Smith v. Miss. Coast OB/GYN
| Citation | 325 So.3d 723 |
| Decision Date | 29 June 2021 |
| Docket Number | No. 2019-CA-01058-COA,2019-CA-01058-COA |
| Parties | Abigail Reese SMITH, a Minor BY AND THROUGH Her Natural Parents and NEXT FRIENDS, Hanna SMITH and Derrick Smith, Appellants v. MISSISSIPPI COAST OB/GYN and Joseph P. Vice, M.D., Appellees |
| Court | Court of Appeals of Mississippi |
BEFORE WILSON, P.J., LAWRENCE AND McCARTY, JJ.
WILSON, P.J., FOR THE COURT:
¶1. This appeal follows a jury verdict in favor of an OB/GYN on a claim of medical malpractice during a cesarean delivery. The plaintiffs argue (1) that the trial judge should have entered a default judgment or excluded expert testimony as a sanction for a violation of the court's amended scheduling order; (2) that a new trial is required because defense counsel asked a witness an improper question, although the trial judge sustained the plaintiffs’ objection to the question and the witness did not answer it; and (3) that the trial judge gave "impermissibly abstract" and "conflicting" jury instructions on negligence. We find no error and affirm.
PROCEDURAL HISTORY
¶2. In October 2013, Abigail Smith, through her parents Hanna and Derrick Smith, filed a medical malpractice lawsuit against Dr. Joseph Vice1 in the Jackson County Circuit Court. The Smiths alleged that Vice had injured Abigail's neck and spinal cord during Abigail's cesarean birth. The Smiths alleged that Abigail was paralyzed from the chest down and suffered other related physical issues as a result of Vice's negligence.
¶3. In February 2016, the court entered a scheduling order and set the case for trial on November 7, 2016. The court amended the scheduling order twice, finally extending the discovery deadline to September 20, 2016, but the trial date remained unchanged.
¶4. In September 2016, the Smiths filed a motion to continue the trial date. At the hearing on the motion, the Smiths’ attorney stated that he had been unable to get Vice's counsel to provide dates for depositions of Vice's experts. The trial court granted the motion for a continuance and entered a "Third and Final Scheduling Order." Trial was continued to February 27, 2017. The order also provided that the parties would identify all witnesses they wanted to depose by October 20, 2016; that deposition dates would be provided by October 27, 2016; and that discovery would be completed by January 6, 2017.
¶5. On December 27, 2016, the Smiths filed a motion for sanctions under Rule 37 of the Mississippi Rules of Civil Procedure. The motion stated that Vice had violated the court's scheduling order by failing to provide deposition dates for Vice's experts. In addition, the motion stated that Vice had ignored the deposition dates that the Smiths had offered for their experts. The Smiths asked the court to sanction Vice by entering a default judgment in favor of the Smiths on the issues of liability and causation or, in the alternative, by excluding Vice's expert witnesses.
¶6. In their response, Vice's attorneys admitted that they had failed to provide deposition dates for their experts. They said the failure was an "oversight" and that counsel opposite never made a further request for deposition dates after the October 27 deadline. Vice's attorneys also showed that on December 13, 2016, they realized their "oversight" and sent counsel opposite a letter offering fifteen deposition dates. Counsel for the Smiths never responded to the letter and instead filed their motion for sanctions two weeks later.
¶7. At a hearing on the motion, one of Vice's attorneys admitted that they had "just dropped the ball" by failing to provide depositions dates. But he argued that when they realized their error and tried to remedy it, counsel opposite unjustifiably refused to communicate and cooperate in scheduling depositions. He also argued that the harsh sanctions sought by the Smiths were not appropriate for a negligent failure to meet a discovery deadline.
¶8. The judge stated that there was "no excuse" for the missed deadline. However, the judge then considered whether the violation was "due to bad faith or negligence," whether "lesser sanctions" would be a sufficient sanction and remedy, whether the Smiths had been prejudiced, whether the violation "was a result of confusion or misunderstanding," and whether Vice bore personal responsibility for the violation. After considering those factors, the judge concluded that Vice's violation of the scheduling order should not result in a default judgment or the exclusion of witnesses; however, the judge did award the Smiths attorney's fees for having to bring the motion. The judge also continued the trial again.
