Battle of the Experts Precludes Summary Judgment: Miss. Supreme Court
When expert witnesses for plaintiffs and defendants come to separate conclusions, a circuit court may not grant summary judgment, the Mississippi Supreme Court has ruled, reversing the circuit court and remanding the case.
In Borries v. Grand Casino of Mississippi, Inc., Miss. Supreme Ct., Mar. 31, 2016, the storm surge of Hurricane Katrina (2005) tore two floating barge casinos, the Grand Casino and the Lady Luck, from their moorings, after which they allegedly collided with the Schooner Pier, which was under construction by Borries. Borries sued for negligence and gross negligence.
The Grand Casino filed for summary judgment, arguing that the barges were moored in compliance with the Mississippi Gaming Commission, and that it owed no duty because Hurricane Katrina was an Act of God and unforeseeable. It submitted affidavits from three expert witnesses: Gordon Reigstad, David Mitchell, and Clifford Green. Reigstad, an engineer, attested that the mooring system met and exceeded the fifteen-foot, storm-surge Gaming Commission requirement and was designed to accommodate a seventeen-foot storm surge. David Mitchell, a forensic meteorologist expert witness, testified that the maximum storm surge at the location of the Grand Casino was over twenty-one feet, and that wave action would have added an additional three to four feet. Green, past president of a consulting firm, testified that Grand Casino's mooring system complied with the Gaming Commission's guidelines and was able to withstand fifteen-foot storm surge.
Borries submitted affidavits from two experts, Dr. William Dally, a coastal engineer, and Edward Geoffrey Webster, a marine engineering expert . Both experts testified that the Grand Casino mooring system was designed to accommodate a fifteen-foot storm surge but because of prior storm history, Grand Casino's mooring system should have been based on the known maximum surge heights of Hurricane Camille (1969).
The circuit court granted Grand Casino's motion for summary judgment, finding that Borries did not present anything other than generic references about Hurricane Camille's storm surge at the location of the Grand Casino, that the Mississippi Gaming Commission set the regulation for moorings at 15 feet which Grand Casino followed, and that, even if Camille's storm surge reached certain heights, the one-time occurrence was insufficient to set the applicable standard of care.
Borries made a motion to reconsider the summary judgment. He also entered a second supplemental affidavit from Dally for clarification of the maximum storm surge. The circuit court rejected Borries' motion. Borries appealed.
Dally's second supplemental affidavite stated that Hurricane Camille's storm surge was between twenty-one and thirty feet, rather than simply twenty-one feet. In his original affidavit, Dally had stated that Camille's storm surge was estimated at thirty feet in some areas of the Gulf Coast, although he did not specify the locations. In his forensic engineering report, he had stated that Hurricane Camille's maximum storm surge was twenty-five feet, specifically at Pass Christian and Long Beach.
The state Supreme Court noted that Dally's testimony was inconsistent, having first testified that the mooring system was compliant with the Gaming Commission's regulations and the mooring collars failed after the storm surge was above fifteen-foot benchmark. However, his forensic analysis attachment stated that the mooring system failed before reaching fifteen feet, and his first supplemental affidavit stated that Grand Casino's mooring system was not compliant with the regulations and restated his position that the mooring systems failed before it reached the design limit of fifteen feet.
The state Supreme Court, referencing one of its earlier decisions, stated that "the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony" (Foldes v. Hancock Bank, 554 So. 2d 319, 11 321 [Miss. 1989]).
While the circuit court applied the "Act of God" defense, the state Supreme Court found that defense would not apply if the damages could have been prevented through the use of ordinary care. There was no entitlement to summary judgment based on the Act of God defense.
The state Supreme Court found that, although inconsistencies existed in Dally's affidavits, "the parties' experts have merely provided differing opinions." Borries had offered evidence that Grand Casino's mooring system was inadequate and that the storm surge was foreseeable. Grand Casino had presented competing evidence that, because of its compliance, it was not liable. The differing opinions established a "battle of the experts."
The state Supreme Court reversed the judgment of the circuit court and remanded.