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Help support the publication of case reports on MoreLawDate: 04-07-2019 Case Style: Beverly Knight and Keith Knight v. W. Craig Clark M.D.Case Number: 2017-CA-00722-COA Judge: Jack Wilson Court: COURT OF APPEALS OF THE STATE OF MISSISSIPPI Plaintiff's Attorney: LINDSEY C. MEADOR Defendant's Attorney: SHELBY KIRK MILAM Description:  In 2006, Knight began experiencing problems with pain in her lower back and right leg.1 She was referred to Dr. Craig Clark, a neurosurgeon then practicing in DeSoto County. Dr. Clark recommended a transforaminal lumbar interbody fusion (TLIF). ¶3. A TLIF is a surgical procedure that attempts to fuse vertebrae in order to stabilize the patient’s spine. A rod is used to hold the vertebra together to allow fusion to occur. The rod is held in place by “pedicle screws,” which the surgeon must insert into the pedicles. The pedicles are bony projections that extend from the back of the vertebra on either side. The pedicles help to protect the spinal canal and the spinal nerves. Dr. Clark performed a TLIF on Knight in February 2007 and inserted four pedicle screws into Knight’s pedicles at the L5 S1 region of the spine. ¶4. Dr. Clark, a board certified neurosurgeon, testified that he had performed this procedure approximately 350 to 400 times. Dr. Clark and his expert witness, Dr. Walter Eckman, testified that the pedicle screws must be inserted into the pedicle at an angle because of the length of the screws and because “the goal is to get as much bony purchase as you can without traversing the area where the nerves are.” The screws should enter the vertebral body through the pedicle and should not “breach” the wall of the pedicle and enter the spinal canal. The spinal nerves are located inside the spinal canal, so a screw that breaches the spinal canal has the potential to impinge on the spinal nerves and cause pain. 1 Knight underwent lower back surgery (a laminectomy) in 1999, but she testified that she had fully recovered prior to 2006. 2 ¶5. After her surgery, Knight had approximately five follow-up visits with Dr. Clark between February and August 2007. Knight reported continuing pain, and Dr. Clark prescribed pain medication. He also prescribed physical therapy. In May 2007, Knight was released to work half days at her job at a bank, and by August 2007 she had returned to work full-time. She continued to report pain through her last visit with Dr. Clark in August 2007. Knight testified that she told Dr. Clark that, in particular, she was continuing to experience pain in her left leg. However, she also told Dr. Clark that she was “80 to 85 percent better” in her back and right leg. ¶6. Dr. Clark advised Knight that it would take up to two years for her to fully recover from the surgery. Dr. Clark last saw Knight in August 2007. He testified that at that point he considered her recovery from the surgery to be within the normal range of what could be expected. He told her that as long as she was able to tolerate eight-hour days at work, she should continue to give her recovery “some time.” He also advised her to return to see him “as needed.” ¶7. Although Dr. Clark did not see Knight after August 2007, Knight continued to call Dr. Clark’s office for normal prescription refills until January 2009. Dr. Clark testified that Knight was taking only a non-addictive pain medication, which he considered a “comfort issue” and not an indication of any underlying problem. ¶8. In October 2008, Knight moved to Tennessee and began seeing new doctors. She continued to experience pain, primarily in her left leg. In December 2009, she underwent an MRI, which showed that one of the pedicle screws was angled into or near the spinal canal, 3 although the written MRI report specifically noted that there was no apparent nerve root impingement at the L5-S1 level. ¶9. Knight subsequently was referred to Dr. Craig Humphreys, an orthopedic surgeon in Chattanooga. In July 2010, Dr. Humphreys ordered a CT myelogram and, after reviewing the images, concluded that one of the pedicle screws inserted during Knight’s TLIF had breached her spinal canal and was touching spinal nerves. Dr. Humphreys recommended surgery to remove the pedicle screws and other hardware from Knight’s lower back. Dr. Humphreys performed that surgery in August 2010. Dr. Humphreys concluded that there was adequate fusion from the TLIF and that Knight’s spine and lower back were stable. ¶10. In August 2011, Knight filed a medical malpractice lawsuit against Dr. Clark in DeSoto County Circuit Court. The case eventually proceeded to trial in March 2017. In his testimony at trial, Dr. Clark denied that he misplaced the pedicle screw and denied that any breach of the