Yager v. Dunn


<- Return to Search Results


Docket Number: 2004-IA-01833-SCT
Linked Case(s): 2004-IA-01833-SCT2004-IA-01833-SCT

Supreme Court: Opinion Link
Opinion Date: 04-14-2011
Opinion Author: Randolph, J.
Holding: DA-Affirmed; CA-Affirmed.

Additional Case Information: Topic: Medical malpractice - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Closing argument - Miss. Const. art. 3, § 25 & 26 - Motion to substitute expert - Video deposition - Settlement evidence - M.R.E. 408 - Jury instructions - Admission of excerpts
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 09-02-2004
Appealed from: Jackson County Circuit Court
Judge: Robert P. Krebs
Disposition: In January 2009, following a twenty-day trial, the jury found in favor of Dr. Yager.
Case Number: CI-96-0124(3)
  Consolidated: 2009-CA-00599-SCT Sharon W. Dunn v. Dr. John G. Yager, M. D.; Jackson Circuit Court; LC Case #: CI-96-0124; Ruling Date: 01/13/2009; Ruling Judge: Robert P. Krebs

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: John G. Yager, M.D.




GREGG LINDSEY SPYRIDON PHILIP GIPSON SMITH



 

Appellee: Sharon W. Dunn BRETT K. WILLIAMS KEVIN M. MELCHI RICHARD WILLIAM FRANKLIN  

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.

Topic: Medical malpractice - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Closing argument - Miss. Const. art. 3, § 25 & 26 - Motion to substitute expert - Video deposition - Settlement evidence - M.R.E. 408 - Jury instructions - Admission of excerpts

Summary of the Facts: Sharon Dunn claimed severe back and leg pain caused by a work-related forklift accident. After obtaining no relief following sixteen months of treatment from other physicians, Dunn was referred to John G. Yager, M.D., a board-certified neurologist practicing in Mobile, Alabama, with the Neurology Center. Dr. Yager prescribed Tegretol to Dunn. Dunn experienced an adverse reaction, which rapidly worsened over the next two days. Subsequently, she was diagnosed as having Stevens-Johnson Syndrome. As a result of the SJS, Dunn is now blind, along with other physical problems. Dunn filed suit in the Circuit Court of Jackson County, against multiple defendants, including Dr. Yager. Following the dismissal of all other defendants by virtue of settlement, bankruptcy, or summary judgment, Dr. Yager is the lone remaining defendant. The jury found in favor of Dr. Yager. Dunn appeals, and Dr. Yager cross-appeals.

