Ned O. Kronfol v. Barbara S. Johnson ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00542-COA
NED O. KRONFOL, M.D. APPELLANT
v.
BARBARA S. JOHNSON APPELLEE
DATE OF JUDGMENT: 12/21/2016
TRIAL JUDGE: HON. CAROL L. WHITE-RICHARD
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: R.E. PARKER JR.
CLIFFORD C. WHITNEY III
PENNY B. LAWSON
ATTORNEY FOR APPELLEE: CHYNEE ALLEN BAILEY
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 04/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, P.J., FOR THE COURT:
¶1. Barbara Johnson brought a medical malpractice suit against Dr. Ned Kronfol for
injuries she suffered from an infected catheter in her dialysis port. After a trial on the matter,
the jury found Dr. Ned Kronfol one-hundred percent responsible for Barbara Johnson’s
injuries and awarded Johnson a total of $271,000 in damages.
¶2. Dr. Kronfol now appeals the Leflore County Circuit Court’s final judgment and jury
verdict. Dr. Kronfol also appeals the trial court’s order denying his motion for summary
judgment. Finding no error, we affirm.
FACTS
¶3. In 2007, Johnson was diagnosed with kidney failure. As a result of her diagnosis, Dr.
John Lucas III, a surgeon at Greenwood-Leflore Hospital (GLH) who specializes in dialysis-
access surgeries, performed a surgical procedure in which he created a fistula on Johnson’s
right arm at her wrist. Dr. Lucas explained that a fistula is a “high-flow vein . . . close to the
skin [and] connected directly to [an] artery that has a lot of flow,” which allows the vein to
tolerate kidney dialysis three times a week. In 2010, due to clotting issues, Dr. Lucas
performed another surgical procedure, placing a fistula in Johnson’s left arm at her elbow.
¶4. From 2007 through May 2013, Johnson received dialysis through a port in her right
arm, and later left arm, approximately three times a week at Fresenius Clinic. Dr. Ned
Kronfol, a nephrologist who treated Johnson at the Fresenius Clinic, was in charge of her
dialysis and kidney care.1
¶5. On April 12, 2013, Johnson was unable to receive dialysis due to access issues with
the dialysis port in her left arm. Staff members from the Fresenius Clinic referred her to
GLH. Dr. Donald Russell, an interventional radiologist at GLH, attempted to perform a
de-clot of Johnson’s dialysis port, but he was unable to do so. Dr. Russell then placed a
temporary2 dialysis port in Johnson’s internal jugular (neck) to allow her to be dialyzed.
Johnson continued to receive dialysis through the temporary port in her neck.
1
Dr. Kronfol testified that he “see[s] dialysis patients once a week, either . . . [by
himself] or with the help of a nurse practitioner.”
2
In the record, including the transcript, the terms “nontunneled catheter” and
“temporary catheter” are used interchangeably. Similarly, the terms “tunneled catheter” and
“permanent catheter” are used interchangeably. For purposes of clarity, we will use only the
terms “temporary” and “permanent” to describe catheters.
2
¶6. On April 16, 2013, Dr. Lucas performed a surgical procedure on Johnson to try to
restore flow in her fistula in her left arm. Dr. Lucas testified that he was not able to restore
the flow to his satisfaction. As a result, Dr. Russell performed a fistulogram procedure that
same day, where he attempted to open and stretch areas of Johnson’s fistula. Dr. Lucas
testified that this procedure was also unsuccessful.
¶7. On April 30, 2013, Dr. Lucas surgically created a new fistula for Johnson in her right
arm. Dr. Lucas explained that since most fistulas require around six weeks to mature,
Johnson was unable to immediately utilize that fistula.3
¶8. On May 6, 2013, after receiving dialysis at the Fresenius Clinic, Johnson presented
to the emergency room (ER) at Delta Regional Medical Center complaining of severe pain
and swelling in her face. Johnson was treated by Dr. Xander Buenafe, a nephrologist, who
diagnosed her with sepsis with tachycardia arising from an infected hemodialysis4 catheter
in her internal jugular (neck). Johnson received treatment at the hospital and was released
on May 15, 2013.
¶9. On August 21, 2014, Johnson filed a medical malpractice suit against Dr. Lucas and
Dr. Russell, alleging negligence in their care, treatment, and usage of Johnson’s hemodialysis
catheter. On September 17, 2014, Johnson amended her complaint to include GLH as a
3
On May 2, 2013, Johnson presented to the emergency room (ER) at Delta Regional
Medical Center complaining of lower back pain caused by a displacement of a lumbar
intervertebral disc. Johnson received inter-muscular (IM) injections for treatment.
4
At trial, Dr. Orlando Gutierrez, Johnson’s expert in the field of nephrology,
explained that hemodialysis is performed “by retrieving the blood from the patient, having
it go in through a tube, through a machine, having it basically be cleaned by the machine and
extra water being taken out, and then having the blood returned to the patient.”
3
defendant. On May 8, 2015, Johnson sent Dr. Kronfol a notice of intent to sue, and on July
8, 2015, she amended her complaint to add Dr. Kronfol as a defendant.5
¶10. On November 4, 2015, Dr. Kronfol filed a motion for summary judgment and argued
that Johnson failed to file her medical malpractice claim within the two-year statute of
limitations as prescribed by Mississippi Code Annotated section 15-1-36(2) (Rev. 2012). In
his motion, Dr. Kronfol also argued that summary judgment was proper on the grounds of
judicial estoppel and lack of an expert. Dr. Kronfol claimed that Johnson knew or should
have known of his alleged negligence on May 6, 2013, the day Johnson was diagnosed with
sepsis, because he had been her nephrologist since 2007 and had referred her to GLH, where
she was seen by Dr. Lucas and Dr. Russell. Dr. Kronfol therefore argues that Johnson’s May
8, 2015 notice of intent to sue and July 8, 2015 amended complaint adding Dr. Kronfol as
a defendant were untimely and should be barred.
¶11. On January 20, 2016, the trial court entered an order denying Dr. Kronfol’s motion
for summary judgment. In its order, the trial court stated that “Johnson gave deposition
testimony that she saw Dr. Kronfol or his nurses twice a week for dialysis.” The trial court
also acknowledged that when Johnson was asked if Dr. Kronfol sent her to GLH because his
staff was having problems dialyzing her, she answered, “[y]es, that’s it.” However, the trial
court opined that “reasonable minds can differ” as to whether Johnson’s deposition testimony
showed that she knew or should have known of Dr. Kronfol’s alleged negligence in her
injuries. The trial court explained that “[a] full reading of the deposition supports
5
In October and December of 2016, Johnson voluntarily dismissed Dr. Russell, Dr.
Lucas, and GLH.
4
[Johnson’s] contention that she thought that only Dr. Lucas and Dr. Russell were involved
in the installation of her temporary catheter.” The trial court therefore ruled that since a
genuine issue of material fact existed as to when Johnson knew of Dr. Kronfol’s alleged
negligence, summary judgment was improper.
¶12. A jury trial was held on December 12, 2016. After the trial, the jury returned a verdict
for Johnson and awarded her $225,000 in noneconomic damages and $46,000 in economic
damages. The jury found that Dr. Kronfol was 100% responsible for Johnson’s injuries. The
trial court entered a final judgment and jury verdict on December 21, 2016. Dr. Kronfol then
timely filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, for a new trial, which the trial court denied. Dr. Kronfol now appeals.
¶13. On appeal, Dr. Kronfol asserts sixteen assignments of error, which we quote as
follows:
1. Whether the trial court erred in denying summary judgment on the
statute of limitations grounds.
2. Whether the trial court erred in failing to grant the Defendant’s
Daubert6 challenge to Johnson’s expert’s reliance upon “guidelines,”
which were not the standard of care, were outdated and were not
scientifically valid.
3. Whether the trial court abused its discretion by allowing Johnson’s
expert to testify about undisclosed opinions.
4. Whether the trial court erred in allowing a treating physician to offer
expert opinions about a temporary catheter causing infection, when he
was not designated to so testify.
5. Whether the trial court erred in preventing defense counsel from
6
Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).
5
informing the jury that Johnson had alleged that Dr. Lucas and Dr.
Russell were negligent and grossly negligent in the treatment of
Johnson, which caused or contributed to her injuries.
6. Whether the trial court erred in excluding the testimony of Dr. Lucas
regarding the length of time to leave a temporary catheter in place.
7. Whether the trial court erred in excluding deposition testimony of Dr.
Russell, which deposition was noticed by counsel for Johnson.
8. Whether the trial court erred in allowing Johnson’s counsel to cross
examine witnesses and parties with statements made by other witnesses
in their depositions.
9. Whether the trial court erred in not allowing into evidence the package
insert of the temporary catheter used on Ms. Johnson.
10. Whether the trial court erred in sustaining Johnson’s objection to Dr.
Kronfol’s response to a cross examination question regarding medical
authorities and granting a curative instruction.
11. Whether the trial court erred in allowing into evidence a hospital bill as
the proper predicate had not been laid for its for its introduction.
12. Whether the trial court erred in failing to grant Defendant’s instruction
on equally probable causes.
13. Whether the trial court erred in denying Dr. Kronfol’s motion to
summons a new jury panel.
14. Whether the trial court erroneously denied Dr. Kronfol’s Batson7
challenge to the all-African American jury and improperly refused to
quash the jury panel.
15. Whether the trial court erred in not granting a directed verdict/JNOV
for Dr. Kronfol.
16. Whether the verdict was against the overwhelming weight of the
evidence, thus entitling Dr. Kronfol to a new trial.
7
Batson v. Kentucky, 476 U.S. 79, 89 (1986).
6
DISCUSSION
I. Summary Judgment
¶14. Dr. Kronfol argues that since Johnson failed to bring her medical-malpractice claim
within the two-year statute of limitations, the trial court erred in denying his motion for
summary judgment. In his appellate brief, Dr. Kronfol asserts that he was “Johnson’s
treating nephrologist and saw [her] at least twice per week since 2007.” Dr. Kronfol also
asserts that at the very latest, Johnson possessed actual notice of her claim against Dr.
Kronfol on May 6, 2013, the date that Johnson received her sepsis diagnosis. Dr. Kronfol
therefore maintains that the statute of limitations on Johnson’s claim against him expired on
May 6, 2015, and that as a result, Johnson’s May 8, 2015 notice of intent and subsequent
amended complaint were not timely filed and therefore are barred.
¶15. As a procedural matter, the record shows that on May 8, 2015, Johnson sent Dr.
Kronfol a notice of intent to sue. On July 8, 2015, Johnson amended her complaint to add
Dr. Kronfol as a defendant. “The medical negligence statute does provide for a sixty-day
tolling period once notice has been given.” Arceo v. Tolliver, 19 So. 3d 67, 73 (¶24) (Miss.
2009) (citing Mississippi Code Annotated section 15-1-36(15)).8 The supreme court has held
8
Section 15-1-36(15) provides, in pertinent part, as follows:
No action based upon the health care provider’s professional negligence may
be begun unless the defendant has been given at least sixty (60) days’ prior
written notice of the intention to begin the action. No particular form of
notice is required, but it shall notify the defendant of the legal basis of the
claim and the type of loss sustained, including with specificity the nature of
the injuries suffered. If the notice is served within sixty (60) days prior to the
expiration of the applicable statute of limitations, the time for the
commencement of the action shall be extended sixty (60) days from the
7
that “whenever a plaintiff files the statutorily required sixty days of notice, the time to file
an action is effectively extended by sixty days.” Scaggs v. GPCH-GP Inc., 931 So. 2d 1274,
1277 (¶11) (Miss. 2006). We therefore recognize that Johnson’s May 8, 2015 notice of intent
to sue extended the time for her to file her complaint against Dr. Kronfol by sixty days.
