BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Mar :36: CA Pages: 40 CASE NO TS IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI PEGGY THOMAS, APPELLANT v. DR. JAMES PURDY, APPELLEE (On appeal from the Circuit Court of Lauderdale County, Mississippi, Civil Action No.: 12-CV-029W) BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED DAVID E. ROZIER, JR. (MSB #5712) J. KEITH PEARSON (MSB # 9753) JENESSA CARTER HICKS (MSB #103287) SARAH L. DICKEY (MSB # ) Rozier Law Firm, PLLC The Pearson Law Firm, PLLC P.O. Box North Lamar Blvd, Suite 108 Oxford, MS Oxford, MS Telephone: Telephone: Facsimile: Facsimile: Attorneys for PEGGY THOMAS Attorneys for PEGGY THOMAS

2 IN THE SUPREME COURT OF MISSISSIPPI No TS PEGGY THOMAS PLAINTIFF/APPELLANT VS. DR. JAMES PURDY DEFENDANT/APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Mississippi Supreme Court and/or the Judges of the Court of Appeals Court may evaluate possible disqualification or recusal: Jason Childress Gaye Nell Currie Sarah L. Dickey Jenessa Carter Hicks Attorney for Defendant/Appellee Attorney for Defendant/Appellee Attorney for Plaintiff/Appellant Attorney for Defendant/Appellee J. Keith Pearson Attorney for Plaintiff/Appellant Dr. James Purdy David E. Rozier, Jr. Peggy Thomas Hon. Lester Williamson Defendant and Appellee Attorney for Plaintiff/Appellant Plaintiff and Appellant Lauderdale County Circuit Court Judge SO CERTIFIED, this, the 3 rd day of March, /s/ Jenessa Carter Hicks Attorney for Appellant i

3 TABLE OF CONTENTS Page Certificate of Interested Persons..i Table of Contents.ii Table of Authorities iii Request for Oral Argument..v Statement of the Issues.1 Statement of the Case...2 Summary of the Argument...8 Argument...11 Conclusion.32 Certificate of Service.34 ii

4 TABLE OF AUTHORITIES U.S. Supreme Court Cases Page(s) Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)...4, 10, 18, 19, 20, 21, 22, 23 Mississippi Supreme Court Cases Burnwatt v. Ear, Nose & Throat Consultants of North Mississippi, 47 So. 3d 109 (Miss. 2010)..11 Butler v. State, 245 So. 2d 605 (Miss. 1971).15 Causey v. Sanders, 998 So. 2d 393 (Miss. 2009)..19 Chaupette v. State, 136 So. 3d 1041 (Miss. 2014)...9, 13, 14, 15, 16 Cherry v. Hawkins, 137 So. 2d 815 (Miss. 1962)..28 Hubbard v. Wansley, 954 So. 2d 951 (Miss.2007) 19 Hull v. State, 687 So. 2d 708 (Miss. 1996) 25 McDonald v. Memorial Hospital at Gulfport, 8 So. 3d 175 (Miss. 2009)...19, 21 Mississippi Transportation Commission v. McLemore, 863 So. 2d 31 (Miss. 2003)..18, 19 Morgan v. Greenwaldt, 786 So. 2d 1037 (Miss. 2001).27 Poole ex rel Wrongful Death Beneficiaries of Poole v. Avara, 908 So. 2d 716 (Miss. 2005)...11 Rebelwood Apartments RP, LP v. English, 48 So. 3d 483 (Miss. 2010)...19 Sample v. State, 643 So. 2d 524 (Miss. 1994)...13 Scafidel v. Crawford, 486 So. 2d 370 (Miss. 1986)...25 Sheffield v. Goodwin, 740 So. 2d 854 (Miss. 1999) 10, 19 Worthy v. McNair, 37 So. 3d 609 (Miss. 2010).19, 22, 23 Mississippi Court of Appeals Cases Cleveland v. State, 820 So. 2d 37 (Miss. Ct. App. 2011) 27, 29 Ekornes-Duncan v. Rankin Medical Center, 808 So. 2d 955 (Miss. Ct. App. 2002).. 10, 28 Griffin v. McKenney, 877 So. 2d 425 (Miss. Ct. App. 2003)..8, 9, 13, 26 Hardiman v. State, 776 So. 2d 723 (Miss. Ct. App. 2001) 27 Koestler v. Koestler, 976 So. 2d 372 (Miss. Ct. App. 2008).26 O Keefe v. Biloxi Casino Corp., 76 So. 3d 726 (Miss. Ct. App. 2011).26 iii

5 University of Mississippi Medical Center v. Peacock, 972 So. 2d 619 (Miss. Ct. App. 2006).18 Mississippi Rules of Evidence Miss. R. Evid , 8, 9, 12, 13, 14, 16, 24 Miss. R. Evid , 13, 15, 16, 18 Miss. R. Evid , 25, 26 iv

6 REQUEST FOR ORAL ARGUMENT Pursuant to Mississippi Rules of Appellate Procedure, Rule 34(b), Appellant hereby requests that this Honorable Court grant oral argument in this matter. Because there is room for development of the legal issues involved in this case, Appellant believes that oral argument is necessary to fully answer any questions the Court may have and to ensure sufficient discussion of the applicable law. v

7 STATEMENT OF THE ISSUES I. WHETHER THE TRIAL COURT ERRED IN ADMITTING EXPERT CAUSATION OPINIONS CONTAINED IN THE MEDICAL RECORDS OF PLAINTIFF'S TREATING PHYSICIANS, DESPITE THE TRIAL COURT'S LIMITATION OF THE TREATING PHYSICIANS TO BEING LAY WITNESSES UNDER M.R.E 701. II. WHETHER THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S GYNECOLOGICAL EXPERT WITNESS TO PRESENT NEUROLOGICAL OPINION TESTIMONY, OUTSIDE HIS FIELD OF EXPERTISE, TO THE JURY. III. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S MOTION FOR CONTINUANCE OF TRIAL DUE TO THE UNAVAILABILITY OF A MATERIAL EXPERT WITNESS. 1