spinal canal occurred during Knight’s surgery. Dr. Clark also denied that he breached the standard of care, and he denied that Knight’s pain was caused by the pedicle screw. ¶11. Dr. Clark testified that after he inserts pedicle screws, he uses a “ball probe” to check their placement. The ball probe is inserted into the spinal canal during the surgery, and the surgeon is able to use it to “feel” for any breach of the spinal canal. Dr. Clark testified that the probe gives the surgeon “tactile feedback” so that “if the screw actually has penetrated into the canal or an open space,” the surgeon “can feel that” and can correct the placement of the screw. Use of a ball probe is a common and accepted surgical technique. Dr. Clark 4 testified that he used the ball probe in this case to confirm that no screw had breached the spinal canal. ¶12. Dr. Clark, his expert witness (Dr. Eckman), and one of Knight’s expert witnesses (Dr. Martin Cooper), all agreed that an initial misplacement of a pedicle screw is not a breach of the standard of care. In fact, it is common for the surgeon to misplace a screw during the surgery, at least initially. The standard of care requires the surgeon to attempt to detect and correct any misplaced screws by using tools such as a fluoroscopy, which shows a continuous x-ray image during the procedure, and a ball probe. Dr. Clark utilized both of those tools during Knight’s procedure. ¶13. Dr. Clark testified that during Knight’s surgery he used the ball probe to check for any breach of the spinal canal, and he testified that there was no breach of the spinal canal during the procedure. He testified, “I did not place that screw in the spinal canal or I would have felt a breach with the probe.” Dr. Clark was consistent and adamant that he did not breach the spinal canal. He testified that the screw at issue in this lawsuit must have “moved” or “migrated” after Knight left his care. ¶14. On this specific issue, Dr. Clark’s testimony diverged from the opinion of his own expert, Dr. Eckman, who is also a board certified neurosurgeon. Dr. Eckman opined that the screw was misplaced during the surgery and that there was a breach of the spinal canal during the surgery. Dr. Eckman did not believe that the screw had moved or migrated post surgery. Dr. Eckman did not say that “migration” of a screw “could never happen.” Dr. Eckman did not “think” that migration “happened in this case.” However, he testified that 5 migration possibly could occur “if you had terribly soft bone.” ¶15. Dr. Eckman also testified that, despite misplacing a screw, Dr. Clark met the standard of care both during and after Knight’s surgery. Dr. Eckman explained his opinion on this issue as follows: Q. . . . [D]o you have an opinion of whether or not in this procedure Dr. Clark met the standard of care in performing this procedure? A. Yes. Q. Okay. What is that opinion? A. Okay. The first issue, placement of the screw. There is no standard for that. What’s important to know with the placement of these screws, I would be shocked if you could find a surgeon who has put in any number of these pedicle screws that has not misplaced one. My error rate is extremely small. Even the robots have a certain error rate. They’re using robots to put these in some now. So it can be improved with some technology and some different techniques, but it is something every surgeon has experienced. So it is not -- misplacement of a pedicle screw is simply not any kind of negligent action. It is not beyond any standard. As I said, there is no standard because nobody can do it without errors. Okay. The rest of it is, what is he doing to try to protect his patient during the procedure? Well, he made an effort to feel that pedicle to try to see if the pedicle screw was misplaced, and unfortunately, the anatomy of the structure is such a way that he couldn’t feel it or see it or find it because it was hidden from him by the position of the screw being so far medial. Okay. But he made the effort, which is what you have to ask of your doctor. Do the best you can. So he has a standard technique. He uses the little ball probe that he puts down in the drill hole to try to feel it. He tried to make it safer by using that. Obviously, it’s not always a perfect technique I would say. He used the fluoroscopy trying to help guide also very much trying to help the patient. So all of these are efforts to do a good procedure. The fact that part of 6 the procedure didn’t work out perfectly is something that happens. It will happen to all of us as surgeons who do these kind of operations. Q. Did that meet the standard of care? A. The standard is doing an appropriate procedure and doing it within -as I said, his operation is the more common in this