¶16. Johnson denies that she knew she had a claim against Dr. Kronfol on May 6, 2013.
Johnson claims that she assumed Dr. Lucas and Dr. Russell were responsible for the
temporary catheter, as opposed to Dr. Kronfol. Johnson also maintains that she was diligent
in seeking her medical records: she was discharged from the hospital on May 15, 2013 and
requested her medical records on June 25, 2013. Johnson argues that after Dr. Russell placed
her temporary catheter, she had no contact with Dr. Kronfol regarding the access point to her
temporary catheter. Johnson alleges that when she saw Dr. Kronfol at the Fresenius Clinic,
he never even looked at the catheter site.
¶17. “This Court has held that appeals from the denial of a motion for summary judgment
are interlocutory in nature and are rendered moot by a trial on the merits.” Franklin
Collection Serv. Inc., v. Collins, 206 So. 3d 1282, 1284 (¶8) (Miss. Ct. App. 2016) (quoting
Britton v. Am. Legion Post 058, 19 So. 3d 83, 85 (¶7) (Miss. Ct. App. 2008)); see also
Gibson v. Wright, 870 So. 2d 1250, 1254 (¶8) (Miss. Ct. App. 2004). However, in Franklin
Collection Services, 206 So. 3d at 1285 (¶14) (internal quotation marks omitted), we
recognized that “some federal courts of appeals have recognized an exception to this rule and
will review purely legal issues decided on summary judgment even after a jury trial and
service of the notice for said health care providers and others.
8
verdict.”
¶18. Turning to the case before us, Mississippi Code Section 15-1-36(1) provides that an
action for medical malpractice must be brought “within two (2) years from the date the
alleged act, omission or neglect shall or with reasonable diligence might have been first
known or discovered.” Miss. Code Ann. § 15-1-36(1). The supreme court has clarified that
“[a]pplication of the discovery rule [in a medical-malpractice action] is a fact-intensive
process.” Huss v. Gayden, 991 So. 2d 162, 166 (¶6) (Miss. 2008). “Mississippi substantive
jurisprudence requires questions of disputed fact to be decided by juries, such as when [a
claimant] ‘with reasonable diligence might have first known or discovered’ the ‘alleged act,
omission, or neglect’” referenced in section 15-1-36. Huss v. Gayden, 991 So. 2d 162, 168
(¶10) (Miss. 2008).
¶19. In denying Dr. Kronfol’s motion for summary judgment, the trial court acknowledged
that “application of the discovery rule is a fact-intensive process.” The trial court determined
that “reasonable minds can differ as to when . . . Johnson knew of Dr. Kronfol’s alleged
negligence” and held that “an issue of material fact” existed. We therefore find that the issue
before the trial court on summary judgment was not “purely legal.” See Franklin Collection
Servs., 2016 So. 3d at 1286 (¶14). The record reflects that after the trial judge determined
a factual question existed, the factual issue was not submitted to the jury to determine as to
when Johnson knew or should have known of the alleged negligence of Dr Kronfol.
¶20. After our review, we find that the trial court’s “pretrial ruling on [Dr. Kronfol’s]
motion for summary judgment was rendered moot by the trial on the merits. It is not
9
reviewable on appeal and therefore is not a basis for reversal.” Id. at 1285 (¶10).
II. Daubert Challenge
¶21. At trial, Dr. Orlando Gutierrez testified for Johnson as an expert in the field of
nephrology. Dr. Kronfol argues that the trial court erred in failing to grant his Daubert
challenge to Dr. Gutierrez’s reliance upon “guidelines,” which were not the standard of care,
were outdated, and were not scientifically valid. At trial, Dr. Kronfol moved under
Mississippi Rule of Evidence 702 and Daubert to strike Dr. Gutierrez’s opinions relying on
the National Kidney Foundation’s 2006 Updates to Clinical Practice Guidelines and
Recommendations (“2006 guidelines”). The trial court ultimately denied Dr. Kronfol’s
motion to strike, but the trial court stated that “if you have an expert or some article that
states that these [guidelines] are no longer applicable or that these are no longer . . . what’s
used, I guess at that point it will be a question for the jury to determine whether or not what
weight they want to give to it.” On appeal, Dr. Kronfol argues that Dr. Gutierrez never
articulated any national standard of care for nephrologists; rather, he just articulated the
recommendation “best practices” contained in 2006 guidelines.
¶22. We review the trial court’s admission or exclusion of expert testimony for an abuse
of discretion. Patterson v. Tibbs, 60 So. 3d 742, 748 (¶19) (Miss. 2011). “This Court should
find error in the trial court’s decision to exclude expert testimony only if the decision was
arbitrary or clearly erroneous.” Id.
¶23. The supreme court has stated that “[i]n addressing Daubert issues, our analysis must
be guided by Rule 702, which addresses the admissibility of expert testimony.” Id. at (¶20).
10
Rule 702 provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Expert witnesses must be qualified to render an opinion, and expert witnesses “should be
given wide latitude when offering opinions within their expertise.” Patterson, 630 So. 3d
at 748 (¶21). “[E]xpert testimony must be relevant and reliable.” Delta Reg’l Med. Ctr. v.
Taylor, 112 So. 3d 11, 25 (¶41) (Miss. Ct. App. 2012).
¶24. In Daubert, the United States Supreme Court provided factors for the trial court to
consider when determining the relevance and reliability of expert testimony:
(1) whether the expert’s theory can be or has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of a technique or theory when applied;
and (4) the general acceptance that the theory has garnered in the
relevant expert community.
Daubert, 509 U.S. at 593-94. The Mississippi Supreme Court explained that “[t]hese factors
are nonexclusive, and their application depends on the nature of the issue, the expert’s
expertise, and the subject of the testimony offered by the expert.” Patterson, 630 So. 3d at
749 (¶21) (citing Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (Miss. 2003)).
11
Furthermore, “[w]hen determining whether expert testimony is admissible, our trial judges
should act as gatekeepers and must determine whether the proposed testimony meets the
requirements of Rule 702 and Daubert’s relevance and reliability prongs.” Id. at (¶22).
¶25. Regarding the provision in Rule 702 that “[a] witness who is qualified as an expert
by knowledge, skill, experience, training, or education may testify in the form of an opinion
or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue[,]” Daubert
provides as follows:
The subject of an expert’s testimony must be “scientific knowledge.” The
adjective “scientific” implies a grounding in the methods and procedures of
science. Similarly, the word “knowledge” connotes more than subjective
belief or unsupported speculation. The term “applies to any body of known
facts or to any body of ideas inferred from such facts or accepted as truths on
good grounds.”
Daubert, 509 U.S. at 589-90. Our supreme court has also provided that “[e]xpert testimony
admitted at trial must be based on scientific methods and procedures, not on unsupported
speculation or subjective belief.” McKee v. Bowers Window & Door Co., 64 So. 3d 926, 932
(¶18) (Miss. 2011).
¶26. In the present case, Johnson designated Dr. Gutierrez, a nephrologist, as her trial
expert. In Johnson’s Designation of Experts for Dr. Gutierrez, she asserted the following:
[Dr. Gutierrez] is of the opinion that there was a breach of care in connection
with the care and treatment provided to Barbara Johnson relative to the
temporary catheter. Specifically, there was a breach of care [by Dr. Kronfol]
when the temporary catheter was allowed to remain in place for approximately
twenty-five (25) days. Current vascular access guidelines provide that
internal jugular catheters should be used for no more than seven (7) days. See
the article entitled Clinical Practice Guidelines for Vascular Access, 2006,
12
which has been previously produced.
Dr. Gutierrez will further opine that the sepsis suffered by Barbara Johnson,
her hospitalization at Delta Regional Medical Center from May 6, 2013,
through May 15, 2013, and any other subsequent treatment for the sepsis were
proximately caused by Barbara Johnson’s retention of the internal jugular
catheter for approximately twenty-five (25) days, well beyond current vascular
access guidelines.
(Emphasis added). Dr. Gutierrez opined at trial that Dr. Kronfol breached the standard of
care in his treatment of Johnson. Specifically, Dr. Gutierrez stated that Dr. Kronfol breached
the standard of care by allowing Johnson’s temporary catheter to be in for more than one
week, which led to Johnson’s infection from Methicillin-resistant Staphylococcus aureus
(MRSA) and later sepsis. Kronfol maintains that it was inappropriate for Dr. Gutierrez to
use the 2006 guidelines to set the standard of care.
¶27. At trial, Johnson’s attorney asserted that the 2006 guidelines relied on by Dr.
Gutierrez set forth “guidance regarding what nephrologists are supposed to do in terms of
managing temporary catheters.” Dr. Gutierrez informed the trial court that the guidelines
were produced by a work group called The Kidney Disease Outcomes Quality Initiative
(KDOQI), which was put together by the National Kidney Foundation. Dr. Gutierrez stated
that the specific task of the work group “is to review the literature and determine, based upon
a review of the literature, what are the best practices for different aspects of nephrology
care.” Dr. Gutierrez further explained during voir dire that “it’s really the sort of guidelines
that any nephrologist refers to in terms of understanding what is the standard of care, what
is the best practice of care.” Dr. Gutierrez stated that the guidelines are generally updated
every five to ten years.
13
¶28. Dr. Gutierrez testified that the 2006 guidelines establish that “[t]he rate of infection
for internal jugular catheters suggests they should be used for no more than one week.” Dr.
Gutierrez explained that he relied on the 2006 guidelines in forming his opinion, and he also
stated that “this is part of the training that any minimally competent nephrologist gets in
terms of how long . . . a temporary catheter should stay in for a patient on dialysis. So I’m
also relying on just basic experience and training.” Dr. Gutierrez further testified that the
primary nephrologist generally bears the responsibility for managing catheters in patients like
Johnson, who are suffering from end-stage renal disease.
¶29. In Delta Reg’l Med. Ctr. v. Taylor, 112 So. 3d 11, 18 (¶14) (Miss. Ct. App. 2012), Dr.
Wiggins, an expert witness in the field of emergency medicine, agreed that “the American
Stroke Association’s (ASA) Guidelines for the Early Management of Patients with Ischemic
Stroke: A Scientific Statement from the Stroke Council of the American Stroke Association,”
constituted “an authority for establishing the standard of care in stroke patients.” Upon
review, this Court found no abuse of discretion in the trial court’s admission of Dr.
Wiggins’s expert testimony, “since [he] grounded [his] expert opinions and testimony upon
[the defendant’s] medical records, the methods and scientific principles taught in residency
programs, and methods and principles instructed upon by medical texts . . . .” Id. at 28 (¶51).
This Court also held that “[Dr. Wiggins’s] expert opinion[] [was] supported by and consistent
with medical literature, including . . . an American Stroke Association article setting forth
the standards of care for stroke patients.” Id.
¶30. Guidelines alone do not establish the standard of care. However, in the present case,
14
Dr. Gutierrez testified that he did not base his expert opinion solely on the 2006
guidelines—he also relied on his training and experience as a nephrologist. We therefore
find the trial court did not abuse its discretion in allowing Dr. Gutierrez to testify as an expert
in the field of nephrology.
