Defense Expert’s Attack on the Collateral Source Rule Falling Short

The collateral source rule can be summarized by stating “[c]ompensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the [defendant] in mitigation or reduction of damages….” Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951). “[A] tortfeasor cannot use the moneys of others (insurance companies, gratuitous gifts, etc.) to reduce the cost of its own wrongdoing.” Brandon HMA v. Bradshaw, 809 So. 2d 611, 618 (Miss. 2001).

The Mississippi Supreme Court has applied the collateral source rule to:

  • Payments by Medicare.  Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002).
  • Payments by Medicaid.  Brandon HMA v. Bradshaw, 809 So. 2d 611 (Miss. 2001).
  • Amounts “written off” by a non related medical provider.  Purdon v. Locke, 807 So. 2d 373 (Miss. 2001)

However, the collateral source rule does not apply to amounts written off by the tortfeasor.  McGee v. River Region Medical Center, 59 So. 3d 575 (Miss. 2011).  A plaintiff can open the door to collateral source evidence by testifying to a lack of funds to pay for treatment. Geske v. Williamson, 945 So. 2d 429, 435 (Miss. Ct. App. 2006). Likewise “when a witness falsely swears that he or she paid, as opposed to incurred, medical expenses when, in fact, the medical expenses were paid by a third party” the court may allow a defendant to cross examine a plaintiff regarding collateral sources. Robinson Prop. Group, L.P. v. Mitchell, 7 So. 3d 240, 245 (Miss. 2009).

Despite the fact that Mississippi has uniformly followed the collateral source rule, defendants and their expert witnesses continue in their attempts to circumvent the rule.  The most recent attempt involves expert witness John Schneider, Ph.D.

Dr. Schneider claims to apply a health economics methodology to determine a weighted average of healthcare prices actually transacted in the market.  Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 17 (S.D. Miss. June 5, 2015).  In Sartin, use of Dr. Schneider’s “reasonable value” calculation reduced plaintiff’s life care plan from over $2.1 million in charges down to $590,588.

Although Dr. Schneider artfully avoids referencing insurance or any other collateral source in his Report, his methodology for determining the reasonable value of Plaintiff’s medical care would violate Mississippi’s collateral source rule.  Dr. Schneider’s methodology differentiates between expected charges for services as opposed to reasonable value or actual cost to a patient.

Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 23 (S.D. Miss. June 5, 2015).  The Court went on to state that “Dr. Schneider’s opinions on the reasonable value or medical care are therefore unreliable and irrelevant.”  Id.  

Judge Ozerden was again confronted with Dr. Schneider in the case of Williams v. Manitowoc Cranes, LLC, 2016 U.S. Dist. Lexis 3553, (S.D. Miss. January 12, 2016).  The result was the same.  “Dr. Schneider’s methodology as applied to this particular case represents a backdoor attempt to give Defendant the benefit of any type of write-off from the actual hospital charges…”  Id. at pages 11-12.  “Dr. Schneider seeks to confer the benefit of any payment or write-off from a third party on the Defendant instead of the Plaintiff.  The collateral source rule as it has been interpreted by the Mississippi Supreme Court prohibits this result.”  Id. a 12.

While Dr. Schneider and defendants disagree on principle, the public policy behind the collateral source rule is quite simple.  “If there is a windfall from which one is to benefit, the injured plaintiff and not the tortfeasor should receive that windfall.”  Chickaway v. United States, 2012 U.S. Dist. LEXIS 110602, *7, 2012 WL 3236518 (S.D. Miss. Aug. 7, 2012).



Minors’ settlements in Mississippi

I spent this morning before a chancellor obtaining approval for a minor’s personal injury settlement.  Prior to the hearing, I followed a routine that virtually ensures success. First, I reviewed Chancellor Primeaux’s outline for minor’s settlements.  Second, I reviewed attorney Nick Thompson’s Best Practices for Minors’ Settlements.  Finally, I prepared my clients for what to expect at the hearing and used an outline I prepared several years ago that covers most every question I have heard a chancellor or defense attorney ask during a minor’s settlement.

