237 So. 3d 194
Miss. Ct. App.2018Background
- On June 12, 2012, Otis Fipps underwent an EGD at Greenwood Leflore Hospital; an esophageal dilatation was performed and Fipps alleges the procedure perforated his esophagus, causing a neck abscess and additional surgeries.
- Fipps designated Dr. Myron Stokes, a board-certified general surgeon, as his expert on upper and lower gastrointestinal surgery and provided an affidavit/opinion blaming the dilatation for the injury.
- At deposition, Stokes was asked about his opinions; the Hospital moved pretrial to exclude (1) Stokes’s informed-consent testimony, (2) testimony about his licensure/discipline history, and (3) his expert opinion for lack of qualifications.
- The trial court granted all three motions, which resulted in exclusion of Stokes’s deposition (which Fipps intended to use as live testimony).
- With no other expert, Fipps rested; the trial court granted the Hospital’s Rule 41(b) dismissal because Fipps could not meet the medical-malpractice burden without admissible expert testimony.
- The Court of Appeals affirmed, concluding the trial court did not abuse its discretion in finding Stokes unqualified to testify on the gastroenterologist standard of care and that exclusion of his testimony left no triable malpractice issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Stokes was qualified to give expert testimony on the gastroenterologist standard of care | Stokes was a qualified surgeon familiar with EGDs and adequate to opine on standard of care | Stokes lacked demonstrated familiarity with gastroenterology standards and the specific dilator/technique used; thus not qualified | Court held trial court did not abuse discretion in excluding Stokes—he lacked sufficient familiarity with gastroenterology standard of care |
| Whether Stokes properly offered an informed-consent opinion | Fipps contended Stokes’s deposition elicited informed-consent opinions and they were disclosed | Hospital argued informed-consent opinions were not properly disclosed and were beyond the deposition scope | Court declined to reach merits because it affirmed exclusion of Stokes’s testimony overall |
| Whether Stokes could testify about his licensure/discipline status | Fipps argued his deposition statements about licensure/discipline were accurate at the time | Hospital argued subsequent license suspension made such testimony misleading and subject to exclusion | Court did not address on merits after affirming exclusion of the deposition testimony |
| Whether dismissal under Rule 41(b) was proper after expert exclusion | Fipps argued dismissal was improper without addressing admissibility of expert | Hospital argued Fipps could not prove malpractice without admissible expert testimony | Court held dismissal was proper because no admissible expert testimony remained to create a triable issue |
Key Cases Cited
- Worthy v. McNair, 37 So. 3d 609 (Miss. 2010) (trial court gatekeeping duty; expert opinion must have reliable basis in relevant discipline)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping principles apply to all expert testimony)
- Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993) (trial-court gatekeeping role for expert reliability)
- Hubbard v. Wansley, 954 So. 2d 951 (Miss. 2007) (abuse-of-discretion review of expert-qualification rulings)
- Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141 (Miss. 2007) (trial courts have wide discretion in medical-expert cases)
- McDaniel v. Pidikiti, 39 So. 3d 952 (Miss. Ct. App. 2009) (expert need not be same specialty but must have satisfactory familiarity)
- Poole ex rel. Poole v. Avara, 908 So. 2d 716 (Miss. 2005) (expert must exercise intellectual rigor of relevant field)
- Burnwatt v. Ear, Nose & Throat Consultants of N. Miss., 47 So. 3d 109 (Miss. 2010) (abuse-of-discretion standard for admissibility of evidence)