                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2014-CA-00774-SCT

WALTER GRIFFITH, JR., COMMERCE AND
INDUSTRY INSURANCE COMPANY AND
BOMAC ELECTRIC, INC.

v.

ENTERGY MISSISSIPPI, INC.


DATE OF JUDGMENT:                           05/22/2014
TRIAL JUDGE:                                HON. WILLIAM A. GOWAN, JR.
TRIAL COURT ATTORNEYS:                      CHARLES EDWIN ROSS
                                            JAMES EARL GRAVES, III
                                            DAVID LENOIR CARNEY
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                   WAYNE E. FERRELL, JR.
                                            ADRIENNE P. PARKER
ATTORNEYS FOR APPELLEE:                     JAMES E. GRAVES, III
                                            CHARLES E. ROSS
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED - 09/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



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

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Walter Griffith, Jr. was critically injured while attempting to attach a ten-foot piece

of metal conduit to an electrical pole owned by Entergy Mississippi, Inc. (“Entergy”).

Griffith later filed a complaint against Entergy, alleging grossly negligent and willful conduct
and requesting compensatory and punitive damages. The trial judge ultimately granted

Entergy’s motion for summary judgment, and Griffith now appeals to this Court. We affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Griffith is a licensed, master electrician—the highest credential attainable for

professionals in the trade—with roughly thirty years of experience. In September 2005,

Griffith was employed by BOMAC Electric, a subcontractor hired to provide electrical

service to a nonresidential/commercial building owned by Kelly Dabbs Realty in Ridgeland,

Mississippi.

¶3.    Knowing that neither Griffith nor his coworker, Aubrey Wallace, was qualified to

work on high-voltage lines,1 Bryan Tompkins, the president of BOMAC Electric (and

Griffith’s direct supervisor), testified via deposition that he telephoned Keith Mallett, an

Entergy service supervisor. Tompkins requested that an Entergy electrician install the

necessary conduit on its pole, so that Griffith and Wallace could run a secondary wire from

the Kelly Dabbs building up the pole to the transformer.

¶4.    But Mallett declined Tompkins’s request, informing Tompkins that—because the

installation was nonresidential—BOMAC and its employees were responsible for installing

the conduit and the service line to the pole, pursuant to the terms of its service policy.




       1
        As a master electrician, Griffith was qualified to work on and around energized, low
voltage electrical equipment, defined by Mississippi Code Section 45-15-1 as carrying 600
volts or less “between conductors or from any conductor to [the] ground.” Miss. Code Ann.
§ 45-15-1 (Rev. 2015). Although he’s not trained to work on high voltage equipment,
Griffith’s license ensures he is trained and qualified to recognize high voltage (exceeding 600
volts) equipment and to appreciate its danger when working on or near such lines.

                                              2
Mallett then instructed Tompkins that BOMAC’s employees were to stay at least three feet

below the transformer while performing their work to ensure that they were always more than

ten feet from the nearest high-voltage line at the top of the pole. Tompkins relayed this

instruction to both Griffith and Wallace.

¶5.    On September 14, 2005, Griffith and Wallace got into a bucket truck, while a third

BOMAC employee stood at its base as a “spotter” to ensure no traffic approached the lift and

that the electricians maintained a safe distance from the high voltage wires. When Wallace

entered the bucket, he laid a ten-foot piece of conduit across the rail on the top of the lift,

between his body and the controls. With his back to the high voltage lines, Wallace began

to operate the lift. At the same moment, the employee acting as a spotter on the ground

became distracted and failed to warn his coworkers that they were nearing the high-voltage

electrical lines. Griffith, however, recognized that the lift was inching too close to the high-

voltage lines, and he mentioned to Wallace the proximity of the lift to the power line.

¶6.    Wallace testified via deposition that, once the two were in the air, Griffith assisted in

directing his navigation of the lift while handling the secondary wire. Wallace then flipped

the ten-foot piece of conduit vertically, inside the bucket, where it made contact with one of

the high-voltage lines attached to the cross arm of the Entergy pole, immediately causing

both Griffith and Wallace to be thrown to the floor of the bucket and to sustain severe

injuries.




                                               3
¶7.    In September 2007, Griffith filed a complaint against Entergy, BOMAC, Tompkins

and Tompkins Electric Co., Inc.2 Griffith alleged that Entergy was grossly and willfully

negligent, and that it had a nondelegable duty to “send a crew to locations where individuals

are operating near an electrical transformer or electrical power lines.” Griffith also alleged

that Entergy was grossly negligent when it “allow[ed the] electrical lines to remain

energized” and when it failed to send a crew, or to supervise the operations, or to properly

instruct BOMAC employees.

