Charles Robinson, M.D. v. Regina A. Corr , 2016 Miss. LEXIS 151 ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-00051-SCT
CHARLES ROBINSON, M.D.
v.
REGINA A. CORR
DATE OF JUDGMENT: 10/01/2014
TRIAL JUDGE: HON. LISA P. DODSON
TRIAL COURT ATTORNEYS: BRETT K. WILLIAMS
JOSHUA WESLEY DANOS
JOE SAM OWEN
ROBERT P. MYERS, JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: BRETT K. WILLIAMS
JAMES E. LAMBERT, III
JOSHUA WESLEY DANOS
ATTORNEYS FOR APPELLEE: JOE SAM OWEN
ROBERT P. MYERS, JR.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 04/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KING AND MAXWELL, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Regina Corr sued Dr. Charles Robinson for medical malpractice. The jury awarded
Regina $55,634.78 for past medical expenses and $420,000 for pain and suffering. Dr.
Robinson filed motions for judgment notwithstanding the verdict and for remittitur, which
the trial court denied. On appeal, Dr. Robinson argues that the trial court erred in excluding
his proffered testimony, in admitting testimony from Regina’s expert that was outside her
expert’s designation, and in denying his request for a remittitur. Finding no error, we affirm
the judgment of the Harrison County Circuit Court.
FACTS AND PROCEDURAL HISTORY
¶2. In July 1998, Regina Corr went to the Gulfport Memorial Hospital to give birth to her
fourth child. Her obstetrician/gynecologist (“OB/GYN”), Dr. Charles Robinson, decided to
deliver Regina’s child via Caesarean section (“C-section”). During the C-section, Regina’s
uterus was lacerated and required surgical repair. Dr. Robinson began placing sutures in the
lacerated uterus to bring the torn sides together. According to Dr. Robinson, the uterine tissue
he was attempting to repair was friable, which means it pulls apart easily and is difficult to
stitch. He described the process as trying to stitch hamburger meat.
¶3. Dr. Robinson had tried to remove the ureter 1 from the area he was suturing, which
was in close proximity to the laceration in the uterus, and he believed he had done so. From
the C-section and lacerated uterus, Dr. Robinson estimated Regina’s intraoperative blood loss
was between 800-900 milliliters. Once hemostasis (i.e., stoppage of the bleeding) was
achieved, Dr. Robinson closed the surgery. He ordered an IVP2 for the next morning out of
concern for compromised ureter integrity from hematoma, blood-clot, and a possible kinking
1
Ureters are tubes which serve as channels for urine to pass from the kidney to the
urinary bladder.
2
An IVP (intravenous pyelogram) is a procedure by which dye is inserted into the
body and travels through the ureters, eventually emptying into the bladder. X-rays are then
taken to determine whether there is some obstruction in the ureters.
2
of the ureter, among other things. The IVP was performed, and the results showed a partial
obstruction of Regina’s left kidney.
¶4. Dr. Robinson then ordered a consultation by Dr. Thad Carter, an urologist, who
performed a cystoscopy and visually examined the ureter with a urethroscope. Dr. Carter then
discovered that the left ureter was sutured. Dr. Carter was unable to alleviate the obstruction
due to the suture, so he placed a nephrostomy tube to drain the urine from the blockage into
a nephrostomy bag. The nephrostomy tube is intended to allow the ureter to heal from the
obstruction. Regina later sought treatment from another urologist who inserted ureter stents
to widen the blocked area until the blockage had dissipated. Regina had no further
complaints after mid-May 1999.
¶5. In May 2000, Regina sued Dr. Robinson, alleging medical malpractice. She claimed
that, during the laceration repair, Dr. Robinson negligently sutured (or placed a suture very
near) the ureter, which resulted in blockage, and that he failed to keep Regina open on the
table to remove any discovered blockages. Discovery progressed and numerous depositions
were taken. During his July 2001 deposition, Dr. Robinson denied suturing the left ureter,
and his position never changed until the day of opening statements at trial.
¶6. In May 2003, Regina designated, among others, Dr. Fred Duboe, an OB/GYN, to
testify as to the standard of care and causation. In July 2014, Dr. Robinson filed his Second
Supplemental Designation of Experts, which identified himself as an expert in the field of
obstetrics and gynecology.
3
¶7. Trial began in September 2014. In pretrial motions, Dr. Robinson’s counsel raised
objections to portions of the trial deposition testimony of Regina’s expert, Dr. Duboe, based
on nonresponsiveness of some of his answers, and as being beyond the scope of Dr. Duboe’s
expert designation and expertise. Specifically, Dr. Robinson’s counsel moved to exclude Dr.
