Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Last year I discussed the Court of Appeals decision in Denham v. Holmes in this post. The Court of appeals reversed a Lafayette County defense verdict due to issues related to Daubert, defense counsel's closing arguments and jury instructions. On Thursday the Mississippi Supreme Court affirmed the Court of Appeals in this opinion. But the Court disagreed with much of the Court of Appeals opinion.

As a refresher:

The case involved a car wreck on University Avenue in Oxford. Denham was turning onto the avenue and collided with a pickup truck driven by Holmes. Both vehicles were totaled and the plaintiffs suffered injuries.

The Court disagreed with the Court of Appeals that it was reversible error for the trial court to allow defense counsel to comment in closing on the plaintiff's lack of expert testimony. Plaintiff's counsel referred to the expected testimony in opening, but the trial court did not allow the expert to testify. The Court determined that the comments were proper. The Court reasoned that:

“acting at their own peril, the plaintiffs invited this comment by informing the jury during opening statement that they would provide expert testimony during trial but failing to do so.”

The Court noted:

“The reality of our advocacy system is that the purpose of a party's presentation of evidence and the comments of that party's counsel, throughout the trial, is to aid that party's case, and to 'prejudice' (be detrimental to) the other party's case.” 

The Court reasoned that just because an argument hurts the other side's case does not mean that the argument is improper. Although the Court did not mention Rule of Evidence 403, I could see this language being cited in disputes involving that rule.

The Court also disagreed with the Court of Appeals' Daubert analysis. The Court agreed that the trial court should have allowed the plaintiff's accident reconstructionist to testify about his distance and timing estimates. But the Court disagreed that the expert should have been allowed to testify about causation because the opinions were not sufficiently reliable.

  Justice Carlson wrote the majority opinion. Justice Kitchens dissented on the Daubert issues and was joined by Justices Dickinson and Randolph.

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On Thursday a unanimous Mississippi Supreme Court partially affirmed the trial court's grant of summary judgment on Daubert issues in Patterson v. Tibbs, et al. Here is the Court's opinion.

Facts:

A baby was born at Bolivar County Medical Center and died the same day. Plaintiff argued that the baby died from an over-dose of Demerol that was administered to the baby after birth or his mother before birth. The medical records did not show that Demerol was given to the baby. Plaintiff's theory was that it was given in connection with a circumcision or to the mother before birth.

The opinion does not state whether the mother received Demerol before birth. [Correction: footnote 5 states that the mother did recieve Demerol and the parties disputed the amount that she recieved.]

The defendants contended that the baby died from hypoplastic left heart syndrome—a serious heart defect that is fatal without surgery.

Daubert issue:

Plaintiff had two experts. One said that the half-life of Demerol in a child was 3–3.5 hours. Plaintiff's other expert was Dr. Steven Hayne. Dr. Hayne testified that the gunshots did indeed come from the grassy knoll. Just kidding. If you don't get it, ask around. Dr. Hayne opined the half-life of Demerol was 4.5–5 hours. Plaintiff had no medical literature to support either opinion.

Defendants offered medical literature that the half-life for Demerol in week old babies ranges 4.9 to 16.8 hours, with an average of 11 hours.

The trial court excluded plaintiff's experts and granted summary judgment because—according to the trial court—the ranges of possible half-lives for Demerol are so wide that they cannot be determined with any reasonable degree of medical or scientific certainty.

George 'Boo' Hollowell represented the plaintiff. Carl Hagwood represented the defendants. Judge Charles Webster was the trial judge.

The Court's Decision: 

The key holding of Justice Carlson's 27 page opinion is this language on page 14:

Patterson is correct in her assertion that lack of consensus among sources does not automatically render an expert inadmissible. An offered opinion that has been contradicted by published and peer reviewed data, however, must be supported by some evidence of support and acceptance in the scientific community.  

The plaintiff didn't offer any literature to support her experts' opinions on the half-life of Demerol, so the Court found that striking the experts' testimony on this issue was appropriate.

