                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-CA-00505-SCT

MARCIA MARIE AND DONALD MARIE, JR.

v.

HEATHER NORTH, M.D., AND GULFSHORE
MEDICAL CONSULTANTS, P.A.


DATE OF JUDGMENT:                          07/31/2013
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS, JR.
TRIAL COURT ATTORNEYS:                     L. CHRISTOPHER BREARD
                                           DAVID A. WHEELER
                                           JAMES H. HEIDELBERG
                                           STEPHEN WALKER BURROW
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  L. CHRISTOPHER BREARD
                                           DAVID A. WHEELER
ATTORNEYS FOR APPELLEES:                   STEPHEN WALKER BURROW
                                           JAMES H. HEIDELBERG
NATURE OF THE CASE:                        CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                               AFFIRMED - 10/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   In this “battle of the experts” case, the trial court first denied a motion in limine by

Marcia and Donald Marie to exclude entries made by Dr. Dennis Boulware, a consulting

physician, in his medical records and then denied the Maries’ Motion for Judgment

Notwithstanding the Verdict (JNOV) after a judgment was entered in favor of Dr. Heather
North and Gulfshore Medical Consultants. Finding that the trial court did not err, we affirm

its judgment.

                STATEMENT OF FACTS AND PROCEEDINGS BELOW

¶2.    Beginning in November 2001, Marcia Marie began experiencing lower extremity pain.

She first sought treatment from her family physician, who referred her to an orthopedist, who

then referred her to Dr. Heather North, an internist and rheumatologist. Dr. North treated

Marie beginning from the spring of 2002 until January 2004, for inflammatory arthritis

associated with inflammatory chronic immune demyelinating polyneuropathy1 and

monoclonal gammopathy of unknown significance.2 In December 2003, Marie was

hospitalized for increasing complaints of excruciating pain and sleeplessness. During her

hospitalization, Dr. North determined that Marie’s right leg had no circulation from the knee

down. Marie was diagnosed with distal lower extremity vasculitis and ischemic right foot,




       1
         “Chronic inflammatory demyelinating polyneuropathy (CIDP) is a rare neurological
disorder in which there is inflammation of nerve roots and peripheral nerves and destruction
of the fatty protective covering (myelin sheath) over the nerves. This affects how fast the
nerve signals are transmitted and leads to loss of nerve fibers. This causes weakness,
paralysis and/or impairment in motor function, especially of the arms and legs (limbs).”
http://www.webmd.com/brain/chronic-inflammatory-demyelinating-polyneuropathy (last
visited October 13, 2015).
       2
        “Monoclonal gammopathy of undetermined significance (MGUS) is a condition in
which an abnormal protein (monoclonal protein, or M protein) is in the blood. M protein is
produced by plasma cells, a type of white blood cell. Monoclonal gammopathy of
undetermined significance usually causes no problems. Sometimes, monoclonal
gammopathy of undetermined significance is either associated with another disease or can
progress over years to other disorders, including some forms of blood cancer.”
http://www.mayoclinic.org/diseases-conditions/mgus/basics/definition/con-20026422 (last
visited October 13, 2015).

                                             2
steroid induced diabetes, chronic immune demyelinating polyneuropathy, and monoclonal

gammopathy of unknown significance.

¶3.    Dr. North then referred Marcia to Dr. Boulware, a rheumatologist at the University

of Alabama at Birmingham, for a second opinion. On December 19, 2003, Dr. Boulware

agreed with Dr. North’s assessment and treatment,3 noting in the same paragraph of his clinic

note that Marcia would most likely “lose some of her toes and possibly part of her foot, if not

up to the level of her knee.” On December 22, 2003, Marcia’s right leg was amputated below

her right knee. In June 2004, half of Marcia’s big toe on her left foot was amputated.

¶4.    Marcia and Donald Marie filed suit in Harrison County Circuit Court against Heather

North, M.D., and Gulfshore Medical Consultants, P.A., (collectively referred to as “Dr.

North”), alleging the defendants were negligent in their medical care and treatment of Marcia

Marie, which resulted in the amputations.

¶5.    Prior to trial, the Maries filed three motions in limine. The Maries requested that the

court redact a portion of Dr. Boulware’s medical records, a clinic note, which read, “[s]he

has been treated and evaluated extremely well by Dr. North and at this time was strongly

encouraged to maintain follow-up with her.” The Maries argued this entry was “an

unsubstantiated opinion based on speculation and not the full medical records.” The Maries

also argued that Dr. Boulware had not been designated as an expert witness and was not

subject to cross-examination.