Duboe’s testimony that Dr. Robinson had “overestimated” Regina’s blood loss, based on his
review of the medical records and his evaluation of her hemoglobin levels in the days after
the surgery. The trial court overruled these objections and allowed the testimony to go before
the jury, finding that Dr. Duboe was responding to a direct question posed by Dr. Robinson’s
counsel, among other reasons.
¶8. During his opening statement, Dr. Robinson’s counsel, for the first time, stated that
Regina’s blood loss was a factor in Dr. Robinson’s decision to conclude the surgery, rather
than investigate and repair the ureter. Dr. Robinson’s counsel also stated that it would have
been life-threatening to keep Regina open on the table to investigate and repair the
obstruction.
¶9. Regina filed and argued a motion in limine to exclude this testimony of Dr.
Robinson–that, due to the friability of the tissue he was suturing, and the amount of blood
loss from the delivery and laceration, he would not have removed any stitches for fear of
causing uncontrollable bleeding. The trial court ruled that the basis of Dr. Robinson’s
decision to close the surgery was an expert opinion which had not been disclosed, so the trial
court sustained Regina’s motion to exclude it. In its ruling, the trial court stated, “I don’t
disagree that Dr. Robinson can testify to what was in his mind at the time that he was
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performing the procedure. However, that has to have been disclosed as part of discovery,
whether it was by answers to interrogatories, or by deposition.”
¶10. Later during the trial, Dr. Robinson again tried to proffer testimony that he would not
have attempted to remove the suture if he had known of its existence due to the friable tissue
and potential bleeding. The trial court found such testimony should have been disclosed and
that the proffered testimony was highly speculative and made in hindsight, as it was an
opinion that was acquired after the surgical procedure had ended.
¶11. Testimony also was offered as to Regina’s injuries and medical treatment. Medical
bills totaling $55,634.78 were admitted into evidence by stipulation of the parties and without
objection. Regina testified as to her injuries, medical care, and her pain and suffering as a
result of the procedure. Brian Corr, Regina’s husband, also testified.
¶12. The jury awarded $55,634.78 in past medical expenses, lost wages of $8,507.20, and
$420,000 for pain and suffering. Dr. Robinson filed a motion for a judgment notwithstanding
the verdict (JNOV), motion for remittitur, or in the alternative, motion for new trial. The trial
court denied Dr. Robinson’s motions. Dr. Robinson appeals and raises the following issues:
(1) whether the trial court abused its discretion in preventing Dr. Robinson from testifying
that he would not have removed the stitch in Regina’s ureter during surgery, because of
Regina’s blood loss and friability of the stitched tissue, (2) whether the trial court abused its
discretion in allowing Regina’s expert, Dr. Duboe, to testify beyond his expert designation
and outside his field of expertise, that Regina’s post-surgery hemoglobin levels indicate Dr.
5
Robinson overestimated Regina’s blood loss, and (3) whether the trial court committed
reversible error in refusing to grant Dr. Robinson’s motion for remittitur.
ANALYSIS
I. Whether the trial court abused its discretion in preventing Dr.
Robinson from testifying that he would not have removed the stitch
in Regina’s ureter during surgery, because of Regina’s blood loss
and friability of the stitched tissue.
A. Whether Dr. Robinson’s testimony was an expert opinion.
¶13. “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 . . . .” M.R.E. 702. If the witness is offering lay testimony, and not an
expert opinion, such testimony is confined to “opinions or inferences which are (a) rationally
based on the perception of the witness, (b) helpful to the clear understanding of the testimony
or the determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” M.R.E. 701.
¶14. In some cases, the line between expert opinion and lay opinion can be blurred. For
example, there are situations where a doctor, who also is a treating physician and a party to
the case, may testify as a lay witness. This Court addressed such a scenario in Scafidel v.
Crawford, 486 So. 2d 370 (Miss.1986), in which a patient sued her doctor for failing to
diagnose and treat a pelvo-abdominal mass. Id. at 371. The doctor’s testimony described the
facts and circumstances surrounding his care and treatment of the patient. Id. at 372. The
doctor stated that, during his treatment, he discovered the patient was anemic. Id. But the
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doctor did not offer an opinion as to the effect of anemia. Id. The patient argued that the
doctor’s testimony that she was anemic was an expert opinion and not fact testimony. Id. She
also argued it should have been excluded because the doctor was not listed as an expert and
the substance of his opinions was not disclosed. Id.
