                   `IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-KA-01464-SCT

TROY CHAUPETTE a/k/a TROY W. CHAUPETTE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          06/01/2012
TRIAL JUDGE:                               HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                 PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: GEORGE T. HOLMES
                                           PHILLIP W. BROADHEAD
                                           THOMAS FORTNER
                                           THOMAS SCHWARTZ
                                           JOHN A. HOWELL
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         HALDON J. KITTRELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 03/06/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Troy Chaupette was convicted of fondling his four-year-old great-niece. He appeals

his conviction, alleging the trial court erred by: 1) allowing two fact witnesses to provide

expert testimony; 2) permitting an improper comment on the victim’s truthfulness; and 3)
admitting cumulative, hearsay testimony from six witnesses under the tender-years exception.

Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.

                          FACTS AND PROCEDURAL HISTORY

¶2.    Following Hurricane Katrina, Troy Chaupette and his mother lived with his niece,

Ann, and her four-year-old daughter, Claire, in a home owned by his sister and Ann’s

mother, Ellen.1,2 On October 16, 2005, Claire repeatedly hit her mother in the vagina while

saying “what’s that, what’s that.” 3 Concerned, Ann asked Claire where she had learned that

behavior. Claire replied “Uncle Troy” and told Ann that

       [Troy] came and got her out of bed one night, brought her into the bathroom
       and sat her on the toilet and scooted her down and placed one hand in his pants
       and the other hand – his finger into her vagina, what she called a mini cat . .
       . . And then when he was done, he brought her back into [Ann’s] room and
       placed her in the bed and told her not to tell her mom, go back to sleep.4

Claire also reenacted the event. After Claire fell asleep, Ann called Ellen, who advised her

to lock the bedroom door and volunteered to contact the necessary authorities. In the

morning, Ellen called the Department of Human Services (DHS).5 Lilly Crawford, a social




       1
        Fictitious names have been used for the minor victim and her family members to
protect the identity of the victim. Members of the Chaupette family will be referred to by
first name to avoid confusion.
       2
        Ellen and her husband, George, were living in Houston, Texas, at the time of the
alleged abuse.
       3
       There was also evidence at trial that Claire hit herself in the vagina while saying
“what’s that, what’s that.”
       4
           Claire had her own room but slept in the bed with Ann.
       5
           Troy moved out of Ellen’s house shortly after the incident.

                                               2
worker with DHS, interviewed Claire two days later. During her interview, Claire told

Crawford that

       [H]er Uncle Troy had touched her mini, meaning her vagina area, with his
       finger. She held up her index finger showing [Crawford] which finger. When
       [Crawford] asked her whether or not the uncle touched her over her clothes or
       under her clothes, she stated that he touched her on the inside of her clothes
       that she was wearing. She stated that she was on the toilet when the incident
       occurred and that she had been sleeping. She stated that her mama was asleep
       at the time of the incident. She stated that no one else had ever touched her
       like that before. She also stated that the uncle didn’t hurt her at that time.

Crawford also interviewed Ann and Ellen. Based on Crawford’s interviews, DHS turned the

case over to law-enforcement authorities. The day after their DHS interviews, Ann took

Claire to see her pediatrician, Dr. Johanna Dupont. Dr. Dupont conducted an external

examination of Claire’s genitalia and found no physical injury. However, based on her

discussion with Ann and Claire, she diagnosed Claire as being sexually abused. On

November 11, 2005, Ann filed a molestation report with the Picayune Police Department.

As a result, Officer Monica Jacobsen interviewed Claire, Ann, Ellen, and Troy. During her

interview, Claire identified her vagina area as her “mini” and told Officer Jacobsen that

“[h]er Uncle Troy came into the bedroom, told her it was wake-up time and picked her up

from the bed, brought her into the bathroom and sat her on the potty and touched her mini.”

Claire also provided details regarding the color of the bathroom and what she was wearing

at the time of the abuse. Following her investigation, Officer Jacobsen concluded that there

was sufficient evidence to forward the case to the grand jury.6 In December 2005, Claire

began receiving therapy from Deslie Banano. During therapy, Claire told Banano “[Uncle



       6
           Troy was indicted on December 7, 2006.

                                             3
Troy] touched my mini. And while she did that, she pointed to her vagina. She said that he

had brought her into the bathroom while her mommy was sleeping and had touched her

“mini.”

