                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2008-IA-01563-SCT

CHARLES BURNWATT AND DEBRA
BURNWATT, AS PARENTS AND WRONGFUL
DEATH BENEFICIARIES OF WILLIAM
ALEXANDER BURNWATT, DECEASED, ON
BEHALF OF THEMSELVES AND ALL OTHER
WRONGFUL DEATH BENEFICIARIES OF
WILLIAM ALEXANDER BURNWATT,
DECEASED

v.

EAR, NOSE & THROAT CONSULTANTS OF
NORTH MISSISSIPPI, PLLC AND JOHN F.
LAURENZO, M.D.


DATE OF JUDGMENT:               08/28/2008
TRIAL JUDGE:                    HON. ROBERT WILLIAM ELLIOTT
COURT FROM WHICH APPEALED:      LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:       CYNTHIA MITCHELL
                                JOHN H. COCKE
                                CHARLES M. MERKEL, III
ATTORNEYS FOR APPELLEES         SHELBY KIRK MILAM
                                S. DUKE GOZA
                                DION JEFFERY SHANLEY
NATURE OF THE CASE:             CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                    AFFIRMED AND REMANDED - 09/16/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     EN BANC.

     CHANDLER, JUSTICE, FOR THE COURT:
¶1.    This case is before the Court on interlocutory appeal. After a mistrial and prior to a

retrial on the matter, the trial court denied the Burnwatts’ renewed motion to exclude an

expert witness’s testimony. Following that decision, the Burnwatts petitioned this Court for

an interlocutory appeal.

¶2.    On July 28, 2001, Alex Burnwatt (Alex) had a tonsillectomy at Baptist Memorial

Hospital-North Mississippi (BMH-NM). At the time of the procedure, Alex was nine years

old. Dr. John F. Laurenzo performed the tonsillectomy. On August 2, 2001, Alex returned

to the hospital due to dehydration and died at the hospital the same day.

¶3.    On May 8, 2002, Charles Burnwatt and Debra Burnwatt (the Burnwatts), as parents

and wrongful-death beneficiaries of William Alexander Burnwatt, deceased, on behalf of

themselves and all other wrongful-death beneficiaries of William Alexander Burnwatt,

deceased, filed suit against BMH-NM; Ear, Nose & Throat Consultants of North Mississippi,

PLLC (ENT Consultants); and Dr. Laurenzo in the Circuit Court of Lafayette County,

Mississippi. The complaint alleged that the defendants were negligent in the manner in

which the surgery was performed, in failing to require Alex to have further examinations, in

failing to stop Alex’s bleeding, and in failing to exercise appropriate care. The complaint

alleged that Dr. Laurenzo was an agent and employee of ENT Consultants and, as such, ENT

Consultants was liable under a theory of respondeat superior. Dr. Laurenzo and ENT

Consultants filed a joint answer and affirmative defenses. BMH-NM filed a motion to

dismiss for failure to state a claim, or, in the alternative, a motion for a more definite

statement. Thereafter, Dr. Laurenzo and ENT Consultants filed a motion for summary

judgment or, in the alternative, a motion for a protective order.


                                              2
¶4.    On October 3, 2002, the Burnwatts filed an amended complaint. The amended

complaint included the previous allegations and included more specific allegations of

negligence against BMH-NM. After a hearing, the trial court denied BMH-NM’s motion to

dismiss, granted BMH-NM’s motion for a more definite statement, and ordered the

Burnwatts to file an amended complaint with a more definite statement. The trial court also

denied Dr. Laurenzo’s and ENT Consultants’ motion for summary judgment and denied their

motion for protective order. Dr. Laurenzo and ENT Consultants filed a joint answer and

affirmative defenses to the amended complaint, and BMH-NM filed a separate answer and

affirmative defenses.

¶5.    The case was set for trial on August 15, 2005. Prior to trial, BMH-NM filed a motion

for summary judgment, asserting that no prima facie case had been established, because no

expert witness had been designated to testify on the elements of medical negligence. In June

2005, the trial court granted summary judgment in favor of BMH-NM and dismissed it from

the lawsuit. The order stated in part:

       At the hearing on this matter, both counsel for the Plaintiff and counsel for the
       co-Defendants, John Laurenzo, M.D. and the Mississippi Ear, Nose &Throat
       Consultants of North Mississippi, P.L.L.C., declared that no expert testimony
       is anticipated from either of these parties, which testimony is critical of Baptist
       Memorial Hospital-North Mississippi or of the care rendered by the Hospital’s
       nursing staff and/or employees.

