                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-CA-01005-SCT

E. I. DUPONT DE NEMOURS AND COMPANY


v.

GLEN STRONG AND CONNIE STRONG


DATE OF JUDGMENT:                        01/17/2006
TRIAL JUDGE:                             HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:               JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 JOHN G. CORLEW
                                         DEBORAH DEROCHE KUCHLER
                                         ROBERT D. GHOLSON
ATTORNEYS FOR APPELLEES:                 ALBEN N. HOPKINS
                                         ALLEN M. STEWART
                                         JAMES D. PIEL
                                         STEPHANIE BROOKS LESMES
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
DISPOSITION:                             REVERSED AND REMANDED - 10/18/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      EASLEY, JUSTICE, FOR THE COURT:

¶1.   Glen Strong (Strong) and his wife, Connie, collectively “the Strongs,” were among

thirty-seven plaintiffs who filed suit in the Circuit Court of Jones County, Mississippi,

Second Judicial District, against E.I. DuPont de Nemours Corporation (DuPont) in December

2002, in the matter of Govan v. DuPont, et al., Cause No. 2002-376-CV12. The Strongs did
not have an individual complaint.1 At the same time, a larger group of approximately 2,200

plaintiffs filed a separate complaint against DuPont in the matter of Lizana v. DuPont, et al.,

Cause No. 2002-377-CV12, alleging similar injuries as in the Govan complaint. In fact, the

only major difference in the two complaints was that the plaintiffs’ names were different.

¶2.     Two Mississippi residents also were named as defendants in the complaints, namely

Waste Management of Mississippi and G.B. Boots Smith Corporation, a Laurel trucking

company used to fix venue in Jones County, Mississippi.2 DuPont immediately removed the

Govan and Lizana cases to federal court. DuPont alleged the fraudulent joinder of Waste

Management and Boots Smith. The federal court remanded the Govan and Lizana cases to

the trial court in February 2004.

¶3.     In July 2004, the trial court entered its initial case management order (CMO), which

set an initial trial date of March 30, 2005, for the first plaintiff’s case. The CMO also

established a procedure to narrow a smaller subset of plaintiffs from the Govan and Lizana

cases for discovery requirements and identification of the initial trial plaintiffs. The CMO

specified that the plaintiffs and the defendants had to select three preliminary trial plaintiffs

each, whose cases would be tried one at a time in six different trials. This was done to allow

discovery to proceed. However, the plaintiffs did not have to disclose which plaintiff would

be tried first.


        1
            The Strongs’ claims were not severed from the Govan case until January 2005.
        2
         Ingram Industries also was named as a defendant, but the Ingram defendants were
voluntarily dismissed by the Plaintiffs.

                                               2
¶4.    On February 15, 2005, the plaintiffs designated the Strongs as the plaintiffs to be tried

on March 30, 2005. On February 24, 2005, the plaintiffs voluntarily dismissed Waste

Management as a defendant. DuPont unsuccessfully removed the case to federal court on

the grounds of fraudulent joinder. Thereafter, Boots Smith filed for bankruptcy. The

plaintiffs sought to sever Boots Smith due to the bankruptcy. DuPont again removed the case

to federal court. The federal court found that the federal bankruptcy court had jurisdiction,

but remanded the case on April 12, 2005, to the trial court as matter of discretionary

abstention. The trial court rescheduled the Strongs’ trial for August 17, 2005.

¶5.    The jury awarded Strong a $14,000,000 verdict in compensatory damages, and

Strong’s wife was awarded $1,500,000 in loss-of-consortium damages. Therefore, the jury’s

verdict for the Strongs totaled $15,500,000. The trial court found sufficient evidence to

submit punitive damages to the jury. However, the jury was unable to agree upon punitive

damages, and the trial court granted a mistrial as to the punitive damages. The trial court

entered a judgment for the jury’s $15,500,000 verdict, plus interest accruing from the date

of the verdict. DuPont now appeals to this Court.

                                           FACTS

¶6.    According to the record, Strong suffered from a long list of chronic health conditions

unrelated to the multiple myeloma that he alleges was caused by DuPont. Strong had

coronary artery disease, mild congestive heart failure, arrhythmia, obstructive lung disease,

and was a smoker.




                                               3
¶7.    Strong was diagnosed with multiple myeloma in 1998. He received treatment at M.D.