8 STATEMENT OF THE CASE A. Pre-Trial Procedural History On January 15, 2010, Defendant Dr. James Purdy performed an anterior cystocele repair with Xenoform graft insertion on Mrs. Peggy Thomas at Rush Hospital in Meridian, Mississippi. Immediately upon waking from this routine gynecological surgery for the repair of her prolapsed bladder, Mrs. Thomas found herself screaming in excruciating pain, as she was suffering from sciatic nerve damage and foot drop. Transcript R. Vol. 2 at 264. Dr. Purdy was summoned. After witnessing Mrs. Thomas's extreme pain, Dr. Purdy stated to Mrs. Thomas's husband, Wallace, that the source of Mrs. Thomas's pain "must have been that last stitch that I put in" and that he "could go in and take that stitch out, but I don't want to disturb the progress I made with the surgery that I did." Transcript R. Vol. 3 at When Mrs. Thomas's agonizing pain persisted, Dr. Purdy consulted with neurologist Dr. Rafique Ahmad and neurosurgeon Dr. David Malloy regarding the extent of Mrs. Thomas's sciatic nerve damage. Ultimately, Dr. Purdy took no other measures to rectify Mrs. Thomas's nerve damage beyond consulting with these physicians and Mrs. Thomas's sciatic pain and nerve damage became permanent. To date, Mrs. Thomas suffers from daily extreme pain due to the sciatic nerve damage and foot drop which manifested immediately after the surgical procedure. Transcript R. Vol. 2 at 267. After suffering this permanent and life-altering injury, in February of 2012, Mrs. Thomas filed a medical negligence cause of action against Dr. Purdy, Rush Hospital, and various Rush Hospital personnel, alleging that Dr. Purdy placed a stitch in or near Mrs. Thomas's sciatic nerve during the surgery and subsequently failed to take remedial measures, while simultaneously alleging that the Rush Hospital personnel had failed to properly place plaintiff in the surgical lithotomy position, which caused a stretch injury to Mrs. Thomas's sciatic nerve. Mrs. Thomas 2

9 initially filed her cause of action with these competing theories of medical negligence because she, like her treating physicians, was unsure of exactly how she became injured. As discovery and expert testimony in the case developed, however, it became clear that Dr. Purdy's failure to remove the stitch he had placed in or near the sciatic nerve during surgery was the ultimate and true cause of Mrs. Thomas's permanent injuries. With the trial of this matter set for February 18, 2014, the trial court granted summary judgment in December 2013 as to Mrs. Thomas's claims against Rush Hospital and its personnel, finding that no genuine issue of material fact existed with regard to the medical negligence claims against these defendants, leaving Dr. James Purdy as the sole remaining defendant. The trial court's Memorandum Opinion and Order of January 3, 2014, in addition to granting summary judgment to Rush, also limited the testimony of Mrs. Thomas's treating physicians, specifically including Dr. Ahmad and Dr. Malloy, to that of lay witness treating physicians under Miss. R. Evid. 701, in response to a Motion to Strike Supplemental Designation filed by Dr. Purdy. R. at Vol. VI ; R. at Vol VII at ; R.E. 3, 10 (some exhibits omitted from excerpts). Prior to the February trial, Dr. Purdy requested a continuance of the trial because his expert witness, Dr. Marty Tucker, would be unavailable to testify during the trial as scheduled in February. See R. Vol. IX at The trial was later continued again at Dr. Purdy's request because of Dr. Purdy s unavailability due to an illness, and the trial was eventually reset to commence on March 30, See R. at Vol XIII at Following the dismissal of Mrs. Thomas s claims against Rush Hospital, and after the expert designation deadline, Dr. Purdy developed a new theory of his case, wherein he placed the blame for plaintiff's injuries on a pre-existing degenerative changes in Mrs. Thomas s spine, which he argued pre-disposed Mrs. Thomas to a stretch injury while in the lithotomy position 3

10 during surgery. Rather than designate a neurological expert to provide this expert neurological opinion to the jury, Dr. Purdy proposed that his gynecological expert, Dr. Tucker, would provide this expert neurological testimony, based solely on the neurological causation opinions contained in the medical records of lay witnesses Dr. Malloy and Dr. Ahmad. Mrs. Thomas filed a Motion to Strike in Whole or in Part the Amended Expert Designation of Dr. Purdy where he first offered these new neurological opinions of alternative causation theories expressed by gynecologist Dr. Tucker. See R. Vol. X at ; Vol XI at ; R.E. 9 (some exhibits omitted from excerpts). The trial court denied Mrs. Thomas s Motion and ruled that Dr. Tucker would be allowed to testify regarding the standard of care applicable to Dr. Purdy in the performance of the surgery and during Mrs. Thomas s postoperative care, as well as the possible causes and/or contributing causes of Mrs. Thomas s injury, including but not limited to Dr. Tucker s opinions as based upon his review of the medical records of Mrs. Thomas s subsequent treating physicians. R. Vol. XIII at ; R.E. 8. Plaintiff also filed a Motion in Limine to prevent Dr. Tucker from testifying outside the bounds of his knowledge and expertise as a gynecologist and asserting that Dr. Tucker was not qualified to provide expert neurological opinion testimony under a Daubert analysis. R. Vol. XIV at ; ; R. Vol. XV at ; R.E. 4, 5. (some exhibits omitted from excerpts). Plaintiff further filed a motion in limine to prevent certain expert neurological causation opinions of Dr. Malloy and Dr. Ahmad from being admitted into evidence through plaintiff s medical records, as this would be improper expert testimony under the trial court s previous ruling as to the Rule 701 witness status of Mrs. Thomas s treating physicians. R. Vol. XIV at ; ; R.E. 6, 7 (some exhibits omitted from excerpts). On March 18, 2015, the trial court denied Mrs. Thomas s Third Motion in Limine regarding Dr. Tucker s 4