       ...

       The Court finds that if, as the Plaintiff’s counsel has acknowledged, there is
       no proof that Baptist Memorial Hospital-North Mississippi has committed a
       negligent act or omission, Baptist Memorial Hospital-North Mississippi is
       entitled to summary judgment. Furthermore, Plaintiff’s counsel has advised
       the Court that unless Dr. Laurenzo intends to “point the finger” at Baptist



                                               3
       Memorial Hospital-North Mississippi personnel in any respect, the Plaintiff
       confesses the motion for summary judgment.

The dismissal was a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b).

No appeal was taken from the decision.

¶6.    Subsequently, the Burnwatts filed a motion for relief from the order and judgment

dismissing BMH-NM because Dr. Laurenzo and ENT Consultants later filed a designation

of expert witness, Dr. Keith Mansel. This designation of expert witness was filed after the

June 2005 trial-court order granting summary judgment and dismissal to BMH-NM. Dr.

Laurenzo’s expert witness, Dr. Mansel, was to testify that the treatment provided to Alex by

Dr. Laurenzo and ENT Consultants had been within the standard of care, that Alex’s

bleeding was not consistent with exsanguination (loss of blood) being the cause of death, and

that Alex’s death had been caused by resuscitation efforts.

¶7.    The Burnwatts also filed an alternate motion to exclude the expert testimony of Dr.

Mansel and a motion in limine to prevent Dr. Laurenzo and ENT Consultants from any

attempt to place blame, either directly or indirectly, on any BMH-NM employee. Later, the

Burnwatts filed a motion for partial summary judgment on the issue of apportionment of fault

to BMH-NM. The Burnwatts’ motion sought to block any attempt by Dr. Laurenzo and ENT

Consultants to place any blame or fault on BMH-NM for Alex’s death.

¶8.    In June 2007, the trial court granted partial summary judgment in favor of the

Burnwatts. The trial court found that, at the time of the grant of summary judgment and

dismissal of BMH-NM from the suit, no genuine issue of material fact existed as to any

blame or fault by the hospital. Therefore, the trial court determined, in part, that “Dr.



                                             4
Laurenzo and ENT Consultants should not now be permitted to place blame or apportion

fault on a co-defendant which the Court had previously adjudicated not to be at fault and

accordingly dismissed with prejudice from this law suit.” Notwithstanding the grant of

partial summary judgment in the Burnwatts’ favor, the trial court also held that “[h]owever,

this opinion should not be construed as to prevent the Defendants Laurenzo and ENT

Consultants from presenting their theory of the case[,]” citing Eckman v. Moore, 876 So. 2d

975 (Miss. 2004).

¶9.    By separate order in June 2007, the trial court denied the Burnwatts’ motion for relief

from the order and dismissal of BMH-NM from the lawsuit. The trial court determined that

relief could not be granted pursuant to Mississippi Rule of Civil Procedure 60(b)(1), (3), or

(6). Further, and in consideration of the trial court’s grant of partial summary judgment in

favor of the Burnwatts on the issue of Dr. Laurenzo’s and ENT Consultants’ inability to

place blame or fault on BMH-NM, the trial court determined the issue to be moot.

¶10.   The case went to trial on June 4, 2007. Dr. Mansel testified on behalf of Dr. Laurenzo

and ENT Consultants. The jury received instructions which included the statement that none

of the actions of the employees of BMH-NM had contributed to the death of Alex. The jury




                                              5
also was instructed on Dr. Laurenzo’s and ENT Consultants’ theory of the case.1 When the

jury was unable to reach a verdict, the trial court declared a mistrial.

¶11.   Following the mistrial, the trial court set a new trial date, by agreed order, for

September 2, 2008. In May 2008, the Burnwatts filed a renewed motion to exclude the

testimony of Dr. Mansel. The trial court denied the Burnwatts’ motion. Following this

decision, the Burnwatts petitioned this Court for interlocutory appeal. This Court accepted

the petition, and the Burnwatts appeal the trial court’s denial of their motion to exclude the

testimony of Dr. Mansel. Finding no error, this Court affirms the Circuit Court of Lafayette

County.