Despite affirming the trial court on Daubert, the Court reversed the grant of summary judgment in favor of one of two doctor defendants and the hospital because one of the plaintiff's experts testified that breaches in the nursing standard of care and delays in treatment by a doctor contributed to the death. The Court rejected the argument that the expert's testimony was predicated on the assumption that the baby died of a Demerol overdose because “the cause of death is an issue for the trier of fact to determine.”

My Take:

The opinion doesn't say this, but I interpret the decision to mean that the trial court made the right ruling for the wrong reason on the Daubert issue. It appears that the defendants established the half-life of Demerol to a reasonable degree of medical certainty. It looks to me like the problem was that the opinions of plaintiff's experts were not anywhere in the range of possible half-lives. Does someone have a different take on this?

I don't really follow the Court's logic on the last part of the opinion, but I think I know the reason for the Court reversing summary judgment. The Court was hung up on the fact that the procedural posture of the summary judgment motion and ruling was muddled (see p. 17–18). On the issue of summary judgment, there was no written motion, response or hearing transcript. Apparently, somewhere along the way Defendants moved for summary judgment ore tenus and the trial court granted the motion. 

I watched the oral argument of this case and the panel asked a lot of questions about the procedural posture of the case. The attorneys answered the questions as best they could, but this is an example of why making a written record is important.         

Plaintiff's counsel argued that plaintiff could show causation without the excluded Demerol testimony. The Court felt compelled to give the plaintiff the benefit of the doubt based on the evidence that was in the record and the fact the the defendants did not develop this issue on the record.

At the end of the day I still wonder if plaintiff can get there from here, but the Supreme Court is giving her the chance.  

The Court wrote another opinion on the medical literature Daubert issue last year in Hill v. Mills, which I discussed here.

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On Thursday the Mississippi Supreme Court issued an interesting 7–2 opinion in Burnwatt v. Ear, Nose and Throat Consultants of North Mississippi. Here is the Court's opinion, which Justice Chandler wrote. Justice Kitchens wrote a dissent that Justice Graves joined.

Facts:

The facts of the case were tragic. Alex Burnwatt, aged 9, had a tonsillectomy in 2001 performed by Dr. John Laurenzo. In the days following the surgery, he complained of pain and could not eat or drink without throwing up. After a few days, his parents took him to Baptist Memorial Hospital–North Mississippi (“BMH-NM”). At BMH-NM he vomited blood and collapsed on a bed. A nurse called a code, but resuscitation efforts failed and he died.

Lawsuit:

Alex's parents sued Dr. Laurenzo, his practice group and the BMH-NM. BMH-NM moved for summary judgment and plaintiffs confessed the motion because neither plaintiff, nor Dr. Laurenzo, designated expert opinions that were critical of BMH-NM.

After the dismissal, Dr. Laurenzo designated an expert who opined that he did not breach the standard of care and that Alex's death was caused by resuscitation efforts. Plaintiffs moved to exclude the testimony as an improper attempt to blame BMH-NM.

The trial court allowed the expert to  testify at trial and there was a hung jury. The Supreme Court granted an interlocutory appeal. 

Cynthia Mitchell, John Cocke and Charles Merkel, III with Merkel & Cocke represented the plaintiffs. Shelby Milam, Duke Goza and Dion Shanley represented the defendants.

Majority Opinion:

The Court ruled that the defense expert should be allowed to testify to explain the defendants' theory of the case: “Alex died as a result of pneumothorax (air around the lung that causes the lungs to collapse) during resuscitation efforts.”  In contrast, plaintiffs' theory “was that Alex died as a result of Dr. Laurenzo's negligence in cutting too deeply into the tonsillar bed, resulting in Alex's exsanguination (blood loss) at the hospital.”

Dissenting Opinion:

Justice Kitchens argued that judicial estoppel applied and precluded the defendants from offering the expert opinion that Alex died from the resuscitation attempt. The dissent was critical of a jury instruction that the defense contended that Alex's death occurred during resuscitation attempts.

