189 So. 3d 1247
Miss. Ct. App.2016Background
- In December 2010, 8-year-old Anthony (Tony) Glover received a compounded cantharidin preparation after Dr. John Brooks (an EMA physician) prescribed "Verr-Canth"; application caused second-degree chemical burns over ~16% of his body.
- Tony was treated at Baptist, transferred to UMMC and a burn center; follow-up care continued through May 11, 2011.
- Anita Glover sued Dr. Brooks and Emergency Medicine Associates of Jackson (EMA) for medical malpractice; Marty’s Pharmacy (the compounder) was assigned 25% fault by the jury but was dismissed before trial.
- Jury awarded $1,500,000 noneconomic and $1,500,000 economic damages; apportioned 75% to Brooks/EMA and 25% to Marty’s; trial court reduced economic damages proportionally and later applied a statutory noneconomic cap.
- On appeal the court found reversible error primarily because the trial court denied defendants’ motions to compel an independent medical examination (IME), admitted unreliable expert testimony on permanent injury, and erred in denying a superseding-cause instruction; it also held the economic-damages award lacked evidentiary support and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for independent medical exam (Rule 35) | Glover relied on treating records and experts; IME unnecessary | Brooks/EMA: Tony’s permanent impairment was contested; treating physician admitted lack of information past six months — good cause for IME | Reversed: trial court abused discretion by denying IME; remand for new trial and order allowing IME |
| Admissibility of treating physician’s expert opinion (permanent impairment) | Treating physician qualified and opinions based on exams, photos, experience | Brooks/EMA: Dr. Lineaweaver lacked examination/records through point of maximum improvement; opinions speculative | Partially reversed: trial court abused discretion in admitting opinions about permanent impairment beyond physician’s record/exam; testimony unreliable as to permanence |
| Sufficiency of economic damages evidence | Glover: expert lost‑earnings and vocational testimony supported award | Brooks/EMA: only $112,499 in proven medical expenses; future-loss opinions rest on unreliable impairment evidence | Reversed as to excessive economic award: only $112,499 medical damages supported by undisputed evidence (trial to address on remand) |
| Superseding-cause jury instruction (pharmacy conduct) | Given proximate-cause instructions sufficiently covered issues | Brooks/EMA: pharmacy’s compounding/labeling was an independent, superseding cause entitling defendants to specific instruction | Reversed: trial court erred in refusing a superseding-cause instruction because proximate-cause instructions did not adequately present that theory |
Key Cases Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. 1964) (Rule 35 “in controversy” and “good cause” require affirmative showing; pleadings alone may suffice in negligence cases)
- Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So.3d 474 (Miss. 2010) (Mississippi appellate review of trial court’s denial of IME; denial not an abuse where record limited)
- Eaton Corp. v. Frisby, 133 So.3d 735 (Miss. 2013) (abuse-of-discretion standard for discovery rulings)
- Worthy v. McNair, 37 So.3d 609 (Miss. 2010) (expert admissibility requires reliability and relevance under Rule 702)
- Bullock v. Lott, 964 So.2d 1119 (Miss. 2007) (trial court abused discretion admitting expert conclusions unsupported by sufficient facts/data)
- Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So.2d 43 (Miss. 1998) (Restatement factors for analyzing superseding/intervening cause)