¶3.    In addition to these witnesses, both Claire and Troy testified at trial. Claire identified

Troy and testified that “[h]e got me out of my mom’s bed and brought me to the bathroom

while I was asleep . . . I woke up and I saw he touched my private part . . . [with] his finger.” 7

Troy denied all the allegations against him and suggested that Ellen, his sister, made the

allegations up because she was angry at him for talking to her ex-best friend. He also

mentioned that he had participated in the investigation and that he consistently had denied

all the allegations against him.8

¶4.    Troy was convicted of one count of child-fondling and received a fifteen-year prison

sentence. Troy timely appealed and raised the following issues, which have been restated

for purposes of clarity:

       I.      Claire’s pediatrician and therapist were allowed to provide expert
               testimony without satisfying the requirements of Rule 702 of the
               Mississippi Rules of Evidence.

       II.     Claire’s therapist was allowed to comment improperly on her
               truthfulness.

       III     Hearsay testimony from six witnesses admitted under the tender-years
               exception was cumulative and unfairly prejudicial.



       7
        At trial, she could not remember whether Troy touched her private part underneath
or on top of her clothes.
       8
       Troy’s testimony was corroborated in part by that of Officer Jacobsen, who
acknowledged on cross-examination that Troy had cooperated during her interview of him
and had maintained his innocence.

                                                4
¶5.     Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.

                                    LAW AND ANALYSIS

I.      Expert Testimony from Dupont and Banano

¶6.     Dr. Johanna Dupont, a pediatrician, and Deslie Banano, a psychotherapist, testified

as witnesses for the State regarding their treatment of Claire. It is undisputed that neither was

tendered as an expert witness. At trial, Troy objected to Dr. Dupont’s diagnosis testimony

and Banano’s treatment testimony, claiming both were providing impermissible expert

testimony without first being presented as experts. He raises the same argument on appeal.

¶7.     A trial court’s admission of testimony is reviewed for an abuse of discretion.9 “We

give great deference to the discretion of the trial judge,” and “unless we conclude that the

discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the trial

judge’s] decision will stand.” 10 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.” 11

¶8.     “There is often a very thin line between fact and opinion” testimony.12 We find

Dupont’s testimony crossed the line from fact to opinion testimony when she offered her

diagnosis of Claire. The question presented is whether this was a lay opinion pursuant to


        9
       Foster v. Noel, 715 So. 2d 174, 181 (Miss. 1998); see also Carter v. State, 996 So.
2d 112, 116 (Miss. Ct. App. 2008).
        10
             United American Ins. Co. v. Merrill, 978 So. 2d 613, 631 (Miss. 2007).
        11
        Id. at 633 (internal quotations omitted) (citing Blake v. Clein, 903 So. 2d 710, 723
(Miss. 2005)).
        12
             Sample v. State, 643 So. 2d 524, 530 (Miss. 1994).

                                                5
Rule 701 or an expert opinion governed by Rule 702.13 Before providing expert opinion

testimony, a witness must be qualified, tendered, and accepted as an expert under Rule 702

of the Mississippi Rules of Evidence.14 In contrast, lay witnesses can provide opinion

testimony only if it is “rationally based on the[ir] perception . . . [and] helpful to the clear

understanding of the testimony or the determination of a fact in issue.” 15 But if an opinion

is based on scientific, technical, or other specialized knowledge, it can be admitted only

under the guidance of Rule 702 as an expert opinion.16 An opinion is based on “scientific,

technical, or other specialized knowledge” if “ the witness must possess some experience or

expertise beyond that of the average randomly selected adult ” to express the opinion.17 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.” 18 However, a physician cannot testify




       13
            Miss. R. Evid. 701, 702.
       14
        Cotton v. State, 675 So. 2d 308, 312 (Miss. 1996) (citing Roberson v. State, 569 So.
2d 691, 696 (Miss. 1990)).
       15
            Miss. R. Evid. 701.
       16
         See Miss. R. Evid. 701 cmt. (stating “[t]he 2003 amendment of Rule 701 makes it
clear that the provision for lay opinion is not an avenue for admission of testimony based on
scientific, technical or specialized knowledge which must be admitted only under the
strictures of Rule 702.”)
       17
            Langston v. Kidder, 670 So. 2d 1, 3-4 (Miss. 1995).
       18
        Griffin v. McKenney, 877 So. 2d 425, 439-40 (citing Scafidel v. Crawford, 486 So.
2d 370, 372 (Miss. 1986)).