Summary of Opinion Analysis: Issue 1: Personal jurisdiction Dr. Yager filed a “Motion for Summary Judgment for Lack of Personal Jurisdiction.” Dr. Yager’s affidavit, attached to the motion, provided that he was licensed to practice in Alabama, practiced exclusively in Alabama, and had never practiced medicine in Mississippi. The affidavit asserted that Dr. Yager does not “solicit business” in Mississippi “through any means[;]” has never lived, or owned real or personal property, in Mississippi; and “do[es] not retain anyone as an agent in any capacity” in Mississippi. According to Dr. Yager, his only contact with Dunn occurred in Alabama, following her referral by Dr. Fondren. As such, Dr. Yager asserted that he had not “purposefully availed [him]self of the Mississippi courts.” However, Dr. Yager’s “Supplemental Responses to Interrogatories,” reveals he accepted health insurance payments from insurers who “may insure residents from states other than Alabama, and which may include Mississippi.” The record reveals that Dr. Yager was a participating member of preferred-provider organizations servicing Mississippi residents. The affidavit of Melzana Fuller, the “Bureau Director for Provider and Beneficiary Relations” for the Mississippi Division of Medicaid, stated that from January 16, 1989, through August 31, 1995, “Medicaid provider files [were] established and maintained for” Dr. Yager. Thus, Dr. Yager’s averment that he was “not doing business” in Mississippi is dubious at best, given his involvement not only with health-care providers and insurers, but also the government of Mississippi. The proper order when analyzing personal jurisdiction over non-resident defendants is to first consider whether the long-arm statute, section 13-3-57, subjects a nonresident defendant to personal jurisdiction and then to consider whether the statute’s application to that defendant offends the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. There are three activities which will permit Mississippi courts to exercise personal jurisdiction over a nonresident defendant: if that person has entered into a contract to be performed in Mississippi; has committed a tort in Mississippi; or, is conducting business in Mississippi. In this case, the tort prong is dispositive. A tort is committed in Mississippi when the injury results in this State. Dunn’s actual injury, not the mere consequences thereof, occurred in Mississippi. Dunn filled the prescription in Mississippi, consumed the prescription drugs in Mississippi, and the effects of her injury were suffered in Mississippi. Dr. Yager had systematic and continuous contacts with Mississippi. Therefore, the circuit court properly concluded that sufficient minimum contacts existed with Mississippi to exercise personal jurisdiction over Dr. Yager. Nothing in the record suggests this trial was an inefficient method of resolving this dispute or that it imposed an undue burden to have Dr. Yager defend the suit in Mississippi. Issue 2: Closing argument Miss. Const. art. 3, § 26 entitles a criminal defendant to personally argue his case to the jury and refusal to allow him to do so is reversible error. Miss. Const. art. 3, § 25 provides that in civil actions, no person shall be debarred from prosecuting for him or herself, before any tribunal in the state, by him or herself, or counsel, or both. The Court has never spoken to whether this constitutional provision guarantees a civil litigant the right to address the jury in closing argument. Dunn argues that Article 3, Section 25 is nearly identical to Article 3, Section 26; therefore, it was designed to ensure a party’s right to counsel and to proceed pro se jointly just as if Dunn was a criminal defendant. According to Dr. Yager, Dunn was attempting to circumvent further cross-examination by testifying to the jury in closing arguments. The plain language of Article 3, Section 25 lends itself to permitting a civil litigant, his or her counsel, or both, not only from commencing the legal action, but also bringing it to completion. Therefore, although Dunn was constitutionally entitled to participate in closing argument, the untimeliness and method by which Dunn sought to participate was impermissible. Despite years of opportunity, Dunn never timely sought to exercise her right to participate as her own counsel. Dunn notified the circuit court of her desire to act as her own counsel, jointly with retained counsel, only when retained counsel neared the end of Dunn’s rebuttal argument. Dunn was entitled to participate in her closing argument, provided that she complied with the same rules applicable to her lawyer. During closing argument, rebuttal is strictly limited to providing a response to issues addressed in the defendant’s closing argument. However, when announcing Dunn’s intention to personally participate, her attorney declared that she would “repeat” her testimony, not rebut arguments made by the defendant. Should a civil litigant desire to act as her own counsel and participate in the proceedings, there must first be timely notice to the court and the opposing party of such intention. Such timely notice may be evidenced by an entry of appearance, motion, or inclusion in a case-management or pre-trial order. Thereafter, the pro se litigant must follow the procedure and courtroom protocol required of counsel in every other case. Issue 3: Motion to substitute expert Dunn provided a timely “Expert Designation” as to Dr. John Olson, a neurologist licensed to practice in Louisiana. After the “Case Management Order” deadline expired, Dunn filed “Expert Rebuttal Designations” which included Dr. Stanley Malkin, a board-certified neurologist. According to Dunn, only after designating Dr. Olson as an expert did she further investigate Dr. Olson’s qualifications, and she asserted that the designations of both Drs. Olson and Malkin were virtually identical. Dunn now argues that she was prejudiced by the circuit court’s refusal