                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CA-02595-SCT

WALLACE WEATHERLY, M.D., AND
WEATHERLY SPORTS MEDICINE & FAMILY
ORTHOPAEDIC CLINIC, P.C.

v.

ADINA WELKER AND FORREST WELKER


DATE OF JUDGMENT:                            08/04/2003
TRIAL JUDGE:                                 HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                    MARK P. CARAWAY
                                             META S. COPELAND
ATTORNEYS FOR APPELLEES:                     KENNETH CHARLES MILLER
                                             DEREK L. HALL
                                             THANDI WADE
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                 REVERSED AND REMANDED - 11/30/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     This case comes to this Court on appeal from the Circuit Court of First Judicial

District of Hinds County, by defendants Dr. Wallace Weatherly and Weatherly Sports

Medicine and Family Orthopaedics Clinic, P.A.( hereinafter “Weatherly”). This case

involves a medical malpractice claim against Weatherly in connection with the care and

treatment given to plaintiff Adina Welker (hereinafter “Ms. Welker”) when she fell during

a visit to Weatherly’s clinic. On July 28, 2003, a jury returned a verdict in favor of plaintiffs
Adina and Forrest Welker (hereinafter “Welker”) in the amount of $530,000, and judgment

was entered in accordance with that verdict. Weatherly appeals and requests a new trial on

all issues of liability and damages.

¶2.    We hold that the trial judge abused her discretion when she advised the jury venire

of on-going settlement negotiations between the parties.

                       FACTS AND PROCEDURAL HISTORY

¶3.    On July 13, 2000, Welker filed a complaint alleging medical negligence against

Weatherly, who is a board certified orthopaedic surgeon who resides and practices in Hinds

County, Mississippi, based on an injury Ms. Welker sustained during a visit to Weatherly’s

clinic. On May 12, 1999, Ms. Welker came under the care of Weatherly for the first time

when she made an office visit. She filled out an intake form and was initially interviewed

by one of Weatherly’s surgical assistants. She made complaints of hip pain and popping and

disclosed that she suffered from neurally medicated hypotension. Weatherly performed a

physical examination of Ms. Welker and administered a steroid injection into the bursa of

her hip. There is some dispute as to how long. Weatherly remained in the room after the

injection.1 After Weatherly left the room, Ms. Welker fainted and fell to the floor, causing

her to suffer injuries which are the subject of this action. The matter proceeded to trial on

July 21, 2003.




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          Ms. Welker testified that Weatherly left the room about one minute after
administering the shot. However, Weatherly testified that he stayed in the examination room
for at least five minutes and made sure Ms. Welker was not going to have an adverse
reaction to the injection.

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¶4.    On the first day of trial, the trial court met with the parties in chambers to inquire

about the status of settlement negotiations. The court instructed the parties to leave the

courtroom and discuss settlement before a jury was selected. At this point, the venire had

been called to the courtroom. The trial judge then returned to the courtroom to perform roll

call of the panels, at which time she informed the potential jurors that settlement negotiations

were taking place outside the courtroom at that very moment. Neither the parties nor their

attorneys were present when the trial judge made the following statement:

       This is another part of the selection process. It’s called voir dire. But at this
       point I’m going to have to put you-all in recess again. And the recess is
       because the case that’s scheduled to begin and we’re supposed to be picking
       a jury for right now, the attorneys and the parties are talking settlement. They
       may not settle, and we may be here at some point talking about a trial going
       forward. If this happens as it does in 90 percent of the cases that are ever filed,
       then we won’t need you. If they do not reach an agreement, then you will be
       back here at 1:00 and the jury will be picked.

Jury selection followed that afternoon, and later that evening counsel for Weatherly learned

that the venire had been informed of an attempted settlement. The next morning, before

opening statements, defense counsel made a motion for a mistrial and the selection of a new

jury based on the trial court’s violation of Rule 408 of the Mississippi Rules of Evidence.

That motion was denied.

