        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-01335-COA

DAVID MCLAUGHLIN                                                         APPELLANT

v.

NORTH DREW FREIGHT, INC.                                                   APPELLEE

DATE OF JUDGMENT:                         02/02/2016
TRIAL JUDGE:                              HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   REBECCA HILLIARD HUTCHINS
ATTORNEY FOR APPELLEE:                    JAMIE D. TRAVIS
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED: 06/12/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., FAIR AND WESTBROOKS, JJ.

       FAIR, J., FOR THE COURT:

¶1.    David McLaughlin was making a left turn when he was struck by an 18-wheeler

attempting to pass him from behind. McLaughlin claimed that he suffered damages from the

accident in the amount of $591,000, including medical expenses, lost wages, and pain and

suffering. After trial, the jury found McLaughlin comparatively negligent and returned a

verdict of $1,400, solely for his medical expenses incurred on the day of the accident.

McLaughlin appealed, raising issues about his liability and the amount of damages awarded.

Finding no error, we affirm the trial court’s judgment.

                                         FACTS

¶2.    In September 2010, McLaughlin was driving Darrel Romero home. Leroy
Washington,1 the driver of an 18-wheel North Drew Freight truck, attempted to pass

McLaughlin on a two-lane highway in rural northwest Mississippi. When questioned by

police, Washington stated that McLaughlin slowed and sped back up several times before

abruptly turning left in front of him, failing to give a left turn signal. The 18-wheeler struck

the side of McLaughlin’s car and pushed the car approximately 150 feet into a shallow ditch

on the west side of the highway.

¶3.    After the accident, both law enforcement and emergency medical technicians (EMT)

arrived at the scene. State Trooper Jason Sheffield saw beer in the car and smelled alcohol

on McLaughlin’s breath. He asked McLaughlin whether he had been drinking. McLaughlin

said no. Trooper Sheffield then performed three separate roadside breathalyzer tests which

showed that McLaughlin was below .02 each time. He also performed a field sobriety test.2

¶4.    EMT Charles Carouthers also claimed he smelled alcohol and observed beer in

McLaughlin’s car. When he asked McLaughlin whether he had been drinking, McLaughlin

said he “took a sip” of a friend’s beer before driving. Carouthers also asked McLaughlin if

he would like to ride in the ambulance to the hospital. McLaughlin initially declined but later

changed his mind and agreed to be transported to the emergency room.

¶5.    At the time of the accident, McLaughlin worked as a pipe-welding inspector on a

contract basis for a commercial construction company. He was no longer employed at the

       1
           Before trial, Washington died of heart failure unrelated to the accident.
       2
         Defense counsel did not question Trooper Sheffield further on the results of the field
sobriety test, but, based on the record, we infer that McLaughlin passed.

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time of trial. McLaughlin testified that he had been expecting to sign a new contract for a

job in South Carolina starting the next week. He offered evidence that he earned $43,816

in 2009 and $42,816 in 2010. McLaughlin claimed damages for lost wages in the amount

of $60,000, including lost fringe benefits, medical insurance, and a payment of $70 a day.

¶6.    After the accident, McLaughlin was treated by several physicians. McLaughlin

provided deposition testimony from one in particular – Dr. Dinesh Goel, a family practitioner

and general surgeon. Dr. Goel testified that McLaughlin suffered injury to the neck, back,

and shoulder as a result of the accident and would possibly require treatment for the rest of

his life. He also testified that McLaughlin suffered a permanent 5% reduction in physical

capacity as a result of the injuries. McLaughlin offered into evidence all of his medical bills,

totaling $23,306.20.

¶7.    Ultimately, the jury found that each party was 50% negligent, and it found

McLaughlin had suffered $1,400 in damages (the medical expenses incurred on the day of

the accident) and rendered a verdict in his favor in that amount. McLaughlin moved for a

judgment notwithstanding the verdict (JNOV), which the court denied. McLaughlin now

appeals asserting that the jury’s award was against the overwhelming weight of the evidence

and that the jury instructions were unclear.