¶15. This Court in Scafidel held that the doctor, as a fact witness, did not cross the line
between fact testimony and expert opinion when he stated that the patient was anemic. Id.
This Court found the opinion was acquired through the care and treatment of the patient
during the illness. Id. (emphasis added). The doctor could testify that the patient was anemic
without becoming an expert witness, just as he had testified that the patient had fever, chills,
and diarrhea. Id. Importantly, “no evidence was presented to the jury of the significance of
this condition.” Id.
¶16. Another instructive case about the testimony of a treating physician who also was a
party to the case is Griffin v. McKenney, 877 So. 2d 425 (Miss. Ct. App. 2003). At issue in
Griffin was whether the trial court improperly allowed the doctor to give expert testimony.
Id. at 438. The doctor had performed gallbladder surgery on the patient, and the patient had
suffered many complications after the surgery. Id. The patient sued the doctor for
malpractice, alleging that he negligently had perforated the bowel and had failed to timely
diagnose and treat the perforation. Id. at 430-31. The doctor denied perforating the bowel
during surgery and argued that the perforations occurred in the days after the surgery. Id. The
doctor initially was designated as an expert witness, but he later was withdrawn, and the
parties agreed that he could render only lay testimony. Id. at 439.
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¶17. The patient in Griffin argued that the doctor’s testimony strayed into the area of expert
testimony. Id. For example, the doctor:
described how the bowel goes to sleep for numerous reasons, described
pancreatitis, elaborated on the risks of laparoscopic surgery, used medical
drawings to illustrate Michael’s surgery, described instruments used during the
surgery, discussed reconnection of the bowel, described certain tests to detect
blood in urine, discussed medicine to enhance bowel activity after surgery,
explained the meaning of nurses’ notes, and discussed the pros and cons of CT
scans.
Id.
¶18. The Court of Appeals found that such testimony “was comprised of technical
knowledge outside the range of knowledge of an ordinary layperson.” Id. The Court of
Appeals, though, held he “was testifying as a treating physician who is also a party to the
case . . . [and that the] description of the surgery and of his care . . . was limited to that
context . . . [and that he] never offered an opinion on the standard of care.” Id. at 439. But
the Court of Appeals held that the doctor’s following testimony was impermissible:
Q. All right. If there had been two perforations caused by you during your
surgery of April 1st and you closed without repairing those two perforations,
what kind of hospital course would you have expected to find during the time
between April 1st and April 8th?
A. I would have expected to Mr. Griffin, first of all, very early to be putting out
a lot of succus entericus, that is, bowel content, as well as blood from his
drains. I would have expected an acute abdomen very early in the course.
...
If Mr. Griffin had had two holes in his bowel that were left at the time I did the
operation, he would have very early on, in the first couple of days after
surgery, have been draining contents of his intestines out into the peritoneal
cavity. He would have a complete ileus. His bowel would stop moving. He
would have an absolutely quiet abdomen that was rigid, that had pain that
could not be relieved. This wouldn’t–this is not a subtle finding. That is,
8
everyone, anyone, certainly myself, would have been able to tell you that he
had an acute abdomen.
Id. at 440 (emphasis added).
¶19. The doctor also testified that the patient’s “white blood count would have been double
what is normal.” Id. He “opined if bowel content had been draining into the abdomen,
Michael most probably could not have had bowel movements on April 7. He opined that
Michael had no symptoms of developing abscesses and stated what those symptoms would
have been.” Id. at 441.
¶20. The Court of Appeals held that, even though the doctor “never opined as to the
standard of care, the above testimony was clearly impermissible expert testimony under
Scafidel and Foster.” Id. See Foster v. Noel, 715 So. 2d 174, 183 (Miss. 1998). The Court
of Appeals noted that the trial court allowed the doctor, a lay witness, to offer opinions
within the scope of Rule 702 as to the symptoms his patient would have presented had the
bowel been perforated during surgery. Id.3 Other testimony showed that the patient did not
present the symptoms described by the doctor, so the doctor’s “impermissible expert
testimony assisted the defense . . . [and] [t]he trial court erred by allowing Dr. McKenney’s
testimony to stray into the realm of expert testimony.” Id.4
3
The Court of Appeals, though, found the error did not warrant reversal, as the
treating physician’s “expert testimony was largely cumulative of that of his expert witnesses
. . . .” Id. (citing Scafidel, 486 So. 2d at 372). Since the doctor’s testimony presented no new
information, the Court of Appeals noted the patient could not have altered his trial strategy
had the doctor been properly designated as an expert. Id. (citing Foster, 715 So. 2d at 183).