I won’t guarantee that following this testimony outline will result in no questions from the bench, but it will go a long way toward getting the required testimony before the Court so it can make an informed decision.  If you have any suggested additions or revisions, please send an email to

Testimony Outline of Parent as Natural Guardian

  1. Please state your name for the record.
  2. What is your relationship to __________________________?
  3. Did you file a lawsuit on behalf of ____________________against _________________ alleging __________________?
  4. Is it correct that the general type of damages you alleged in the Complaint were for _______________________________?
  5. Ms. or Mr. __________________, are you in fact the mother/father of _______________________________?
  6. To the best of your knowledge, does anyone else claim to be the mother/father of ___________________?
  7. In your own words, please describe the incident where _______________ was injured.
  8. Are you aware that the Defendant(s) has denied all liability for the damages you alleged in your Complaint?
  9. Did ______________ receive medical treatment for his/her injury?
  10. Where did you take _________________ for medical treatment related to the injury?
  11. Please describe the medical treatment provided to _______________.
  12. Has ____________ finished all medical treatment related to this incident?
  13. If yes, do you anticipate any future medical treatment related to this condition?
  14. If no, what future medical treatment do you anticipate and what is the anticipated cost?
  15. Does ______________ have any permanent injuries/scarring?
  16. If yes, please describe the injuries/scarring.
  17. If no, please describe ________________’s current medical condition.
  18. Is it correct that the medical expenses claimed as a result of alleged negligence total ______________?
  19. Have these medical bills been paid?  Who paid?
  20. To your knowledge, does anyone assert a lien against the proposed settlement?
  21. After the Complaint was filed and the Defendant(s) filed an Answer, did there come a point in time at which a potential settlement was reached?
  22. Are you familiar with the terms of the proposed settlement?
  23. Is it your understanding that in exchange for a dismissal of the lawsuit, the Defendant has agreed to pay of the sum of $_____________.
  24. Did you sign a legal agreement for us to represent you and _________________in this matter?
  25. Pursuant to that legal agreement, are attorney’s fees calculated as______________________________________?.
  26. Do you understand that attorney’s fees in the amount of $____________ will be deducted from the proposed settlement?
  27. Do you understand that Medicaid (or other lien) will require repayment of $_____________?
  28. Do you understand that after all attorney’s fees and _______________lien is paid, your son/daughter will receive $_________________.
  29. Are you satisfied with this settlement amount?
  30. Are you satisfied with the legal services which our firm has performed for you?
  31. Do you understand that by settling this case, you are giving up ____________________’s right to a trial by a jury of your peers in ____________ County, Mississippi?
  32. Do you understand that if you did not settle and the case were to go to trial, _______________ might potentially recover more than the amount you are agreeing to settle this case for?
  33. Do you understand that if you did not settle and the case were to go to trial, _____________________ might potentially recover less than the amount you are agreeing to settle this case for and in fact you might recover absolutely nothing at all?
  34. Do you understand that after a trial by jury, you would be entitled to appeal to the Mississippi Supreme Court and they could review the jury verdict?
  35. Do you understand that by settling, you are giving up _______________’s right to have a jury decide his/her case and ______________’s right to have the jury verdict reviewed on appeal?
  36. Do you understand that by agreeing to settle this matter, Cause No_______________, currently pending in the Circuit/County Court of             ____________, County Mississippi will be dismissed with prejudice?
  37. Do you understand that when the case is dismissed with prejudice, neither you nor ________________can sue this Defendant again based upon this incident even if you later discover additional facts or circumstances regarding this incident?
  38. Do you understand that when the case is dismissed with prejudice that any action you or ____________ currently have against the Defendant will be forever barred?
  39. Do you understand that the Defendant continues to deny all liability and is paying the settlement to buy his/her peace and to resolve the matter?
  40. Do you understand that the money you receive is not your money, but rather it is ____________________’s money?
  41. Do you understand that the money you receive is to be used for the sole benefit of __________________________?
  42. Do you understand that the settlement money will be held in a restricted guardianship account (if applicable)?
  43. Do you understand that you will be required to petition the court for approval to spend any funds held in the guardianship?
  44. Having considered all of this, do you believe that it is in _____________________’s best interests to settle this case on these terms?

Questions commonly directed to the Plaintiff’s attorney by the Court:

  1. How long have you practiced law and do you handle this type of case regularly?
  2. Do you believe that this settlement is in the best interests of ________________________?  Why?
  3. Why do you think the outcome of this case is doubtful?
  4. Do you think your fee is reasonable in this matter?
  5. How many hours have you devoted to this case?
  6. What exactly have you done in this case (discovery, depositions, motions, etc.)?
  7. If approved, where do you intend to deposit the ward’s portion of the settlement funds?
  8. How long do you need to have the ward’s money deposited in the account and have the bank acknowledgement filed in this case?

One last thing…..always bring the minor to the hearing so the Court can verify the condition of the minor.

The Nasty Side of Judicial Elections

Years ago judicial elections in Mississippi consisted of the candidates making stump speeches about their qualifications.  Members of the community would support or oppose judges based on their interactions and experiences with the candidates and recommendations from friends and family.