Anderson Medical Center, receiving extensive chemotherapy and a bone marrow transplant.

Strong alleges that since the diagnosis in 1998 with multiple myeloma, he has not had a pain-

free day, and he has not had intimate relations with his wife. The multiple myeloma

reoccurred in 2000, and Strong was advised that he did not have long to live. Strong

received treatment at M.D. Anderson, again receiving extensive chemotherapy and a bone

marrow transplant. Since receiving the second transplant, Strong also suffered two heart

attacks, one in 2003 and the other in 2004, both unrelated to the multiple myeloma.

¶8.    Dr. Sergio Giralt, Strong’s doctor at M.D. Anderson, testified that Strong responded

well to treatment and had a relatively small chance of the multiple myeloma reoccurring. Dr.

Giralt could not testify as to what caused Strong’s multiple myeloma, stating in his

deposition testimony that multiple myeloma has no known cause. Dr. Giralt stated that he

would defer to an epidemiologist or toxicologist as to the cause. In his affidavit introduced

during the trial, he stated that he had never undertaken any research as to the causation of

multiple myeloma. He testified that there was no cure for multiple myeloma. However, Dr.

Giralt’s examination of Strong, weeks before trial, revealed that he was in complete

remission. Further, Strong’s doctor testified that Strong had a greater likelihood of dying

from one of his other health conditions unrelated to multiple myeloma than from multiple

myeloma.

¶9.    DuPont has operated a plant in Harrison County, Mississippi, in DeLisle on the St.

Louis Bay since 1979. DuPont’s Harrison County plant produces titanium dioxide, which

                                             4
is a bright pigment used in paints, plastics, paper, and other products. The Strongs live in

Bay St. Louis, Mississippi, approximately five miles from the DuPont plant.

                                         DISCUSSION

¶10.   On appeal, DuPont raises various assignments of error that it contends merit reversal

of the judgment as a result of trial court error.

       I.      Striking DuPont’s experts.

¶11.   This appeal follows a laborious and highly contentious discovery process during

which the trial court struck nine of DuPont’s witnesses, including the majority of its

designated experts. The trial court determined that “based upon the record, the history of

abuses in this case, and pursuant to Miss. R. Civ. P. 37(b)(2), 37(e), Rule 11 and the court’s

inherent powers to impose sanctions on those who abuse the Mississippi Rules of Civil

Procedure, the Court finds that DuPont has indeed abused the Mississippi Rules of Civil

Procedure.”

¶12.   In its order in cause number 2005-M-01583-SCT dated August 16, 2005, this Court

already ruled on DuPont’s emergency petition for interlocutory appeal and motion for stay

regarding the trial court’s ruling to strike its experts, stating:

       Petitioner seeks relief from the trial court’s order striking certain report and
       fact witnesses from participation in the trial scheduled for August 17, 2005.
       The Court finds that the trial court granted the motion to strike these
       witnesses as a sanction for petitioner’s prior abuse of the discovery process.
       The Court therefore finds that the emergency petition for interlocutory appeal
       and motion for stay should be denied.




                                                5
(Emphasis added). Under Mississippi Rule of Civil Procedure 37 and the inherent power of

the trial court to protect the integrity of its process, the trial court has the broad authority to

impose sanctions for abuse-of-discovery violations. While the striking of DuPont’s expert

witnesses is an extreme measure, we find that the trial court acted within its discretion to do

so. See Miss. Farm Bureau Mut. Ins. Co. v. Parker, 921 So. 2d 260, 265 (Miss. 2005).

¶13.   In Parker, the Court stated:

       Our trial judges are charged with this responsibility and are in a much better
       position to resolve all pre-trial issues, including discovery, and it is not, and
       should not, be part of our mandated appellate review, to resolve such issues.
       . . . Our trial judges are likewise in a much better position to decide which
       parties and/or lawyers need to be sanctioned for their behavior, and our trial
       judges should unhesitatingly exercise this inherent power and authority.

Here, we find that the trial court properly exercised its authority to impose sanctions for

abuse-of-discovery violations.

       II.     Admitting affidavit testimony.

¶14.   Over DuPont’s objections, the trial court admitted the affidavits of Strong’s treating

physicians, Dr. Sergio Giralt and Dr. Donna Weber, several days after the trial already had

began. DuPont contends that the introduction of the affidavits from Drs. Giralt and Weber

was improper and highly prejudicial to its defense of lack of causation. DuPont asserts these

affidavits altered Drs. Giralt’s and Weber’s prior deposition testimony, which was admitted

into evidence. These affidavits also were allowed into evidence and available for review by

the jury during its deliberations.




