             IN THE SUPREME COURT OF MISSISSIPPI

                     NO. 2007-CA-01743-SCT

NAOMI RUTH McDONALD AND JANELLA
LAVETTE McDONALD

v.

MEMORIAL HOSPITAL AT GULFPORT AND DR.
JUAN CARLOS TERAN-BENITEZ


DATE OF JUDGMENT:              08/29/2007
TRIAL JUDGE:                   HON. STEPHEN B. SIMPSON
COURT FROM WHICH APPEALED:     HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:       F. GERALD MAPLES
ATTORNEYS FOR APPELLEES:       SHELLYE VINES McDONALD
                               WILLIAM E. WHITFIELD, III
                               KIMBERLY S. ROSETTI
NATURE OF THE CASE:            CIVIL - WRONGFUL DEATH
DISPOSITION:                   AFFIRMED - 04/30/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                     CONSOLIDATED WITH

                     NO. 2007-CA-02169-SCT

NAOMI RUTH McDONALD      AND    JANELLA
LAVETTE McDONALD

v.

MEMORIAL HOSPITAL AT GULFPORT AND DR.
JUAN CARLOS TERAN-BENITEZ

DATE OF JUDGMENT:              11/02/2007
TRIAL JUDGE:                   STEPHEN B. SIMPSON
COURT FROM WHICH APPEALED:     HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:       F. GERALD MAPLES
ATTORNEYS FOR APPELLEES:                   SHELLYE VINES McDONALD
                                           WILLIAM E. WHITFIELD, III
                                           KIMBERLY S. ROSETTI
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               AFFIRMED - 04/30/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Naomi Ruth McDonald filed this wrongful-death/medical-malpractice action against

several medical providers arising out of the treatment and care of her husband, Janella

Lavette McDonald. Defendant Memorial Hospital at Gulfport filed a Motion to Dismiss or

in the Alternative Motion for Summary Judgment, asserting that McDonald’s claims were

time-barred under the Mississippi Tort Claims Act. Defendants Dr. Juan C. Teran-Benitez

and Gastroenterology Center, P.A., filed a Motion to Strike Expert Witnesses of Plaintiff and

for Summary Judgment. The Circuit Court for the First Judicial District of Harrison County

ultimately granted both motions, thus dismissing these defendants from the suit. Aggrieved,

McDonald appealed both final judgments, properly certified pursuant to Mississippi Rule of

Civil Procedure 54(b), and this Court consolidated the appeals. Finding no error, we affirm.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On March 7, 2003, Janella Lavette McDonald (Mr. McDonald) was admitted to

Memorial Hospital at Gulfport (MHG) by Dr. David LaRosa for treatment of pneumonia.

Dr. Frederick Pakron was consulted, and on March 14, 2003, Mr. McDonald was discharged

from MHG, and Dr. Pakron took over Mr. McDonald’s care, admitting him to Select



                                             2
Specialty Hospital (SSH). SSH is a long-term, acute-care hospital located on the fifth floor

of MHG.

¶3.      On March 24, 2003, while still a patient at SSH, Mr. McDonald experienced nausea

and vomiting of brown material or blood, and Dr. Juan C. Teran-Benitez (Dr. Teran-Benitez)

was consulted. Dr. Teran-Benitez ordered an endoscopic procedure, and Mr. McDonald was

sent to the endoscopy suite at MHG, where Dr. Teran-Benitez attempted to perform an

esophagogastroduodenoscopy (EGD). Foreign or coffee-ground-appearing material was

encountered upon insertion of the scope. Due to Mr. McDonald’s Do-Not-Resuscitate

(DNR) status as noted on his chart, Dr. Teran-Benitez and members of the lab staff consulted

Mr. McDonald’s wife, Naomi Ruth McDonald, regarding the insertion of an endotracheal

tube to protect Mr. McDonald’s airway. Mrs. McDonald refused, and Mr. McDonald expired

in the endoscopy lab on March 24, 2003.

¶4.      Naomi Ruth McDonald (McDonald), as widow of Janella Lavette McDonald,

deceased, and as personal representative of statutory heirs, originally filed this wrongful-

death and medical-malpractice action on June 9, 2004. Subsequent amended complaints also

were filed, and in the end, several medical providers were named as defendants. McDonald

gave previous notice of her claim to MHG on March 22, 2004, pursuant to the Mississippi

Tort Claims Act, more specifically, Mississippi Code Annotated Section 11-46-11(1) (Rev.

