Poole ex rel. Poole v. Avara

• Decision Date: 11 August 2005
• Docket Number: No. 2004-CA-01000-SCT.,2004-CA-01000-SCT.
• Parties: Richard J. POOLE, On Behalf of WRONGFUL DEATH BENEFICIARIES OF Linda POOLE, Deceased v. William T. AVARA, M.D. and South Mississippi Surgeons, P.A.
• Court: Mississippi Supreme Court

908 So.2d 716

Richard J. POOLE, On Behalf of WRONGFUL DEATH BENEFICIARIES OF Linda POOLE, Deceased v. William T. AVARA, M.D. and South Mississippi Surgeons, P.A.

No. 2004-CA-01000-SCT.

Supreme Court of Mississippi.

August 11, 2005.

Jennifer P. Burkes, Gulfport, attorney for appellant.

Melinda Owen Johnson, John A. Banahan, Pascagoula, attorneys for appellee.

Before COBB, P.J., CARLSON and DICKINSON, JJ.

CARLSON, Justice for the Court.

¶ 1. Today's case is before us as a result of the trial court's entry of a judgment for the defendants consistent with the jury verdict in this wrongful death/medical malpractice case. Finding no reversible error, we affirm the final judgment entered by the Jackson County Circuit Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Linda Poole, a patient of Dr. William T. Avara, died in the early morning hours of March 27, 2001. Dr. Avara's care of Linda Poole began in March of 2001, when Poole was admitted at Singing River Hospital in Pascagoula, Mississippi, with complaints of constipation and abdominal pain. After diagnosing Poole with a gallstone condition, Dr. Avara surgically removed her gallbladder. However, Poole continued to experience constipation and abdominal pain; and therefore, she returned to the hospital a few days later. After discovering on this second hospital visit that Poole had an enlarged colon, Dr. Avara ordered a colonoscopy — an examination of the intestines requiring a bowel prep beforehand. The bowel prep, which cleanses the bowel of stool, was unsuccessful. Poole was unable to take the bowel prep medication as she was still nauseous from the gall bladder surgery. As a result, Poole's colon remained full of feces and bacteria.

¶ 3. The colonoscopy revealed adenocarcinoma, a malignant, cancerous mass inside Poole's colon, which was blocking feces from passing through her colon. This was the source of Poole's pain and constipation. Dr. Avara surgically removed the mass from Poole's colon by cutting out the affected segment of the colon and then sewing the two ends of her colon back together — a procedure known as an anastomosis.

¶ 4. A few days later Poole's condition worsened, and she died during attempts to resuscitate her. An autopsy revealed leakage of feces and bacteria into Poole's abdomen from a tear of the surgical seam or suture on her colon. It is at this point of the thus-far stated factual scenario that the plaintiff and the defendants part ways. Poole's beneficiaries assert that Dr. Avara improperly and imprudently performed the anastomosis and that, as a result, the surgical seam had been leaking for hours prior to Poole's death. Poole's beneficiaries further allege that the slow leak resulted in peritonitis — inflammation of the peritoneum (which is a smooth serous membrane lining the abdominal cavity) and that this peritonitis was the cause of death. On the other hand, Dr. Avara asserts that the leakage occurred as a result of cardiopulmonary resuscitation (CPR) — that the pressure applied to Poole's chest during resuscitation, combined with the air pumped into her body by an ambu bag, caused the surgical seam to pop open. Further, Dr. Avara opined that the seam had simply not been opened long enough to cause peritonitis.

¶ 5. Poole's beneficiaries contend that the proper surgery for Dr. Avara to have performed was not an anastomosis, but a colostomy — a procedure whereby the colon is connected to the surface of the abdomen, allowing feces to be deposited into a bag until the colon heals enough for a surgeon to later perform an anastomosis. Conversely, Dr. Avara asserts that the anastomosis was proper and that the CPR pressure caused the tear.