       3
           “. . . [S]he is certainly under adequate treatment at this time. . . .”

                                                  3
¶6.    The Maries also requested that the court exclude any testimony regarding a

conversation Dr. North had with Dr. Leonard Serebro. Dr. North testified that Dr. Serebro

told her “you’re doing the best that can be done.” Based on Dr. North’s deposition testimony,

neither the conversation nor the content of the conversation was ever recorded in Marcia’s

medical records. The Maries made the same legal argument as they made in the motion

regarding Dr. Boulware.

¶7.    Finally, the Maries asked the court to redact portions of Dr. Henry Stonnington’s

medical records, a consultation note which read: “I really do think that Dr. North is on the

right track.” The Maries’ legal argument was verbatim of the arguments in the other two

motions.4

¶8.    In response to all three motions in limine, Dr. North argued that all were admissible

under Rules 803(4) and 803(6) of the Mississippi Rules of Evidence. The trial court denied

the motions in limine as to Drs. Boulware and Stonnington because the consultation notes

were found in the medical records. As to Dr. Serebro, the trial court granted the motion

because nothing was memorialized in the medical records about the conversation between

Dr. North and Dr. Serebro. The Maries offered Marcia’s complete medical records, which

included the entries of both Drs. Boulware and Stonnington as trial exhibits with the same

objections as stated in their motions in limine.

¶9.    During the four-day trial, the jury heard testimony from the Maries, Dr. North, and

experts for both sides. All parties argued in their briefs that this case was a “classic battle of

       4
       The Maries did not appeal the trial court’s denial of their motion in limine as to Dr.
Stonnington.

                                                4
the experts.” Ultimately, the jury determined that Dr. North was not negligent in her medical

care and treatment of Marcia. The trial court entered a final judgment in favor of Dr. North

and Gulfshore Medical Consultants, P.A.

¶10.   The Maries filed a motion for JNOV or, in the alternative, for a new trial. The Maries

argued that the trial court had abused its discretion in denying the motion in limine to redact

Dr. Boulware’s consultation note. After the trial court denied the Maries’ motion for JNOV,

the Maries requested that the trial court enter findings of fact and conclusions of law. The

trial court denied the ore tenus motion. The Maries timely filed notice of this appeal, arguing

that Dr. Boulware’s medical records were inadmissible under Mississippi Rules of Evidence

803(4), 803(6), and 403, and that Dr. Boulware’s statements were improper expert testimony,

inter alia. Finding the trial court did not err in admitting the medical records, we affirm the

trial court’s judgment.

                                        ANALYSIS

¶11.   The standard of review for admissibility of evidence is abuse of discretion, Bullock

v. Lott, 964 So. 2d 1119, 1132 (Miss. 2007), and the standard of review for a JNOV is de

novo. Bus. Commc’ns, Inc. v. Banks, 90 So. 3d 1221, 1224 (Miss. 2012) (citing Watts v.

Radiator Specialty Co., 990 So. 2d 143, 150 (Miss. 2008)). “A motion for JNOV is a

challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a

JNOV if there is substantial evidence to support the verdict.” United Servs. Auto. Ass’n

(USSA) v. Lisanby, 47 So. 3d 1172, 1176 (Miss. 2010) (citing Adcock v. Miss. Transp.

Comm’n, 981 So. 2d 942, 948 (Miss. 2008)). This Court is required to “view the evidence



                                              5
in the light most favorable to the nonmoving party.” Mollaghan v. Varnell, 105 So. 3d 291,

300 (Miss. 2012). “[I]f there is substantial evidence in support of the verdict, that is, evidence

of such quality and weight that reasonable and fair minded jurors in the exercise of impartial

judgment might have reached different conclusions, affirmance is required.” Corley v.

Evans, 835 So. 2d 30, 37 (Miss. 2003) (quoting Fitzner Pontiac-Buick-Cadillac, Inc. v.

Smith, 523 So. 2d 324, 326 (Miss. 1988)).

¶12.   The evidentiary issues the Maries raised relate to Dr. Boulware’s medical records. In

their motion in limine, the Maries sought to exclude entries Dr. Boulware had made in his

consultation notes. The Maries argue that the trial court should have granted the motion and

such denial was an abuse of discretion.