2002).

¶5.      On July 25, 2005, McDonald designated as experts Dr. Rodrigo Galvez, Dr. George

Nichols, and Judith Kidd, a registered nurse. On December 9, 2005, Dr. Teran-Benitez and

Gastroenterology Center, P.A., filed their Motion to Strike Expert Witnesses of Plaintiff and


                                             3
for Summary Judgment, asserting that Dr. Galvez and Dr. Nichols were not qualified to offer

opinions regarding the standard of care for a gastroenterologist. Also on December 9, 2005,

MHG filed its Motion to Dismiss or in the Alternative Motion for Summary Judgment,

stating that McDonald did not substantially comply with Mississippi Code Section 11-46-

11(3). The Circuit Court for the First Judicial District of Harrison County, Judge Stephen

B. Simpson presiding, conducted a hearing on the aforementioned motions. The trial court

subsequently granted summary judgment in favor of Dr. Teran-Benitez and Gastroenterology

Center, P.A., and MHG, and entered final judgments consistent with the grant of summary

judgment.

¶6.    More specifically, as to Dr. Teran-Benitez and Gastroenterology Center, P.A., Judge

Simpson entered a judgment of dismissal which stated, inter alia, that the judgment was

entered pursuant to the provisions of Mississippi Rule of Civil Procedure 54(a), and that,

pursuant to the provisions of Mississippi Rule of Civil Procedure 54(b), the final judgment

should be entered as to Dr. Teran-Benitez and Gastroenterology Center, P.A., “as there is no

just reason for delay.” As to MHG, Judge Simpson entered a judgment of dismissal which

stated, inter alia, that MHG’s “[m]otion to [d]ismiss or in the alternative for [s]ummary

[j]udgment is granted and final judgment is hereby entered, as there is no just reason for

delay.”

¶7.    From these final judgments entered in favor of Dr. Teran-Benitez, Gastroenterology

Center, P.A., and MHG, and properly certified pursuant to Mississippi Rule of Civil

Procedure 54(b), McDonald appealed to us asserting two issues: (1) whether the trial court

erred in dismissing the plaintiffs’ claims against MHG based on the one-year statute of


                                             4
limitations set forth in Mississippi Code Section 11-46-11(3); and (2) whether the trial court

erred in ruling the plaintiffs’ expert witnesses were not qualified to testify regarding the

standard of care applicable to Dr. Teran-Benitez, and in consequently granting the motion

for summary judgment, entering a judgment of dismissal in favor of Dr. Teran-Benitez and

Gastroenterology Center, P.A.

                                        DISCUSSION

¶8.    This Court’s well-established standard of review in reviewing a trial court’s grant or

denial of summary judgment is de novo. One South, Inc. v. Hollowell, 963 So. 2d 1156,

1160 (Miss. 2007) (citing Hubbard v. Wansley, 954 So. 2d 951, 956 (Miss. 2007)).

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Miss. R. Civ. P. 56(c). “We will not reverse the trial court's decision

unless it appears that triable issues of fact remain when the facts are viewed in the light most

favorable to the nonmoving party.” Moore v. Mem’l Hosp., 825 So. 2d 658, 663 (Miss.

2002) (citing Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 207 (Miss. 1999)).

However, “[a]bsent an abuse of discretion, a judge's determination as to the qualifications

of an expert witness will remain undisturbed on appeal.” Hubbard v. Wansley, 954 So. 2d

951, 956 (Miss. 2007) (citing Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346, 1357

(Miss. 1990) (citation omitted)). This Court stated:

       The law empowers a trial judge to determine whether a proffered expert is
       qualified to testify and does not restrict exercise of this power to the trial stage
       only. That is, a judge has as much power to resolve doubts on qualifications

                                                5
       of proffered experts during the summary judgment stage as he has during the
       trial stage. And of course, the standard which this Court must apply when
       reviewing a trial judge's decision to disqualify remains unchanged –
       notwithstanding that the decision was made during the summary judgment
       stage. That is, this Court will determine whether the trial judge abused his
       discretion.

Id.

       I.      WHETHER THE TRIAL COURT ERRED IN DISMISSING
               PLAINTIFF’S CLAIMS AGAINST DEFENDANT MEMORIAL
               HOSPITAL AT GULFPORT BASED ON THE ONE-YEAR
               STATUTE OF LIMITATIONS SET FORTH IN MISSISSIPPI
               CODE SECTION 11-46-11(3).

