Defendants Beware: The Good, Bad and Unknown in the Mississippi Supreme Court’s New Standard for Determining Waiver of Affirmative Defenses in Pollan v. Wartak

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On December 7, 2017, the Mississippi Supreme Court affirmed a circuit court ruling that a plaintiff’s survival claims were barred by the statute-of-limitations. In Pollan v. Wartak, the Court rejected the plaintiff’s claim that the circuit court failed to consider his waiver argument. The Court similarly rejected the claim that the statute-of-limitations defense had been waived by the defendants’ “unjustified delay” in pursuing it and their active participation in the litigation for more than two years.

The opinion is an obvious victory for the defendants in the case. However, the Court’s analysis reflects a departure from Empire Abrasive Equip. Corp. v. Morgan, and the earlier opinions on which it relies. The new standard articulated in Pollan shifts the sands beneath the historical waiver analysis and may pose new risks for defendants who answer and engage in discovery before advancing an affirmative defense as the basis of a motion for relief.

In the seminal case MS Credit Center v. Horton, the Court held that “[a] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense . . . which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver” 926 So.2d at 180. Following Horton, cases focused heavily on the extent of the delay between the defendant’s answer and the motion, in addition to whether the delay was justified. See East. Miss. State Hosp. v. Adams, 947 So.2d 887 (Miss. 2007) (finding waiver after a two-year delay); Spann v. Diaz, 987 So.2d 443 (Miss. 2008) (finding no waiver after a 71-day delay); Stuart v. University of Miss. Medical Ctr., 21 So.3d 544 (Miss. 2009) (finding waiver after a two-and-a-half-year delay); Alexander v. Newton County, 124 So.3d 688 (Miss.Ct.App. 2013) (finding waiver after an almost three-year delay); and US Bancorp v. McMullan, 183 So.3d 833 (Miss. 2016) (finding no waiver after a 33-day delay)).

Pollan cites the Court’s earlier opinion in Empire Abrasive, a case in which the defendants moved for summary judgment more than two years after answering the complaint. The Empire Abrasive Court held that the defendants had not waived their statute-of-limitations defense. The holding was based on four factors: 1) the statute-of-limitations defense had not been waived because the defendants’ only actions “were actions related to early discovery”; 2) the “requirements for meeting the substantial participation test” were greater because the dispute “derived from a mass-tort case”; 3) the defendants’ discovery efforts were required due to the lack of “vital basic information” in the complaint”; and 4) the plaintiff was responsible for “the only significant delay” prior to the summary judgment motion. 87 So.3d 455, 460-61. Although Pollan cites Empire Abrasive and reached the same result, Pollan does not reflect the analysis employed by the Court in Empire Abrasive and its earlier cases.

The parties in Empire Abrasive engaged in minimal discovery. The Court noted that only the defendant propound discovery requests and no depositions were taken. 87 So.3d at 460. Conversely, Pollan’s response to the defendants’ motion for partial summary judgment petition (attached to his petition for interlocutory appeal) states that the defendants filed “multiple sets of interrogatories, multiple sets of requests for production of documents and multiple requests for admission,” as well as serving “numerous” subpoenas on healthcare providers and deposing him. The Pollan Court ignored the more extensive scope of discovery reflected in the record.

Additionally, the holding in Empire Abrasive includes an identification of the specific information the defendants needed to obtain in discovery in order to file their summary judgment motion. 87 So.3d at 461 (noting that the complaint did not include the decedent’s social security number, address or other information that would have enabled the defendants to identify the decedent, and did not allege the date of death or the date of the plaintiff’s discovery of the decedent’s injury or death). Just five years earlier in Alexander, the Court of Appeals went so far as to identify the only two depositions necessary to support the summary judgment motion. 124 So.3d 688, 692 (Miss.Ct.App. 2013).

By contrast, Pollan does not include any analysis of whether the defendants’ discovery efforts were necessary. This omission is particularly noteworthy in light of Pollan’s contention that each fact relied upon by the defendants in their summary judgment motion was referenced in his complaint, and his claim that the defendants “engaged in extensive discovery unrelated to the statute-of-limitations issue.”

Finally, although it considered the two year delay to be “lengthy”, the Empire Abrasive Court found the plaintiff to be responsible for the delay. Id., at p. 459-460. The plaintiff’s failure to timely respond to the defendants’ discovery requests necessitated a motion to compel and required the Court to conduct a hearing on the motion. Id. Pollan, however, does not reflect any discussion of whether the defendants complied with their obligation to “timely pursue the enforcement” of their statute of limitations defense. Id., at p. 460.

