Sharon W. Dunn v. John G. Yager, M.D. ( 2009 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-00599-SCT
CONSOLIDATED WITH
NO. 2004-IA-01833-SCT
SHARON W. DUNN
v.
DR. JOHN G. YAGER, M.D.
DATE OF JUDGMENT: 01/13/2009
TRIAL JUDGE: HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: GREGG LINDSEY SPYRIDON
PHILIP GIPSON SMITH
ATTORNEYS FOR APPELLEE: BRETT K. WILLIAMS
KEVIN M. MELCHI
RICHARD WILLIAM FRANKLIN
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 04/14/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Sharon W. Dunn claimed severe back and leg pain caused by a work-related forklift
accident. After obtaining no relief following sixteen months of treatment from other
physicians, Dunn was referred to John G. Yager, M.D., a board-certified neurologist
practicing in Mobile, Alabama, with the Neurology Center (“Center”). On May 10, 1995,
Dr. Yager prescribed Tegretol to Dunn, which she began taking on May 19, 1995. On June
13, 1995, Dunn experienced an adverse reaction, which rapidly worsened over the next two
days. Subsequently, she was diagnosed as having Stevens-Johnson Syndrome (“SJS”). As
a result of the SJS, Dunn is now blind, along with other physical problems.
¶2. In April 1996, Dunn filed suit in the Circuit Court of Jackson County, Mississippi,
against multiple defendants, including Dr. Yager. Following the dismissal of all other
defendants by virtue of settlement, bankruptcy, or summary judgment, Dr. Yager is the lone
remaining defendant. Dunn alleged that Dr. Yager had failed to procure her informed
consent by failing to warn of alleged material risks associated with Tegretol, including SJS,
and that he had breached the standard of care applicable to a neurologist prescribing Tegretol
for neuropathic pain by failing to warn Dunn that flu-like symptoms may indicate an adverse
reaction to the medication.
¶3. In 2006, this Court determined that Dr. Yager’s interlocutory appeal from the denial
of his “Motion to Dismiss for Lack of Personal Jurisdiction” had been “improvidently
granted.” In January 2009, following a twenty-day trial, the jury found in favor of Dr. Yager.
Following the circuit court’s denial of Dunn’s “Motion for Judgment Notwithstanding the
Verdict, Relief from Judgment and New Trial,” Dunn filed her direct appeal, to which Dr.
Yager filed a cross-appeal regarding the issue of personal-jurisdiction.
FACTS
¶4. On September 15, 1993, Dunn was involved in a forklift accident at her workplace,
Ingalls Shipyard (“Ingalls”)1 in Pascagoula, Mississippi, resulting in back and leg pain. On
1
Now, Northrop Grumman.
2
September 29, 1993, Dunn visited Dr. Frank Fondren, an orthopedic surgeon in Mobile,
Alabama. Over the following sixteen months, Dr. Fondren prescribed numerous medications
and treatment modalities for Dunn, ultimately concluding that he had nothing further to offer
her. Dr. Fondren then referred Dunn to his partner, Dr. Jim West, a spine treatment
specialist, who determined that Dunn would not benefit from surgery. Thereafter, Dr.
Fondren referred Dunn to Dr. Yager.
¶5. In March 1995, Dunn returned to Ingalls in a limited capacity, first, as a secretary,
then, at the fuel depot, filling vehicles. On April 19, 1995, Dunn had her first office visit
with Dr. Yager. Dr. Yager’s first impression was that “[s]he may have radiculopathy on the
right. I will check an EMG, NCV as apparently these have not been done. I will try to get
the results of previous MRI’s, etc. She may well need [a] CT myelogram depending upon
the findings.” No medication was prescribed to Dunn at this time.
¶6. On May 10, 1995, Dunn had her second office visit with Dr. Yager. By this time,
Dunn had stopped working due to pain in her back and down her right leg. After reviewing
results of Dunn’s EMG and NCV tests, Dr. Yager found only “minor abnormalities[,]” and
proposed the following treatment plan:
I will get a CT myelogram to better define the lesions, if present, in the back
and look for surgical problems. However, I am not very optimistic about that.
I will start her on Robaxin 500 mg b.i.d. and Tegretol 200 mg advanced after
one week to t.i.d. to see if this will help break her pain cycle.
(Emphasis added.) According to Dunn, in prescribing Tegretol, Dr. Yager asked only if she
had any allergies, then instructed her on “[t]he name of the drug and how to take it, the hours
3
in which, how much per day, how many hours in between . . . .” Dunn maintained that Dr.
Yager had failed to disclose any of Tegretol’s risks or side effects.
¶7. Conversely, Dr. Yager testified that he had discussed potential side effects, including
blurred vision and likely, although “not absolutely certain,” a rash. According to Dr. Yager:
[t]ypically when I . . . prescribe a patient Tegretol, you tell them what it’s for,
you tell them a few side effects you may have, you tell them they could have
allergic reactions, and you tell them if anything happens bad, you need to call
us, anything you don’t understand. Those are typical of any drug used.
(Emphasis added.) While Dr. Yager acknowledged that he did not specifically mention flu-
like symptoms, a sore throat, and/or mouth ulcers as possible side effects of a severe reaction
to Tegretol, he added that “[t]here is no way” to distinguish between the flu and an adverse
reaction.2 Dunn and Dr. Yager agreed that he also told her, “if you have any problems, call
me.”
¶8. Tegretol was manufactured by Ciba-Geigy.3 By 1995, Tegretol had been approved
by the FDA for the treatment of epileptic seizures, but not neuropathic pain. As such, Dr.
Yager’s prescription was off-label. Multiple expert witnesses testified that in 1995, an off-
label prescription of Tegretol for neuropathic pain was common.
¶9. On May 10, 1995, the Physician’s Desk Reference (“PDR”) product information
regarding Tegretol included the following:
WARNING
2
This is significant, because multiple expert witnesses testified that, after the
symptoms of SJS begin to manifest, it cannot be stopped. According to Dr. Yager, the
treatment of SJS is simply “supportive.”
3
Now, Novartis.
4
APLASTIC ANEMIA AND AGRANULOCYTOSIS HAVE BEEN
REPORTED IN ASSOCIATION WITH THE USE OF TEGRETOL. . . .
HOWEVER, THE OVERALL RISK OF THESE REACTIONS IN THE
UNTREATED GENERAL POPULATION IS LOW, APPROXIMATELY
SIX PATIENTS PER ONE MILLION POPULATION PER YEAR FOR
AGRANULOCYTOSIS AND TWO PATIENTS PER ONE MILLION
POPULATION PER YEAR FOR APLASTIC ANEMIA.
...
BECAUSE OF THE VERY LOW INCIDENCE OF AGRANULOCYTOSIS
AND APLASTIC ANEMIA, THE VAST MAJORITY OF MINOR
HEMATOLOGIC CHANGES OBSERVED IN MONITORING OF
PATIENTS ON TEGRETOL ARE UNLIKELY TO SIGNAL THE
OCCURRENCE OF EITHER ABNORMALITY. NONETHELESS,
COMPLETE PRETREATMENT HEMATOLOGICAL TESTING SHOULD
BE OBTAINED AS A BASELINE.[4 ]
...
WARNINGS
Patients with a history of adverse hematologic reaction to any drug may be
particularly at risk.
Severe dermatologic reactions including . . . [SJS], have been reported with
Tegretol. These reactions have been extremely rare.[5 ] However, a few
fatalities have been reported.
...
4
This entire capitalized “WARNING” section is known as the “black-box warning.”
Dr. Terry Millette, tendered and accepted as an expert in the field of neurology, testified that
the potentially life-threatening blood conditions of aplastic anemia and agranulocytosis are
unrelated to SJS. Dunn does not assert that she contracted aplastic anemia or
agranulocytosis.
5
An SJS reaction was described by experts at trial as “an extremely rare event[,]” “like
getting hit by lightning[,]” and “a one-in-a-million occurrence.” The incidence rate of SJS
in the general population is between 1.2 per 1,000,000 to 6 per 1,000,000. Even Dunn’s
expert, Dr. Steven Waring (tendered and accepted as an expert in the field of epidemiology),
testified that the frequency of various types of severe dermatological reactions (not limited
to SJS) occurring among new users of Tegretol between 1975 and 1995 was between 3 per
100,000 and 8 per 100,000.
5
PRECAUTIONS
...
Information for Patients: Patients should be made aware of the early toxic
signs and symptoms of a potential hematologic problem, such as fever, sore
throat, ulcers in the mouth, easy bruising, petechial or purpuric hemorrhage,
and should be advised to report to the physician immediately if any such signs
or symptoms appear.
...
Laboratory Tests: Complete pretreatment blood counts, including platelets
and possibly reticulocytes and serum . . . should be obtained as a baseline.[6 ]
...
ADVERSE REACTIONS
...
The most frequently observed adverse reactions, particularly during the initial
phases of therapy, are dizziness, drowsiness, unsteadiness, nausea, and
vomiting. To minimize the possibility of such reactions, therapy should be
initiated at the low dosage recommended.
The following additional adverse reactions have been reported:
...
Skin: . . . [SJS] (see WARNINGS) . . . .
(Emphasis added.)
6
Multiple expert witnesses testified that, despite this manufacturer recommendation,
the applicable standard of care did not require pretreatment blood counts for otherwise
healthy individuals, as they were of questionable value and not cost-effective. Conversely,
Dunn’s expert, Dr. John Olson, who was tendered and accepted as an expert in the field of
neurology, testified that the failure to complete pretreatment blood counts was a breach of
the standard of care. But Dr. Olson also acknowledged that such testing would not have
prevented Dunn from contracting SJS.
6
¶10. At trial, Dr. Yager noted that his decision to prescribe Tegretol was influenced by the
fact that Dunn “had this problem for a year and a half . . . . She’s not really responded very
well to these other treatment modalities, so ideally you would like to try a different modality
to try to get her under better control.” Multiple other experts testified that the standard of
care would not require repeating previously unsuccessful treatment modalities and
medications. Another expert for Dunn, Dr. Carroll McLeod, tendered and accepted as an
expert in the field of anesthesiology, testified that he may prescribe Tegretol “after I had tried
other medications and they had failed.”
¶11. On May 19, 1995, a CT myelogram was performed on Dunn. Later that day, Dunn
filled her prescriptions from Dr. Yager for a thirty-day supply of Tegretol and a thirty-day
supply of Robaxin at Vancleave Pharmacy in Vancleave, Mississippi. Several days later,
Dunn returned to work.
¶12. On May 26, 1995, Dunn had her third office visit with Dr. Yager. At the time, Dr.
Yager was unaware that Dunn had not filled the May 10, 1995, prescription until May 19,
1995. According to Dunn, she questioned Dr. Yager about whether her blood levels should
be tested. Dr. Yager responded that, based upon the low dosage prescribed, no such testing
was needed, and again instructed Dunn to contact his office if she experienced any problems.
Dunn further testified that she had reported feeling sluggish, to which Dr. Yager had “told
me that everything would be fine; just not to step up the dosage like he had first prescribed
me to do.” 7 Dr. Yager’s office chart reflected that Dunn’s legs were feeling better, but that
7
Multiple experts testified that the side effect of sluggishness often diminishes over
time.
