A wrongful death lawsuit against Treasure Bay Casino and a nightclub will be allowed to continue because questions exist about a possible violation of the state’s “dram shop” law, the Mississippi Supreme Court has ruled.

Shelia Ricard filed the lawsuit on behalf of the beneficiaries of Phillip Robinson, who was killed in 2002 by a drunken driver in Ocean Springs. Ricard alleged the driver, Joshua Dillmon, had been drinking at the Treasure Bay Casino and later at Adventures Bar and Grill even though he was visibly intoxicated.

Under Mississippi’s “dram shop” law, business owners can be held liable if they serve alcohol to intoxicated people who then injure or kill others.

According to the court record, Dillmon was driving on U.S. 90 on Oct. 23, 2002, when he struck and killed Robinson. Dillmon left the scene of the accident before police arrived, but returned less than an hour later. An intoxilyzer test by police showed Dillmon’s blood alcohol content was 0.088 percent. Mississippi’s legal limit is 0.080 percent.

In a statement to police, Dillmon said he drank four or five beers at Treasure Bay, then went to Adventures Bar and Grill, where he drank some more. Adventures Bar and Grill is also a defendant in Ricard’s lawsuit.

After the collision, Dillmon said he pulled over into a parking lot about one-half mile away and stayed there for about one hour before returning to the scene, where he was arrested after being administered the intoxilyzer test, according to the court record.

In an affidavit, pathologist Dr. Steven Hayne, Ricard’s expert, rejected Dillmon’s claim that he consumed only seven or eight beers between 10:30 p.m. and 3:30 a.m. Hayne said if Dillmon were telling the truth, he would have had a BAC of 0.00 percent when the intoxilyzer test was administered at 6:41 a.m.

Hayne said because the intoxilyzer test administered to Dillmon at 6:41 a.m. revealed that his BAC was 0.088 percent, his blood alcohol content earlier would have reached a level of up to 0.15 percent. Such high levels of BAC, said Hayne, could not be produced with seven or eight beers, and would have rendered Dillmon visibly intoxicated.

After the incident, Dillmon was indicted for manslaughter, and has refused to testify in Ricard’s civil lawsuit, claiming the privilege against self-incrimination.

Treasure Bay and Adventures asked Circuit Judge Dale Harkey to dismiss Ricard’s lawsuit because she had failed to prove Dillmon was present and drinking at their respective bars. Harkey in 2006 refused to dismiss the lawsuit.

Justice Jess Dickinson, writing Thursday for the Supreme Court, said Dillmon, according to the court record, drank for 1-1/2 hours at Treasure Bay and 2-1/2 hours at Adventures. He said Ricard had presented sufficient evidence that Dillmon was served alcohol by Adventures while he was visibly intoxicated.

Treasure Bay and Adventures argued Hayne’s conclusions were based solely on the statements from Dillmon which lacked credibility.

“Experts in many fields, including medicine, accident reconstruction and forensic pathology, frequently rely on histories provided by patients and witnesses. Thus, it would be unsettling for this court abruptly to reject all expert opinion which relies on a historical account of the facts. Of course, whether or not the facts relied upon are credible is a matter for cross-examination and collateral attack at trial,” Dickinson said.

However, Dickinson said there was nothing in the court record to support Hayne’s conclusion that Dillmon was visibly intoxicated while at Treasure Bay. Nevertheless, Dickinson said Treasure Bay remains a defendant because Ricard has not been given a fair opportunity to talk to Dillmon.

Dickinson said the trial judge did not rule on Ricard’s motion to have the court take Dillmon’s testimony.

Dickinson said the Fifth Amendment privilege is not as broad in a civil case as it is in a criminal one. In civil cases, he said the privilege must be applied on a question-by-question basis.

“To avoid answering the question of whether he was at Treasure Bay or Adventures on the night in question, Dillmon would be required to demonstrate to the trial court how his answer might incriminate him,” Dickinson said.