¶5.    The jury subsequently returned a verdict in favor of Ms. Welker in the amount of

$500,000 and in favor of Forrest Welker in the amount of $30,000. Judgment was entered

in accordance with the verdict. On August 14, 2003, Weatherly moved for judgment

notwithstanding the verdict or, in the alternative, for a new trial. On October, 2, 2003, the




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trial court issued an order denying the post-trial motions, from which Weatherly filed a notice

of appeal. On appeal, Weatherly presents the following issues for review:

       I.     Whether the trial court erred by informing the venire of on-going
              settlement negotiations.

       II.    Whether the trial court erred in its application of the United States
              Supreme Court decision of Batson v. Kentucky to Dr. Weatherly’s
              peremptory challenges.

       III.   Whether the trial court erred by denying a continuance of the trial
              date after Plaintiffs disclosed critical medical records seven days
              prior to trial.

       IV.    Whether the trial court erred by refusing to instruct the jury on
              Dr. Weatherly’s claim of contributory negligence.

       V.     Whether the trial court erred by giving Jury Instruction 12, which
              was peremptory in nature, and which did not state the standard of
              care to be applied to Dr. Weatherly’s care and treatment of Adina
              Welker.

Because the determination of the first issue controls, we need not address the other issues.

                                       DISCUSSION

       I.     Whether the trial court erred by informing the venire of on-going
              settlement negotiations.

¶6.    Weatherly asserts on appeal that the trial court erred by informing the venire of on-

going settlement negotiations. Weatherly argues that Rule 408 of the Mississippi Rules of

Evidence disallows the mentioning of settlement negotiations at any time during trial, with

one exception pointed out in Smith v. Payne, where the fact of settlement was used for the

purpose of explaining the absence of a settling defendant at trial. 839 So. 2d 482, 487 (Miss.

2002). With regard to disclosing the amount of settlement, the Court stated that the probative

value, if any, of the settlement amount is substantially outweighed by the danger of unfair

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prejudice; however, this case does not offer any guidance with regard to the factual situation

in the present case. Id. Weatherly cites cases from other jurisdictions, which found that Rule

408 prohibits the trial judge from discussing settlement negotiations with the jury. See infra

Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1071 (5th Cir. 1986); Fahrbach v. Diamond

Shamrock, Inc., 928 P.2d 269, 274 (N.M. 1996). Relying on Green v. State, 97 Miss. 834,

53 So. 415, 416 (1910), Weatherly submits that the proscription against discussing settlement

negotiations found in Rule 408 applies with even greater force to the trial court because of

the importance that jurors place on the judge.

¶7.    Rule 408 provides that:

       Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting
       or offering or promising to accept, a valuable consideration in compromising
       or attempting to compromise a claim which was disputed as to either validity
       or amount, is not admissible to prove liability for or invalidity of the claim or
       its amount. Evidence of conduct or statements made in compromise
       negotiations is likewise not admissible.

Miss. R. Evid. 408. Although evidence of settlement is not admissible to prove liability or

the invalidity of a claim under Rule 408, “this rule also does not require exclusion when the

evidence is offered for another purpose, such as proving bias or prejudice of a witness,

negativing a contention of undue delay, or proving an effort to obstruct a criminal

investigation or prosecution.” Id.

¶8.     There are no Mississippi cases directly on point with regard to whether a trial court’s

disclosure of on-going settlement negotiations between parties actively involved in a trial to

the venire violates Rule 408; however other jurisdictions provide guidance. In Fahrbach,

the Supreme Court of New Mexico stated that an analogous version of Rule 408 applies



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equally to “comments of the court or of counsel made in argument to jury or in voir dire.”