The dissent reasoned that the expert's testimony and the court's instruction had the effect of laying the responsibility for the death on BMH-NM. The dissent argued that defendants should not be allowed to do this because they limited their theory of the case when the agreed to not blame the hospital.

My Take:

I have changed my mind on this opinion several times in the last day. I am not sure if this was a proper theory of the case defense or improper “sneaky” finger-pointing. Here is what I mean. When a party in a lawsuit is blaming someone else, they should have to point the finger like this:

But defendants—particularly defendants in medical-malpractice--cases often point the finger discreetly, like this:

I call this sneaky finger-pointing. "I'm not blaming anyone....except for that dude over there."

It most commonly arises when a defendant in a medical-malpractice case blames another doctor or nurse (who wasn't sued or has been dismissed), but does not have supporting expert testimony against the non-party.

Plaintiffs can't get away with this because of the clear law that a plaintiff has to have supporting expert testimony to get to the jury. But defendants can get away with this if the trial court lets them because the defense does not have the burden of proof and the law is not developed on this issue.  

I believe that it is improper for a trial court to allow a defendant in a case that requires expert testimony to blame someone else without supporting expert testimony. But I have seen it happen.

I suspect that the plaintiffs' lawyers in Burnwatt have seen it happen too. But what happened in Burnwatt may have been a little different. Or it may have been a little sneakier. I can't tell.

 As I write this, my opinion is that the defense expert should have been limited to testifying that the defendants complied with the standard of care. I reach this conclusion because if—as defense expert says—sometimes resuscitation efforts fail, then that was foreseeable and the fact that Alex died during resuscitation is either not relevant or more prejudicial than probative. The sole issue is whether there was a breach that proximately caused the death.

"Theory of the case" does not trump the rules of evidence. If it did, you would often see a party's theory of the case that the opposing party is a scum-bag who deserves to lose. Alas, the rules of evidence prohibit this type of defense because it is premised on character evidence.   

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The Mississippi Court of Appeals issued an interesting opinion on Tuesday and reversed a trial court defense jury verdict in Denham v. Holmes. Here is the Court’s opinion. Presiding Judge Joseph Lee wrote the Court’s opinion. The decision was unanimous, but with several unexplained partial concurrences, which I will discuss later.

Tommy Defer and Bobby Vance represented the plaintiffs. John Hyneman represented the defendant.

Facts

The case involved a car wreck on University Avenue in Oxford. Denham was turning onto the avenue and collided with a pickup truck driven by Holmes. Both vehicles were totaled and the plaintiffs suffered injuries.

Daubert Issue 

Plaintiffs designated Donald Rawson to testify as an expert witness in traffic-collision reconstruction. Rawson was to testify by deposition and the parties stipulated that Rawson was qualified to give an expert opinion on the traffic accident. But at trial, the defendant moved to exclude Rawson’s testimony on the basis that it would not aid the jury in reaching its decision.

Incidentally, I find the procedure leading to the defendant’s objection at trial odd. I suspect that the plaintiff’s attorneys went into trial thinking that they had an agreement for the expert to testify by deposition when the defendant stipulated to Rawson’s expertise and use of the deposition at trial. But there was a challenge to the testimony waiting for them at trial.  

Plaintiffs responded to the defense argument by contending that Rawson’s testimony would assist the jury on technical issues such as speed, sight line, and distance between the vehicles. Specifically, Rawson opined that the defendant could have taken evasive action to avoid the collision.

The trial court excluded the testimony on the grounds that Rawson’s conclusions were based on insufficient facts and data and some of the opinions were legal conclusions that would invade the province of the jury.

The Court of Appeals disagreed, finding that the testimony was based on the facts available from the accident scene and should have been admitted.

I previously criticized the Supreme Court for adopting new Daubert rules. Some have disagreed with my position and I understand their point. But it's my preference that appellate courts simply apply Daubert like the Court of Appeals did here without creating new Daubert rules.