                                STANDARD OF REVIEW

¶8.    A circuit court’s refusal to grant a new trial is reviewed for abuse of discretion. Bobby

Kitchens Inc. v. Miss. Ins. Guar. Ass’n, 560 So. 2d 129, 132 (Miss. 1989). In determining


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whether a verdict is against the overwhelming weight of the evidence, this Court must view

all evidence in the light most consistent with the jury verdict. Motorola Commc’ns & Elecs.

Inc. v. Wilkerson, 555 So. 2d 713, 723 (Miss. 1989).

                                       DISCUSSION

       1.     Liability—Negligence Per Se

¶9.    McLaughlin argues that the circuit court abused its discretion by refusing a

peremptory instruction in his favor, asserting negligence per se. Negligence per se renders

a defendant liable without proof of reasonable care when the plaintiff proves the defendant

violated an applicable statute. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d

790, 796 (Miss. 1995).

¶10.   McLaughlin contends that Washington violated Mississippi Code Annotated section

63-3-611(2)(c) (Rev. 2013), which states that “no vehicle shall, in overtaking and passing

another vehicle or at any other time, be driven on the left side of the roadway under the

following conditions: . . . (c) [w]hen approaching within [100] feet of or traversing any

marked or readily distinguishable intersection or railroad grade crossing.” An intersection

is defined as “the conjunction of two highways, and is the entire width between property lines

of every way or place of whatever nature when any part thereof is open to the use of the

public, as a matter of right, for purposes of vehicular traffic.” Stewart v. Davis, 571 So. 2d

926, 928-29 (Miss. 1990) (citation and internal quotation marks omitted).

¶11.   Conflicting evidence was presented to the jury as to whether the junction of Highway


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49W and Patridge Road was classified as a “marked or readily distinguishable intersection”

under the applicable statute. McLaughlin submitted photographs which he believed

portrayed the road as a statutorily defined intersection. Trooper Sheffield testified, however,

that it was lawful to pass on this stretch of the highway and that, had it been illegal to pass

on this section of the highway, he would have given Washington a citation.

¶12.   The instruction given to the jury on negligence per se instructed the jury that the two

roads made an intersection. The question of whether the intersection was marked or readily

distinguishable (which would trigger application of Mississippi Code Annotated section 63-

3-611(2)(c)) was left for the jury to determine. Therefore, we hold that the trial court was

not in error when it refused to give the peremptory instruction on negligence per se.

       2.     Liability—Comparative Negligence

¶13.   Next, McLaughlin contends that the trial court erred when it instructed the jury on

comparative negligence. McLaughlin relies heavily on Ferguson v. Denton, 239 Miss. 591,

124 So. 2d 279 (1960), to support his argument. There, the decision of the trial court to give

a comparative negligence instruction was affirmed and justified because both sides claimed

the other was entirely negligent. McLaughlin contends that, because North Drew never

claimed the accident was due to the sole negligence of McLaughlin, the comparative

negligence instruction was in error.

¶14.   In Ferguson, the Mississippi Supreme Court held that “the jury was not required to

accept, in its entirety, the theory of either party, and it was its duty to consider all the


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testimony of the witnesses in the light of the physical facts and the circumstances shown, and

to determine therefrom the negligence, if any, of the respective parties.” Ferguson, 239

Miss. at 597, 124 So. 2d at 280. Ultimately, it is the jury’s responsibility to assess

percentages of fault between two parties.

¶15.   Our supreme court has also stated that “the standard of care in actions based upon

negligence is ordinarily measured in terms of the proverbial question: What would a

reasonably prudent person have done under the same or similar circumstances.” Knapp v.

Stanford, 392 So. 2d 196, 199 (Miss. 1980). In its holding, the court stated that the disposal

of negligence cases would best be administered by applying “uniform principles of

negligence under all circumstances.” Id. The test administered asks whether an actor being

charged with negligence acted as a reasonable and prudent person would have under the

same or similar circumstances. Id.

