              IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2016-CA-01141-COA

OTIS FIPPS                                                                   APPELLANT

v.

GREENWOOD LEFLORE HOSPITAL                                                     APPELLEE

DATE OF JUDGMENT:                            07/05/2016
TRIAL JUDGE:                                 HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                   LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      CARLOS EUGENE MOORE
ATTORNEYS FOR APPELLEE:                      TOMMIE GREGORY WILLIAMS JR.
                                             TOMMIE G. WILLIAMS
                                             HARRIS FREDERICK POWERS III
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                 AFFIRMED - 02/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          LEE, C.J., FOR THE COURT:

¶1.       In this medical-malpractice case, we must determine whether the trial court erred in

excluding the testimony of Otis Fipps’s medical expert, which resulted in the dismissal of

Fipps’s suit against Greenwood Leflore Hospital (the Hospital).1 Finding no error, we

affirm.

                          PROCEDURAL HISTORY AND FACTS

¶2.       On June 12, 2012, Fipps underwent an esophagogastroduodenoscopy (EGD)


          1
        In addition to the Hospital, Fipps initially sued Dr. Thomas Calvit in his individual
capacity and Greenwood Gastroenterology Center. Both Dr. Calvit and Greenwood
Gastroenterology Center were ultimately dismissed from the lawsuit.
procedure performed by Dr. Thomas Calvit at the Hospital. According to Dr. Calvit, Fipps

had complained of epigastric pain in both his left and right lower quadrants, dysphagia

(difficulty swallowing), rectal bleeding, and constipation. Fipps also told Dr. Calvit that he

possibly ingested a small piece of plastic several days prior to his initial appointment. During

the EGD, Dr. Calvit performed an esophageal dilatation2 to treat Fipps’s dysphagia. Fipps

claims this procedure caused a perforation of his esophagus, leading to further medical

complications including a neck abscess and two additional surgeries.

¶3.    Fipps designated Dr. Myron Stokes, a general surgeon, as an expert “in surgery

regarding upper and lower gastrointestinal issues.”         In his affidavit attached to the

designation, Dr. Stokes stated that “the performance of esophageal dilatation [during Fipps’s

EGD procedure] was not proven to be indicated in any of Dr. Calvit’s pre-operative or

intraoperative findings, thus constituting a deviation from the standard of care expected of

a physician in Dr. Calvit’s profession and specialty.” Dr. Stokes further opined that the

esophageal “dilatation was the initiating event that led to Fipps developing a fistula with

resultant neck abscess requiring two additional surgeries.” Dr. Stokes was deposed several

months later.

¶4.    Based upon Dr. Stokes’s deposition, the Hospital filed three pretrial motions. The

first asked the trial court to exclude the portions of Dr. Stokes’s testimony regarding

informed consent. The second asked the trial court to exclude any potential testimony by Dr.

Stokes that his medical license was current or that he had never been disciplined by any



       2
           This procedure is also referred to as an esophageal dilation in the record.

                                                2
medical licensure board.3 The third asked the trial court to exclude Dr. Stokes’s expert

opinion because he lacked the appropriate qualifications to testify.

¶5.    The trial court conducted a hearing on the Hospital’s motions, ultimately granting all

three. The effect of these rulings resulted in the exclusion of Dr. Stokes’s deposition.4 After

granting the Hospital’s motions, the trial court asked Fipps to call his first witness. Since

Fipps had no witness other than Dr. Stokes, Fipps rested. The Hospital then requested a

dismissal pursuant to Mississippi Rule of Civil Procedure 41(b). Finding that Fipps could

not meet his burden without expert testimony, the trial court granted the Hospital’s motion.

                                       DISCUSSION

       I.     Expert Testimony

¶6.    Fipps first argues that Dr. Stokes was qualified to offer his opinion regarding the

standard of care applicable to a gastroenterologist.

¶7.    According to Mississippi Rule of Evidence 702,5 a witness may testify as an expert

if the witness is “qualified as an expert by knowledge, skill, experience, training, or

education,” and “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



       3
       After Dr. Stokes’s deposition but prior to trial, his Mississippi medical license was
suspended.
       4
         Fipps had previously informed the trial court that Dr. Stokes’s deposition would
serve as his trial testimony.
       5
        Effective July 1, 2016, the Rules of Evidence were restyled. Though these changes
were not substantive, we have quoted the former language of the rule that was in force
during the trial-level proceedings.

                                              3
principles and methods reliably to the facts of the case.”

¶8.      The trial court has a gate-keeping responsibility to assure a proposed expert’s opinion

has “a reliable basis in the knowledge and experience of the relevant discipline.” Worthy v.

