Richardson, et al. v. DeRouen, et al.
| Docket Number: | 2004-CA-01265-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-31-2006 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Weight of evidence - Admission of hearsay - M.R.E. 803(24) and 804 (b)(5) - Present sense impression - M.R.E. 803(1) - Newly discovered evidence Judge(s) Concurring: KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Non Participating Judge(s): SOUTHWICK AND ROBERTS, JJ. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 04-20-2004 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: Mike Smith Disposition: JURY VERDICT IN FAVOR OF DEFENDANTS. Case Number: 02-008-B |
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| Party Name: | Attorney Name: | |||
| Appellant: | JUDITH DAVIS RICHARDSON, ON BEHALF OF
THE WRONGFUL DEATH HEIRS OF MARK
SHELTON RICHARDSON, DECEASED |
T. MACK BRABHAM |
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| Appellee: | LENNIS DEROUEN, M.D., AND STATCARE, PLLC | STEPHANIE GEE BEAVER, DIANE V. PRADAT |
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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: | Medical malpractice - Weight of evidence - Admission of hearsay - M.R.E. 803(24) and 804 (b)(5) - Present sense impression - M.R.E. 803(1) - Newly discovered evidence |
| Summary of the Facts: | Judith Richardson filed a medical malpractice suit, on behalf of the wrongful death heirs of Mark Shelton Richardson, deceased, against Lennis DeRouen, M.D. and Statcare, P.L.L.C. The jury returned a verdict in favor of the defendants, and Richardson appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Richardson argues that the jury’s verdict should be reversed because DeRouen’s testimony was false, impeached, improbable and contrived for purposes of trial. Which witnesses to believe is a factual dispute as to what the jury should believe, which is decided by the jury. There was no reason for the jury not to believe that DeRouen was telling the truth that DeRouen referred Richardson to a cardiologist. Issue 2: Admission of testimony Richardson argues that the court erred in not allowing hearsay statements made by Mark Richardson, the deceased, to his mother, into evidence and in not allowing Richardson’s counsel to cross-examine DeRouen’s expert regarding Mark Richardson’s statements. Under M.R.E. 803(24) and 804 (b)(5), there are five requirements for admission: trustworthiness, materiality, probative value, interests of justice and notice. The treatment that DeRouen provided to Richardson is located in the medical records which were introduced into evidence. Also, since this is the party to whom the deceased made the statement, there is a lack of trustworthiness. These statements would not fall under the hearsay exceptions of 803(24) and 804(b)(5). Richardson also argues that these statements should have been admitted under Rule 803(1) as a present sense impression. The conversation Richardson wished to testify to did not happen on the same day Mark visited DeRouen. Therefore, this statement would not fall under Rule 803(1), because the statement was not made while Mark Richardson was perceiving the event or immediately thereafter. With regard to the expert’s testimony, he testified that he had read the depositions of Judith Richardson and Kim Russell, Mark’s girlfriend. It is error to admit hearsay evidence unless the statements were used to explain the expert’s opinion. The statements made to Kim Russell and Judith Richardson by Mark Richardson were not used to explain the expert’s opinion, because the statements made by Mark simply were explaining the treatment he received from DeRouen which could easily be found already admitted into evidence in the medical records. Issue 3: Newly discovered evidence Richardson argues that Speckin Forensic Laboratory’s data concerning Mark Richardson’s medical records qualifies as new evidence; therefore, Richardson’s M.R.C.P. 60 motion should have been granted. After Richardson lost at trial, she sent the medical records to be examined for alterations. Richardson had access to send these records before the trial; therefore, this is not newly discovered evidence. |
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