                                                6
¶15.   In their depositions, Drs. Giralt and Weber testified that there are no known causes

of multiple myeloma. Drs. Giralt and Weber specialized in the treatment of multiple

myeloma, devoting half of their practice to its treatment. In the affidavits, Drs. Giralt and

Weber altered their testimony to state that they were not experts in the causation of Strong’s

multiple myeloma, had no opinion as to the cause of multiple myeloma, and specialized only

in the treatment of multiple myeloma.

¶16.   The Strongs argued that the catch-all provision, Mississippi Rule of Evidence

804(b)(5), allows the admission of the affidavits into evidence. First, Mississippi Rule of

Evidence 804(b)(5) requires that the declarant be determined to be unavailable as discussed

above. Second, Mississippi Rule of Evidence 804(b)(5) further specifically requires:

       A statement not specifically covered by any of the foregoing exceptions but
       having equivalent circumstantial guarantees of trustworthiness, if the court
       determines that (A) the statement is offered as evidence of a material fact; (B)
       the statement is more probative on the point for which it is offered than any
       other evidence which the proponent can procure through reasonable efforts;
       and (C) the general purposes of these rules and the interests of justice will best
       be served by admission of the statement into evidence. However, a statement
       may not be admitted under this exception unless the proponent of it makes
       known to the adverse party sufficiently in advance of the trial or hearing to
       provide the adverse party with a fair opportunity to prepare to meet it, his
       intention to offer the statement and the particulars of it, including the name
       and address of the declarant.

¶17.   The affidavits from Drs. Giralt and Weber, which altered their deposition testimony,

clearly were not furnished to DuPont sufficiently in advance of the trial to provide DuPont

with a fair opportunity to prepare to meet the affidavits. Nor did they afford DuPont notice

of their intention to offer the statement and the particulars of the affidavits. See M.R.E.


                                               7
804(b)(5). We agree with DuPont’s assertion that the introduction of the affidavits from Drs.

Giralt and Weber was improper and highly prejudicial to its defense of lack of causation.

The affidavits were used by the Strongs to alter the deposition testimony the doctors

provided. The assertion that the affidavits were not introduced for that purpose is simply

incorrect.

¶18.    These affidavits were never furnished to DuPont as required in Mississippi Rule of

Evidence 804(b)(5). The rules of evidence are clear that the use of affidavits in this context

is impermissible. The Strongs attempted, several days into trial, to use affidavits to tailor the

doctors’ deposition testimony, thereby adversely affecting a substantial right of DuPont to

have sufficient advance notice of the information contained in the affidavits before trial. See

Fitch v. Valentine, 959 So. 2d 1012 (Miss. 2007). Accordingly, we find that the trial court

erred in admitting the affidavits from Drs. Giralt and Weber.

       III.   Plaintiffs’ experts and witnesses.

       A.     James Tarr.

¶19.   James N. Tarr, Plaintiffs’ air modeling expert, was allowed to testify despite numerous

contemporaneous objections by DuPont. Tarr testified that in general, corporations act to

intimidate and deceive regulatory agencies. DuPont objected that the testimony did not apply

specifically to DuPont, and was improper and should be struck. DuPont also sought a

mistrial based on the series of contemporaneous objections. Tarr stated:

       [T]he people who are what I call in the trenches of the regulatory agencies tend
       to be young, inexperienced, and sometimes they can be intimidated by the


                                               8
       power that they perceive that a major corporation like DuPont might bring to
       bear if they didn’t give DuPont what they want.

(Emphasis added).

¶20.   Tarr’s testimony was not based on DuPont’s dealings with any regulatory agency. As

DuPont stated in its motion for a mistrial, Tarr speculated about the interaction between a

hypothetical company and a hypothetical agency. Tarr’s testimony was not specific as to

Mississippi, as to DuPont’s plant in Mississippi, or as to DuPont.

¶21.   The comments to Mississippi Rule of Evidence 702, which applies to testimony by

experts, state, “[t]he use of the hypothetical question has been justly criticized.” Here, Tarr’s

testimony was as to hypothetical regulatory violations by DuPont or DuPont’s employees.