7
she was experiencing a “possible post myelogram headache.” According to Dr. Yager,
because Dunn previously had expressed her goal of returning to driving machinery at Ingalls
and had “told me she was better on the medication,” he did not “think she would have wanted
to stop it at that point in time.” Accordingly, Dr. Yager modified Dunn’s treatment plan and
started her on Ultram “advanced to 100 mg b.i.d.[,]” continued her “on the Robaxin 500 mg
b.i.d. and Tegretol 200 mg b.i.d.[,]” placed her on a six-day Medrol Dosepak for her
headache, and noted that “[s]he will call me in three weeks and let me know [how] she is
doing.” Dunn acknowledged that Dr. Yager instructed her to “call him if I had any
problems.”
¶13. On June 13, 1995, Dunn began experiencing flu-like symptoms and “itchy” and
“watery” eyes while at work. That evening, Dunn testified that she “began to have a few
bumps come up in my mouth, and . . . my left eye was just pouring water or drainage . . . .”
Dunn did not call Dr. Yager’s office. On June 14, 1995, Dunn awoke with continued flu-like
symptoms, lesions on her gums, impaired vision in her right eye, and her left eye “matted .
. . closed with mucous.” (Emphasis added.) Rather than contacting Dr. Yager, per his
repeated instructions, Dunn went to the Wiggins Clinic, where Dr. Pacita Coss performed an
eye examination, suspected a “severe bacterial infection,” gave Dunn a shot of Rocephin, and
prescribed antibiotics. According to Dr. Coss, she recommended that Dunn remain in the
hospital, but Dunn refused.
¶14. On June 15, 1995, Dunn was taken to the emergency room of Stone County Hospital,
where Dr. Thomas Lehman diagnosed her with SJS. Dunn’s body was covered in blisters
and she remained hospitalized for several weeks. As a result of the SJS, Dunn is blind, has
8
experienced hearing problems, and asserts that her back and leg pain has “[n]ot really”
resolved.
¶15. On April 25, 1996, Dunn filed a Complaint in the circuit court against Hyster
Company (“Hyster”); NACCO Industries, Incorporated (“NACCO”);8 Dr. Yager; Dr. Coss;
Basel Pharmaceutical (“Basel”); Ciba-Geigy Corporation (“Ciba-Geigy”); Geigy
Pharmaceuticals, Incorporated;9 and Vancleave Pharmacy. Dunn subsequently filed an
Amended Complaint adding the diagnosing physician, Dr. Lehman, as a defendant. In
February 1998, Dr. Lehman filed a “Voluntary Petition of Bankruptcy” in the United States
Bankruptcy Court, Southern District of Mississippi,10 which ultimately resulted in his
dismissal from this case on July 1, 2003. On March 18, 2004, NACCO d/b/a Hyster was
dismissed from the case following settlement with Dunn. On April 26, 2004, Vancleave
Pharmacy was dismissed from the case via summary judgment. On November 19, 2007, the
circuit court entered an “Order of Dismissal with Prejudice” as to Basel, Ciba-Geigy, and
Geigy Pharmaceuticals following their settlement with Dunn. On February 25, 2008, the
circuit court entered an Order dismissing Dr. Coss with prejudice following her settlement
with Dunn. Therefore, Dr. Yager is the lone remaining defendant. Dunn asserted:
three separate theories of fault against Dr. Yager: (1) failure to obtain [Dunn’s]
informed consent to be treated with Tegretol for back and leg pain; (2) failure
8
According to the Complaint, Hyster and/or NACCO had manufactured the forklift.
9
According to the Complaint, Basel, Ciba-Geigy, and/or Geigy Pharmaceuticals had
manufactured Tegretol.
10
Between February 1998 and August 2002, the present case was stayed. In August
2002, the bankruptcy court entered an “Order Authorizing Sharon Dunn to Proceed in
Lawsuit Filed in Circuit Court of Jackson County, Mississippi.”
9
to warn [Dunn] of severe life-threatening dermatological, hematological, or
hepatic adverse reactions to Tegretol, which manifest themselves in the early
stages as flu-like symptoms and/or a decrease in white blood cells; and (3)
failure to conduct proper blood work to monitor the effects of Tegretol.
¶16. In October 2004, following the circuit court’s “Order Denying Dr. Yager’s Motion
to Dismiss for Lack of Personal Jurisdiction,” this Court granted Dr. Yager’s petition for
interlocutory appeal. But on March 30, 2006, this Court entered an Order dismissing that
petition as “improvidently granted.” In so ruling, this Court noted that “the dismissal is not
a ruling on the merits of any issue raised by the petition.” On June 15, 2006, this Court
denied Dr. Yager’s “Motion for Rehearing” regarding the dismissal of his petition.
¶17. A jury trial commenced on December 1, 2008. Following twenty days of trial and
nearly three hours of deliberation, the jury found in favor of Dr. Yager. Following the
circuit court’s denial of Dunn’s “Motion for Judgment Notwithstanding the Verdict, Relief
from Judgment and New Trial” proceeds Dunn’s direct appeal and Dr. Yager’s cross-appeal
on the issue of personal-jurisdiction.
ISSUES 11
¶18. On cross-appeal, Dr. Yager raised the following jurisdiction issue, which this Court
considers first:
I. Whether a Mississippi court may properly exercise personal jurisdiction over
Dr. Yager, an Alabama resident.
This Court next considers the following issues raised by Dunn on direct appeal:
11
In the interest of analytical clarity, this Court has reordered and restated the issues
presented on appeal by Dunn and on cross-appeal by Dr. Yager.
10
II. Whether, under Article 3, Section 25 of the Mississippi Constitution, the
circuit court erred in precluding Dunn from addressing the jury during closing
argument.
III. Whether the circuit court abused its discretion in denying Dunn’s motion
to substitute an expert.
IV. Whether the circuit court abused its discretion in precluding Dunn from
using the video deposition of neurologist Dr. Harry Gould.
V. Whether the circuit court erred in disclosing to the jury the fact that Dunn
had settled with other defendants.
VI. Whether the circuit court’s jury instructions regarding “informed consent”
were erroneous.
VII. Whether the circuit court abused its discretion in precluding Dunn from
introducing excerpts from the 2009 Physician’s Desk Reference.
ANALYSIS
I. Whether a Mississippi court may properly exercise personal
jurisdiction over Dr. Yager, an Alabama resident.
¶19. Dr. Yager’s “Answer to Complaint” provided that:
[t]his [c]ourt lacks in personam jurisdiction over [Dr. Yager] because, among
other things, [Dr. Yager] was not and is not doing business within the State of
Mississippi and all of [Dr. Yager’s] medical care and treatment relating to
[Dunn] took place in the State of Alabama. Therefore, this complaint should
be dismissed . . . .
Dr. Yager’s subsequent “Responses to Interrogatories,” filed on June 20, 1996, provided that
“[p]robably less than 5%” of his practice over the past ten years had consisted of patients
from Mississippi;12 he treated only Mississippi patients who “called for appointments or were
referred from other physicians[;]” he had never solicited any business in Mississippi in the
previous ten years; and he had never performed any medical services in Mississippi.
12
In Dr. Yager’s “Second Supplemental Responses to Interrogatories,” he reduced that
figure to only “as high as 2.36%.”
11
¶20. On March 2, 1999, Dr. Yager filed a “Motion for Summary Judgment for Lack of
Personal Jurisdiction.” Dr. Yager’s affidavit, attached to the motion, provided that he was
licensed to practice in Alabama, practiced exclusively in Alabama, and had never practiced
medicine in Mississippi. The affidavit asserted that Dr. Yager does not “solicit business” in
Mississippi “through any means[;]” has never lived, or owned real or personal property, in
Mississippi; and “do[es] not retain anyone as an agent in any capacity” in Mississippi.
According to Dr. Yager, his only contact with Dunn occurred in Alabama, following her
referral by Dr. Fondren. As such, Dr. Yager asserted that he had not “purposefully availed
[him]self of the Mississippi courts.”
¶21. However, Dr. Yager’s “Supplemental Responses to Interrogatories,” reveals he
accepted health insurance payments from insurers who “may insure residents from states
other than Alabama, and which may include Mississippi.” The affidavit of Nan Wallis, vice-
president and co-owner of PPOplus, a preferred-provider organization (“PPO”), presented
a slightly different picture, in that:
[b]ased upon my experience, for a physician whose practice is generally
covered by insurance, . . . the most effective means of building a patien[t] base
is through membership in [PPOs] and other managed care organizations.
Traditional marketing, such as television, radio, and yellow pages, is typically
not as effective due to the pricing incentives available for participating
members.
The record reveals that Dr. Yager was a participating member of PPOs servicing Mississippi
residents, including Gulf Health Plans,13 Private Healthcare Systems,14 and Beech Street
13
The affidavit of Kerry D. Goff, the president of Gulf Health Plans, provided that Dr.
Yager first entered into a “Participating Physician Agreement” in 1992. According to Goff,
“[u]nder the Participating Physician Agreement, [Dr. Yager] authorized [Gulf Health Plans]
12
Corporation.15 An affidavit of Nita Moore, the “legal coordinator” for Blue Cross Blue
Shield of Mississippi (“BCBS-MS”), provided that Dr. Yager and other physicians of the
Center, in which Dr. Yager had a one-third shareholder interest, “are listed as physician
providers in the [BCBS-MS] directory of providers for Mississippi residents under the
heading of out of state providers and/or Gulf Health Plan providers . . . .” (Emphasis added.)
That affidavit stated that “the health care providers that are made available to BCBS-MS
policyholders agree to: [d]iscounted medical services; [f]ile claims for policy holders;
[a]ccept [BCBS-MS] payment, plus any deductible, co-insurance and co-payment when
applicable, as payment in full for covered services; and [p]articipate in utilization
management programs.” According to Moore, BCBS-MS “is the largest provider of health
insurance in the State of Mississippi with an approximate average annual membership of
more than 800,000 members.” Moore’s affidavit added that, from 1994 to 2004, BCBS-MS
“paid claims submitted by Dr. Yager and other physicians of the [Center] . . . totaling
$126,732.82 for the 1,228 occasions on which physicians of the [Center], including Dr.
Yager, provided treated to members of the BCBS-MS network.” Attached to Moore’s
affidavit was a document summarizing the fees paid by BCBS-MS to Dr. Yager, which
to enter into agreements (directly or indirectly) with payors, health plans or networks of
payors or health plans on his behalf.”
14
The affidavit of George S. Moran, the “Executive Vice President, Networks, of
Private Healthcare Systems,” stated that Dr. Yager had been listed as a participating provider
since December 1, 1993, and that, as of 2000, “the estimated number of covered employees
in the State of Mississippi . . . is 5600.”
15
According to the affidavit of Janice Mandolesi, an employee of Beech Street
Corporation, “approximately [4,000] Mississippi employees are covered by health plans
participating in the Beech Street PPO Network.”
13
totaled $18,918. Finally, the affidavit of Melzana Fuller, the “Bureau Director for Provider
and Beneficiary Relations” for the Mississippi Division of Medicaid, stated that from January
16, 1989, through August 31, 1995, “Medicaid provider files [were] established and
maintained for” Dr. Yager. Thus, Dr. Yager’s averment that he was “not doing business” in
Mississippi is dubious at best, given his involvement not only with health-care providers and
insurers, but also the government of Mississippi.
