IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-01037-SCT
ANGELIA PATTERSON, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES AND AS A DM IN ISTRATRIX OF THE ESTATE OF ATRAVIUS COLEMAN, DECEASED
v.
DR. BOB TIBBS, DR. WILLIAM MCARTHUR AND BOLIVAR COUNTY MEDICAL CENTER
DATE OF JUDGMENT: 06/11/2009 TRIAL JUDGE: HON. CHARLES E. WEBSTER COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GEORGE F. HOLLOWELL, JR. ATTORNEYS FOR APPELLEES: L. CARL HAGWOOD MARY FRANCES STALLINGS-ENGLAND DIANE V. PRADAT BRADLEY K. OVERCASH KIMBERLY NELSON HOWLAND NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED - 03/17/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Atravius Coleman was born at Bolivar County Medical Center (BMC) on February
22, 2002, at 4:23 a.m. Atravius died less than one day later, on February 23, 2002, at 12:05
a.m. His mother, Angelia Patterson, brought a wrongful-death claim against BMC, Dr. Bob Tibbs, and Dr. William McArthur (the defendants), claiming that they had caused Atravius’s
death either through negligence or by breaching the standard of care. The defendants filed
a motion to exclude Patterson’s expert witnesses on causation, claiming that their testimony
was not reliable. After a two-day Daubert1 hearing in the Circuit Court for the Second
Judicial District of Bolivar County, the trial judge granted the defendants’ motion and
excluded the expert witnesses’ testimony on the predeath levels of Demerol in Atravius’s
blood. The trial court subsequently granted summary judgment in favor of the defendants.
¶2. Patterson now appeals to this Court. We find that the trial court did not abuse its
discretion in excluding the experts’ testimony and that the trial court did not err in granting
summary judgment in favor of Dr. William McArthur. However, we are constrained to find
that the trial court erred in granting summary judgment in favor of Dr. Bob Tibbs and Bolivar
County Medical Center. Thus, we affirm in part and reverse in part the trial court’s judgment
in favor of all defendants, and we remand this case for further proceedings relating to
Patterson’s claims against Dr. Tibbs and Bolivar County Medical Center.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶3. Angelia Patterson arrived at BMC on February 21, 2002, and was attended to by Dr.
McArthur. She gave birth to a baby boy, Atravius Coleman, on February 22, 2002, at 4:23
a.m. Atravius appeared to be healthy at birth, receiving a nine-out-of-ten APGAR score one
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
2 minute after delivery and five minutes after delivery.2 Atravius was placed under the care
of Dr. Tibbs after his birth, even though Dr. McArthur performed the circumcision on
Atravius.
¶4. Atravius was taken for circumcision at 1:45 p.m. on February 22, 2002. Dr. McArthur
performed the circumcision and stated in his affidavit that he did not give Atravius Demerol
for pain relief. Also, according to Atravius’s medical records, no pain medication was
administered for this procedure. A nurse noted that Atravius looked pale at 3:30 p.m. Dr.
Tibbs was notified of Atravius’s condition and ordered an echocardiogram. The results of
the test were “suspicious for hypoplastic left heart syndrome.” Plans were then made to
transport Atravius to the University of Mississippi Medical Center Pediatric Department
(UMC). Atravius died at BMC before the ambulance from UMC arrived.
¶5. The defendants claim that Atravius died as a result of hypoplastic left heart syndrome
and that the condition is fatal without surgery. Patterson claims that Atravius died from an
overdose of Demerol, which he either received from his mother before delivery or after his
birth, likely during his circumcision. To support this claim, Patterson retained two expert-
causation witnesses: Dr. Steven Shukan and Dr. Steven Hayne.
¶6. Dr. Shukan is a board-certified pediatrician. Dr. Shukan’s opinion is that Atravius
received a lethal dose of Demerol (meperidine) – approximately 100 milliliters – around the
same time as his circumcision. To form this opinion, Dr. Shukan used a process called back-
2 APGAR is an acronym for Activity, Pulse, Grimace, Appearance, and Respiration. It measures the status of these conditions and is usually given immediately following birth and a second time five minutes later. A score of seven or above is indicative of a healthy newborn.
3 extrapolation. Dr. Shukan started with the amount of Demerol and normeperidine in the
blood sample taken from Atravius after his death.3 Using the half-life of the drug 4 and the
post-death drug levels in Atravius’s blood sample, Dr. Shukan was able to calculate a
predeath level of the drug. The half-life used is essential to the calculation. Because
neonates metabolize drugs more slowly than adults, a different half-life must be used in
calculations involving neonates.
¶7. Dr. Shukan used a half-life of three to three-and-one-half hours in his back-
extrapolation calculation. Dr. Shukan testified in his deposition that he referred to his
pharmacy textbooks, Nelson’s Textbook of Pediatrics, The Physicians’ Desk Reference, and
WebMD (a website) in forming his opinion. He also stated that he used his professional
knowledge of Demerol when forming his overall opinion that Atravius had died from a lethal
dose of Demerol. Although Dr. Shukan testified that he had referred to these sources in
forming his opinion, he did not state which source specified a half-life of three to three-and-
one-half hours. However, he did testify that Demerol has a half-life of two to five hours in
adults and that the half-life is a “little longer than the two hours in kids, most authorities
would say in the neighborhood of slightly above three hours.” He did not testify as to what
3 0.17 mcg/ml of Demerol and 0.12 mcg/ml of normeperidine were found in the sample. The results of the sample are undisputed. Normeperidine is a byproduct of Demerol and occurs in the body after metabolism of Demerol. Demerol is a trade name for meperidine. 4 The half-life of a drug is the time required for the activity of a drug taken into the body to lose one half its initial effectiveness.