to allow her to designate another neurology expert, Dr. Malkin. Dr. Olson had been involved in this case for six years prior to his designation as an expert in August 2004. This provided ample time for Dunn to investigate Dr. Olson’s background and qualifications. Moreover, Dunn’s attempted designation of Dr. Malkin, a designation that she admits was “virtually identical” to that of Dr. Olson, occurred more than fifty days after the deadline for expert designation imposed by the “Case Management Order.” There is an obligation to timely comply with the orders of our trial courts, and parties who violate such orders do so at their own peril. Issue 4: Video deposition Following the death of a designated expert witness, Dr. Yager filed a “Motion to Substitute Expert Witness” which was granted. Dr. Yager selected Dr. Harry Gould, a board-certified neurologist, as his substitute expert witness. Dr. Yager then used Dr. Gould’s deposition testimony in support of his “Second Motion for Partial Summary Judgment and Itemization of Undisputed Facts” and his “Opposition to Plaintiff’s Second Motion for Partial Summary Judgment.” However, Dr. Gould was not used as a witness at trial. During cross-examination of Dr. Yager, Dunn proffered excerpts of Dr. Gould’s deposition testimony. Reference to an expert witness’ prior affiliation with a party is highly prejudicial. Counsel for Dunn was placed on notice that Dr. Yager would not be calling Dr. Gould at trial. Nonetheless, counsel for Dunn opted to refer to Dr. Gould as Dr. Yager’s expert on three separate occasions when examining him as an adverse witness. In light of these references, and the circuit judge’s observation that the jurors had been “taking copious notes[,]” the circuit court did not abuse its discretion in excluding Dr. Gould’s deposition testimony as highly prejudicial. Counsel for Dunn’s prejudicial references to Dr. Gould as Dr. Yager’s “own expert” and “the expert that you hired” supported exclusion. Issue 5: Settlement evidence M.R.E. 408 provides that evidence of accepting a valuable consideration in compromising a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Moreover, to inform a jury of the amount of a settlement prior to its returning a verdict for a joint tortfeasor or co-defendant would certainly unnecessarily influence a jury in its decision. This problem is easily prevented by use of the procedure wherein the jury is informed of the existence of a settlement but not the amount of settlement. As that procedure is precisely what the circuit court performed in this case, there was no error. Issue 6: Jury instructions The doctrine of informed consent represents the application to medical practice of principles of tort law. Thus, when a lack of informed consent is claimed, the plaintiff has the burden to prove by a preponderance each element of the prima facie case: duty, breach of duty, proximate causation, and injury. When a physician-patient relationship exists, the physician owes the patient a duty to inform and obtain consent with regard to the proposed treatment. The physician must disclose only material known risks. A known risk is one which would be known to a careful, skillful, diligent and prudent practitioner or specialist. If a known risk is found to be material, and was not disclosed to the patient, then the question of causation must be addressed. According to Dunn, Instruction P-8A “accurately reflects Mississippi’s law on informed consent[,]” but is in “direc[t] conflict” with Instructions D-10 and D-30. Dunn maintains that Instructions D-10 and D-30 “incorrectly instruct the jury that in order to obtain [Dunn’s] informed consent, a doctor does not have to disclose all of the material risks associated with prescribing Tegretol, only those risks which are routinely disclosed by doctors of similar training under the same or similar circumstances[,]” and “improperly suggested to the jury that [SJS] was the only potential material risk upon which [Dunn] could have declined treatment with Tegretol for her back and leg pain.” Dunn argues further that Instructions D-8A, D-14, D-18, D-27, and D-33 “prematurely absolve Dr. Yager from informed consent liability in the event no negligence is found” by “improperly instruct[ing] the jury that [upon] a finding that Dr. Yager’s actions met the standard of care for a ‘similarly trained’ doctor that he was absolved of all liability, including informed consent, which does not depend on the applicable standard of care, but rather disclosure of all material risks.” Jury Instructions D-10 and D-30, viewed within the context of the jury instructions as a whole, properly state the law on informed consent. Jury Instruction D-30 provides that Dunn must prove materiality of the risk through expert testimony establishing that “the risk is one which a reasonable medical practitioner of like training to Dr. Yager would disclose under the same or similar circumstances.” Jury Instruction D-10 further states that the risk must be “material to a prudent patient in determining whether or not to undergo this particular treatment . . . .” Jury Instruction D-30 then addresses causation, providing that the “reasonably prudent patient, fully advised of the material known risks, would have withheld consent . . . .” Jury Instruction P-8A adds that the causation inquiry also must include a finding that Dunn’s injuries “were more likely than not caused by Tegretol.” Issue 7: Excerpts At trial, Dunn sought to introduce an excerpt from the 2009 PDR regarding carbamezapine. Dr. Yager responded that the 2009 PDR was inadmissible as “we’re talking about Tegretol and its association with [SJS] in . . . ’95.” The circuit court agreed with Dr. Yager, and Dunn argues this was error. The issue presented at trial was the sufficiency of Dr. Yager’s disclosure in 1995. The expanded “black-box warning” fourteen years later, in 2009, has no relevance to that issue.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court