William Sanders v. Benjamin Wiseman
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-02125-COA
WILLIAM SANDERS
APPELLANT
v.
BENJAMIN WISEMAN, M.D.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/08/2008
HON. PAUL S. FUNDERBURK
LEE COUNTY CIRCUIT COURT
D.L. JONES, JR.
ROBERT K. UPCHURCH
JOSHUA SHEY WISE
CIVIL - MEDICAL MALPRACTICE
SUMMARY JUDGMENT GRANTED IN
FAVOR OF DEFENDANT
AFFIRMED - 03/09/2010
BEFORE KING, C.J., ISHEE AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
William Sanders filed a medical-malpractice action against Dr. Benjamin Wiseman
in the Circuit Court of Lee County. After receiving discovery responses, Dr. Wiseman
moved for summary judgment. He alleged the plaintiff had failed to produce sufficient
expert opinions to establish a prima facie medical-negligence claim. Following a hearing,
the circuit court determined no genuine issues of material fact existed and granted summary
judgment in favor of Dr. Wiseman. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On January 14, 2005, Dr. Wiseman performed surgery on Sanders to implant a spinal-
cord stimulator. Approximately eight months later, Dr. Wiseman again performed surgery
to remove the stimulator. On November 13, 2007, Sanders filed a medical-malpractice
lawsuit against Dr. Wiseman.1 He alleged Dr. Wiseman negligently performed the surgeries
to implant and remove the stimulator. Sanders also claimed one of the leads of the stimulator
broke when Dr. Wiseman removed it.2
¶3.
During the discovery process, Dr. Wiseman propounded requests for admission, which
asked Sanders to admit he did not have a qualified medical expert to testify that Dr. Wiseman
was negligent.
Sanders responded with a denial.
Then, Dr. Wiseman, through
interrogatories, requested the name of each expert witness Sanders expected to testify at trial.
He also inquired about the subject matter on which each expert was expected to testify, the
substance of the facts and opinions to which each expert was expected to testify, and a
summary of the grounds for any opinions. See M.R.C.P. 26(b)(4)(A)(i). Sanders responded
to the interrogatories stating that he had not yet identified an expert witness but would
supplement his responses once a determination had been made.
¶4.
After receiving Sanders’s discovery responses, Dr. Wiseman moved for summary
judgment. Sanders responded and attached the sworn affidavit of Dr. Thomas West. Dr.
Wiseman then filed a reply motion along with a motion to strike Dr. West’s affidavit.
1
Sanders also sued North Mississippi Medical Center (NMMC) and Does One
through Five, alleging these defendants failed to provide proper care after the surgeries.
2
The record indicates that Sanders filed a products-liability action against the
manufacturer of the spinal-cord stimulator prior to filing the present medical-malpractice
action.
2
Shortly thereafter, Sanders filed another response, in which he argued Dr. West’s affidavit
was sufficient to survive summary judgment.
Sanders then supplemented his earlier
interrogatory answers and identified Dr. West as his expert. However, Sanders did not
answer the interrogatories that sought information about Dr. West’s proposed opinions, nor
did Sanders provide any indication of Dr. West’s expected testimony.
¶5.
The circuit court held a hearing on Dr. Wiseman’s summary judgment motion. After
hearing arguments from both parties, the circuit court granted both Dr. Wiseman’s motion
to strike and his motion for summary judgment. The circuit court entered a written judgment
reflecting its decision.3
¶6.
On appeal, Sanders argues the circuit court erred in (1) striking the affidavit of Dr.
West and (2) granting Dr. Wiseman’s motion for summary judgment.
STANDARD OF REVIEW
¶7.
A trial court’s decision to grant or deny a motion to strike an affidavit will not be
reversed unless there has been an abuse of discretion. Kilhullen v. Kansas City S. Ry., 8 So.
