188 So. 3d 560
Miss.2016Background
- Regina Corr underwent a C-section in July 1998 performed by Dr. Charles Robinson; a uterine laceration was repaired intraoperatively and an IVP the next day showed partial obstruction of the left ureter.
- A urologist discovered the left ureter had been sutured; nephrostomy tube and later ureteral stents were placed; Corr recovered by mid‑1999 and sued for malpractice in 2000.
- At deposition Dr. Robinson consistently denied suturing the ureter; on the day of trial defense counsel first asserted the tissue was friable and intraoperative bleeding risk justified not attempting suture removal.
- Trial court excluded Dr. Robinson’s proffered testimony that, had he known, he would not have removed the stitch because that opinion was undisclosed, hindsight, speculative, and crossed into expert territory.
- Plaintiff’s expert (Dr. Duboe) testified at deposition that Corr’s hemoglobin levels did not support a ~900 cc blood loss; defense objected as outside designation but court admitted it as responsive and opened by defense questioning.
- Jury awarded $55,634.78 (medical expenses), $8,507.20 (lost wages), and $420,000 (pain and suffering). Trial court denied JNOV/remittitur; Supreme Court of Mississippi affirmed.
Issues
| Issue | Plaintiff's Argument (Corr) | Defendant's Argument (Robinson) | Held |
|---|---|---|---|
| Whether trial court abused discretion in excluding Robinson’s testimony that he would not have removed a ureteral stitch due to friable tissue/bleeding | Trial court properly excluded undisclosed expert hindsight opinion; Corr argued it was undisclosed and speculative | Robinson argued the testimony was lay/factual about his thought process and was disclosed in his expert designation | Exclusion affirmed: opinion was post‑hoc expert testimony not meaningfully disclosed and properly excluded as unfair surprise |
| Whether plaintiff’s expert testimony about hemoglobin/overestimated blood loss was admissible despite not being in expert designation | Corr argued defense opened the door by questioning blood loss; testimony was responsive and within OB/GYN expertise | Robinson argued the hemoglobin opinion was undisclosed expert testimony and should be excluded | Admission affirmed: court did not abuse discretion because testimony was responsive to defense questioning and within expert’s scope |
| Whether remittitur required because pain-and-suffering award was excessive relative to specials | Corr argued testimony supported jury award for lengthy, painful, embarrassing treatment and care burdens | Robinson argued award grossly disproportionate to special damages and indicated bias/passion | Remittitur denied: jury award not so excessive as to shock conscience given testimony; 420K upheld |
| Preservation/procedural issue: whether Corr should have moved to compel fuller expert disclosure before trial | Corr argued designation was not facially deficient and defense ambushed with a new theory at trial | Robinson argued Corr should have sought court order compelling fuller disclosure per discovery rules | Court rejected defense procedural bar: designation not plainly deficient and opening statements created the surprise; issue not forfeited |
Key Cases Cited
- Scafidel v. Crawford, 486 So. 2d 370 (Miss. 1986) (treating physician may testify to facts and observations acquired during care without becoming an expert on collateral issues)
- Griffin v. McKenney, 877 So. 2d 425 (Miss. Ct. App. 2003) (limits on treating physician’s lay testimony where it strays into technical expert opinion)
- Foster v. Noel, 715 So. 2d 174 (Miss. 1998) (expert testimony rules and limits on undisclosed opinions)
- Warren v. Sandoz Pharm. Corp., 783 So. 2d 735 (Miss. Ct. App. 2000) (party must seek court relief when expert disclosures are evasive before sanctions)
- Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003) (abuse-of-discretion standard for evidentiary rulings)
- Entergy Miss., Inc. v. Bolden, 854 So. 2d 1051 (Miss. 2003) (remittitur appropriate where damages for pain and suffering are unsupported and grossly excessive)
- Nichols v. Tubb, 609 So. 2d 377 (Miss. 1992) (expert disclosures must meaningfully state substance of opinions to avoid surprise)