                                               6
about the significance of a patient’s condition19 or industry standards20 without first being

accepted as an expert. Troy argues that Dupont’s diagnosis testimony and Banano’s

treatment testimony entered into the realm of expert testimony.

       A.        Dr. Johanna Dupont

¶9.    Troy challenges the trial court’s ruling which allowed Dr. Dupont to state that she had

diagnosed Claire as sexually abused. The disputed testimony during Dr. Dupont’s direct

examination reads:

       Q.        You performed an external superficial exam on Claire Chaupette; is
                 that correct?
       A.        Yes.
       Q.        Okay. And what were your findings as to that exam?
       A.        She had no apparent injury or abnormality on her genital exam.
       Q.        Okay. And based on the history of her present illness and your patient
                 history and your external exam of her genitalia, where you able to come
                 up with a diagnosis?
       A.        Yes.
       Q.        And what was your diagnosis?
       ...
       A.        Sexual abuse.

Dr. Dupont also was allowed to restate her diagnosis on redirect:

       Q.        Okay. Dr. Dupont, even though your external exam shows no injury or
                 bruising, you still made a diagnosis of sexual abuse; is that correct?
       ...
       A.        There’s no physical finding. No physical findings
       ...
       Q.        And you came up with a diagnosis in this case; is that correct?
       A.        Yes.
       Q.        And what was your diagnosis?
       A.        Sexual abuse.



       19
            Foster v. Noel, 715 So. 2d 174, 183 (Miss. 1998).
       20
            Langston v. Kidder, 670 So. 2d 1, 4 (Miss. 1995).

                                                7
¶10.   Clearly, Dupont’s diagnosis was an opinion, and, as she stated, it was based on the

patient history taken, as well as Dupont’s physical examination of Claire. Her opinion no

doubt was based on her specialized knowledge, which can be presented only under the

strictures of Rule 702.21 However, the history she relied on was placed in evidence by five

other witnesses, namely Claire, Ann, Crawford, Jacobsen, and Banano, and her testimony

regarding her physical examination of Claire aided Chaupette’s defense, as the examination

revealed no physical injury. We find that any error in the admission of Dupont’s “diagnosis”

was clearly harmless and did not result in prejudice to Chaupette.

       B.        Deslie Banano

¶11.   Troy also faults the trial court for allowing Banano to testify about her therapy

sessions with Claire. Banano testified that, during individual interviews, Ann and Claire both

told her that Claire had been sexually abused by Troy.22 As a result, Banano developed a

treatment plan “to work on issues related to the sexual abuse and have [Claire] alleviate some

of the trauma related, help her describe and reframe sexual abuse, alleviate guilt associated

with it.” Banano noted that Claire appeared fearful and embarrassed when discussing the

abuse and that she eventually became avoidant of the topic. On cross-examination, it was

revealed that Claire had disclosed more details about the abuse as her therapy progressed but,

on redirect, Banano explained that, in her experience, children generally tell more

information over time. After twelve individual therapy sessions, Banano concluded that



       21
            Miss. R. Evid. 702.
       22
        Banano was adamant that Ann and Ellen did not participate in Claire’s therapy
sessions and that Claire was not present when Banano updated them on her progress.

                                              8
Claire had improved, because “the effects of the sexual abuse had abated and she seemed to

be progressing normally. And it was not an issue that she was dealing with in daily life.”

Banano referred her to a girls’ group for further counseling.

¶12.   The vast majority of Banano’s testimony pertained to the facts and circumstances

surrounding her treatment of Claire and, as such, was appropriate lay testimony from a

physician. Notably, she never testified that Claire’s behavior was consistent with that of a

sexually abused child or that she believed Claire had been sexually abused by Troy. But

Banano did enter the realm of expert testimony when she relied on her experience to opine

that children generally provide more information over time. However, we cannot say that

Troy was prejudiced by the admission of this one improper comment, and certainly there was

not “substantial prejudice.”23 We will not reverse a conviction based on a harmless error.