¶ 6. Richard J. Poole, Linda Poole's husband, filed this medical negligence lawsuit against Dr. Avara and his medical group, South Mississippi Surgeons, P.A., on behalf of all of Linda's wrongful death beneficiaries in the Circuit Court of Jackson County, Mississippi. The jury found for the defendants, and the circuit court thereafter entered a final judgment consistent with the jury verdict. In due course, the circuit court denied the plaintiff's post-trial motion for a judgment notwithstanding the verdict, or in the alternative, motion for a new trial. It is from this order denying post-trial motions that Richard Poole now appeals to this Court.

¶ 7. On appeal, Poole's beneficiaries raise six issues, specifically, whether the trial court erred in: (1) overruling Poole's Daubert/McLemore challenge: (2) permitting the defense to argue a new cause of death for the first time at trial; (3) permitting a physician associated in business with Dr. Avara to testify as an expert witness for Dr. Avara; (4) excluding the deposition of a witness who was more than 100 miles away and out-of-state; (5) denying Poole's motion for a judgment notwithstanding the verdict; and, (6) denying Poole's motion for a new trial.

DISCUSSION

I. THE DAUBERT/McLEMORE RULING

¶ 8. The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion. Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003). The trial judge has the sound discretion to admit or refuse expert testimony; an abuse of discretion standard means the judge's decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous. Id. This is the standard for the first four issues in this case, as all deal with the admission or suppression of evidence by the trial court.

¶ 9. The first question is therefore whether the trial judge's discretion in allowing defense expert testimony on the cause of the torn anastomosis seam was arbitrary and clearly erroneous. This goes to the primary issue of whether the expert testimony allowed at trial was both relevant and reliable. Stated another way, this Court must now determine whether the testimony was so irrelevant and unreliable that the trial judge's decision to allow it was arbitrary and clearly erroneous. The Mississippi rule of evidence allowing expert testimony is identical to its counterpart in the Federal Rules of Evidence, and reads:

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.

Miss. R. Evid. 702.

¶ 10. Under the authority of this rule, Dr. Avara offered expert testimony that CPR and resuscitation caused the anastomosis on Poole's colon to tear to rebut evidence that the tear was a result of Dr. Avara's negligent decision to perform the anastomosis. Before trial, Poole's beneficiaries moved to exclude this testimony under the United States Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Miss. R. Evid. 702, as amended by this Court on May 29, 2003.

¶ 11. In Daubert, the United States Supreme Court rejected the "general acceptance" test for scientific expert testimony then in place. For years, in federal courts, the standard had been that scientific theories offered by expert witnesses at trial had to enjoy general acceptance in their respective fields to be admissible. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). The Frye court had held, "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. The high Court relaxed this standard for federal practice in Daubert, stating that the Federal Rules of Evidence, specifically Rule 702, superceded Frye because they were enacted after that decision. 509 U.S. at 589, 113 S.Ct. 2786. Interpreting the language of Rule 702, which at that time did not include the three numbered restrictions, the Court held that scientific expert testimony need be only relevant and reliable under the rules. Id. The Court emphasized the liberal thrust of the rules and the general approach of the rules to relax traditional barriers to opinion testimony. Id. at 588, 113 S.Ct. 2786. Thus, the two-pronged Daubert test was born and remains in place governing admissibility of scientific expert testimony under Rule 702 today.¹

¶ 12. Now, of course, our Rule 702 has three additional requirements put in place after both Daubert and Kumho Tire: The testimony must be based upon sufficient facts or data; the testimony must be the product of reliable principles and methods; and, the witness must have applied the principles and methods reliably to the facts of the case. Miss. R. Evid. 702. When put to this test, Dr. Avara's expert testimony arguably appears to be inadmissible. Poole's beneficiaries argue that (1) the testimony is not based upon sufficient facts or data — the only certain fact is that the suture burst, not what the cause of the burst was; (2) the testimony is not the product of reliable principles and methods, at least none that have been conclusively published in medical journals according to all of the witnesses; and, (3) the witnesses did not apply the principles and methods reliably to the facts of the case, because no reliable principles and methods exist to support this theory.

¶ 13. The Daubert Court considered four general questions in determining the admissibility of expert testimony, namely (1) whether the theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and, (4) whether the theory or...