                                           FACTS

¶12.   Alex Burnwatt was nine years old in 2001. He had been having a number of

infections in his tonsils. His parents brought him to see Dr. Laurenzo in the summer of 2001.

After an examination, Dr. Laurenzo recommended that Alex have a tonsillectomy. Alex had

the tonsillectomy on July 28, 2001. After the surgery had been completed, Alex’s parents,

Debra and Charles, visited him in the recovery area. As soon as Alex saw his parents, he




       1
           This jury instruction was as follows:

       You are instructed that the defendant Dr. John F. Laurenzo, contends that he
       acted within the standard of care required in his treatment of William
       Alexander Burnwatt and that the treatment Dr. Lorenzo [sic] rendered in no
       way contributed to his death. You are instructed that Defendant contends that
       William Alexander Burnwatt’s death occurred during resuscitation attempts.
       Defendant contends that his treatment of William Alexander Burnwatt in no
       way breached the standard of care, that Dr. Lorenzo [sic] properly performed
       the tonsillectomy on Alex Burnwatt on 7/28/2001 and that Alex Burnwatt did
       not bleed to death.

                                               6
started to complain to his parents and to hold his throat because it hurt him. Alex spit up

prior to his discharge from the facility. However, the medical staff told his parents that Alex

was fine.

¶13.   When Alex arrived home, he refused anything to eat or drink. Alex stated that he did

not feel well and that his throat hurt him. Each time Alex’s parents gave him something to

eat or drink, Alex would vomit. On most occasions, Alex vomited the food or drink as soon

as he ingested it.

¶14.   A few days after surgery, Alex’s mother, Debra, called Dr. Laurenzo’s office and

reported Alex’s condition. Alex received a prescription for Phenergan to help his vomiting.

However, the medication did not help Alex. Two days later, Alex’s mother called Dr.

Laurenzo’s office again. Debra told the staff that Alex continued to throw up and could not

keep down any food. Dr. Laurenzo’s staff recommended that Debra take Alex to the

emergency room.

¶15.   Alex was admitted to the emergency room at BMH-NM. Hospital staff brought Alex

to a room and checked his vital signs. Alex coughed as he went to a bed, and blood began

to pour out of his mouth. He ran to the sink and vomited blood into the sink. Then, he ran

from the bathroom and vomited blood into a trash can. Alex fell onto the bed, and a nurse

called for a code. Medical staff entered the room and removed Debra to the next room.

¶16.   Hospital personnel attempted to resuscitate Alex over a period of time. An attending

physician removed a large clot from Alex’s throat in an attempt to open his airway.

Unfortunately, Alex did not survive. Later, Dr. Bradford Dye informed Debra and Charles

that Alex had died.


                                              7
                                          DISCUSSION

¶17.      The standard of review for a trial court’s decision either to admit or exclude evidence

is abuse of discretion. Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000); Robinson Prop.

Group, L.P. v. Mitchell, 7 So. 3d 240, 243 (Miss. 2009); Beverly Enters., Inc. v. Reed, 961

So. 2d 40, 44 (Miss. 2007). Unless a substantial right of a party is adversely affected, the

appellate courts will not reverse a ruling to admit or exclude evidence. Whitten, 799 So. 2d

at 13; Mitchell, 7 So. 3d at 243.

¶18.      The standard of review for the admission or exclusion of expert testimony is the same

as for other evidence, an abuse of discretion. Poole ex rel. Wrongful Death Beneficiaries

of Poole v. Avara, 908 So. 2d 716, 721 (Miss. 2005) (citing Miss. Transp. Comm'n v.

McLemore, 863 So. 2d 31, 34 (Miss. 2003)). See also Investor Res. Servs., Inc. v. Cato, 15

So. 3d 412, 416 (Miss. 2009); Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946 (Miss.

