                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CA-02357-SCT

RIVER REGION MEDICAL CORPORATION d/b/a
PARKVIEW REGIONAL MEDICAL CENTER

v.

THOMAS PATTERSON




DATE OF JUDGMENT:                          12/19/2005
TRIAL JUDGE:                               HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED:                 WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JASON EDWARD DARE
                                           L. CARL HAGWOOD
                                           DAVID MARK EATON
ATTORNEYS FOR APPELLEE:                    PAUL KELLY LOYACONO
                                           WILLIAM ALLEN HOOD
                                           WILLIAM A. PYLE
                                           JOHN DENVER FIKE
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               REVERSED AND RENDERED - 11/29/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This case arises from a wrongful-death action brought in the Circuit Court of Warren

County, Mississippi. The trial court granted partial summary judgment to River Region

Medical Corporation (“River Region”) as to the claims of the deceased’s estate and Plaintiffs

sought no other economic damages. The remaining claims at trial were the Plaintiffs’

individual claims of loss of society and companionship. The jury awarded compensation in
the amount of $1,710,000 to the deceased’s husband, Thomas Patterson, and her two

daughters, Hallie and Brandy Nettles, for these individual claims. The minor daughters

subsequently settled their claims and no longer are involved in this case. It is undisputed

that Thomas Patterson did not present any evidence regarding his claim for damages. We

find that the trial court erred in denying River Region’s Motion for Judgment

Notwithstanding the Verdict as to Patterson’s claim. Accordingly, we reverse and render

judgment in favor of River Region.

                                          FACTS

¶2.    Jennifer Nelson Nettles was admitted to River Region for the birth of her child,

Brandy Nicole Nettles, who was born by cesarean section on December 26, 2001. Jennifer

Nettles passed away later that day while still a patient at River Region. After her death, the

decedent’s daughters, Hallie and Brandy Nettles, filed a wrongful death action against River

Region. Thomas Patterson, decedent’s estranged husband, later joined the suit.

¶3.    On September 15, 2005, the trial court granted Defendant’s Motion for Partial

Summary Judgment as to the claims of the estate of Jennifer Nelson Nettles. The claims

remaining to be tried were for loss of society and companionship. At the close of Plaintiffs’

case in chief, Defendant moved for a directed verdict, arguing that the Plaintiffs had not met

their burden of proof regarding loss of society and companionship. At that time, counsel for

Plaintiffs stipulated that Plaintiffs were seeking no other damages. Defendant’s motion was

denied and the case proceeded to the jury.

¶4.    After a jury verdict for Plaintiffs, Defendant filed its “Motion for Judgment

Notwithstanding Verdict, Motion for a New Trial or alternatively, Motion for Remittitur.”


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Again, Defendant argued that Plaintiffs had not proven loss of society and companionship.

Again, Defendant’s motion was denied. Defendant appealed to this Court, alleging six errors

by the trial court. The following year, Defendant settled with Hallie and Brandy Nettles.

                                      DISCUSSION

¶5.    River Region raised the following issues on appeal:

       I.     Whether the Trial Court Committed Reversible Error by Allowing
              Eugene Michael Finan, M.D., to Express Opinions at Trial That
              Were Not Previously Disclosed.

       II.    Whether Terry Siverly Was Qualified to Testify as to Nursing
              Standards of Care.

       III.   Whether the Trial Court Committed Reversible Error by
              Admitting Photographs.

       IV.    Whether the Trial Court Committed Reversible Error by
              Excluding Evidence of Decedent’s Alleged Illegal Drug Use.

       V.     Whether the Trial Court Committed Reversible Error in
              Instructing the Jury That All Damages Must Be Equally Divided
              Between the Three Plaintiffs.

       VI.    Whether the Trial Court Erred in Denying Defendant’s Motion for
              Directed Verdict as to the Claims of Thomas Patterson.