country than mine. . . . . A. So he meets that standard of care better than I do. Q. Okay. All right. Now, . . . let’s change our focus . . . to after the surgery. Did Dr. Clark’s treatment of Ms. Knight after the surgery meet the standard of care? A. Yes. Q. Okay. Tell us why. A. . . . What we want of our doctors that operate on us is to have some method of postoperative followup . . . . Dr. Eckman went on to explain that, in his opinion, Dr. Clark provided appropriate monitoring and care after the surgery. According to Dr. Eckman, Knight’s post-operative recovery was within the normal range, and nothing that Knight reported to Dr. Clark should have caused him to order an MRI or any other diagnostic procedure. ¶16. Finally, Dr. Eckman testified that the pedicle screw that had breached the spinal canal was not the cause of Knight’s continuing pain. Dr. Eckman concluded that Knight’s continuing pain was a result of a “nonunion” or a failure to achieve a solid fusion of the vertebrae. Dr. Eckman explained that the nonunion did not indicate any breach of the standard of care and was not caused by anything that Dr. Clark did or did not do during or after the surgery. 7 ¶17. Knight called two experts to testify in support of her claim. Dr. Martin Cooper, a board certified neurosurgeon, testified by deposition. Dr. Cooper testified that an initial misplacement of a pedicle screw is not malpractice. He agreed that “a certain percentage of screws . . . are misplaced” even with surgeons who meet the standard of care. However, Dr. Cooper testified that it is a breach of the standard of care to fail to recognize and correct the error during the surgery by removing and repositioning the screw. Dr. Cooper testified that the intraoperative fluoroscopy images clearly showed that one of the four pedicle screws was misplaced and had breached the spinal canal.2 Dr. Cooper opined that Dr. Clark should have recognized the misplacement and corrected it during the surgery. Dr. Cooper also testified that Knight’s post-surgery complaints of pain to her left side should have alerted Dr. Clark to a possible problem and caused him to order an MRI or other diagnostic test. According to Dr. Cooper, this also would have led Dr. Clark to discover the misplacement. Dr. Cooper testified that Dr. Clark’s failure to order such tests was also negligence. ¶18. Dr. Dennis Whaley, a radiologist and neuroradiologist, similarly testified that the fluoroscopy images clearly showed that a pedicle screw was misplaced. Dr. Whaley also opined that the images showed that the screw had breached the spinal canal and had impacted the nerve root in the spinal column. As discussed below, the trial judge ruled that Dr. Whaley would not be allowed to testify as to the standard of care for a neurosurgeon. 2 In contrast, both Dr. Clark and Dr. Eckman testified that the images did not establish that the screw was misplaced. Indeed, Dr. Eckman testified that the fluoroscopy images were “useless” for purposes of making that determination. Dr. Eckman further testified that the fact that one of the screws was at a different angle than the other three did not indicate that the screw was misplaced. He testified that the insertion of screws at different angles was common and appropriate. 8 ¶19. After the close of all the evidence, and after deliberating for approximately eight hours, the jury returned a verdict in favor of Dr. Clark. The verdict form required the jury to answer special interrogatories. In its verdict, the jury first rejected Dr. Clark’s statute of limitations defense. However, the jury then answered “No” to a special interrogatory that asked whether Dr. Clark was “negligent by deviating from the standard of care.” Because the jury answered that question in the negative, the jury did not proceed to special interrogatories on the issues of causation and damages. ¶20. On appeal, Knight argues that she is entitled to judgment notwithstanding the verdict (JNOV) on the issue of negligence because there was insufficient evidence to support the jury’s verdict.3 In the alternative, Knight argues that the trial judge abused his discretion by denying her motion for a new trial based on the weight of the evidence. Finally, Knight argues that the trial judge abused his discretion by limiting Dr. Whaley’s testimony and that Dr. Eckman improperly offered new and previously undisclosed opinions during trial. We address these issues in turn below. We conclude that there is sufficient evidence to support the verdict, that the verdict is not against the weight of the evidence, and that no reversible error occurred during trial. Therefore, we affirm the judgment entered on the jury’s verdict. ANALYSIS I. The trial judge did not err by denying Knight’s motion for JNOV or abuse his discretion by denying her motion for a new trial. ¶21. “When reviewing the denial of a motion for JNOV, we consider the evidence in the 3 Knight implicitly recognizes that Dr. Eckman’s testimony created a jury question on the issue of causation, as she requests that we render a judgment in her favor on the issue of negligence only and remand for a new trial on the issues of causation and damages. 