4 authorities he was relying upon when he stated that “most authorities” say the half-life of
Demerol in a neonate is slightly above three hours.
¶8. Patterson also retained Dr. Steven Hayne as an expert-causation witness. Dr. Hayne,
a pathologist, performed an autopsy on Atravius. Using the same back-extrapolation process,
Dr. Hayne determined that Atravius likely had died from a lethal dose of Demerol that he had
received from his mother prior to birth.5 Dr. Hayne used a half-life of four-and-one-half to
five hours. He obtained this half-life by calling the director of the Mississippi State Crime
Laboratory and a toxicologist employed at the lab.
¶9. The defendants moved to exclude the expert testimony of both Dr. Shukan and Dr.
Hayne. A two-day Daubert hearing was held, and the trial judge ultimately excluded the
testimony of Dr. Shukan and Dr. Hayne on Atravius’s predeath Demerol levels.
¶10. At the hearing, the depositions of Dr. Shukan and Dr. Hayne were admitted, and
several other experts testified. Dr. Christopher Long, a forensic toxicologist, testified for
the plaintiff. Dr. Long reviewed a number of articles on the half-life of Demerol in neonates
and acknowledged that a wide range of half-lives is documented.
¶11. Dr. John Cleary, a board-certified pharmacotherapist, testified for the defense. Dr.
Cleary testified that there are multiple articles on the half-life of Demerol in newborns and
that the average half-life is approximately eleven hours.6 When asked if the half-life of three
5 It is undisputed that Angelia Patterson received two doses of Demerol during her labor. The amount, however, is disputed. Patterson claims she received two 100-ml doses, which is more than the recommended amount. The defendants claim that Patterson received two 50-ml doses, which is a generally accepted therapeutic amount. 6 The defendants presented the following sources: Pharmacokinetics and Pharmacodynamics of Intravenous Meperidine in Neonates and Infants reports that the half-
5 to three-and-one-half hours has a scientific basis, Dr. Cleary responded that “[i]t is
scientifically and medically based in an adult. It does not apply to an infant within the first
few days of life.”
¶12. Dr. John Joel Donaldson, a licensed physician, also testified for the defense. Dr.
Donaldson testified that, contrary to Dr. Shukan’s testimony, he had never seen any research
or literature that supported the use of a three to three-and-one-half-hour half-life in a
newborn.
¶13. After the Daubert hearing, the trial court entered an order excluding the testimony of
Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius’s system. The trial
judge noted that the half-lives used by Dr. Shukan and Dr. Hayne are of particular
significance because the reliability of the doctors’ mathematical calculations depends on the
correct half-life being used.7 The trial court also noted that it is generally accepted that the
life of Demerol in babies less than one week old ranges from 4.9 to 16.8 hours, averaging at 10.7 hours. A half-life of 3.3 hours was reported in one preterm baby. Marja-Leena Pokela et al., Pharmacokinetics and Pharmacodynamics of Intravenous Meperidine in Neonates and Infants, 52 Clinical Pharmacology and Therapeutics 345 (Oct. 1992). Disposition of Meperidine and Normeperidine Following Multiple Doses During Labor reports that the half-life can range from 11.36 to 17.33 hours, averaging at 13.24 hours. Betty R. Kuhnert et al., Disposition of Meperidine and Normeperidine Following Multiple Doses During Labor, 151 American Journal of Obstetrics and Gynecology 414 (Feb. 1985). Drug Therapy in Infants: Pharmacologic Principles and Clinical Experience reports that the half-life of Demerol in newborns can range from 6.5 to 39 hours. This source also states that the half- life in infants three to eighteen months is 2.3 hours. Robert J. Roberts, Drug Therapy in Infants: Pharmacologic Principles and of age Clinical Experience 302 (W.B. Saunders Co. 1984). 7 The trial judge gave the following explanation of half-lives:
[I]n the context of drugs and medications, the term “half-life” refers to the amount of time required for half the dosage of a particular drug to be metabolized by the body. For example, if a healthy adult is given 100
6 half-life of Demerol in an adult is approximately three hours, but that there is difficulty in
“attempting to correlate the half-life of [Demerol] to an infant.” It is difficult to determine
an exact half-life in newborns because the liver – which is the organ responsible for
eliminating drugs from the body – is not fully developed and is not capable of working at its
full capacity, which results in a longer half-life in newborns versus adults. The trial court
further noted that there is minimal, and varied, scientific documentation on the half-life of
Demerol in newborns, stating that “[i]t appears that the breadth of such ranges [is] limited
only by the number of medical journals one reads.”
¶14. With regard to Dr. Shukan’s assertion that the half-life of Demerol in a newborn is
three to three-and-one-half hours, the trial court stated that:
No evidence was presented explaining exactly how Dr. Shukan came to choose three to three and one-half hours as the half-life of meperidine to be used in his back extrapolation calculations. It seems to this court that arbitrarily choosing a half-life from the panoply of half-lives available when dealing with a neonate is tantamount to choosing a half-life by throwing darts at a medical dartboard. While one may occasionally hit the proper number, it is not a process that instills confidence in the result.