11 testimony, as well as plaintiff s Second Motion in Limine regarding the medical records and potential testimony of Dr. Ahmad and Dr. Malloy. Transcript R. Vol. 1 at ; R.E. 17. Plaintiff requested a continuance of the trial of this matter on March 27, 2015 due to the unavailability of a material expert witness, Dr. David Preston, a neurologist who had originally been retained and properly designated by former defendants, Rush Hospital and its employees. Plaintiff attempted to secure Dr. Preston s trial testimony through an evidentiary deposition during the week prior to trial; however, Dr. Preston ceased all communication with Mrs. Thomas s counsel after they informed counsel for Dr. Purdy of their intention to obtain Dr. Preston s expert testimony. Due to Dr. Preston s residency in Ohio, Mrs. Thomas could not obtain the necessary letters rogatory to compel Dr. Preston s appearance at a deposition or the trial of this matter prior to the trial date. During a telephonic hearing held on March 26, 2015, plaintiff presented the trial court with an affidavit of Dr. Preston s proposed testimony, showing that Dr. Preston would have testified that in is expert opinion, Mrs. Thomas did not suffer from a sciatic stretch injury. 1 A proffer of this affidavit was made and is included in the record as Trial Exhibit 12. The trial court denied plaintiff s Motion for Continuance, and the trial commenced on March 30, B. March 30, 2015 Trial During the trial, the main issue for the jury to resolve was whether Dr. Purdy breached the post-operative standard of care by failing to take remedial measures to remove the stitch placed in or near Mrs. Purdy s sciatic nerve during surgery. This ultimate question of fact further necessitated a finding that that Mrs. Thomas s sciatic nerve injury was caused by a misplaced stitch, rather than a stretch injury to the nerve while in the lithotomy position, as the cause of Mrs. Thomas s injury was highly contested. 1 Upon information and belief, this hearing was not transcribed. 5

12 In her case in chief, Mrs. Thomas s gynecological expert, Dr. David Billue, testified that, given Mrs. Thomas s extreme and lasting pain and foot drop symptoms following the surgery performed by Dr. Purdy, she was suffering from nerve entrapment due to a stitch placed in or too close to the sciatic nerve during surgery rather than a stretch injury. Dr. Billue further testified that the post-operative standard of care required Dr. Purdy to take immediate steps to ameliorate Mrs. Thomas s damaged sciatic nerve by removing the suture placed in this sciatic nerve, which would more likely than not have reversed the symptoms of pain and foot drop which Mrs. Thomas was experiencing. Dr. Billue further testified that Dr. Purdy s failure to undertake these affirmative remedial measures caused Mrs. Thomas s nerve damage to become permanent. In addition, Dr. Billue testified that, since the cause of Mrs. Thomas s sciatic nerve injury was as a result of a gynecological surgery, he, and other, expert OB/GYNs who had performed the exact type of anterior cystocele repair with Xenoform graft insertion would be better able to determine the cause of the nerve injury as well as the post-surgical care required, because these persons would have knowledge regarding what conditions may present post-surgery and the cause(s) of the same, more so than a neurological expert who had not performed this type of gynecological surgery. Dr. Billue further testified that it was extremely unlikely that Mrs. Thomas would have suffered a sciatic stretch injury while in the lithotomy position during surgery, as the procedure was relatively short, and Mrs. Thomas s extreme and lasting pain following the surgery is not symptomatic of a stretch injury, the pain of which usually resolves. Mrs. Thomas additionally put on testimony from Rush Hospital employees, Tatrina Douglas and Russell Mowry, who testified that they were involved in Mrs. Thomas s surgical placement and had had properly placed Mrs. Thomas in the lithotomy position for her surgery with Dr. Purdy and that a sciatic nerve stretch injury as a result of her being in the lithotomy 6

13 position was extremely unlikely. See Transcript R. Vol. 3 at ; Mrs. Thomas s husband, Henry, also testified as to his conversation with Dr. Purdy post-surgery, in which Dr. Purdy stated that Mrs. Thomas s pain must have been because of that last stitch. Transcript R. Vol. 3 at Plaintiff further made a proffer of the affidavit of Dr. Preston previously presented during hearing the telephonic hearing conducted on the ore tenus motion for continuance, stating that Mrs. Thomas did not suffer a sciatic stretch injury. Trial Exhibit 12. By contrast, Dr. Purdy offered testimony from himself and his expert gynecologist, Dr. Tucker, that Mrs. Thomas s post-surgical nerve injury was due to an alternate theory of causation, a sciatic nerve stretch injury due to Mrs. Thomas s pre-existing degenerative spinal changes, as diagnosed after the surgery by Mrs. Thomas s treating neurologists, dismissing the incongruent testimony of the former Rush defendants. Dr. Purdy s proof on this issue consisted solely of the inadmissible expert causation opinions of Dr. Ahmad and Dr. Malloy contained in Mrs. Thomas s medical records, which Dr. Tucker was allowed to read to the jury, from which he explained to the jury the significance of these physicians conclusions, as well as expressing to the jury his own expert opinions as to the neurological cause of Mrs. Thomas s sciatic injury. Dr. Tucker further testified that he did not believe Dr. Purdy had placed a suture in or near Mrs. Thomas s sciatic nerve during surgery, and that Dr. Purdy had not breached the standard of care during his post-operative treatment of Mrs. Thomas. On April 2, 2015, after deliberating, the jury returned a 10 to 2 defense verdict in favor of defendant Dr. Purdy. Mrs. Thomas subsequently filed a Motion for New Trial, or in the Alternative JNOV, which was denied by the trial court on April 21, 2015, prior to the response of Dr. Purdy being filed. Mrs. Thomas timely filed the instant appeal on May 1,