McNair, 37 So. 3d 609, 614 n.3 (Miss. 2010) (quoting Kumho Tire Co. v. Carmichael, 526

U.S. 137, 158 (1999)). See also Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 589

(1993). We review a trial court’s determination as to the qualifications of an expert witness

under our familiar abuse-of-discretion standard, Hubbard v. Wansley, 954 So. 2d 951, 956

(¶11) (Miss. 2007), which has been referred to in medical-expert cases as having “the widest

possible discretion.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141, 146 (¶16) (Miss.

2007).

¶9.      We first note that the fact that Dr. Stokes, a board-certified general surgeon, is not

certified as a gastroenterologist is not dispositive. “There is no requirement that an expert

in a medical-malpractice case be a specialist in the same area as the doctor about whom the

expert is testifying in regard to the standard of care.” McDaniel v. Pidikiti, 39 So. 3d 952,

956 (¶10) (Miss. Ct. App. 2009) (citation omitted). However, “[s]atisfactory familiarity with

the specialty of the defendant doctor is . . . required in order for an expert to testify as to the

standard of care owed to the plaintiff patient.” Hubbard, 954 So. 2d at 957 (¶13).

¶10.     In concluding that Dr. Stokes was not qualified, the trial court determined that “the

questions pertaining to Dr. Stokes’s knowledge of and familiarity with the standards of care

of a gastroenterologist treating a patient such as Fipps simply were not asked.” And that

nothing exists “in Dr. Stokes’s deposition from which this court can determine that Dr.



                                                4
Stokes is familiar with and/or possesses knowledge of the standard of care in the speciality

of gastroenterology.” The trial court recognized that Dr. Stokes did have some familiarity

with EGD procedures, but noted that Dr. Stokes “was never asked and did not testify that he

was familiar with the standard of care in the medical speciality of gastroenterology as to

when and whether the dilatation procedures should be performed.” In fact, Dr. Stokes’s

testimony concerning the esophageal dilatation indicated that he had never used the specific

tool (a Maloney dilator) used by Dr. Calvit during the EGD. The trial court further noted that

Dr. Stokes was never tendered as an expert in gastroenterology, only as a general surgeon.

¶11.   Mindful that trial courts have the widest possible discretion in medical-expert cases,

we cannot find that the trial court abused its discretion in finding Dr. Stokes was not

qualified to offer his expert opinion. Although Dr. Stokes had some familiarity with the

procedure, he did not indicate sufficient familiarity with the standard of care to which a

gastroenterologist is held—Dr. Stokes simply opined as to what he would have done as a

general surgeon in a similar situation. To reiterate the trial court’s finding, Dr. Stokes “was

never asked and did not testify that he was familiar with the standard of care in the medical

speciality of gastroenterology as to when and whether the dilatation procedures should be

performed.” “The rule is that the expert must exercise the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Poole ex rel. Poole v. Avara,

908 So. 2d 716, 724 (¶16) (Miss. 2005). Absent expert testimony, there is no triable issue

of fact regarding the alleged medical malpractice of Dr. Calvit. This issue is without merit.

       II.    Informed Consent



                                               5
¶12.     Fipps next argues that Dr. Stokes’s opinion regarding informed consent was properly

disclosed; thus, the trial court erred in granting the Hospital’s motion in limine. Upon

questioning by the Hospital during his deposition, Dr. Stokes stated that he had not been

asked to give his opinion on informed consent. However, on cross-examination, Fipps

questioned Dr. Stokes about informed consent. The Hospital objected. After learning that

Dr. Stokes’s deposition would be his trial testimony, the Hospital then filed its motion in

limine. “The standard of review for a trial court’s decision either to admit or exclude

evidence is abuse of discretion.” Burnwatt v. Ear, Nose & Throat Consultants of N. Miss.,

47 So. 3d 109, 114 (¶17) (Miss. 2010). Since we are affirming the trial court’s decision to

exclude Dr. Stokes’s testimony, we see no reason to address this issue.

         III.   Status of Dr. Stokes’s Medical License

¶13.     Fipps contends that the trial court erred in granting the Hospital’s motion in limine to

prevent Dr. Stokes from testifying that he was a licensed physician. In his deposition, Dr.

Stokes testified that he had never been disciplined by any state’s medical-licensure board.

By the time of trial, however, his license to practice medicine in Mississippi had been

suspended. Fipps argues that any actions by the Mississippi State Board of Medical

Licensure regarding Dr. Stokes’s license did not commence until after Dr. Stokes’s

deposition; thus, Dr. Stokes’s deposition testimony that he was a licensed physician who had

never been disciplined was accurate at the time. Ultimately, Dr. Stokes’s deposition was

offered as his testimony. For reasons previously stated, we see no reason to address this

issue.



                                                6
¶14.   AFFIRMED.

     GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




                                7