¶15. When discussing Dr. Hayne’s opinion that the half-life of Demerol in a newborn is
four-and-one-half to five hours, the trial court noted in its order that Dr. Hayne received this
number from personnel at the Mississippi Crime Laboratory and in a footnote, stated that
“[c]ertainly there is nothing untoward in Dr. Hayne seeking additional input from another
milligrams of a particular drug and the half-life of that drug is ten hours, then after ten hours one would expect to find only 50 milligrams of that drug remaining active in the body. In another ten hours, there would only be 25 milligrams of that drug remaining active in the body. In another ten hours, only 12.5 milligrams, and so on.
7 expert, a practice which appears not to be uncommon among academicians.” The trial court
then stated that it had
the same reservations regarding the use of a half-life for meperidine in the range of 4.5 to 5 hours as it does when considering a half-life of 3 to 3.5 hours. To be clear, the court does not question the process of back extrapolation. Rather, the court’s reservations in this case grow from what the court finds to be a lack of scientific agreement and/or specificity as concerns the half-life of meperidine in a neonate.
¶16. The trial court concluded its order by finding that:
As concerns the opinions offered by Dr. Shukan and Dr. Hayne as to the pre- death levels or concentrations of meperidine or normeperidine in the body of this child, the court finds that such opinions are relevant and would assist the trier of fact. However, due to the limited scientific studies gauging the half- life of meperidine in the body of a neonate, this court is compelled to find that the opinions lack the necessary element of reliability in that it is not based upon sufficient data. This court finds, based upon the evidence presented and the scientific and/or medical literature offered describing the ranges of half- lives of meperidine and/or normeperidine in a neonate are so wide that pre- death levels and/or concentrations of such drug in a neonate cannot be determined with any reasonable degree of medical or scientific certainty by the process of back extrapolation.
For the reasons stated above, this court will disallow the introduction of any opinion from any expert attempting to assert a pre-death level and/or concentration of meperidine and/or normeperidine in the body of this child based upon any back extrapolation.
(Emphasis added in original.)
¶17. After the trial court excluded the expert testimony on the predeath levels of Demerol
in Atravius’s system, it granted summary judgment in favor of all three defendants.8 The trial
court stated it was “of the opinion that said motion should be granted because without the
8 The trial court’s order states that the defendants made an ore tenus motion for summary judgment. There is no record of the motion in the transcript.
8 excluded testimony, Plaintiffs have no expert testimony to prove causation . . . .” Patterson
now appeals the trial court’s judgment to this Court.
DISCUSSION
¶18. Patterson presents two issues for this Court’s consideration: (1) whether the trial court
erred in excluding the expert testimony of Dr. Shukan and Dr. Hayne; and (2) whether the
trial court erred in granting summary judgment in favor of the defendants.
I. WHETHER THE TRIAL COURT ERRED IN EXCLUDING THE EXPERT TESTIMONY OF DR. SHUKAN AND DR. HAYNE.
A. Standard of Review
¶19. The standard of review for the admission or exclusion of expert testimony is abuse of
discretion. Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450, 457 (Miss. 2010)
(citations omitted). This Court should find error in the trial court’s decision to exclude expert
testimony only if the decision was arbitrary or clearly erroneous. Franklin Corp. v. Tedford,
18 So. 3d 215, 237 (Miss. 2009) (citing Troupe v. McAuley, 955 So. 2d 848, 856 (Miss.
2007)).
B. Mississippi Rule of Evidence 702 and Daubert
¶20. In addressing Daubert issues, our analysis must be guided by Rule 702, which
addresses the admissibility of expert testimony:
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.
9 Miss. R. Evid. 702.
¶21. In Daubert, the United States Supreme Court held that experts should be given wide
latitude when offering opinions within their expertise. Daubert, 509 U.S. at 592. The
Daubert Court rejected the Frye 9 standard, which required “general acceptance” of the
theories offered by experts, and held that expert testimony must be relevant and reliable. Id.
at 589. Daubert enumerated several factors which the trial courts may consider when
determining if expert testimony is reliable: (1) whether the expert’s theory can be or has been
tested; (2) whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of a technique or theory when applied; and (4) the general
acceptance that the theory has garnered in the relevant expert community. Id. at 593-94.
These factors are nonexclusive, and their application depends on the nature of the issue, the
expert’s expertise, and the subject of the testimony offered by the expert. Miss. Transp.
Comm’n v. McLemore, 863 So. 2d 31, 37 (Miss. 2003).
¶22. When determining whether expert testimony is admissible, our trial judges should act
as gatekeepers and must determine whether the proposed testimony meets the requirements
of Rule 702 and Daubert’s relevance and reliability prongs. Evidence is relevant if it will
assist the trier of fact. Daubert, 509 U.S. at 591. The offered testimony in today’s case is
clearly relevant, and the defendants do not dispute its relevance. Because the offered
testimony is relevant, our inquiry in today’s case will focus on whether the testimony was
reliable.
9 Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923).