14 SUMMARY OF THE ARGUMENT In a pre-trial Motion to Strike, Dr. Purdy requested that the trial court prevent Mrs. Thomas's treating neurological physicians from testifying as expert witnesses at the trial of this matter. See R. Vol. VI at ; VII ; R.E. 10 (some exhibits omitted from excerpts). In response to Dr. Purdy's request, the trial court ruled that treating physicians, Dr. Ahmad and Dr. Malloy 2 would be limited to solely providing lay witness testimony as plaintiff's treating physicians under the purview of M.R.E. 701 at trial. See R. Vol. IX at 1308; R.E. 3. Regardless of this previously ordered limitation, during the trial, Dr. Purdy presented to the jury impermissible expert testimony regarding the cause of Mrs. Thomas's post-surgical injuries the most highly disputed issue in this litigation through the medical records of Dr. Ahmad and Dr. Malloy, which, in and of themselves, conveyed these doctors theories as to causation of Mrs. Thomas s injury. Dr. Ahmad and Dr. Malloy's expert neurological opinions were also conveyed to the jury by Dr. Purdy's gynecological expert witness, Dr. Tucker. Dr. Ahmad and Dr. Malloy s records state, in pertinent part, that Mrs. Thomas suffered from a stretch injury. See Trial Exhibits 4, 5, and 8. This diagnosis in and of itself conveyed the purported causation of Mrs. Thomas s injury (i.e. stretch). The causation opinions of Dr. Ahmad and Dr. Malloy set forth in plaintiff's medical records, which were admitted into evidence, 3 presented the significance of the conditions with which the treating physicians diagnosed Mrs. Thomas, in violation of Griffin v. McKenney. 877 So. 2d 425 (Miss. Ct. App. 2003). Griffin states that a lay witness treating physician may state opinions on what conditions 2 An additional treating expert, Dr. Leland Lou, was also limited; however, his testimony is not in issue in this appeal. 3 Mrs. Thomas proposed limited redactions to these medical records which would have been a step towards curing the error of allowing Dr. Ahmad and Dr. Malloy s records to convey causation opinions in and of themselves. See Trial Exhibit 7. However, the trial court allowed the unredacted records to be introduced into evidence. 8

15 the patient was suffering if the opinion was acquired during the care and treatment of the patient, but only "if no evidence was presented to the jury of the significance of the condition." 877 So.2d at (Miss. Ct. App. 2003)(emphasis added)). 4 More recently, the Mississippi Supreme Court found that a treating physician's diagnosis of her patient, when that diagnosis spoke to an ultimate issue in the case, as did the diagnosis offered by Dr. Ahmad and Dr. Malloy, was "no doubt based upon her specialized knowledge, which can only be presented under the strictures of Rule 702." Chaupette v. State, 136 So.3d 1041, 1046 (Miss. 2014). Clearly, given the trial court's order that Dr. Ahmad and Dr. Malloy be limited to testifying only as lay treating physicians under M.R.E. 701, the treating physicians expert opinions regarding the highly disputed cause of Mrs. Thomas's post-surgical sciatic injuries should not have been admitted into evidence. This admission constitutes reversible error. Further compounding the error of the trial court's admission of the causation opinions of Dr. Ahmad and Dr. Malloy was the trial court's admission of testimony from Dr. Purdy s gynecological expert, Dr. Tucker, who served as merely a conduit or puppet for the treating physicians' inadmissible expert causation opinions. Dr. Tucker, who was tendered solely as an expert in gynecology and gynecological surgery, was permitted to testify at trial that Mrs. Thomas' sciatic injury was caused by pre-existing lumbosacral degenerative changes, which predisposed her to nerve injury. See Transcript R. Vol. 4 at , 460. Dr. Tucker admittedly had no familiarity or independent basis of knowledge of the nexus between degenerative spinal changes and sciatic nerve stretch injuries; yet he was inexplicably allowed to present his "expert" opinion that stretch, and not a stitch as opined by plaintiff's expert Dr. Billue, was the cause of Mrs. Thomas's post-surgical injury. Dr. Tucker's lack of familiarity and specialized knowledge 4 Griffin was cited by the trial court in its order limiting Dr. Ahmad and Dr. Malloy to lay treating physicians. R. Vol. IX at 1308; R.E. 3. 9

16 in the field of neurology render his "expert" neurological testimony inadmissible under Mississippi jurisprudence, as well as Daubert. See, e.g. Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss. 1999)(holding that "[o]nly if the witness possesses... specialized knowledge on a particular topic will he qualify as an expert on that topic."); Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Because Dr. Tucker was in no way qualified under Daubert and its progeny to provide expert neurological testimony regarding the cause of Mrs. Thomas' injury, the trial court should have limited Dr. Tucker's testimony to only that of a gynecologist and clearly erred in allowing Dr. Tucker to present such unreliable neurological expert testimony to the jury. The trial court additionally erred in refusing to grant a continuance of the trial to secure the evidentiary deposition of material unavailable witness Dr. David Preston, despite Mrs. Thomas s showing that prejudice would result without the continuance. See Eknores-Duncan v. Rankin Medical Center, 808 So.2d 955, 959 (Miss. Ct. App. 2002). The trial court's prejudicial failure to grant the continuance, as well as its erroneous admission of highly prejudicial and unreliable expert testimony from Dr. Tucker and the medical records of Dr. Ahmad and Dr. Malloy, rise to the level of an abuse of discretion and warrant a reversal of the jury's verdict for a new trial in this matter. 10