III. Undisclosed Opinions
¶31. Dr. Kronfol argues that the trial court also erred by allowing Dr. Gutierrez to testify
about undisclosed opinions. Specifically, Dr. Kronfol takes issue with Dr. Gutierrez’s
testimony during redirect examination that a permanent catheter could be placed in the same
opening where Johnson’s temporary catheter had been placed and that the procedure was a
“simple procedure” without risks. Dr. Kronfol objected to the testimony, arguing that Dr.
Gutierrez’s opinion as to this issue was not brought up in cross-examination or contained in
Johnson’s designation of experts. The trial court overruled Dr. Kronfol’s objection. Dr.
Kronfol now claims that this testimony was “egregiously prejudicial” and that such testimony
countered the testimony by Dr. Lucas that there are multiple and serious risks associated with
installing a temporary catheter and installing a permanent catheter in a patient like Johnson.
¶32. Mississippi Rule of Civil Procedure 26 provides as follows:
[U]pon request from the opposing party, a party must provide the name of each
expert witness it plans to call at trial along with the subject matter on which the
expert is expected to testify, the substance of the facts and opinions to which
the expert is expected to testify, and a summary of the grounds for each
opinion.
Bailey Lumber & Supply Co. v. Robinson, 98 So. 3d 986, 997 (¶30) (Miss. 2012) (internal
quotation marks omitted) (quoting Miss. R. Civ. P. 26(b)(4)(A)(i)). The supreme court “has
15
emphasized that it is imperative for parties to disclose more than just the general subject
matter on which an expert will testify.” Id. The disclosure must be sufficient to put the
opposing party “on notice of the proffered testimony and [any] new theory at trial.”
Robinson v. Corr, 188 So. 3d 560, 570 (¶30) (Miss. 2016).
¶33. However, Johnson argues that Dr. Kronfol opened the door to questions regarding the
risks involved with temporary and permanent catheters by asking Dr. Gutierrez during cross-
examination whether he heard Dr. Lucas’s testimony that “the risks of placing the central
line, which is a permanent catheter—of rupturing the lungs, puncturing the heart or the veins
or the arteries—was more risky than the patient perhaps having an infection, which was the
least risk . . . .” We recognize that “[t]he scope of redirect examination, while largely within
the discretion of the trial court, is limited to matters brought out during cross-examination.”
McDonald v. Lemon-Mohler Ins. Agency LLC, 183 So. 3d 118, 133 (¶52) (Miss. Ct. App.
2015). Upon review, this Court “will not disturb a trial court’s ruling on matters pertaining
to redirect examination unless there has been a clear abuse of discretion.” Id.
¶34. During redirect examination, Johnson asked Dr. Gutierrez: “What would be the
procedure or would it be possible to convert that temporary catheter to a tunneled
[permanent] catheter?” Dr. Kronfol objected, arguing “[T]hat’s not in his designation to
discuss.” During a bench conference on the matter, the trial court stated that during cross-
examination, Dr. Kronfol “did talk about the dangers of putting in a permanent catheter, a
tunneled catheter.” The trial court ultimately overruled Dr. Kronfol’s objection, and the
following exchange occurred during redirect:
16
[Counsel]: You were asked about -- going back where we were, you
were asked about dangers involved in placing a central
line. Do you recall that?
[Dr. Gutierrez]: I do.
[Counsel]: Okay. Are those dangers always present when you’re
changing a temporary catheter to a tunneled catheter?
[Dr. Gutierrez]: No.
[Counsel]: Explain to the jury why they are not.
[Dr. Gutierrez]: When you have a temporary catheter -- well, let me back
up. When you’re placing a tunneled catheter for the first
time or just from anew, there is certainly risks involved
with the needle going into the vein and that catheter
having problems getting into the vein and causing
damage. When you already have a temporary catheter in
the vein, you can exchange the temporary catheter for a
new one.
....
[Dr. Gutierrez]: When you have a temporary catheter, you can exchange
that catheter by putting a wire through it and put in a
tunneled [(permanent)] catheter in its place, which has
many fewer risks involved with it than if you had to
place a tunneled catheter fresh or just new.
[Counsel]: And that would have been the procedure since Ms.
Johnson already had a temporary catheter. Is that
correct?
[Dr. Gutierrez]: That’s correct. It’s a simple procedure.
(Emphasis added).
¶35. After our review, we find no abuse of discretion by the trial court in allowing Dr.
Gutierrez to testify as to his opinion that through a simple procedure, a permanent catheter
could be placed in the same opening where Johnson’s temporary catheter had been placed.
17
Dr. Kronfol opened the door to this line of questioning during cross-examination, and the
trial court was within its discretion to allow Dr. Gutierrez to testify on the matter during
redirect examination.
IV. Expert Opinion from a Treating Physician
¶36. Dr. Kronfol argues that the trial court erred by allowing Johnson’s treating physician,
Dr. Xander Buenafe, to offer an expert opinion that the temporary catheter placed in Johnson
presented a “very high risk” of infection and that the catheter was the source of the MRSA
infection. Dr. Kronfol asserts that the testimony by Dr. Buenafe about the risk of infection
from a temporary catheter went well beyond his treatment of the patient and should have
been excluded by the trial court. Dr. Kronfol maintains that Johnson’s expert designation of
Dr. Buenafe simply states “this treating physician is expected to testify in a manner consistent
with medical records,” yet Johnson’s medical records make no mention of the temporary
catheter placing Johnson at a high risk for infection. Dr. Kronfol further maintains that the
designation does not disclose any opinion by Dr. Buenafe that the catheter caused Johnson’s
infection, or that Dr. Buanefe knew of the multiple shots, procedures, or frequency of dialysis
that Dr. Guiterrez admitted could have precipitated the infection.
¶37. In Johnson’s designation of experts, she lists Dr. Buenafe and provides the following
description:
The physician listed below is the treating physician of [Johnson], and, as such,
is not an expert who has been retained or specifically employed to provide
testimony in this matter. This treating physician is expected to testify in a
manner consistent with his medical records and reports, a copy of which has
been previously provided to [Dr. Kronfol].
18
(Emphasis added).
¶38. The supreme court has held that “[a] physician can testify without being accepted as
an expert regarding: (1) ‘the facts and circumstances surrounding the care and treatment of
the patient’; (2) ‘what his records about the patient reveal’; and (3) ‘what conditions the
patient was suffering from if the opinion was acquired during the care and treatment of the
patient.’” Chaupette v. State, 136 So. 3d 1041, 1046 (¶8) (Miss. 2014) (quoting Griffin v.
McKenney, 877 So.2d 425, 439-40 (¶50) (Miss. Ct. App. 2003)). However, the supreme
court cautioned that “a physician cannot testify about the significance of a patient’s condition
or industry standards without first being accepted as an expert.” Id. (internal citations
omitted); see also M.R.E. 701 and 702. We review “[a] trial court’s admission of testimony
. . . for an abuse of discretion.” Id. at1045 (¶7).
¶39. In response to Dr. Kronfol’s argument, Johnson maintains that Dr. Buenafe’s
testimony regarding the temporary catheter and the high risk of infection was consistent with
Johnson’s medical records from her admission and treatment at Delta Regional Medical
Center between May 6–15, 2013. On Johnson’s discharge summary prepared by Dr. Buenafe
and admitted into evidence, the discharge diagnoses states, among other things, “Bacteremia,
MRSA, Catheter-related.”
¶40. The disputed testimony occurred during Dr. Buenafe’s direct examination:
Q: Okay. And you just testified that you took a look at the catheter?
A: Yes, ma’am.
Q: Okay. And describe for me what you saw.
19
A: It had—it had some gauze dressing on it, if I remember correctly, which
was really dirty. The pus had seeped through the dressing. I can’t
remember the exact color, but it was probably brownish to yellow,
something like that. It just struck me as being horribly dirty.
Q: And when you saw that, what did you do?
A: I took the dressing off, and then I realized it was a nontunneled
[temporary] catheter.
Q: What was the significance of it being a nontunneled catheter?
A: When we were trained as nephrologists, we didn’t . . . .
Dr. Kronfol then objected to Dr. Buenafe providing any opinion regarding his training and
experience, which were not part of Johnson’s medical records. Johnson explained that Dr.
Buenafe intended to testify that he based his treatment of Johnson on the discovery that she
had a temporary catheter, rather than a permanent catheter, in her arm. The trial court
overruled Dr. Kronfol’s objection.
¶41. Upon resuming direct examination of Dr. Buenafe, Johnson asked: “What was the
significance of being a nontunneled catheter?” Dr. Buenafe answered that “[a] nontunneled
catheter would place the patient at very high risk for having an infection.” Dr. Buenafe
testified that he made phone calls to other physicians to try and verify why Johnson had a
temporary catheter in place. Dr. Buenafe stated that he was ultimately unable to find out why
Johnson had a temporary catheter. Johnson asked, “Was this a significant finding for you?”
Dr. Buenafe responded, “Yes. . . . As mentioned earlier, it would have put her at higher risk
of infection.”
¶42. Counsel for Johnson then referred Dr. Buenafe to Johnson’s discharge instructions,
20
where Dr. Buenafe wrote that the culture taken from the tip of Johnson’s catheter revealed
that Johnson had MRSA. Johnson asked Dr. Buenafe whether he was able to determine the
source of the MRSA infection, and Dr. Buenafe responded, “Presumably, the catheter. It was
what we would call, I think, the most proximate cause.” Dr. Buenafe testified that he did not
investigate other possible causes of the infection; instead, “[w]e approached the most
probable cause.” Dr. Buenafe explained that “nontunneled [(temporary)] catheters are prone
to resulting in such infections; so we decided to approach [Johnson’s] problem starting with
that.”
¶43. Based on our review of the record, we find that Dr. Buenafe’s testimony is consistent
with Johnson’s medical records and his treatment of Johnson. We find no abuse of discretion
in the trial court’s decision allowing Dr. Buenafe to testify that Johnson’s temporary catheter
presented a high risk of infection and was the source of the MRSA infection that he
diagnosed in the treatment of Johnson.
V. Alleged Negligence of Dr. Lucas and Dr. Russell
¶44. Dr. Kronfol next alleges that the trial court erred in preventing his defense counsel
from informing the jury that Johnson had alleged that Dr. Lucas and Dr. Russell were
negligent in their treatment of Johnson, and that their negligence caused or contributed to her
injuries.
¶45. At trial, the trial court sustained Johnson’s objection to any evidence or testimony
about the dismissal of Dr. Lucas and Dr. Russell and Johnson’s prior claims against them.
Dr. Kronfol acknowledges that the jury received an apportionment instruction allowing the
21
jury to apportion liability to Drs. Lucas and Russell, but he maintains that because the trial
court prohibited the jury from knowing about the admissions and allegations in the
complaints against Dr. Russell and Dr. Lucas, the jury did not assess any percentage of fault
against them. Dr. Kronfol cites to various authority9 in support of his assertion that for
purposes of apportionment, a defendant is entitled to present evidence that the plaintiff
settled with a co-defendant against whom she also asserted fault.
¶46. Johnson, however, argues that Dr. Lucas and Dr. Russell were both voluntarily
dismissed as defendants prior to trial and that no settlement offers were made or accepted in
conjunction with their dismissal. Johnson maintains that the cases relied upon by Dr. Kronfol
in his appellate brief involve monetary settlements, while the dismissals of Dr. Lucas and Dr.
Russell were voluntary. There was no evidence offered by either party of any settlement
offers or of actual settlements with Dr. Lucas or Dr. Russell.