2008). Mississippi Rule of Evidence 702 specifically concerns expert testimony. Rule 702

states:

          If scientific, technical, or other specialized knowledge will assist the trier of
          fact to understand the evidence or to determine a fact in issue, a witness
          qualified as an expert by knowledge, skill, experience, training, or education,
          may testify thereto in the form of an opinion or otherwise, if (1) the testimony
          is based upon sufficient facts or data, (2) the testimony is the product of
          reliable principles and methods, and (3) the witness has applied the principles
          and methods reliably to the facts of the case.

Miss. R. Evid. 702. In McLemore, this Court adopted a test stated in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and

modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d

238 (1999). McLemore, 863 So. 2d at 35. Under Rule 702, expert testimony is admissible

                                                 8
if it is both relevant and reliable. Id. at 38. The trial judge is considered the gatekeeper and

determines the value of the expert testimony. Cato, 15 So. 3d at 416. As the gatekeeper, the

trial court ensures that any expert testimony must be relevant and reliable. Poole, 908 So.

2d at 723.

¶19.     Mississippi Rules of Evidence 401 and 403 govern what evidence is relevant and

when relevant evidence is more probative than prejudicial. Rule 401 states:

         “Relevant Evidence” means evidence having any tendency to make the
         existence of any fact that is of consequence to the determination of the action
         more probable or less probable than it would be without the evidence.

¶20.     Mississippi Rule of Evidence 403 states:

         Although relevant, evidence may be excluded if its probative value is
         substantially outweighed by the danger of unfair prejudice, confusion of the
         issues, or misleading the jury, or by considerations of undue delay, waste of
         time, or needless presentation of cumulative evidence.

¶21.     The threshold for admissibility of evidence is not high, and Rule 401 favors the

admission of evidence when it has probative value to the case. Cato, 15 So. 3d at 417 (citing

McLemore, 863 So. 2d at 40).

¶22.     The parties in this case do not challenge the expert witness’s qualifications or

expertise to testify as an expert. Instead, the parties challenge whether the trial court should

have admitted the testimony of Dr. Mansel concerning his opinion on the cause of Alex’s

death.

¶23.     The Burnwatts’ theory of the case was that Alex died as a result of Dr. Laurenzo’s

negligence in cutting too deeply into the tonsillar bed, resulting in Alex’s exsanguination

(blood loss) at the hospital. Dr. Laurenzo’s and ENT Consultants’ theory of the case was that



                                               9
Alex died as a result of a pneumothorax (air around the lung that causes the lungs to collapse)

during resuscitation efforts.

¶24.   The Burnwatts argue that Dr. Mansel’s testimony is an attempt by Dr. Laurenzo and

ENT Consultants to show causation and to place blame on BMH-NM for Alex’s death. The

Burnwatts further contend that the trial court erroneously admitted this testimony because

the order granting summary judgment and dismissing BMH-NM from the suit was premised,

in part, on the parties not placing any blame on BMH-NM for Alex’s death, which occurred

at the hospital. The Burnwatts contend that Dr. Laurenzo and ENT Consultants are estopped

from now asserting that the resuscitation efforts of BMH-NM personnel caused Alex’s death.

Relying on Medlin v. Hazlehurst Emergency Physicians, 889 So. 2d 496 (Miss. 2004), the

Burnwatts further assert that Dr. Mansel’s testimony that Alex’s death was a result of

resuscitation efforts was irrelevant, confusing, and prejudicial to their case, based on the

theory that a tortfeasor is liable for reasonably foreseeable consequences of his or her

actions.2

¶25.   On the other hand, Dr. Laurenzo and ENT Consultants argue that Dr. Mansel’s

testimony is admissible to show their theory of the case.          As previously noted, Dr.

Laurenzo’s and ENT Consultants’ theory of the case was that Alex died as a result of a

pneumothorax in the course of resuscitation efforts.

       1.     Prior trial-court orders



       2
        The Burnwatts’ reliance on this case is misplaced. Medlin concerned whether there
was payment and satisfaction of damages. Medlin, 889 So. 2d at 499. While the
Restatement of Torts Section 457 was mentioned in the opinion, this Court stated that “this
Court has never specifically applied the Restatement (Second) of Torts § 457.” Id. at 500.

                                              10
¶26.   The Burnwatts argue that the designation of Dr. Mansel as an expert witness directly

contradicts the June 2005 order granting summary judgment and dismissal of BMH-NM.