Those days are gone.  Now, outside groups and political action committees (PACS) come to Mississippi and pour hundreds of thousands of dollars into negative attack ads.  The latest example is the Mississippi Supreme Court race between current Supreme Court Justice Jim Kitchens and Court of Appeals Judge Kenny Griffis.

Both Justice Kitchens and Judge Griffis are good and honorable men.  Prior to the election, Justice Kitchens spoke with Judge Griffis and there was gentleman’s promise that both would run clean campaigns.

That promise of course doesn’t bind these special interest groups seeking to influence the election.  The latest attack ads against Justice Kitchens claim he used “loopholes” to help criminal defendants.  This simply isn’t true.  Justice Kitchens, like any judge, is bound to follow the Mississippi and United States Constitution.  Those Constitutions are not “loopholes” that can be set aside whenever the result is unpleasant.  Those Constitutions are the bedrock established by our founding fathers to help ensure a just government.

One of the groups that is attacking Justice Kitchens is called the Center for Individual Freedom (CIF).  Their stated mission is “to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.”  Little is known about the source of their funding, but records show that between 2010 and 2011 they accepted $2,750,000 from Karl Rove’s Crossroads GPS group and once received financial support from the National Smokers Alliance, a tobacco industry front group.  Rove’s Crossroads GPS doubled down giving another $2,190,000 to CIF between 2012 and 2014.

In 2012, the CIF spent a reported $1.8 million in Arkansas to attack AG candidate Nate Steel.  The advocacy group Southern Progress described CIF as:

The Virginia-based Center for Individual Freedom is a tobacco industry front group founded by a major tobacco industry lobbyist with funds from all of the big tobacco companies. In fact, the group is born directly from the ashes of the National Smokers Alliance whose mission was “dedicated to fighting discrimination against smokers and to supporting business owners” that sold tobacco products. Thomas Humber, founder of the Center for Individual Freedom was also president of the National Smokers Alliance (NSA).

..What does CFIF do? Just like their predecessor the NSA, the Center for Individual Freedom has lobbied to kill common sense smoking restrictions and any tobacco tax no matter what. In recent years, they’ve gotten even more slick trying to do away with state laws that require donors to groups be disclosed. How convenient — now they can spend money to do away with tobacco taxes and smoking restrictions without having to disclose their donors!

Equipped with all this revealing information, we now want to know what exactly Leslie Rutledge has promised Big Tobacco? What do they expect from her? Why is CFIF so concerned with the Arkansas Attorney General race?
Consider this:

The Arkansas Attorney General oversees the administration of the tobacco master settlement agreement of 1998, which means $7 billion per year to the states – and $60 million a year to Arkansas. The tobacco companies hate the regulatory compliance for the tobacco settlement. They hate when AGs band together to stop the glamorization of smoking on movie screens that sets a bad example for children, and Big Tobacco doesn’t like it when there is pushback on child-friendly advertising images like Joe Camel and candy-flavored tobacco that entices young people to smoke. And they don’t like the push by state AGs to include the new vapor cigarettes and all their fun and youth-enticing flavors to be included in the overall tobacco settlement.

The Center for Individual Freedom isn’t concerned with your individual freedom or Constitutional rights.  It gathers money from big business and other PACS.  Those millions in dark money are then funneled into elections around the country to influence elections with dirty attack ads.

There are no judicial candidates in Mississippi running for Supreme Court that seek out legal loopholes to help criminals. I have known Justice Jim Kitchens professionally for 20+ years.  My father was a career law enforcement officer.  Even before I had ever met Jim Kitchens, I remember my father speaking well of then attorney Jim Kitchens.  That made an impression on me as speaking well of attorneys was not something my father did often.

Long story short……….Don’t be deceived on election day.

Another First

Firsts of anything have always been memorable to me whether it was my first dog, girlfriend, school, gun, whitetail deer, 10 pound bass or whatever.

Practicing law is no different.  I remember back to my first divorce trial, first injury trial, first win and unfortunately, my first loss.  The older I get, the occurrence of firsts is significantly less frequent, but they do still occur.

This morning I experienced another first.  It was the first time in 16 plus years and several hundred attempts that I have walked into the Hinds County Chancery Courthouse in Jackson and passed through the metal detector without hearing a beep.

I was so accustomed to the beep that I had already walked forward and lifted my arms for the deputy with the handheld metal detector.  I am not certain who was more surprised, me not hearing the beep or the deputy looking at my outstretched hands which probably appeared to him like I wanted a hug.  When I told him it was the first time in 16 years that the metal detector hadn’t beeped, he laughed and checked to make sure it was still functioning.  It was.  Here’s to another first.  Good Lord willing, hopefully I will experience a few  more.1st

Private landowners lose dog lawsuit against MDWF&P

Back in February of last year, I mentioned that a group of landowners filed a lawsuit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks.