¶9. Prior to trial, the Smiths filed a motion in limine to exclude any evidence related to a chromosomal abnormality
that Abigail has. They argued that Abigail's chromosomal abnormality was unrelated to the issues in the case and that any evidence of it would be "highly prejudicial" and would only "confuse or distract the jury from the relevant facts." In response, Vice's attorneys stated that they did not intend to link the chromosomal abnormality to Abigail's paralysis. However, they argued that the motion in limine should be denied because components of Abigail's life care plan and the Smiths’ claim for damages were related to the effects of the chromosomal abnormality, not her paralysis. Vice's counsel told the judge that their experts would testify that Abigail's paralysis was "congenital"—i.e., that it was not caused by anything that occurred during her birth—but would not "tie it to [Abigail's] specific [chromosomal] abnormality."
¶10. The trial judge later referred the Smiths’ motion in limine and other pretrial motions to a special master. At a subsequent hearing, the special master asked Vice's counsel whether the chromosomal abnormality
was part of an "alternative causation theory that the defense intend[ed] to present." Vice's counsel stated that it was not but again argued that the abnormality was relevant because it had caused developmental delays that were covered by the life care plan for Abigail that the Smiths had produced.
¶11. In July 2018, the special master filed a report and recommendation concluding that the Smiths’ motion in limine should be denied as "overbroad" because their "global damages model" included future needs and costs based on "congenital conditions and impairments not related to any alleged negligence" by Vice. The special master concluded that granting the motion in limine "would unduly restrict" Vice's ability to present his case. The Smiths did not file objections to the special master's recommendation regarding their motion in limine. See M.R.C.P. 53(g)(2). Prior to trial, the trial judge reviewed and adopted the special master's recommendation as the court's ruling on the motion.
FACTUAL BACKGROUND AND TRIAL
¶12. Abigail was born by cesarean delivery in July 2009. Her mother, Hanna, had originally been pregnant with twins, but the other twin miscarried around eleven weeks. Abigail's father, Derek, and Hanna both testified that the pregnancy was otherwise normal. They testified that they could feel Abigail moving in utero and that there were no complications between the miscarriage of Abigail's twin and Abigail's delivery.
¶13. When Hanna saw Vice around week thirty-seven of her pregnancy, she had symptoms of preeclampsia
. Vice recommended that she be admitted to the hospital in order to deliver Abigail. Vice testified at trial that there is no "cure" for preeclampsia other than to deliver the baby. Recent scans had shown that Abigail was in a breech position—meaning her feet, rather than her head, were pointed toward the birth canal—and a decision was made that Abigail would be delivered by c-section. Dr. David Lewis, who testified for Vice as an expert in obstetrics and gynecology with a subspecialty in maternal-fetal medicine, testified that when Abigail was born in 2009, the standard of care for a breech baby would have been to deliver by c-section. The c-section was not related to Hanna's preeclampsia.
¶14. Hanna and Derek both described Abigail's delivery as "rough." Subsequent to Abigail's birth, Hanna had another c-section to deliver twins, and she testified that Abigail's delivery was much rougher. Hanna said that she was afraid she would be pulled off the operating table during Abigail's delivery. A video of the delivery was played for the jury at trial.
¶15. Dr. Larry Griffin testified as the Smiths’ expert in obstetrics and gynecology. He testified that there is a risk during a c-section that the baby's head could be extended improperly, so it is necessary to "artificially flex the baby's head so that the baby's head doesn't further extend during the course of the delivery." Griffin said that if the delivering doctor bent the head too far back, then he could compress the spinal cord or even break the spinal bones. Griffin testified that, based on his observation of the video, Vice did not "maintain flexion" on Abigail's face, which Griffin said was the only way to properly flex the baby's head. Griffin believed that Vice had hyperextended Abigail's neck during the delivery. He testified that Abigail's medical records indicated a lower spinal injury "exactly" where he would expect to see an injury arising from a hyperextension during a cesarean delivery. Griffin testified that Vice had breached the standard of care for a cesarean delivery by failing to properly support Abigail's head and thereby hyperextending her neck.
¶16. Vice agreed with Griffin's testimony that a baby's neck must be manually flexed during a cesarean delivery. However, he disagreed with Griffin's testimony that he failed to do so during Abigail's delivery. He testified that Abigail's neck could not have been hyperextended because it was "very clearly" straight and not bent back. He said that he had watched the video "dozens" of...
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