¶22. With regard to Dr. Yager’s treatment of Dunn, the April 19, 1995, note of Dr. Yager’s
office provided “[r]esponsible party: F.A. Richard (Litton Shipbuilding).” That note further
listed “F.A. Richard, P.O. Box 1728, Pascagoula, Mississippi, 39567,” as the insurance
company under the “Workmen’s Comp Only” section for “Claim [Number] I930770243.” 16
The May 10, 1995, note of Dr. Yager’s office provided that “Dr. Yager approved pay Ross
McBride/F.A. Richard.” Finally, Dr. Yager’s May 19, 1995, office chart stated that the “CT
myelogram - lumbar spine” has been “approved by Robbie Harrison . . . F.A. Richard.”
¶23. On August 27, 2004, the circuit court held a hearing on Dr. Yager’s “Motion to
Dismiss for Lack of Personal Jurisdiction.” Regarding the Mississippi long-arm statute, the
circuit judge determined that:
I’m reading from [Horne v. Mobile Area Water & Sewer System, 897 So. 2d
972 (Miss. 2004)] – Mississippi’s Long-Arm Statute contains no requirements
that the part of the tort which causes the injury be committed in Mississippi.
This is true because an injury is necessary to complete a tort. . . . This [c]ourt
finds that, in fact, the injury of [Dunn] did, in fact, occur in [Mississippi], and
that, in fact, that part of the tort which caused the injury, was committed in
Mississippi. . . . That’s, in fact, where she lost her sight and did not go back
to Dr. Yager; therefore, the Long-Arm Statute applies.
16
According to Dunn, F.A. Richard was the “third-party administrator” for Ingalls.
14
(Emphasis added.) As to due process, the circuit judge noted that “we are in a geographic
area that has historically, economically, and commercially had ties to the other [Mississippi
and Alabama], although there is a state line through there.” The circuit judge added that over
the past thirty years, “[d]octors, as well as our profession had to begin the process of reaching
out further and further for clients, business and profits. Patients cross [the] state line
frequently, back and forth.” In concluding that the circuit court had personal jurisdiction
over Dr. Yager, the circuit judge found that Dr. Yager’s payments with respect to Dunn
“came from F.A. Richard[,] . . . an insurance company . . . at Ingalls, situated in
Pascagoula[;]” that Dr. Yager had “joined Mississippi Medicaid” between 1989 and 1995;
that advertisements placed in The Mobile Press-Register by the Center were “circulated in
this community[;]” that Dr. Yager “cannot hide behind th[e] fact” that the Center is not a
party “because he is a part owner and shareholder[;]” and, finally, that “[t]he actions by [Dr.
Yager] with respect to PPOs, the insurance companies, et cetera, were purposely directed to
[Mississippi], and there’s no way that this [c]ourt can find the intent is not to get patients
from the State of Mississippi. Fundamental fairness, Mobile is 30 miles from Pascagoula.”
(Emphasis added.) On September 2, 2004, the circuit court entered its “Order Denying Dr.
John G. Yager’s Motion to Dismiss for Lack of Personal Jurisdiction.”
¶24. As noted in ¶ 16 supra, this Court subsequently dismissed Dr. Yager’s petition for
interlocutory appeal of the circuit court’s ruling as “improvidently granted.” On August 14,
2008, Dr. Yager filed a “Motion to Reconsider Order Regarding Personal Jurisdiction”
relying, in part, upon a “Separate Written Objection” to this Court’s Order dismissing the
interlocutory appeal. At the hearing, the circuit judge stated:
15
[t]his [c]ourt is certainly not oblivious to the ramifications of its ruling on
jurisdiction. The [c]ourt understands how it can and probably is having a
chilling effect on Mobile County doctors. However, . . . [t]he [c]ourt can’t
overlook those matters that were set out that Dr. Yager and/or [the Center] did.
. . . [T]he medical profession, like the legal profession, is changing and has
changed. And it appears to me that Horne is an implicit acknowledgment of
that change. And that may be chilling, but that may be the price that we
professionals, legal or medical, may make when we decide to expand
practices, go into other jurisdictions, et cetera; so that motion is overruled.
(Emphasis added.) On September 4, 2008, the circuit court entered its “Order Denying
Defendant’s Motion to Reconsider Order Regarding Personal Jurisdiction.”
¶25. A de novo standard of review applies to the issue of whether a Mississippi court has
personal jurisdiction over an Alabama resident. See Sealy v. Goddard, 910 So. 2d 502, 506
(Miss. 2005) (citing Tel-Com Mgmt., Inc. v. Waveland Resort Inns, Inc., 782 So. 2d 149,
151 (Miss. 2001)). “The proper order when analyzing personal jurisdiction over non-resident
defendants is to first consider whether the long-arm statute subjects a nonresident defendant
to personal jurisdiction and then to consider whether the statute’s application to that
defendant offends the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution.” Estate of Jones v. Phillips, 992 So. 2d 1131, 1137 (Miss. 2008).
A. Long-arm statute
¶26. Mississippi Code Section 13-3-57 provides, in pertinent part, that:
[a]ny nonresident person . . . who shall make a contract with a resident of this
state to be performed in whole or in part by any party in this state, or who shall
commit a tort in whole or in part in this state against a resident of this state, or
who shall do any business or perform any character of work or service in this
state, shall by such act or acts be deemed to be doing business in Mississippi
and shall thereby be subjected to the jurisdiction of the courts of this state.
16
Miss. Code Ann. § 13-3-57 (Rev. 2002). Accordingly, there are “three activities” which will
permit Mississippi courts to exercise personal jurisdiction over a nonresident defendant: “(1)
if that person has entered into a contract to be performed in Mississippi; (2) has committed
a tort in Mississippi; or, (3) is conducting business in Mississippi.” Yatham v. Young, 912
So. 2d 467, 469-70 (Miss. 2005). Regarding application of the long-arm statute to Dr. Yager,
this Court has to go no further than analyzing the tort prong, which is dispositive.
¶27. This Court has stated that:
“[u]nder now well established law, Mississippi’s long-arm statute contains no
requirement that the part of the tort which causes the injury be committed in
Mississippi.” Sorrells v. R&R Custom Coach Works, Inc., 636 So. 2d 668,
672 (Miss. 1994). Rather, for purposes of our long-arm statute, a tort is
committed in Mississippi when the injury results in this State. Id. This is true
because an injury is necessary to complete a tort. Id.
Horne, 897 So. 2d at 977 (emphasis added). See also Yatham, 912 So. 2d at 470; Flight
Line, Inc. v. Tanksley, 608 So. 2d 1149, 1157 (Miss. 1992) (“[t]orts arise from breaches of
duties causing injuries, and it is common experience that breach and causation and impact
do not all always happen at once”). But “consequences stemming from the actual tort injury
do not confer personal jurisdiction at the site or sites where such consequences happen to
occur.” Allred v. Morris & Peterson, 117 F.3d 278, 282 (5th Cir. 1997) (quoting Jobe v.
ATR Mktg., Inc., 87 F.3d 751, 753 n.2 (5th Cir. 1996)). See also Bufkin v. Thermage, Inc.,
2009 WL 114780, at *4 (S.D. Miss. 2009) (“[t]he line between what constitutes actual injury
and what are mere consequences of an injury can at times be difficult to locate precisely.”).
¶28. In Horne, the defendants released water from an Alabama reservoir which flowed into
Mississippi and allegedly “caused damage and/or destruction to the real and personal
17
property of more than 350 Jackson County[, Mississippi] property owners.” Horne, 897 So.
2d at 974. Based thereon, this Court concluded that the Mississippi property owners
“suffered a tort in Mississippi for purposes of the long-arm statute because the plaintiffs’
property was damaged inside the boundaries of this State.” Id. at 977.
¶29. According to Dr. Yager, “the alleged tort occurred when [he] allegedly failed to obtain
informed consent for prescribing Tegretol, when he allegedly failed to warn [Dunn] of the
dangers of Tegretol, and when he continued to prescribe Tegretol without a finding of a
neurogenic origin for [Dunn’s] pain[,]” all of which occurred in Alabama. Dr. Yager
attempts to distinguish Horne by arguing that Dunn’s “symptoms from [SJS] simply
manifested in Mississippi[,]” and that result was not a “direct consequence” of his actions,
as he “did not arrange for the prescription to be filled in Mississippi.”
¶30. Dunn responds that because her injuries “took place exclusively in Mississippi, Dr.
Yager committed a tort in this state within the meaning of the Mississippi long-arm statute.”
Dunn specifically notes that she filled the Tegretol prescription at Vancleave Pharmacy in
Vancleave, Mississippi; ingested the medication at home and work exclusively in
Mississippi; and suffered the effects of SJS in Mississippi. In short, she asserts that her
“cause of action did not accrue until she ingested the Tegretol and sustained an adverse
reaction.”
¶31. “[F]or purposes of our long-arm statute, a tort is committed in Mississippi when the
injury results in this State.” Horne, 897 So. 2d at 977 (citing Sorrells, 636 So. 2d at 672).
This Court concludes that Dunn’s actual injury, not the mere consequences thereof, occurred
in Mississippi. Dunn filled the prescription in Mississippi, consumed the prescription drugs
18
in Mississippi, and the effects of her injury were suffered in Mississippi. Accordingly, this
Court concludes that the circuit court did not err in finding that the long-arm statute applies
to Dr. Yager.
B. Due Process
¶32. The United States Supreme Court has stated that:
due process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit does not offend
“traditional notions of fair play and substantial justice.”
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940)). This
inquiry involves “two considerations: (1) the extent and quality of the contacts of the
defendant with the forum state and, assuming sufficient minimum contacts exist, (2) whether
the maintenance of the suit in the forum state offends traditional notions of fair play and
substantial justice.” Phillips, 992 So. 2d at 1140 (citing Asahi Metal Indus. Co. v. Superior
Court of California, 480 U.S. 102, 113-15, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987)). See
also Med. Assurance Co. of Miss. v. Jackson, 864 F. Supp. 576, 578 (S.D. Miss. 1994)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183, 85 L.
Ed. 2d 528 (1985)) (“the focus of the due process inquiry is on whether the nonresident, by
virtue of his contact(s) with the forum state, can be said to have ‘purposely availed himself
of the benefits and protections of’ the forum’s laws”).
19
(1) Minimum contacts
¶33. “Minimum contacts” are more than mere “fortuitous” contacts and “must be between
the defendant and the forum state, not simply between the defendant and a resident of the
forum state.” Admin. of Tulane Educ. Fund v. Cooley, 462 So. 2d 696, 703 (Miss. 1984)
(quoting Iowa Elec. Light & Power Co. v. Atlas Corp., 603 F.2d 1301, 1303 n.3 (8th Cir.
1979)). “Historically, minimum contacts have been split into two types: those which invoke
specific jurisdiction over a defendant and those that lead to general jurisdiction over a
defendant.” Id. As either will suffice, regarding Dr. Yager’s minimum contacts with
Mississippi, this Court finds the subject of general personal jurisdiction dispositive.