¶16.   After reviewing the record, we find that McLaughlin’s actions could be viewed as

negligent. Washington told Sheffield that McLaughlin gave no signal when making his left

turn directly into the path of the North Drew truck. Accordingly, we find that the trial judge

did not abuse his discretion by instructing the jury on comparative negligence.

       3.     Liability—Motion in Limine

¶17.   In his final argument on liability, McLaughlin argues that the trial court erred in

denying his motion in limine to exclude any testimony by EMT Charles Carouthers regarding

McLaughlin’s use of alcohol. He also claims that the testimony resulted in extreme


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prejudice.

¶18.   In order to grant a party’s motion in limine, the court must find that: “(1) the material

or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the

mere offer, reference, or statements made during trial concerning the material will tend to

prejudice the jury.” Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988). We

will reverse a court’s denial of a motion in limine only if the court abused its discretion in

denying the motion. McDowell v. State, 807 So. 2d 413, 421 (¶13) (Miss. 2001).

¶19.   The challenged testimony in this case is strikingly similar to the testimony in Abrams

v. Marlin Firearms Company, 838 So. 2d 975 (Miss. 2003). There, the trial court allowed

two witnesses to testify to the presence of alcohol on Abrams’s breath and empty and full

beer bottles inside Abrams’s pick-up truck. Id. at 979 (¶13). Abrams claimed the court erred

since the alcohol had nothing to do with the accident and there was no proof that he was

actually intoxicated. Id.

¶20.   Our supreme court affirmed based in part that there was proof of alcohol use, that is,

proof of the smell of alcohol on Abrams’s breath while the paramedic was administering aid.

Id. at 980 (¶17). The court explained that “evidence of possible alcohol consumption just

prior to the accident was highly relevant and probative as to Abrams’[s] credibility, his

recollection of the accident since there were no other witnesses, and his contributory

negligence.” Id. at (¶18).

¶21.   Applying the supreme court’s reasoning in Abrams, we find the judge acted within his


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discretion in denying McLaughlin’s motion in limine.

         4.     Damages—Jury Award

¶22.     McLaughlin raises several issues with the amount of damages that were awarded by

the jury. McLaughlin requested $591,000 for past lost wages, past and future medical

expenses, and pain and suffering. The jury awarded $0 for lost wages, $1,400 in medical

expenses, and $0 for pain and suffering. As a whole, McLaughlin also argues that his award

for $1,400 in medical expenses as well as $0 for lost wages along with pain and suffering

were against the overwhelming weight of the evidence and showed bias on behalf of the jury.

¶23.     “It is primarily the province of the jury to determine the amount of the damages to be

awarded, and the award will normally not be set aside unless so unreasonable in amount as

to strike mankind at first blush as being beyond all measure, unreasonable in amount and

outrageous.” Burge v. Spiers, 856 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2003) (internal

quotation marks omitted). When the reasonableness and amount of damages are disputed,

“this court will defer to the jury, which determines the weight and worth of testimony and

the credibility of the witness at trial.” Stubblefield v. Walker, 566 So. 2d 709, 712 (Miss.

1990).

¶24.     Here, the amount of the damages was highly contested at trial. McLaughlin claimed

that he incurred over $40,000 in medical expenses caused by the accident. Our supreme

court has noted that when a party “takes the witness stand and exhibits bills . . . and testifies

that said bills were incurred as a result of the injury, they become prima facie evidence that


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the bills so paid or incurred were reasonable and necessary.” Jackson v. Brumfield, 458 So.

2d 736, 737 (Miss. 1984). However, “opposing counsel may rebut the necessity and

reasonableness” of those bills by proper evidence. Id. at 738.