Indeed, the trial court found no genuine issue of material fact that placed any blame or

apportionment of fault on BMH-NM. In a later order granting partial summary judgment to

the Burnwatts on the issue of apportionment of fault to BMH-NM, the trial court found that

Dr. Laurenzo and ENT Consultants could not place blame or allocate fault to BMH-NM.

The trial court reviewed the testimony of Dr. Laurenzo; Dr. Mansel; Dr. Deborah Burton, the

Burnwatts’ expert witness; and Dr. Stephen Hayne, the pathologist who conducted the

autopsy, in reaching its decision. The order stated:

       There is no genuine issue of material fact that the dismissed Defendant BMH-
       NM or its employees were negligent or that their actions proximately caused
       or contributed to the Plaintiffs’ damages and that the Defendants Laurenzo and
       ENT Consultants should not be permitted to place blame or allocate fault to
       BMH-NM or its employees. Consequently, the Plaintiffs are entitled to a
       Partial Summary Judgment as a matter of law.

However, the trial court also ordered that “this order should not be construed as to prevent

the Defendants from presenting their theory of the case.”

¶27.   Indeed, in Eckman v. Moore, 876 So. 2d 975 (Miss. 2004), this Court held that a

defendant is entitled to jury instructions on his or her theory of the case. Eckman, 876 So.

2d at 979. In Eckman, the defendant’s theory of the case was that the failure of nursing staff

to meet the standard of care was a superceding cause of the patient’s injuries and death. Id.

at 980. The trial court denied Eckman’s instruction on this issue notwithstanding evidence

presented by both parties of nursing negligence. Id. at 982. This Court found reversible

error and reversed and remanded the case for a new trial. Id. at 989-90.



                                             11
¶28.   While the trial court relied on Eckman for authority, Mississippi Rule of Evidence

702 generally provides for testimony of an expert. The expert’s specialized knowledge is

permitted when it “will assist the trier of fact to understand the evidence or to determine a

fact in issue.” Miss. R. Evid. 702. The expert may provide an opinion provided that “(1) the

testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the principles and methods reliably

to the facts of the case.” Miss. R. Evid. 702. Therefore, Dr. Mansel’s testimony, which

supports Dr. Laurenzo’s theory of the case that Alex died as a result of resuscitation efforts,

also may be viewed as simply expert opinion testimony.

       2.     Dr. Mansel’s expert opinion and whether it placed blame/fault on BMH-
              NM

¶29.   Dr. Mansel, a pulmonary and critical-care physician, testified at trial concerning the

cause of Alex’s death, relying on Alex’s medical records. In his testimony Dr. Mansel stated

that Alex was dehydrated when he came to the hospital. Alex coughed and dislodged a scab,

causing him to bleed. The clot was removed, and the hospital personnel began to give Alex

oxygen. Dr. Mansel stated that Alex had a pulse, however, it was lost, and hospital personnel

began cardiopulmonary resuscitation (CPR), or chest compressions. An employee attempted

to place an intravenous line in Alex’s subclavian vein, located under the collar bone. After

several attempts, an IV was placed in Alex, however, his neck began to swell. Another IV

was placed near his groin.      Dr. Mansel opined that the guide wire for the IV, not

uncommonly, was not placed in the correct location. Dr. Mansel stated:

       [I]n two to five percent of people you will get what is called a pneumothorax
       so that you pierce part of the lung and if you do enough of these as I have it’s

                                              12
       just going to happen. That is despite your best attempt. We just know that it’s
       going to happen because peoples [sic] anatomy are different. But when that
       happens and that it’s like a balloon having a little leak, that air is going to leak
       out of the lungs.

He stated that both of Alex’s lungs collapsed. Dr. Mansel stated that Alex had bilateral

pneumothoraces, as evidenced by an x-ray report. He also stated that Alex had experienced

a tension pneumothorax on his left side. Ultimately, Dr. Mansel stated that Alex did not die

from exsanguination. He stated that “This was a blood clot that got dislodged that got in

[Alex’s] airway and blood oxygen got low, series of things happened. These lungs collapsed

and he died but not from an artery being severed or some below the standard of care or

exsanguination.”