II.    Credibility Testimony

¶13.   Chaupette’s attorney questioned the source of Claire’s abuse allegations with the

following questions during his cross-examination of Banano:

       Q.     You would agree with me, wouldn’t you, that [Claire] has been
              reminded of this over and over and over, over all these years by [Ann]
              and her grandmother?
       A.     I could only assume that.
       ...
       Q.     And you would agree with me that a child that’s four years of age or
              five years of age, once something is repeatedly drummed into their little
              mind, they can succumb to suggestions, can’t they?
       A.     Yes. They are susceptible to suggestion.




       23
         See Griffin v. McKenney, 877 So. 2d 425, 441 (Miss. Ct. App. 2003) (holding
admission of expert testimony from a lay witness did not warrant reversal when error did not
substantially prejudice the opposing party).

                                              9
       Q.        Sure, sure. And sometimes they can actually believe things that are not
                 true?
       A.        They can.

As a result, Banano was allowed, over Troy’s objection, to provide the following testimony

on redirect:

       Q.        Deslie, you were asked a lot of questions on Cross-Examination about
                 the susceptibility of a four year old to people talking to them?
       A.        Yes.
       Q.        Do you feel like that was the case in this situation?
       A.        No. I do not.

On appeal, Troy alleges this testimony was an inappropriate “truthfulness” opinion. We

disagree.

¶14.   Testimony regarding a child sex-abuse victim’s credibility is not highly regarded,

being considered “of dubious competency.” 24 However, such testimony is permissible so

long as it does not comment on the truthfulness of the victim’s accusations and is especially

warranted when a victim’s credibility previously has been attacked.25

¶15.   Testimony similar to that at issue here was challenged in Hosford v. State.26 In

Hosford, the defendant suggested that the child sex-abuse victim had confused him with



       24
            Hobgood v. State, 926 So. 2d 847, 853 (Miss. 2006).
       25
        Id. at 854; see also Hosford v. State, 560 So. 2d 163, 166-67 (Miss. 1990) (holding
it was appropriate to allow a child’s therapist to testify about the quality of the child’s
sexual-abuse allegations in order to “negat[e] the defense position that the victim had
confused [the defendant] with other abusers”); Elkins v. State, 918 So. 2d 828, 831-32
(Miss. Ct. App. 2005) (holding it was appropriate to allow a social worker to testify that the
victim’s “behavior and demeanor were consistent with those of children who have been
sexually abused” and that the victim kept her story straight, unlike most children who have
been coached to lie about abuse).
       26
            Hosford, 560 So. 2d at 166-67.

                                               10
other abusers.27 In response, the child’s therapist was allowed to provide the following

testimony:

       Q. In what Billy had done to her as opposed to what other individuals had done
       to her, has she been consistent in that regard?

       A. Correct.

       Q. Based upon your educational background and your counseling sessions
       with [the child], do you have an opinion as to the possibility that [the child]
       has confused Billy Hosford with other individuals who have victimized her?

       ...

       A. I don't think that she has confused what has happened, primarily because
       of what I have already said. The emotional response that she has toward each
       perpetrator is very specific; very, very specific. And that toward him is specific
       also.28

The Court did not find this line of questioning to be reversible error, stating:

       Viewed out of context, the above-quoted testimony treads close to the brink
       of reversible error as a comment upon the truthfulness of the child’s
       accusations. Had such statements been made wholly without reference to the
       impeachment of the victim on cross-examination, reversible error may well
       have occurred. In Williams v. State, 539 So. 2d 1049, 1051 (Miss. 1989), the
       Court held such testimony “of dubious competency.” We do not retreat from
       these cases but hold, under the particular circumstances of this case, that [the
       therapist]’s brief testimony, negating the defense position that the victim had
       confused appellant with other abusers, did not rise to the level of bolstering
       and is not reversible error.29

¶16.   As in Hosford, the trial court here had to determine to what extent the State could

respond to Troy’s attack on Claire’s credibility. Banano was allowed to say only that she did



       27
            Id.
       28
            Id. at 166.
       29
            Id. at 166-67.

                                              11
not believe Claire had been brainwashed by her mother and grandmother. She did not say

Claire was telling the truth or even that she found Claire to be credible. Banano’s testimony

was shorter and less revealing than that permitted in Hosford. As such, the trial court did not

abuse its discretion by allowing her comment. This issue is without merit.