¶6.    Because we hold that River Region was entitled to judgment notwithstanding the

verdict pursuant to Mississippi Rules of Civil Procedure 50(b) as to Thomas Patterson’s

claim, it is not necessary to address other assignments of error.

¶7.    In reviewing denials of motions for judgment notwithstanding the verdict, this Court

uses the same standard as for motions for directed verdict. Twin County Electric Power

Ass’n v. McKenzie, 823 So. 2d 464, 468 (Miss. 2002).




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       “Under this standard, this Court will consider the evidence in the light most
       favorable to the appellee, giving that party the benefit of all favorable
       inference that may be reasonably drawn from the evidence. If the facts so
       considered point so overwhelmingly in favor of the appellant that reasonable
       men could not have arrived at a contrary verdict, we are required to reverse
       and render. On the other hand if there is substantial evidence in support of the
       verdict, that is, evidence of such quality and weight that reasonable and fair
       minded jurors in the exercise of impartial judgment might have reached
       different conclusions, affirmance is required. The above standards of review,
       however, are predicated on the fact that the trial judge applied the correct law.”

Id. (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709, 720 (Miss. 2001)).

¶8.    River Region asserts that Patterson put on no evidence as to his individual claim. At

trial, Plaintiffs put on six witnesses, who all testified regarding the Defendant’s liability. No

witnesses testified to Plaintiffs’ claims for loss of society and companionship. Patterson

argues that, as a statutory wrongful-death beneficiary, he is not required to prove individual

damages. Patterson is correct in that his relationship to the decedent is all that is required for

him to recover a share of the damages which the decedent could have recovered “if death had

not ensued.” Such damages could include, among others, the decedent’s lost wages and pain

and suffering. However, no such claims were presented at trial. And because at trial the jury

considered only the individual claims of each Plaintiff, Patterson bore the burden of proving

his own claim of loss of society and companionship. This he did not do.

¶9.    The Wrongful Death Statute (the “Statute”) in Mississippi, codified at Mississippi

Code Annotated Section 11-7-13 (Rev. 2004), mandates that there can be only one suit for

the benefit of all parties and that the damages for the injury and death of a married woman

are equally distributed between her husband and children. In Long v. McKinney, 897 So.

2d 160 (Miss. 2004), this Court addressed the beleaguered state of the law in wrongful-death



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actions. In Long, the Court aptly stated that “[n]o area of the law has historically provided

more muddled, misquoted and misunderstood procedural rules, than civil claims for wrongful

death.” Id. at 162-163. The parties were wrongful death beneficiaries who fought over who

would control the litigation when more than one chose to appear and be represented by

counsel. Id. at 162. In the present case, three plaintiffs were represented by one attorney in

one action. The dispute between the parties is not procedural in nature but rather substantive,

regarding the burden of proof which belonged to each plaintiff.

¶10.     In Long, we stated “there are several kinds of damages which may be pursued, and

these damages are not due to the same claimants.” Id. at 169. (Emphasis added). “For

instance, the estate is entitled to recover funeral costs and final medical expenses. The

beneficiaries are entitled to recover for their respective claims of loss of society and

companionship. The wrongful-death beneficiaries are entitled to recover the present net cash

value of the decedent’s continued existence.” Id. (Emphasis added). Assuming Thomas

Patterson was a legitimate wrongful-death beneficiary, as we must do in giving him all

reasonable inferences, he would then be entitled to recover for himself any loss of society

and companionship he might prove, and to share equally in the damages which might have

been recovered by Ms. Nettles, “had death not ensued.” Miss. Code Ann. § 11-7-13 (Rev.

2004).

¶11.     After Ms. Nettles’s unfortunate demise, it is true that under the statute, her husband

and children would be entitled to damages should they prevail in their wrongful-death action.

It is also true, therefore, that certain damages would have to be shared equally among them.

However, here the jury awarded damages solely for loss of society and companionship.