¶13.   Dr. Boulware saw Marcia after Marcia was told she most likely would lose her foot

due to vasculitis. The Maries hoped a second opinion by Dr. Boulware would provide them

with other options aside from amputation. According to Dr. Boulware’s clinic note, he took

an extensive history, which included Marcia’s history of smoking a pack of cigarettes per day

for forty years, ceasing only two weeks prior to seeing Dr. Boulware, and her family history

of vasculitis, with her mother having recently lost a foot. Dr. Boulware conducted a physical

exam, noting Marcia’s extremities were swollen and bluish in color, and that he could not

feel a pulse in her right foot. He reviewed laboratory results and extensive medical records.

We quote Dr. Boulware’s impression verbatim from the medical record:

       At this time, it is difficult to tell what type of vasculitis she has but more than
       likely this will be a medium sized vessel disease, such as polyarteritis nodosa.
       It appears odd that it would affect only her distal legs and not other areas.
       Burger’s disease is also a possibility for her in light of her long smoking

                                                6
       history. I am not very confident about the ability of a radiologist to detect a
       necrotizing vasculitis by angiography, as opposed to Burger’s disease and
       other atherosclerotic processes. Only a biopsy will truly give us a clear answer
       and at this point in time would not be worth it. She has been treated and
       evaluated extremely well by Dr. North and at this time was strongly
       encouraged to maintain follow-up with her. The only other consideration I
       would have would be to assess her heart with an echocardiogram for
       possibility of a mural thrombus and embolic disease that could be complicating
       some of this. This is very unlikely but is the final element to be assessed.

Dr. Boulware discussed Marcia’s condition “at length with [her]” and provided a copy of the

report to Dr. North.

¶14.   The Maries argue that the text from Dr. Boulware’s report stating Marcia had been

treated and evaluated extremely well by Dr. North should have been redacted and should not

have been disclosed at trial. The trial court ruled that Dr. Boulware’s clinic notes were part

of her medical records and that Dr. North had consulted with Dr. Boulware regarding

Marcia’s diagnosis and treatment. The trial court denied the Maries’ motion to exclude Dr.

Boulware’s consultation note.

¶15.   Rule 803 of the Mississippi Rules of Evidence provides exceptions to the hearsay rule.

Two exceptions allow for statements in medical records to be admissible into evidence at

trial. Specifically, Rule 803(4) reads:

       Statements made for purposes of medical diagnosis or treatment and
       describing medical history, or past or present symptoms, pain, or sensations,
       or the inception or general character of the cause or external source thereof
       insofar as reasonably pertinent to diagnosis or treatment, regardless of to
       whom the statements are made, or when the statements are made, if the court,
       in its discretion, affirmatively finds that the proffered statements were made
       under circumstances substantially indicating their trustworthiness. For
       purposes of this rule, the term “medical” refers to emotional and mental health
       as well as physical health.



                                              7
M.R.E. 803(4). We have provided that:

       [t]here is a two-part test for admitting hearsay statements under 803(4). . . .
       First, the declarant’s motive in making the statement must be consistent with
       the purposes of promoting treatment; and second, the content of the statement
       must be such as is reasonably relied on . . . in treatment.

Wilson v. State, 96 So. 3d 721, 727 (Miss. 2012) (quoting Branch v. State, 998 So. 2d 411,

414 (Miss. 2008) (citations omitted)).

¶16.   Dr. Boulware performed Marcia’s evaluation for the purpose of evaluation, treatment,

and a second opinion. Dr. Boulware prepared his clinic notes in the context of offering

advice and opinions for Marcia’s ongoing medical problems. Dr. Boulware’s notes reflect

that he considered and discounted various alternatives to diagnosing and treating Marcia’s

medical problems. Therefore, he made the statement with the purpose of promoting

treatment, and Dr. North and any other medical provider who would provide treatment for

Marcia in the future reasonably can rely upon it. Id.

¶17.   For the evidence to be admissible under Rule 803(4), the trial court must find the

proffered entries were made under circumstances indicating their trustworthiness. See M.R.E.

803(4). The trial court noted that Dr. Boulware was called in to consult and provide a second

opinion as to Dr. North’s diagnosis and treatment.

