their deliberations. The testimony of the three

witnesses that Hyundai relied on when filing their present motion renders the motion to be moot.

The lack of any evidence presented in Hyundai’s motion and at the hearing prohibited any further

investigation into possible outside influences on the jury. Hyundai’s fishing expedition was stopped

and was not allowed to further delay this matter for appeal. No further investigation was warranted.

This assignment of error is without merit.

D. The jury properly allocated no fault to Applewhite.

Hyundai complains that they are entitled to a new trial because the jury did not allocate any

fault upon the driver, Applewhite. Although the Plaintiffs would state that in a crashworthiness case,

no fault should be allocated to the driver of the vehicle, nevertheless, the jury was allowed to allocate

fault between the Plaintiff Applewhite and Hyundai. The jury found that Applewhite was 0% at fault

and Hyundai was 100% at fault for the enhanced injury of death. When an examination of the cause

of action, as well as the testimony of Plaintiffs’ experts are analyzed, it is readily apparent that

Hyundai’s argument has no merit.

Hyundai simply ignores the fact that this is a crashworthiness case. In a crashworthiness

case, the plaintiff may only recover for enhanced injuries which are caused by the vehicle not being

crashworthy. Hunter, 729 So. 2d at 1272, fn 3. Any injuries that have occurred regardless of the

33

crashworthiness of the vehicle are those injuries which would be charged to the driver of the vehicle

are not recoverable under the crashworthiness doctrine. Their injuries were not part of this case. It

is beyond argument that there cannot be a crashworthiness case unless there is an accident.

Applewhite may be responsible for causing the accident, but she is not responsible for the fact that

the Hyundai vehicle was not crashworthy and, therefore, caused enhanced injury of death.

In this particular case, the jury was instructed and heard testimony that the enhanced injury

was the deaths of the Plaintiffs. The jury heard testimony from the Plaintiffs’ expert and found in

the Plaintiffs’ favor that the subject vehicle was not crashworthy because it separated upon impact.

There was ample testimony for the jury to conclude that a crashworthy vehicle would not separate

under the facts of the subject accident. Applewhite did not cause the design defect in the subject

vehicle. Therefore, the jury logically and correctly concluded that, with respect to the enhanced

injuries of death, Applewhite was 0% at fault. The entire liability on the crashworthy vehicle

belonged solely to Hyundai, which the jury properly found. At all times, the Plaintiffs sought

recovery under the crashworthiness doctrine and law and sought only damages for enhanced injuries

and death. The jury’s verdict conforms to the damages which Plaintiffs were seeking. Under the

crashworthiness doctrine, the jury does not have to allocate any fault to Dorothy Applewhite.

Hyundai fails to point out the fault of Applewhite for the enhanced injuries caused by

noncrashworthiness. Further, the occurrence of an accident does not automatically make it the

driver’s fault. As an affirmative defense, Hyundai had the burden of proof to place fault on

Applewhite. Certainly it is within the fact finders’ providence to determine whether the enhanced

injuries were proximately caused by the driver or the failure of the car to perform as it should have.

Furthermore, Hyundai put on no evidence of any fault attributed to Cecilia Cooper or Anthony

Stewart.

34

Despite Hyundai’s protestations, there was simply no evidence that Applewhite contributed

to the lack of non-crashworthiness and, therefore the deaths of the Plaintiffs. The jury properly

concluded that allocation of fault was to be applied 100% to Hyundai. Hyundai made a similar

argument in Applewhite I in which the jury also apportioned no fault on Applewhite. In Applewhite

I, this Honorable Court chose not to address this issue which was before the Court. There is no merit

to Hyundai’s argument.

E. Hyundai received a fair trial.

Hyundai alleges that they did not receive a fair trial. However, the record indicates not only

did Hyundai receive a fair trial, they received more than a fair trial. They are not entitled to a perfect

trial. Ekornes-Duncan, 808 So. 2d at 959. For example, Hyundai engaged in activities which

violated the standard procedure followed in northern Mississippi by engaging in near spoliation of

evidence. Hyundai’s experts, Viola Acoff and Tom Patterson, on two occasions without notice nor

court order destroyed part of the subject Hyundai Excel, which was listed by Plaintiffs as an exhibit

on the pretrial order. R. 670. Plaintiffs’ attorneys received no notice of Hyundai’s plans to destroy

