Wells v. Tucker
| Decision Date | 02 October 2008 |
| Docket Number | No. 2006-CT-00385-SCT.,2006-CT-00385-SCT. |
| Citation | 997 So.2d 908 |
| Parties | Felicia WELLS and Reginald Wells v. James (Marty) TUCKER, M.D., Individually and in the Scope of His Employment and/or Agency for Jackson Healthcare for Women, P.A. |
| Court | Mississippi Supreme Court |
Rogen K. Chhabra, Darryl Moses Gibbs, Jonathan C. Tabor, Jackson, attorneys for appellants.
Whitman B. Johnson, III, Shelly G. Burns, Jackson, attorneys for appellee.
EN BANC.
¶ 1. This case is before the Court on a petition for writ of certiorari filed by James (Marty) Tucker, M.D., after a majority decision of the Court of Appeals (two judges not participating) which reversed the Rankin County Circuit Court's judgment entered in favor of Dr. Tucker, consistent with the jury's verdict finding in favor of the defendants in this medical-malpractice case. Wells v. Tucker, 997 So.2d 925, 2007 WL 2473485, 2007 Miss. App. LEXIS 594 (Miss.Ct.App. Sept. 4, 2007). Finding error, we reverse the judgment of the Court of Appeals and reinstate and affirm the trial court judgment entered in favor of Dr. Tucker.
¶ 2. Felicia Wells's baby girl was delivered by a Cesarean section performed by Dr. Tucker and Dr. Charles Bush of Jackson Healthcare for Women, P.A., on February 6, 2000. Due to various complications, Wells underwent emergency surgery a few days later at River Oaks Hospital, and when she awoke from surgery, she discovered she had a colostomy bag. After approximately ten days at River Oaks, Wells was transferred to St. Dominic's Hospital and ultimately was released to go home on February 23, 2000. Approximately three months later, Wells returned to St. Dominic's to have her colostomy reversed. Wells v. Tucker, 997 So.2d 926-27, 2007 Miss.App. LEXIS 594, **3-4, ¶¶ 5-8.
¶ 3. The procedural history of this case in the trial court is set out herein virtually verbatim from the Court of Appeals' opinion, exclusive of footnotes 1 and 2.
¶ 4. On January 29, 2002, the Wellses filed a complaint in the Rankin County Circuit Court against Dr. Tucker and various other entities. Dr. Tucker denied liability. The parties conducted discovery and designated their experts. On September 26, 2003, Dr. Tucker designated three potential expert witnesses: Dr. Paul Rice, Dr. John Colter Morrison, and Dr. Edward Rigdon. Additionally, Dr. Tucker reserved the right to call Dr. Kim Nichols and Dr. Charles Bush. Dr. Nichols and Dr. Bush both practiced with Dr. Tucker. Finally, Dr. Tucker reserved the right to testify as to his own expert opinion.
¶ 5. The central issue on appeal involves the fact that Dr. Tucker and some, if not all, of his experts were members of, and had their medical malpractice liability policies through, the same insurer — Medical Assurance Company of Mississippi (MACM). A nonprofit corporation, MACM is a limited pool of Mississippi physicians who are self-insured for protection against medical negligence suits.
¶ 6. On November 10, 2003, the Wellses filed a combined motion in limine and a motion to strike Dr. Tucker's experts as cumulative and biased. According to the Wellses, the circuit court should exclude their testimony as inherently biased. Alternatively, and most pertinent to our present purposes, the Wellses sought to cross-examine Dr. Tucker's experts concerning their commonality of insurance coverage to demonstrate bias via an alleged direct and personal financial interest in the outcome of the Wells v. Tucker lawsuit. The Wellses alleged that
¶ 7. Dr. Tucker responded to the Wellses' 2003 motion in limine and argued that the circuit court should not preclude him from calling his designated expert witnesses. Dr. Tucker also argued that the circuit court should not allow the Wellses to cross-examine his experts regarding the fact that they share a common insurance carrier. Dr. Tucker attached the affidavit of Michael Houpt, the chief executive officer of MACM, as an exhibit to his response. According to Houpt's affidavit:
5. [MACM] is a non-profit corporation organized pursuant to Miss.Code Ann. Section 83-47-1, et seq. and has no shareholders. Physicians insured by [MACM] are merely members of the company.