¶18.   Alternatively, Rule 803(6) reads:

       A memorandum, report, record, or data compilation, in any form, of acts,
       events, conditions, opinions or diagnosis, made at or near the time by, or from
       information transmitted by, a person with knowledge, if kept in the course of
       a regularly conducted business activity, and if it was the regular practice of that
       business activity to make the memorandum, report, record, or data
       compilation, all as shown by the testimony of the custodian or other qualified
       witness or self-authenticated pursuant to Rule 902(11), unless the source of

                                               8
       information or the method or circumstances of preparation indicate lack of
       trustworthiness. The term “business” as used in this paragraph includes
       business, institution, association, profession, occupation, and calling of every
       kind, whether or not conducted for profit.

M.R.E. 803(6). “Rule 803(6) specifically includes diagnoses and opinions as proper subjects

of admissible entries, as well as the traditionally admissible entries pertaining to acts, events

and conditions.” M.R.E. 803(6), cmt. The consultative note and statement regarding Dr.

North’s prior treatment and evaluation all were generated during the course of Dr.

Boulware’s examination of Marcia.

¶19.   The trial court found that Dr. Boulware’s clinic notes were medical records and that

physicians routinely consult one another. We find that the trial court did not abuse its

discretion in denying the Maries’ motion in limine to exclude entries found in Dr. Boulware’s

clinic notes.

¶20.   Although the Maries did not ask that the trial court conduct a Rule 403 balancing test,

the Maries now allege trial-court error in admitting Dr. Boulware’s statement because of its

prejudicial nature.

       When reviewing evidentiary determinations, this Court necessarily accords
       broad discretion to our trial courts. In Jenkins v. State, 507 So. 2d 89 (Miss.
       1987), we explored the reasoning behind our deference and stated that, as a
       matter of institutional necessity, we must accord certain leeway to the circuit
       court. Id. at 93. Moreover, the weighing and balancing task required by Rule
       403 is not one susceptible of mechanical performance as it asks only that a
       judge rely on his/her own sound judgment. Id. As such, the law gives the trial
       court discretion. Id.

       . . . Accordingly, while we clearly interpret the rules of evidence as requiring
       that all otherwise admissible evidence be “filtered” through the balancing test
       set forth in Rule 403, we do not interpret this requirement to be a regimented
       procedure that must be explicitly performed on pain of reversal. Though this

                                               9
       Court certainly expects trial judges to have considered Rule 403 in making
       their evidentiary rulings, we certainly do not predicate the soundness of these
       determinations on the express use of magic words. . . . It follows that our
       review depends on the evidence and not the judge, and while a judge’s
       on-the-record analysis is recommended as it serves to fortify the judge’s
       position for purposes of review, the lack of such analysis is harmless unless we
       deem the evidence to be patently prejudicial.

Jones v. State, 920 So. 2d 465, 475-76 (Miss. 2006). The trial court properly admitted Dr.

Boulware’s consultation notes as the probative value was not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury. M.R.E. 403.

¶21.   Finally, the Maries argue that the trial court erred in denying their motion for JNOV.

In considering the Maries’ motion for JNOV, the court was bound to consider as true all

testimony favorable to the party against whom the request was made. Both parties presented

expert witnesses who came to opposite conclusions on the question of whether Dr. North and

Gulfshore Medical Consultants, P.A., were negligent in their medical care and treatment of

Marcia Marie. The record reveals ample evidence to support the verdict; therefore, the trial

court properly submitted this question of fact to the jury for its determination. See Scafidel

v. Crawford, 486 So. 2d 370, 374 (Miss. 1986); Gee v. Hawkins, 402 So. 2d 825 (Miss.

1981); Blackwell v. Dairymen, Inc., 369 So. 2d 511 (Miss. 1979).

¶22.   We find that the remaining issues raised by the Maries lack merit.

                                      CONCLUSION

¶23.   We find that the trial court did not err in denying the Maries’ motion in limine to

exclude entries from Dr. Boulware’s clinic notes. The notes were medical records and were

properly admitted under either Rule 803(4) or (6) of the Mississippi Rules of Evidence.



                                             10
Furthermore, we find that the trial court properly denied the Maries’ motion for JNOV, for

sufficient evidence supported the jury’s verdict in favor of Dr. North and Gulfshore Medical

Consultants, P.A. Therefore, we affirm the judgment of the trial court.

¶24.   AFFIRMED.

    WALLER, C.J., CHANDLER, PIERCE, AND COLEMAN, JJ., CONCUR.
KITCHENS, J., DISSENTS, WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., LAMAR AND KING, JJ.