10 C. Reliability
¶23. In his order excluding the expert testimony, the trial judge focused on the lack of
consensus among a wide range of authorities on the half-life of Demerol in a newborn. He
also, however, pointed out that Dr. Hayne and Dr. Shukan had failed to provide an authority
that supports the half-lives used in their calculations. Patterson now argues that lack of
consensus among authorities is not a valid reason for excluding expert testimony under
Daubert.
¶24. In support of her argument, Patterson cites Tedford, 18 So. 3d at 238, where this Court
upheld the trial court’s admission of four expert witnesses in a workers’ compensation case.
The plaintiffs in Tedford were exposed to a neurotoxin while at work, and the expert
witnesses testified to the effect the toxin had on the plaintiffs. Id. at 234-36. On appeal, the
defendants argued that the trial court had erred in allowing the expert testimony because
“none knew of the [neurotoxin] exposure level at which injury occurs in humans,” and “none
knew of the exposure experienced by the . . . plaintiffs.” Id. at 237. This Court noted that
the impact of the toxin on humans is a new field of study and that ethical constraints have
limited scientists’ studies in this field. Id. Ultimately, this Court found that “the absence of
data on the exact exposure level at which humans suffer neurologic injury ought not preclude
the Plaintiffs’ experts from testifying.” Id. (emphasis added).
¶25. We find Tedford to be distinguishable from today’s case. In Tedford, there was an
absence of data relating to the subject of the experts’ opinions. Id. In today’s case there is
not an absence of data on the half-life of Demerol in newborns; rather, the defendants
presented published data on the subject which contradicts the plaintiff’s experts. The
11 shortage of data in this case is an absence of data supporting the half-lives used by the
plaintiff’s experts.
¶26. In Watts v. Radiator Specialty Company, 990 So. 2d 143, 150 (Miss. 2008), this
Court held that expert testimony may be excluded as scientifically unreliable when there is
a lack of scientific data supporting the expert’s opinion. In Watts, the subject of the expert
testimony was the focus of several different studies on which the expert had relied in forming
his opinion. Id. at 147. However, none of the studies “provide[d] a basis for the conclusion”
that the expert had made. Id. The dissenting opinion in Watts argued that expert opinions
need not be supported unequivocally by published studies. Id. at 154. The majority
responded by stating that:
While certainly there is no requirement that an expert’s opinion be ‘generally accepted in the scientific community’ as under the Frye standard, it is a factor for trial courts to consider. This factor was properly considered by the trial court. When this Court adopted the Daubert standard, it did not ‘lower the bar’ for admittance of expert testimony. We simply recognized that our learned trial judges are in the best position to make the determination. We made them the gatekeepers of expert testimony, not the doormen.
Id. at 150 (emphasis added).
¶27. In Poole v. Avara, 908 So. 2d 716, 724 (Miss. 2005), this Court also held that
consensus among peer-reviewed materials is not a requirement of admissibility. Citing
Daubert, this Court in Poole stated that “[r]equiring that the subject of expert testimony be
known to a certainty is not necessary either, however, because, as the Daubert Court pointed
out, ‘there are no certainties in science.’” Id. at 723-24 (citing Daubert, 509 U.S. at 590).
¶28. To counter Patterson’s argument that the trial court erred in excluding the expert
testimony, the defendants cite this Court’s recent holding in Hill v. Mills, 26 So. 3d 322, 331
12 (Miss. 2010), that “when an expert . . . renders an opinion that is attacked as not accepted
within the scientific community, the party offering that expert’s opinion must, at a minimum,
present the trial judge with some evidence indicating that the offered opinion has some
degree of acceptance and support within the scientific community.”
¶29. This Court in Hill distinguished Poole, stating that:
We do not today retreat in any respect from our holding in Poole. We find it completely distinguishable. Unlike the present case, the challenged opinion at issue in Poole had not been the subject of peer-reviewed articles. Consequently, the defendant in Poole did not challenge the expert’s opinions by producing peer-reviewed articles or authorities which contradicted the opinions. Thus, Poole stands for the proposition that there exists no per se requirement that an expert’s opinion be supported by peer-reviewed articles.
In contrast to Poole, the subject matter of the expert opinion in the case before us today has been extensively explored and documented, and one hundred percent of the documentation presented to the trial judge contradicts Dr. Fuselier’s opinion. Thus, we cannot say that the trial judge abused his discretion in finding that, under Rule 702, Dr. Fuselier’s opinions regarding available interventions to prolong Hill’s pregnancy were unreliable and inadmissible.
We restate for emphasis that, when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under attack should provide at least a minimal defense supporting the reliability of the opinion. The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert’s opinion reliable. Were we automatically to allow introduction of expert opinions which are based upon nothing more than personal experience in cases where those opinions are contradicted in the scientific literature, we would effectively render Rule 702 and Daubert a nullity.
Id. at 332-33 (citations omitted) (emphasis added).
¶30. We find that today’s case is analogous to Hill. The defendants presented peer-
reviewed articles contradicting the expert opinions offered by Patterson, and she failed to
13 provide evidence that the offered opinions have some degree of scientific acceptance and
support. The defendants presented one peer-reviewed article stating that the half-life of
Demerol in neonates is approximately 10.7 hours, another article stating that the half-life
varies from 6.5 to 39 hours in newborns, and another stating that the average half-life is
13.24 hours. Patterson did not present scientific literature in support of Dr. Shukan’s and Dr.