part of the subject vehicle nor was said destruction videotaped. Id. The subject Excel had been

maintained at a storage facility and under the control of Hyundai. R. 670-71. During two

inspections, Acoff and Patterson, removed numerous specimens from the vehicle, which contained

welds and the parent material. R.671. After cutting these metal pieces from the subject Excel, Acoff

engaged in further destructive testing of these metal pieces that involved these metal pieces being

mounted, polished, and grinded on a series of silicon carbon papers, and then polished in a series of

media that both the grinding and the polishing depend upon the type of material were being

investigating. Id. Further, the metal pieces were subjected to etching by nitric acid and alcohol. R.

671-72.

35

The deposition of Tom Patterson was taken on July 17, 2013. R. 672. In his deposition

Patterson testified that approximately six metal samples containing welds which measured

approximately two inches by three or four inches were taken on each of the two inspections. Simple

calculations revealed that approximately two square feet of material were removed during each visit

for a total of four square feet. Patterson admitted that the subject vehicle was no longer in the same

condition as it was before the inspections because metal containing the welds had been removed. Id.

The samples were selected from the welds that Plaintiffs’ expert Mundo testified to at Applewhite

I and at Mundo’s deposition. Further, the tests that were subsequently performed on the samples

required cutting through the welds, therefore, no further testing could be conducted by Plaintiffs’

expert Mundo on the weld samples, according to Patterson. Id.

Although, the actions of Hyundai amounted to borderline spoliation of evidence, Hyundai

was allowed to introduce to the jury this evidence of Acoff’s testing. Hyundai cannot now argue that

they did not receive a fair trial when in fact they received more than a fair trial.

CONCLUSION

In conclusion, Hyundai received a fair trial. It was tried by competent attorneys before an

experienced competent trial judge. It presented a classic “battle of the experts.” Very few objections

were made and the record reveals what is, in effect, a clean trial. Based upon the facts and the

Plaintiffs’ experts, the jury found for the Plaintiffs. Hyundai is not entitled to a judgment as a matter

of law. The remaining assignments of error in which Hyundai claims that they are entitled to a new

trial are likewise without merit. This was a trial conducted by very seasoned attorneys in front of

a very seasoned and competent trial judge. One side must win and one side must lose. Hyundai lost.

When the record and the facts are examined, there is no reversal error in this trial. “Litigants are

entitled to a fair trial, but not a perfect trial.” Ekornes-Duncan, 808 So. 2d at 959. Hyundai certainly

36

got a fair trial. This case must be affirmed.

RESPECTFULLY SUBMITTED, this the 13th day of December, 2016.

PLAINTIFFS/ APPELLEES

By: s/Ralph E. Chapman Ralph E. ChapmanDana J. SwanSara B. RussoCHAPMAN, LEWIS & SWAN PLLCP.O. Box 428Clarksdale, Mississippi 38614Telephone: (662) [email protected]

37

CERTIFICATE OF SERVICE

I, the undersigned attorney of record, do hereby certify that I have this the 13th day of

December, 2016 filed with the Clerk of the Court using the MEC system, which will deliver copies

to all counsel of record:

Michael J. BentleyBradley Arant Boult Cummings LLPPost Office Box 1789Jackson, MS [email protected]

Kevin C. Newsom Bradley Arant Boult Cummings LLP1819 5th Avenue NorthBirmingham, AL [email protected]

J. Collins Wohner, Jr.Watkins & Eager, PLLCP.O. Box 650Jackson, MS [email protected]

Robert W. MaxwellBernard, Cassisa, Elliott & Davis1615 Metairie Rd.Metairie, LA [email protected]

William D. Luckett, Jr.Luckett Tyner Law Firm, PAPost Office Drawer 1000Clarksdale, MS [email protected]

Attorneys for Defendants/ Appellants

and that I have caused a true and correct copy of the foregoing to be delivered to the following by

United States Mail, first-class postage prepaid:

Honorable Albert B. Smith, IIICircuit Court JudgeCoahoma County Circuit CourtPost Office Drawer 478Cleveland, Mississippi 38732

s/ Ralph E. Chapman Ralph E. ChapmanAn Attorney for Plaintiffs

38

in the supreme court of mississippi · 2017-05-15 · in the supreme court of mississippi ola mae...

Documents