Wells v. Tucker, 2006-CA-00385-COA.

• Decision Date: 04 September 2007
• Docket Number: No. 2006-CA-00385-COA.,2006-CA-00385-COA.
• Citation: 997 So.2d 925
• Parties: Felicia WELLS and Reginald Wells, Appellants v. James (Marty) TUCKER, M.D., Individually and in the Scope of His Employment and/or Agency for Jackson Healthcare for Women, P.A., Appellee.
• Court: Mississippi Court of Appeals

997 So.2d 925

Felicia WELLS and Reginald Wells, Appellants v. James (Marty) TUCKER, M.D., Individually and in the Scope of His Employment and/or Agency for Jackson Healthcare for Women, P.A., Appellee.

No. 2006-CA-00385-COA.

Court of Appeals of Mississippi.

September 4, 2007.

Rehearing Denied January 29, 2008.

Darryl Moses Gibbs, Rogen K. Chhabra, Jonathan C. Tabor, Jackson, attorneys for appellants.

Shelly G. Burns, Jackson, Whitman B. Johnson, attorneys for appellee.

EN BANC.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This is an appeal of a medical malpractice case in which a jury rendered a verdict for the defendant physician. Felicia and Reginald Wells sued Dr. James Tucker and alleged that Dr. Tucker negligently caused a perforation of Felicia's bowels during a C-section delivery. Dr. Tucker denied liability.

¶ 2. After Dr. Tucker designated his expert witnesses, the Wells filed a motion in limine and sought to preclude Dr. Tucker's experts from testifying. The Wells reasoned that Dr. Tucker's experts should not be allowed to testify because, along with Dr. Tucker, they were members of a nonprofit medical liability insurance corporation known as Medical Assurance Company of Mississippi (MACM). Alternatively, the Wells sought to cross-examine Dr. Tucker's experts regarding their commonality of coverage. The circuit court allowed Dr. Tucker's experts to testify and did not allow the Wells to cross-examine Dr. Tucker's experts regarding their commonality of coverage.

¶ 3. At trial, the Wells renewed their attempt to cross-examine Dr. Tucker's experts as to bias or prejudice arising from their commonality of coverage. According to the Wells, Dr. Tucker's experts were biased in favor of Dr. Tucker because he was a fellow member of MACM. However, Dr. Tucker objected and the circuit court sustained his objection. Ultimately, the jury returned a verdict for Dr. Tucker.

¶ 4. Aggrieved, the Wells appeal and claim the circuit court erred when it failed to allow cross-examination of Dr. Tucker's experts to demonstrate bias. Upon careful consideration, for reasons that will become abundantly clear, we conclude that the circuit court erred when it did not permit the Wells' cross-examination of Dr. Tucker's experts regarding the fact that they share a common insurance carrier. As such, we reverse the verdict of the jury and remand this matter for a new trial.

FACTS

¶ 5. This case was set into motion by events stemming from Felicia Wells's pregnancy. On Sunday, February 6, 2000, Felicia began having contractions. Felicia went to the Woman's Hospital — otherwise known as Jackson Healthcare for Women. Dr. James Tucker, an obstetrician gynecologist, was on call at that time. Dr. Tucker noted that the baby's heart rate was dropping. As such, Dr. Tucker and Dr. Charles Bush performed a Cesarean section delivery of Felicia's daughter, Amari.

¶ 6. Between the following Monday and Saturday, February 12th, Felicia experienced pain and bloating in her abdomen. According to Felicia, her doctors told her that she was experiencing normal post-Cesarean pains. Sometime during the following Friday night or early Saturday morning, Felicia had an unusual bowel movement. Without being graphic, Felicia lost control of her bowels. The next morning, Felicia was put on a clear liquid diet. After she tried to drink some broth and some Sprite, Felicia felt a sharp severe burning sensation in the "upper part of [her] abdomen."

¶ 7. Felicia soon underwent a CT scan at River Oaks Hospital. According to Felicia, her mother told her "that they found a little hole." Felicia would later testify that no physician ever approached her and explained her condition. Soon after the discovery of the "little hole," Dr. Walter Jones performed surgery on Felicia. When Felicia woke up, she realized that she had a colostomy bag.

¶ 8. After a nine or ten day stay at River Oaks, Dr. Jones transferred Felicia to St. Dominic's Hospital so that she could be under the care of Dr. Hal Flowers, an infection control doctor. Felicia was finally discharged on February 23, 2000. During her time in treatment, she did not see Amari. On May 16, 2000, Felicia went back to St. Dominic's and had her colostomy reversed. In early June of 2000, Felicia returned to her home with Reginald and Amari.

PROCEDURAL HISTORY

¶ 9. On January 29, 2002, the Wells 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 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.

¶ 10. The central issue in this case on appeal involves the fact that Dr. Tucker and some, if not all of his experts, all were members of, and had their medical malpractice liability policies through, the same company — Medical Assurance Company of Mississippi (MACM). MACM, a nonprofit corporation, is a limited pool of Mississippi physicians who are self-insured for protection against medical negligence suits.¹

¶ 11. On November 10, 2003, the Wells filed a combined motion in limine and a motion to strike Dr. Tucker's experts. The Wells sought to strike Dr. Tucker's experts as cumulative and biased. According to the Wells, the circuit court should preclude their testimony as inherently biased. Alternatively, and most pertinent to our present purposes, the Wells sought to cross-examine Dr. Tucker's experts to demonstrate their commonality of coverage, thereby demonstrating bias via their direct personal financial interests in the outcome. The Wells specifically noted that "MACM insureds are shareholders in MACM and all carry `equity' accounts. The equity accounts are basically retirement accounts that prosper and grow as premiums increase and payouts decrease."

¶ 12. Dr. Tucker responded to the Wells' 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 Wells 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.

¶ 13. On December 15, 2003, the circuit court issued its order and resolved the Wells' motion in limine. The circuit court overruled the Wells' request to strike Dr. Tucker's experts. As for the Wells' request to cross-examine Dr. Tucker's experts to demonstrate bias through a commonality of 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 their commonality of coverage.

¶ 14. On November 7, 2005, the Wells filed "consolidated motions in limine and renewal of previous motion in limine and motion to strike." Among other things, the Wells 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.

¶ 15. The parties went to trial on November 8, 2005. Before jury selection, counsel for the Wells brought to the circuit court's attention that the Wells had renewed their request to cross-examine Dr. Tucker's experts regarding their commonality of coverage. At that point, the following exchange transpired:

THE...