¶47. We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Gateway United Methodist Church of Gulfport v. Mississippi Transp. Comm’n,
147 So. 3d 900, 903 (¶9) (Miss. Ct. App. 2014). “There is no abuse of discretion by the trial
court in granting a motion in limine if: (1) the material or evidence in question will be
inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or
statements made during trial concerning the material will tend to prejudice the jury.” Id.9
Dr. Kronfol cites to the following cases in support of his argument that the fact a
plaintiff alleges negligence against a dismissed defendant is highly relevant and significant
evidence for purposes of the apportionment statute: Blailock ex rel. Blailock v. Hubbs, 919
So. 2d 126, 131 (Miss. 2005); Smith v. Payne, 839 So. 2d 482, 487 (Miss. 2002), Estate of
Hunter v. Gen. Motors Corp., 729 So. 2d 1264, 1276 (Miss. 1999); Robles ex rel. Robles
v. Gollott & Sons Transfer & Storage Inc., 697 So. 2d 383, 385 (Miss. 1997).
22
(internal quotation mark omitted) (quoting Ware v. Entergy Miss., Inc., 887 So. 2d 763, 766
(¶6) (Miss. 2004). We review questions of law de novo. Id.
¶48. Mississippi Code Annotated section 85-5-7(5) (Rev. 2011) states: “In actions
involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each
party alleged to be at fault without regard to whether the joint tort-feasor is immune from
damages.” The supreme court has interpreted this statute to state that “absent tortfeasors who
contributed to a plaintiff’s injuries must be considered by the jury when apportioning fault.”
Blailock ex rel. Blailock v. Hubbs, 919 So. 2d 126, 131 (¶17) (Miss. 2005) (internal quotation
mark omitted).
¶49. The transcript reflects that prior to trial, the trial court heard arguments on Johnson’s
motion in limine objecting to any evidence or testimony about the dismissal of Dr. Lucas and
Dr. Russell from the lawsuit and Johnson’s claims against them. Counsel for Johnson
argued:
I’m not saying that there can’t be a finger pointed in their direction, but,
specifically, I’m requesting that any mention that these doctors were previously
sued be excluded. I think that that would cause confusion, it would be
misleading to the jury, and the probative value—there would be no probative
value to that. . . . and it would certainly be prejudicial.
It would cause the jury to wonder if there was some settlement or what,
and there was no settlement with these defendants.
So based on the fact that these defendants were parties and are no longer
parties, I think that that matter, in and of itself, is a matter that should be
excluded.
Counsel for Dr. Kronfol argued that the defense was entitled to ask for an apportionment
verdict to apportion liability to all three of the doctors because all of the doctors were aware
23
of Johnson’s temporary catheter and failed to remove it. The trial court agreed that “[a]s far
as questioning [Dr. Lucas and Dr. Russell] or apportioning blame to them or pointing the
finger at them as being wholly responsible, you can do that.” The trial court explained,
however, that Johnson’s motion in limine “goes . . . directly to actually stating that there was
a lawsuit originally filed against them that has since been dismissed.” The trial court
ultimately granted Johnson’s motion “as to referring to the fact that these doctors were
originally a part of the lawsuit and have since been dismissed.” The trial court again clarified
that Dr. Kronfol was not precluded from “pointing the finger at those doctors or even
apportioning any of the [fault].”
¶50. Our review of the record reflects that Dr. Kronfol was not limited from alleging fault
on the part of Dr. Lucas and Dr. Russell. Additionally, Jury Instruction C-C-5 set forth
verdict forms for the jury to choose from, including the following option:
2A. If you find for the Plaintiff, you may use your judgement to determine
who was negligent and what percentage of plaintiff’s injuries were
proximately caused by each person’s negligence. It is within your discretion,
based upon the facts and evidence presented at trial, to determine what
percentage, if any, negligence should be assigned to a particular person. You
are not required to assign a percentage of negligence to any particular person.
a. Do you find that Plaintiff’s negligence contributed to her
own injury?
Yes No
If your answer is yes, please fill in the percentage that you believe that the
Plaintiff was responsible for her own injuries:
“We, the jury, find that the Plaintiff, Barbara Johnson, was
negligent and is responsible for ___ % of her own injuries.”
24
b. Do you find that Dr. Ned O. Kronfol was negligent?
Yes No
If your answer is yes, please fill in the percentage that you believe Dr. Ned O.
Kronfol was responsible for the Plaintiff’s injuries:
“We, the jury, find that Dr. Ned O. Kronfol was negligent and
is responsible for ___ % of Plaintiff’s injuries.”
c. Do you find that Dr. Russell was negligent?
Yes No
If your answer is yes, please fill in the percentage that you believe Dr. Donald
B. Russell was responsible for the Plaintiff’s injuries:
“We, the jury, find that Dr. Donald B. Russell was negligent and
is responsible for ___ % of Plaintiff’s injuries.”
d. Do you find that Dr. Lucas was negligent?
Yes No
If your answer is yes, please fill in the percentage that you believe Dr. John F.
Lucas, III was responsible for the Plaintiff’s injuries:
“We, the jury, find that Dr. John F. Lucas was negligent and is
responsible for __% of Plaintiffs injuries.”
(ALL of the percentages must add up to 100%. That does not mean that you
have to assign a percentage of negligence to everyone involved.)[.]
¶51. After our review, we find no abuse of discretion in the trial court’s ruling to exclude
any testimony or evidence that Dr. Russell and Dr. Lucas were dismissed from the lawsuit.
The record shows that the jury was still allowed to consider any negligence of Dr. Russell
and Dr. Lucas in rendering its decision.
VI. Exclusion of Dr. Lucas’s Trial Testimony
25
¶52. Dr. Kronfol asserts that the trial court erred in excluding the testimony of Dr. Lucas
regarding the length of time to leave a temporary catheter in place. Dr. Kronfol argues that
Johnson’s counsel had questioned Dr. Lucas about catheters in his deposition and that the
testimony was relevant to Dr. Gutierrez’s opinions. Dr. Kronfol also maintains Dr. Lucas
was Johnson’s treating physician, and the issue of the temporary catheter was relevant to Dr.
Lucas’s treatment. Upon review, we acknowledge that the record shows that Dr. Lucas
testified as a treating physician and not as an expert witness.
¶53. “The standard of review for the admission or exclusion of testimony is abuse of
discretion.” Kindred v. Columbus Country Club Inc., 918 So. 2d 1281, 1284 (¶4) (Miss.
2005).
¶54. At trial, Johnson’s attorney asked Dr. Lucas whether he and Dr. Kronfol had an
understanding “regarding who was to manage . . . Johnson’s catheter.” Dr. Lucas responded
“no,” and he testified that he does not manage hemodialysis catheters. Later, Dr. Kronfol
attempted to cross-examine Dr. Lucas about whether a temporary catheter that is working
should be removed and replaced with a permanent catheter. Johnson objected, stating that
Dr. Lucas already testified that he does not place catheters, so he would not be removing
them either. The trial court asked Dr. Lucas whether he makes the decision about placing
temporary catheters or removing them. Dr. Lucas responded that “if someone comes to my
office and has a functioning fistula that they’ve been using, then I will take out a catheter,
whether it’s temporary or permanent, but as far as putting them in, I don’t make that
decision.” The trial court then sustained Johnson’s objection to this testimony, ruling that
26
“that’s not [Dr. Lucas’s] practice area. That’s not what he typically does.”
¶55. Dr. Kronfol then attempted to cross-examine Dr. Lucas regarding the 2006 guidelines
relied upon by Dr. Gutierrez, asking, “[D]o you agree with [the guidelines] that you should
take out a working temporary catheter?” Johnson objected. The trial court sustained the
objection, stating, “This doctor is not a nephrologist.” Dr. Kronfol later proffered the
testimony of Dr. Lucas, outside of the presence of the jury, regarding the 2006 guidelines.
Dr. Lucas testified that he disagreed with the statements in the 2006 guidelines mandating
that it is “improper to discharge a patient with a temporary catheter on.” Dr. Lucas stated
that he also disagreed with the 2006 guidelines with regard to “what constitutes long term.”
When asked if he would criticize the decision of the radiologist or nephrologist who decided
to leave in a temporary catheter until maturation of a fistula, as long as the temporary catheter
was working, Dr. Lucas responded, “If that was in a reasonable time frame, which I would
say would be a month to six weeks, I think that would be okay.”
¶56. As stated, a treating physician who is not testifying as an expert “can testify without
being accepted as an expert regarding: (1) ‘the facts and circumstances surrounding the care
and treatment of the patient’; (2) ‘what his records about the patient reveal’; and (3) ‘what
conditions the patient was suffering from if the opinion was acquired during the care and
treatment of the patient.’” Chaupette, 136 So. 3d at 1046 (¶8) (quoting Griffin, 877 So. 2d
at 439-40 (¶50)). Dr. Lucas testified that he was a surgeon, and not a nephrologist, and he
did not manage catheters.10 Any testimony from Dr. Lucas regarding the placement and
10
See also Langston v. Kidder, 670 So. 2d 1, 4 (Miss.1995) (The supreme court held
that it was error for a party, not designated as an expert witness, to testify to industry
27
removal of catheters would therefore be outside of the scope of his treatment of Johnson. We
therefore find no abuse of discretion by the trial court in excluding Dr. Lucas’s testimony
regarding temporary catheters.
VII. Deposition Testimony of Dr. Russell
¶57. Dr. Kronfol argues that the trial court erred in excluding portions of the deposition
testimony of Dr. Russell, the interventional radiologist who ordered and placed Johnson’s
temporary catheter. The record reflects that during Dr. Russell’s deposition, Johnson asked
Dr. Russell about whether the temporary catheter which he installed should have been
removed after no more than one week. Dr. Russell replied that it could be left in much longer
than that. When Johnson asked if Dr. Russell had any support for this proposition, he cited
to at least one medical article. Like the testimony of Dr. Lucas, upon review of this
assignment of error, we acknowledge that the record reflects that Dr. Russell was also
testifying as a treating physician and was not designated as an expert witness.
¶58. At trial, Dr. Kronfol sought to introduce Dr. Russell’s deposition testimony, and
Johnson objected. The trial court sustained the objection and ruled that portions of Dr.
Russell’s deposition testimony were inadmissible because “he is a lay witness or a treating
physician in this case and not an expert, [and] has not been designated as an expert.” The
trial court allowed Dr. Russell’s deposition testimony, except for the portions excluded based
on objections by the parties, to be read into the record as his trial testimony.
¶59. We recognize that pursuant to Mississippi Rule of Civil Procedure 32(a)(3), “The
standards and whether the defendant met those standards.)
28
deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court finds: (B) that the witness is at a greater distance than one hundred miles from the
place of trial or hearing, or is out of the state, unless it appears that the absence of the witness
was procured by the party offering the deposition; or . . . (E) that the witness is a medical
doctor . . . .” A treating physician “can testify without being accepted as an expert regarding:
(1) ‘the facts and circumstances surrounding the care and treatment of the patient’; (2) ‘what
his records about the patient reveal’; and (3) ‘what conditions the patient was suffering from
if the opinion was acquired during the care and treatment of the patient.’” Chaupette, 136 So.
3d at 1046 (¶8) (quoting Griffin, 877 So. 2d at 439-40 (¶50)) (internal citation omitted).