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These damages are separate from and possibly in addition to any damages they would share

equally – i.e., the damages of the estate and those suffered by Ms. Nettles.

¶12.   In Long, the decedent’s daughter was the sole beneficiary of his will. Her brothers

were disinherited. Id. at 170. We noted that “a potential and incentive for Lori to vigorously

pursue the claims of the estate, and her individual claim for loss of society, is clearly present.

Each dollar recovered for such claims will inure entirely to the benefit of Lori, while other

dollars recovered must be divided among the wrongful death beneficiaries.” Id. (Emphasis

added). Here, by entering into the litigation and bringing an individual claim for loss of

society and companionship and nothing further, Patterson was then charged with proving

this claim. As River Region has correctly stated, “[u]nder Mississippi law, plaintiffs bear the

burden of going forward with sufficient evidence to prove their damages by a preponderance

of the evidence.” TXG Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991, 1016 (Miss.

1997). In a wrongful-death action where the decedent was electrocuted while renovating a

sewage lift station in Anguilla, Mississippi, his widow and his four children brought suit.

Entergy Miss., Inc. v. Hayes, 874 So. 2d 952, 953 (Miss. 2004). In that case, we noted “The

plaintiffs presented extensive testimonial evidence of the relationship each had with

[decedent] and their suffering as a result of his death in support of their damages claim for

loss of love, society, and companionship.” Id. at 954. Here, Patterson presented no evidence

regarding any damages sustained from loss of society and companionship. Claims of the

estate or other wrongful-death economic damages were not at issue. Therefore, River Region

was entitled to judgment notwithstanding the verdict as to Patterson’s claim.

                                       CONCLUSION

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¶13.   Plaintiff Thomas Patterson did not prove any damages for loss of society and

companionship. As the jury considered no other claims on his behalf, nor were any claims

remaining for the wrongful-death beneficiaries in their entirety, we find that River Region’s

Motion for Judgment Notwithstanding Verdict should have been granted.

¶14.   REVERSED AND RENDERED.

     WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, P.J.

       GRAVES, JUSTICE, DISSENTING:

¶15.   I disagree with the majority’s holding that River Region was entitled to judgment

notwithstanding the verdict (JNOV). Because I would affirm the jury verdict, I respectfully

dissent.

¶16.   River Region did not raise an issue on appeal regarding the denial of the motion for

JNOV, and “this Court has long held that issues not raised on appeal are procedurally barred

from consideration.” Glover v. Jackson State Univ., 755 So. 2d 395, 398 (Miss. 2000).

Therefore, the issue of whether River Region was entitled to JNOV is procedurally barred

and not properly before this Court.1

¶17.   The issue raised by River Region on appeal is whether the trial court erred in denying

the motion for directed verdict. While the standards of review for denial of directed verdict




       1
        Additionally, in arguing that it was entitled to JNOV, River Region asserted that
it was denied the opportunity to “disprove” that there was loss of society and
companionship. This presumes that these damages had indeed been proven.


                                             7
and denial of JNOV are the same, the motions are separate and distinct. Further, River

Region’s argument on appeal that the trial court erred in denying the motion for directed

verdict is without merit. River Region argued that a directed verdict was appropriate, in part,

because the plaintiffs had failed to introduce any evidence as to life expectancy as required

by Gatlin v. Methodist Medical Center, Inc., 772 So. 2d 1023 (Miss. 2000). Thereafter, the

trial court denied the motion for directed verdict, but allowed the plaintiffs to reopen their

case-in-chief pursuant to Gatlin to introduce evidence as to life expectancy. In Gatlin, this

Court found that the trial court should have allowed the plaintiff to reopen her case to present

evidence as to life expectancy. Thus, the trial court did not err.

¶18.   River Region later renewed the motion, arguing in part that the plaintiffs’ claim

“should be limited to the date of death and time of trial.” The trial court properly denied the

renewed motion, as Patterson had introduced evidence of life expectancy for all of the

parties.