¶8.    After a period of discovery, Entergy moved for summary judgment. Entergy argued

that Griffith had “failed to establish an essential element of any negligence claim, namely

that Entergy had a duty to perform any of the acts he alleges it should have performed.”

Specifically, Entergy argued that it had no duty to perform the work at issue nor to supervise

Griffith’s work. Entergy argued further that it had no duty to de-energize the lines because

Griffith undisputedly had failed to comply with the statutory requirement3 that he notify



       2
         All defendants other than Entergy subsequently were dismissed and are not parties
to this appeal.

       3
       Mississippi Code Section 45-15-3(b) states that “No person shall, individually or
through an agent or employee, operate or bring any mechanical equipment or hoisting
equipment or any other equipment or part of any tool or material within ten (10) feet of any
high voltage overhead line.” Miss. Code Ann. § 45-15-3(b) (Rev. 2015).

               And Section 45-15-9 states in pertinent part that “[i]f any person
       desires to carry on any function, activity, work or operation in closer
       proximity to any high voltage overhead line than permitted by this chapter, the
       person responsible for performing the work shall promptly notify the electric
       utility operating the high voltage overhead line, in writing, on a form to be
       provided by such electric utility, and shall not perform the work until mutually

                                              4
Entergy that he would be working within ten feet of high-voltage lines. In fact, noted

Entergy, “it is undisputed that [Griffith] knew he was to stay at least [ten feet] away.”

¶9.    Griffith responded and attached an affidavit from his expert, professional engineer

Donald W. Zipse.4 Zipse provided several reasons why he viewed Entergy’s actions as

“grossly negligent.” Griffith also argued in his response that Entergy had violated its own

Customer Installation Standards for Electric Service (the “Manual”), which said that Entergy

would “install any conduits and conductors to be attached to its poles.” Griffith argued

further that Entergy, as a provider of electricity, has the “highest duty of care,” and that it

should have anticipated and guarded against the type of injuries that Griffith suffered.

¶10.   Entergy then filed a motion to strike portions of Zipse’s affidavit. Entergy argued that

Zipse’s affidavit “offer[ed] several opinions that were not previously disclosed even in the

late expert designation that this Court allowed [Griffith] to provide two months after his

expert designation deadline.” Entergy argued that Zipse’s “new liability theories” were

untimely, and that Zipse’s theory about “a neutral wire connected to the pole below the

transformer” should be struck as unreliable under Mississippi Rule of Evidence 702.




       satisfactory arrangements have been made between such electric utility and the
       person or business entity responsible for performing the work, to deter contact
       with the high voltage overhead lines . . . ”

Miss. Code Ann. § 45-15-9(1) (Rev. 2015).

       4
         This affidavit is later referred to as Zipse’s “second affidavit” or “second
designation,” as it was the second report Zipse provided as part of his overall expert opinion.

                                              5
¶11.   After a hearing, the trial judge entered an order dated April 9, 2012, disposing of

several outstanding motions, including portions of Entergy’s motions to strike and for

summary judgment. As for Entergy’s motion to strike portions of Zipse’s affidavit for being

untimely, the trial judge noted

       Entergy argues the following opinions were for the first time disclosed in
       [Zipse’s] affidavit: (1) a neutral wire located below the transformer was
       energized – before the affidavit[,] plaintiff only contended energized lines
       above the transformer posed a risk, (2) that plaintiff’s perception of the
       overhead lines was distorted and that Entergy should have had some type of
       device to warn of their presence, (3) Entergy violated NESC[5] and (4) Entergy
       was negligent for failing to train or supervise plaintiff.

After examining Griffith’s expert designations, the trial judge granted Entergy’s motion to

strike Zipse’s affidavit testimony regarding the three “new liability theories.”6

¶12.   Concerning Entergy’s argument that Zipse’s “neutral wire” theory was unreliable

under Rule 702, the trial judge found:

       Zipse’s second affidavit discusses the neutral conductor which would have
       been below the transformer . . . The Court agrees with Entergy’s causation
       argument regarding the neutral conductor, [P]laintiff was harmed by the high
       voltage lines above the transformer. Pages 7-9 (the end) of the affidavit
       revolve around “semi-insulated cable.” Specifically, the affidavit states
       semi-insulated cable would have been a preventative measure to prevent the,
       “accident resulting from bare energized overhead conductors.[”] After having
       carefully considered the issue, having reviewed the complaint and designation,




       5
        National Electrical Safety Code.

       6
        As for the argument about Entergy’s alleged failure to train and/or supervise Griffith
at the Dabbs site, the court held that “Entergy did not have a duty to be present and cannot
be held potentially liable for failure to do so.”