17 ARGUMENT I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE EXPERT NEUROLOGICAL CAUSATION OPINIONS OF MRS. THOMAS'S TREATING PHYSICIANS, IN LIGHT OF THE TRIAL COURT'S PRIOR RULING THAT THESE PHYSICIANS WERE TO BE LIMITED TO TESTIFYING AS LAY WITNESSES UNDER M.R.E A. Dr. Malloy and Dr. Ahmad's expert neurological opinions as to the cause of Mrs. Thomas' post-surgical injury should not have been admitted by the trial court, as they constituted impermissible expert testimony in contradiction to the trial court's previous ruling. The standard of review for a trial court's decision to admit or exclude evidence, including expert testimony, is abuse of discretion. Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716, 721 (Miss. 2005). Appellate courts will not reverse a ruling to admit or exclude evidence by the trial court unless a substantial right of a party is adversely affected. Burnwatt v. Ear, Nose & Throat Consultants of N. Miss., 47 So.3d 109, 114 (Miss. 2010). A reversal is necessary in this case. An ultimate issue for the jury to decide in this matter was the cause of Mrs. Thomas's post-surgical nerve injuries, namely whether the injuries were caused by Dr. Purdy's impingement of the sciatic nerve by a stitch placed during surgery or whether Mrs. Thomas suffered a stretch injury during surgery while in the lithotomy position. The cause of Mrs. Thomas's nerve injuries speaks directly to the duty of care owed by Dr. Purdy to Mrs. Thomas, as even Dr. Purdy's expert, Dr. Tucker, conceded that the proper course of treatment for Mrs. Thomas's sciatic nerve injury if the same were caused by a stitch would have been to immediately remove the offending stitch. See Transcript R. Vol. 3 at 480. Plaintiff's expert, Dr. Billue, testified that Mrs. Thomas suffered an impingement to her sciatic nerve caused by a stitch during the surgery by Dr. Purdy, and that Dr. Purdy subsequently breached the standard of care owed to Mrs. Thomas by failing to take affirmative action to remove the stitch in question. In 11

18 support of Dr. Purdy's argument that he had not breached the standard of care because Mrs. Thomas had suffered a stretch nerve injury, rather than a stitch injury, Dr. Purdy offered the medical records of Mrs. Thomas's treating physicians, Dr. Ahmad and Dr. Malloy. These medical records contained inadmissible expert diagnoses and causation opinions, which were nevertheless allowed into evidence by the trial court. Immediately prior to trial, Mrs. Thomas requested that the "stretch injury" diagnoses of treating neurologists Dr. Ahmad and Dr. Malloy be redacted from Mrs. Thomas's medical records prior to being admitted into evidence, which was denied by the trial court. See R. Vol. 2, p A proffer of the proposed redactions was made. 5 See Transcript Vol. 3 at ; Trial Exhibit 9. With this ruling, Dr. Ahmad and Dr. Malloy's expert neurological causation opinions were entered into evidence in complete contravention of the trial court's previous ruling that the treating physicians' testimony was to be limited to that of lay witnesses under Rule 701 and Mississippi law. B. Dr. Ahmad and Dr. Malloy's diagnosis testimony through Mrs. Thomas's medical records far exceeds the permissible bounds of lay witness testimony. Prior to trial, and at Dr. Purdy's own request that they be stricken as experts, the trial court ruled that Mrs. Thomas's treating physicians, Dr. Ahmad and Dr. Malloy, could not testify as expert witnesses in this matter, and limited these physicians' testimony to that of lay witnesses under M.R.E See R. Vol. IX at 1308, R. Vol. VI , R. Vol. VII ; R.E. 3, 10. M.R.E. 701 establishes the admissible parameters of lay witness testimony, which states as follows: If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) 5 The proposed redactions were minimal, encompassing nine total words. See Transcript Vol. 2 at ; R.E. 11; Trial Exhibit

19 rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Miss. R. Evid. 701 (emphasis added). The Mississippi Supreme Court has previously held that "where, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a Rule 702 opinion and not a Rule 701 opinion." Griffin v. McKenney, 877 So.2d 425 (Miss. Ct. App. 2003) (quoting Sample v. State, 643 So.2d 524, (Miss. 1994)). In discussing the parameters of permissible treating physician testimony, the Mississippi Supreme Court recently stated that a treating physician may testify as a lay witness regarding the facts and circumstances surrounding the care and treatment of the patient, what the physician's records about the patient reveal, and from what conditions the patient was suffering, if the opinion was rendered during the physician's care and treatment of the patient; however, "a physician cannot testify about the significance of a patient's condition... without first being accepted as an expert." Chaupette v. State, 136 So.3d 1041, 1046 (Miss. 2014) (emphasis added). Here, Dr. Ahmad and Dr. Malloy s records conveyed opinions as to the significance of Mrs. Thomas s condition, as their records reflect their opinions as to the cause of her injury. The trial court allowed opinion testimony of Mrs. Thomas's treating neurologists into evidence via those physicians' medical records, such as Dr. Malloy's opinion that Mrs. Thomas's post-surgical foot drop and extreme pain "most likely represents a stretch injury to the sciatic nerve" which "[c]an be seen after surgery with the lithotomy position... And then is less likely due to direct involvement of the sciatic nerve by the sutures used intraoperatively." See Trial Exhibit 8 at 13

20 0097. This case presents a rare set of circumstances where the diagnosis, in and of itself, conveys causation of the injury (an ultimate issue in this case). It would be muck akin to a pathologist noting in his or her records that a victim suffered from a self-inflicted gunshot wound rather than simply a gunshot wound. The former exceeds the bounds of M.R.E. 701; the latter does not. These lay witnesses' diagnosis goes far beyond the permissible bounds of fact witness testimony and instead expresses the treating physician's expert opinion regarding the most highly contested issue in this litigation: whether Mrs. Thomas's nerve injuries were caused by an intraoperative suture placed by defendant Dr. Purdy or were caused by a stretch of the sciatic nerve. This opinion testimony is based upon Dr. Malloy's specialized knowledge as a neurosurgeon and Dr. Ahmad s as a neurologist and is thus wholly outside the acceptable scope of lay witness testimony under M.R.E In an effort to remedy the situation of the impermissible causation opinions contained in Dr. Ahmad and Dr. Malloy s records, Mrs. Thomas moved immediately prior to have nine minimal redactions made to said medical records to remove one word stretch. See Transcript R ; Trial Exhibit 9. The records as redacted would have clearly indicated that these physicians believed Mrs. Thomas suffered from an injury, even a sciatic nerve injury. However, redaction of this seven letter word stretch was required as lay treating physicians cannot express an opinion as to causation. This request was denied by the trial court and the inadmissible causation opinions of Dr. Ahmad and Dr. Malloy were allowed to be made known to the jury in a plethora of ways. In Chaupette v. State, the Mississippi Supreme Court recently found that a treating physician's diagnosis of her patient regarding the ultimate issue involved in the case (like those offered by Dr. Malloy and Dr. Ahmad in this matter) "crossed the line from fact to opinion 14