¶60. In Scafidel v. Crawford, 486 So. 2d 370, 372 (Miss. 1986), the supreme court found
no error where the trial court allowed the testimony of two doctors who had treated the
patient. The supreme court held:
The question is whether these two fact witnesses crossed an impermissible line
between fact testimony and expert opinion when they stated Mrs. Scafidel was
anemic. We conclude they did not. Their opinions in this regard, according to
their testimony, were acquired through their care and treatment of her during
this illness. Just as they testified as fact witnesses that she had fever, chills, and
diarrhea, so could they state, in our opinion, that she was anemic without
becoming expert witnesses.
Id.
¶61. Johnson maintains that Scafidel is distinguishable from the case at hand because
Scafidel deals with the admissibility of opinions acquired during the care and treatment of
the patient. Id. at 372. Johnson argues that since Dr. Russell referred Johnson to Dr.
Kronfol, her primary physician, for follow-up care regarding the catheter, then the opinions
29
offered by Dr. Russell regarding the appropriate length of time to retain a temporary catheter
would be outside of the care and treatment he offered to Johnson.
¶62. The record reflects that the trial court ruled that she would not allow certain testimony
from Dr. Russell’s deposition to be admitted into evidence, explaining that
all of that testimony goes to his opinion regarding whether or not the
temporary catheter should have been removed or whether or not it should have
been replaced with a permanent catheter. Given the fact that he is a lay
witness or a treating physician in this case and not an expert, has not been
designated as an expert, I’m not going to allow his opinion testimony.
The trial court did, however, allow the following deposition testimony regarding temporary
catheters to be read into the record at trial:
A: Dr. [Michael] Ko and I do the maintenance of the fistulas and the grafts
he puts in and then if they need -- most patients that need central lines
and central access, for some reason we end up doing that. Dr. Lucas
may put in a few but we put in most of them.
Q: The central line would—the central line would be what in particular?
A: Central dialysis catheters.
....
Q: And then in terms of [placing] the temporary catheter, who made that
decision?
A: He did.
Q: That was Kronfol’s decision?
A: Yes.
Q: Solely?
A: Yes. I may have suggested that as an option, you know. It’s a
discussion, it’s not like him giving me orders to do something that I
30
think is not indicated but, I mean, it’s pretty clear to anybody that does
this that this temporary catheter was indicated at this point.
Q: Okay.
A: He did give the directions. That’s what he wanted us to do with this
patient at that time is to do and send her on to the ER.
Dr. Russell also testified that on Johnson’s discharge sheet for the catheter procedure, he
instructed Johnson to “follow up with [her] primary physician” in two weeks. Dr. Russell
clarified that Johnson’s primary physician would be her nephrologist.
¶63. As stated, we review a trial court’s admission or exclusion of testimony for an abuse
of discretion. Chaupette, 136 So. 3d at 1045 (¶7). In so doing, “[w]e give great deference
to the discretion of the trial judge,” and we will not overturn a trial court’s decision to admit
or exclude testimony absent a finding that the decision was arbitrary and clearly erroneous.
Id. “Moreover, we may reverse a case only if[] the admission or exclusion of evidence
results in prejudice and harm or adversely affects a substantial right of a party.” Id. (internal
quotation mark omitted). Upon our review, we find no evidence to show that Dr. Kronfol
suffered prejudice and harm or that his substantial rights were adversely affected by the trial
court’s exclusion of portions of Dr. Russell’s deposition testimony. This issue lacks merit.
VIII. Cross-examination by Johnson
¶64. Dr. Kronfol argues that the trial court erred in allowing Johnson to cross examine
witnesses and parties with statements made by other witnesses in their depositions when
those deposed witnesses were not on the stand.
A. Dr. Gary Davis
31
¶65. Dr. Kronfol’s expert witness, Dr. Gary Davis, testified as an expert in the field of
nephrology with an emphasis on dialysis catheters. Dr. Kronfol argues that the trial court
erred by allowing Johnson to cross-examine Dr. Davis about statements made in deposition
by Dr. Russell—a witness who did not testify live—regarding Dr. Russell receiving his
orders from Dr. Kronfol
¶66. Dr. Kronfol argues that the trial court misapplied Mississippi Rule of Evidence
804(b)(1) in permitting Johnson to cross-examine Dr. Davis. Dr. Kronfol asserts that the rule
allows for the reading into evidence of prior testimony of an unavailable witness who has
been subject to cross-examination in lieu of live testimony by that witness. However, Dr.
Kronfol claims that the trial court instead allowed Johnson to attempt to impeach Dr. Davis
with portions of Dr. Russell’s deposition.
¶67. Mississippi Rule of Civil Procedure 32(a)(1) states, in pertinent part, as follows:
At the trial . . . any part or all of a deposition, so far as admissible under the
rules of evidence applied as though the witness were then present and
testifying, may be used against any party who was present or represented at the
taking of the deposition or who had reasonable notice thereof, in accordance
with any of the following provisions:
(1) Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of deponent
as a witness, or for any other purpose permitted by the
Mississippi Rules of Evidence.
The comments to Rule 32 states that Mississippi Rule of Evidence 804(b)(1) “permits the
introduction of deposition testimony by a witness who is unavailable at trial. Although the
deposition of the unavailable witness need not have been taken in the same proceeding as
that in which it is offered, the party against whom the deposition testimony is being offered,
32
must have had an opportunity and similar motive to develop the testimony.”
¶68. Rule 804(b)(1) sets forth as follows:
The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing,
or lawful deposition, whether given during
the current proceeding or a different one;
and
(B) is now offered against a party who had--or,
in a civil case, whose predecessor in
interest had--an opportunity and similar
motive to develop it by direct, cross-, or
redirect examination.
¶69. At trial, the trial court allowed the following testimony during Johnson’s cross-
examination of Dr. Davis, despite Dr. Kronfol’s objections that Dr. Russell’s deposition was
not in evidence:
Q. Didn’t Dr. Russell say in his deposition that he gets the orders from Dr.
Kronfol and he follows them?
A. Yes, ma’am.
Q. Okay. So nephrologists do tell interventional radiologists what to do,
don’t they?
A. Usually what you do is you order a procedure, and how the procedure
is done is dictated by the interventionalist.
Q. But the specific procedure itself is ordered by the nephrologist?
A. Not always
....
33
Q. So in reading [Dr. Russell’s deposition testimony], what Dr. Russell
indicates is simply that [Dr. Kronfol] wanted him to place a temporary
catheter and send [Johnson] to Greenville. Is that correct? On this
reading, is that what it says?
A. . . . [T]hat is what the reading says. That’s what Dr. Russell said.
¶70. Both Rule 32(a)(1) and Rule 804(b)(1) permit Johnson to use Dr. Russell’s deposition
testimony to cross-examine Dr. Kronfol’s expert witness, Dr. Davis. As stated, we review
a trial court’s admission or exclusion of testimony for an abuse of discretion. Chaupette, 136
So. 3d at 1045 (¶7). “[W]e may reverse a case only if[] the admission or exclusion of
evidence results in prejudice and harm or adversely affects a substantial right of a party.” Id.(internal quotation mark omitted). After our review, we find the trial court did not abuse her
discretion in allowing Johnson to use Dr. Russell’s deposition testimony to cross-examine
Dr. Davis.
B. Dr. Kronfol
¶71. The trial court also permitted Johnson to cross-examine Dr. Kronfol about Dr.
Russell’s deposition statement he instructed Johnson to follow up with Dr. Kronfol and about
Dr. Russell discussing the temporary catheter with Dr. Kronfol. Dr. Kronfol objected, and
the trial court overruled the objection, explaining that Mississippi Rule of Evidence 804(b)(1)
“specifically accepts former testimony that was given at a deposition that’s now being
offered against a party who had an opportunity and similar motive to develop it by
cross-examination, direct examination or redirect examination from being hearsay.” The trial
court also ruled that “[i]n cross-examination you can impeach a witness or cross a witness
on any statement that anybody gave whether it is from the deposition or not.”
34
¶72. Dr. Kronfol maintains that Rule 804(b)(1) is limited to the use of prior testimony
where it is offered against a party “who had . . . an opportunity or similar motive to develop
it by direct, cross-, or redirect examination.” Dr. Kronfol that he did not have a similar
motive cross-examine to Dr. Russell during the November 19, 2015 deposition because at
a time, Dr. Russell was a co-defendant. However, Johnson maintains that a deposition may
be used against any party who was present or represented at the taking of the deposition, and
counsel for Dr. Kronfol was present at Dr. Russell’s deposition.
¶73. After our review, we find that both Rule 32(a)(1) and Rule 804(b)(1) allow Johnson
to use Dr. Russell’s deposition testimony to cross-examine Dr. Kronfol, who is a party to the
proceeding and had the opportunity to cross-examine Dr. Russell during his deposition. We
therefore find no abuse of discretion by the trial court in allowing this testimony.
IX. Exclusion of Catheter Package Insert
¶74. Dr. Kronfol asserts that the trial court erred in not allowing into evidence the package
insert of the temporary catheter used on Johnson. Dr. Kronfol argues that this insert was an
important piece of evidence for the defense because the insert recommends that the catheter
has an optimal use for four weeks, and not one week, as Dr. Gutierrez contended. Dr.
Kronfol maintains that Johnson’s catheter had not been in place for four weeks at the time
of her hospitalization on May 6, 2013.
¶75. We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 490 (¶33) (Miss. 2010).
¶76. In her appellate brief, Johnson explains that the court reporter erroneously marked and
35
entered the package insert, as well as the supplemental discovery response from GLH
providing the insert, as Trial Exhibit 7. Our review of the record confirms that the catheter
package insert was marked as Trial Exhibit 7 and entered into evidence. We therefore find
that Dr. Kronfol’s argument lacks merit.
X. Testimony Regarding Medical Authorities
¶77. Dr. Kronfol asserts that the trial court erred in sustaining Johnson’s objection to Dr.
Kronfol’s response to a cross-examination question regarding medical authorities and
granting a curative instruction. Dr. Kronfol argues that Rule 803(18) only requires that “a
treatise used in direct examination must be disclosed to an opposing party without charge in
discovery” and that the rule does not address treatises produced during cross-examination.
¶78. “This Court applies an abuse-of-discretion standard when a trial court decides
“whether a party opens the door for an opposing party to inquire about otherwise
inadmissible evidence.” Robinson v. Corr, 188 So. 3d 560, 572 (¶38) (Miss. 2016) (quoting
Hartel v. Pruett, 998 So. 2d 979, 988 (¶22) (Miss. 2008)).
¶79. During cross-examination of Dr. Kronfol, Johnson’s counsel’s asked Dr. Kronfol
whether he had any medical authorities to support his opinion. Dr. Kronfol responded that
he had two medical articles that he just pulled that day. Johnson objected, and the trial court
sustained the objection, explaining that Dr. Kronfol cannot produce articles in response to
cross examination which were not previously produced to opposing counsel:
[Counsel for Johnson]: Your Honor, I’m going to object.
[Counsel for Dr. Kronfol]: She asked for it.
36
[Court]: Sustain.
....
[Court]: Attorneys, approach. . . . [Y]ou know that he
cannot produce articles that he has not produced
in discovery in court today.
[Counsel for Dr. Kronfol]: If she opens the door, which she just opened the
door. Judge, he can have them here, and that’s
what she wanted him to say, no, I don’t. And now
that he says, yes, I do, she says I want to hide
behind this rule, but when she opens the door, she
opens the door. She took a risk and she missed.
[Court]: Mr. Parker, you know that your client cannot
come into this courtroom with articles today that
you’ve not disclosed to opposing counsel.