3d 168, 172 (¶8) (Miss. 2009); Smith ex rel. Smith v. Clement, 983 So. 2d 285, 288, 290
(¶¶11, 19) (Miss. 2008). When reviewing the grant or denial of a motion for summary
judgment, appellate courts conduct a de novo review. Lewallen v. Slawson, 822 So. 2d 236,
237 (¶6) (Miss. 2002) (citation omitted).
DISCUSSION
3
Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the circuit judge
expressly found that there was no just reason for delay and directed that the judgment was
final as to Dr. Wiseman.
3
I.
¶8.
Dr. West’s Affidavit
Sanders argues Dr. West’s expert affidavit contained a sufficient factual basis and
indication of his proposed testimony to prevent summary judgment. Dr. West’s affidavit
contained the following affirmations:
1.
Affiant is a physician and general surgeon, licensed to practice
medicine in the [s]tate of Tennessee.
2.
I have reviewed the medical records of William Sanders, the Plaintiff
in this action, in connection with the surgery to implant the spinal-cord
stimulator and the surgery to remove the spinal-cord stimulator.
3.
In the process of removing the spinal-cord stimulator, the device broke.
4.
Based upon my review of the case, it is my professional opinion that
Dr. Benjamin Wiseman deviated from the standard of care in his
removal of the spinal-cord stimulator from William Sanders, and that
the deviation from the standard of care proximately caused the injuries
sustained by William Sanders.
A.
¶9.
Admissibility of Expert Opinion
The admissibility of an expert opinion is governed by Mississippi Rule of Evidence
702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
Under Rule 702, a witness is required to be qualified by virtue of knowledge, skill,
experience, or education, and the witness’s scientific, technical, or other specialized
knowledge must assist the trier of fact. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31,
4
35 (¶7) (Miss. 2003). Rule 702 “does not relax the traditional standards for determining that
the witness is indeed qualified to speak an opinion on a matter within a purported field of
knowledge.” Id. (quoting M.R.E. 702 cmt).
¶10.
Mississippi has adopted the federal standard set out in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and as modified in Kumho Tire Company v.
Carmichael, 526 U.S. 137 (1999), for analyzing the admissibility of expert testimony.
McLemore, 863 So. 2d at 35 (¶5). The Daubert standard is a two-pronged inquiry: “First,
the [trial] court must determine that the expert [opinion] is relevant – that is, [it] must ‘assist
the trier of fact’ . . . . Next, the trial court must determine whether the proffered [opinion] is
reliable.” Id. at 38 (¶16). Trial judges are “‘gate keepers’ with the responsibility of
determining, in the first instance, whether an expert’s proffered opinion is both relevant and
reliable.” Clement, 983 So. 2d at 289 (¶14) (citation omitted); see also M.R.E. 702 cmt. In
performing this gate-keeping responsibility, trial judges should examine the criteria set forth
in Rule 702. Clement, 983 So. 2d at 289 (¶14).
¶11.
Additionally, Daubert provides a list of factors for assessing reliability, including:
whether the theory or technique can be and has been tested; whether it has
been subjected to peer review and publication; whether, in respect to a
particular technique, there is a high known or potential rate of error; whether
there are standards controlling the technique’s operation; and whether the
theory or technique enjoys general acceptance within [the] relevant scientific
community.
McLemore, 863 So. 2d at 37 (¶13) (citing Daubert, 509 U.S. at 592-94). This list of factors
is not exhaustive, nor do each of the factors always apply. Id. at 36-37 (¶13) (citing Kumho
Tire, 526 U.S. at 151). This analysis is focused “solely on principles and methodology, not
5
on the conclusions they generate.” Id. (quoting Daubert, 509 U.S. at 595). The party
offering an expert’s opinion must show that the opinion is based on sufficiently reliable
scientific principles. See id. at 36 (¶11).
B.
¶12.
The Affidavit
An affidavit offered in support of or in opposition to a motion for summary judgment
“shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the matter
stated therein.” M.R.E. 56(e).
¶13.