       KITCHENS, JUSTICE, DISSENTING:

¶25.   Because the trial court committed reversible error by admitting, over the Maries’

objections, prejudicial portions of a statement made by Dr. Boulware, I respectfully dissent.

¶26.   On December 19, 2003, Marcia Marie went to Dr. Boulware, a rheumatologist at the

University of Alabama at Birmingham, for an opinion regarding her vasculitis and her

prognosis. In his New Patient Clinic Note, which is part of Marcia Marie’s medical records,

Dr. Boulware recorded Marcia Marie’s medical history and observations related to her

vasculitis. Dr. Boulware’s impression of Marcia Marie’s illness was: “it is difficult to tell

what type of vasculitis she has but more than likely this will be a medium sized vessel disease

. . . . She has been treated and evaluated extremely well by Dr. North and at this time was

strongly encouraged to maintain follow-up with her.”

¶27.   Prior to trial, the Maries filed a motion in limine to redact Marcia Marie’s medical

records, particularly the portion of Dr. Boulware’s Rheumatology New Patient Clinic Note

in which Dr. Boulware had written that Marcia Marie “has been treated and evaluated

extremely well by Dr. North and at this time was strongly encouraged to maintain follow-up



                                              11
with her.” The Maries argued that this statement was based upon speculation instead of

Marcia Marie’s medical records. Specifically, in their motion in limine, the Maries asserted

that “[t]o allow this portion of Mrs. Marie’s medical records to be presented into evidence

would highly prejudice the Plaintiff. It[s] . . . probative value, if any[,] is far outweighed by

its prejudicial effect.” In response, Dr. North argued that Dr. Boulware’s statement was

admissible under Mississippi Rule of Evidence 803(4), allowing for the admission of hearsay

statements made for the purposes of medical diagnosis and treatment, and under Mississippi

Rule of Evidence 803(6), allowing for the admission of hearsay statements if they are records

of regularly conducted business activity. The trial court denied the Maries’ motion in limine,

holding that Dr. Boulware’s statement was admissible because it was a “medical record.”

¶28.   After the trial court had held that Dr. Boulware’s statement was admissible, the Maries

offered Marcia Marie’s medical records into evidence as Exhibit 1, with Dr. Boulware’s

statement unredacted. The plaintiffs then objected to that evidence, arguing that Dr.

Boulware’s statement was inadmissible for the same reasons that they had previously argued

in their motion in limine. The trial court responded: “You’ve got your objection.”

¶29.   Although awkwardly presented, the Maries did make and preserve their objection to

the receipt of Dr. Boulware’s statement into evidence. In the circumstances, the better

practice would have been for the Maries to have premarked the medical-records exhibit that

included Dr. Boulware’s complimentary statement about Dr. North with that statement

redacted. This exhibit could have been tendered into evidence by the Maries during their

case-in-chief. Clearly, they were entitled to have such an exhibit received into evidence. Dr.



                                               12
North, of course, was at liberty to object to the redaction pretrial and also to make a

contemporaneous objection to its receipt into evidence. In anticipation that the defendants

would tender the same exhibit without the redaction–and the defendants likely would have

premarked such an exhibit–a motion in limine by the Maries could have urged the trial court

not to receive such a defense exhibit into evidence.

¶30.     “The admissibility of evidence rests within the discretion of the trial court, and

reversal is appropriate only when a trial court commits an abuse of discretion resulting in

prejudice . . . .” Ross v. State, 954 So. 2d 968, 992 (Miss. 2007) (citing Irby v. State, 893

So.2d 1042, 1047 (Miss. 2004)).

¶31.   The Mississippi Rules of Evidence provide that “[h]earsay is not admissible except

as provided by law.” M.R.E. 802. Further, hearsay is defined as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” M.R.E. 801(c). Because Dr. Boulware’s Rheumatology New

Patient Clinic Note was hearsay, we must examine whether that statement is covered by one

or more of the hearsay exceptions found in the Mississippi Rules of Evidence. See M.R.E.

802. Rule 803(4) provides:

       Statements made for purposes of medical diagnosis or treatment and
       describing medical history, or past or present symptoms, pain, or sensations,
       or the inception or general character of the cause or external source thereof
       insofar as reasonably pertinent to diagnosis or treatment, regardless of to
       whom the statements are made, or when the statements are made, if the court,
       in its discretion, affirmatively finds that the proffered statements were made
       under circumstances substantially indicating their trustworthiness. For
       purposes of this rule, the term “medical” refers to emotional and mental health
       as well as physical health.



