Buskirk v. Elliott


<- Return to Search Results


Docket Number: 2001-CA-01509-SCT
Linked Case(s): 2001-CA-01509-SCT

Supreme Court: Opinion Link
Opinion Date: 08-07-2003
Opinion Author: Pittman, C.J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Discovery violation - Expert testimony - Sufficiency of evidence
Judge(s) Concurring: Smith, P.J., Waller, Cobb and Carlson, JJ.
Non Participating Judge(s): McRae, P.J., and Diaz, J.
Dissenting Author : Easley and Graves, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 08-03-2001
Appealed from: Lee County Circuit Court
Judge: Thomas J. Gardner
Disposition: After a jury verdict in favor of the Appellee, the trial court denied motions for a directed verdict, judgment notwithstanding the verdict, and new trial, and the beneficiaries now appeal.
Case Number: 94-153(G)L

  Party Name: Attorney Name:  
Appellant: Frances Buskirk, Ronny Van Buskirk and Mike Van Buskirk on Behalf of the Wrongful Death Heirs of J.C. Buskirk, Deceased




GRADY F. TOLLISON, JR. BARBARA MILLER DOLLARHIDE LEROY DAVIS PERCY JOSEPH E. ROBERTS, JR.



 

Appellee: John P. Elliott, M.D. S. DUKE GOZA DION JEFFERY SHANLEY SHELBY KIRK MILAM  

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 - Discovery violation - Expert testimony - Sufficiency of evidence

Summary of the Facts: J.C. Buskirk's wrongful death beneficiaries, Frances Buskirk, Ronny Van Buskirk, and Mike Van Buskirk, filed a wrongful death suit against Dr. John P. Elliott, Dr. Benton Hilbun, and the North Mississippi Medical Center. Dr. Hilbun was dismissed by summary judgment. North Mississippi Medical Center was dismissed with prejudice by agreed stipulation. The trial proceeded against Dr. Elliott alone. The jury returned a verdict in favor of Dr. Elliott, and the beneficiaries appeal.

Summary of Opinion Analysis: Issue 1: Discovery violation The beneficiaries argue that the court abused its discretion when it permitted an expert to testify at trial in spite of an arguable discovery violation. Before excluding evidence based upon a discovery violation, the court should consider the explanation for the transgression, the importance of the testimony, the need for time to prepare to meet the testimony, and the possibility of a continuance. Although Dr. Elliott was negligent in misidentifying the area of the expert's field of practice, the substance of the expert's proposed testimony–as explained in the interrogatory response–concerned the belief that Buskirk's colon was not punctured, and that the source of the infection which killed him was an outside source inserted by means of the catheter through the urethra's false passage into the posterior of the prostate necessarily involved a working knowledge of the bodily systems needed to produce this result. The substance of the interrogatory response concerning the expert’s expected testimony was sufficient to give the beneficiaries adequate notice of his expertise, despite his misidentification as a urologist. Misidentification alone, when the substance of the expert's testimony is sufficiently clear from the response, is insufficient grounds to exclude the expert's testimony. Therefore, the court did not abuse its discretion when it allowed the expert to testify. Issue 2: Expert testimony The beneficiaries argue that the expert's testimony went beyond the substance of the interrogatory response. The information provided in an interrogatory response must be more than what is contained in a pleading, and an expert should not be allowed to testify concerning a subject matter which is not included in the response to the interrogatory. Here, the substance of the interrogatory response was sufficient to put the beneficiaries on notice that the expert's testimony would include the four complained-of portions of his testimony. Issue 3: Sufficiency of evidence The beneficiaries argue that reasonable jurors could not have arrived at a conclusion other than Dr. Elliott was negligent. It was uncontested at trial that the bacteria causing the infection which killed J.C. Buskirk originated in his colon or rectum. However, no physical evidence was introduced to indicate Buskirk's colon was actually perforated. Because the facts in the case differ sufficiently that a jury question was created where reasonable minds could differ as to whether Dr. Elliott was negligent, the court did not err in denying a directed verdict and a judgment notwithstanding the verdict.


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