¶34. This Court “may exercise general jurisdiction over a nonresident defendant when the
cause of action does not arise out of or relate to the defendant’s activities in the forum state
as long as the defendant’s contacts with the forum are systematic and continuous.” Phillips,
992 So. 2d at 1141 (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408,
415-18, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)). Such contact should be “calculated rather
than fortuitous and regular and continuous rather than sporadic or isolated.” Rittenhouse v.
Mabry, 832 F.2d 1380, 1390 (5th Cir. 1987), superseded by statute on other grounds as
stated in Kekko v. K&B Louisiana Corp., 716 So. 2d 682, 683 (Miss. Ct. App. 1998).
¶35. Dr. Yager was an approved Mississippi Medicaid provider from January 1989 through
August 1995. As Fuller’s affidavit provided, during this period, Mississippi “Medicaid
provider files [were] established and maintained for” Dr. Yager. Furthermore, since 1992,
Dr. Yager had participated in various PPOs which, inter alia, gave him access to more than
800,000 members of BCBS-MS as prospective clients. In addition, Dr. Yager solicited
20
patients through the PPOs, as an approved preferred provider. Finally, Dr. Yager’s treatment
of Dunn was itself approved by F.A. Richard, based in Pascagoula, Mississippi, which acted
as the “[r]esponsible party” and insurance company under the “Workmen’s Comp Only”
section for Dunn’s claim. Under the totality of these circumstances, this Court concludes that
Dr. Yager had “systematic and continuous” contacts with Mississippi. Phillips, 992 So. 2d
at 1141 (citing Helicopteros, 466 U.S. at 415-18). Therefore, the circuit court properly
concluded that sufficient minimum contacts existed with Mississippi to exercise personal
jurisdiction over Dr. Yager.
(2) Fair play and substantial justice
¶36. The United States Supreme Court has stated that:
the determination of the reasonableness of the exercise of jurisdiction in each
case will depend on an evaluation of several factors. A court must consider the
burden on the defendant, the interests of the forum [s]tate, and the plaintiff’s
interest in obtaining relief. It must also weigh in its determination “the
interstate judicial system’s interest in obtaining the most efficient resolution
of controversies; and the shared interest of the several States in furthering
fundamental substantive social policies.”
Asahi Metal, 480 U.S. at 113 (quoting World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 292, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)).
¶37. According to Dr. Yager, “[s]ound public policy demands that doctors not be forced
to first ask where a patient is from prior to providing treatment.” He contends that a finding
that he is subject to personal jurisdiction in Mississippi will not only “have a chilling effect
on the ability of Mississippi residents to seek health care[,]” but also that “Mississippi
physicians treating non-resident patients would be subject to jurisdiction in the patients’
home states.” Dunn responds that “Mississippi has an interest in adjudicating disputes
21
involving its injured residents[;]” that “[t]he interstate judicial system interest is not
diminished nor is a significant burden imposed on any party due to th[e] proximity of Dr.
Yager’s place of business and the forum county[;]” and that any potential “chilling effect”
is outweighed by Mississippi’s interest in “protecting its citizens from tortious injury by
health care providers.”
¶38. Regarding the interest of the forum state, Horne reasoned that “Mississippi has a
strong interest in adjudicating the dispute because Mississippi residents were injured . . . .”
Horne, 897 So. 2d at 981. Similarly, this Court finds that Mississippi has an interest in
adjudicating a dispute in which its resident, Dunn, suffered physical injury. This interest is
particularly compelling when the alleged tortfeasor is in Mobile, Alabama, an area which,
as noted by the circuit court, has numerous historic, economic, and commercial ties with
South Mississippi. Relatedly, the geographic proximity involved in this specific case also
weighs in favor of Dunn as to the burden on the defendant and the interest in the most
efficient resolution of controversies. Stated succinctly, this case involves a physician from
Mobile, Alabama, not Missoula, Montana, the Mayo Clinic in Rochester, Minnesota, or the
MD Anderson Cancer Center in Houston, Texas. See id. (the defendants were located “only
12 miles from Mississippi.”); BankPlus v. Toyota of New Orleans, 851 So. 2d 439, 444
(Miss. Ct. App. 2003) (“[s]ince Jarrell and BankPlus are located in Pearl River County and
New Orleans is not that far from the forum, it is efficient to have the trial in Pearl River
County and does not place any unreasonable burden on Toyota”); Am. Cable Corp. v.
Trilogy Commc’ns, Inc., 754 So. 2d 545, 552 (Miss. Ct. App. 2000) (“[t]he burden upon
American Cable does not appear substantial, as it is not a great distance from Florida to
22
Mississippi.”). Moreover, given this geographic proximity and Dr. Yager’s contacts with
Mississippi, including his PPO participation and prior status as a Mississippi Medicaid
provider, he reasonably could expect to be sued by a Mississippi patient in Mississippi. See
BankPlus, 851 So. 2d at 445 (“[i]t was also a reasonable expectation that BankPlus would
sue in the county in which it is located . . . ”). Regarding “fundamental substantive social
policies,” this Court has stated “[t]hat a non-resident may threaten to terminate contacts with
a given state in no way enhances its due process rights beyond the formulations provided in
International Shoe and its progeny.” Cooley, 462 So. 2d at 705.
¶39. Our holding is restricted to the facts of this specific case, as “[n]othing in the record
suggests this trial was an inefficient method of resolving this dispute or that it imposed an
undue burden to have [Dr. Yager] defend the suit in Mississippi.” Phillips, 992 So. 2d at
1142. Therefore, this Court concludes that the circuit court did not err in finding that
“traditional notions of fair play and substantial justice” were not offended in exercising
personal jurisdiction over Dr. Yager. Int’l Shoe, 326 U.S. at 316. Future cases must be
based on the facts peculiar to such cases to insure that International Shoe’s mandate is
honored.
¶40. In sum, this Court concludes that the long-arm statute, under its tort prong, subjected
Dr. Yager to the jurisdiction of the circuit court, and that its application does not offend the
Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Accordingly, this issue is without merit.
23
II. Whether, under Article 3, Section 25 of the Mississippi
Constitution, the circuit court erred in precluding Dunn from
addressing the jury during closing argument.
¶41. Near the conclusion of Dunn’s rebuttal closing argument, counsel for Dunn stated to
the circuit court, for the first time and in the presence of the jury, “I’d like [Dunn] to tell you
what the testimony was that she gave at this trial. So, pursuant to [Article 3, Section 25 of]
the Mississippi Constitution, I would like . . . [Dunn] to comment on her testimony at trial.”
(Emphasis added.) Following objection by Dr. Yager, the circuit judge concluded:
in 1976, when I prosecuted Jimmy Lee Grafe for the murder of a three-year-
old girl, Judge Palmer would not let him, at closing address . . . the jury. The
Supreme Court reversed; but that is in a criminal case only. It’s not applicable
to the civil case, and it’s overruled.
(Emphasis added.)
¶42. “The standard of review this Court employs for constitutional issues is de novo.”
Deeds v. State, 27 So. 3d 1135, 1141 (Miss. 2009) (citing Thoms v. Thoms, 928 So. 2d 852,
855 (Miss. 2006)). In criminal cases, “the accused shall have a right to be heard by himself
or counsel, or both . . . .” Miss. Const. art. 3, § 26 (emphasis added). This Court has held
that this constitutional provision entitles a criminal defendant “to personally argue his case
to the jury and refusal to allow him to do so is reversible error.” Ballard v. State, 366 So.
2d 668, 668 (Miss. 1979) (citing Gray v. State, 351 So. 2d 1342 (Miss. 1977)). In Ballard,
the circuit court’s error pertained to its refusal to allow Ballard “to personally make a portion
of the closing argument to the jury.” Ballard, 366 So. 2d at 668.
¶43. In civil actions, “[n]o person shall be debarred from prosecuting . . . for . . . him or
herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const.
24
art. 3, § 25 (emphasis added). This Court has never spoken to whether this constitutional
provision guarantees a civil litigant the right to address the jury in closing argument.
¶44. Dunn argues that Article 3, Section 25 is “nearly identical to” Article 3, Section 26,
therefore, it “was designed to ensure a party’s right to counsel and to proceed pro se jointly
just as if [Dunn] was a criminal defendant.” Alternatively, Dunn newly contends that “surely
the right to ‘prosecute’ one’s case encompasses the right to make argument to the jury during
closing argument[,]” and that the “plain meaning” of the term “both” necessarily extends that
right to Dunn and her counsel.17
¶45. In response, Dr. Yager emphasizes that Article 3, Section 25 “does not include any
specific right to be heard . . . .” According to Dr. Yager, Dunn “was not prevented from
prosecuting her case. She was represented by able counsel and testified extensively in
presenting her case to the jury.” Moreover, Dr. Yager notes that Dunn made the strategic
decision not to testify during her rebuttal case, wherein she could have controverted Dr.
Yager’s testimony regarding the warnings, vel non, she did or did not receive, albeit subject
to cross-examination. According to Dr. Yager, Dunn was instead “attempting to circumvent
further cross-examination by testifying to the jury in closing arguments.” Finally, Dr. Yager
asserts that Dunn suffered no prejudice in having her counsel perform closing argument.
¶46. While this Court previously has held that the “right to be heard” enumerated in Article
3, Section 26 includes the right of a criminal defendant to participate in closing argument,
its relevance to Article 3, Section 25 is debatable because of the linguistic differences
17
At trial, Dunn’s request was only to repeat and comment upon her trial testimony,
not argue the righteousness of her case.
25
between the two provisions. See Ballard, 366 So. 2d at 668; Miss. Const. art. 3, § 26. “The
construction of a constitutional section is . . . ascertained from the plain meaning of the words
and terms used within it . . . . If there be no ambiguity, there . . . exists no reason for
legislative or judicial construction.” Ex parte Dennis, 334 So. 2d 369, 373 (Miss. 1976).
Article 3, Section 25 provides, in pertinent part, that a civil litigant may not be “debarred
from prosecuting . . . by him or herself, or counsel, or both.” Miss. Const. art. 3, § 25. To
“debar” means “1. To bar or exclude: shut out. 2. To forbid, hinder, or prevent.” Webster’s
II New College Dictionary 290 (1995). To “prosecute” means “1. To pursue or persist in so
as to finish. . . . 3.a. To initiate legal or criminal court action against. b. To seek to enforce
or obtain by legal action.” Id. at 888. See also Black’s Law Dictionary 1385 (4th ed. 1968)
(defining “prosecute” as “[t]o follow up; to carry on an action or other judicial proceeding;
to proceed against a person criminally. To ‘prosecute’ an action is not merely to commence
it, but includes following it to an ultimate conclusion.”). Thus, the plain language of Article
3, Section 25 lends itself to permitting a civil litigant, his or her counsel, or both, not only
from commencing the legal action, but also bringing it to completion.
¶47. Therefore, although Dunn was constitutionally entitled to participate in closing
argument, the untimeliness and method by which Dunn sought to participate was
impermissible.18 See Hyundai Motor Am. v. Applewhite, 53 So. 3d 749, 759 (Miss. 2011)
(“[w]e do not condone trial by ambush.”). In civil trials, since the plaintiff carries the burden
of proof, closing arguments are divided into three segments: the plaintiff opens, followed by
18
This required the learned circuit judge to make an immediate ruling, before the jury,
on a constitutional matter of first impression.