¶30.   In contrast, Dr. Burton, expert witness for the Burnwatts, testified that Dr. Laurenzo

had deviated from the standard of care. She stated that, during the tonsillectomy, the surgical

plane went too deeply into Alex’s muscle in the right tonsil. In Dr. Burton’s opinion, this

dissection injured deeper blood vessels than normal.

¶31.   We find that the trial court did not err by denying the Burnwatts’ renewed motion to

exclude expert witness testimony from Dr. Mansel. The trial court carefully monitored the

proposed and actual testimony and opinions rendered by Dr. Mansel at all stages of the

litigation. Dr. Mansel’s testimony was within the limitations set by the trial court in its

rulings and passed muster pursuant to Rules 401 and 403.

¶32.   While the trial court granted summary judgment and dismissal to BMH-NM, it

considered that neither party had an expert who would provide testimony critical of the care

of BMH-NM or its staff. In addition, the trial court considered Dr. Laurenzo’s deposition



                                               13
testimony in which Dr. Laurenzo stated that he had no criticism of the resuscitation efforts

by BMH-NM, and that BMH-NM staff had done everything possible to save Alex. The trial

court also considered the Burnwatts’ acknowledgment that BMH-NM had not committed any

negligent act or omission. The order specified that the Burnwatts premised their confession

of the motion for summary judgment on Dr. Laurenzo’s representation to the court that he

would not “point the finger” at BMH-NM.

¶33.   However, in the later order granting partial summary judgment to the Burnwatts on

the issue of apportionment of fault, the trial court expressly stated that the grant of partial

summary judgment should not be interpreted to mean that Dr. Laurenzo and ENT

Consultants were prohibited from presenting their theory of the case. Indeed, the trial court

reviewed the deposition testimony from all the expert witnesses, including Dr. Mansel. With

regard to Dr. Mansel’s deposition testimony, the trial court determined that his testimony

“opine[d] that William [Alex] Burnwatt in all probability died from a bilateral pneumothorax

and an [occluded] airway and not from bleeding.” In addition, the trial court determined that

“Dr. Mansel had no criticism of any employee of BMH-NM. Dr. Mansel agrees that

everything was done correctly by the hospital staff.” While the trial court’s main focus was

the issue of apportionment of fault, the order nevertheless demonstrated that the trial court

reviewed Dr. Mansel’s testimony, and, that the testimony placed no blame on BMH-NM.

¶34.   Similar to the deposition testimony, Dr. Mansel’s trial testimony placed no blame on

BMH-NM. As previously quoted, Dr. Mansel stated that, due to varying human anatomy in

a certain percentage of patients, the placement of the guide wire for the IV may fail in some

patients.


                                              14
¶35.   In its August 29, 2008, order denying the Burnwatts’ renewed motion to exclude the

testimony of Dr. Mansel, the trial court reviewed the expert witnesses’ testimony provided

at trial. Based on that testimony, the trial court determined, pursuant to Mississippi Rules

of Evidence 401, that Dr. Mansel’s testimony was relevant.3 The testimony also met the

balancing test of Rule 403, which states:

       Although, relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

In its analysis, the trial court thoroughly considered the testimony presented at trial and

whether it met the balancing test of Rules 401 and 403. The trial court stated:

               Plaintiff’s expert, Dr. Deborah Burton, opines that Dr. Laurenzo
       breached the standard of care when he performed a tonsillectomy on Alex
       Burnwatt by operating below the normal surgical plane and injuring the deeper
       blood vessels that are not typically injured during surgery. She further
       testified that the autopsy report indicates that there was a tear or laceration in
       the main jugular vein which would normally be encountered during the
       tonsillectomy. Dr. Burton also indicated that the injury to the jugular vein is
       an indication that Dr. Laurenzo operated below the normal plane. It is Dr.
       Burton’s opinion that Alex Burnwatt died from a severe loss of blood.

              The autopsy report of Dr. Steven Hayne, an expert Pathologist,
       indicated that the right jugular vein had a laceration which was caused by the
       IV guide wire, pressure from IV fluids, or a surgical tool (tonsillectomy). Dr.
       Hayne’s autopsy report states that Alex Burnwatt’s organs were pale which
       indicates a significant loss of blood. According to Dr. Hayne, the loss of blood
       (exsanguination) was a contributing cause of Alex Burnwatt’s death.