9 light most favorable to the non-moving party, and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 358, 361 (¶12) (Miss. 2007). “If the facts, considered in that light, point so overwhelmingly in favor of the party requesting the JNOV that reasonable persons could not have arrived at a contrary verdict, we will reverse and render.” Id. at 361-62 (¶12). “If there is substantial evidence in support of the verdict we will affirm the denial of the JNOV.” Id. at 362 (¶12). “‘Substantial evidence’ is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Id.4 ¶22. If the moving party is not entitled to JNOV, the trial judge may grant a new trial if “the verdict is against the overwhelming weight of the evidence.” Bobby Kitchens Inc. v. Mississippi Ins. Guar. Ass’n, 560 So. 2d 129, 132 (Miss. 1989).5 A motion for a new trial is addressed to the discretion of the trial judge. Amiker v. Drugs For Less Inc., 796 So. 2d 942, 947 (¶18) (Miss. 2000). However, that discretion “should be exercised with great caution” and “should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting United States v. Sinclair, 438 F.2d 4 See also McGovern v. Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990) (“A case should never be taken from the jury if, from the facts favorable to the party adversely affected together with all reasonable inferences therefrom, it can be said that a rational jury could find in his favor. This Court is never unmindful of this rule.” (citations omitted)). 5 The Supreme Court has explained that a somewhat “greater quantum of evidence [supportive of the verdict] is necessary . . . to withstand a motion for a new trial as distinguished from a motion for [JNOV].” Adams v. Green, 474 So. 2d 577, 582 (Miss. 1985) (quoting Jesco, Inc. v. Whitehead, 451 So. 2d 706, 714 (Miss. 1984)). 10 50, 51 n.1 (5th Cir. 1971)). ¶23. When we review the denial of a motion for a new trial, we must also keep in mind that “[t]his Court . . . is not the jury.” Fleming v. Floyd, 969 So. 2d 868, 878 (¶25) (Miss. 2007) (quoting BFGoodrich Inc. v. Taylor, 509 So. 2d 895, 903 (Miss. 1987)). In a case such as this one, “[t]he weight and credibility of the witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose.” Id. “[J]udging the expert’s testimony and weight to be accorded thereto is the province of the jury.” Id. (quoting Daniels v. GNB Inc., 629 So. 2d 595, 603 (Miss. 1993)). “The jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely.” Id. (quoting Chisolm v. Eakes, 573 So. 2d 764, 767 (Miss. 1990)). ¶24. In contrast, as an appellate court, [w]e do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury. Our role as appellate court is to view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Little v. State, 233 So. 3d 288, 289 (¶1) (Miss. 2017). ¶25. Moreover, our role as an appellate court is even more limited than that of the trial judge. “This Court will reverse a trial judge’s denial of a request for new trial only when such denial amounts to a abuse of that judge’s discretion.” Bobby Kitchens, 560 So. 2d at 132. The trial judge is accorded discretion, and our review is deferential, because the trial judge is in a “superior position . . . to decide such matters.” Amiker, 796 So. 2d at 948 (¶21). “It has long been recognized that the trial judge is in the best position to view the trial.” Id. 11 at 947 (¶16). Unlike an appellate court, which must rely on a “cold, printed record,” the trial judge hears and observes the witnesses firsthand and “smells the smoke of the battle.” Id. Therefore, “the trial court—and the trial court alone”—acts, in a very limited sense, as a “thirteenth juror” when ruling on a motion for a new trial. Little, 233 So. 3d at 292 (¶19). Our role is only to review the trial judge’s decision for an abuse of discretion. Id. at 292 (¶21); Adams, 474 So. 2d at 582. ¶26. In this case, these well-settled principles require us to affirm the judgment entered on the jury’s verdict and the trial judge’s denial of a new trial. A rational jury could have found Dr. Clark’s testimony credible. The jury could have believed Dr. Clark that he used the ball probe to check carefully for any breach of the spinal canal. The jury could have concluded that Dr. Clark would have detected a breach of the spinal canal if one had occurred. And the jury could have