“Dr. McKenney’s testimony did not substantially prejudice the Griffins.” Id.
4
See also Weese v. Schukman, 98 F. 3d 542, 550 (10th Cir. 1996) (holding that a
treating or defendant physician may offer lay opinion testimony, consistent with Rule 701,
9
¶21. Dr. Robinson’s counsel argues that, here, Dr. Robinson was prevented from
explaining his treatment of Regina. The proffered testimony Dr. Robinson tried to submit
before the jury is as follows:
Counsel for Dr. Robinson (“Counsel”): You attempted to stitch and you did
stitch the uterus?
Dr. Robinson: Yes.
Counsel: The uterus was friable?
Dr. Robinson: Yes.
Counsel: And there was significant bleeding?
Dr. Robinson: Yes.
Counsel: Doctor, as we sit here today under any circumstance would you have
removed that stitch after you obtained hemostasis while Mrs. Corr was on the
operating room table?
Dr. Robinson: Which stitch?
Counsel: The stitching of the uterus?
Dr. Robinson: In the ureter.
Counsel: Ureter.
when the opinion is “based on his experience as a physician and . . . [is] clearly helpful to
an understanding of his decision making process in the situation.”); Williams v. Mast
Biosurgery USA, Inc., 644 F. 3d 1312, 1317-18 (11th Cir. 2011) (citing Weese with
approval but cautioning that Weese “make[s] it clear that, when a treating physician’s
testimony is based on a hypothesis, not the experience of treating the patient, it crosses the
line from lay to expert testimony, and it must comply with the requirements of Rule 702 and
the strictures of Daubert [v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993)].”).
10
Dr. Robinson: That would have been extremely difficult because you would
have to take down all the other stitches in that area to get to that area which
would lead the bleeding to start all over again.
Counsel: So the answer to that is you would not.
Dr. Robinson: Correct.
¶22. The trial court asked Dr. Robinson’s counsel why he had failed to disclose this
testimony. Dr. Robinson’s counsel responded that he did not need to disclose this testimony,
since it was not an expert opinion or the standard of care. Dr. Robinson’s counsel argued it
was the process of what he went through, and it was what “he would have done.” (Emphasis
added.)
¶23. The trial court responded, “You’re saying that now in hindsight if I had known that
I stitched it I would not have removed it anyway? . . . you don’t think that was something that
should have been disclosed in discovery . . . ?” Counsel responded that it was not an expert
opinion, and that it was a factual issue/his thought process. “How would it be his thought
process?” the trial court asked. “Because,” Dr. Robinson’s counsel answered, “it’s what he
would have done had he consulted a urologist and the urologist came in and said, I think this
ureter is stitched. He’s going to say that I wouldn’t have touched it. I would not have
removed this stitch given the friable uterus.” The trial court concluded:
Well at any rate at this point I fail to see how anything has changed based on
this testimony. Dr. Robinson has yet to admit that he, in fact, did stitch the
ureter. I don’t expect him to change his testimony after he’s already testified
in front of the jury that it was only a possibility. So I fail to see how he could
now come back and testify as to what decision he might have made or would
have made when he was not faced with the situation. The argument from the
defense is this was his mind-set. It was not his mind-set because that is not
what occurred. It might be his mind-set now, but that is irrelevant because
again we are talking about in hindsight has nothing to do with what occurred
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at the time. What he did at the time, what he was thinking at the time may all
be relevant. He was not thinking at this time by his own testimony and by the
designations as well as the deposition information that the Court has reviewed
thus far. To now have him come in and say well this is what was in my mind,
this is what I would have done is simply incorrect. To now say I would have
done this, but I’m still denying any of this happened, is purely speculative.
¶24. Like the physician in McKenney, Dr. Robinson was answering questions which
require expert knowledge. The proposed testimony of Dr. Robinson–the opinion that he
would not have attempted removal of the suture if he had known of its existence due to
friable tissue and potential bleeding–is expert opinion testimony acquired after the surgical
procedure had ended.
¶25. Before trial, Dr. Robinson denied suturing the ureter and stated that he was not aware
of the stitch’s presence when he closed the procedure. Dr. Robinson never changed his
position, nor did he offer an expert opinion based on a hypothetical, until the trial began. So
this opinion was not acquired during the care and treatment of Regina. See Scafidel, 486 So.