III.   Hearsay Testimony

¶17.   Troy argues that admitting hearsay testimony from five witnesses under the tender-

years exception was cumulative and unfairly prejudicial. A trial court’s admission or

exclusion of testimony is reviewed for an abuse of discretion.30

       The Mississippi Rules of Evidence provide a tender years exception to the
       rules prohibiting hearsay: A statement made by a child of tender years
       describing any act of sexual contact performed with or on the child by another
       is admissible in evidence if: (a) the court finds, in a hearing conducted outside
       the presence of the jury, that the time, content, and circumstances of the
       statement provide substantial indicia of reliability; and (b) the child either (1)
       testifies at the proceedings; or (2) is unavailable as a witness: provided, that
       when the child is unavailable as a witness, such statement may be admitted
       only if there is corroborative evidence of the act.31

¶18.   Testimony admissible under the tender-years exception still may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice.” 32

¶19.   “Prejudicial overuse of the tender years exception” was addressed by the Court of

Appeals in Carter v. State.33 In Carter, the defendant argued that he had suffered a manifest


       30
        Foster v. Noel, 715 So. 2d 174, 181 (Miss. 1998); see also Carter v. State, 996 So.
2d 112, 116 (Miss. Ct. App. 2008).
       31
        Carter v. State, 996 So. 2d 112, 124-25 (Miss. Ct. App. 2008) (quoting Miss. R.
Evid. 803(25)).
       32
            Miss. R. Evid. 403.
       33
            Carter v. State, 996 So. 2d 112, 116 (Miss. Ct. App. 2008).

                                              12
injustice when the State was allowed to use the tender-years exception to elicit hearsay

testimony regarding the victim’s outcry statement from eight witnesses.34 In rejecting the

defendant’s argument, the Court of Appeals found it significant that most of the witnesses

discussed the victim’s outcry statement “only as it related to the true purpose of their

testimony”; for example, a police officer discussed the statement in relation to his

investigation, and a doctor discussed the statement in relation to his examination.35 The

Court of Appeals also noted that “it is not unusual for multiple witnesses to testify regarding

a child’s outcry statement in [child sexual-abuse] cases.” 36

¶20.   As in Carter, each of the witnesses at issue here discussed Claire’s abuse allegations

only as they related to their involvement in the case, and multiple convictions based on such

testimony from five or more witnesses have been affirmed by this Court.37 For these reasons,

we find the testimony admitted under the tender-years exception was not unfairly prejudicial

and that the trial court did not abuse its discretion in allowing it to be admitted. This issue




       34
            Id. at 125.
       35
            Id.
       36
            Id.
       37
         Hobgood, 926 So. 2d at 851-52 (approving the admission of testimony from six
witnesses regarding the victim’s allegations); Smith v. State, 925 So. 2d 825, 830-32 (Miss.
2006) (approving the admission of testimony from six witnesses regarding the victim’s
allegations); Withers v. State, 907 So. 2d 342, 344, 348-49 (Miss. 2005) (approving the
admission of testimony from seven witnesses regarding the victim’s allegations).

                                              13
is without merit.38 Finding no reversible error, we affirm the judgment of the Pearl River

Circuit Court.

¶21. CONVICTION OF CHILD MOLESTATION AND SENTENCE OF FIFTEEN
(15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE (5) YEARS TO BE SERVED AND THE REMAINING
TEN (10) YEARS TO BE SERVED UNDER THE POST-RELEASE PROVISIONS
WITH A FIVE (5) YEAR SUPERVISION PERIOD, AFFIRMED. APPELLANT
SHALL PAY A FINE OF $1,000, AN ASSESSMENT OF $2,000 AND ALL COURT
COSTS.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, PIERCE
AND COLEMAN, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN
RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

       CHANDLER, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶22.   The majority holds that Claire’s pediatrician, Dr. Dupont, could not testify to the

diagnosis she had reached during her care and treatment of Claire because she had not been

designated as an expert witness. Yet the majority recognizes that a treating physician can

testify as a lay witness “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.’” Maj. Op. at ¶8 (quoting Griffin v. McKenney, 877 So. 2d 425,

439-40 (citing Scafidel v. Crawford, 486 So. 2d 370, 372 (Miss. 1986)). Because Dr.