[Counsel for Dr. Kronfol]: I know I can’t bring it up. Look at the rule. I
know I can’t bring it up on direct unless I
furnished it, but on cross-examination I can and
that’s what she did. That’s exactly what she did.
[Court]: I’m gonna sustain the objection.
¶80. At the conclusion of Dr. Kronfol’s testimony, the trial court issued a curative
instruction to the jury, stating:
[Y]esterday you heard testimony from Dr. Kronfol that he had two articles
with him that spoke to the amount of time that a temporary catheter should be
allowed to remain in a patient. The Court instructs the jury that that testimony
was improper. The testimony is stricken and should be completely disregarded
by this jury and not considered in your deliberations.
¶81. Dr. Kronfol asserts that Johnson’s counsel opened the door for his response. In
support of his assertion, Dr. Kronfol cites to Hartel, 998 So. 2d at 988 (¶20), where the
following exchange occurred on cross-examination of the defendant doctor by plaintiff’s
37
counsel:
Q: I want you to cite me one article that you’re relying on for that
testimony which has not been provided. I want to know one article that
you’re citing that says Cipro alone is just as effective for diverticulitis
treatment as aerobic and anaerobic coverage. You don’t have one recent
article that says that, do you?
....
A: I do have some other articles that are guides that emergency physicians
go by . . . in emergency medicine. And one is an emergency medicine
pediatric and adult textbook that’s a reference text.
Id.
¶82. Dr. Kronfol asserts that just as in the present case, in Hartel, the plaintiff’s counsel
objected that the article had not been produced in advance. Id. at (¶21). The supreme court
affirmed the trial court’s admission of the testimony and the article, holding as follows:
Although Dr. Pruett [the defendant] did not furnish “Griffith’s 5 Minute
Clinical Consult” in discovery, counsel for the Hartels [the plaintiffs] “opened
the door” by questioning Dr. Pruett with an open-ended challenge to “cite me
one article[,]” he referenced from “Griffith’s 5 Minute Clinical Consult.” Once
the door had been opened, the defendants were entitled to present the
“otherwise inadmissible evidence” to rebut the suggestion that there were no
articles to support Dr. Pruett’s view.
Id. at (¶22).
¶83. Similarly, in Robinson v. Corr, 188 So. 3d 560, 572 (¶38) (Miss. 2016), the supreme
court found that the trial court did not abuse its discretion in allowing the defendant’s expert
witness to provide an opinion not previously disclosed in the expert designation. The
supreme court explained that the expert witness “was answering questions asked by
[plaintiff’s] counsel” regarding the defendant’s medical issue and that his “answer was
38
responsive” to the questions. Id.
¶84. Furthermore, the record does not contain a proffer of what Dr. Kronfol would have
testified to regarding the content of the medical authorities and Dr. Kronfol did not submit
a copy of the medical authorities into evidence. We therefore find that no harmful error
occurred by the trial court excluding Dr. Kronfol’s testimony regarding the medical
authorities. When a trial court refuses to allow certain evidence to be admitted at trial,
it is incumbent on the offering party to make a proffer of the potential
testimony of the witness or the point is waived for appellate review. To
preserve the excluded testimony for appeal, a proffer would have to have been
made so this Court would know what testimony was excluded. Since this
matter was not properly preserved for appeal, then this issue will be treated as
waived.
Redhead v. Entergy Miss. Inc., 828 So. 2d 801, 808 (¶20) (Miss. Ct. App. 2001) (citation and
quotation mark omitted); see also Green v. State, 89 So. 3d 543 (¶28) (Miss. 2012). After
considering the discretion of trial judges in the admission and exclusion of evidence, we find
that if any error occurred when the trial judge excluded Dr. Kronfol’s production of the two
articles in responding on cross examination, that error constitutes harmless error. See
generally Ill. Cent. R. Co. v. Brent, 133 So. 3d 760, 779 (¶42) (Miss. 2013).
XI. Admission of Hospital Bill into Evidence
¶85. Dr. Kronfol next alleges that the trial court erred in allowing Johnson’s alleged
hospital bill from Delta Regional Medical Center to be admitted into evidence. Dr. Kronfol
argues that the proper predicate had not been laid for the introduction of the hospital bill into
evidence because Johnson never testified that she incurred or was liable for payment of these
medical expenses—rather, she testified only that she got them out of her mailbox.
39
¶86. We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Rebelwood Apartments, 48 So. 3d at 490 (¶33). This Court has held that “[p]roof
that medical, hospital, and doctor bills were paid or incurred because of any illness, disease,
or injury shall be prima facie evidence that such bills so paid or incurred were necessary and
reasonable.” City of Jackson v. Graham, 226 So. 3d 608, 613 (¶19) (Miss. Ct. App. 2017)
(quoting Boggs v. Hawks, 772 So. 2d 1082, 1085 (¶7) (Miss. Ct. App. 2000)); see also Miss.
Code Ann. § 41-9-119 (Rev. 2013). The supreme court has set forth that “when a party takes
the witness stand and exhibits bills for examination by the court and testifies that said bills
were incurred as a result of the injuries complained of, they become prima facie evidence that
the bills so paid or incurred were necessary and reasonable.” Id. (quoting Jackson v.
Brumfield, 458 So. 2d 736, 737 (Miss. 1984)). “However, the opposing party may, if desired,
rebut the necessity and reasonableness of the bills by proper evidence.” Id. “The ultimate
question is then for the fact-finder to determine.” Id.
¶87. The record reflects that during Johnson’s testimony, her counsel introduced into
evidence a hospital bill from Delta Regional in the sum of approximately $46,720. Dr.
Kronfol objected, arguing that Johnson failed to properly lay a predicate for the admission
of the hospital bill. The trial court overruled Dr. Kronfol’s objection, and allowed the
following testimony in relation to Johnson’s hospital bill:
Q. Is that a true and correct copy of the bill that you received from Delta
Regional Medical Center?
A. Yes.
....
40
Q. And what is the total amount of that bill?
A. $46,720.
Q. Did Delta Regional Medical Center send you that bill?
A. Yes.
Dr. Kronfol maintains that Johnson’s testimony failed to set forth the predicate requirements
to constitute prima facie evidence that such bills so paid or incurred were necessary and
reasonable.
¶88. Johnson argues that she properly introduced the medical bills into evidence and
testified as to why she incurred the bills. The transcript reflects that at trial, Johnson testified
about the treatment she received while a patient at Delta Regional; that she was diagnosed
with sepsis; and that she was informed that the sepsis was caused by the temporary catheter.
Johnson further testified that she was discharged from Delta Regional on May 15, 2013, and
she identified the document admitted into evidence as a true and correct copy of the bill that
she received from Delta Regional.
¶89. Johnson testified at trial and submitted into evidence her hospital bill, “and testifie[d]
that said bill [was] incurred as a result of the injuries complained of”; therefore, we find that
such proof constitutes prima facie evidence that her medical bill was necessary and
reasonable. City of Jackson, 226 So. 3d at 613 (¶19). Dr. Kronfol had the opportunity to
then rebut the necessity and reasonableness of Johnson’s bill during cross-examination. We
therefore find no error in the trial court allowing Johnson to admit the medical bill into
evidence.
41
XII. Jury Instruction on Equally Probable Causes
¶90. Dr. Kronfol argues that the trial court erred in failing to grant his jury instruction on
equally probable causes. Dr. Kronfol cites to Watkins v. United States, 589 F.2d 214, 228
(5th Cir. 1979), for the proposition that “in a malpractice action, where there is more than one
equally probable cause, for one or more of which the defendant is not responsible, the
plaintiff cannot recover.” Dr. Kronfol asserts that all of the expert witnesses testified that
the MRSA bacteria is very prevalent in hospital and dialysis settings and Johnson was
frequently in such settings. Dr. Kronfol also asserts that extensive testimony showed that it
was equally probable that Johnson contracted MRSA as a result of any of the procedures
performed by Drs. Russell and Lucas, or at any time dialysis procedures were performed
three times a week from April 12 to May 6, or from the three inter-muscular (IM) shots she
received at GLH on May 2, 2013.
¶91. At trial, Dr. Kronfol submitted the following jury instruction, D-17, regarding equally
probable causes:
The Court instructs the jury that where the alleged injury of the Plaintiff may
be attributable to one of several causes, any one of which may have been the
sole proximate cause of the alleged injury, before the Plaintiff is entitled to a
verdict against a Defendant it must be proven by Plaintiff by the
preponderance or the greater weight of the credible evidence that, as between
the several causes, Dr. Kronfol’s negligence proximately caused or contributed
to the alleged injuries and damages. You are not permitted by law to guess,
speculate or surmise as the actual cause of Barbara S. Johnson’s infection,
should it appear that her infection could have been the result of one or more
equally probable causes. Further, if you believe from the evidence that Barbara
S. Johnson’s infection could have been the result of one of several equally
probable causes, any one of which may have been the sole proximate cause of
the infection and that the Defendant was not responsible for one or more of
said causes then it is your sworn duty to return a verdict for the Defendant Ned
42
O. Kronfol, M.D.
The record reflects that Johnson objected to jury instruction D-17, arguing that “there’s been
no testimony including probable causes of this MRSA infection.” The trial court then
refused to give instruction D-17.
¶92. We review a trial court’s decision to give or refuse jury instructions for an abuse of
discretion. Byrd v. Stubbs, 190 So. 3d 26, 30 (¶13) (Miss. Ct. App. 2016). This Court has
held that “[j]ury instructions are to be read together as a whole, and a defendant is entitled
to have jury instructions given which present his theory of the case.” Towles v. State, 193
So. 3d 688, 696 (¶19) (Miss. Ct. App. 2016) (internal quotation mark omitted) (quoting
Booker v. State, 64 So. 3d 988, 995 (¶15) (Miss. Ct. App. 2010)). “A party is entitled to a
jury instruction if it concerns a genuine issue of material fact and there is credible evidence
to support the instruction.” Young v. Guild, 7 So. 3d 251, 259 (¶23) (Miss. 2009). The
supreme court has clarified that “[w]hile a party is entitled to jury instructions that present
his theory of the case, this entitlement is limited; the trial court may refuse an instruction
which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.” Id.
¶93. We acknowledge that at trial, Dr. Kronfol did offer various other possible causes for
Johnson’s MRSA infection. However, we ultimately find that Dr. Kronfol failed to actually
offer testimony or evidence showing the equal probability of these causes. Both Dr.
Gutierrez and Dr. Buenafe testified that the temporary catheter was the source and cause of
Johnson’s MRSA infection and sepsis. We find no abuse of discretion in the trial court’s
43
refusal to give jury instruction D-17.
XIII. Denial of Motion to Summons a New Jury Panel
¶94. Dr. Kronfol argues that the trial court erred in denying his motion to summons a new
jury panel. Dr. Kronfol claims that the trial court originally summonsed in excess of 400
potential jurors, but only 69 people actually appeared. Dr. Kronfol also claims that the circuit
clerk in this case further compounded the problem by failing to comply with Mississippi
Code Annotated section 13-5-23 (Rev. 2012), which provides as follows:
(1) All qualified persons shall be liable to serve as jurors, unless excused by
the court for one (1) of the following causes: (a) When the juror is ill and, on
account of the illness, is incapable of performing jury service; (b) When the
juror’s attendance would cause undue or extreme physical or financial
hardship to the prospective juror or a person under his or her care or
supervision; or (c) When the potential juror is a breast-feeding mother.
¶95. Dr. Kronfol maintains that none of the jurors excused prior to trial in this case had
submitted a certificate of a licensed physician pursuant to the statutory requirements. Dr.