928 P.2d at 274. The Fifth Circuit has held that Federal Rule 408 bars the admission of

evidence of settlement unless it is admissible for a purpose other than "to prove liability for

or invalidity of the claim or its amount” Kennon, 794 F.2d at 1069. Similar to this Court’s

reasoning in Smith, the Fifth Circuit held that while it is reversible error for a trial court to

reveal the amount of settlement, revealing the fact of settlement is permissible when it

explains the absence of settling defendants who were previously in court because it serves

the purpose of reducing jury confusion. Id. at 1070. However, unlike Smith and Kennon,

mentioning the settlement in this case was not for the purpose of explaining the absence of

a settling co-defendant; in fact, there was no purpose in disclosing the parties’ settlement

negotiations and in our view to do so was prejudicial error. We find that the disclosure of

settlement negotiations in this case clearly falls outside of the permissible purposes set out

in Rule 408. The trial court reasonably could have and should have found a more appropriate

way of dealing with the delay without disclosing to the venire that the parties were trying to

settle the case, which implies responsibility for the injury.

¶9.    One authority provides:

              As a general rule, if a trial judge refers at all to the subject of a
       compromise, he must do so in such a fashion that no party may complain of
       bias, hostility, or duress, or a predetermined result. Nor may any of the above
       be made apparent to a jury. Thus, broadly, it has been regarded as prejudicial
       error for a trial judge to demonstrate hostility in his remarks to a party, or to
       the jury, or to suggest that the party might be visited with an adverse result
       should he fail to settle, especially if the jury is aware of such attitude.

D. L. Spillman, Jr., Annotation, Propriety and Prejudicial Effect of Suggestion or Comments

by a Judge as to Compromise or Settlement of Civil Case, 6 A.L.R. 3d 1457, 1460

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(1966)(footnote omitted). Welker emphasizes that “merely to refer to compromise as a

generally desirable resolution or to point out that compromise is a technique available to

litigants, however has not been regarded as erroneous.” Id. However, Welker fails to

recognize that the judge in this case did not merely refer to compromise as a desirable

resolution, but actually informed the venire that the parties, in the case that they were about

to consider, were engaged in settlement negotiations at the very moment that they sat in the

courtroom awaiting jury selection. When the jurors returned for voir dire following the trial

court’s statement, it was obvious that the case did not settle. Shortly after, counsel for

Welker told the venire that the evidence would show that Ms. Welker’s actual damages were

$4,000,000. The jury reasonably could have concluded that Weatherly had seriously

considered a multi-million dollar demand in the morning negotiations, which could have

inadvertently resulted in prejudice. Therefore, the trial court’s reference to the settlement

was not done “in such a fashion that no party may complain of bias, hostility, or duress, or

a predetermined result.” Id.

¶10.   Even more critical, considering what occurred in the case at bar, in Green, this Court

stated that jurors are very susceptible to the influence of the judge, and thus a judge “cannot

be too careful and guarded in language and conduct in the presence of the jury to avoid

prejudice to either party.” 53 So. at 416. The Court further stated that “a reviewing court

will not stop to inquire whether the jury was actually influenced by the conduct of the judge.

All the authorities hold that if they were exposed to improper influences, which might have

produced the verdict, the presumption of law is against its purity; and testimony will not be

heard to rebut this presumption.” Id.   Therefore, whether the jury was actually prejudiced


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or influenced by the statement is not for the Court to decide; rather, the mere fact that the

statement was made to the jury creates a conclusive presumption of such prejudice. We

continue to adhere to Green. We note that the trial judge egregiously advised the jury that

“90 percent of the cases that are ever filed” [settle]. This statement only further highlighted

the prejudice. Taking into consideration the importance placed on trial judges and their role

in safeguarding impartiality, we find that the trial court abused its discretion by informing

the venire of last minute, on-going settlement negotiations taking place on the first day of

trial.

                                      CONCLUSION

 ¶11.    We find that the trial court committed reversible error when it informed the venire

 of on-going settlement negotiations between the parties. Accordingly, we reverse the trial

 court’s judgment and remand this case for a new trial on all issues.

 ¶12.    REVERSED AND REMANDED.

     WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
 RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITHOUT SEPARATE
 WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.




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