21 testimony" and constituted expert testimony, even though the physician's diagnosis was rendered during the course of treatment. Chaupette, at During a criminal trial regarding child molestation charges in Chaupette, the State called, but did not tender as an expert witness, the victim's treating physician Dr. Dupont, who testified regarding her examination of the victim as well as her diagnosis that the victim had been sexually abused. Id. Finding that the treating physician's testimony constituted expert testimony, the Court stated that "[c]learly, Dupont's diagnosis was an opinion, and, as she stated, it was based on the patient history taken, as well as Dupont's physical examination of [the victim]. Her opinion no doubt was based on her specialized knowledge, which can be presented only under the strictures of Rule 702." Chaupette, at 1046 (emphasis added). Though the Court ultimately went on to find the admission of Dr. Dupont's expert diagnosis to be harmless error because the testimony regarding her negative physical examination of the victim actually aided the defendant's defense, the diagnosis testimony of the treating physicians in this matter certainly did not aid the plaintiff's cause in this matter. In contrast, the expert opinions contained in Mrs. Thomas's medical records regarding the highly disputed cause of Mrs. Thomas's nerve injuries were extremely prejudicial to Mrs. Thomas. These opinions were presented as supporting Dr. Purdy s theory of causation. They were presented to the jury as evidence through Mrs. Thomas's medical records, without giving Mrs. Thomas the opportunity to cross-examine the treating physicians regarding their opinions, a practice which the Mississippi Supreme Court has previously found to be reversible error. See Butler v. State, 245 So.2d 605, 607 (Miss. 1971) (finding reversible error where the prosecutor presented evidence of the opinion of physicians who had examined the defendant, but did not call the physicians to testify directly, thereby depriving the appellant of his right to be confronted by these witnesses as well as his right to cross-examine them). 15

22 Dr. Ahmad and Dr. Malloy's opinions regarding the ultimate issue of the stitch vs. stretch nerve injury in this case were unequivocally based upon the physicians' specialized knowledge as a neurologist and neurosurgeon respectively, which the Court in Chaupette clearly found can only be presented under the strictures of M.R.E The trial court's admission of Dr. Ahmad and Dr. Malloy's clear expert opinion testimony regarding the highly disputed causation issue does not comport with the trial court's order that the physicians be limited to testifying as lay witnesses in accordance with M.R.E. 701, is contrary to established appellate court precedent, was unduly prejudicial to Mrs. Thomas, and constitutes reversible error such that a new trial is required in this matter. Moreover, after the trial court repeatedly denied her requests to adhere to its prior order limiting Dr. Ahmad and Dr. Malloy to lay treating physicians and in accordance with established appellate court precedent, Mrs. Thomas engaged in one final attempt to convey to the court the prejudice that had occurred and would continue to occur if the expert opinions as to causation set forth by Dr. Ahmad and Dr. Malloy were submitted to the jury. Her last clear chance to accomplish this was in the submission of her jury instructions P-11 and P-12 which were, in essence, limiting instructions advising the jury that Dr. Ahmad and Dr. Malloy were not expert witnesses in this case. 6 6 Instruction P-11, as submitted for the Court s consideration read: You are instructed that this Court has previously found that Dr. Ahmad and Dr. Malloy may not testify as expert witnesses in this matter. Their testimony is limited to that of lay treating physicians. You are not to give their opinions the same weight as you would the testifying expert witnesses. R. Vol. XVIII at Instruction P-12 was submitted as follows: You are instructed that you are to completely disregard any opinions of Dr. Ahmad and Dr. Malloy as to what caused Mrs. Thomas s injury. As lay treating physicians, they are not 16

23 These instructions were Mrs. Thomas s one final chance to convince the trial court that, pursuant to its own prior ruling limiting the testimony of Dr. Ahmad and Dr. Malloy and previous binding caselaw, no causation opinions of Dr. Ahmad and Dr. Malloy, or those of other physicians who arrived at said opinions strictly relying upon the causation opinions of Dr. Ahmad and Dr. Malloy, should be allowed. During argument regarding proposed instruction P- 11, the trial court, after Mrs. Thomas reiterated her argument regarding the limitations placed upon Dr. Ahmad and Dr. Malloy, stated as follows: [BY THE COURT]: I ve ruled that way. That may be totally wrong, but that s what I ve ruled, and I I m going to continue to rule that way. I don t think it s necessary to have the instruction. I think we ve got another instruction about experts, and you can believe or not believe whatever they say. But if you want to do it, I will give it but strike all but the first two sentences. Do you want me to give it with the just the first two sentences? [BY MS. HICKS]: Not yes, sir, but we would make it clear on the record that we do not intend to prejudice our previously stated position as to that. Transcript R. Vol. 4 at In the end, no adequate instruction was given to the jury advising them of the extent of the limitations on Dr. Ahmad and Dr. Malloy s opinions as to causation or any testimony of competent to testify as to causation. You should likewise disregard the opinions of any expert witnesses with regard to causation which were based solely on any opinions of Dr. Ahmad and Dr. Malloy as to causation. R. Vol. XVIII at The trial court then considered proposed instruction P-12, as duplicated supra, which was withdrawn by Mrs. Thomas over stated objection, given the court s ruling regarding proposed instruction P-11. The following exchange occurred documenting Mrs. Thomas s position: [BY MS. HICKS]: Well, P-12 is one of those that I said earlier would be withdrawn pending the Court s ruling, so we will withdraw P-12 reserving our right to the objections previously stated about Ahmad and Malloy s testimony. [BY THE COURT]: I ll show withdrawn over objection over stating the objection. Transcript R. Vol. 4 at