26
the defendant’s argument, and concluding with the plaintiff’s rebuttal argument. See Jacob
A. Stein, Closing Arguments, § 1:6 (2d ed. 2005) (“as to the order of argument at the close
of the evidence in a civil trial, it usually falls upon counsel for the plaintiff to make a full
opening argument touching on every point he or she wishes to cover. Counsel for the
defendant then answer[s] the argument while also touching on the merits of his or her proof
and may attempt to anticipate further argument by plaintiff’s counsel. Counsel for the
plaintiff is then afforded opportunity to make rebuttal argument during which he or she
replies to and rebuts the argument made by the defendant.”); Stanford Young, Mississippi
Trial Handbook, § 33:3 (2d ed. 1995) (“[t]he right to open and close the argument is
normally with the party having the burden of proof.”); URCCC 10.03 (in criminal
proceedings, “[a]t the conclusion of the evidence, the prosecution may make an argument to
the jury. The defendant may then make an argument to the jury. . . . The state may then
make a rebuttal argument . . . .”). In this case, despite years of opportunity, Dunn never
timely sought to exercise her right to participate as her own counsel. Dunn notified the
circuit court of her desire to act as her own counsel, jointly with retained counsel, only when
retained counsel neared the end of Dunn’s rebuttal argument. However, we recognize that,
heretofore, with the exception of Uniform Circuit and County Court Rule 8.05, no rule of
procedure provides guidance for participation in closing argument by a party, civil or
criminal. See URCCC 8.05. Thus, Dunn was entitled to participate in her closing argument,
provided that she complied with the same rules applicable to her lawyer. Our rules of
procedure and courtroom protocol should not be relaxed or modified for pro se participants
in civil cases, any more than in a criminal case. See URCCC 8.05(3.) (even pro se
27
defendants are bound by “the rules of evidence, procedure or courtroom protocol . . . .”).
During closing argument, rebuttal is strictly limited to providing a response to issues
addressed in the defendant’s closing argument. However, when announcing Dunn’s intention
to personally participate, her attorney declared that she would “repeat” her testimony, not
rebut arguments made by the defendant. Should a civil litigant desire to act as her own
counsel and participate in the proceedings, there must first be timely notice to the court and
the opposing party of such intention. Such timely notice may be evidenced by an entry of
appearance, motion, or inclusion in a case-management or pre-trial order. Thereafter, the pro
se litigant must follow the procedure and courtroom protocol required of counsel in every
other case.19 Under the facts and circumstances presented, the circuit court properly excluded
Dunn from participating in rebuttal argument after her counsel had commenced such
argument, albeit for the wrong reason. See Green v. Cleary Water, Sewer & Fire Dist., 17
So. 3d 559, 572 (Miss. 2009) (citations omitted) (“[i]t is well established in our jurisprudence
that the right result reached for the wrong reason will not be disturbed on appeal”).
Accordingly, this issue is without merit.
III. Whether the circuit court abused its discretion in denying Dunn’s
motion to substitute an expert.
¶48. On July 22, 2004, more than eight years after Dunn had filed her 1996 Complaint, a
“Case Management Order” was entered by the circuit court, stating:
19
So as to ensure that the civil litigant understands this standard, the trial court is
advised to instruct the civil litigant as such, and provide the mandatory instructions and risks
as are given to pro se defendants in criminal cases. See URCCC 8.05(3).
28
the deadlines established herein, having been established with the participation
of all parties, can be modified only by order of the court upon a showing of
good cause . . . .
...
1. Plaintiff shall designate her experts by August 20, 2004.
2. Defendants shall designate their experts by September 20, 2004.
3. Plaintiff shall designate any rebuttal experts by October 5, 2004.
...
A rebuttal expert shall be limited to a field of expertise designated by any
defendant for which plaintiff does not designate an expert.
(Emphasis added.) Dunn provided a timely “Expert Designation” as to Dr. John Olson, a
neurologist licensed to practice in Louisiana. Dr. Olson’s attached curriculum vitae provided
that he was “[b]oard [e]ligible[,]” 20 had been “tendered as an expert witness in a number of
different courts[,]” and had “never been turned down with respect to expertise in neurology.”
According to Dr. Olson’s attached affidavit, in his opinion, Dr. Yager’s treatment and care
of Dunn fell below the applicable standard of care.
¶49. After the “Case Management Order” deadline expired, Dunn filed “Expert Rebuttal
Designations” which included Dr. Stanley Malkin, a board-certified neurologist. In response,
Dr. Yager filed a “Motion to Strike Plaintiff’s ‘Rebuttal Witnesses,’” contending, in pertinent
part, that Dr. Malkin was “merely repeating . . . the anticipated testimony of [Dunn’s]
previously identified expert, [Dr. Olson], a neurologist.” On August 24, 2006, the circuit
court entered an “Order Granting in Part Defendants’ Motion to Strike Plaintiff’s Rebuttal
Experts” which concluded that “[h]aving already designated an expert in the field of
20
At trial, Dr. Olson testified that he twice had failed the oral portion of the board
examination.
29
neurology, the Plaintiff’s designation . . . clearly falls outside the [“Case Management
Order”] definition of a ‘rebuttal expert’ . . . and will be stricken for that reason.” (Emphasis
added.)
¶50. On September 8, 2006, Dunn filed a “Motion for Reconsideration or, Alternatively,
to Substitute.” According to Dunn, only after designating Dr. Olson as an expert did she
further investigate Dr. Olson’s qualifications. That investigation revealed that, in 1998, his
Louisiana medical license was made “conditional/limited” by the Louisiana State Board of
Medical Examiners based upon his issuance of long-term prescriptions for Vicodin or other
controlled substances without “legitimate medical justification” or in a manner contrary to
the prevailing standards of practice in Louisiana. Dunn’s motion asserted that substitution
“would cure the prejudice [Dunn] will no doubt suffer if she is unable to respond to
challenges to Dr. Olson’s qualifications[,]” and “will not prejudice Defendants. The
designations of both Drs. Olson and Malkin were virtually identical . . . .” (Emphasis added.)
Dr. Yager filed an objection to Dunn’s motion, maintaining that she:
has known for a long time that Dr. Olson is not board certified in neurology.
. . . Dr. Olson has made that fact clear through his [curriculum vitae] which
has been tendered for years. There is no surprise. . . . The rules do not
contemplate substitution of expert witnesses simply because of evidence
obtained with which the expert is cross-examined.
On September 29, 2006, the circuit court entered an “Order Denying Plaintiff’s Motion for
Reconsideration or, Alternatively, to Substitute.” According to the circuit court:
[t]he Case Management Order was presented as an agreed proposed Order.
When this [c]ourt signed that Order, it was not a suggestion. It was an Order.
[Dunn] identified [Dr. Olson] in time and in compliance with this [c]ourt’s
Case Management Order which governs the timing of identification of expert
30
witnesses. [Dr. Malkin] was identified outside the restrictions imposed by this
Case Management Order.
Thereafter, this Court entered an Order denying Dunn’s petition for interlocutory appeal of
that ruling. At trial, Dr. Olson was tendered and accepted as an expert in the field of
neurology, over the objection of Dr. Yager.
¶51. “Trial courts have considerable discretion in discovery matters, and . . . will not be
overturned unless there is an abuse of discretion.” Beck v. Sapet, 937 So. 2d 945, 948 (Miss.
2006) (citing Robert v. Colson, 729 So. 2d 1243, 1245 (Miss. 1999)). See also Bowie v.
Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (Miss. 2003) (“[o]ur trial judges are
afforded considerable discretion in managing the pre-trial discovery process in their courts,
including the entry of scheduling orders setting out various deadlines to assure orderly pre-
trial preparation resulting in timely disposition of the cases”).
¶52. Bowie addressed “the failure to comply with a trial court’s order concerning the time
frame for the completion of discovery.” Id. Specifically, “[p]ursuant to the provisions of the
scheduling order, the plaintiffs were to designate their expert by December 31, 2000, which
came and passed uneventfully without any expert designation by the plaintiffs.” Id. Due to
the plaintiffs’ failure timely to designate a medical expert, they “could not make out a prima
facie case of medical malpractice[,]” and summary judgment was granted in favor of the
defendants. Id. at 1043. In affirming, this Court stated that “[o]ur trial judges . . . have a
right to expect compliance with their orders, and when parties and/or attorneys fail to adhere
to the provisions of these orders, they should be prepared to do so at their own peril.” Id. at
1042. This Court added that:
31
[w]hile the end result . . . may appear to be harsh, litigants must understand
that there is an obligation to timely comply with the orders of our trial courts.
As we noted in [Guaranty National Insurance Company v. Pittman, 501 So.
2d 377 (Miss. 1987)], the parties must take seriously their duty to comply with
court orders. “At some point the train must leave.” [Id. at 389]. That point
was reached in today’s case on December 31, 2000.
Bowie, 861 So. 2d at 1043 (emphasis added).
¶53. Dunn asserts that she was prejudiced by the circuit court’s refusal to allow her to
designate another neurology expert, Dr. Malkin. Specifically, Dunn maintains that “[w]hile
Dr. Olson’s curriculum vitae and affidavit may have provided [her] notice that he was not
board-certified, the documents did not alert [her] counsel to any past disciplinary action
against him or restriction on his license.” According to Dunn, this “inadvertent oversight”
renders the circuit court’s ruling an abuse of its discretion “because at the time the motion
to substitut[e] Dr. Malkin was denied: (1) no neurology experts had been deposed; (2) no trial
date existed; (3) Dr. Malkin’s proposed testimony was identical to Dr. Olson’s . . . ; and (4)
Dr. Yager did not claim any prejudice would result from the substitution.”
¶54. In response, Dr. Yager argues that it is undisputed that Dr. Malkin was not a rebuttal
witness. Dr. Malkin was designated more than fifty days after the deadline set by the “Case
Management Order” for the designation of Dunn’s expert witnesses. Moreover, Dr. Olson
“was tendered as an expert in neurology by [Dunn], was accepted as such by the trial court,
and did in fact testify as an expert in the field of neurology over the objections of Dr. Yager.”
As such, Dr. Yager maintains that Dunn “is essentially asking this Court to reverse the
[c]ircuit [c]ourt’s decision to strike the designation of Dr. Malkin because Dr. Olson was .
. . a lousy witness.”
32
¶55. Dr. Olson had been involved in this case for six years prior to his designation as an
expert in August 2004. This provided ample time for Dunn to investigate Dr. Olson’s
background and qualifications. Moreover, Dunn’s attempted designation of Dr. Malkin, a
designation that she admits was “virtually identical” to that of Dr. Olson, occurred more than
fifty days after the deadline for expert designation imposed by the “Case Management
Order.” 21 This Court has stated that “there is an obligation to timely comply with the orders
of our trial courts[,]” and parties who violate such orders “do so at their own peril.” Id. at
1042-43. See also Banks v. Hill, 978 So. 2d 663, 666 (Miss. 2008) (“[w]e find it would be
inherently unfair and a violation of our rules of civil procedure for the plaintiff – who
consistently has ignored the rules and violated the discovery deadlines – to appear at trial
with experts whose opinions have not been properly disclosed to the defendants . . . .”).