               Defendant’s expert, Dr. Keith Mansel, was allowed to testify at trial.
       It was Dr. Mansel’s opinion that Alex Burnwatt did not suffer from a severe
       loss of blood; the IV guide wire inserted during the code caused the tear in the
       internal jugular vein; and that Alex Burnwatt died not from loss of blood

       3
        The order does not cite Rule 401 or 403, however, it is evident that the trial court
considered those rules.

                                              15
       (exsanguination), but from a blood clot which dislodged and blocked his
       airway resulting in collapsed lungs.

              The loss of blood suffered by Alex Burnwatt is a relevant factor in this
       matter. A jury could infer that if Alex Burnwatt bled to death, Dr. Laurenzo
       operated below the plane injuring major blood vessels.

               Dr. Mansel’s testimony as to the amount of blood lost, the cause of the
       injury to the jugular vein, and the cause of death of Alex Burnwatt is relevant
       as to whether or not Dr. Laurenzo operated below the surgical plane.

               It is the opinion of the Court that Dr. Mansel’s testimony is relevant and
       reliable and would assist the trier of fact.

              The jury was instructed at the June 2007 trial that no actions of
       omissions or commission by any employee of BMH-NM during or after the
       code caused or contributed in any way to the death of Alex Burnwatt or the
       Plaintiffs’ damages.

              The probative value of Dr. Mansel’s testimony substantially outweighs
       the danger of confusion of the issues or misleading the jury.

              The Plaintiffs’ renewed motion to exclude the testimony of Dr. Mansel
       is not well taken and should be denied.

¶36.   This Court has held that parties have a right to their theory of the case. Eckman, 876

So. 2d at 979.4 This case concerns whether Dr. Laurenzo’s actions or omissions fell below

the standard of care. As such, Dr. Laurenzo and ENT Consultants have the right to present

their theory of the events that led to Alex’s death by way of expert testimony. The trial court

monitored Dr. Mansel’s expert-witness testimony. See Cato, 15 So. 3d at 423 (a trial court

may limit expert testimony that is admitted into evidence). Dr. Mansel’s testimony did not

place blame on BMH-NM, rather it explained that a certain percentage of IV guide wires




       4
         The Burnwatts’ arguments on law of the case, estoppel, and Restatement of Torts
Section 457 are inapplicable.

                                              16
may be located improperly. Due to a number of events, it was Dr. Mansel’s opinion that

Alex died from a pneumothorax and not exsanguination. In addition, the trial court gave

limiting instructions on BMH-NM’s lack of liability. See Cato, 15 So. 3d at 423 (a trial court

may limit expert testimony and give limiting jury instructions).

¶37.   Further, the trial court properly considered whether Dr. Mansel’s testimony met the

requirements of Rules 401 and 403. The trial court correctly found that Dr. Mansel’s

testimony was relevant to the issue of the cause of Alex’s death and that it was reliable. In

addition, the trial court recognized that the testimony should have been included because its

probative value was not substantially outweighed by the danger of confusion of the issues

or misleading the jury. To be clear, this opinion should not be construed to make any

determination on the weight or credibility of the experts’ testimony in this case, for that is

an issue that is yet to be determined and is within the province of the jury, not this Court.

“Once a witness is qualified as an expert to render expert testimony, then it is within the

province of the trier of fact to give weight and credibility to the testimony.” Palmer v.

Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 796 (Miss. 1995). We find that the

trial court did not err in denying the Burnwatts’ renewed motion for exclusion of Dr.

Mansel’s expert testimony.

                                      CONCLUSION

¶38.   For the above reasons, this Court affirms the decision of the Circuit Court of Lafayette

County denying the Burnwatts’ renewed motion to exclude Dr. Mansel’s expert witness

testimony and remands the case for further proceedings in the trial court.

¶39.   AFFIRMED AND REMANDED.

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     WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND
PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J.

       KITCHENS, JUSTICE, DISSENTING:

¶40.   The doctrine of judicial estoppel “precludes a party from asserting a position,

benefitting from that position, and then, when it becomes more convenient or profitable,

retreating from that position later in the litigation.” Dockins v. Allred, 849 So. 2d 151, 155

(Miss. 2003). The doctrine applies where “intentional self-contradiction is being used as a

means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Kirk

v. Pope, 973 So. 2d 981, 991 (Miss. 2007) (internal cites omitted). “Because of judicial

estoppel, a party cannot assume a position at one stage of a proceeding and then take a

contrary stand later in the same litigation.” Dockins, 849 So. 2d at 155 (citing Banes v.