2d at 372. The trial court correctly observed that the proffered testimony was “hindsight” and
could not have been part of Dr. Robinson’s treatment or thought process during and
immediately after the surgery. Because we review a trial court’s exclusion of testimony for
abuse of discretion, we find that the trial court did not abuse its discretion in denying Dr.
Robinson’s proposed testimony. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34
(Miss. 2003).
B. Whether, even if Robinson’s testimony amounted to expert
opinion, his opinion was sufficiently designated during
discovery.
12
¶26. Dr. Robinson also argues that, if this Court finds his testimony constitutes an expert
opinion, then his expert designation provided Regina with sufficient notice. Mississippi Rule
of Civil Procedure 26(b)(4)(A)(i) requires a party to identify each person whom they
“expect[] to call as an expert witness at trial, [and] to state the subject matter on which the
expert is expected to testify, and to state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds for each opinion.” Miss. R. Civ.
P. 26(b)(4)(A)(i). This Court has stated that “the substance of every fact and every opinion
which supports or defends the party’s claim or defense must be disclosed and set forth in
meaningful information which will enable the opposing side to meet it at trial.” Bailey
Lumber & Supply Co. v. Robinson, 98 So. 3d 986, 997 (Miss. 2012) (quoting Nichols v.
Tubb, 609 So. 2d 377, 384 (Miss. 1992)). “[E]xpert testimony is subject to special discovery
rules to ‘allow the opposing party ample opportunity to challenge the witness’ qualifications
to render such opinion before the question soliciting opinion is posed in front of the jury.”
Griffin, 877 So. 2d at 438 (quoting Sample v. State, 643 So. 2d 524, 530 (Miss. 1994)).
¶27. The Second Supplemental Designation of Experts identified Dr. Robinson as an expert
in the field of obstetrics and gynecology. Dr. Robinson was designated to testify as follows:
During the cesarean section, Dr. Robinson discovered an extension and/or
laceration of the uterus down along the left cervix and uterine wall, down
below the bladder. An extension and/or laceration of this nature is a known
complication and risk associated with deliveries. It is anticipated that Dr.
Robinson will further opine that he delineated the laceration, and it was
sutured closed. There was persistent bleeding from the laceration despite the
sutures, as the tissue surrounding the laceration was quite friable. The bladder
was pushed out of the immediate site to isolate the area. Dr. Robinson felt the
ureter was out of the way, despite the difficulty posed by the edema and
13
bleeding. Hemostasis was achieved, and the remainder of the surgery was
completed as noted in the operative note, dates 07/26/1998.
During the laceration repair, Dr. Robinson felt that the ureter and bladder
were not compromised. However, out of an abundance of caution, Dr.
Robinson ordered a post-operative intravenous polygram (IVP) to be
performed the following day. It is expected that Dr. Robinson will testify that
this was a reasonable and prudent course of action and within the standard of
care. It is further expected that Dr. Robinson will testify that he ordered a
timely consult with Thad Carter, M.D., a urologist. Dr. Robinson will further
testify that Dr. Carter performed a cystoscopy, which revealed an obstructed
left ureter which is a known and accepted risk of pelvic surgery.
Dr. Robinson will testify consistent with his deposition taken on June 23,
2001. . . .
(Emphasis added.)
¶28. Stated more concisely, Dr. Robinson was designated to testify that, during the uterus
repair, “there was persistent bleeding from the laceration despite the sutures, as the tissue
surrounding the laceration was quite friable.” Dr. Robinson argues that, given the above, he
was properly designated to testify about the standard of care.
¶29. Regina argues that nowhere in this designation did Dr. Robinson “disclose in any
meaningful fashion, or otherwise, the defense that there was dangerous or uncontrolled
bleeding once the uterus was repaired.” In fact, Regina argues, the designation states just the
opposite: “Hemostasis was achieved, and the remainder of the surgery was completed . . . .”
The designation also incorporates by reference the deposition testimony of Dr. Robinson, by
which he testified that Regina’s blood loss was “within a normal range of repeat C-section
and laceration,” and that he did not suture the ureter. Regina argues “the designation fails to
disclose that Dr. Robinson was even aware that he had sutured the ureter during the
14
procedure or that, if he had known he placed a suture into the ureter, he would not have
attempted removal due to fear of dangerous or uncontrolled bleeding.”