¶19.   The majority also finds that damages for loss of society and companionship are not

to be equally distributed pursuant to Mississippi Code Annotated section 11-7-13. However,

the majority’s finding is contradicted by the statutory language. Mississippi Code Annotated

section 11-7-13 states, in relevant part:

       Except as otherwise provided in Section 11-1-69, in such action the party or
       parties suing shall recover such damages allowable by law as the jury may
       determine to be just, taking into consideration all the damages of every kind
       to the decedent and all damages of every kind to any and all parties interested
       in the suit.

Miss. Code Ann. §11-7-13 (Rev. 2004).




                                               8
¶20.   This Court consistently has found that this language in section 11-7-13 includes

damages for the loss of society and companionship. Specifically, this Court has said:

       This statutory language has been held to include (1) the present net cash value
       of the life expectancy of the deceased, (2) the loss of the companionship and
       society of the decedent, (3) the pain and suffering of the decedent between the
       time of injury and death, and (4) punitive damages. Jesco, Inc. v. Whitehead,
       451 So. 2d 706, 710 (Miss. 1984); Sheffield v. Sheffield, 405 So. 2d 1314, 1318
       (Miss. 1981); Dickey v. Parham, 331 So. 2d 917, 918-919 (Miss. 1976);
       Thornton v. Ins. Co. of North America, 287 So. 2d 262, 265 (Miss. 1973);
       Scott v. K-B Photo Service, Inc., 260 So. 2d 842, 844 (Miss. 1972); Boyd
       Constr. Co. v. Bilbro, 210 So. 2d 637, 643 (Miss. 1968).

McGowan v. Wright, 524 So. 2d 308, 311 (Miss. 1988).

¶21.   Section 11-7-13 further states, in relevant part:

       Any amount, but only such an amount, as may be recovered for property
       damage, funeral, medical or other related expenses shall be subject only to the
       payment of the debts or liabilities of the deceased for property damages,
       funeral, medical or other related expenses. All other damages recovered
       under the provisions of this section shall not be subject to the payment of the
       debts or liabilities of the deceased, except as hereinafter provided, and such
       damages shall be distributed as follows:
              Damages for the injury and death of a married man shall be equally
       distributed to his wife and children, and if he has no children all shall go to
       his wife; damages for the injury and death of a married woman shall be
       equally distributed to the husband and children, and if she has no children all
       shall go to the husband. . . .

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added).

¶22.   Clearly, section 11-7-13 includes damages for the loss of society and companionship.

Further, such damages are not for property damage, funeral, medical or other related

expenses. Therefore, such damages must fall into the category of “all other damages” which

“shall be equally distributed.” Moreover, this Court has upheld the equal distribution of such

damages. See Pannell v. Guess, 671 So. 2d 1310 (Miss. 1996).



                                              9
¶23.   Section 11-7-13 does not contain any language as used by the majority that

“beneficiaries are entitled to recover for their respective claims of loss of society and

companionship.” An equal distribution of such damages may seem unfair. However, if this

Court respects its recent trend, then it must strictly construe the statute. See Caves v.

Yarbrough, 2007 Miss. LEXIS 613, *14 (Miss. 2007). See also Gannett River States Publ.

Co. v. Entergy Miss., Inc., 940 So. 2d 221, 224-26 (Miss. 2006); Arceo v. Tolliver, 949 So.

2d 691, 694 (Miss. 2006); Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006);

Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 590-91 (Miss. 2006); and Univ. of

Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006). A strict construction of the

statute would lead one to conclude that there would be no need for Patterson to prove

individual damages for loss of society and companionship.

¶24.   Accordingly, I would find that the issue of whether the trial court properly denied the

motion for JNOV is procedurally barred from consideration. I would also find that the trial

court properly denied the motion for directed verdict. Because I would affirm the verdict of

the jury, I respectfully dissent.

       DIAZ, P.J., JOINS THIS OPINION.




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