Kronfol submits that the blatant disregard for the requirements of section 13-5-23 is
sufficiently extreme to requiring quashing the jury panel. Dr. Kronfol further argues that the
clerk’s excusing of jurors left Dr. Kronfol, who is Caucasian, with a totally African-
American venire in a county that is twenty-five percent Caucasian. As a result, Dr. Kronfol
claims that since he did not have the benefit of a properly seated jury venire, he was therefore
denied a fair trial.
¶96. We recognize that “[t]his Court may not reverse the trial judge’s decisions regarding
jury selection unless there is an abuse of discretion.” Reed v. State, 764 So. 2d 496, 499 (¶9)
(Miss. Ct. App. 2000). Mississippi Code Annotated section 13-5-87 (Rev. 2012) states that
44
“[a]ll provisions of law in relation to the listing, drawing, summoning and empaneling juries
are directory merely . . . .” In Pulliam v. State, 515 So. 2d 945, 948 (Miss. 1987), the
supreme court explained that section 13-5-23 “does not warrant the quashing of the venire
unless there is a showing of actual fraud, prejudice, or such a flagrant violation of duty as to
amount to fraud.”
¶97. The record reflects that during voir dire, Dr. Kronfol moved to quash the jury panel,
arguing as follows:
[T]he jury panel list . . . shows that out of almost 400 people we only had 69
showed up.
The jury information form that’s done by the clerk . . . shows that over half the
jury panel is African-American females, the same as the plaintiff, and that’s
not the percentage in the population of this county.
In addition to that[,] . . . jurors that were excused prior to the trial that were not
excused subject to the statute.
They were giving several reasons that they had, opening their businesses, my
back hurt, I have an appointment with a doctor, and the statute clearly says if
they have a doctor’s appointment or whatever that they must come to the court
and swear that they do and have a written document from the doctor.
¶98. In support of the motion to quash, Dr. Kronfol introduced the following exhibits: the
jury summonses for this particular jury panel; the jury panel list; the jury information form
prepared by the circuit clerk; and documents showing that various jurors excused prior to trial
provided excuses for reasons not covered in section 13-5-87.
¶99. After hearing arguments from both parties, the trial court denied Dr. Kronfol’s motion
to quash, explaining, “I don’t believe that there has been any evidence that the jury panel as
selected was anything but randomly selected from qualified jurors here in Leflore county.”
45
After the jury was impaneled, Dr. Kronfol made another motion to quash the jury panel,
arguing that the jury was “not representative of this population in this county or the parties
that are here.” The trial court denied the motion, finding that “[t]here has been no proof or
nothing put before the Court to show that these jurors were not randomly selected as required
by the statute and that it does not reflect the population of Leflore County.”
¶100. Upon our review of the record, we find no evidence showing any “actual fraud,
prejudice, or such a flagrant violation of duty as to amount to fraud” in the case before us.
We therefore find the trial court did not abuse its discretion in denying Dr. Kronfol’s motion
to quash the jury panel.
¶101. Additionally, after reviewing Dr. Kronfol’s argument that he was denied a fair trial
because he had an all-African-American venire in a county that is twenty-five percent
Caucasian, we find no error. Our review of the record reflects that of the sixty-nine members
of the jury panel, thirteen veniremen were Caucasian, which is approximately nineteen
percent of the venire.11 “During jury selection, control and direction of the jury is generally
within the discretion of the trial judge. Billue v. State, 64 So. 3d 589, 593 (¶13) (Miss. Ct.
App. 2011). This Court has recognized that while “[d]efendants have a right to a trial before
a jury selected through nondiscriminatory means, . . . the Sixth Amendment has never been
held to require that petit juries actually chosen must mirror the community and reflect the
various distinctive groups in the population.” Id. at 592 (¶9) (internal quotation mark
omitted). Furthermore, “defendants are not entitled to a jury with any particular racial
11
Due to an unfortunately placed hole punch, this Court is unable to view the notation
in the record reflecting Juror Number 63’s race.
46
makeup. Id. at 592 (¶11). This issue lacks merit.
XIV. Batson Challenges
¶102. Dr. Kronfol next argues that the trial court erroneously denied his Batson12 challenge
to the all-African American jury without requiring race-neutral reasons. Dr. Kronfol further
claims that the trial court erred in excusing Caucasian jurors on the basis that they knew or
respected Dr. Lucas, despite the fact that Dr. Kronfol made no objections to these jurors. Dr.
Kronfol argues that the trial court erred in allowing Johnson to excuse all remaining
Caucasian jurors, which the court had not excused for cause.
¶103. Johnson argues, however, that Dr. Kronfol failed to establish a pattern of Johnson
striking jurors based on race. As a result, Dr. Kronfol failed to make a prima facie showing
that race was the criteria for the exercise of the peremptory strike, which would require
Johnson’s counsel to articulate a race-neutral reason for peremptorily striking one Caucasian
member of the jury panel.
¶104. “Peremptory strikes may not be used for the purpose of striking jurors based solely
on their race or gender.” Lewis v. State, 239 So. 3d 1097, 1099 (¶6) (Miss. Ct. App. 2018).
We review a trial court’s ruling on a Batson challenge “with great deference because finding
the striking party engaged in discrimination is largely a factual finding.” Id. (internal
quotation mark omitted). “The trial judge acts as finder of fact when a Batson issue arises.”
Allen v. State, 235 So. 3d 168, 171 (¶7) (Miss. Ct. App. 2017). “We will not overrule a trial
court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or
12
Batson v. Kentucky, 476 U.S. 79, 89 (1986).
47
against the overwhelming weight of the evidence.” Id.
¶105. In McFarland v. State, 707 So. 2d 166, 171 (¶13) (Miss. 1998), the supreme court
held that where one party “has challenged another party’s peremptory strikes on the basis of
race, regardless of whether the struck jurors were black or white, the court should use the
same Batson analysis.” Dr. Kronfol asserts that upon the raising of a Batson challenge, the
trial court should have at a minimum required Johnson to articulate a valid race-neutral
reason for the exercise of her peremptory strikes. Dr. Kronfol argues that the trial court
instead denied the Batson challenge without even requiring race neutral reasons on the
record.
¶106. For the purposes of “safeguard[ing] against racial discrimination in jury selection,”
the United States Supreme Court set forth the following three-step process:
First, the party objecting to the use of a peremptory strike has the burden to
make a prima facie case that race was the criterion for the strike. Second, if
the objecting party makes such a showing, the burden shifts to the striking
party to state a race-neutral reason for the strike. Third, after the striking party
offers its race-neutral explanation, the court must determine if the objecting
party met its burden to prove purposeful discrimination in the exercise of the
peremptory strike—that the stated reason for the strike was merely a pretext
for discrimination.
H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co., 232 So. 3d 117, 123 (¶14) (Miss. 2016)
(citing Batson, 476 U.S. at 89). “In order to satisfy the first step of making a prima facie
case, the defendant must produce evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred. If the defendant fails to make out a prima facie
case showing a discriminatory purpose, the inquiry ends.” Lewis, 239 So. 3d at 1099 (¶7)
(internal quotation mark omitted). Our supreme court has articulated that when determining
48
whether a defendant has made a prima facie case that race was the criterion for the strike,
“the pivotal question is whether the opponent of the strike has met the burden of showing that
proponent has engaged in a pattern of strikes based on race or gender, or in other words the
totality of the relevant facts gives rise to an inference of discriminatory purpose.” Puckett
v. State, 788 So. 2d 752, 757 (¶10) (Miss. 2001) (internal quotation marks omitted) (quoting
Batson, 476 U.S. at 94).
¶107. The record reflects that during voir dire, each person who answered that they knew
Dr. Lucas was asked to approach the bench and questioned individually to ascertain the
details of his/her relationship with Dr. Lucas. The trial court then struck three jurors for
cause—one Caucasian female, Juror 14, and two Caucasian males, Jurors 6 and 32. Both
males answered that they would take Dr. Lucas’s character into consideration when
evaluating his testimony. Juror 14 stated that she used to work with Dr. Lucas. When
questioned by the trial court as to whether she had an opinion as to Dr. Lucas’s character,
Juror 14 responded “I just think he’s a good doctor.” The remaining jurors stated that they
could be fair and impartial and would give no greater weight to Dr. Lucas’s testimony than
that of the other witnesses.
¶108. During the jury selection process, Dr. Kronfol raised a Batson challenge after
Johnson’s counsel used one of its peremptory strikes against a white female, Juror 8, and
requested a race-neutral reason for the strike. The following exchange occurred:
[Counsel]: I would ask a reason for excusing Number 8?
[Court]: So are you raising a Batson challenge?
49
[Counsel]: Yes.
[Court]: And as a basis for the Batson challenge, what are you stating?
[Counsel]: I’m asking her to give a race neutral reason for excusing --
[Court]: That’s not the way it goes. You make a prima facie case that
she’s exercised her challenges in a race based way and you do
that based on a pattern if you’re saying she’s shown a pattern.
Okay. Juror Number 8 was a white female. Juror
number 9, D2, was a black female. Juror Number 22 was a
black female.
And so based on the three strikes, one was to a white
female, the other were two black females, I don’t believe that a
pattern of racial discrimination has been shown where she has
to give a race neutral reason.
¶109. Later during voir dire, Dr. Kronfol argued that Johnson’s counsel was excusing only
Caucasian jurors:
[Counsel for Johnson]: Plaintiff would move to strike . . . Juror Number
26.
[Counsel for Dr. Kronfol]: Okay. Judge, that’s another white female, Judge.
[Counsel for Johnson]: White male.
[Counsel for Dr. Kronfol]: White male, I mean. The reason she didn’t get all
white [strikes] is because there’s not enough
[white veniremen] on the panel to do until she got
there.
[Counsel for Johnson]: No. The reason I didn’t do all white is because I
didn’t need to strike more.
¶110. In Lewis, 239 So. 3d at 1100 (¶10), “the State had only struck two jurors, [both
African-American females,] at the time of the defense’s Batson challenge.” The trial court
denied the defense’s Batson challenge after finding that the defense failed to make a prima
50
facie case establishing that the State was discriminating against members of a minority. Id.
at 1100 (¶8). On appeal, this Court affirmed the trial court’s denial of the defense’s Batson
challenge and held that “[t]he State’s striking of two African–American females did not show
a ‘pattern’ of discrimination.” Id. at (¶10).
¶111. After our review, we find nothing in the record to indicate that the trial court’s denial
of Dr. Kronfol’s Batson challenge was “clearly erroneous or against the overwhelming
weight of the evidence.” Allen, 235 So. 3d at 171 (¶7). We therefore affirm.
XV. Sufficiency of the Evidence
¶112. A “trial court may grant a directed verdict for the defendant at the close of the
plaintiff’s case if, in the opinion of the court, the plaintiff has failed to present credible
evidence establishing the necessary elements of his or her right to recover.” Partain v.
Sta-Home Health Agency of Jackson Inc., 904 So. 2d 1112, 1116 (¶7) (Miss. Ct. App. 2004).
In determining whether a trial court erred in granting a motion for a directed verdict, “this
Court must view the evidence in the same light as the trial court.” Id. at (¶6). We review of
a trial court’s grant or denial of a motion for a directed verdict de novo. Entergy Miss., Inc.
v. Bolden, 854 So. 2d 1051, 1055 (Miss. 2003).