concluded that Dr. Clark did not find a breach because there was none. Thus, the jury could have found that Dr. Clark did not misplace the screw, that he met the standard of care, and that the screw moved or migrated after Knight left his care. ¶27. There was additional evidence to support Dr. Clark’s testimony in the form of two radiology reports. The radiologist who reviewed the fluoroscopy post-surgery reported that the images showed “screws extending through the L5 and S1 levels into the vertebral bodies” and that “[a]lignment [was] maintained.” The radiologist also concluded that the “pedicle screws appear[ed] to be in place within the L5-S1.” In addition, Knight underwent another MRI more than two years after her surgery (on December 8, 2009), and the reviewing radiologist reported that he could identify “[n]o apparent nerve root compression” at the L5 12 S1 level—i.e., no evidence that a screw was then impinging on a spinal nerve. Both radiologists noted difficulties in visualizing the screws on the images of Clark’s spine. Nonetheless, the jury could have found that these radiology reports tended to support Dr. Clark’s testimony that he did not breach the spinal canal during the surgery.6 ¶28. To be sure, Knight offered evidence to support her claim that Dr. Clark misplaced the pedicle screw during her operation—including even the opinion of Dr. Clark’s own expert, Dr. Eckman. However, the jury was free to reject that evidence “entirely” and give greater weight to the testimony of Dr. Clark, who consistently maintained that he did not misplace the screw during the surgery. Fleming, 969 So. 2d at 878 (¶25). “The jury may give whatever weight it chooses to a witness’[s] testimony or other evidence.” Wilmoth v. Peaster Tractor Co. of Lexington, 544 So. 2d 1384, 1386 (Miss. 1989). “Once again, the jury is the sole judge of the credibility of witnesses and the weight of the evidence.” Solanki v. Ervin, 21 So. 3d 552, 570 (¶49) (Miss. 2009); accord, e.g., Dorrough v. Wilkes, 817 So. 2d 567, 574 (¶¶22, 25) (Miss. 2002). And it is the “province of the jury” to resolve any conflicts in the 6 The dissent likens this case to Samuels v. Mladineo, 608 So. 2d 1170 (Miss. 1992), where the Supreme Court stated that “[a] surgeon’s memory, his recollection, that he performed every step of some particular surgery properly cannot withstand physical evidence to the contrary.” Id. at 1182. However, Samuels’s holding does not fit the evidence presented at trial in this case. As noted above, the “physical evidence” in this case was not undisputed. See supra note 2. Both Dr. Clark and Dr. Eckman testified that the fluroscopy images did not establish that the screw breached the spinal canal. Indeed, although Knight’s experts relied heavily on them, Dr. Eckman testified that the images were essentially “useless” for purposes of determining whether a screw had breached the spinal canal. Dr. Eckman also testified that the different angles of the screws, as shown in the images, were appropriate and not a cause for concern. Finally, as discussed above, the jury was presented with radiology reports from 2007 and 2009 that did not identify any misplacement of a screw. 13 evidence. Adams, 474 So. 2d at 581. In this case, the conflicts in the evidence on the issue of negligence created an issue for the jury to decide. Therefore, we also cannot say that the trial judge, who listened to and observed these witnesses firsthand, abused his discretion by denying Knight’s motion for a new trial. ¶29. Moreover, even if the jurors did believe that Dr. Clark misplaced the screw, there was still additional evidence to support a finding and verdict in favor of Dr. Clark on the issue of negligence. As quoted above, see supra ¶15, Dr. Eckman opined that the standard of care requires a neurosurgeon to use appropriate surgical techniques, to take precautions to try to detect and prevent any breach of the spinal canal, and to provide appropriate postoperative followup. Dr. Eckman testified that Dr. Clark met all those criteria: Dr. Clark’s surgical procedure was “common” and “appropriate,” he used a ball probe and fluoroscopy to try to prevent and detect any breach of the spinal canal, and he appropriately monitored Knight’s recovery after the operation. Dr. Eckman testified that no surgeon can be “perfect” and that a surgeon can only take precautions to try to “protect his patient during the procedure.” According to Dr. Eckman, Dr. Clark met that standard of care. ¶30. Again, it is true that Knight presented contrary expert opinions. But the jury was free to reject those opinions and credit the testimony of Dr. Eckman instead. Our Supreme Court “has held that the winner in a battle of the experts is to be decided by a jury.” Hill