It was improper to allow testimony lumping DuPont, based on its size, into a hypothetical

with other large companies that may have a history of intimidating and deceiving regulatory

agencies. From Tarr’s line of testimony, the jury easily could have been misled into

believing that DuPont was guilty of covering up alleged regulatory violations. Under a Rule

403 balancing test, Tarr’s testimony was more prejudicial to DuPont than probative. See

M.R.E. 403. There exists a real danger that the testimony would unfairly prejudice DuPont

and mislead the jury with the accusations of hypothetical regulatory violations by DuPont.

¶22.   On remand, the Strongs shall refrain from questioning Tarr as to his speculation about

the interaction between a hypothetical company and a hypothetical governmental agency.

This line of questioning shall be limited to Tarr’s knowledge, if any, of intimidating actions

by DuPont or DuPont’s employees against a specific regulatory agency.


                                               9
       B.     Victor Hawkins.

       1.     Hawkins’s Alleged Prior Injury.

¶23.   Victor Hawkins, a former maintenance employee of DuPont’s DeLisle plant, testified

that he had worked for DuPont for eighteen years, until November 25, 1997. Hawkins retired

on long-term medical disability. Hawkins testified concerning his personal injury suffered

in a maintenance-related accident. DuPont objected to Hawkins’s testimony regarding his

injuries at DuPont’s DeLisle plant. Over DuPont’s objections as to relevance, Hawkins was

allowed to testify that at some undisclosed date, he was injured when a tank fell and caused

the side of the tank to explode.

¶24.   Hawkins testified that he was burned on his arm and from his neck to his belt area by

the hydrochloric acid that sprayed out of the tank. Hawkins said he was transported to the

hospital and treated, being wrapped for burns. DuPont again logged its continuing objection

to relevancy. Hawkins tried to testify as to what some undisclosed member of the plant’s

safety personnel told him at the hospital. DuPont objected to the testimony as hearsay.

Hawkins was allowed to testify that he was required to return to work, despite DuPont’s

objection as to relevance. Hawkins testified that he returned to the plant to prevent his

absence from being counted as a lost workday.

¶25.   DuPont argues that Hawkins, a disgruntled former employee, had no legitimate

purpose in testifying about his alleged injury at DuPont’s DeLisle plant. DuPont contends

that Hawkins’s alleged injury was unrelated to claims asserted by the Strongs at trial, and that

this testimony unfairly prejudiced the jury against it. “This Court has consistently ruled that

                                              10
‘the relevancy and admissibility of evidence are largely within the discretion of the trial court

and reversal may be had only where that discretion has been abused.’" Buel v. Sims, 798 So.

2d 425, 427 (Miss. 2001) (quoting Martindale v. Wilbanks, 744 So. 2d 252, 253 (Miss.

1999)). “Unless the trial judge's discretion is so abused as to be prejudicial to a party, this

Court will not reverse his or her ruling.” Buel, 798 So. 2d at 427.

¶26.   Allowing this irrelevant line of testimony over DuPont’s repeated contemporaneous

objections was error. See M.R.E. 402 (“All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, the Constitution of the State of

Mississippi, or by these rules.     Evidence which is not relevant is not admissible.”).

(Emphasis added).

¶27.   Therefore as such, we find that the trial court abused its discretion and erred in

allowing this line of testimony concerning Hawkins’s personal, on-the-job injury while he

was an employee at the DuPont DeLisle plant.

       2.     Hawkins’s Personal Observations of Alleged Safety Violations.

¶28.   Hawkins further testified that he was aware during his time at DuPont that in its early

days Dupont had released TICL and chlorine fumes into the air.3 He testified that DuPont

undermined plant safety and was deceitful both to DuPont’s headquarters and to the

Mississippi Department of Environmental Quality (MDEQ) about safety matters by

preparing for their inspections.     While DuPont on appeal finds this testimony to be


       3
         TICL is also known as titanium tetrachloride, which contains chlorine, ethinor, HCl,
and titanium).

                                               11
objectionable, DuPont objected only to the relevancy of Hawkins’s knowledge of prior

warning of a regulatory agency’s inspection and visit from the DuPont home office.

Thereafter, DuPont objected only to Hawkins’s testifying about hearsay concerning what

other people told him. Hawkins corrected these answers and testified to his account of events.