The plaintiffs claimed that dog hunters caused free ranging hunting dogs to cross their land and the MDWFP failed to take any action to prevent these dogs from intruding on the property of the plaintiffs.  Plaintiffs also alleged that the MDWFP has failed to implement a system of permitting and fines.  The plaintiffs’ legal theories were based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.

On September 1, the Court entered an opinion denying plaintiffs’ claims.  The Court held:

  • “the inaction of creating a permitting system for the particular use of free-running dogs has not injured a public right of the Plaintiffs, as the power to regulate hunters is within the discretion of MDWFP”
  • “property has not been taken by government action, as the individuals who have allegedly harassed and injured the Plaintiffs’ property are not acting on behalf of the state nor in an official capacity for the state”
  • “a per se taking has not occurred”
  • “no private nuisance has occurred”
  • “the inaction of regulation does not result in a civil trespass on Plaintiffs’ land.”

As I originally wrote back in August of last year, this case is a dog that won’t hunt.  If these landowners want to change the laws on hunting with dogs in Mississippi, the legislature is the place to do it rather than the courts.



Garlic knots

A few weeks back my wife went to Meridian to visit family.  While on the visit, she ate at a place called Mimmo’s in Quitman.  According to my wife, it is the absolute best bread she ever tried (all the other food was really good too).

Last night I decided to have a try at making garlic knots.  I have no doubt Mimmo’s has a complicated family recipe handed down for generations.  However, since they haven’t passed this closely guarded secret around, I opted for a modified internet recipe and the handy dandy Oster bread machine.

  • 1.25 cups of warm water
  • 1.5 tablespoons of olive oil
  • 1 teaspoon of salt
  • 3.5 cups of flour
  • 2.5 teaspoons of sugar
  • 1 tablespoon of dried parsley
  • .5 teaspoon garlic powder
  • .5 teaspoon onion powder
  • .5 teaspoon dried basil flakes
  • 2 teaspoons dry yeast

After the bread machine did the work, I pulled the ball of dough out and cut it into 16 pieces.  Then, each piece was rolled out into a fat pencil shape and tied into a knot.  When the 16 knots were on the pizza plate, each was brushed with with garlic butter before going into the preheated 375 oven.  I cooked them until the edges started browning and then pulled them out for another brushing of garlic butter.  They weren’t browning quite as much as I wanted so, I turned on the broiler to finish them up.  When they came out of the oven, I sprinkled them with a mixture of salt, basil and oregano.

The end result:


Not bad for a first try.  The interior was slightly overcooked.  My wife liked them, but they aren’t Mimmo’s.  Better luck next time.


Think before you send.

Some 10+ years ago a defense lawyer as young as I was filed a motion in limine a few days before trial.  Most of it was baseless and by my estimation designed to either get a few more billable hours in or distract me from trial preparation.  Nevertheless, I had to respond to it.  So on a Friday afternoon, I went item by item and responded in a dignified manner…..until I got to the last item.

Plaintiff should be precluded from arguing that defendant is represented by a powerful big city law firm.

Sure enough, the defendant was represented by a law firm much larger than mine.  Most every defendant is.  They had 50+ lawyers in offices in Jackson and a few other places around the southeast.  However, in the whole scheme of things this defense lawyer was not from a big city and his firm’s power was suspect even then (the firm doesn’t exist today).  Rather than simply agreeing not to bring up the subject, I replied with a Friday afternoon snark.

Plaintiff’s counsel agrees not to comment of the defendant being represented by a powerful big city law firm as same would be untrue.

As is advised by legal writing experts, I have since axed the word “same” from my writing, but this was 10+ years ago.  I mailed off the response and went about my weekend.  After closing arguments and while waiting for the jury verdict, the senior partner defending the case remarked that my response wasn’t very gentlemanlike.  He was correct, and I apologized to him.  Since that day, I have made it a policy to always let a response sit for a day after drafting prior to sending it out.

A similar policy would have well served Mississippi House of Representative member Jeffrey Guice of Ocean Springs this week.  A Richland mother, Nicole Nichols, wrote Guice seeking help with the Medicaid system for her diabetic daughter.  Guice’s response:

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I don’t know Guice.  Maybe he is rude to everyone or maybe Ms. Nichols simply caught him on a bad day at a bad time.  Either way, Guice would do well to follow Seth Godin’s email checklist:

Email checklist

Before you hit send on that next email, perhaps you should run down this list, just to be sure:

  1. Is it going to just one person? (If yes, jump to #10)
  2. Since it’s going to a group, have I thought about who is on my list?
  3. Are they blind copied?
  4. Did every person on the list really and truly opt in? Not like sort of, but really ask for it?
  5. So that means that if I didn’t send it to them, they’d complain about not getting it?
  6. See #5. If they wouldn’t complain, take them off!
  7. That means, for example, that sending bulk email to a list of bloggers just cause they have blogs is not okay.
  8. Aside: the definition of permission marketing: Anticipated, personal and relevant messages delivered to people who actually want to get them. Nowhere does it say anything about you and your needs as a sender. Probably none of my business, but I’m just letting you know how I feel. (And how your prospects feel).
  9. Is the email from a real person? If it is, will hitting reply get a note back to that person? (if not, change it please).
  10. Have I corresponded with this person before?
  11. Really? They’ve written back? (if no, reconsider email).
  12. If it is a cold-call email, and I’m sure it’s welcome, and I’m sure it’s not spam, then don’t apologize. If I need to apologize, then yes, it’s spam, and I’ll get the brand-hurt I deserve.
  13. Am I angry? (If so, save as draft and come back to the note in one hour).
  14. Could I do this note better with a phone call?
  15. Am I blind-ccing my boss? If so, what will happen if the recipient finds out?
  16. Is there anything in this email I don’t want the attorney general, the media or my boss seeing? (If so, hit delete).
  17. Is any portion of the email in all caps? (If so, consider changing it.)
  18. Is it in black type at a normal size?
  19. Do I have my contact info at the bottom? (If not, consider adding it).
  20. Have I included the line, “Please save the planet. Don’t print this email”? (If so, please delete the line and consider a job as a forest ranger or flight attendant).
  21. Could this email be shorter?
  22. Is there anyone copied on this email who could be left off the list?
  23. Have I attached any files that are very big? (If so, google something like ‘send big files’ and consider your options.)
  24. Have I attached any files that would work better in PDF format?
  25. Are there any 🙂 or other emoticons involved? (If so, reconsider).
  26. Am I forwarding someone else’s mail? (If so, will they be happy when they find out?)
  27. Am I forwarding something about religion (mine or someone else’s)? (If so, delete).
  28. Am I forwarding something about a virus or worldwide charity effort or other potential hoax? (If so, visit snopes and check to see if it’s ‘actually true).
  29. Did I hit ‘reply all’? If so, am I glad I did? Does every person on the list need to see it?
  30. Am I quoting back the original text in a helpful way? (Sending an email that says, in its entirety, “yes,” is not helpful).
  31. If this email is to someone like Seth, did I check to make sure I know the difference between its and it’s? Just wondering.
  32. If this is a press release, am I really sure that the recipient is going to be delighted to get it? Or am I taking advantage of the asymmetrical nature of email–free to send, expensive investment of time to read or delete?
  33. Are there any little animated creatures in the footer of this email? Adorable kittens? Endangered species of any kind?
  34. Bonus: Is there a long legal disclaimer at the bottom of my email? Why?
  35. Bonus: Does the subject line make it easy to understand what’s to come and likely it will get filed properly?
  36. If I had to pay 42 cents to send this email, would I?


Rib time!

Cooking ribs is a constant work in progress for me.  Add this, remove that, more time / less heat, higher heat / less time, foil time, type of wood for smoke, new rubs, types of sugar, etc.  There are so many variables in cooking ribs that unless you only change one at a time, it is quite hard to exactly replicate the taste and texture once you finally get your ribs to a perfect 10.  What works for me may not always work for you, but here is something to try. A word of caution……I really, really like sweet ribs.  If you don’t like sweet ribs, skip this post and go read about something else.


Fire up your smoker and get the temperate as close to 245 as you can.  Don’t overshoot the temperature if you are using a kamado style egg cooker or it will take a significant amount of time to drop the temperature back down to a reasonable level.  Use a liquid pan in the smoker.  I have used water and apple juice at different times, but can’t tell the difference between the two in the finished product.

Pull the membrane off the back of the ribs and apply a thin layer of yellow mustard to each side.  Apply the Rebel Butcher rub evenly across both sides of the ribs.  I buy this rub in a large box that is roughly 20 pounds if I remember correctly.  Then break the rub down into small zip lock bags for storage in the freezer until ready for use.

Always use fresh rub.  If the rub has been in your cabinet for over a month, toss it out.  At best, the flavor will be weak.  At worst, the old rub will have absorbed something from your cabinet that makes your prized ribs taste like cinnamon, cilantro or ginger.

Once you have the rub on the ribs, let them sit in a refrigerated environment for an hour or so while your smoker is getting up to temp.  Then place the ribs bone side down and cook with a smoker temperature as close to 245 degrees as you can for 2 hours.  While the ribs are sucking up heat and smoke, spray them with pineapple juice every 30 to 40 minutes.