¶25.   North Drew rebutted McLaughlin’s medical expenses by offering evidence from its

expert witness, Dr. David Collip. According to Dr. Collip’s testimony, it was only

“reasonable” and “necessary” to conclude that McLaughlin incurred medical expenses from

the day of the accident, totaling $1,358.72 ($353.72 emergency room visit plus a $706

ambulance ride). At trial, Dr. Collip testified that the injuries McLaughlin sustained would

resolve without the need for additional medical treatment and that any medical attention

sought after the day of the accident would be unnecessary.

¶26.   After hearing testimony from both sides, the jury deliberated and awarded

McLaughlin $1,400 in damages for his medical expenses. According to the Mississippi

Supreme Court, it is the jury’s job, based on the evidence, to determine what award is

appropriate in a given case. S. Cent. Bell Tel. Co. v. Parker, 491 So. 2d 212, 217 (Miss.

1986). If the elements of damages were not proven by a preponderance of the evidence,

“then it [is] for the jury to deny damages for such alleged losses.” Id. at 216. Viewing the

conflicting evidence presented, we find that the verdict does not appear to be against the

overwhelming weight of the evidence nor does it present any bias, passion, or prejudice on

behalf of the jury.

       5.     Damages—Facebook Video


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¶27.   McLaughlin next contends that the admission of a Facebook video, which shows him

doing jumping jacks for his daughter, was irrelevant and damaged his credibility with the

jury. He also argues that since the video was admitted into evidence, the jury was biased by

its contents, resulting in an award well below his request. North Drew claims that the

purpose of the video was to impeach McLaughlin as to his injuries.

¶28.   When reviewing a trial court’s admission or exclusion of evidence the court will apply

an abuse-of-discretion standard. Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (¶12)

(Miss. 1999). But if an evidentiary error occurs, an appellate court will not reverse unless

the error “adversely affects a substantial right of a party.” Terrain Enterprises Inc. v.

Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995).

¶29.   Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Lewis v. State, 905 So. 2d 729, 734 (¶15) (Miss. Ct. App.

2004). The video showed McLaughlin being physically active contrary to his testimony

describing his alleged injuries. This certainly had the tendency to make the existence of this

claim more probable or less probable than it would be absent the video. A reasonable juror

could conclude that the Facebook video casts doubt on the severity of McLaughlin’s injuries.

And given the contents and timing of the video, a reasonable juror could conclude that the

video has a tendency to show that McLaughlin may not have been as injured or vulnerable

as his testimony, his medical records, and Dr. Goel suggested.


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¶30.   We find no abuse of discretion in the court’s decision to allow admission of the

Facebook video.

       6.      JNOV

¶31.   Finally, McLaughlin challenged the court’s denial of his motion for JNOV. A new

trial may be granted “when the verdict is against the overwhelming weight of the evidence,

or when the jury has been confused by faulty jury instructions, or when the jury has departed

from its oath and its verdict is a result of bias, passion, and prejudice.” Bobby Kitchens Inc.,

560 So. 2d at 132.

¶32.   “Generally, the only evidence of corruption, passion, prejudice, or bias on the part of

the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with

the amount of damages.” Green v. Grant, 641 So. 2d 1203, 1209 (Miss. 1994). A jury’s

award will not be set aside unless it is disproportionate to the injury sustained. Ill. Cent. R.R.

v. Gandy, 750 So. 2d 527, 534 (¶26) (Miss. 1999). Further, “the jury is the sole judge of the

weight of the evidence and the credibility of the witnesses.” Jackson v. Griffin, 390 So. 2d

287, 289 (Miss. 1980).

¶33.   Here, the jury heard testimony from the witnesses and judged their credibility, further

considering the weight of all of the evidence presented. As a result, the jury determined that

McLaughlin was comparatively negligent and awarded him $1,400 for the medical expenses

he incurred on the day of the accident. The jury was within its discretion to do so.

Accordingly, the jury verdict should stand.


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¶34.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. LEE, C.J., NOT PARTICIPATING.




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