¶29.   All of Hawkins’s testimony pertained to his personal knowledge. He testified about

the cleaning procedures implemented prior to a visit from the DuPont home office. In

addition, he testified to the procedures that he was assigned to perform prior to a regulatory

visit from MDEQ. Hawkins corrected the objectionable hearsay testimony by testifying only

concerning his personal knowledge and observations related to DuPont’s safety procedures

at the DeLisle plant. DuPont never objected to or cross-examined Hawkins as to a timeline

for the alleged safety violations with regard to visits from DuPont’s headquarters and/or

MDEQ. Accordingly, this assignment of error is without merit.

       IV.    Jury instruction D-10.

¶30.   DuPont requested the following jury instruction, D-10, which stated in pertinent part:

       The court instructs the jury that in a toxic tort case such as this, the plaintiffs
       must prove by a preponderance of the credible evidence that the plaintiff was
       (1) exposed to a dioxin, dioxin-like compound and/or heavy metal emitted by
       DuPont and (2) was exposed to such emission with sufficient frequency and
       regularity, and (3) was exposed in sufficient proximity to such emissions so
       that (4) it is more probable than not that exposure to DuPont’s emissions
       caused Glen Strong’s multiple myeloma.

¶31.   DuPont argues that this Court in Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757

(Miss. 2005), adopted the “frequency, regularity, proximity" standard in toxic tort cases.




                                               12
DuPont is correct that this Court adopted this standard; however, the Court stated that it was

adopted only for asbestos litigation.

¶32.   In Gorman-Rupp Co., 908 So. 2d at 754-57, this Court adopted the “frequency,

regularity, proximity" standard as the correct test to be applied in asbestos litigation. The

Court held:

              Gorman asks this Court to adopt the "frequency, regularity, proximity"
       standard in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.
       1986), in the context of summary judgment for asbestos cases. In Lohrmann,
       the United States Court of Appeals for the Fourth Circuit affirmed the directed
       verdict entered by the United States District Court of Maryland at the close of
       the appellant's case in favor of Raymark, Pittsburgh Corning, and Celotex. Id.
       at 1161. The court found there was "as a matter of law insufficient evidence
       to show the necessary element of causation between the use of their products
       and Lohrmann's claim of asbestos." Id. at 1162. The court reasoned:

              As asbestos litigation has developed over the past decade, most
              plaintiffs sue every known manufacturer of asbestos products,
              and during the course of discovery some of the defendants are
              dismissed on motions for summary judgment because there has
              been no evidence of any contact with any of such defendants'
              asbestos-containing products. Other defendants may be required
              to go to trial but succeed at the directed verdict stage. Some
              defendants settle prior to trial, and these are usually the
              defendants whose products have been most frequently identified
              by the plaintiff and his witnesses as having been used by the
              plaintiff or by others in his presence or working near him.

       Lohrmann, 782 F. 2d at 1162.

               In Lohrmann, the district court found that "the plaintiff had not proved
       a reasonable probability of causation between the plaintiff's disease and the
       products manufactured by Raymark, Celotex, and Pittsburgh Corning." The
       court concluded that the district court was correct in its ruling and the "use of
       the 'frequency, regularity and proximity test' was appropriate in determining
       whether the inferences raised by the testimony were within the range of
       reasonable probability so as to connect a defendant's product to the plaintiff's

                                              13
       disease process." Id. at 1164. The court stated that the "frequency, regularity
       and proximity test" used by the district court in the context of asbestos cases
       was an application of the principle stated in Lovelace v. Sherwin-Williams
       Co., 681 F. 2d 230 (4th Cir. 1982). In Lovelace, the court discussed the
       quantum of circumstantial evidence necessary to support a finding of a causal
       connection and that the permissible inferences must be within the range of
       reasonable probability. Id. at 241. See Lohrmann, 782 F. 2d at 1163.

...
              We find that the "frequency, regularity, and proximity" test discussed
       herein is the correct test to be applied in asbestos litigation and is hereby
       adopted by this Court. Based on the record, Hall falls short of meeting this
       test. Hall failed to submit any evidence that demonstrated that he had any
       exposure to an asbestos-containing product attributable to Gorman.

Gorman-Rupp Co., 908 So. 2d at 754-57 (emphasis added).

