Brain Dysfunction, Memory Loss, and Procedural Tolling
Ellis v. Gresham Service Stations, Inc., 2011 WL 294414 (Ct. App. Miss. 2011)
An interesting case about the intersection of procedural rules and neurological excuses today. In this case, the Plaintiff brought a premises-liability lawsuit against Defendants (“Double Quick”) claiming that he was brutally beaten behind the Double Quick store by a group of unknown assailants. The trial court granted summary judgment in favor of Double Quick based on a finding that no genuine issue of material fact existed as to Double Quick’s actual or constructive knowledge of an “atmosphere of violence” on the store’s premises. Plaintiff then remembered that there was a witness who had assisted him the night of the attack, who could provide testimony regarding Double Quick’s knowledge of the violence on the premises. Plaintiff claimed he failed to earlier introduce the witness because “he had forgotten about [the witness’s] involvement,” which he attributed to the memory loss he suffered due to his head injury. Despite no medical proof of his purported memory loss, the trial court conditionally denied Double Quick’s motion, finding there was insufficient proof to determine whether his failure to comply with the discovery deadlines was willful or not, leaving the door open for the parties to revisit the issue with appropriate expert and medical testimony. Double Quick moved for reconsideration and submitted the testimony of Plaintiff’s treating neurosurgeon, who explained that a concussion typically results in short-term amnesia, not any long-term intermittent memory loss. After hearing the evidence, the court granted summary judgment in favor of Double Quick. Affirmed on appeal.