Let’s look now at the two cases that Nan Aron features—again, cases that People for the American Way didn’t even see fit to mention in its 7- page letter opposing the Southwick nomination.
First is Goode v. Synergy Corp. The legal issue in that case was whether the trial court abused its discretion in denying plaintiffs’ motion for a new trial in a wrongful-death case. The grant of a new trial based on newly discovered evidence is an extraordinary remedy, and the trial court is obviously in the best position to judge whether such a motion should be granted. The issue that divided the majority opinion from the dissent (which Southwick joined) was the question whether the plaintiffs had shown that they had exercised “due diligence” before and during trial in seeking (unsuccessfully) to uncover the newly discovered evidence. The majority found that interrogatories submitted by the plaintiffs to the defendant adequately showed their due diligence. The dissent maintained that, given the centrality of the particular factual issue, a more thorough investigation was needed to establish due diligence. This highly factbound question is the stuff of which opposition to a nominee is made?
Aron’s second case—Cannon v. Mid-South X-Ray Co.—is even feebler. The legal question there was when the limitations period for a latent disease begins to run. In his dissent, Judge Southwick stated that all agreed that the relevant statute (section 49(2)) specified that the cause of action for “latent injury or disease” accrues (and the limitations period begins to run) when “the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Southwick contrasted this injury-discovery trigger with the statute of limitations for medical-malpractice claims, which begins to run only once a plaintiff knows both of his injury and of its cause. Southwick specifically quoted Mississippi supreme court precedent that established that knowledge of the cause of the injury and knowledge of the causative relationship between the injury and the injurious act are not relevant under section 49(2). Because the majority in Cannon looked to the date of plaintiff’s knowledge of the cause of her injury to determine that the limitations period may not have run, Southwick dissented.
On a question of state statutory law, I would often be reluctant to offer an opinion who is right. But in this case Southwick clearly spells out the binding precedent he is applying, and the judges in the majority, far from offering any answer to his argument, mistakenly (and nonsensically) claim that he is applying the statute of limitations for medical-malpractice claims (rather than section 49(2)). Thus, a four-corners review of the case strongly indicates that Southwick’s opinion correctly applies applicable law.