After your ribs have cooked for 2 hours, you begin the wrap process.  Tear off a large section of heavy duty aluminum foil of sufficient size to completely wrap each slab of ribs.  Do not skimp on the heavy duty foil with some cheap store brand.  With the aluminum foil down, evenly spread a thin layer of turbinado sugar.  Then a stripe of the Tiger Pepper Jelly.  Then a stripe of Parkay squeeze butter. Then a layer of Blackburn syrup.  Then a layer of honey.  Lay a slab of ribs meat side down on the ingredients.  Repeat all of the ingredients to the bone side that is now facing up.  Wrap the foil tightly around the slab of ribs and return to the smoker.  Cook the wrapped slabs for somewhere between 45 minutes to an hour.

There are plenty of people out there advocating what is known as the 3-2-1 method of 3 hours on the grill, followed by 2 hours in foil and then finished with 1 hour back on the grill.  In my experience, a 3-2-1 cook results in ribs that are well overdone.  Ribs should have some slight degree of resistance.  Ribs aren’t pulled pork.  If you disagree and want your ribs to fall completely off the bone, go with the 3-2-1 method or just toss them into a crockpot you rib hating communist.

After the ribs have been in the foil cooking for their 45 minutes to an hour, use gloves to remove them from the cooking area.  They will be incredibly hot……close to napalm.  If, contrary to my advice above, you skimped on the heavy duty foil it will now fail.  The liquid will fall on your feet causing burns and you will probably drop your ribs on the ground.  Good news for the dog, but not so good for you.  Go with the heavy duty foil!

Open the foil and return the ribs to the smoker with the meat side up.  Retain the liquid from the foil and mix it half and half with Sweet Baby Ray’s.  Brush on a layer of your retained liquid/Baby Ray’s to the ribs and then dust them very lightly with turbinado sugar and the Rebel Rub.  Wait 30 minutes and apply another layer of flavor by repeating the process.  Given them another 30 minutes on the smoker and you will have finger licking ribs.

That’s all.  It isn’t hard, but the process is time consuming.  About the only way to ruin ribs with this recipe is to get distracted during the cook and overshoot the times or temp.

Can I have a pit bull where I live in Mississippi?

Yes, I realize that after yesterday’s Dog Bite Laws in Mississippi post, this is the second post in two days about dogs.  I had this information from previous dog bite cases our firm has handled and intended to update it for last last week’s National Dog Bite Prevention Week, but got tied up with other commitments until this week.

Often created in response to high profile dog bite events that make the evening news, many areas in Mississippi have breed specific laws (BSLs) which regulate or outright ban the ownership or possession of specific breeds of dogs.  The City of Clinton, where my office is located, has such a ban.  The City of Clinton’s ordinance bans the following:

  • American pit bull terrier
  • Staffordshire bull terrier
  • American Staffordshire Terrier
  • Rottweiler
  • Any dog whose sire or dame is a dog of the above breeds
  • Any dog whose owner registers, defines, admits or identifies the dog as one of the above breeds
  • Any dog substantially conforming to the above breeds
  • Any dog which is of a breed commonly referred to as a pit bull of rottweiler
  • Any vicious dog which is found at large in violation of the ordinance.

Hinds County, where my home is located, has an ordinance which bans “wild animals” anywhere in the incorporated and unincorporated areas of Hinds County and defines them in part as “hybrid wolf-dogs, pit bull breeds (purebred or any amount) and/or fighting dogs.”  The Ordinance provides that an owner of wild animals may apply for a variance from the Hinds County Sheriffs Department, Animal Control Division.  Because the ordinance applies in both incorporated and unincorporated areas of Hinds County, it includes all cities within Hinds County.  Therefore, in cities such as Jackson, Clinton, Byram, Terry, Bolton, Edwards and Utica, the Hinds County ban is in addition to any city dog or dangerous animal ordinances.

The City of Jackson does not have breed specific legislation but does have a dangerous and potentially dangerous dogs ordinance.  Scroll down to page 183 for Article IV, Section 18-101.  A dangerous dog is defined to include those that have caused injury to a person or domestic animal and those that have been designated as a potentially dangerous dog and that has engaged in behavior that poses a threat to public safety.

The City of Byram includes wolf hybrids, pit bulls and fighting dogs as wild animals that are a “menace to the public” and prohibits allowing them to run at large.

Rankin County’s Ordinance defines hybrid wolf dogs, pit bull breeds and fighting dogs as wild animals that could be a menace to the public and prohibits their ownership without a Board of Supervisors approved variance.  The variance requires an inspection of the property, proof of $100,000 in homeowners liability insurance and proof that the homewoner’s insurance company is aware of the dog on the premises.