In addition, “[a]n expert’s opinion must be supported by appropriate validation[,] i.e.,
good grounds, based on what is known.” Davis v. Christian Bhd. Homes of Jackson, 957 So.
2d 390, 410 (¶47) (Miss. Ct. App. 2007) (quoting Daubert, 509 U.S. at 590) (internal
quotation marks omitted). “The facts upon which the expert bases his opinion or conclusion
must permit reasonably accurate conclusions as distinguished from mere guess or
conjecture.” McLemore, 863 So. 2d at 35 (¶8) (citation omitted). Thus, an expert opinion
based merely on “subjective beliefs or unsupported speculation” is insufficient, and is
properly excluded. Id. at 36 (¶11). Affidavits consisting of nothing more than conclusory
statements should be disregarded by the trial court. Estate of Deiorio ex rel. Deiorio v.
Pensacola Health Trust, Inc., 990 So. 2d 804, 806-07 (¶¶9-10) (Miss. Ct. App. 2008); Davis,
957 So. 2d at 409-10 (¶¶45-47). Cf. Hubbard v. Wansley, 954 So. 2d 951, 965-66 (¶48)
(Miss. 2007) (disapproving of an “almost wholly conclusory” affidavit).
¶14.
For example, in Clement, the supreme court addressed whether the circuit court erred
in granting the defendant’s motion to strike an expert’s affidavit. The case involved a claim
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by Amory School District (Amory) against M&W Gas Company (M&W) arising out of an
explosion on a school bus. Clement, 983 So. 2d at 287 (¶5). The accident occurred about
fourteen years after M&W had installed propane fuel systems in Amory’s school busses. Id.
at 286-87 (¶¶3, 5). M&W moved for summary judgment. It argued Amory had not
sufficiently shown the bus’s propane fuel system was in the same condition as it was when
installed by M&W. Id. at 287 (¶6). Amory’s response included an affidavit from its expert,
who claimed: (1) the accident was caused by a leak in the copper tubing in the fuel system,
and (2) the copper tubing in the bus at the time of the accident was the same tubing
improperly installed by M&W fourteen years earlier. Id. M&W then responded with its own
expert affidavit challenging Amory’s expert. Id. at (¶7). M&W’s expert argued essentially
that there was no foundation in science for Amory’s expert’s conclusions. Id. Amory
submitted no further evidence supporting its expert’s opinions. Id. at 289-90 (¶18). The
supreme court held that the circuit court acted within its discretion in finding Amory’s
expert’s affidavit should be stricken. Id. at 290 (¶19).
¶15.
In a recent medical-malpractice decision, Hill v. Mills, 2008-CA-01343-SCT (Miss.
Jan. 28, 2010),4 the supreme court further elaborated on the analysis to be applied in the
context of battling experts.
The supreme court explained that one expert’s mere
disagreement with the other side’s expert creates a fact issue for the jury. Id. at n.7 (¶¶28-30,
34, 41). In contrast, where the defendant’s expert claims the plaintiff’s expert’s opinions are
not scientifically sound, the plaintiff’s expert cannot then stand idly by, but must present at
least some evidence showing acceptance of the opinion within the scientific community. Id.
4
A final mandate was issued in Hill on February 18, 2010.
7
Although Hill and Clement are both instructive, we are not faced with two battling experts.
Nor are we confronted with a situation where the reliability of an expert’s opinion is attacked
solely on the basis that his opinion is not accepted within the scientific community. Rather,
our inquiry here turns on whether Dr. West’s affidavit is insufficient because it is
unsubstantiated and conclusory.
¶16.
We addressed a similar expert affidavit in Davis. The plaintiff, Bernice Davis, filed
a wrongful-death case with an underlying premises-liability claim. Specifically, Davis
contended the defendant apartment complex’s failure to provide security guards and adequate
lighting caused her son’s shooting death, which occurred in the complex’s parking lot.