Under the circumstances presented, wherein Dr. Olson was tendered and accepted as an
expert in neurology and testified as such, this Court cannot conclude that the circuit court
abused its discretion in entering the “Order Granting in Part Defendants’ Motion to Strike
Plaintiff’s Rebuttal Experts” and denying Dunn’s “Motion for Reconsideration or,
Alternatively, to Substitute.” Accordingly, this issue is without merit.
21
Even if Dr. Malkin was a “rebuttal expert” (which this Court expressly concludes
he was not), his designation on October 11, 2004, was six days after the October 5, 2004,
deadline for designation of rebuttal experts enumerated in the “Case Management Order.”
33
IV. Whether the circuit court abused its discretion in precluding Dunn
from using the video deposition of neurologist Dr. Harry Gould.
¶56. Following the death of a designated expert witness, Dr. Yager filed a “Motion to
Substitute Expert Witness” which was granted.22 Dr. Yager selected Dr. Harry Gould, a
board-certified neurologist, as his substitute expert witness. Dr. Yager then used Dr. Gould’s
deposition testimony in support of his “Second Motion for Partial Summary Judgment and
Itemization of Undisputed Facts” and his “Opposition to Plaintiff’s Second Motion for Partial
Summary Judgment.” In August 2008, witness lists submitted by both Dr. Yager and Dunn
included Dr. Gould (Dunn’s list included him by deposition).
¶57. On November 26, 2008, counsel for Dr. Yager sent a fax to counsel for Dunn stating,
“[w]e do not plan on calling [Dr. Gould]. As you may know, under Mississippi law this
places certain restrictions on how you describe Dr. Gould to the jury.” (Emphasis added.)
Counsel for Dunn sent a responsive fax, which provided:
[w]e are unaware of any Mississippi law that places restrictions on how we
describe Dr. Gould to the jury. Our position is that Dr. Gould was designated
and retained as an expert on behalf of Dr. Yager. He subsequently gave a
deposition in his capacity as Dr. Yager’s expert and to the extent that his
deposition may be introduced at trial, it is our intention to introduce it and
refer to [Dr. Gould] as one of Dr. Yager’s neurological experts. If you have
some Mississippi law that is contrary to our position, please forward it to us
. . . . If we do not hear from you immediately, we will assume that you have
no objection to us contacting Dr. Gould.
22
The circuit court found that the death of an expert witness constituted “good cause”
for substitution, as provided in the “Case Management Order.”
34
(Emphasis added.) Counsel for Dr. Yager then replied, by fax, that “[t]he case to which I
point is General Motors Corporation v. Jackson, 636 So. 2d 310 (Miss. 1992). We do
object to your contacting Dr. Gould.”
¶58. After Dr. Yager was called as an adverse witness, Dunn asked the following
questions:
Q. Isn’t it true that one of your experts testified that the standard of care is
exactly what I read?
...
Q. Are you aware that your own expert, Dr. Gould, has testified that the
standard of care requires the disclosure?
...
Q. Didn’t the expert that you hired, Dr. Gould, testify that the standard of care
requires pretreatment of blood?
(Emphasis added.) Following each question, Dr. Yager objected that this was “improper
impeachment,” and the circuit court sustained those objections. Dunn subsequently proffered
excerpts of Dr. Gould’s deposition testimony “that would have been offered in impeachment
of Dr. Yager.” During the cross-examination of Dr. Yager, counsel for Dunn approached the
bench seeking to “ask Dr. Yager . . . about Dr. Gould and who he is, and if he reviewed his
deposition. . . . I know we have a collateral matter which I’m happy to stay away from, but
I would like to get into what Dr. Gould says is the standard of care, since he’s read that
deposition.” According to counsel for Dunn, “I’m not going to mention who retained him
. . . . I just want to know that he read those opinions, and whether he agrees with them, since
he’s already testified about what the standard of care is . . . .” The circuit judge stated that
35
“I haven’t accepted Dr. Gould as an expert yet,” and “I’m not going to allow the question.”
Following the redirect examination of Dr. Yager, counsel for Dr. Yager moved to strike the
use of Dr. Gould’s deposition or trial testimony in Dunn’s case-in-chief. According to
counsel for Dr. Yager:
Dr. Gould has now since been withdrawn as an expert. It is anticipated that
[Dunn is] going to try to call Dr. Gould in [her] case in chief . . . and this
situation is clearly governed by General Motors . . . .
...
This is the proverbial toothpaste out of the tube . . . . I don’t think a curative
instruction will suffice here. In fact, a curative instruction will probably
highlight the fact . . . that Dr. Gould was retained on behalf of Dr. Yager . . .
. [H]ad the fact . . . not been brought before this jury that he was, in fact, a
retained expert, I probably would have no problem with allowing him to testify
in their case in chief, with the caveat that he not be mentioned as being our
retained expert.
(Emphasis added.) After noting that Dunn repeatedly referred to Dr. Gould as Dr. Yager’s
“own expert” when Dr. Yager was examined as an adverse witness, the circuit judge stated
“the jurors, at least at the outset of this trial, were taking copious notes. Under the General
Motors case, I find the testimony of Dr. Gould to be highly prejudicial to the defense and will
not allow it.” (Emphasis added.)
¶59. “The rules of discovery do not address whether the testimony of a nonwitness expert
retained or dismissed by a party is admissible at trial. Admission or suppression of evidence
is within the discretion of the trial judge and will not be reversed absent an abuse of that
discretion.” Id. at 314. See also Deeds, 27 So. 3d at 1141 (quoting Smith v. State, 986 So.
2d 290, 295 (Miss. 2008) (quoting Jones v. State, 918 So. 2d 1220, 1223 (Miss. 2005)))
(“[f]urthermore, this Court will affirm the trial court’s ruling ‘[u]nless we can safely say that
36
the trial court abused its judicial discretion in allowing or disallowing evidence so as to
prejudice a party in a civil case . . . ’”).
¶60. In General Motors, the plaintiffs (“Jacksons”) were injured in an automobile accident
and brought a products liability action against General Motors and its dealer (“Grenada
Sales”). See General Motors, 636 So. 2d at 310-11. During discovery:
[t]he parties focused on developing expert opinions in support of their
conflicting theories of axle failure: the Jacksons’ assertion that the accident
was caused by a stress fracture in the rear axle and General Motors’ argument
that the impact of the accident caused the axle to fracture.
The pretrial battle of experts appeared to reach a crescendo in 1989, when John
Marcosky, an expert in the field of accident reconstruction retained by the
Jacksons, communicated to their attorneys that he believed the axle did not
fracture prior to the accident. The attorneys had responded through
interrogatories that Marcosky was expected to testify that the crash was caused
by a defective rear axle. Much later in the discovery process, Marcosky
presented an opinion similar to that espoused by General Motors’ experts,
adding that he believed the axle broke in mid-air during the rollover. The
attorneys filed supplemental responses withdrawing Marcosky as a potential
expert . . . .
Id. at 312-13. The circuit court, “[a]pplying a literal interpretation of [Mississippi Rule of
Civil Procedure] 26(b)(4)(B),” 23 found that Marcosky “should not be allowed to testify in this
cause.” General Motors, 636 So. 2d at 313-14. This Court agreed that Marcosky “should
23
Mississippi Rule of Civil Procedure 26(b)(4)(B) provides that:
[a] party may discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of
litigation or preparation for trial and who is not expected to be called as a
witness at trial only upon a showing of exceptional circumstances under which
it is impracticable for the party seeking discovery to obtain facts or opinions
on the same subject by other means.
Miss. R. Civ. P. 26(b)(4)(B).
37
not have been allowed to testify[,]” as “[n]either Grenada Sales nor General Motors
presented a showing of exceptional circumstances making it impossible or impractical for
them to obtain facts or opinions about the cause of the accident by any other means.” Id. at
314.
¶61. But this Court added that “[o]ur discussion does not end with Rule 26(b)(4)(B)[,]” and
also addressed “whether the testimony of a nonwitness expert retained or dismissed by a
party is admissible at trial.” Id. This Court acknowledged that “no privilege exists to bar
Marcosky’s testimony. Except in those instances where an expert was originally retained in
another capacity, a majority of jurisdictions have held that the rules of privilege do not
preclude calling an expert witness originally retained by the adverse party.” Id. However,
this Court further stated that:
[a]llowing General Motors to call Marcosky as a trial witness and to allude
to the fact that he had been retained and later dismissed by the Jacksons would
be highly prejudicial. Generally, when an expert formerly retained by a party
is allowed to testify for an adverse party, he is restricted from mentioning the
prior affiliation. [Granger v. Wisner, 134 Ariz. 377, 381, 656 P.2d 1238, 1242
(1982)]. The Arizona Court found:
[t]he admission of this evidence on direct examination would
only serve to unfairly prejudice the plaintiff. Jurors unfamiliar
with the role of counsel in adversary proceedings might well
assume that plaintiff’s counsel had suppressed evidence which
he had an obligation to offer. Such a reaction would destroy
counsel’s credibility in the eyes of the jury.
[Id. at 381-82], citing State v. Biggers, 360 S.W.2d 516, 517 (Tex. 1962).
Without such safeguards, the resultant prejudice would impede the search for
truth.
General Motors, 636 So. 2d at 315 (emphasis added). See also Miss. R. Evid. 403
(“[a]lthough relevant, evidence may be excluded if its probative value is substantially
38
outweighed by the danger of unfair prejudice . . . .”). Additionally, this Court determined
that “Marcosky’s theory of the accident was nearly identical to that articulated by General
Motors’ own experts[,]. . . thus, [it] would have been cumulative.” General Motors, 636 So.
2d at 314. See also Miss. R. Evid. 403 (“[a]lthough relevant, evidence may be excluded . .
. by considerations of . . . needless presentation of cumulative evidence.”). In sum, this Court
concluded that the circuit court did not abuse its discretion in refusing to admit Marcosky’s
testimony. See General Motors, 636 So. 2d at 314.
¶62. Dunn argues that “[s]ince Dr. Yager failed to warn [her] about flu-like symptoms and
severe dermatological adverse reactions, it was necessary to establish through competent
expert testimony that these precautions were mandated by the standard of care owed by a
neurologist.” According to Dunn, “Dr. Olson’s tainted testimony could hardly be called
cumulative when compared to that of Dr. Gould, who was board-certified in both neurology
and pain management and a professor of medicine at LSU.”
¶63. Dr. Yager responds that:
[t]he law in Mississippi is very clear as to experts that have been withdrawn
as trial witnesses: the adverse party may call the witness but it may not be
disclosed to the jury that the expert had the prior affiliation with the
opposition. . . . Disclosing this prior affiliation of Dr. Gould with Dr. Yager
was “highly prejudicial” and in violation of Rule 403 . . . . Dr. Yager does not
dispute that [Dunn] could have called Dr. Gould as a witness. However, when
[Dunn’s] counsel referred to Dr. Gould as Dr. Yager’s retained expert, in
various forms, three times during his examination of Dr. Yager, the guidelines
of General Motors were violated.
See id. at 314-15. Moreover, Dr. Yager maintains that because Dr. Olson was accepted as
an expert in the field of neurology, testified after Dr. Yager, and “provided expert testimony
on the standard of care required, Dr. Gould’s testimony would have been cumulative.”