¶9.    The trial court granted MHG’s Motion to Dismiss or in the Alternative Motion for

Summary Judgment; thus, dismissing the action against MHG as time-barred pursuant to

Mississippi Code Section 11-46-11(3), which states in part:

       All actions brought under the provisions of this chapter shall be commenced
       within one (1) year next after the date of the tortious, wrongful or otherwise
       actionable conduct on which the liability phase of the action is based, and not
       after; provided, however, that the filing of a notice of claim as required by
       subsection (1) of this section shall serve to toll the statute of limitations for a
       period of ninety-five (95) days from the date the chief executive officer of the
       state agency receives the notice of claim, or for one hundred twenty (120) days
       from the date the chief executive officer or other statutorily designated official
       of a municipality, county or other political subdivision receives the notice of
       claim . . . .

Miss. Code Ann. § 11-46-11(3) (Rev. 2002). The trial court determined that “any negligence

for which MHG would be liable had to have occurred on or before March 14, 2003,” the date

on which Mr. McDonald was discharged from MHG and admitted to SSH. The trial court

ruled that since MHG did not receive notice of the claim until March 22, 2004, a little more

than one year after Mr. McDonald’s discharge from MHG, the action was barred by the

statute of limitations.

                                               6
¶10.   However, since the trial court did not address the discovery rule with respect to

section 11-46-11(3), we must do so today for the sake of clarity. This Court has held that a

discovery rule applies to claims under the Mississippi Tort Claims Act (MTCA). See Caves

v. Yarbrough, 991 So. 2d 142, 154 (Miss. 2008) (“we therefore shall continue to recognize

a discovery rule with respect to Section 11-46-11(3)”). In Caves, decided after the trial

judge’s entry of judgments in today’s case, this Court stated:

       We hold today that the MTCA's one-year statute of limitations begins to run
       when the claimant knows, or by exercise of reasonable diligence should know,
       of both the damage or injury, and the act or omission which proximately
       caused it. We further hold that the finder of fact (in this case, the trial judge)
       must decide when those requirements are satisfied.

Caves, 991 So. 2d at 155. Therefore, when analyzing claims under the MTCA one-year

statute of limitations, trial courts must employ the discovery rule. When applying this rule

to the facts of the case sub judice, it is evident that McDonald complied with the one-year

statute of limitations. McDonald assuredly had no way of knowing “of both the damage or

injury, and the act or omission which proximately caused it” until at least March 24, 2003,

when her husband vomited blood and eventually died later that day. Id. McDonald

submitted the statutory notice to MHG on March 22, 2004; so, even assuming arguendo that

she discovered an actionable injury on March 24, 2003, McDonald complied with the one-

year statute of limitations imposed by Section 11-46-11(3). Thus, the trial court erred in

ruling that McDonald’s claims were barred based on the statute of limitations.

¶11.   However, the trial court correctly determined that “[w]ithout a genuine issue of

material fact as to causation established by experts plaintiff cannot survive summary

judgment.” McDonald designated three experts: Judith Kidd, Dr. Galvez, and Dr. Nichols.

                                               7
As addressed by the trial court, Nurse Judith Kidd testified via deposition to alleged breaches

of nursing standards of care and their application to Mr. McDonald’s treatment while a

patient at MHG, but she failed to address causation. In her deposition testimony, Nurse Kidd

(a registered nurse certified as a medical/surgical nurse and as a gerontological nurse) stated

“I don’t speak to medical causation,” acknowledging that she was not competent to testify

as to medical causation. The two other experts, Dr. Galvez and Dr. Nichols, did not offer

testimony regarding any alleged breach by MHG.

¶12.   In order to establish a prima facie case of medical negligence, McDonald must prove

“that (1) the defendant had a duty to conform to a specific standard of conduct for the

protection of others against an unreasonable risk of injury; (2) the defendant failed to

conform to that required standard; (3) the defendant’s breach of duty was a proximate cause

of the plaintiff’s injury, and; (4) the plaintiff was injured as a result.” Delta Reg’l Med. Ctr.

v. Venton, 964 So. 2d 500, 504 (Miss. 2007) (citing Burnham v. Tabb, 508 So. 2d 1072,

1074 (Miss. 1987)). As a general rule, expert testimony must be used in proving these

elements. “Not only must this expert identify and articulate the requisite standard that was

not complied with, the expert must also establish that the failure was the proximate cause,

or proximate contributing cause, of the alleged injuries.” Barner v. Gorman, 605 So. 2d 805,

809 (Miss. 1992) (citing Latham v. Hayes, 495 So. 2d 453 (Miss. 1986)). Although

McDonald offered evidence regarding breach of duty, she failed to produce any expert

testimony that MHG or its agents were the cause of Mr. McDonald’s injuries or death. As

a result, the trial judge did not err in finding that there was no genuine issue of material fact




                                               8
as to causation, and the trial court thus properly granted summary judgment in favor of

MHG.