Pollan discards the Empire Abrasive factors and adopts a simplified but very different approach. The Court held that the defendants had not waived their statute-of-limitations defense because they “relied directly on evidence obtained in discovery to support their argument”.

On its face, Pollan is a favorable opinion for defendants. The Court rejected the plaintiff’s argument that the circuit court failed to consider his waiver arguments, but it acknowledged that the circuit court’s statements at the summary judgment hearing were lacking in detail. Also, in lieu of analyzing the defendants’ discovery efforts the Court appears to have presumed discovery was necessary because the complaint alleged “factually complex” medical malpractice claims that required “factual development beyond the initial pleadings”. Id.

Notably, Pollan does not identify the evidence on which the defendants purportedly “relied directly” or assess their diligence in pursuing the defense. A little over 10 years after Horton’s holding that an eight-month delay was – “absent extreme and unusual circumstances” – unjustified as a matter of law, the Court did not engage in any analysis of the reasonableness of the defendants’ delay whatsoever.

However, Pollan’s new direct reliance standard employs language that could expose defendants to greater risk. Under prior cases a defendant could avoid waiver by expeditiously pursuing relevant discovery. As a result, even a defendant who engaged in some discovery but failed to obtain pertinent information had arguments to oppose a waiver claim. However, under Pollan such a defendant would be unable to establish any reliance on evidence obtained in discovery, much less direct reliance.

Similarly, a defendant who uses discovery to strengthen a dismissal motion with additional or confirmatory information should expect the plaintiff to argue that its reliance was less than direct. A direct reliance standard suggests that mere reliance, as opposed to more substantial, direct reliance could be insufficient.

Guidance for Litigants

In earlier cases the Court employed strong language that encouraged defendants to advance affirmative defenses that could terminate litigation as soon as practicable. This mandate undoubtedly reflected the Court’s desire to protect trial courts and litigants from the burden and expense of unnecessary litigation.

Pollan, however, suggests that in at least some instances the Court is disinclined to engage in a detailed analysis of whether discovery in a given case was necessary or to opine regarding how quickly it should have been completed. Against this backdrop, and until future decisions either return to the Empire Abrasive framework or expand upon the new direct reliance standard, Pollan merits consideration of measures to minimize the risk of an adverse waiver ruling:

  1. The defendant should move to dismiss in lieu of answering if it has the evidence necessary to support the motion. The Court effectively accepted the defendants’ position that discovery was necessary, but Pollan involved complicated medical negligence claims. The Court may be less deferential in future cases involving more conventional tort or contract claims. Stacking the deck to strengthen a motion that could be filed in response to the complaint could prove costly.
  2. The defendant should immediately propound discovery requests that seek the information necessary to establish the defense. Because the Court may return to its prior analysis, a defendant must be prepared to defend against the plaintiff’s claim of unjustified delay and substantial participation. Consideration should be given to whether discovery requests are submitted in an earlier, separate set of requests or are separately identified as the first requests within a combined set of discovery requests. Such measures may help emphasize that development of a record to support the defense has been given priority by the defendant and therefore may be of some benefit in responding to later arguments that the defendant’s overall discovery efforts amounted to substantial participation.
  3. The defendant should consider asking the court to prioritize discovery and motion practice related to the defense. Such a request could be made in the context of a motion for a scheduling order or a motion to stay, and would serve two purposes. First, even if rejected the request will document the defendant’s desire to advance the defense as soon as possible. A defendant loses control over the extent to which it will be required to participate in litigation after its answer is filed, and the more it engages in discovery and motion practice the stronger the plaintiff’s waiver argument becomes. An effort to expedite the court’s ruling on the defense will run counter to a plaintiff’s claim of substantial participation or delay.

    Second, any opposition by the plaintiff will complicate its ability to establish prejudice as a result of an alleged delay. See Horton, 926 So.2d at 180 n. 7 (noting that prejudice to the nonmoving party is a factor in the Court’s determination of waiver). A plaintiff would be seemingly unable to claim that it was prejudiced by the additional expense and delay of litigation unrelated to the defense if it resisted the defendant’s attempt to prioritize the defense.
  4. The defendant should move for relief as soon as it has obtained the necessary information in discovery. The plaintiff will undoubtedly contend that any discovery or motion practice that occurs after the defendant obtains the pertinent information constitutes participation unrelated to the defense, and therefore, waiver. A timely motion and request for a hearing will insulate the defendant from such a contention.


Pollan injects a good deal of uncertainty into how the Court will resolve future waiver claims. A standard that focuses on the extent to which any post-discovery motion relies on information obtained in discovery as opposed to whether the defendant’s discovery was undertaken diligently and in good faith presents significant risks. Until future opinions provide clarity, defendants must proceed with extreme caution.