39
¶64. General Motors clearly established that reference to an expert witness’ “prior
affiliation” with a party is “highly prejudicial.” General Motors, 636 So. 2d at 315. On
November 26, 2008, counsel for Dunn was placed on notice that Dr. Yager would not be
calling Dr. Gould at trial and that General Motors “places certain restrictions on how you
describe Dr. Gould to the jury.” Nonetheless, counsel for Dunn opted to refer to Dr. Gould
as Dr. Yager’s expert on three separate occasions when examining him as an adverse witness.
In light of these references, and the circuit judge’s observation that the jurors had been
“taking copious notes[,]” this Court cannot conclude that the circuit court abused its
discretion in excluding Dr. Gould’s deposition testimony as “highly prejudicial.” While “the
rules of privilege do not preclude calling an expert witness originally retained by the adverse
party[,]” counsel for Dunn’s prejudicial references to Dr. Gould as Dr. Yager’s “own expert”
and “the expert that you hired” supported exclusion. Id. at 314. Furthermore, Dunn’s
argument that Dr. Gould’s testimony would not be cumulative, based upon his credentials
relative to Dr. Olson, is misplaced. In short, only the opinions regarding the applicable
standard of care are to be considered in the “cumulative” analysis. Expert qualifications are
never cumulative and go only to the separate issue of the weight that the jury attributes to the
opinions. Accordingly, this issue is without merit.
V. Whether the circuit court erred in disclosing to the jury the fact
that Dunn had settled with other defendants.
¶65. Dunn filed a “Motion in Limine” seeking “to preclude any questions or comments
regarding settlements. . . . Evidence regarding settlements is clearly inadmissible under
Mississippi Rule of Evidence 408.” In response, Dr. Yager contended that “[u]nder
40
Mississippi law, making a jury aware of the existence of a settlement is an acceptable
procedure for determining damages in cases where some of the co-defendants have settled
and are not present at trial.” Following hearing, the “Order Denying Plaintiff’s Motion in
Limine Excluding Reference to Settlement” entered by the circuit court provided that “the
jury will be informed of the existence of settlement, but . . . will be instructed not to consider
any settlement in deciding the issue before it. The [c]ourt also finds no reference to the
amount of any settlement will be made by any party.” At trial, the circuit court instructed the
jury that:
[t]here were a number of defendants. Some of those defendants have had their
case concluded against them, some have settled, and you’ll hear that from the
lawyers. The settlement amounts, and how some of these cases have been
resolved, are not your concern. You’re here as a jury to give [Dunn] and [Dr.
Yager] a fair trial. And you need to listen to the facts about Dr. Yager and
[Dunn], and not be concerned about these other individuals.
¶66. This Court reviews questions of law de novo. See Narkeeta Timber Co., Inc. v.
Jenkins, 777 So. 2d 39, 41 (Miss. 2000). See also Smith v. Payne, 839 So. 2d 482, 487
(Miss. 2002) (“[t]he trial judge did not err by allowing the jury to be informed of the
settlement agreement”) (emphasis added). Mississippi Rule of Evidence 408 provides, in
pertinent part, that “[e]vidence of . . . (2) accepting . . . a valuable consideration in
compromising . . . a claim which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or its amount.” Miss. R. Evid. 408
(emphasis added). Moreover, this Court has stated that “[t]o inform a jury of the amount of
a settlement prior to its returning a verdict for a joint tortfeasor or co-defendant would
certainly unnecessarily influence a jury in its decision.” Whittley v. City of Meridian, 530
41
So. 2d 1341, 1346 (Miss. 1988). But this problem is “easily . . . prevented by use of the
procedure wherein the jury is informed of the existence of a settlement but not the amount
of settlement . . . .” Id. (emphasis added). See also Smith, 839 So. 2d at 489 (“[o]n retrial,
the jury may be informed of existence of the settlement . . . , but it should not be told the
amount of the settlement”). As that procedure is precisely what the circuit court performed
in this case, this Court concludes there was no error. Accordingly, this issue is without merit.
VI. Whether the circuit court’s jury instructions regarding “informed
consent” were erroneous.
¶67. An SJS reaction is extremely rare. See footnote 5, supra. Moreover, Dr. Yager
testified that only twenty-five percent of SJS cases are “drug related.” 24 Additionally,
multiple experts testified that the drugs associated with SJS are myriad.25
¶68. Dunn testified that, had Dr. Yager informed her of potentially life-threatening blood,
skin, or liver disorders which could result from taking Tegretol, “I believe I would have told
him, no, that I did not want to take that drug; was there something else he could prescribe
that wasn’t as dangerous.” By contrast, Dr. Yager testified that his conversation with Dunn
in prescribing Tegretol met the applicable standard of care. As noted in ¶¶ 7, 12, supra, Dr.
Yager testified that “I believe I told her some typical side effects of the medication she could
24
Dr. Yager added that another twenty-five percent of SJS cases are “virally related”
and all other SJS cases are “not associated with any particular medication.” As Dr. Millette
testified, “[i]t’s important for the jury to also know that you can get [SJS] for no known
cause. You don’t have to have a drug exposure.”
25
Prescription drugs taken by Dunn between 1993 and 1995 with a known association
with SJS at the time included Phenobarbital and Rocephin. After 1995, known associations
with SJS were also found in Ultram and Medrol Dosepak. Among other prescription drugs
with known associations with SJS are Lipitor, Neurontin, Amoxil, Tagamet, and Wellbutrin.
42
have, and I did tell her if anything untoward happened that she didn’t understand, she should
get in touch with our office . . . .”
¶69. Dr. Olson testified that Dr. Yager categorically had breached the requisite standard
of care if he had failed to provide Dunn with information on the potentially life-threatening
blood, skin, or liver disorders, including SJS, which could result from taking Tegretol. But
another of Dunn’s experts, Dr. McLeod, stated that “[n]o physician talks about every adverse
event, nor adverse side effect that can be expected, because first of all, it would be impossible
to talk about some of them, because different patients experience different things.” Dr.
McLeod specifically did not testify that failing to inform a patient of the risk of SJS would
constitute a breach of the applicable standard of care. Dr. Merlin Robert Wilson, tendered
by Dr. Yager and accepted as an expert in the fields of internal medicine, rheumatology,
immunology, and allergy, testified that Dr. Yager’s disclosure to Dunn regarding Tegretol
was within the applicable standard of care, as “[y]ou’re going to give them the most common
side effects, then you’re going to give them some warning signals.” Dr. Wilson stated that
he would not mention SJS, but only an “allergic reaction,” because “[y]ou would describe
it in the terms [the patient] can understand.” According to Dr. Wilson, he also would never
“get the PDR to read to the patient[,]” and he had never before focused upon the
“Information to Patients” section therein. Likewise, Dr. Millette did not rely upon the PDR’s
“Information to Patients” section. Dr. Millette testified that Dr. Yager’s disclosure to Dunn
regarding Tegretol is “what I do[,]” and was “[a]bsolutely” within the standard of care for
a neurologist prescribing Tegretol in 1995 for neuropathic pain. According to Dr. Millette,
“as long as you share the information, you share what the most likely risks are, and explain
43
why you’re using this drug and what your expectations are. That’s informed consent. And
what transpired here is what we do every day. It’s absolutely middle of the road.”
(Emphasis added.) Dr. Millette specifically noted that:
I think that what should be included for proper informed consent, and what we
all do is tell the patient . . . this is a seizure drug, but we’re not obviously
treating seizures. It’s found to be very effective for nerve pain. That the most
common side effects are dizziness, sedation, blurred vision. . . . And you
usually, . . . but I don’t do this every time, you say you may have a rash, but
if you have a problem, let me know, and proceed from there. But . . . most of
the time I don’t say on or off-label. . . . But that’s what you would need to say
to the patient if it’s standard of care. You have to discuss the most common
side effects, not getting struck by lightning.
(Emphasis added.)
¶70. At trial, Jury Instruction P-8A provided, in pertinent part, that:
[t]o obtain the required informed consent, the physician must inform the
patient of all the material known risks associated with the suggested treatment.
The purpose of disclosing the material risks of the suggested treatment is to
enable the patient, such as [Dunn], to make an intelligent and informed
decision about whether to undergo the suggested treatment, in this case, taking
Tegretol to alleviate back and leg pain. Dr. Yager is negligent if you find by
a preponderance of the evidence: (1) Dr. Yager failed to inform [Dunn] of all
the material known risks of taking Tegretol to alleviate back and leg pain and
(2) a reasonable patient would not have taken Tegretol to alleviate back and
leg pain had she or he been properly informed of the material known risks of
Tegretol.
A known risk is material if the known risk would be important to a reasonable
person in [Dunn’s] position in deciding whether or not to undergo the
treatment . . . .
...
For Dr. Yager’s negligence for failing to obtain informed consent to have
proximately caused or contributed to the injuries sustained by [Dunn], you
must find that [Dunn’s] injuries were more likely than not caused by Tegretol.
44
Jury Instruction D-10, given over Dunn’s objection that it “is a grossly understated statement
of the law on material risks[,]” stated:
[i]f you find from the evidence that Dr. Yager, prior to prescribing Tegretol,
in his discussions with [Dunn], reasonably advised [Dunn] of the risks of
taking Tegretol as prescribed which would have been material to a prudent
patient in determining whether or not to undergo this particular treatment, then
in that event, [Dunn] has failed to prove that Dr. Yager was negligent by
failing to obtain [Dunn’s] informed consent . . . .
Jury Instruction D-30, given over Dunn’s objection, provided, in pertinent part, that:
from among all possible risks of a medical treatment, only those which are
material must be disclosed in order to obtain informed consent to the
treatment. [Dunn] must establish by expert medical testimony that the
particular risk in question in this matter is material showing that the risk is one
which a reasonable medical practitioner of like training to Dr. Yager would
disclose under the same or similar circumstances.
[Dunn] must prove, by a preponderance of the evidence, that:
...
4. A minimally competent physician practicing in the same field
of practice or specialty as Dr. Yager would have warned [Dunn]
of the risk of contracting [SJS]; and
5. A reasonably prudent patient, fully advised of the material
known risks, would have withheld consent had she been
properly informed of the risks, alternatives, and so forth; and
6. The unauthorized treatment was the proximate cause of
[Dunn’s] injury, that is, [Dunn] must show that she would not
have been injured had the appropriate standard of care been
exercised.
¶71. This Court has stated that:
[r]egarding jury instructions, the trial court possesses considerable discretion.
...
On appellate review of the trial court’s grant or denial of a proposed jury
instruction, our primary concern is that “the jury was fairly instructed and that
45
each party’s proof-grounded theory of the case was placed before it.” [Splain
v. Hines, 609 So. 2d 1234, 1239 (Miss. 1992)] (citing Rester v. Lott, 566 So.
2d 1266, 1269 (Miss. 1990)). We ask whether the instruction at issue
contained a correct statement of law and was warranted by the evidence. . . .
In analyzing the aggregate jury instructions, “[d]efects in specific instructions
will not mandate reversal when all of the instructions, taken as a whole fairly
– although not perfectly – announce the applicable primary rules of law.”
[Beverly Enters. v. Reed, 961 So. 2d 40, 43 (Miss. 2007)] (citing Burton v.