¶33.   The Strongs argue that the “frequency, regularity, and proximity” standard is

inapplicable in the context of environmental contamination litigation. The Strongs contend

that the term “proximity” would easily confuse a jury into believing that the Strongs needed

to be closer to the plant despite expert evidence of exposure. While we find that the trial

court properly denied DuPont’s jury instruction D-10, we address this assignment of error

to clarify that in Gorman-Rupp Co., this Court did not extend this standard beyond asbestos

litigation. Therefore, we find that the trial court did not abuse its discretion in denying the

proposed jury instruction, D-10.

                                       CONCLUSION

¶34.   Based on the cumulative error in the record before us, we reverse the judgment of the

Circuit Court of Jones County, Mississippi, Second Judicial District, and remand this case

to the circuit court for a new trial consistent with this opinion.


                                              14
¶35.   REVERSED AND REMANDED.

     SMITH, C.J., WALLER, P.J., AND CARLSON, J., CONCUR. LAMAR, J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, J., CONCURS IN PART AND IN THE RESULT WITH
SEPARATE WRITTEN OPINION. DIAZ, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY GRAVES, J.; JOINED IN PART BY RANDOLPH
AND LAMAR, JJ. DICKINSON, J., NOT PARTICIPATING.


       RANDOLPH, JUSTICE, CONCURRING IN PART AND IN THE RESULT:

¶36.   I concur with the Majority Opinion as to parts I., II., III.(B.), and IV., and the result.



       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶37.   One would never know from reading the majority the basis of Strong’s claims against

DuPont: that for years DuPont knowingly deposited tons of toxic material into the waters of

Bay St. Louis; that according to the United States Environmental Protection Agency (EPA),

the DeLisle plant is the second largest emitter of potentially-carcinogenic dioxins in the

country; that DuPont was aware of the risks associated with human exposure to these toxins

since at least 1983; and that Glen Strong incurred roughly $675,000 in medical bills for

treating his cancer which developed after living his entire life in close proximity to the plant

and eating contaminated seafood from the bay. In light of these facts, and the thousands of

pages of documentation supporting his claims, the “errors” found by the majority can hardly

be deemed reversible.

¶38.   First, the majority finds that submission of the one-and-a-half page affidavits from

Strong’s treating physicians “altered their deposition testimony” and was “highly prejudicial”

                                              15
to DuPont. I fail to see how these affidavits altered the deposition testimony in any way, and

if anything, the affidavits were helpful to Dupont’s defense. The doctors testified in their

depositions that they had no opinion “as to whether or not dioxin exposure can cause multiple

myeloma” and that they would defer to other scientists “who have made it their research

interest to look into this in ways which are scientifically valid with respect to causation

issues.” Likewise, the affidavits stated that the physicians “[did] not know the cause of Mr.

Strong’s multiple myeloma, and [they] have never attempted to determine the cause or form

any opinion as to the cause of his disease. [Their] sole purpose is to treat Mr. Strong’s

multiple myeloma, not to reach opinions about its cause.” The affidavits were no different

from the deposition testimony already before the jury, and the doctors’ statements that they

did not know the cause of Strong’s cancer could only help DuPont’s defense.4 By no stretch

of the imagination can these affidavits be considered “highly prejudicial to [DuPont’s]

defense of lack of causation.” Accordingly, the trial judge acted within his discretion in

submitting the affidavit, and it cannot be said that this constituted reversible error, cumulative

or otherwise.

¶39.   Second, Victor Hawkins’s brief testimony regarding his workplace injury was

factually relevant to his personal knowledge of DuPont’s safety violations. As a long-term

employee of DuPont, Hawkins had witnessed numerous system “blow outs” and other


       4
       Indeed, in opening arguments, DuPont’s attorney argued that the doctors’ testimony
would support their theory of the case: “If anybody would know whether Mr. Strong’s
multiple myeloma was caused by dioxin exposure, these doctors from M.D. Anderson would
know. And they will not say that multiple myeloma was caused by dioxins.”

                                               16
malfunctions that resulted in the release of toxic gases and poisonous fumes. That he was

injured on one of these occasions was probative of the fact that he personally witnessed these

malfunctions, and this outweighed any prejudicial effect the testimony might have had. To

say that Hawkins “had no legitimate purpose in testifying as to his alleged injury,”

completely disregards the context of this testimony.5 Furthermore, even if the trial judge

abused his discretion in allowing this testimony, only two pages of Hawkins’s forty-six page

testimony relate to his injury. Therefore, the prejudicial effect of this testimony was minimal

at best.