Hayne’s opinions. While Dr. Shukan did state that he referred to medical texts and websites
in forming his overall opinion, he did not provide a source for the half-life he used in his
calculation. Dr. Hayne testified that he obtained the half-life used in his calculation – four
and one half to five hours – from Mississippi Crime Laboratory personnel.
¶31. Patterson is correct in her assertion that lack of consensus among sources does not
automatically render an expert opinion inadmissible. An offered opinion that has been
contradicted by published and peer-reviewed data, however, must be supported by some
evidence of support and acceptance in the scientific community. Patterson has failed to meet
this standard. Accordingly, the trial court did not abuse its discretion in excluding the expert
witnesses’ testimony on the predeath levels of Demerol in Atravius’s system.
D. Credibility Versus Reliability
¶32. In the alternative, Patterson argues that today’s issue is one of credibility, which is
proper for the trier of fact to determine and not the trial court. Treasure Bay Corp. v. Ricard,
967 So. 2d 1235, 1239 (Miss. 2007). As part of its gatekeeping role under Rule 702, the trial
court is to determine whether expert testimony is reliable. Id. at 1241 (citing Miss. R. Evid.
702 cmt.). “Neither the rule nor its comment mentions any requirement that statements relied
upon by an expert using proper, reliable, methodology also be found credible.” Id.
14 ¶33. In Treasure Bay, the expert witness relied on a statement made by a drunk driver in
forming his opinion that the driver was visibly intoxicated when served intoxicating
beverages by a casino. Id. at 1237-38. When arguing that summary judgment was improper,
the defendants claimed that the trial court should not have relied on the expert’s opinion
“because it was partially based upon a statement by [the drunk driver], which, according to
the defendants, lacks credibility.” Id. at 1240. Specifically, the defendants argued that the
driver’s statement was untruthful. Id. In response, this Court held that:
Indeed, experts in many fields, including medicine, accident reconstruction and forensic pathology, frequently rely on histories provided by patients and witnesses. Thus, it would be unsettling for this Court abruptly to reject all expert opinion which relies on a historical account of the facts. Of course, whether or not the facts relied upon are credible is a matter for cross- examination and collateral attack at trial.
Id.
¶34. Patterson argues that, even if the trial court found the half-lives used by Dr. Shukan
and Dr. Hayne to be incorrect, according to this Court’s reasoning in Treasure Bay, it was
error to exclude the testimony. Patterson supports this argument by claiming that the half-life
used in a back-extrapolation calculation is an issue of credibility, which may be attacked
through cross-examination or contradicting experts.
¶35. This Court, however, has held that “the sufficiency of foundational facts or evidence
on which to base an opinion is a question of law.” Janssen Pharmaceutica, Inc. v. Bailey,
878 So. 2d 31, 60 (Miss. 2004) (citations omitted) (emphasis added). As part of the trial
court’s gatekeeping role, it must “examine the reliability” of the expert’s opinion and must
15 determine whether the facts “afford a ‘reasonably accurate basis’ for the expert’s
conclusion.” Id. (citations omitted).
¶36. We find that the question of whether Dr. Hayne and Dr. Shukan used the correct half-
life in their calculations is an issue of reliability, not credibility. The Court in Treasure Bay
referred to a “historical account of . . . facts” when finding that statements relied upon by
experts need not be judged on their credibility by the trial court in determining whether to
accept an expert’s opinion. Treasure Bay, 967 So. 2d at 1240. The experts in today’s case,
however, do not rely on a factual statement made by another doctor or a patient. The experts
must rely on scientific data to form their opinions. Under Rule 702, these opinions must be
based on “sufficient facts or data.” Using a correct half-life is essential to performing a
correct back-extrapolation calculation. Without the correct data, the experts’ calculations
will not be based on sufficient data. This is an issue of law which the trial court must
determine, not the trier of fact. See Janssen, 878 So. 2d at 60; Int’l Paper Co. v. Townsend,
961 So. 2d 741, 758 (Miss. Ct. App. 2007) (citations omitted) (“The sufficiency of
foundational facts or evidence on which an expert bases his opinion is a question of law
which must be determined by the trial judge.”).
¶37. In sum, we find that the trial court did not abuse its discretion in excluding the
testimony of Dr. Shukan and Dr. Hayne. Patterson failed to present evidence supporting her
experts’ testimony when the defendants challenged the reliability of the plaintiff’s experts
with published data. This lack of support is an issue of reliability, not credibility.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.
16 ¶38. The trial court granted summary judgment in favor of all three defendants after it
excluded the testimony of Dr. Shukan and Dr. Hayne. The trial court stated that summary
judgment was proper because Patterson could not show causation without the excluded
testimony. Patterson now argues that she can show causation without the excluded testimony
and that summary judgment was improper.