Thompson, 352 So. 2d 812, 812 (Miss. 1977)).

¶41.   The trial court’s grant of summary judgment in favor of Defendant Baptist Memorial

Hospital-North Mississippi was predicated upon the agreement of the plaintiffs and the other

codefendants, namely, Ear, Nose & Throat Consultants of North Mississippi, PLLC, and

John F. Laurenzo, M.D., that “. . . no expert testimony is anticipated from either of these

parties, which testimony is critical of Baptist Memorial Hospital-North Mississippi or of the

care rendered by the Hospital’s nursing staff or employees.” Maj. Op.at ¶ 5.

¶42.   After entry of this final judgment in favor of Baptist Memorial Hospital-North

Mississippi, from which no appeal was taken by any party, the remaining defendants, Dr.

Laurenzo and his practice group, Ear, Nose & Throat Consultants of North Mississippi,

PLLC, designated Dr. Keith Mansel as an expert witness. The essence of Dr. Mansel’s

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expert opinion is that the death of the plaintiffs’ child was not the fault of these remaining

defendants, but that the child’s demise had been caused by the failed resuscitation efforts.

Those efforts had been performed entirely by personnel of the dismissed defendant, Baptist

Memorial Hospital-North Mississippi. It is abundantly clear that such testimony would be

very much at odds with what had amounted to a stipulation between the plaintiffs and the

remaining defendants that no testimony would be adduced at trial that cast blame upon the

dismissed hospital’s employees.

¶43.   While it is true, as postulated by the majority, that parties to litigation are entitled to

present their theory of the case to the trier of fact, in this instance, the case theory of these

remaining defendants was shaped and limited by their agreement – on the basis of which the

court made the major decision to dismiss another defendant – that no blame for the child’s

death would be directed toward the hospital. Yet, in the trial of the case – which ended in

mistrial occasioned by a deadlocked jury – the trial court not only allowed Dr. Mansel to

opine that the death was caused by untoward circumstances that developed during the

unsuccessful attempt by hospital personnel to resuscitate the child, but also told the jury in

its instructions: “You are instructed that Defendant contends that William Alexander

Burnwatt’s death occurred during resuscitation attempts.” The proof had shown that the

resuscitation efforts were performed entirely by hospital staff members, and not by Dr.

Laurenzo or his practice group. The testimony of Dr. Mansel and the emphasis given it in

the court’s instruction plainly had the effect of laying responsibility for the death of Alex

Burnwatt in the lap of the hospital, which Dr. Laurenzo and his group had represented to the

court and to the plaintiffs that they would not do.


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¶44.   It would have been a simple matter, and a proper action, for the trial court to have

granted the plaintiffs’ motion in limine to the extent of precluding the remaining defendants’

placing blame, directly or indirectly, on any hospital employee, which would have been

entirely consistent with the trial court’s correct determination that “Dr. Laurenzo and ENT

Consultants should not now be permitted to place blame or apportion fault on a co-defendant

which the Court previously adjudicated not to be at fault and accordingly dismissed from

prejudice from this law suit.” Maj. Op. at ¶ 8.

¶45.   When Dr. Laurenzo and his practice group agreed not to place blame for the child’s

death on the hospital, they limited their theory of the case to their stated position that the

treatment they had provided Alex Burnwatt was within the applicable standard of care, and

that his loss of blood had not caused his death. Though these defendants may have found it

strategically desirable to convey to the jury their expert’s opinion of what did cause the

child’s death, they had irrevocably cut themselves off from doing so when they made a

representation in a judicial setting, upon which the trial judge and the plaintiffs had relied,

and upon which the judge had decisively acted in dismissing the hospital from the litigation.

¶46.   Accordingly, I must respectfully disagree with the majority’s conclusion that it will

be permissible for Dr. Laurenzo and his practice group again to adduce evidence of the

hospital’s alleged culpability upon a retrial of this case.

       GRAVES, P.J., JOINS THIS OPINION.




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