Dupont’s diagnosis of sexual abuse was made during her care and treatment of Claire, it was

a fact to which Dr. Dupont could testify without having been designated as an expert witness.



       38
         Chaupette argues that tender-years testimony should be subjected to the three-
pronged standard used to determine the evidentiary value of photographs in murder cases.
We find this argument unpersuasive. Oral testimony and photographs are perceived
differently and child sexual-abuse cases present unique evidentiary challenges.

                                             14
I would find no error in the admission of Dr. Dupont’s testimony; therefore, I concur in part

and in the result.

¶23.   The distinction between lay and expert testimony is vital because expert testimony is

subject to special discovery rules to allow the opposing party an opportunity to challenge the

expert’s qualifications. Sample v. State, 643 So. 2d 524, 530 (Miss.1994); see M.R.C.P. 26

(b)(4) (civil cases); URCCC 9.04 (A)(4) (criminal cases). It is well-established in this Court’s

jurisprudence that treating physicians may testify as lay witnesses regarding their care and

treatment of patients, including a diagnosis reached in the course of treatment, but may not

testify to standards of care or causation, or use their expertise to explain the significance of

a diagnosis or answer hypothetical questions. In Scafidel v. Crawford, 486 So. 2d 370, 372

(Miss. 1986), Scafidel’s treating physicians testified as lay witnesses that, in the course of

treatment, she had been diagnosed with anemia. Neither physician was permitted to testify

about the effects of anemia. Id. Because the physicians had acquired their opinions that

Scafidel was anemic during her care and treatment and had not explained how her anemia

was significant to the case, the Court held that their testimony had not crossed the

“impermissible line between fact testimony and expert opinion.” Id.

¶24.   In Foster v. Noel, 715 So. 2d 174, 178 (Miss. 1998), the trial court allowed Noel’s

doctor to give lay testimony about Noel’s care and treatment on the night of her false arrest.

Id. Noel’s doctor testified that Noel had a preexisting condition of depression which had

been aggravated by the false arrest. Id. This Court held that the physician’s “revelation that

Noel had a pre-existing condition did not constitute impermissible expert opinion, as he did

not testify about the significance of her depression and the effect the acute anxiety she


                                              15
suffered as a result of being arrested would have on her condition in the future.” Id.

However, the treating physician had rendered improper expert testimony by stating that

Noel’s depression had been aggravated by the false arrest. Id. That testimony constituted

inadmissible expert testimony because it explained how Noel’s depression was significant

to the case. Id.

¶25.   The Court of Appeals relied on Scafidel and Foster in Griffin v. McKenney, 877 So.

2d 425 (Miss. 2003). Griffin sued his treating physician, Dr. McKenney, for medical

malpractice. Id. at 429. Although Dr. McKenney had not been designated as an expert

witness, he gave detailed medical testimony explaining his treatment of Griffin. Id. at 439.

The Court of Appeals held that Dr. McKenney did not have to have been designated as an

expert to render this testimony because it “was solely explanatory of Dr. McKenney’s

treatment of [Griffin] and of his records and nursing records about [Griffin]’s care.” Id. at

440. However, the Court of Appeals held that Dr. McKenney “stray[ed] into the realm of

expert testimony” by rendering medical opinions in response to hypothetical questions. Id.

at 440-41. In other words, Dr. McKenney was permitted as a lay witness to testify to the

historical facts of the medical impressions and opinions he had formed in the course of his

treatment of Griffin, but could not elaborate beyond his perceptions formed at that time.

¶26.   The Court of Appeals applied the same reasoning in the personal-injury case of APAC

Mississippi, Inc. v. Johnson, 15 So. 3d 465 (Miss. Ct. App. 2009). To establish her injuries,

Johnson called a nurse practitioner and a physician who had treated her after the accident.