24 other experts (Dr. Tucker) arrived at relying solely upon Dr. Ahmad and Dr. Malloy s inadmissible opinions. Such an instruction clearly would not have effectively remedied the error that occurred when Dr. Ahmad and Dr. Malloy s causation opinions were conveyed to the jury. To allow the requested instructions would have been but a small piece in the ultimate puzzle of ensuring that the trial court s prior decision that Dr. Ahmad and Dr. Malloy would be limited to testifying as lay treating physicians was given effect. Contrary to the trial court s own ruling wherein Dr. Ahmad and Dr. Malloy were limited to being lay treating physicians rather than experts, it failed to limit these physicians in accordance with previous appellate court rulings regarding lay treating physicians, which constituted reversible error in and of itself. To compound the issues, the trial court declined to even give an effective limiting jury instruction as requested by Mrs. Thomas. Reversible error has occurred as a result of allowing the jury to consider, without limitation, the inadmissible causation opinions of Dr. Ahmad and Dr. Malloy and a new trial is required. II. THE TRIAL COURT ERRED IN ALLOWING GYNECOLOGICAL EXPERT DR. TUCKER TO PROVIDE EXPERT NEUROLOGICAL TESTIMONY WHICH DID NOT MEET THE DAUBERT STANDARD OF ADMISSIBILITY M.R.E. 702 governs the admissibility of expert testimony, which states that a witness may be "qualified as an expert by knowledge, skill, experience, training or education." If, and only if, the expert is properly qualified may he then testify as to the area of his alleged expertise. University of Mississippi Med. Ctr. v. Peacock, 972 So.2d 619 (Miss. Ct. App. 2006) (citing M.R.E. 702). In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court vested trial courts with gatekeeping authority over expert witnesses, setting forth the standard for assessing the admissibility of expert testimony, which was later adopted by the Mississippi Supreme Court in Mississippi Transportation Commission v. McLemore. 18

25 McLemore, 863 So.2d 31, 36 (Miss. 2003) (citing Daubert, 509 U.S. 579 (1993)). Under the Daubert standard, the trial court must engage in a two-pronged inquiry to determine whether expert testimony is 1) based on a reliable foundation, and 2) is relevant to the matter. Id. To determine the reliability of an expert's testimony, the testimony must be "grounded in the methods and procedures of science, not merely a subjective belief or unsupported speculation." Worthy v. McNair, 37 So.3d 609, 615 (Miss. 2010) (citing McLemore, 863 So. 2d at 36; Daubert, 509 U.S. at 590). The Mississippi Supreme Court has further held that an expert's qualification and reliability of testimony are separate questions." Rebelwood Apartments RP, LP v. English, 48 So.3d 483 (Miss. 2010). Mississippi law does not require that a medical expert be of the same specialty as the expert about whose treatment he offers his testimony; however, it must be shown that the proffered expert is sufficiently familiar with the subject matter about which he is testifying. See Hubbard v. Wansley, 954 So.2d 951, 957 (Miss. 2007); McDonald v. Memorial Hospital at Gulfport, 8 So.3d 175 (Miss. 2009)(emphasis added); see also Causey v. Sanders, 998 So.2d 393, 403 (Miss. 2009)("It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold of admissibility."). The Mississippi Supreme Court has stated "[o]nly if the witness possesses... specialized knowledge on a particular topic will he qualify as an expert on that topic." Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss. 1999). In addition, under Rule 703 of the Mississippi Rules of Evidence, an expert's opinion need not be based on first-hand knowledge or observations; however, the U.S. Supreme Court in Daubert found that "this relaxation of the usual requirement of firsthand knowledge... is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Daubert, 509 U.S. at 592 (emphasis added). 19

26 A. Dr. Tucker possessed no independent knowledge or expertise regarding neurology and what effect, if any, a degenerative condition or physical abnormality would have upon the occurrence of a sciatic nerve stretch injury; therefore, he was not qualified under Daubert to offer expert testimony regarding such topics In its role as the "gatekeeper" of expert testimony at the trial of this matter, the trial court found that Dr. Tucker, an expert tendered solely in the field of gynecology and gynecological surgery, was qualified to testify at trial regarding: (1) the standard of care applicable to Dr. Purdy in the performance of the surgery as well as in Ms. Thomas's post-surgical care; and (2) the nature of the pain experienced by Ms. Thomas, the nature of the problem encountered by Ms. Thomas, and the possible causes and/or contributing causes of Ms. Thomas's injury, including but not limited to Dr. Tucker's opinions as based upon his review of the medical records of Ms. Thomas's subsequent treating physicians. R. Vol. XIII at 1988 (emphasis added). The trial court's ruling that Dr. Tucker could provide expert testimony regarding possible causes of Mrs. Thomas's injury based upon his review of the medical records of Mrs. Thomas's treating physicians is significant because it allowed Dr. Tucker, a gynecologist, to testify at trial to the otherwise inadmissible neurological expert opinions regarding the causation of Mrs. Thomas's injury, based solely upon his review of medical records in a field outside of his discipline. Dr. Tucker was, based on the court's prior ruling, permitted by the trial court to testify that, in his own expert opinion as a gynecologist, the cause of Mrs. Thomas s sciatic nerve injury was not gynecological, but neurological: Q. [by Ms. Currie] In your opinion, what was the cause of Mrs. Thomas s post-surgical problems? A. [by Dr. Tucker] I feel like she suffered a sciatic stretch injury to her sciatic nerve due to the lithotomy position, and she was put at risk of that due to degenerative changes in her spine and that foraminal hole that was narrowed put her at risk of that stretch injury. 20