v. Mills, 26 So. 3d 322, 330 (¶28) (Miss. 2013). Because the conflict in the expert testimony was an issue for the jury to decide, the trial judge did not abuse his discretion by denying Knight’s motion for a new trial. And because there was legally sufficient evidence to support the 14 jury’s verdict, the trial judge did not err by denying Knight’s motion for JNOV. II. The trial judge did not abuse his discretion by limiting one of Knight’s expert witnesses to his field of expertise. ¶31. Knight also argues that the trial judge abused his discretion by ruling that Dr. Whaley, a radiologist and neuroradiologist, could not testify as to the standard of care for a neurosurgeon and could not testify that Dr. Clark had breached the standard of care. Dr. Whaley was allowed to testify as an expert in the field of neuroradiology and offer opinions regarding Knight’s fluoroscopy images and subsequent x-rays. ¶32. “Absent an abuse of discretion, a judge’s determination as to the qualifications of an expert witness will remain undisturbed on appeal.” Hubbard v. Wansley, 954 So. 2d 951, 956 (¶11) (Miss. 2007). “It is generally not required that an expert testifying in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying.” Id. at 957 (¶13). However, the witness must demonstrate “[s]atisfactory familiarity with the specialty of the defendant doctor” before the witness will be permitted to testify and offer opinions “as to the standard of care owed to the plaintiff patient.” Id. In Hubbard, the Supreme Court held that the trial court did not abuse its discretion by ruling that a neurosurgeon was not qualified to testify as to the standard of care applicable to a doctor practicing internal medicine. See id. at 956-58 (¶¶10-19). This was true even though the neurosurgeon had firsthand experience treating patients diagnosed with the same injury. See id. at 958 (¶18). Similarly, this Court has held that a thoracic and cardiovascular surgeon was not qualified to testify regarding the standard of care for a gastroenterologist. Cleveland v. Hamil, 155 So. 3d 829, 833-35 (¶¶19-27) (Miss. Ct. App. 2013), aff’d in relevant part and 15 rev’d in part on other grounds, 119 So. 3d 1020 (Miss. 2013). We so held even though the witness testified that the work of a gastroenterologist “would cross [his] work as a surgeon.” Id. at 935 (¶26). We held that was insufficient to establish that the witness was “familiar[] with the specialty of gastroenterology and the standard of care required of a gastroenterologist.” Id.; accord, e.g., Troupe v. McAuley, 955 So. 2d 848, 857-58 (¶¶23-29) (Miss. Ct. App. 2007) (holding that trial court did not abuse its discretion by ruling that neurosurgeon was not qualified to testify as to the standard of care for a neuro-otolaryngologist). ¶33. In this case, Dr. Whaley admitted that he had no experience in neurosurgery or even general surgery. He had never performed a TLIF or any other procedure involving pedicle screws. Since 2008, he has practiced “general outpatient diagnostic radiology,” reviewing all manner of x-rays “from head to toe.” Dr. Whaley acknowledged that he “certainly wouldn’t . . . attempt to give a standard-of-care opinion of the overall breadth of what a neurosurgeon does.” Yet, he believed that he “would know” and “could say” that some “things . . . violate[] the standard of care.” Dr. Whaley thought that he was qualified to give such testimony because “there are things that [radiologists] work closely [with neurosurgeons] in.” ¶34. We hold that the trial judge did not abuse his discretion by limiting Dr. Whaley’s testimony. Dr. Whaley readily admitted that he was not qualified to testify about the standard of care for neurosurgeons generally. He just thought he could do so as to some things, including the issue in this case. Like the surgeon in Cleveland, supra, Dr. Whaley claimed 16 that he could offer opinions on the standard of care in another specialty simply because his own work occasionally brought him into contact with that specialty. Consistent with Cleveland and other decisions of this Court and the Supreme Court, we hold that the trial judge did not abuse his discretion by limiting Dr. Whaley to his actual area of expertise. III. Knight waived any objection to allegedly “undisclosed opinions” offered by Dr. Eckman at trial. ¶35. Knight also argues that she is entitled to a new trial because Dr. Eckman gave new and previously undisclosed opinions at trial. At trial, Dr. Eckman testified that if a misplaced pedicle screw had been the cause of Knight’s pain, then Dr. Humphreys would have noted irritation and “monitoring issues”7 when he removed the screws from Knight’s pedicles in 2010. Yet, Dr. Humphreys’s operative report noted “no irritation” and “no monitoring issues.” Prior to trial, Dr. Clark disclosed that Dr. Eckman would testify that the allegedly misplaced screw was not the cause of Knight’s pain and that he would rely in part on Dr. Humphreys’s records. Nonetheless, Knight argues that Dr. Eckman’s trial testimony was improper because there was no specific disclosure of the conclusion that Dr. Eckman drew from these specific notes in Dr. Humphreys’s operative report. In response, Dr. Clark argues that Knight waived this issue by failing to object at trial and that Dr. Eckman’s opinions on causation were adequately disclosed. We agree with Dr. Clark on both counts. ¶36. First, Knight did not object to Dr. Eckman’s testimony at trial. Therefore, Knight waived the issue, and it is procedurally barred on appeal. Canadian Nat’l/Ill. Cent. R.R. Co. 7 Dr. Eckman testified that Dr. Humphreys used “neuromonitoring” to detect signs of irritation or injury to the nerve. 17 v. Hall, 953 So. 2d 1084, 1096-97 (¶42) (Miss. 2007). ¶37. Knight argues that she preserved this issue by arguing in general terms during the pretrial conference that Dr. Clark and Dr. Eckman should not be allowed to give new opinions at trial. In response to Knight’s argument, the court asked defense counsel whether either witness “planned on changing any of [his] testimony from the deposition.” Defense counsel answered, “Not to my knowledge, Your Honor.” The exchange did not produce any specific or definitive in limine ruling or order. But even if it had, Knight still would have been required to object to Dr. Eckman’s testimony at trial. If during trial a “party violates the terms of [a pretrial in limine] ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal.” M.R.E. 103 advisory committee note. This is because “[t]he error, if any, in such a situation occurs only when the evidence is offered and admitted.” Id.; accord, e.g., United States Aviation Underwriters Inc. v. Olympia Wings Inc., 896 F. 2d 949, 956 (5th Cir. 1990); United States v. Roenigk, 810 F. 2d 809, 815 (8th Cir. 1987). A contemporaneous objection was necessary here because the trial judge was in no position to know which of Dr. Eckman’s opinions had been disclosed prior to trial. Knight had that knowledge, and it was incumbent upon her to raise the issue contemporaneously. By failing to do so, she waived the issue. ¶38. Knight also argues that she preserved the issue by later cross-examining Dr. Eckman as to whether he “ever express[ed] to anybody that [he] found significance in that part of Dr. Humphreys’s report before [trial].” However, this was not a timely objection, as the allegedly improper testimony came significantly earlier during direct examination. Indeed, 18 this was not an “objection” at all. It was just a question of a witness. See M.R.E. 103(a) (“A party may claim error in a ruling to admit . . . evidence only if . . . a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground . . . .”). Therefore, we must again conclude that Knight failed to make a timely objection and failed to preserve this issue for appeal. Hall, 953 So. 2d at 1096-97 (¶42). ¶39. Moreover, the trial judge would not have been required to exclude Dr. Eckman’s testimony even if Knight had made a timely objection. A party may use interrogatories to require an opposing party “to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” M.R.C.P. 26(b)(4)(A)(i). However, “[w]e have stated that ‘discovery responses regarding experts do not, indeed cannot include everything that an expert witness will state at trial.’” Walker v. Gann, 955 So. 2d 920, 928-29 (¶24) (Miss. Ct. App. 2007) (quoting Peterson v. Ladner, 785 So. 2d 290, 295 (¶20) (Miss. Ct. App. 2000)). Prior to trial, Dr. Clark disclosed that Dr. Eckman would testify that the allegedly misplaced screw was not the cause of Knight’s pain, that non-union of her fusion was the most likely cause of her pain, and that his opinions were based in part on Dr. Humphreys’s records. Knight’s only objection on appeal is that there was no specific disclosure that a few specific lines of those records supported Dr. Eckman’s (disclosed) opinions. On these facts, even if Knight had timely objected, the trial judge would have been within his discretion to conclude that there was no “trial by ambush” and allow the testimony. See Peterson, 785 So. 2d at 296 (¶23). ¶40. In summary, Knight waived this issue by failing to object to Dr. Eckman’s testimony 19 at trial. In addition, even if she had objected, the trial judge would have been within discretion to allow the testimony. Outcome: There is sufficient evidence to support the verdict, the verdict is not against the Plaintiff's Experts: Defendant's Experts: Comments: |
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