¶30. We find that Dr. Robinson’s expert designation was insufficient to put Regina on
notice of the proffered testimony and new theory at trial. The very purpose of disclosing
expert opinions before trial is “‘to prevent trials from being tainted with surprise and unfair
advantage[,]’” Griffin, 877 So. 2d at 441, and “to prevent trial by ambush.” See Nichols, 609
So. 2d at 384 (stating that “[i]n no other area is a litigant more vulnerable to ambush than a
plaintiff in a malpractice action against a member of some profession.”). Based on Dr.
Robinson’s expert designation, we find that the opinion–he would not have removed the
stitch from the ureter due to the threat of uncontrollable blood loss– was not meaningfully
disclosed before opening statements at trial. Thus, the trial court did not abuse its discretion
in excluding Dr. Robinson’s proposed testimony due to his failure to disclose such testimony.
C. Whether Regina’s challenge is procedurally barred for failing
to seek an order compelling discovery because of the
insufficiency of Dr. Robinson’s expert designation and
interrogatory responses.
¶31. Dr. Robinson finally argues that if this Court finds his expert designation lacking,
Regina’s challenge still fails, as it is procedurally barred. In Mississippi, “if an answer to an
interrogatory regarding an expert witness who will testify at trial is deemed insufficient by
opposing counsel, some means of notice of such insufficiency must be given to the opposing
party in order to let them know that additional information is desired.” Warren v. Sandoz
Pharm. Corp., 783 So. 2d 735, 742 (Miss. Ct. App. 2000). Thus, “when a party receives an
evasive or incomplete answer . . . the burden once against shifts to the party who has
15
propounded discovery, and they are required to seek relief from the court before sanctions
can be imposed.” Id. It is “imperative for [the party seeking expert disclosure] . . . to first
seek relief from the trial court and have an order entered before seeking sanctions.” Id. at
743.
¶32. Counsel for Dr. Robinson argues Regina failed to take this action before seeking to
exclude Dr. Robinson at trial, so this issue with Dr. Robinson’s expert testimony is not
preserved for appeal. We disagree. Warren is easily distinguishable from this case. In
Warren, the designation at issue merely stated: “[defendant] reserves the right to call in its
case-in-chief any treating physician, any expert witnesses listed by plaintiffs and any expert
witness listed by any co-defendant, even if such co-defendant is not a party at the time of
trial.” Warren, 783 So. 2d at 742. Such designation clearly was evasive and incomplete. But
Dr. Robinson’s expert designation was not clearly evasive and incomplete on its face. Dr.
Robinson’s designation did, however, lack his theory that he would not have removed the
suture in the ureter due to the possibility of uncontrollable bleeding.
¶33. As Regina correctly notes, Dr. Robinson’s argument that she should have filed notice
of insufficiency assumes two things. First, it assumes his designation was deficient or
incomplete on its face. Second, it assumes that Regina should have anticipated the opening
statement that Dr. Robinson was going to offer testimony and opinions which were
inconsistent with his previous deposition and his disclosure. We find that this issue is without
merit and that Regina’s appeal is not procedurally barred.
II. Whether Dr. Duboe’s testimony that Dr. Robinson overestimated
Regina’s blood loss should have been excluded.
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¶34. The video trial deposition of Dr. Duboe, Regina’s expert, was played for the jury.
Immediately preceding the testimony at issue over hemoglobin and hematocrit levels, Dr.
Duboe was extensively questioned by Dr. Robinson’s counsel about Regina’s blood loss
during the C-section. When Dr. Robinson’s counsel asked whether an attempt to investigate
and repair the obstructed ureter could have resulted in a fatal loss of blood, Dr. Duboe
countered by denying there was a large loss of blood and referred to a medical record which
estimated Regina’s blood loss at 500 ccs. Dr. Robinson’s counsel then referred Dr. Duboe
to Dr. Robinson’s operative report which estimated blood loss at 900 ccs.
¶35. Dr. Robinson’s counsel stated that Dr. Duboe characterized Regina’s blood loss in a
previous deposition as “excessive.” Dr. Duboe denied characterizing Regina’s blood loss as
“excessive” in his previous deposition, and a challenge was made to find the previous
deposition testiomony. The previous deposition testimony revealed that Dr. Duboe had
characterized the blood loss as “extensive” and “within the average expectation of blood loss
for a C-section.”
¶36. Dr. Robinson’s counsel then questioned Dr. Duboe about whether the uterine tissue
was friable and whether such friable tissue could increase the risk of further bleeding if
additional procedures such as an IVP or cystoscopy were performed intraoperatively to verify
ureteral integrity. While answering this line of questioning, Dr. Duboe came back to the issue
of estimated blood loss and refuted Dr. Robinson’s counsel’s earlier statements that Regina
had suffered an excessive blood loss and that this abnormal blood loss was a factor in Dr.