Improper Closing Argument Issue 

 The Court held that it was also reversible error for the trial court to allow defense counsel to comment on the plaintiff’s lack of expert testimony in closing argument. The Court reasoned that the only legitimate purpose of closing argument is to assist the jury in evaluating the evidence and understanding the law and that defense counsel’s comment crossed the line. Trial lawyers need to be aware of this decision when they make closing arguments.

It’s easy for a trial lawyer to get carried away during closing and say something that they technically should not say. I know that I have to fight these urges during closing and am probably not always successful. But no one wants to lose a verdict due to an improper argument, particularly since the benefits of closing arguments are debatable.

My personal belief formed from my trial experience is that jurors have almost always made up their mind before the case reaches closing argument. I often find myself telling co-counsel and/or clients deep into a trial that while I don’t know the jury’s decision, I feel like it has been made. Published statistics support this conclusion and show that most jurors make up their mind during opening statements or shortly after opening.

Luckily, this case would have been reversed regardless of the closing argument issue, due to the Daubert and (uninteresting) jury instruction issues. But I appreciate the Court addressing the issue in its opinion to give guidance to trial attorneys.

Conclusion

Finally, this is a case where I hated to see all the partial concurrences. With several distinct issues in play it would have been nice to have the concurring opinions explained.   

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Last week the Mississippi Supreme Court issued its newest Daubert opinion in a 7–2 decision in Hill v. Mills. Justice Dickinson wrote for the majority. Justice Chandler wrote a dissent joined by Justice Graves.

The case originated in the Lincoln County Circuit Court with Judge David Strong as the trial judge. Judge Strong is a popular judge, despite his sad allegiance to Ole Miss athletics—a school that he did not attend until law school when he graduated from the famed Class of 1993.

The case was a medical malpractice case following a miscarriage that plaintiffs claimed could have been prevented by the defendant doctor. Plaintiff’s expert witness could not support his opinions with medical literature. In contrast, the defendant offered literature that supported his expert’s opinions.

 The trial court concluded that this made the opinions of plaintiff’s expert unreliable and excluded the expert’s opinions. Since expert testimony was required in the case, the trial court also granted summary judgment.

The Mississippi Supreme Court basically affirmed the trial court. The Court reversed on the grant of summary judgment for plaintiff’s claims that were unrelated to the wrongful death. But that claim was not the focus of the case and the Court’s decision was a big defense win.

The opinion’s key holding was:

We think the better practice is, when an expert (no matter how qualified) renders and opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.

The Court clarified that this does not mean that there is a requirement that an expert’s opinion be supported by peer-reviewed articles.  

I do not take issue with the decision that the expert in the case should not have been allowed to testify. But I do question whether the Court is following Daubert and its progeny in reaching its decisions and in the scope of its rulings. My criticism is similar to my criticism of the Court’s opinion in Vaughn v. Mississippi Baptist Medical Center that I wrote about here.  

The United States Supreme Court discouraged attempts to apply definitive rules to Daubert issues in Kumho Tire Co. v. Carmichael. In that landmark Daubert case the Court stated the following: 

• We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997) (courts of  appeals are to apply "abuse of discretion" standard when reviewing district court's reliability determination). Applying these standards, we determine that the District Court's decision in this case -- not to admit certain expert testimony -- was within its discretion and therefore lawful.
• Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U.S. at 594. Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." 509 U.S. at 593. And Daubert adds that the gatekeeping inquiry must be "'tied to the facts'" of a particular "case." 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending  on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. [emphasis added].
• Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.
• We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match. [emphasis added].
•  Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
• Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to admit or exclude expert testimony."

In Kumho Tire the Court ruled that the district court did not abuse its discretion by excluding the expert’s opinions in the case. In doing so, it refused to adopt definitive rules to apply to specific types of experts and cases. Daubert and Kumho Tire speak in terms of the trial court’s flexibility in determining whether experts should be allowed to testify.

