Barrow v. May
| Docket Number: | 2010-CA-01504-COA Linked Case(s): 2010-CA-01504-COA ; 2010-CT-01504-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Expert testimony - M.R.E. 702 - Hearing on Daubert motion - Admission of evidence Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Carlton, Maxwell and Fair, JJ. Dissenting Author : Russell, J. Dissent Joined By : Irving, P.J. Procedural History: Directed Verdict Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-09-2010 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: DIRECTED VERDICT GRANTED IN FAVOR OF APPELLEE Case Number: 251-07-1212CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mary Barrow, Individually and for the Benefit of the Wrongful Death Heirs of Latisha Barrow and the Estate of Latisha Barrow, By and Through Mary Barrow, Administratrix |
WILLIAM W. FULGHAM |
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| Appellee: | Reul May, Jr., D.D.S. | JOHN A. BANAHAN JESSICA B. MCNEEL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Expert testimony - M.R.E. 702 - Hearing on Daubert motion - Admission of evidence |
| Summary of the Facts: | Mary Barrow, the mother and legal representative for Latisha Barrow, brought an action on behalf of herself, the heirs of Latisha, and Latisha’s estate, against UMMC, Dr. Moore, and Dr. Reul May Jr., an oral surgeon. Claims against UMMC and Dr. Moore are not at issue in this appeal since both UMMC and Dr. Moore entered into a settlement with Barrow a few days before trial. The circuit court ultimately granted a directed verdict in favor of Dr. May finding that the testimony of Barrow’s expert was too speculative and that Barrow had failed to establish causation. Barrow appeals. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony Barrow argues that the circuit court abused its discretion by determining that her expert’s testimony as to causation was too speculative and granting Dr. May’s Daubert motion. According to Barrow, the expert was fully qualified as an expert witness, and his testimony and opinions were supported by sound medical literature. The essence of the expert’s testimony at trial was that the stress of the anticipation of the surgery and the surgery itself produced a surge of adrenaline in Latisha’s body and that according to the accepted medical literature, this surge of adrenaline sent Latisha into a “lethal vicious circle” that ultimately led to her death. According to the expert, the stress of the surgery, the surgery itself, and the resulting surge of adrenaline resulted in either acute cardiac failure or an arrhythmia. However, on cross-examination, Dr. May asked the following question: “And you have no idea as we sit here today whether [Latisha] had a fatal arrhythmia or just a pump failure.” And the expert responded: “That’s – that’s correct.” Under Daubert and M.R.E. 702, a two-prong inquiry is provided for a trial judge to determine if an expert witness’s testimony is admissible: whether the expert opinion is relevant in that it must assist the trier of fact and whether the proffered opinion is reliable. As the circuit judge stated, the expert’s testimony did not fully consider all the stressors on Latisha that day. The expert was specifically unaware that Latisha had met with a recent heart-transplant recipient before her oral surgery to discuss all aspects of the transplantation process. Latisha also discussed the implantation of an ICD and the seriousness of her condition with her cardiac electrophysiologist that same day. Additionally, Latisha signed a document consenting to the procedure which stated that the administration of any anesthesia or sedation involves certain risks. Ultimately, the circuit court did not abuse its discretion in finding the expert’s testimony was too speculative to assist the jury in determining causation. Issue 2: Abuse of discretion Barrow argues that the circuit court abused its discretion by hearing a Daubert motion filed on the eve of trial. While it is the prudent practice to bring a Daubert motion prior to trial, that is not the exclusive means of mounting challenges to such expert testimony. Therefore, the circuit judge did not abuse his discretion in allowing Dr. May’s Daubert motion so close to trial. Barrow argues that the circuit judge erred in not allowing into evidence additional medical literature to support her expert’s testimony after the trial began. Because Barrow cites no relevant authority to support this contention, this issue will not be addressed. Barrow argues that the circuit judge erred in sustaining Dr. May’s objection to her expert’s testimony based on an objection to “artificial medical titles” even though the expert was fully qualified to testify as to the issues. Barrow was seeking the expert’s opinion as to the care an oral surgery patient with CHF would receive in a hospital setting. As the expert was a cardiologist and not an oral surgeon or anesthesiologist, expressing such an opinion was outside of his knowledge and training, and there was no abuse of discretion. |
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