Miss. SC shoots down wrongful death suit over lung disease

By Jessica M. Karmasek | May 14, 2012


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court earlier this month ruled in favor of a group of businesses that were sued for allegedly causing a man's lung disease and, later, his death.

Henry Morgan Sr. and 141 other plaintiffs filed a personal injury lawsuit against 88 defendants, claiming injuries related to silicosis, in September 2002.

Morgan was diagnosed with silicosis, a type of pneumoconiosis, in June 2002.

A form of occupational lung disease, silicosis is caused by inhalation of crystalline silica dust and is typically marked by inflammation and scarring in the upper lobes of the lungs.

However, Morgan died while the case was pending -- in fact, just five days after the suit was filed.

The case was eventually dismissed in May 2006.

Exactly one year later, Henry Morgan Jr., Morgan's son, filed a wrongful death claim against 32 defendants in Adams County Circuit Court. He claimed his father's silica-related injuries had caused his death.

The defendants then filed a motion for summary judgment, based on the running of the statute of limitations.

The circuit court denied their motion.

The defendants appealed to the state's high court, which reversed the lower court's decision and rendered a judgment in favor of the businesses.

The Court, in its May 3 ruling, said because the wrongful death lawsuit was filed more than three years after Morgan Sr.'s death, the statute of limitations bars any wrongful death and survival claims.

"As discussed above, Morgan Jr.'s discovery responses provided the defendants, for the first time, with such vital basic information as Morgan Sr.'s social security number and address, allowing the defendants to determine Morgan Sr.'s identity. Nor did the complaint allege the date of Morgan Sr.'s discovery of his injury or the date of his death, making it impossible for the defendants to calculate whether the statute of limitations had run until Morgan Jr. had complied with discovery," Presiding Justice George C. Carlson Jr. explained.

And although the time between the complaint and the defendants' motion for summary judgment was delayed, the Court noted that the defendants did not waive the defense because they did not "substantially participate" in the litigation and Morgan Jr. was not prejudiced by the delay.

"No attempt was made to file a notice of death to amend the Arthur (Morgan Sr.'s original) complaint to include Morgan Jr.'s wrongful death claims, or to substitute Morgan Jr. as the real party in interest in Arthur. More than four and one half years after Morgan Sr. died, Morgan Jr. filed this wrongful death suit," Carlson wrote.

"According to Clark Sand, Morgan Jr.'s action is 'separate and distinct' from Morgan Sr.'s action. Because they are distinct actions, Morgan Sr.'s personal injury action did not toll the statute of limitations for Morgan Jr.'s wrongful death action."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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