A. Procedural Background
¶39. Because of the unusual procedural posture of this case, a brief discussion of the
procedural facts relating to this issue is necessary. The trial court entered its order excluding
the testimony of Dr. Shukan and Dr. Hayne on January 14, 2009. It is important to note that
the order excluded only the testimony that related to the predeath levels of Demerol in
Atravius’s system. The order did not exclude the testimony as a whole. On June 11, 2009,
the trial court granted summary judgment in favor of all three defendants. The judgment
stated that the defendants had made an ore tenus motion for summary judgment. There is no
record of the motion, or Patterson’s response, in the transcript.10
¶40. At oral argument, counsel for Dr. Tibbs stated that he had drafted the judgment and
submitted it to the trial court. Counsel admitted that the defendants did not file a motion for
summary judgment and that a summary judgment hearing was never held. Patterson’s
counsel argued in his brief and at oral argument that Patterson could show causation without
the excluded Demerol testimony.
10 The defendants argued in their briefs and at oral argument that Patterson had waived her ability to appeal the entry of summary judgment because she did not object to it at the trial-court level. Because the record does not contain a motion for summary judgment, we find that this argument is without merit. One cannot respond, or object, to a motion that does not exist.
17 B. Relevant Law
¶41. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This
Court reviews de novo a trial court’s grant of summary judgment. Chisolm v. Miss. Dep’t.
of Transp., 942 So. 2d 136, 140 (Miss. 2006) (citing Webb v. Braswell, 930 So. 2d 387, 395
(Miss. 2006)). This Court examines all evidence, including pleadings, answers to
interrogatories, depositions, and affidavits. Id. (citing McCullough v. Cook, 679 So. 2d 627,
630 (Miss. 1996)). The evidence must be viewed in the light most favorable to the
nonmoving party. Id. (citing Hataway v. Nicholls, 893 So. 2d 1054, 1057 (Miss. 2005)).
Summary judgment is appropriate when the nonmoving party has failed sufficiently to
establish an essential element of that party’s claim. Buckel v. Chaney, 47 So. 3d 148, 153
(Miss. 2010) (citations omitted). The essential elements of a medical-malpractice claim are:
(1) the existence of a duty on the part of a physician to conform to the specific standard of conduct, (2) the applicable standard of care, (3) the failure to perform to that standard, (4) that the breach of duty by the physician was the proximate cause of the plaintiff’s injury, and (5) that damages to the plaintiff resulted.
Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (Miss. 2009) (citing Barner v. Gorman, 605
So. 2d 805, 808-09 (Miss. 1992)).
¶42. The foregoing standard is even more important when considering the unusual
procedural history of this case. We are without the benefit of parts of the record commonly
used by this Court to guide our analysis of summary judgment issues: the defendants’ motion
and supporting documents, the plaintiff’s response, or a hearing transcript. Thus, in accord
with our standard, we examined all the evidentiary matters in this case in the light most
favorable to the nonmoving party. After a careful examination of the record, we find that the
18 trial court did not err in granting summary judgment in favor of Dr. McArthur. We do find,
however, that the trial court erred in granting summary judgment in favor of BMC and Dr.
Tibbs. Because the causation testimony relating to Dr. McArthur is distinct from the
testimony relating to Dr. Tibbs and BMC, we address Dr. McArthur first. Then, because of
the similar analysis used, we address Dr. Tibbs and BMC together.
C. Dr. McArthur
¶43. Dr. McArthur delivered Atravius and performed his circumcision. The causation
testimony relating to Dr. McArthur focused on Dr. Hayne’s theory that Angelia Patterson had
received an overdose of Demerol during labor and Dr. Shukan’s testimony that Atravius had
received an overdose of Demerol during his circumcision. Dr. Shukan also testified that Dr.
McArthur had breached the standard of care by failing to include a surgical note
documenting whether he had given Atravius Demerol during the circumcision. Other than
the testimony relating to the Demerol theories, there is no evidence of causation relating to
Dr. McArthur in the record. There is no need to discuss the other elements of medical
malpractice because Patterson has failed to establish the essential element of causation. See
Estate of Northrop, 9 So. 3d at 384; Buckel, 47 So. 3d at 153. Accordingly, the trial judge
did not err in granting summary judgment in favor of Dr. McArthur.
D. Dr. Tibbs and BMC
¶44. At first blush, one might reasonably assume that a grant of summary judgment in
favor of Dr. Tibbs and BMC would be appropriate. The bulk of the testimony in this case
involved the Demerol theories propounded by Dr. Hayne and Dr. Shukan. Without this
testimony, one would naturally think that Patterson cannot prove causation. Upon close
19 examination of the record, however, this Court finds testimony which tends to show
causation on the part of Dr. Tibbs and BMC.
¶45. During his deposition testimony, Dr. Shukan essentially discussed the timeline of
events leading to Atravius’s death, including the standards of care breached and whether
those breaches caused Atravius’s death. The following are excerpts of Dr. Shukan’s
deposition:
Dr. Shukan: At 6 p.m. an IV was started, and this is where I think there was a breakdown in what is considered good nursing abilities and good nursing care. That IV was ordered at 5 p.m. and wasn’t started in this child until 6 p.m.
Counsel: Is that a deviation from the standard of care, in your opinion?
Dr. Shukan: I certainly would agree.
Counsel: That’s my question. Is it –
Dr. Shukan: I certainly would agree that it is a deviation -- were a deviation from good nursing care. Ordered at 5 in a child who has a significant problem, started at 6. This is not medicine they had to go out and get. This is IV fluids that are usually available to most nurses.
Counsel for BMC: Objection to the statement that this is medicine they did not have to go out and get.