¶40.   Finally, the plurality’s assertion that James Tarr “testified that in general, corporations

act to intimidate and deceive regulatory agencies,” is a complete mischaracterization. One

of DuPont’s main defenses was that their “operations are legal and highly regulated,” and

that “everything has been done in accordance with the regulations.” Tarr was asked how

DuPont could get away with the egregious underreporting that his research uncovered. In

response, Tarr testified that regulatory agency workers are often “overworked,” “underpaid,”

“inexperienced,” and “can be intimidated by the power they perceive,” which “makes it very

difficult for aggressive enforcement action to be undertaken successfully.”

¶41.   Yet, the plurality finds that from this one sentence in James Tarr’s testimony “the jury

could easily have been misled into believing that DuPont was guilty of covering up alleged

regulatory violations.” However, the jury could not have been misled because they had


       5
        Oddly, the majority characterizes Hawkins as a “disgruntled former employee,” but
in the very next section finds that his testimony on safety violations perfectly admissible.

                                               17
already been presented with a great deal of evidence that DuPont had been underreporting

its emissions for years. In just one example, Tarr used the same model approved by the EPA

to determine that the amount of dioxins being emitted from the DuPont plant in 1992 was

89.1 grams. Linda Bernard, a DuPont environmental consultant, reported to the regulatory

agency that the amount of toxins for that year was only 0.5 grams. According to Tarr, these

actions reflected “a very egregious irresponsible history of reporting to regulatory agencies,

state and federal.” From all the evidence, the jury could easily have inferred repeated

regulatory violations by DuPont. Tarr’s testimony was based on his expertise and his own

scientific testing, not “accusations of hypothetical regulatory violations by DuPont.”

(emphasis in majority). When considered alongside the voluminous evidence indicating

regulatory violations, any error in admitting portions of Tarr’s testimony could not have been

so prejudicial as to “adversely affect[] a substantial right” of DuPont. Haggerty v. Foster,

838 So. 2d 948, 960 (Miss. 2002) (quoting Floyd v. City of Crystal Springs, 749 So. 2d 110,

113 (Miss. 1999)).

                                          Conclusion

¶42.   Today’s case is yet another example of this Court’s willingness to overturn a jury

verdict when individuals have been awarded large damages against corporate defendants.

In the last two years, this Court has been asked to consider at least eight cases involving large

damage awards in favor of individual plaintiffs, and seven of these cases have been reversed.

Mariner Health Care, Inc. v. Estate of Edwards, 2007 Miss. LEXIS 520 (Miss. Sept. 13,

2007) (reversing $6.5 million jury award against nursing home); Horace Mann Life Ins. Co.

                                               18
v. Nunaley, 960 So. 2d 455 (Miss. 2007) (reversing $1.9 million jury award and rendering

judgment in favor of life insurance company); Baker, Donelson, Bearman & Caldwell, P.C.

v. Muirhead, 920 So. 2d 440 (Miss. 2006) (reversing $1.6 million jury award for legal

malpractice and rendering judgment in favor of defendant law firm); Hartford Underwriters

Ins. Co. v. Williams, 936 So. 2d 888 (Miss. 2006) (reversing $1.5 million jury award against

insurance company); Irby v. Travis, 935 So. 2d 884 (Miss. 2006) (reversing $3.75 million

jury award in wrongful death case); GMC v. Myles, 905 So. 2d 535 (Miss. 2005) (reversing

$5.4 million award in wrongful death case); 3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005)

(reversing $25 million jury award and rendering judgment in favor of manufacturer).

Compare Canadian Nat'l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084 (Miss. 2007) (affirming

$1.5 million jury award against employer). See also Jimmie E. Gates, Justices Void $36.4M

Award in Insurance Suit, Clarion Ledger, Oct. 2, 2007, at A1. Yet, despite the substantial

evidence in this case supporting a jury verdict in favor of the plaintiffs, the majority finds

enough “cumulative error” to warrant a reversal. At some point, we must defer to the finders

of fact and stop substituting this Court’s judgment for that of the jury.

¶43.   For the foregoing reasons, I would affirm the judgment of the trial court.

     GRAVES, J., JOINS THIS OPINION. RANDOLPH AND LAMAR, JJ., JOIN
THIS OPINION IN PART.




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