Barnett, 615 So. 2d 580, 583 (Miss. 1993)).
Young v. Guild, 7 So. 3d 251, 259-60 (Miss. 2009) (emphasis added).
¶72. “Informed consent originates from the theory that a competent adult has the right to
control his body and to make an informed decision as to whether to authorize a medical
procedure.” Jamison v. Kilgore, 903 So. 2d 45, 49 (Miss. 2005) (quoting Jamison v.
Kilgore, 905 So. 2d 610, 612 (Miss. Ct. App. 2004)). But:
[e]very medical procedure involves risks. . . . [N]o court has ever required a
physician to disclose to a patient every possible risk of a medical procedure.
Instead, from among all possible risks of a procedure, only those which are
material must be disclosed in order to obtain informed consent to the
procedure. This begs the question: [w]hat must be done (in the legal sense) to
establish what are – and are not – the material risks of a particular procedure?
Whittington v. Mason, 905 So. 2d 1261, 1264 (Miss. 2005).
¶73. “The doctrine of informed consent represents the application to medical practice of
principles of tort law. Thus, when a lack of informed consent is claimed, the plaintiff has the
burden to prove by a preponderance each element of the prima facie case: duty, breach of
duty, proximate causation, and injury.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d
1346, 1363 (Miss. 1990). Regarding duty, this Court has stated that “[w]hen a physician-
patient relationship exists, the physician owes the patient a duty to inform and obtain consent
with regard to the proposed treatment.” Id. (emphasis in original). But “no doctor could
46
comply with a requirement to disclose every possible risk to every procedure.” Whittington,
905 So. 2d at 1266. Therefore, the physician must disclose only “material known risks.”
Jamison, 903 So. 2d at 48-49 (quoting Reikes v. Martin, 471 So. 2d 385, 392 (Miss. 1985))
(emphasis added). A “known risk” is one “which would be known to a careful, skillful,
diligent and prudent practitioner or specialist . . . .” Jamison, 903 So. 2d at 49 (quoting
Reikes, 471 So. 2d at 392 n.3). “Once the known risks are enumerated, they can then be
evaluated as to which are material.” Jamison, 903 So. 2d at 50. “[T]he physician may not
be required to inform the patient of unexpected or immaterial risks.” 26 Palmer, 564 So. 2d
at 1364. “Among the many factors which could weigh on the question of materiality are
frequency of occurrence, potential severity or danger associated with the risk, and the cost
and availability of an alternative procedure. These factors cannot be established absent
expert testimony.” Whittington, 905 So. 2d at 1266. “If a known risk is found to be
material,” and was not disclosed to the patient, then “the question of causation must . . . be
addressed.” Jamison, 903 So. 2d at 50 (emphasis added).
¶74. Regarding causation, this Court has held that there are two subelements:
[f]irst, the plaintiff must show that a reasonable patient would have withheld
consent had she been properly informed of the risks, alternatives, and so
forth.[27 ] . . . And second, the plaintiff must show that the treatment was the
26
As an example of an “immaterial risk,” Palmer cited a case involving a 1-in-100,000
risk. See Palmer, 564 So. 2d at 1364 n.21 (citing Henderson v. Milobsky, 595 F.2d 654(D.C. Cir. 1978)). See also Feeley v. Baer, 679 N.E.2d 180, 181 (Mass. 1997) (citation
omitted) (“[r]egardless of the severity of a potential injury, if the probability that the injury
will occur is so small as to be practically nonexistent, then the possibility of that injury
occurring cannot be considered a material factor . . . ”).
27
This is an “objective test” centered upon “whether or not a reasonably prudent
patient, fully advised of the material known risks, would have consented to the suggested
47
proximate cause of the worsened condition (i.e., injury). That is, the plaintiff
must show that she would not have been injured had the appropriate standard
of care been exercised. Generally, proof of the latter sub-element requires
expert testimony that the defendant’s conduct – not the patient’s original
illness or injury – led to the worsened condition.
Palmer, 564 So. 2d at 1364 (internal citation omitted).
¶75. According to Dunn, Instruction P-8A “accurately reflects Mississippi’s law on
informed consent[,]” but is in “direc[t] conflict” with Instructions D-10 and D-30. Dunn
maintains that Instructions D-10 and D-30 “incorrectly instruct the jury that in order to obtain
[Dunn’s] informed consent, a doctor does not have to disclose all of the material risks
associated with prescribing Tegretol, only those risks which are routinely disclosed by
doctors of similar training under the same or similar circumstances[,]” and “improperly
suggested to the jury that [SJS] was the only potential material risk upon which [Dunn] could
have declined treatment with Tegretol for her back and leg pain.” 28 Dunn argues further that
Instructions D-8A, D-14, D-18, D-27, and D-33 “prematurely absolve Dr. Yager from
informed consent liability in the event no negligence is found” by “improperly instruct[ing]
the jury that [upon] a finding that Dr. Yager’s actions met the standard of care for a ‘similarly
trained’ doctor that he was absolved of all liability, including informed consent, which does
not depend on the applicable standard of care, but rather disclosure of all material risks.” 29
treatment.” Jamison, 903 So. 2d at 48-49 (quoting Reikes, 471 So. 2d at 392).
28
According to Dunn, “[t]here is no requirement that the ‘injury’ be one of the material
risks.”
29
For example, Jury Instruction D-18 provided that:
[i]f you are reasonably satisfied . . . that Dr. Yager complied with the standard
set by the learning, skill and care ordinarily possessed and practiced at the
48
¶76. Dr. Yager responds that “the instructions, when read as a whole, provided the jury the
appropriate law and how to apply it.” According to Dr. Yager, “[t]he jury . . . had the task
of determining if [SJS] was a material risk of Tegretol. They determined it was not.” As to
other potential material risks, Dr. Yager asserts that Dunn “fails to cite a single case that
addresses material risks as being those irrelevant to the proceedings[,] . . . [t]he alleged faulty
warning and/or failure to obtain informed consent must be related to the injury that instigated
the lawsuit.”
¶77. Regarding informed consent, “material known risks” must be disclosed. Jamison,
903 So. 2d at 48-49 (quoting Reikes, 471 So. 2d at 392). A “known” risk is one that is
“known to a careful, skillful, diligent and prudent practitioner . . . .” Jamison, 903 So. 2d
at 49 (quoting Reikes, 471 So. 2d at 392 n.3). “[M]ateriality” must be established by expert
testimony. Whittington, 905 So. 2d at 1266. Only after it is established that the risk at issue
is a “material known risk” does the analysis proceed to the causation inquiry of whether “a
reasonable patient would have withheld consent had she been properly informed . . . .”
Palmer, 564 So. 2d at 1364. See also Jamison, 903 So. 2d at 50. As to causation, the
plaintiff must further establish that “the treatment was the proximate cause of the worsened
condition (i.e., injury).” Palmer, 564 So. 2d at 1364. Under the aforementioned standards,
this Court finds that Jury Instructions D-10 and D-30, viewed within the context of the jury
instructions as a whole, properly state the law on informed consent. See Young, 7 So. 3d at
time in question by other physicians in the same general line of practice, in the
national medical community under the same or similar circumstances, as
shown by the expert medical evidence in this case, then you must return a
verdict for Dr. Yager.
49
259-60. Jury Instruction D-30 provides that Dunn must prove materiality of the risk through
expert testimony establishing that “the risk is one which a reasonable medical practitioner
of like training to Dr. Yager would disclose under the same or similar circumstances.” 30 Jury
Instruction D-10 further states that the risk must be “material to a prudent patient in
determining whether or not to undergo this particular treatment . . . .” Jury Instruction D-30
then addresses causation, providing that the “reasonably prudent patient, fully advised of the
material known risks, would have withheld consent . . . .” Jury Instruction P-8A adds that
the causation inquiry also must include a finding that Dunn’s injuries “were more likely than
not caused by Tegretol.” 31 Given the deferential standard of review, and considering the jury
instructions as a whole, this Court concludes that the circuit court did not err in granting the
disputed jury instructions. See id. Accordingly, this issue is without merit.
VII. Whether the circuit court abused its discretion in precluding Dunn
from introducing excerpts from the 2009 Physician’s Desk
Reference.
¶78. At trial, Dunn sought to introduce an excerpt from the 2009 PDR regarding
carbamezapine.32 Specifically, the “black-box warning” had been expanded to provide that
“[s]erious and sometimes fatal dermatological reactions, including Toxic Epidermal
30
Because the “known” and “material” legal standards tie in to that which would be
disclosed by a “reasonably prudent, minimally competent” neurologist “under the same or
similar circumstances[,]” this Court finds that Dunn’s argument regarding Jury Instructions
D-8A, D-14, D-18, D-27, and D-33 is without merit.
31
As there is no dispute that Dunn did not contract aplastic anemia or agranulocytosis,
extremely rare blood conditions even for a patient taking Tegretol, this Court is dubious as
to whether the disclosure, vel non, of such conditions is relevant in a case involving the
unrelated condition of SJS.
32
This is the chemical name for the drug whose marketing name is Tegretol.
50
Necrolysis and [SJS], have been reported during treatment with Carbamezapine. . . . These
reactions are estimated to occur in 1 to 6 per 10,000 new users in countries with mainly
Caucasian populations.” Dr. Yager responded that the 2009 PDR was inadmissible as “we’re
talking about Tegretol and its association with [SJS] in . . . ’95.” The circuit court agreed
with Dr. Yager, stating that “it’s real simple. It’s called ex post facto. . . . And right now I
don’t find it to be relevant to Dr. Yager at all. It’s as if 10, 20 years later, look what’s
happened . . . .” Following Dunn’s proffer of the 2009 PDR excerpt, the circuit court added
that its ruling was also premised upon the introduction of the testimony of Dunn’s expert, Dr.
Waring. See footnote 5, supra.
¶79. This Court:
“reviews the trial court’s decision to admit or exclude evidence under an abuse
of discretion standard of review.” [Smith, 986 So. 2d at 295]. Furthermore,
this Court will affirm the trial court’s ruling “‘[u]nless we can safely say that
the trial court abused its judicial discretion in allowing or disallowing evidence
so as to prejudice a party in a civil case, or the accused in a criminal case.’” Id.
(quoting [Jones, 918 So. 2d at 1223]).
Deeds, 27 So. 3d at 1140-41. The issue presented at trial was the sufficiency of Dr. Yager’s
disclosure in 1995. The expanded “black-box warning” fourteen years later, in 2009, has no
relevance to that issue. As the circuit judge stated, it is “ex post facto” and risked confusing
the jury. Therefore, this Court concludes that the circuit court did not abuse its discretion in
overruling Dunn’s attempted admission of excerpts from the 2009 PDR. Accordingly, this
issue is without merit.
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CONCLUSION
¶80. Regarding Dr. Yager’s cross-appeal, this Court affirms the Circuit Court of Jackson
County’s exercise of personal jurisdiction over Dr. Yager. As to the issues raised by Dunn
on direct appeal, this Court affirms the final judgment in favor of Dr. Yager and the circuit
court’s denial of Dunn’s “Motion for Judgment Notwithstanding the Verdict, Relief from
Judgment and New Trial.”
¶81. ON DIRECT APPEAL: AFFIRMED.
ON CROSS-APPEAL: AFFIRMED.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR.
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