Bullock v. Lott


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Docket Number: 2005-CA-01613-SCT
Oral Argument: 05-16-2007
 

 

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Supreme Court: Opinion Link
Opinion Date: 09-13-2007
Opinion Author: CARLSON, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Wrongful death - Venue - Section 11-11-3 - Expert testimony - M.R.E. 702 - Learned treatises exception - M.R.E. 803(18)
Judge(s) Concurring: SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ.
Concur in Part, Dissent in Part 1: Graves, J., Concurs in Part and Dissents in Part With Separate Written Opinion.
Concur in Part, Dissent in Part Joined By 1: Diaz, P.J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 08-02-2005
Appealed from: Covington County Circuit Court
Judge: Robert G. Evans
Disposition: Unanimous jury verdict in favor of Appellee. Trial court judge granted Appellee's Motion for Additur & Appellant's Motion for a new trial but only on the issue of damages.
Case Number: 2002-264C

  Party Name: Attorney Name:  
Appellant: RONALD A. BULLOCK, M.D.




J. ROBERT RAMSAY AMANDA CLEARMAN WADDELL



 

Appellee: W. L. LOTT AND LAURA LOTT, INDIVIDUALLY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES, AS PARENTS OF DUSTIN LOTT, A DECEASED MINOR NORMAN WILLIAM PAULI, JR. RAY T. PRICE  

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Topic: Wrongful death - Venue - Section 11-11-3 - Expert testimony - M.R.E. 702 - Learned treatises exception - M.R.E. 803(18)

Summary of the Facts: W. L. Lott and Laura Lott, the parents of Dustin Lott, filed a wrongful death and medical malpractice action against Ronald Bullock, M.D., alleging that Dustin Lott died as a result of Dr. Bullock’s negligent failure to provide adequate medical care. Dr. Bullock filed a motion for change of venue alleging that venue was proper in Forrest County, where the treatment of Dustin occurred, as opposed to Covington County, where Dustin died. The court denied the motion. The jury returned a unanimous verdict for the Lotts in the amount of $400,000, and the trial court entered a judgment consistent with the jury verdict. The Lotts filed a Motion for Additur and, in the Alternative, a Motion for a New Trial on the Issue of Damages Only. The trial court entered an order granting an additur in the amount of $250,000. The trial court also alternatively ordered a new trial on the issue of damages only (if the additur was not accepted). Dr. Bullock appeals.

Summary of Opinion Analysis: Issue 1: Venue Dr. Bullock resides and practices medicine in Forrest County, and he provided treatment to Dustin Lott in Forrest County. Likewise, Dr. Massey, who initially was joined with Dr. Bullock when the Lotts filed suit, resides and practices medicine in Lamar County and provided treatment to Dustin Lott in Lamar County. Dr. Bullock argues that venue is proper only in Forrest County or Lamar County, the counties where the alleged negligence occurred. When determining permissible venues with regard to a wrongful-death cause of action filed before January 1, 2003, section 11-11-3 requires the court to look to where the cause of action occurred or accrued. In a wrongful death case, the cause of action does not accrue until the death of the negligently injured person. In this case, venue would be proper in Covington County, the county of death, and Forrest County or Lamar County, the counties where negligence allegedly happened. Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no factual basis for the claim of venue. Therefore, the trial court was correct in denying Dr. Bullock’s motion to change venue. Issue 2: Expert testimony Dr. Bullock argues that an expert’s opinions were based on a post-mortem report performed by Dr. Steven Hayne, wherein Dr. Hayne opined that the visual gross examination of the frontal sinuses reveals a suggestion of acute sinusitis with vascular congestion and lists findings suggestive of sinusitis as the underlying cause of death. Therefore, Dr. Bullock argues that the foundation of the expert’s testimony is unreliable because it is expressed in terms of a medical possibility rather than a medical probability. Dr. Bullock also argues that the expert was not qualified to render opinions solely within the purview of a neurosurgeon, radiologist or pathologist when testifying to the gold standard of care in this wrongful death/medical malpractice case. Under M.R.E. 702, the expert’s testimony must be based upon sufficient facts or data; the testimony must be the product of reliable principles and methods; and the expert must have applied the principles and methods reliability to the facts of the particular case. The trial judge acted well within his discretion by accepting the witness as an expert in family practice and urgent care medicine to offer opinion testimony in this case. The expert had been licensed to practice medicine in Mississippi for approximately eighteen years, as well as being a registered pharmacist. The expert was a member of the American Medical Association, Mississippi State Medical Association; and American Academy of Urgent Care. He had ordered multiple CT scans, had communicated with radiologists who perform the CT scans and understood the findings of CT scans. He was capable of reading post mortem reports. Additionally, he was familiar with sinusitis and brain infections, along with the standard of care applicable when a family practice medical doctor should order a CT scan to rule out a central nervous system infection, such as a brain infection. However, portions of the expert’s testimony were not based on sufficient facts or data. Many of the “facts” relied on by the expert are simply not in the record. Therefore, the trial judge did abuse his discretion in allowing the expert to testify to facts not supported by the evidence. Issue 3: Learned treatises exception The trial court allowed cross-examination by the plaintiffs’ counsel using articles an encyclopedia summary page printed from the University of Maryland Medical Center website on May 15, 2005, and a chapter from the textbook Primary Care Medicine by Nobles, based on the learned treatises hearsay exception. Dr. Bullock argues that plaintiffs’ counsel failed to properly authenticate said articles as reliable authorities as required under M.R.E. 803(18). Under Rule 803(18), cross-examination of an expert witness with published medical articles is permitted only if such articles can be established as a reliable authority by the testimony of the witness; by other expert testimony; or the court takes judicial notice. Because the encyclopedia summary and textbook were not established as reliable authorities by the witnesses, the plaintiffs did not offer an expert to establish either article’s authority, and the trial court did not take judicial notice of either article’s authority, plaintiffs’ counsel should have been prohibited from using the articles during cross-examination of expert witnesses.


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