Davis, 957 So. 2d at 408 (¶43). The only evidence of proximate cause was found in the
plaintiff’s expert affidavit. Id. The proposed expert, a Jackson police officer, claimed
security guards would have prevented the killer from loitering and starting a fight with the
deceased in the parking lot. Id. Further, the officer attested that, based on his experience in
law enforcement, poor lighting increases the chance of criminal activity. Id. Thus, he
contended the lack of adequate lighting contributed to the shooting. Id. We found this
factual basis insufficient to support the officer’s conclusions, and held the circuit judge did
not err in disregarding the affidavit in granting summary judgment in favor of the defendant.
Id. at 409-10 (¶¶45, 47).
¶17.
Here, Dr. West’s affidavit essentially contains the following assertions: (1) he was a
physician and general surgeon, licensed in Tennessee; (2) he had reviewed the plaintiff’s
medical records pertaining to the surgeries implanting and removing the spinal-cord
stimulator; (3) the device broke during the surgery; and (4) Dr. Wiseman’s deviation from
8
the standard of care proximately caused Sanders’s injuries.
¶18.
There is little question that Dr. West’s allegations are light on substance. The
affidavit contains no information regarding the field in which Dr. West was expected to
testify. It also lacks any articulation of the applicable standard of care. There is also an
absence of underlying facts explaining how Dr. Wiseman allegedly deviated from the
standard of care. Furthermore, the affidavit does not explain how Dr. West, a general
surgeon, is qualified to testify about the standard of care applicable to an anesthesiologist and
pain-management specialist such as Dr. Wiseman. We find this affidavit contains nothing
more than broad conclusions, unsupported by an adequate factual basis.
¶19.
The supreme court has explained that “when an expert’s opinion is challenged, the
party sponsoring the expert’s challenged opinion [must] be given a fair opportunity to
respond to the challenge. The provision of a fair opportunity to respond is part of the trial
court’s gate[-]keeping responsibility.” Kilhullen, 8 So. 3d at 174 (¶13) (quoting Clement,
983 So. 2d at 290 (¶19)).
¶20.
Dr. Wiseman moved for summary judgment on August 18, 2008, arguing Sanders had
not produced the expert opinions required to prove his medical-negligence claim. After
Sanders responded, Dr. Wiseman filed his motion to strike on October 15, 2008. In this
motion, Dr. Wiseman argued that Dr. West’s affidavit was deficient because it was
conclusory and contained no factual support. Multiple authorities were cited in support of
Dr. Wiseman’s position. Sanders then responded by simply defending Dr. West’s affidavit
and arguing it was sufficient. The record indicates the only further action taken by Sanders
after Dr. Wiseman’s challenge to the affidavit was serving supplemental answers to
9
interrogatories. These answers merely identified Dr. West as the plaintiff’s expert and
contained a copy of Dr. West’s curriculum vitae.5
¶21.
After hearing from both sides on November 13, 2008, the trial judge found:
The purported expert affidavit of Dr. West is insufficient under
Mississippi Rule[] of Evidence 702(1) for several reasons.
It does not provide the field in which Dr. West is expected to testify.
It fails to establish that Dr. West knows the . . . standard of care applicable to
Dr. Wiseman in this case, an anesthesiologist, in the removal of a spinal-cord
stimulator. The affidavit does not establish or define the applicable standard
of care, but only [contains] the conclusory statement that Dr. Wiseman
breached the standard of care.
The opinion of Dr. West in his affidavit is totally conclusory and fails
to state facts to back it up. Moreover, the affidavit of Dr. West does not
establish that he is qualified by his education, training, or experience, or that
he has specialized knowledge to render an opinion in this particular case.
¶22.
We agree. Sanders had ample time and a fair opportunity to submit additional
evidence of the reliability of the opinions offered in Dr. West’s affidavit. Nevertheless, he
failed to provide any evidence that Dr. West’s unsubstantiated contentions were based on
sound methods and principles. Under these circumstances, we find the trial court did not
abuse its discretion in striking Dr. West’s affidavit.
II.
¶23.
Summary Judgment
Sanders also argues the circuit court erred in granting Dr. Wiseman’s motion for
summary judgment.