Neither had been designated as an expert witness. Id. at 469-70. The nurse practitioner

testified from Johnson’s medical records that Johnson had a hairline fracture of her cervical


                                             16
vertebrae, and the physician reviewed photographs of Johnson’s injuries and explained her

diagnosis of Johnson. Id. at 472. The Court of Appeals found that the witnesses’ testimony

had been confined to the facts and circumstances surrounding Johnson’s care and treatment,

what the medical records revealed, and diagnostic opinions acquired during Johnson’s care

and treatment. Id. The Court of Appeals held that neither witness had rendered impermissible

expert testimony. Id.

¶27.   These decisions provide insight into the dividing line between lay and expert

testimony by a treating physician. “Typically, an expert witness is an ‘outsider’ to the case

who evaluates the evidence in an attempt to explain it to the jury.” Crist v. Loyacano, 65 So.

3d 837, 844 (Miss. 2011). “Before experts may deliver opinions to the jury, experts must be

vetted by the court and must satisfy certain criteria.” Id. “By contrast, a fact witness may be

virtually any competent person whose testimony is based on personal knowledge.” Id. (citing

M.R.E. 601); see M.R.E. 602 (a person must have personal knowledge of a matter to testify).

¶28.   Unlike a typical expert witness, a treating physician is not an outsider to the case.

When a treating physician testifies about a patient’s care and treatment, the medical records

documenting that care and treatment, and diagnoses formed in the course of the patient’s care

and treatment, the treating physician is testifying based on personal knowledge and is

properly deemed a fact witness. Scafidel, 486 So. 2d at 372. In contrast, a medical expert is

called not to testify about historical facts personally observed, but to offer opinions or other

testimony about the case from the perspective of an uninvolved third party possessing

specialized knowledge helpful to the jury’s determination of the issues. M.R.E. 702. A

treating physician must be designated as an expert if the treating physician goes beyond


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historical facts personally observed and “evaluates the evidence in an attempt to explain it

to the jury.” Crist, 65 So. 3d at 844. Therefore, our precedent forbids treating physicians not

designated as experts from testifying to standards of care, causation, or using their expertise

to explain the significance of a diagnosis or answer hypothetical questions.39 Foster, 715 So.

2d at 178; Scafidel, 486 So. 2d at 372; APAC Mississippi, 15 So. 3d at 472; Griffin, 877 So.

2d at 440-41.

¶29.   Dr. Dupont testified that she was Claire’s pediatrician and that she had examined

Claire shortly after the allegations of abuse arose. Dr. Dupont testified that she performed an

external superficial exam on Claire and that she had no apparent genital injury or

abnormality. Based on the physical exam and patient history, Dr. Dupont testified that her

diagnosis was sexual abuse. As a treating physician testifying as a lay witness, Dr. Dupont

was permitted to testify to “what conditions the patient was suffering from if the opinion was

acquired during the care and treatment of the patient.” Griffin, 877 So. 2d at 439-40. Plainly,

Dr. Dupont’s diagnosis was made in the course of her care and treatment of Claire.

Therefore, the trial court properly allowed her to render this testimony as a lay witness. See

id. While the majority finds that the trial court’s ruling was error, I would find no error in the

admission of Dr. Dupont’s testimony. Therefore, I concur in part and in the result.


       39
         This Court also has applied this general analysis in cases involving fact witnesses
possessing expertise of the nonmedical variety. See Quitman County v. State, 910 So. 2d
1032,1045 (Miss. 2005) (circuit judges were permitted as lay witnesses to give their personal
observations on how the county’s public defender system worked); Langston v. Kidder, 670
So. 2d 1, 4 (Miss. 1995) (a fact witness’s opinion on industry standards was derived from
specialized knowledge; therefore, it was subject to expert disclosure rules); see also Mitchell
v. Barnes, 96 So. 3d 771, 779 (Miss. Ct. App. 2012) (a police officer who had not personally
observed the subject accident could not give opinions on speed or driver negligence without
having been designated as an expert).

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KING, J., JOINS THIS OPINION.




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