Counsel: All right. Do you have an opinion whether or not, based upon reasonable medical probability, this caused or contributed to the death of Atravius Coleman?
Dr. Shukan: I certainly think that there’s a possibility and probability here that it could have contributed.
Counsel: Okay. All right. Go ahead.
Dr. Shukan: Okay. At 7:30 a Dopamine drip was started. Now, Dopamine is a drug that helps to increase blood pressure. That’s its sole usage. That is a full four hours after this child showed significant problems in respiration and significant problems in oxygenation, ability to get oxygen to his blood. At
20 5:30 he showed a very significant decrease in blood pressure, and we didn’t see this started for another two hours after that, the Dopamine. By that time –
Counsel: I’m sorry.
Dr. Shukan: Uh-huh.
Counsel: So let me ask you this: Based upon reasonable medical probability, is that a deviation in the standard of care to not start the Dopamine until 7:30?
Dr. Shukan: I would think so. This child needed Dopamine before.
Counsel: All right. Who do you feel that deviated from the standard of care --
Dr. Shukan: I would think when the doctor in charge looks at 5:30 at a blood pressure of 15 diastolic, that he would be the one that should have ordered that with rapidity. That should have been started much quicker.
Counsel: All right. And your talking about what doctor?
Dr. Shukan: Dr. Tibbs.
Counsel: All right. And did this in any way cause or contribute to the death of Atravius Coleman?
Counsel for Dr. Tibbs: Object to the form of the question.
Counsel: You can answer it.
Counsel: Based upon reasonable medical probability.
Dr. Shukan: In my opinion, this very well could have aided in the death -- contributed to the death of Atravius Coleman.
Counsel: All right. Go ahead.
Dr. Shukan: Critical in this chart are the next three entries. At 9:45, some six hours and -- six and a quarter hours after the onset of this horrible event, he was noted to have a diastolic pressure of 13. This child is crashing. He is now officially in shock. 9:45. The only thing I can find documented here is that another blood gas was drawn one hour later. There are no changes in IVs;
21 there are no changes in medications given; one hour later further evidence of crashing. This child now had -- I’m sorry -- 9:45 he had 19 diastolic pressure, low. Here’s 13 –
Counsel: What time is that?
Dr. Shukan: That would be at 10:45. A whole hour went by and this child had nothing. This -- and also, a blood gas was done back at 9:45 that showed a Ph of 7.22 so our acidosis is getting worse, and the critical agent here is a bicarbonate of 7.1. The normal bicarbonate being in the 26, 28 range. This means the child has used up all the ability to buffer the acid, and there’s virtually no more ability -- because bicarb is a base and buffers acid. It’s almost gone. This child now has severe metabolic acidosis, and it’s predictable at this point, you’re going to have trouble. Very predictable. He needed bicarb. ....
Counsel: All right. Based upon reasonable medical probability, at 9:45 p.m. was there a deviation from the standard of care, and if so, by whom was there a deviation?
Dr. Shukan: Well, there’s no question in my mind that bicarb should have been added here. This situation should have been also fraught with the medicines that we’ll see that were given an hour later, and that would be Dr. Tibbs who should have been there, should have been in the nursery, and we’ll find out in a moment that he wasn’t and should have been in charge here trying to save this child’s life.
Counsel: In your opinion, was that a deviation of the standard of care?
Dr. Shukan: Yes, sir.
Counsel: By Dr. Tibbs?
Dr. Shukan: Yes.
Counsel: Did that cause or contribute to the death of Atravius Coleman?
Dr. Shukan: I would think it contributed very possibly, to the death, yes.
Counsel: All right.
Dr. Shukan: Very probably to the death.
22 Counsel: Okay. Now, what about the nurses at 9:45? Do you have any deviation from the standard of care as it pertains to the nurses at Bolivar Medical Center at that time?
Dr. Shukan: I certainly do.
Counsel: All right. What deviations did they have at that time?
Dr. Shukan: Okay. As you note at 9:45, I am describing a situation that’s terminal shock. If this isn’t taken care of immediately, this child has no hope. And no phone call was made to Dr. Tibbs until one hour and twenty minutes later. Clearly documented on the chart that this child at this point, the point that the nurse called Dr. Tibbs, the child was unresponsive to deep-pain stimuli, he had a PO2 of 92. Dr. Tibbs, who was in the lounge, in the doctor’s lounge, was called. One hour and twenty minutes in shock. There is no increase in fluids; there was no antishock medicine; those will be enumerated down here, epinephrine, Atropine. These are all medicines used in shock, not an hour and 20 minutes after shock has started. So there’s a big deviation here.
Counsel: By whom?
Dr. Shukan: Well, no nurse -- the nurse to begin with for not making a phone call, not recognizing this as an agonal or painful, terminal end result -- situation rather, and not calling the doctor for 1 hour and 20 minutes. And number two, I believe that Dr. Tibbs, being an intensive care pediatrician involved in this, should have known that this child is this sick. I can’t go to the lounge. I need to be here. He was obviously out of the nursery for at least an hour and twenty minutes here. That’s not what you do when you have a child who’s in metabolic acidosis, and it’s not getting better. ....
Counsel: All right. As far as Dr. Tibbs is concerned, based upon reasonable medical probability, was there a deviation?
Counsel: Have you explained it?
Dr. Shukan: I have explained it.