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Robinson’s failure to conduct intraoperative testing to verify ureteral integrity. The following
exchange occurred:
Counsel for Dr. Robinson: Okay. Isn’t that [postoperative swelling] a valid
reason for ordering the IVP?
Dr. Duboe: No, because an IVP that shows blockage due to swelling or edema
– you’re only doing a test to change your approach to the problem. If she had
swelling or edema that’s causing a blockage, if he truly suspected that, that
means it’s going to clear up. It’s going to clear up within a matter of hours, and
I wouldn’t expect that he would consult a urologist. Once you have a patient
a number of hours after a C-section that has had the repair that he has, he was
concerned. I don’t have any doubts that he was concerned about the integrity
of the ureter. He says for ureteral integrity. He doesn’t say to evaluate for
edema. He doesn’t say to evaluate for, for postop changes or swelling. He’s
interested in ureteral integrity, and that’s the – you know, and that’s a good test
to order. I credit him for that. But what I’m saying is that he should have done
the evaluation at the time the patient was open on the table and not waited until
the next day to do it. That’s my real sole criticism of Dr. Robinson in this
particular case. I will tell you also with respect to hemoglobin, her hemoglobin
was 11.4 and then 11.8 on the next day. That’s not particularly consistent with
a blood loss of close to a thousand cc’s, though you can have individual
variance, but that really doesn’t support that big of a blood loss. So there may
be a question of overestimate of the blood loss as well.
(Emphasis added.)
¶37. Dr. Robinson’s counsel objected to this testimony based on Regina’s failure to
disclose this expert opinion, and insofar as Dr. Duboe’s answer was nonresponsive to the
question. Regina conceded this opinion was not included in her expert designation. The trial
court allowed the testimony, finding the question of blood loss to be relevant, and stating,
“[w]hether it was in his designation or not, specifically it is clearly something that an
OB/GYN deals with concerning hemoglobin counts, concerning repairs and surgeries of this
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type.” The trial court also found it was in response to previous questions asked by Dr.
Robinson’s attorney as to blood loss.
¶38. Regina argues it is immaterial whether the expert designation of Dr. Duboe referenced
hemoglobin or hematocrit since Dr. Robinson’s counsel raised the issue by inviting the
response to his own question. See Hartel v. Pruett, 998 So. 2d 979, 988 (Miss. 2008) (stating
that, although a treatise was not disclosed in discovery in spite of a request, counsel “opened
the door” by asking an open-ended question during cross-examination.”). Although Dr.
Robinson’s counsel did not question Dr. Duboe about hemoglobin/hematocrit levels, and
although Dr. Duboe was not designated to testify as such, we believe the answer was
responsive to Dr. Robinson’s counsel’s questions as to excessive blood loss and the concerns
with performing an intraoperative IVP in light of such blood loss. This Court applies an
abuse-of-discretion standard when a trial court decides “whether a party opens the door for
an opposing party to inquire about otherwise inadmissible evidence.” Id. (quoting APAC-
Mississippi, Inc. v. Goodman, 803 So. 2d 1177, 1185 (Miss. 2002)). We find that the trial
court did not abuse its discretion in allowing Dr. Duboe’s testimony about hemoglobin and
hematocrit levels, since he was answering questions asked by Dr. Robinson’s counsel as to
Regina’s blood loss.
III. Whether remittitur of the award was required.
¶39. At the conclusion of the trial, the jury returned an unanimous verdict with the
following damages awarded to Regina: $55,634.78 for past medical expenses; $8,507.20 for
lost wages; and $420,000 for past physical and emotional pain and suffering. The total jury
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verdict was $484,141.98. Dr. Robinson argues that the stark contrast between the amount of
actual damages and the jury verdict provides an inference of bias, prejudice, or passion by
the jury, so a remittitur is required.
¶40. Under Section 11-1-55 of the Mississippi Code, this Court may order a remittitur “if
the court finds that the damages are excessive or inadequate for the reason that the jury or
trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded
were contrary to the overwhelming weight of credible evidence.” Miss. Code Ann. § 11-1-55(Rev. 2014). Whether a jury award is excessive is determined on a case-by-case basis.