The Mississippi Supreme Court is not properly emphasizing this flexibility in its opinions and is instead adopting the types of definitive rules that Kumho Tire frowned upon.

In Vaughn, the Court took a Daubert case and made a hard-and-fast rule that nurses cannot testify as to medical causation. In Hill v. Mills, the Court created another definitive rule requiring evidence to respond to a challenge to an expert’s opinions in all cases where a challenge is made, regardless of the circumstances. With all due respect for the Court, adopting definitive rules rather than limiting its ruling to a determination of whether the trial court abused its discretion in making a Daubert ruling is inconsistent with Kumho Tire.

Will Bardwell seemed to come to a similar conclusion in his blog:

Regardless of whether you think the Mississippi Supreme Court's treatment of Miss. Rule of Evidence 702 in Thursday's Hill v. Mills decision was correct, one can't help but conclude that it places a big, big land mine in front of trial litigants.

This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert's opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he's a quack is a question that should be left to the jury.

More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert's reliability prong." And that's the biggest problem with this ruling. As a matter of law, Rule 702 doesn't (or, at least, it didn't) impose on courts the duty to weigh conflicting testimony and to decide whether one witness' testimony invalidates another's. That's a basic jury duty.

My problem with the opinion is that the Court appears to emphasize the result more than how the trial court reached its decision.

In Vaughn, the Court could have struck the expert without creating a rule that nurses can never testify about medical causation. In Hill, the Court could have found that the trial court did not abuse its discretion in striking the expert’s opinions under the facts and circumstances of the case, without creating a rule that requires in all circumstances the expert to have evidentiary support of his opinions.

But the Court went beyond that and issued definitive rules to apply to Daubert issues. This appears contrary to the rulings of the U.S. Supreme Court, which ruled that Daubert does not lend itself to definitive rules.

Daubert determinations are fact specific and case specific. The trial court should have flexibility and considerable leeway in making Daubert determinations. Courts of appeals should then review the trial court’s findings under an abuse of discretion standard. Appellate courts should not take each new Daubert case as an opportunity to create another definitive rule to apply to a growing list of definitive Daubert rules.

But that is not the approach that the Mississippi Supreme Court appears to be taking.

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Last Thursday the Mississippi Supreme Court decided Vaughn v. Mississippi Baptist Medical Center. The opinion dealt with the deceptively simple sounding question of whether a nurse can give an opinion on "medical causation." The Court ruled:

We now explicitly hold that nurses cannot testify as to medical causation.

Sounds pretty simple. But what exactly is "medical causation"? The Court did not define the term. I searched in Lexis' all-states and all-feds data base for cases containing the term "medical causation." There were only 183 cases containing the term. After reviewing some of those cases, it looks like that when courts use the term "medical causation," what they mean is proximate cause in a case that requires expert medical testimony on the issue of causation. I also think that is what the Court means in Vaughn, but the opinion is not clear on this point and I fear that lawyers will now be arguing at the trial court level as to what exactly Vaughn means.

Does the decision mean that anytime a plaintiff needs a nurse expert on the issue of a breach in the standard of care that a doctor's opinion is also required on the issue of causation? I believe that the answer to this question is no, but defendants will argue for this interpretation in the trial court in cases where plaintiffs have a nurse expert but not a doctor.

An example of what I am talking about is in Krenek v. St. Anthony Hospital, 217 P.3d 149 (Okla. App. 2008). The case was a medical negligence case against a hospital where the 89-year old plaintiff was left unattended in a shower and fell, breaking several ribs. The plaintiff's only expert was a nurse and the hospital moved for summary judgment arguing that the plaintiff needed a doctor to opine on medical causation. In rejecting the hospital's argument and reversing the trial court the court stated:

Here, Plaintiff presented sufficient evidence leading to the reasonable inference that Hospital's negligent failure to secure and supervise Ulicky while he sat on a wheeled chair in a shower facility contributed to Ulicky's fall and resulting injuries. This origin of Ulicky's obvious injuries does not require a degree of knowledge or skill not possessed by an average person; instead, it is readily apparent to a layperson. Thus, expert medical testimony was not necessary to assist a fact-finder in determining whether Hospital's negligence caused or contributed to some of Ulicky's injuries.