Counsel: All right. Did this deviation cause or contribute to the death of Atravius Coleman, and base that upon reasonable medical probability.
23 Dr. Shukan: I would think the probability at this point was that the fact that he wasn’t cared for correctly, at least in this time frame, lead to his death 45 minutes later.
Counsel: Okay. Now, do you have any -- was there any deviations from the standard of care at 11:05 by the nurses of Bolivar Medical Center? ....
Dr. Shukan: Yes, the standard -- the deviation from normal care. In fact, they should have called him 1 hour and 20 minutes earlier, in my opinion - -
Counsel: Okay.
Dr. Shukan: -- and we may have saved his life.
Counsel: All right. So, is that based upon reasonable medical probability, that deviation you just made reference to?
Dr. Shukan: Certainly.
Counsel: Did that, in your opinion, based upon reasonable medical probability, cause or contribute to the death of Atravius Coleman?
Dr. Shukan: I would think that it contributed to the demise 45 minutes later of this child, yes.
¶46. Dr. Shukan also submitted an affidavit in which he stated that, regardless of the cause
of Atravius’s condition, Dr. Tibbs should have treated his condition more aggressively. Dr.
Shukan stated:
Dr. Tibbs should have recognized that the combination of metabolic acidosis and depressed respirations are not part of hypoplastic left ventricular syndrome. He should have treated the metabolic acidosis more aggressively. Regardless of the cause, the metabolic acidosis must be treated more aggressively and certainly Dr. Tibbs should have used life saving vasoactive medications earlier instead of saving them for the last few minutes of the child’s life.
¶47. Although one may argue that the foregoing testimony was predicated on the
assumption that Atravius died of a Demerol overdose, we must keep in mind that the cause
24 of Atravius’s death is an issue for the trier of fact to determine. See Worthy v. McNair, 37
So. 3d 609, 620 (Miss. 2010) (quoting Causey v. Sanders, 998 So. 2d 393, 403 (Miss.
2009)). The defendants argue that Atravius died of hypoplastic left heart syndrome. And
although Patterson has argued that Atravius died of as a result of a Demerol overdose, the
testimony above focused on the treatment that Atravius received after his condition began
to deteriorate for whatever reason. Dr. Shukan was of the opinion that, regardless of the
cause of Atravius’s condition, Atravius should have received different treatment in the hours
before his death. When viewing the testimony above in the light most favorable to Patterson,
we find that genuine issues of material fact exist concerning whether BMC and Dr. Tibbs
caused Atravius’s death or failed to prevent it. See Palmer v. Anderson Infirmary
Benevolent Ass’n, 656 So. 2d 790, 796 (Miss. 1995) (quoting Kelley v. Frederic, 573 So. 2d
1385, 1389 (Miss. 1990)) (“There is no magical form to which a plaintiff’s supporting expert
opinion must conform, so long as its import is apparent.”).
¶48. We also find that Patterson has presented sufficient evidence to withstand summary
judgment concerning the other essential elements of a medical-malpractice claim against Dr.
Tibbs and BMC. Dr. Tibbs and BMC had a duty to meet the following national standard of
care:
Given the circumstances of each patient, each care giver has the duty to use his or her knowledge and treat, through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, confidence, and prudence as are practiced by minimally competent care givers in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment, and options.
25 Jeffrey Jackson & Mary Miller, 6 Encyclopedia of Miss. Law § 58:5 (Miss. Practice Series
2001) (citing Starcher v. Byrne, 687 So. 2d 737 (Miss. 1997); Toche v. Kilebrew, 734 So.
2d 276 (Miss. 1999); Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346 (Miss. 1990)). Dr.
Shukan testified in his deposition to the specific standards that the nurses and Dr. Tibbs
should have met while treating Atravius. Dr. Shukan also testified that the nurses and Dr.
Tibbs failed to meet some of these standards. Finally, Patterson suffered various damages
due to Atravius’s death.
¶49. When viewing all of the evidence in the light most favorable to Patterson, we find that
a genuine issue of material fact exists concerning Patterson’s claims against Dr. Tibbs and
BMC. Accordingly, we find that the trial court erred in granting summary judgment in favor
of Dr. Tibbs and BMC.
CONCLUSION
¶50. The trial court did not commit reversible error in excluding the expert testimony of
Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius’s system. The
defendants contradicted the experts’ testimony with published, peer-reviewed data, and
Patterson failed to respond with evidence showing acceptance and support in the scientific
community of the experts’ theories. Thus, the trial court’s decision to exclude the testimony
was not arbitrary or clearly erroneous. The trial court properly granted summary judgment
in favor of Dr. McArthur. Without the excluded Demerol testimony, Patterson could not
show that Dr. McArthur had caused any injury.
26 ¶51. On the other hand, the trial court did err in granting summary judgment in favor of Dr.
Tibbs and BMC. Even without the excluded Demerol testimony, evidence in the record
supports Patterson’s claims against Dr. Tibbs and BMC.
¶52. For these reasons, we affirm the trial court’s judgment in favor of Dr. William
McArthur; however, we reverse the trial court’s judgment in favor of Dr. Bob Tibbs and
Bolivar County Medical Center, and we remand this case to the Circuit Court for the Second
Judicial District of Bolivar County for further proceedings consistent with this opinion.
¶53. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.