Purdon v. Locke, 807 So. 2d 373, 376 (Miss. 2001). This Court has applied the following
standard to determine whether a jury verdict is excessive:
Where a trial court refuses to grant a remittitur, this Court reviews the decision
for abuse of discretion. The jury’s award is not to be set aside unless it is
entirely disproportionate to the injury sustained. However, when determining
the reasonableness of an award, the sky is simply not the limit. The Court
looks to see whether the verdict is so excessive it shocks the conscience
evidencing a bias, passion and prejudice on the part of the jury.
Estate of Jones v. Phillips ex rel. Phillips, 992 So. 2d 1131, 1150 (Miss. 2008) (quoting
Gatewood v. Sampson, 812 So. 2d 212, 222-23 (Miss. 2002) (citations and quotations
removed)).
¶41. It is mainly the jury’s role “to determine the amount of damages to be awarded and
the award will normally not be ‘set aside unless so unreasonable in amount as to strike
mankind at first blush as being beyond all measure, unreasonable in amount and
outrageous.’” Phillips, 992 So. 2d at 1150 (quoting Foster, 715 So. 2d at 183).
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¶42. Dr. Robinson argues that the award here shocks the conscience and is subject to
remittitur. He relies on Entergy Mississippi, Inc., v. Bolden, 854 So. 2d 1051, 1053 (Miss.
2003), in which this Court ordered a remittitur in a personal-injury case. The plaintiff was
injured in a car accident and claimed special damages of $41,286. Id. at 1058. The jury
awarded $490,000 for pain and suffering, with a total verdict of $532,000. Id. The trial court
denied the motion for remittitur, but this Court remitted the award by $300,000, for a total
of $232,000. Id. This Court in Bolden concluded “that the scant testimony offered in support
of damages for pain and suffering . . . [did] not justify such a large award of damages for
pain and suffering.” Id.
¶43. But Bolden is distinguishable from this case. Regina testified as to her injuries,
medical care, and pain and suffering as a result of the procedure. Regina’s nephrostomy tube
was removed around seven months after the C-section, and a series of stents were placed to
resume urinary flow to the bladder. Regina testified that the urine collection bag she wore
often leaked–sometimes in public–and that it wet her clothing, causing frequent skin rashes
and much embarrassment. Regina was required to undergo many medical procedures over
the eleven months following the C-section, including the painful placement of a series of
ureteral stents. Regina testified she was unable to hold and care for her newborn son for an
extended time after his birth due to the pain associated with the ureteral stent and
nephrostomy.
¶44. Brian Corr, Regina’s husband, described Regina’s difficulties and how she was unable
to care for their newborn son due to the ureteral stent and nephrostomy. He also testified how
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he repeatedly cleaned the nephrostomy site and that Regina was forced to sleep in a chair in
an upright position for a period of time following the C-section to lessen the pain of the
ureteral stent and nephrostomy tube.
¶45. Considering this testimony, we find that Dr. Robinson has not presented any evidence
that the jury verdict was influenced by bias, prejudice, or passion, or that it was contrary to
the overwhelming weight of credible evidence. This Court has held that, though the sky is
not the limit as to jury verdicts, the jury “necessarily has especially broad leeway” because
“pain and suffering is, to a large degree, not susceptible to monetary qualification.” Illinois
Cent. R. Co. v. Gandy, 750 So. 2d 527, 534 (Miss. 1999). This Court has upheld jury verdicts
that were substantially more than the special damages. See, e.g., Phillips, 992 So. 2d at 1150-
51(eleven times the special damages), and Purdon v. Locke, 807 So. 2d 373 (Miss. 2001)
(fourteen times the special damages). The award to Regina of $420,000 for pain and
suffering amounts to six-and-a-half times the total special damages. We find that Regina
offered credible and substantiated testimony as to her pain and suffering, and that the jury
award was not unreasonable or outrageous in light of her testimony. Thus, this issue is
without merit.
CONCLUSION
¶46. Dr. Robinson failed to disclose sufficiently in his expert designation the theory that,
had he know of the stitch in the ureter, he would not have removed the stitch given the friable
tissue and possibility of uncontrollable bleeding. While Regina’s expert was not designated
to testify about hemoglobin and hematocrit levels, the expert’s answer was in response to
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questioning from Dr. Robinson’s counsel about Regina’s blood levels. Finally, Dr. Robinson
has not shown any inference of bias, passion, or prejudice on the part of the jury to require
this Court to order a remittitur. Thus, we affirm the judgment of the Harrison County Circuit
Court in Regina Corr’s favor.
¶47. AFFIRMED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.
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