Madison County’s Ordinance does not prohibit any specific breeds but does regulate dogs running at large and nuisance animals.

City of Ridgeland Ordinance 14-171 bans: American pit bull terriers, Staffordshire bull terriers, American Staffordshire Terrier, wold hybrids, Rottweilers, any dog whose sire or dame is a dog of the above breeds, any dog whose owner registers, defines, admits or identifies the dog as one of the above breeds, any dog substantially conforming to the above breeds, any dog which is of a breed commonly referred to as a pit bull, wolf, wolf hybrid and any dog declared vicious.

City of Greenville Ordinance 8-117 requires registration of all pit bulls and provides in part:

Because of the pit bull dog’s inbred propensity to attack other animals, and because of the danger posed to humans and animals alike by a pit bull dog when running loose or while running together in a pack, pit bull dogs must at all times be securely confined indoors, or confined in a securely and totally enclosed and locked pen with a top, all four (4) sides at least six (6) feet high, and with concrete flooring to prevent escape by tunneling; pen shall have a five (5) foot minimum set back from property lot line; and such enclosure shall likewise have a conspicuous sign affixed thereto displaying the words “Dangerous Dog.”

At any time that a pit bull dog is not confined as required in subsection (1) above, the dog shall be muzzled in such a manner as to prevent it from biting or injuring any person or animal, and kept on a leash with the owner or custodian in attendance; provided, however, that no pit bull dog may be walked within one hundred fifty (150) feet of any school ground, play ground or park, nor enter into such school ground, play ground or park.

City of Greenwood Ordinance 4-44 and City of Clarksdale Ordinance 4-37 are substantially similar to the City of Greenville’s pit bull ordinance.

The City of Natchez does not have breed specific laws, but does does have Ordinance Section 10-4 stating “No dog or other animal of dangerous, vicious, fierce or mischievous propensities or tendencies may be at large at any time within the limits of the city” and if any animal running at large attacks or attempts to attack a person or animal, the dog or animal is “conclusively presumed” to be a dog of vicious or dangerous propensities.  The City of Natchez also requires:

Whenever any vicious dog or one that has previously bitten any person is kept upon any premises, it shall be the duty of the keeper and of the owner of the dog to post a notice conspicuous to the public at each entrance to such premises reading in large letters, “BAD DOG HERE.”

Chances are, anywhere you live in the state of Mississippi has either a city or county ordinance regarding ownership of dogs and potentially outlawing the ownership of specific dog breeds.  If you own or intend to buy a pit bull, rottweiler, wolf hybrid, or any large dog for that matter, make sure you can legally possess it where you live.  Failure to do so can result in criminal penalties for the mere possession of certain breeds and civil liability should the prohibited dog injure a person or another animal.

If you, a family member or loved one are injured by a third party’s animal (whether it be a dog, goose, monkey or whatever), contact us and we will consult with you about the claim at no cost to you.

Dog Bite Laws in Mississippi

According to The American Veterinary Medical Association (AVMA), over 4.5 million people are bitten by dogs each year, over 800,000 of those bites require medical attention and roughly half of the dog bites that require medical attention are to children.  Any dog can, and under the right conditions, will bite.  However, most of the cases we see involve Pit Bulls, Rottweilers, or some mix breed that looks like one of the two.

Statistically, the Molosser breeds, including Pit Bulls, Rottweilers, Presa Canarios, Cane Corsos, mastiffs, Dogo Argentinos, Fila Brasieros, Sharpeis, boxers, and their mixes accounted for 86% of the reported fatal and disfiguring dog bites for the years 1982-2014. See Merritt Clifton study available at  According to K-9 Journal, other significant contributing factors are the sex of the dog (92% of bites are from male dogs) and dogs that are kept on chains (approximately 25% of bites are from dogs kept on chains).

“Rules imposing liability for harm caused by domestic animals find their origin in authority no less ancient than the Pentateuch.”  Wilson v. Simmons, 103 S.W.3d 211, 217, 2003 Mo. App. LEXIS 184, *11 (Mo. Ct. App. 2003).  Traditionally, animal attack laws have been categorized as following either the “one bite rule” or strict liability.  In simple terms, the one bite rule requires a dog to have actually bitten someone or thing prior to the bite for which a plaintiff seeks to attach liability.  A strict liability rule imposes liability to animal owners for all injuries caused by their animals regardless of whether or not the animal has previously injured anyone.  The one bite rule and strict liability approaches are not uniform from state to state.