¶13.   We thus find this issue to be without merit.

       II.    WHETHER THE TRIAL COURT ERRED IN RULING
              PLAINTIFF’S EXPERT WITNESSES UNQUALIFIED TO
              TESTIFY REGARDING THE STANDARD OF CARE
              A PPL IC A BL E T O DR . TER AN -B EN IT EZ, A N D
              CONSEQUENTLY GRANTING DR. TERAN-BENITEZ’S
              MOTION FOR SUMMARY JUDGMENT.

¶14.   McDonald argues that the trial court misapplied Mississippi Rule of Evidence 702 in

granting the Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment filed

by Dr. Teran-Benitez and Gastroenterology Center, P.A. 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.

¶15.   Expert testimony should only be admitted if it withstands the two-prong inquiry under

Rule 702. “First, the witness must be qualified by virtue of his or her knowledge, skill,

experience or education. Second, the witness’s scientific, technical or other specialized

knowledge must assist the trier of fact in understanding or deciding a fact in issue.” Miss.

Transp. Comm’n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003) (citing Miss. R. Evid. 702)

(citation omitted). Generally, it is not required that an expert in a medical-malpractice case

be of the same specialty as the doctor about whom the expert is testifying. Hubbard, 954 So.



                                              9
2d at 957 (Miss. 2007).1 “It is the scope of the witness' knowledge and not the artificial

classification by title that should govern the threshold question of admissibility.” Id.

(quoting West v. Sanders Clinic for Women, P.A., 661 So. 2d 714, 719 (Miss. 1995)).

However, the expert still must show satisfactory familiarity with the specialty of the

defendant doctor in order to testify as to the standard of care owed to the patient. Id. (citing

West, 661 So. 2d at 718-19).

¶16.   McDonald designated Dr. Rodrigo Galvez and Dr. George Nichols to offer testimony

regarding the standard of care applicable to Dr. Teran-Benitez. In ruling on the motion, the

trial court determined that the “[p]laintiffs have offered no evidence that either of their

experts have any familiarity with the standard of care applicable to Dr. Teran, a

gastroenterologist.” Dr. Galvez, a board-certified pathologist and psychiatrist, has practiced

pathology since 1968 and both pathology and psychiatry since 1981. He has never practiced

in the field of gastroenterology, and since medical school has not performed any procedures

in this field other than one colonoscopy in 1976. Further, Dr. Galvez has never admitted a

patient to an acute-care facility other than a psychiatric facility, and he has not performed an

EGD, the procedure Mr. McDonald was undergoing, since medical school in the 1960s. He

last intubated a patient in 1963. Dr. Galvez also has never been involved in a procedure with

a DNR patient, where consent from a family member was necessary to take action to save

the patient’s life.




       1
      With all due respect, we disagree with the separate opinion’s interpretation of
Hubbard.

                                              10
¶17.   In order to testify, Dr. Galvez, while not required to be a gastroenterologist, had to at

least be familiar with the standard of care to which a gastroenterologist is held. See Troupe

v. McAuley, 955 So. 2d 848, 856-57 (Miss. 2007). Based on Dr. Galvez’s deposition

testimony and curriculum vitae, the trial court found that Dr. Galvez was not familiar with

the proper standard of care and had not exercised the same level of intellectual rigor that

characterizes the practice of an expert in the field of gastroenterology. Poole v. Avara, 908

So. 2d 716, 724 (Miss. 2005) (citing McLemore, 863 So. 2d at 37-38).

¶18.   Regarding the standard of care applicable to Dr. Teran-Benitez, Dr. Nichols, a

pathologist, testified in his deposition that he (Dr. Nichols) had never treated a patient in Mr.