                                              13
It is clear, however, that this rule applies only to statements made by the person seeking

medical diagnosis or care or on behalf of the person seeking medical diagnosis or care, not

to the observations of the patient’s doctor. See Valmain v. State, 5 So. 3d 1079, 1083-84

(Miss. 2009). Indeed, we have held that “[t]he underlying principle of the Rule 803(4)

hearsay exception is that statements made to physicians are highly likely to be truthful.” Id.

at 1084 (emphasis added). We have found that these hearsay statements are sufficiently

reliable because they are “assured by the likelihood that the patient believes that the

effectiveness of the treatment depends on the accuracy of the information provided to the

doctor, which may be termed a ‘selfish treatment motivation.’” Id. (quoting Broun, et al.,

McCormick on Evidence 2 § 277, 284 (6th ed. 2006)). Dr. Boulware’s statement was not

one made by a patient to a physician and therefore it does not carry the indicia of reliability

that justify this hearsay exception. Moreover, the trial court did not admit Dr. Boulware’s

statement under Rule 803(4). The trial court admitted Dr. Boulware’s statement as a

“medical record.” Ultimately, the majority’s application of Rule 803(4) to Dr. Boulware’s

statement is unprecedented and it is unsupported by the policy underlying the rule. Because

Dr. Boulware was not seeking treatment when writing his clinic note, Rule 803(4) does not

apply.

¶32.     Instead, Dr. Boulware’s statement meets the exception to the hearsay prohibition

outlined in Rule 803(6) of the Mississippi Rules of Evidence. Rule 803(6), which articulates

an exception to the hearsay rule for records of regularly conducted business activity,

provides:



                                              14
       A memorandum, report, record, or data compilation, in any form, of acts,
       events, conditions, opinions or diagnosis, made at or near the time by, or from
       information transmitted by, a person with knowledge, if kept in the course of
       a regularly conducted business activity, and if it was the regular practice of that
       business activity to make the memorandum, report, record, or data
       compilation, all as shown by the testimony of the custodian or other qualified
       witness or self-authenticated pursuant to Rule 902(11), unless the source of
       information or the method or circumstances of preparation indicate lack of
       trustworthiness. The term “business” as used in this paragraph includes
       business, institution, association, profession, occupation, and calling of every
       kind, whether or not conducted for profit.

The comments to this rule say, in pertinent part: “Rule 803(6) specifically includes diagnoses

and opinions as proper subjects of admissible entries, as well as the traditionally admissible

entries pertaining to acts, events and conditions.”

¶33.   The Maries argue that, even if Dr. Boulware’s statement meets the Rule 803(6)

hearsay exception, it is inadmissible because it is unreliable. The Maries opine that Dr.

Boulware’s statement was not based on credible evidence. Dr. Boulware’s statement was

based upon his independent evaluation of Marcia Marie. Thus, it is clear that Dr. Boulware’s

written notes, made for the purpose of communicating his opinion regarding Marcia Marie’s

diagnosis and prognosis, meet the exception to the hearsay proscription outlined in Rule

803(6).

¶34.   However, even if Dr. Boulware’s statement qualifies as an exception to the hearsay

rule, it still may be inadmissible if its probative value is substantially outweighed by the

unfair prejudice it creates. Rule 403 provides: “Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion




                                               15
of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” M.R.E. 403.

¶35.   It is common for medical records to include statements and opinions from healthcare

professionals who will not be offered as witnesses and whose expert qualifications are not

established in the case. To avoid hearsay exclusion, an expert who has been qualified to offer

an opinion in the case must testify that statements and opinions such as those included in the

medical records are the kinds of statements and opinions ordinarily relied upon by experts

in the field.

¶36.   Dr. Boulware was not offered as an expert in this case, his statement was not offered

as part of an expert report, and his testimony was not admitted into evidence as that of an

expert witness. However, the statement itself spoke to the standard of care applicable to Dr.

North. Thus, although this statement was admitted merely as a “medical record,” because

Dr. Boulware’s statement addressed the issue of Dr. North’s standard of care, we cannot

ignore that it is the type of testimonial statement that this Court has mandated is appropriate

only if given by experts or customarily relied upon by experts in the field. See Foster v. Noel,

715 So. 2d 174, 183 (Miss. 1998). Indeed, this is the very reason that we have an exacting

Rule 702. See Bailey Lumber & Supply Co. v. Robinson, 98 So. 3d 986, 992 (Miss. 2012).