¶113. “A motion for JNOV is a challenge to the legal sufficiency of the evidence.” Adcock
v. Miss. Transp. Comm’n, 981 So. 2d 942, 948 (¶25) (Miss. 2008). This Court will affirm
a trial court’s denial of a motion for JNOV “if there is substantial evidence to support the
verdict.” Id. The supreme court has explained that “[i]n deciding a motion for [a JNOV],
the trial court must consider the evidence in the light most favorable to the non-moving party,
51
giving that party the benefit of all favorable inferences that reasonably may be drawn
therefrom.” Solanki v. Ervin, 21 So. 3d 552, 565 (¶35) (Miss. 2009) (citing Corley v. Evans,
835 So. 2d 30, 36 (¶17) (Miss. 2003)). In addition, “[t]he trial court should consider the
evidence offered by the non-moving party and any uncontradicted evidence offered by the
moving party.” Id. If the evidence sufficiently supports a verdict for the non-moving party,
the trial court must deny the motion for a JNOV. Id.
¶114. At the close of Johnson’s case, Dr. Kronfol moved for a directed verdict, which the
trial court denied.13 Dr. Kronfol argues that Johnson failed to prove her claim for
malpractice; as a result, he is entitled to a directed verdict or JNOV. Dr. Kronfol maintains
that the evidence presented by Johnson regarding causation was legally insufficient to
support a jury verdict. Both Dr. Kronfol and Dr. Davis testified at trial that there is no way
to determine the source of Johnson’s infection. Furthermore, Dr. Kronfol testified that he
never handled Johnson’s catheter access issues. At trial, Johnson admitted that Dr. Lucas and
Dr. Russell handled her catheter access issues. Johnson’s deposition testimony also reflects
13
The supreme court has stated that “[t]o preserve the issue of denial of a directed
verdict, the defense must move for directed verdict at the close of the State’s case-in-chief.
Page v. State, 990 So. 2d 760, 762 (¶9) (Miss. 2008). “If a motion for directed verdict is
denied and the defendant introduces evidence on his own behalf, the defendant must renew
his motion for directed verdict at the close of all evidence. Id. “In the absence of a renewal
of the directed verdict, a request for a peremptory instruction, or a motion for a judgment
notwithstanding the verdict, a defendant has waived the sufficiency error on appeal.” Woods
v. State, 242 So. 3d 47, 54 (¶26) (Miss. 2018) (quoting Holland v. State, 656 So. 2d 1192,
1197 (Miss. 1995)). In the present case, the record reflects that Dr. Kronfol’s counsel
moved for a directed verdict at the close of Johnson’s case-in-chief, and the trial court
denied this motion. Dr. Kronfol then presented evidence on his own behalf. At the
conclusion of all evidence, Dr. Kronfol failed to renew his motion for directed verdict. Dr.
Kronfol did, however, timely file his motion for a JNOV.
52
that she believed that because Dr. Russell placed the temporary catheter in her neck, it was
his responsibility to remove it. Johnson admitted at trial that she failed to attend her follow-
up appointment with Dr. Russell on April 23, 2013, nearly two weeks before her ER visit on
May 6, 2013.
¶115. Johnson maintains, however, that during her case-in-chief, she presented sufficient
proof of the required elements to show a prima facie case of medical negligence. A plaintiff
must set forth the following elements in order to make a prima facie case of medical
malpractice:
[T]he existence of a duty on the part of the physician to conform to the specific
standard of conduct, the applicable standard of care, the failure to perform to
that standard, that the breach of duty by the physician was the proximate cause
of the plaintiff’s injury, and that damages to plaintiff have resulted.
Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (¶9) (Miss. 2009).
¶116. In reviewing the testimony and evidence, the record reflects that at trial, Dr. Gutierrez
opined that based on the 2006 guidelines, Johnson’s temporary catheters should have only
been used for seven days, instead of the twenty-five days her temporary catheter actually
remained in. Dr. Gutierrez testified that the temporary catheter caused Johnson’s infection
and sepsis. Dr. Gutierrez explained that he formed this opinion based on Johnson’s medical
records from “the admitting physician, the tests that were done during the course of the
hospitalization, and the infectious disease specialist who saw and examined [Johnson] and
determined that that was the cause of the infection.” Dr. Gutierrez further testified that
nothing in Johnson’s medical records indicated that the infection was caused by the declot
procedures performed on Johnson on April 12, 2013, and April 16, 2013, or the fistulogram
53
procedure performed on April 16, 2013, or even the creation of the new fistula on April 30,
2013.
¶117. Dr. Buenafe also testified that when Johnson presented to the ER on May 6, 2013, he
observed that her neck “had some gauze dressing on it, if I remember correctly, which was
really dirty. The pus had seeped through the dressing. I can’t remember the exact color, but
it was probably brownish to yellow, something like that. It just struck me as being horribly
dirty.” Dr. Buenafe then removed the dressing from Johnson’s neck and realized that she had
a temporary catheter in her neck. Dr. Buenafe explained that a temporary catheter places a
patient at a very high risk for having an infection. Dr. Buenafe testified that he immediately
removed the catheter and put in a new permanent catheter. When Johnson’s counsel asked
if Dr. Buenafe was able to determine the course of Johnson’s MRSA infection, he answered,
“Presumably, the catheter. It was what we would call, I think, the most proximate cause.”
Dr. Buenafe admitted that he did not look into other possible causes of Johnson’s MRSA
infection.
¶118. Dr. Davis, Dr. Kronfol’s expert witness, testified that it was within the standard of
care, and an acceptable medical practice, to leave Johnson’s temporary catheter in her neck
until her fistula matured. Dr. Davis also provided the following testimony regarding the
length of time a temporary catheter may be left in:
There are a lot of people who have temporary catheters who are awaiting the
maturation of a fistula, and I think there is one paper that states that in the
United States you have somewhere in the range of 45 to 48 percent of people
who are awaiting have a temporary catheter. In Europe, the percentage is
much higher, and in fact, in Europe, there have been some studies where
temporary catheters have been left in for three to four months and the results
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have been . . . reasonably good.
¶119. Dr. Davis also disagreed with Dr. Gutierrez’s opinion that the 2006 guidelines set
forth the standard of care for temporary catheters. Dr. Davis explained that “[a] guideline
is not a standard of care. A guideline is not a rule. A guideline is a suggestion or a
recommended way of doing things. A guideline does not overrule the discretion of a
physician who is there with the patient at a particular time.” Dr. Davis opined that Dr.
Kronfol, as well as Dr. Lucas and Dr. Russell, complied with the standard of care in their
treatment of Johnson because Johnson “had a functioning vascular access.” Dr. Davis stated
that another choice would have been to remove Johnson’s catheter and replace it with another
type of catheter, but he cautioned that “infection is a risk with either type of catheter that you
place.”
¶120. Regarding Johnson’s MRSA infection and sepsis, Dr. Davis explained that “any time
that you do anything that breaks the skin, there is a risk of infection.” He also stated that
“[b]acteria like MRSA tend to be in hospitals.” Dr. Davis testified that there is a risk of
infection “every time somebody goes to dialysis . . . [or] has a catheter placed . . . [or has] any
type of procedure is done where the skin is broken.” Dr. Davis testified that the IM
injections Johnson received on May 2, 2013, after complaining of lower back pain caused
by a displacement of her lumbar intervertebral disc, could also have potentially caused her
infection.
¶121. Dr. Kronfol testified that he did not handle Johnson’s catheter access issues. During
cross-examination, Johnson’s counsel asked Dr. Kronfol about Johnson’s April 12, 2013
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discharge instructions from Dr. Russell regarding the placement of her temporary catheter.
Specifically, Johnson’s counsel asked about the instruction for Johnson to follow up with her
primary physician. Dr. Kronfol explained that although he is Johnson’s primary
nephrologist,
[i]t is possible that Dr. Russell intended for that to be myself or it could have
been a primary physician like a family practice doctor or an internist. . . . I
cannot read his mind beyond what’s written. He didn’t say follow up with Dr.
Kronfol. He could have said follow up with Dr. Kronfol. He didn’t say that.
¶122. Additionally, as stated, Johnson’s attorney asked Dr. Lucas at trial whether he and Dr.
Kronfol had an understanding “regarding who was to manage . . . Johnson’s catheter.” Dr.
Lucas responded “no,” and he testified that he does not manage hemodialysis catheters. Dr.
Lucas testified during cross-examination that from 2007 through 2013, he provided treatment
for Johnson regarding her access issues. Dr. Lucas testified that he disagreed with the
statements in the 2006 guidelines mandating that it is “improper to discharge a patient with
a temporary catheter on.” Dr. Lucas stated that he disagreed with the 2006 guidelines with
regard to “what constitutes long term.” When asked if he would criticize the decision of the
radiologist or nephrologist who decided to leave in a temporary catheter until maturation of
a fistula, as long as the temporary catheter was working, Dr. Lucas responded, “If that was
in a reasonable time frame, which I would say would be a month to six weeks, I think that
would be okay.”
¶123. After our review, we find that the record contained substantial evidence to support the
jury’s verdict in favor of Johnson. We therefore affirm the trial court’s denial of Dr.
Kronfol’s motion for directed verdict and for JNOV.
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XVI. Weight of the Evidence
¶124. Finally, Dr. Kronfol argues that the trial court erred in denying his motion for a new
trial. Dr. Kronfol asserts that the overwhelming weight of the evidence presented at trial
showed that the source of Johnson’s infection could not be identified, and also showed that
Dr. Kronfol was not responsible for Johnson’s catheter care.
¶125. “The standard of review on a motion for a new trial is abuse of discretion.” Miss.
Transp. Comm’n v. United Assets LLC, 188 So. 3d 508, 514 (¶25) (Miss. 2016). A motion
for a new trial examines “[t]he weight of the evidence, rather than the legal sufficiency.” Id.We “will only disturb a verdict when it is so contrary to the overwhelming weight of the
evidence that to allow it to stand would sanction an unconscionable injustice.’” Id. To
warrant the reverse of the verdict and a new trial, the defendant must show that the verdict
is “contrary to the substantial weight of the evidence.” Johnson v. St. Dominics-Jackson
Mem’l Hosp., 967 So. 2d 20, 23 (¶10) (Miss. 2007). A lesser showing by the defendant is
required for a new trial than that necessary to grant a motion for JNOV. James v. Mabus, 574
So. 2d 596, 601 (Miss. 1990).
¶126. A new trial may also be granted “when the jury has been confused by faulty
instructions, or when the jury has departed from its oath and its verdict is a result of bias,
passion, and prejudice.” Dependable Abrasives Inc. v. Pierce, 156 So. 3d 891, 895 (¶12)
(Miss. 2015) (quotation omitted). We recognize that “[a] jury’s verdict is given great
deference by this Court, and conflicts of evidence presented at trial are to be resolved by the
jury.” Johnson, 967 So. 2d at 23 (¶10) (internal quotation mark omitted) (quoting Lift-All
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Co. Inc. v. Warner, 943 So. 2d 12, 16 (¶11) (Miss. 2006)). A jury is “free to accept or reject
any or all of the testimony and evidence presented.” Johnson, 967 So. 2d at 23 (¶11).
¶127. In the present case, the jury chose to accept the testimony presented at trial that
supported a verdict for Johnson. After reviewing the evidence, we cannot say that the
overwhelming weight of the evidence is contrary to the jury’s verdict. See id. We therefore
find no abuse of discretion by the trial judge in denying Dr. Kronfol’s motion for a new trial.
A reversal of the judgment denying Johnson’s motion for a new trial is not warranted.
¶128. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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