McDonald’s situation. Dr. Nichols also admitted that “I have never written DNR orders or

been involved in those discussions about anyone other than my own relatives.” McDonald

presented no evidence that Dr. Nichols was familiar with the standard of care attributable to

gastroenterologists. When questioned about his standard-of-care testimony, Dr. Nichols

responded that he was not really there to offer standard-of-care testimony “other than

standard of care for a proven practicing physician” . . . “a plain M.D.” Dr. Nichols offered

no testimony that he was competent to testify to the standard of care of a gastroenterologist.

As this Court stated in Hubbard, “[i]t is illogical to allow a proposed expert to testify as to

the standard of care of a specialty with which he has demonstrated no familiarity.” Hubbard,

954 So. 2d at 958.

¶19.   The trial court did not abuse its discretion in granting the Motion to Strike Expert

Witnesses of Plaintiff filed by Dr. Teran-Benitez and Gastroenterology Center, P.A. The

trial court committed no error in ruling that the “experts offered no testimony that convinces

                                               11
this Court that either of them is competent to testify as to that standard of care.” Thus, the

trial court did not err in granting summary judgment. As previously discussed, as a general

rule, expert testimony must be used in proving the elements of medical negligence. Absent

expert testimony, there is no triable issue of fact with regard to the alleged medical

negligence of Dr. Teran-Benitez. See Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346

(Miss. 1990).

¶20.   This issue is without merit.

                                       CONCLUSION

¶21.   For the reasons stated, the final judgments of dismissal entered in favor of Memorial

Hospital at Gulfport, Dr. Juan Carlos Teran-Benitez, and Gastroenterology Center, P.A., by

the Circuit Court for the First Judicial District of Harrison County are affirmed.

¶22.   AFFIRMED.

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


    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶23.   I agree with the majority’s analysis regarding Memorial Hospital at Gulfport, insofar

as today’s decision holds that McDonald’s case is not time-barred by virtue of the discovery

rule but that the plaintiff offered no evidence of causation against MHG. However, I find

fault with the majority’s analysis concerning expert witnesses, and therefore, I dissent from

the determination that the plaintiff failed to offer qualified experts.




                                              12
¶24.   It is undisputed that, generally speaking, Mississippi law requires medical-malpractice

plaintiffs to use expert witnesses to “identify and articulate the requisite standard that was

not complied with . . . [and] also [to] establish that the failure was the proximate cause, or

proximate contributing cause, of the alleged injuries.” Barner v. Gorman, 605 So. 2d 805,

809 (Miss. 1992). The use of expert witnesses in Mississippi courtrooms is governed by

Mississippi Rule of Evidence 702, which defines an expert as one “qualified . . . by

knowledge, skill, experience, training, or education” who may impart that expertise “[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue.” Miss. R. Evid. 702. Rule 702 serves only to

distinguish fact witnesses from witnesses with some degree of specialized knowledge who

may provide assistance to jurors in their labors as finders of fact. The rule serves to separate

witnesses possessed of relevant factual information from those who, because of special

knowledge about a particular subject are, for evidentiary purposes, deemed experts and are

allowed to give opinions.

¶25.   The courts of this state and others acknowledge this principle through the recognition

that a plaintiff’s medical-expert witness need not be “of the same specialty as the doctor

about whom the expert is testifying,” Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss.

2007), because “[i]t is the scope of the witness’ knowledge and not the artificial classification

by title that should govern the threshold question of admissibility.” Id. (quoting West v.

Sanders Clinic for Women, P.A., 661 So. 2d 714, 719 (Miss. 1995)). Rule 702 is broadly

constructed and broadly construed. It “seeks to encourage the use of expert testimony in non-

opinion form when counsel believes the trier can draw the requisite inference.” Miss. R.

                                               13
Evid. 702 cmt. (emphasis added). It does not purport to restrict expert testimony to the

domain of a tiny class of geniuses, but merely to differentiate between experts and

laypersons. Rule 702 sets a “low threshold for competency” in favor of courts’ “preference

for leaving matters of credibility to the judgment of the jury . . . .” State v. Calliham, 2002

UT 86, ¶ 27, 55 P.3d 573, 583 (Utah 2002).

¶26.   Despite such traditionally broad treatment, in recent years, this Court consistently has

tightened the requirements for expert testimony in medical-malpractice cases. See Hubbard,

954 So. 2d at 966-67 (Diaz, J., dissenting). In 1987, for example, the Court followed the

consensus approach, quoting the third edition of McCormick on Evidence, by holding that

although expert testimony was required, “a specialist in a particular branch within a

profession will not be required.” Brown v. Mladineo, 504 So. 2d 1201, 1202 (Miss. 1987).