Texas – An owner of a vicious animal can be strictly liable for harm, while an owner of a non-vicious animal can be “subject to liability for his negligent handling of such an animal.”  Bushnell v. Mott, 254 S.W.3d 451, 452, 2008 Tex. LEXIS 217, *3, 51 Tex. Sup. J. 681 (Tex. 2008).

Louisiana – Pursuant to Louisiana Civil Code Article 2321:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Also see Coburn v. Dixon, 2016 La. App. LEXIS 815, *7-8, 15-1095 (La.App. 3 Cir. 04/27/16); (La.App. 3 Cir. Apr. 27, 2016).

Tennessee –    Tenn. Code Ann. § 44-8-413 (2007), pertaining to injuries caused by dogs, provides in pertinent part:

(a)(1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another. 

(2) The owner may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s dangerous propensities.

Also see Moore v. Gaut, 2015 Tenn. App. LEXIS 995, *11-12 (Tenn. Ct. App. Dec. 30, 2015).

Mississippi – Mississippi follows what is known as the dangerous propensity rule.  There must be “some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of” and “it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.” Poy v. Grayson, 273 So.2d 491, 494 (Miss. 1973).

The dangerous propensity rule falls between a one bite rule and strict liability.  An injured person does not have to show that the dog or animal has previously bitten, but the animal owner does not incur liability for any and every bite.  The injured person must demonstrate that the animal exhibited some dangerous propensity or disposition of which the owner knew or should have known for liability to attach to the animal owner.

In addition to imposing liability on dog owners, Mississippi has also applied a hybrid dangerous propensity /premises liability rule  to lessors of property where the lessor has actual or constructive knowledge of a dangerous animal owned by others in an area of the lessor’s property designated by the lessor for common use.  See Mongeon v. A & V Enterprises, 733 So.2d 170, 171 (Miss. 1997).  In Mongeon,  evidence that a resident manager and a shareholder of the property were notified of the dogs in question growling at a person near the washateria prior to attacking the plaintiff in the same area was sufficient “credible evidence from which the jury may have drawn a reasonable inference supporting its verdict.”  Mongeon, at 172.

As recently made clear by the Mississippi Supreme Court in Olier v. Bailey, 164 So.3d 982 (Miss. 2015) the dangerous propensity rule and premises liability can be separate legal theories and are not mutually exclusive.  In Olier, the plaintiff sued Bailey for a broken arm sustained by Olier while fleeing from a goose attack on Bailey’s property.  The trial court and the Mississippi Supreme Court found that Olier was a licensee as a matter of law because she “came to Bailey’s home at Bailey’s invitation entirely for her own benefit.”  Olier, at 988.  As a licensee, the only duty Bailey owed Olier pursuant to premises liability law was “to refrain from willfully or wantonly injuring her.”  Id., at 988.  The Mississippi Supreme Court found Olier could not “proceed under a theory of premises liability as a matter of law.  However…whether Bailey breached her duty of care toward Olier as an animal owner is a different question.” Id., at 990.

With respect to the dangerous propensity rule portion of Olier’s claim, the Court reiterated the familiar standard that “an actual physical attack was not necessary to put an owner on notice of his or her animal’s dangerous propensities, but instead held that evidence of barking, growling, and chasing can be sufficient to put an animal’s owner on notice of the animal’s dangerous propensity.”  Id., at 993.  It was alleged that Bailey’s geese squawked, hissed and bit Olier.  Id., at 992.  It was further alleged that Bailey had given a bamboo pole to Olier to fend off the geese.  At some point Olier dropped the pole and a young goose bit Olier in the crotch.  Id.  Olier then tripped and broke her arm trying to retreat from the geese.  Id., at 992.

In applying the dangerous propensity rule to the facts, the Court reversed Bailey’s summary judgment holding “there remains a dispute of fact whether Olier’s injury was reasonably foreseeable under the totality of the circumstances….Under the totality of the circumstances, if the injury by an animal is reasonably foreseeable, the animal’s owner may be held liable. Id., at 994.  As a result, Olier’s case will go back for trial where she will have an opportunity to convince a jury that her injury should have been reasonably foreseeable to Bailey.

If you, a family member or loved one are injured by a third party’s animal (whether it be a dog, goose, monkey or whatever), consult with an attorney about the situation immediately.  While dog attacks to children are usually the most serious of these claims, we have successfully handled claims where our adult clients suffered broken ankles and various injuries other than dog bites as a result of the negligence of animal owners.

In investigating these claims on behalf of our clients, there are often items of evidence which need to be immediately preserved such as veterinary records, witness statements, police or animal control reports, neighborhood association minutes and homeowner’s insurance documents.  These items can be lost, misplaced or destroyed if you do not promptly pursue your claim.  Contact us to discuss your injury claim at no cost.

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