27 Transcript R. Vol. 4 at 460. The testimony that Dr. Tucker offered regarding degenerative changes in Mrs. Thomas's spine and her purportedly narrowed foraminal hole is unequivocally expert neurological testimony. Dr. Tucker's testimony regarding Mrs. Thomas's purportedly narrowed foraminal hole was based solely upon Dr. Ahmad's interpretation of a post-surgical CAT scan of Mrs. Thomas's lumboscaral spine, which involves an entirely different location of the body, and an entirely different system of the body than Dr. Tucker is familiar with in his practice as an OB/GYN. Transcript R. Vol. 3. at It must be emphasized that Dr. Tucker was not testifying regarding nerve damage in the surgical field of gynecology which would be within his field of expertise, as Mrs. Thomas s expert Dr. Billue did. Instead, OB/GYN Dr. Tucker offered expert testimony regarding a pre-existing condition in the discs of Mrs. Thomas's spine, which allegedly made her pre-disposed to stretch nerve injury. This testimony falls outside the field of gynecology and squarely in the field of neurology, a field in which Dr. Tucker himself admits he is not an expert. See Transcript R. Vol. 3 at 445. In finding Dr. Tucker's testimony to be admissible under Daubert, the trial court ruled that Dr. Tucker's review of the medical records of plaintiff's treating neurologist and neurosurgeon constituted a "reliable" basis on which to base Dr. Tucker's expert opinion. The trial court's ruling, however, was clearly erroneous, as under Daubert, an expert's ability to rely upon the opinions of other experts is premised on the assumption that the expert himself will have a reliable basis of knowledge in his own discipline as a foundation to build upon, which was not the case here. Further, the Mississippi Supreme Court has explicitly stated that an expert must be familiar with the subject matter about which he is testifying. See McDonald, at 181. Dr. Tucker admitted at trial that he "certainly would defer to a neurologist or neurosurgeon if I had 21

28 that expertise available." Transcript R. Vol. 3 at 445. In addition, as disclosed to the trial court in plaintiff's Third Motion in Limine and Memorandum of Law in support thereof, Dr. Tucker actually testified during his pretrial deposition that he is unfamiliar with the subject matters of stretch injury and predisposition to the same because of degenerative or anatomical conditions. R. Vol. XIV at ; ; 2219; R.E. 4, 5, 16. Clearly, Dr. Tucker is not familiar enough with the neurological subject matters upon which he was testifying for his opinions to be considered admissible under Daubert. In Worthy v. McNair, 8 a case very similar to the matter at hand, the Mississippi Supreme Court found an OB/GYN to be qualified to provide expert testimony regarding the standard of care of an OB/GYN, but unqualified to render expert testimony regarding the ultimate issue in question the causation of an infant's death. The trial court in Worthy found that the OB/GYN's testimony regarding his opinion of the cause of the infant's death veered out of the expert's field of specialty in obstetrics and gynecology and into that of pathology. The OB/GYN expert witness did not establish his expertise as a pathologist, testifying that his only experience with pathology came from his routine review of pathology reports. The trial court in Worthy found the expert OB/GYN's testimony to be unreliable under Daubert, which was affirmed by the Mississippi Supreme Court, finding that the expert's testimony regarding the cause of death of the baby "would be outside his discipline or the particular topic in which he possessed scientific, technical or specialized knowledge." Id. Like the OB/GYN in Worthy, there is no question that Dr. Tucker was duly qualified to testify to the requisite standard of care in this matter; however, also like the expert OB/GYN in Worthy, Dr. Tucker attempted to testify to expert opinions of causation encompassing the ultimate issue of the case, which was thoroughly outside his basis of 8 Worthy involved a wrongful death suit for the death of an infant, whose mother was being provided prenatal care by the defendant doctor. 22

29 knowledge. The Court in Worthy properly affirmed the trial court's finding that an OB/GYN lacked the expert knowledge to provide expert pathological opinions about causation of the ultimate issue in the case to the jury. Likewise, this Court must find that gynecological expert Dr. Tucker lacked the expert knowledge to provide expert neurological opinions about causation of the ultimate issue of causation in the case to the jury. Dr. Tucker was qualified solely as a gynecologist. Had Dr. Tucker limited himself to testimony within his field, the jury would have been given a true battle of the experts with Mrs. Thomas s gynecological expert stating that Dr. Purdy breached the requisite standard of care in his treatment of Mrs. Thomas, and Dr. Purdy s gynecological expert stating that Dr. Purdy did not breach the standard of care. However, by allowing Dr. Tucker to provide his own expert opinion as to what he deemed to be the neurological cause of Mrs. Thomas s postsurgical injury, Dr. Tucker was allowed to offer testimony far outside his field of expertise, which should not have been allowed by the trial court under the Daubert standard. Plaintiff was prejudiced by the fact that the trial court allowed gynecologist Dr. Tucker to testify, as an expert witness, about the neurological cause of Mrs. Thomas's sciatic injury, outside of his discipline and outside the bounds of reliability and admissibility set forth under Daubert. Through the trial court's failure to effectively exercise its gatekeeping authority to prevent Dr. Tucker's unreliable opinion evidence from reaching the jury, the jury was led to believe that Dr. Tucker could properly express these neurological opinions, which were irreconcilable with Dr. Billue's testimony that a stitch was the cause of Mrs. Thomas's injury. The trial court's failure to limit the testimony of Dr. Tucker to that which falls into his expertise of gynecology warrants a new trial of this matter, so that the jury will not be tainted by the unreliable "expert" neurological opinions expressed by Dr. Tucker. 23