We have held that, in order to for an expert opinion to be reliable, a witness must

demonstrate that he has the “knowledge, skill, experience, training, or education” to satisfy

Rule 702. Troupe v. McAuley, 955 So. 2d 848, 856 (Miss. 2007); accord Bailey Lumber &

Supply Co., 98 So. 3d at 996 (holding that the opinion of a doctor who specialized in internal



                                              16
medicine regarding the cause of a patient’s hip injury was unreliable because he lacked

sufficient expertise in the relevant medical field); Worthy v. McNair, 37 So. 3d 609, 616-17

(Miss. 2012) (holding that an obstetrician-gynecologist’s testimony about unborn baby’s

cause of death was unreliable because he lacked the required expertise in the field). In this

case, there is no evidence regarding Dr. Boulware’s experience, training, education, or

expertise in the record and no adjudication that he is, in fact, an expert in rheumatology.

Furthermore, the Maries have had no opportunity to cross-examine him regarding the basis

for his opinion. Thus, his opinion regarding the relevant standard of care has minimal, if any,

probative value under our rules, because the standard of care is a topic about which only

qualified experts may testify and because Dr. Boulware’s statement lacks the indicia of

reliability to be admitted as expert testimony.

¶37.   Furthermore, this statement was highly prejudicial to the Maries. It speaks directly

to the very claims the Maries sought to prove at trial. Moreover, because it was a statement

made by a physician, the jury easily could have found it persuasive and would not have

known that it was not to assign to this statement the same weight it would give that of a

medical expert who had undergone Rule 702 vetting at trial. Because its prejudicial effect

substantially outweighed its probative value, the trial court abused its discretion in admitting

Dr. Boulware’s statement into evidence. M.R.E. 403. And because admission of the

statement affected a “substantial right” of a party, its admission constituted reversible error.

M.R.E. 103.




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¶38.   The majority asserts that the Maries did not request that the trial court perform a Rule

403 balancing test. This is not correct. Specifically, in their motion in limine, the Maries

asserted that “[t]o allow this portion of Mrs. Marie’s medical records to be presented into

evidence would highly prejudice the Plaintiff. It[s] . . . probative value, if any is far

outweighed by its prejudicial effect.” Further, in their rebuttal brief, the Maries argued:

       Rule 403 of the Mississippi Rules of Evidence 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.”

       Plaintiffs have the burden of proving the standard of care and breach thereof
       by competent medical testimony. It is through admissible, competent medical
       testimony that the jury should weigh the evidence and determine whether the
       standard of care was breached. If the jury sees untrustworthy, hearsay notes
       that Mrs. Marie “has been treated and evaluated extremely well” and “I really
       do think that Dr. North is on the right track,” and hears of a conversation
       wherein another doctor states, “You’re doing the best that can be done,”
       Plaintiffs will be highly prejudiced in this case. Such prejudice highly
       outweighs any probative value.

The majority suggests that it is not enough to invoke Rule 403; a party also must explicitly

request that the trial court perform a balancing test to assert a proper objection. The

majority’s holding is inconsistent with our case law and the Mississippi Rules of Evidence.

We have held that, once an objection to the admission of evidence is made on the basis of

Rule 403, the trial court should perform an on-the-record balancing test. Smith v. State, 656

So. 2d 95 (Miss. 1995), overruled in part by Brown v. State, 890 So. 2d 901 (Miss. 2004)

(abandoning Smith’s requirement that a trial judge sua sponte give a limiting instruction).

Because Rule 403 describes a balancing test, there is no way for a court to evaluate the



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admissibility of evidence under Rule 403 without performing a balancing test. See M.R.E.

403. Thus, the invocation of Rule 403, which requires the trial court to determine whether

evidence is substantially more prejudicial than it is probative, is ipso facto a request for the

trial court to perform a Rule 403 balancing test. See id.

¶39.   Ultimately, the majority errs in finding that Dr. Boulware’s statement was admissible

because it meets the test of Rule 803(4). Moreover, Dr. Boulware’s statement was

inadmissible evidence because its prejudicial effect was substantially outweighed by its

probative value. Therefore, I respectfully dissent.

       DICKINSON, P.J., LAMAR AND KING, JJ., JOIN THIS OPINION.




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