6. According to the Bylaws of [MACM], the annual net profit or loss, as the case may be, of [MACM] is allocated among the physicians who are insured by [MACM] (the "equity accounts"). Such allocation is only "on paper" because no assets of [MACM] are actually segregated or transferred into separate accounts.
7. The physicians have no vested interest in the amounts represented by the equity accounts. Each physician insured by [MACM] has only a contingent right to receive the amount represented by the physician's equity account. The physician can receive said amount only if the physician dies, becomes permanently disabled or retires while insured by [MACM]. Except for such death, disability or retirement, a physician loses the amount represented by the physician's equity account upon termination, cancellation or other non-renewal of the physician's insurance coverage with [MACM].
8. The equity account does not earn interest and cannot be encumbered, transferred or assigned by the physician. [MACM's] liability for payment of the amounts represented by the equity accounts is subordinate to the general creditors of [MACM]. The equity accounts are not retirement accounts.
9. There are presently 2,424 physicians eligible to receive allocation to their equity accounts for 2003; after consideration of applicable reinsurance, the maximum indemnity retained by [MACM] on this claim against Dr. Tucker is $500,000; and the allocation to the equity accounts is based upon after-tax profits of [MACM]. In the event Plaintiffs receive a verdict for damages against Dr. Tucker in the above styled and numbered action, the maximum amount by which any physician's equity account balance can be affected is only $136.00.
¶ 8. On December 15, 2003, the circuit court issued its order and resolved the Wellses' motion in limine. The circuit court overruled the Wellses' request to strike Dr. Tucker's experts. As for the Wellses' request to cross-examine Dr. Tucker's experts to demonstrate bias through commonality of insurance coverage, the circuit court found, "under Rule 403, any probative value that may flow from the examination of the witness in this area is far outweighed by the prejudice that would result from the admission of the insurance issue before the jury." Accordingly the circuit court refused to allow cross-examination of Dr. Tucker's experts on the subject of commonality of insurance coverage.
¶ 9. On November 7, 2005, the Wellses filed "consolidated motions in limine and renewal of previous motion in limine and motion to strike." Among other things, the Wellses renewed their request that they be allowed to cross-examine Dr. Tucker's experts to show that, like Dr. Tucker, they had medical professional liability policies with MACM and, as a result, they were biased in favor of Dr. Tucker due to their direct personal financial interest in the outcome of the litigation.
¶ 10. The parties went to trial on November 8, 2005. Before jury selection, counsel for the Wellses brought to the circuit court's attention that the Wellses had renewed their request to cross-examine Dr. Tucker's experts regarding commonality of insurance coverage. At that point, the following exchange transpired:
THE COURT: I understand. And you are not waiving your argument, and I'm reserving ruling for whenever you make this argument during the course of trial should you feel it becomes necessary. And then relative to the MACM issue, Mr. Johnson?
MR. JOHNSON [counsel for Dr. Tucker]: You had already ruled on, Judge.
MR. GIBBS [counsel for the Wellses]: If I may, I know you were talking about striking the experts. I know you've rendered on that, your Honor. Will you allow cross[-]examination into their monetary interest within MACM, as supported by the affidavit filed by Mr. Johnson in response to my motion? It shows a potential interest, which I think it's distinguished from [Toche], which only dealt with a common carrier. In this situation, the MACM insurers have equity handles, and that's the only issue, if I can be allowed cross[-]examination at that point.
¶ 11. After jury selection, the Wellses began their case-in-chief, and the first witness was Felicia, who testified, inter alia, that ...
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...insurance carrier to overcome the potentially prejudicial effect of introducing evidence of a defendant's insurance."); Wells v. Tucker, 997 So.2d 908, 917 (Miss.2008) (trial court did not abuse discretion in excluding evidence of common insurance carrier, noting strong policy to not interj......
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