I assume that the Mississippi Supreme Court or Court of Appeals would reach the same decision in a similar case where the injuries were obvious to a layman, but liability is disputed and hinges on the nursing standard of care.

In addition, Vaughn did not overrule Richardson v. Methodist Hospital of Hattiesburg, 807 So. 2d 1244 (Miss. 2002), in which the Court allowed the same nurse expert as in Vaughn to opine about proximate cause of the victim's pain and suffering, but not the cause of death. Richardson appears to still be good law under the right set of facts.

Justice Kitchens wrote a dissent joined by Justice Graves. The dissent made a logical argument against the hard and fast rule adopted by the majority:

It likely is true that some nurses may not possess the requisite expertise to recognize the cause-and-effect relationship between conditions in a patient’s environment, or particular kinds of harm that a patient may have experienced, and resulting diseases or maladies that occur in consequence of those conditions or events. However, the issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast rule that permanently forecloses the possibility of any nurse’s being qualified to give expert testimony on medical causation in any and all cases that may arise in the future.

 The majority reached its decision without even making a Daubert analysis of whether the expert's opinions satisfied Daubert criteria. If it had, the Court would have reached the same result with a more narrow decision.

Although I have no problem with the Court's decision that the nurse in Vaughn should not have been allowed to testify on causation in that case, I am not a big fan of the Court's opinion. I do not think that Courts should use the term "medical causation" when what they are talking about is "proximate cause" in a case that requires expert medical testimony. I also agree with the dissent's one size fits all criticism.

It seems to me that a better approach would be a Daubert analysis of whether the expert's opinions are reliable applying the Daubert factors. This should be the road map for trial courts to use in deciding whether to allow any expert to testify. Daubert and its progeny are about a system for analyzing whether an expert can testify in a particular case. The trial court must act as a gatekeeper and apply the Daubert analysis in every case to determine whether a particular expert should testify. Appellate courts can then review whether the trial court properly applied Daubert. The Supreme Court did something else in Vaughn, holding that no nurse can ever testify about "medical causation" before reaching a Daubert analysis.

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In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff's expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.

Reading between the lines, it appears that the plaintiff's expert was unsophisticated as an expert witness and did not understand what the phrase "standard of care" means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph's majority opinion noted that:  

The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.

The opinion then heavily quoted the expert's deposition, including testimony like:

Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?

A: I don’t -- I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .

Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?

A: That is correct. 

Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal "standard of care." A testifying expert must understand that the phrase "standard of care" means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.

This case is an example of why plaintiff's attorneys have to be very careful in cases requiring expert testimony. just having an expert who "makes a good witness" or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff's burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.

This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.

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On Thursday a 7-2 majority affirmed the Harrison County Circuit Court's dismissal of a case on a Rule 702/ Daubert issue in McDonald v. Memorial Hospital of Gulfport. This was a medical malpractice case and the issue was whether pathologists could render opinions on breaches in the standard of care by a gastroenterologist. The Court sided with the trial court's finding that the pathologists in this case were not qualified to testify.

Justice Kitchens wrote a scathing dissent joined by Justice Graves. Basically the dissent accuses the majority of saying the law is one thing, but then making it something else by its application of the law. According to the dissent, the majority departs from a nationally applied liberal application of Rule 702 when applied to physician testimony and requires that an expert be a specialist in the same area as the defendant. The dissent states that Mississppi does not adhere to the national standard and applies the most restricitve approach in the nation. The majority disagrees with the dissent's characerization of the state of the law.

The problem for litigators is that this leaves the law murky in this area. Murky law makes it hard to litigate a case.