Today, the national consensus remains broadly permissive of expert testimony; a party

seeking to admit expert testimony need only demonstrate “that the witness has sufficient skill

or knowledge related to the pertinent field or calling that his inference will probably aid the

trier in the search for truth.” McCormick on Evidence § 13 (Kenneth S. Broun ed., 6th ed.

2006) (emphasis added). As recently as 2002, Mississippi courts treated Rule 702 broadly

enough to permit “a physician in one specialty [to] testify as to the standard of care in another

specialty, provided he is familiar with the standards of that other specialty.” Robert A.

Weems & Robert M. Weems, Mississippi Law of Torts § 4:1, at 48 (2002). This rule is as

pragmatic as it is principled. In addition to adhering to the broad construction of Rule 702,

courts’ permissive attitudes toward expert witnesses in medical-malpractice suits recognize

“the traditional reluctance of members of the profession to testify against each other, and the

                                               14
difficulty of securing the testimony of a specialist in the same field as the defendant.” Bender

on Medical Malpractice § 29.02(3) (2008).

¶27.   More recently, though, Mississippi’s longstanding, broad treatment of Rule 702 has

been cast aside in favor of increasingly demanding requirements. Although our most recent

decisions purport to adhere to the traditional standard, this Court has demanded more and

more that “an expert . . . be of the same specialty as the doctor about whom the expert is

testifying,” while professing that such a rigid standard “is generally not required.” Hubbard,

954 So. 2d at 957.

¶28.   In 2004, for example, the Court found no error in a trial court’s decision to allow a

defendant’s expert witness because all that was required to satisfy Rule 702 was “something

more than unsupported speculation of subjective belief that is grounded in methods and

procedures of science.” Poole v. Avara, 908 So. 2d 716, 723 (Miss. 2004). Whatever

imperfections existed in the witness’s qualifications, the Court reasoned, would be properly

addressed during cross-examination. Id. at 724. That same holding described Rule 702 as

“unquestionably flexible.” Id. at 723. But only a year later, the Court found that a trial court

correctly disqualified a family physician from testifying for a plaintiff about dialysis, a

common procedure, because the witness “did not have the specialized knowledge to assist

the trier of fact to understand the evidence . . . .” Cheeks v. Bio-Medical Applications, Inc.,

908 So. 2d 117, 121 (Miss. 2005). By 2007, the Court’s application of our “unquestionably

flexible” Rule 702 had grown so rigid that it found no error in a trial court’s decision to

disqualify a seasoned neurologist seeking to testify about a neurological condition because,




                                              15
according to the Court, the plaintiff offered no evidence that this neurologist “ha[d] any

familiarity with” the relevant neurological condition. Hubbard, 954 So. 2d at 958.

¶29.   Our case law now stands witness to the simple truth that Mississippi no longer adheres

to the national standard. The restrictive approach enunciated in Hubbard, and built upon

today, conflicts with the expert-witness evidentiary rules of virtually every state in the

country and may very well be the most restrictive approach in the nation. While this Court

now requires nearly identical curricula vitae between defendant and witness, other states

generally accept witnesses based not on their particular specialties but on the extent of their

knowledge. In Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989) (superseded by statute on

other grounds), the Connecticut Supreme Court allowed a neurologist to testify as an expert

against a general surgeon, despite the fact that the witness was not a professional clone of the

defendant. “[T]he crucial question is whether the expert knows what the standards of practice

are.” Id. at 542 (citations omitted). In Roberts v. Warren, 791 So. 2d 1278 (La. 2001), the

Louisiana Supreme Court found an oral surgeon qualified to testify as an expert in a dental

malpractice trial, not because the expert was familiar with the relevant procedure or even

because of his particular expertise with oral surgery, but because “where there is a uniform

nationwide method of performing a particular medical procedure, an expert having

knowledge of such method is qualified to testify, and the testifying expert in this

circumstance is not constrained by the need to have practiced . . . under similar

circumstances.” Id. at 1280. Georgia law, similarly, does not require an expert witness in a

medical-malpractice case to be a specialist in the same area of medicine as the defendant.

Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 612 (11th Cir. 1990) (applying

                                              16
Georgia law described in Beatty v. Morgan, 170 Ga. App. 661, 317 S.E.2d 662, 664 (1984)).

Florida has permitted a neurosurgeon to testify against a gynecologist, Brown v. Sims, 538

So. 2d 901 (Fla. Dist. Ct. App. 1989), just as the South Carolina Supreme Court found an

emergency medical technician qualified to testify to the standard of care owed by a defendant

anesthesiologist for the latter’s performance during an intubation. Gooding v. St. Francis

Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997). “A medical practitioner’s experience

teaching and interacting with persons in the applicable specialty are sufficient to support his

qualification as an expert. Qualification depends on the particular witness’ reference to the

subject.” Id. at 253.

¶30.   Simply put, this Court has abandoned adherence to the traditional interpretation of

Rule 702. Gone are the days when this Court found Rule 702 satisfied when an expert was

qualified to testify with an opinion grounded in “something more than unsupported

speculation of subjective belief that is grounded in methods and procedures of science,”

Poole v. Avara, 908 So. 2d 716, 723 (Miss. 2004), and this Court seems increasingly

disinterested in the plain language of the rule itself, which clearly notes that expert witnesses

may be qualified not only by virtue of experience, but also by knowledge, skill, training, or

education. Miss. R. Evid. 702. In the case at bar, any deficiencies in these experts’

knowledge could have been exposed by competent cross-examination.

¶31.   Plaintiff’s expert witnesses in the instant case undoubtedly satisfy Mississippi’s

traditional requirements for qualification of expert witnesses. Dr. Rodrigo Galvez, one of

McDonald’s proffered witnesses, testified in his deposition that he has knowledge of ear,

nose, and throat treatment dating back to his days as an intern in New York in the 1960s. He

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performed intubations and EGDs during his time in medical school, and he has experience

charting patients under do-not-resuscitate status and explaining that status to patients’

families. Likewise, Dr. George Nichols is also qualified to testify under the Court’s

longstanding Rule 702 treatment. As a forensic pathologist, Nichols’s curriculum vitae

undoubtedly does not parallel Teran’s, but he deposed that he is well studied in the area of

“human biologic fluids . . . [,] how they relate to disease or to health . . . [and] how a person

goes from alive to dead.” Nichols and Galvez certainly have the “knowledge, skill,

experience, training, or education” necessary to “assist the trier of fact to understand the

evidence . . . .” Miss. R. Evid. 702.

¶32.   But even under the Court’s new, overly restrictive approach legislated in Hubbard,

the proffered experts still should have been permitted to testify. As forensic pathologists,

Galvez and Nichols both are deeply experienced in the innumerable causes of death that

human beings encounter. In Hubbard, this Court found “no evidence that [the proffered

expert witness] has any familiarity with the standard of care that would be required . . . .”

Hubbard, 954 So. 2d at 958 (emphasis added). No such lack of evidence exists in this case.

As Galvez told his deposer, “I know the lung pathology very well, but I wouldn’t dare to

treat anybody with a lung problem. But I know when the treatment is good or causes some

damage to the patient; that’s part of pathology.” As was the case in the Pennsylvania case of

Smith v. Paoli Memorial Hospital, 885 A.2d 1012 (Pa. Super. 2005), the experts’ bodies of

knowledge overlap the relevant area of medical care to a sufficient degree to make their

testimony helpful to the trier of fact. Unless we are prepared again to trim back Rule 702 and,

for all practical purposes, jettison the notion that “the artificial classification by title . . .

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should [not] govern the threshold question of admissibility,” Hubbard, 954 So. 2d at 957,

then it cannot be said that McDonald’s experts lacked the “knowledge, skill, experience,

training, or education” to “assist the trier of fact to understand the evidence . . . .” Miss. R.

Evid. 702.

¶33.   A trial court necessarily abuses its discretion when it applies an incorrect legal

standard. See Burkett v. Burkett, 537 So. 2d 443, 446 (Miss. 1989). In this case, the trial

court failed to look beyond the proffered experts’ professional titles to consider knowledge,

training, or education. As a violation of the plain language of Rule 702, this oversight

amounts to an abuse of discretion.

¶34.   Therefore, I would reverse the trial court’s grant of summary judgment in favor of Dr.

Teran and remand McDonald’s relevant claims for trial. From my learned colleagues’

decision to the contrary, I respectfully dissent.

       GRAVES, P.J., JOINS THIS OPINION.




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