5
We note that the curriculum vitae (CV) itself is not part of the record, but the
supplemental discovery response indicates that it was attached. Even if a CV was attached
as Sanders contends, the record would still be devoid of a sufficient factual basis to support
Dr. West’s conclusions. The record also indicates Sanders included the same affidavit from
Dr. West in his supplemental interrogatory answers.
10
¶24.
The trial court must grant a motion for summary judgment “if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Summary judgment is
properly granted if the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to his case and on which he bears the burden of proof at
trial.” Borne v. Dunlop Tire Corp., 12 So. 3d 565, 570 (¶16) (Miss. Ct. App. 2009) (citing
Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416 (Miss. 1988)).
In determining whether a trial court properly granted summary judgment, we view the facts
“in the light most favorable to the nonmoving party.” Robinson v. Singing River Hosp. Sys.,
732 So. 2d 204, 207 (¶12) (Miss. 1999) (citation omitted).
¶25.
To survive summary judgment, the nonmoving party must produce “significant
probative evidence showing that there are indeed genuine issues for trial.” Borne, 12 So. 3d
at 570 (¶16) (quoting Price v. Purdue Pharma Co., 920 So. 2d 479, 485 (¶16) (Miss. 2006)).
Furthermore, the nonmoving party “may not rest upon the mere allegations or denials of his
pleadings, but his response, by affidavits or [otherwise], must set forth specific facts showing
that there is a genuine issue for trial.” M.R.C.P. 56(e).
¶26.
A prima facie case for medical malpractice requires proof of the following elements:
(1) the existence of a duty by the defendant to conform to a specific standard
of conduct for the protection of others against an unreasonable risk of injury;
(2) a failure to conform to the required standard; and
(3) an injury to the plaintiff proximately caused by the breach of such duty by
the defendant.
11
Hubbard, 954 So. 2d at 956-57 (¶12) (citation omitted). Generally, medical negligence can
only be established by expert medical testimony that the defendant breached the standard of
care. Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 1026 (¶9) (Miss. 2000).
Although an expert witness in a medical-negligence case is not typically required to practice
the identical specialty as the doctor about whom the expert is providing an opinion,
“[s]atisfactory familiarity with the specialty” is required. Hubbard, 954 So. 2d at 957 (¶13).
¶27.
The sole exception to medical-malpractice cases requiring expert testimony exists
when a layperson “can observe and understand the negligence as a matter of common sense
and practical experience.” Gatlin, 772 So. 2d at 1026 (¶9) (citation omitted). This exception,
often referred to as the “layman’s exception,” has regularly been applied to cases where
physicians have left foreign objects in a patient’s body or given a patient the wrong
medication. Smith ex rel. Smith v. Gilmore Mem’l Hosp., Inc., 952 So. 2d 177, 181 (¶11)
(Miss. 2007) (citations omitted).
However, our supreme court has recognized that
application of this exception “not only to situations where there is blatant negligence but also
to situations involving judgment calls made by professionals would be overly broad.” Id.
¶28.
Here, we are not faced with a medical-malpractice claim within the common
knowledge of laypersons. It is obvious a typical layperson, unassisted by expert testimony,
would be unable to determine whether Dr. Wiseman failed to exercise reasonable care and
skill in the surgical removal of the spinal-cord stimulator. Therefore, we find the “layman’s
exception” does not apply, and Sanders was required to produce expert testimony to prove
the elements of his medical-negligence claim against Dr. Wiseman.
¶29.
As explained above, the circuit judge did not abuse his discretion in excluding Dr.
12
West’s affidavit. Without Dr. West’s opinion, Sanders is unable to prove the elements of his
medical-malpractice claim against Dr. Wiseman. Thus, Sanders failed to meet his burden
to show the presence of genuine issues of material fact, and the circuit court properly granted
summary judgment in favor of Dr. Wiseman.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND ROBERTS, JJ.,
CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.
13
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