                                              6
       the Court is not prepared to strike pages 7-9; however, the defense may raise
       a Daubert[7] challenge either at or immediately preceding trial.

¶13.   As for Entergy’s motion for summary judgment, the trial judge told the parties that

they should

       read this order carefully to see which theories this Court, through various prior
       rulings in this order, has excluded. Again, the Court agrees with Entergy’s
       argument, “any alleged failure to warn [plaintiff] about the danger of the
       neutral wire was not a proximate cause of the accident.” The Court has also
       excluded several of Plaintiff’s theories as being untimely: (1) any alleged
       violation of the NESC standards, (2) Entergy’s alleged failure to install devices
       that would have warned plaintiff of the presence of overhead lines, and (3) that
       a neutral wire located below the transformer was energized.

       However, there still remains a theory the Court has not stricken, which is the
       alleged negligence of Entergy regarding the lines above the transformer, and
       the alleged failure to use semi-insulated cable – again such expert testimony
       may be subject to Daubert later.

Finally, concerning Griffith’s claim that Entergy had violated its own installation standards,

the trial judge found that

       Entergy’s Customer Installation Standards [the “Manual”] specifically warned
       local rules shall govern, importantly, regardless of the intent express or implied
       of the Standards. Therefore regardless of the implied or express intent of the
       Standards, the PSC’s Policy for the Extension of Underground Electric
       Distribution, specifically the section regarding non-residential underground
       service lines, controls and provides it was the duty of the customer and not
       Entergy to install the line and conduit. Therefore, Entergy did not have a duty
       to be present and cannot be held potentially liable for failure to do so. The
       Court would further note the PSC policy at issue specifically provides [for]
       metal [conduit] and not PVC.




       7
       Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993).


                                               7
¶14. Thus, following the trial court’s April 9, 2012, Order on the outstanding motions, one

issue remained: whether semi-insulated cable (i.e., tree wire) would have prevented the

“accident resulting from bare overhead conductors.” In other words, was Entergy negligent

when it used “bare conductors” (i.e., noninsulated wire) to construct its overhead lines,

instead of “semi-insulated conductors” (i.e., tree wire)? However, as noted above, the trial

judge provided that Entergy “may raise a Daubert challenge [on this issue] either at or

immediately preceding trial.” Following the court’s suggestion, Entergy supplemented its

existing expert designations, filed a renewed motion to strike Zipse’s tree-wire testimony

under Daubert, and filed a renewed motion for summary judgment.

¶15.   Entergy argued in its renewed motion to strike that Zipse’s opinion regarding

Entergy’s failure to use tree wire in this location—where there were no problems with trees

or foliage—was not generally accepted in the electrical field. Entergy argued further that

Zipse’s opinion that tree wire should have been used as a safety device to protect against

contact injuries also was contrary to the accepted science in the electrical field. Entergy then

stated that Zipse’s “hypothesis that momentary contact with tree wire is safe and/or would

not result in injuries” was “pure, unsupported speculation.”

¶16.   After a hearing, the trial judge denied Entergy’s renewed motions to strike and for

summary judgment, stating:

       The Court having considered Entergy’s Motion for Summary Judgment finds
       that while it may be a close issue, the motion should be denied. The Court . .
       . . finds the industry recognizes that use of semi-insulated cable, when in good
       condition, very well could prevent injury due to momentary contact; however,
       it is not the industry standard to use semi-insulated cable, for various reasons,
       outside areas of dense foliage.

                                               8
¶17.   Entergy then asked the trial judge to reconsider his ruling on its renewed motion for

summary judgment. Entergy argued that “by virtue of its finding that tree wire is not

required by industry standards in situations like this where there [are] no problem[s] with

dense foliage, [the court] has found that Entergy did not have a duty to install tree wire.” As

such, continued Entergy, the trial judge’s order was “internally inconsistent.” Entergy also

argued that Griffith had failed to establish causation, pointing out that “neither [Griffith] nor

Zipse presented any testimony or evidence whatsoever that, if tree wire had been used at the

time the line was constructed . . . . [the] wire would have been in such ‘good condition’ at

the time of [Griffith’s] injury as to have more probably than not prevented” Griffith’s injuries

(emphasis in original).

¶18.   At a status hearing two weeks before trial, the trial judge informed counsel that he was

“seriously considering” Entergy’s motion for reconsideration, and that he needed a response

before the scheduled hearing on the motion. At that point, the following exchange occurred:

       Counsel for Griffith:         I think that may be the best thing is to go ahead
                                     and grant their motion. Let’s go to the supreme
                                     court. Our case is gutted by the – by exclusion of
                                     the Entergy book,[8] so, I mean, that may be the
                                     best way to get this thing resolved.

       Court:                        Have you got an order?

       Counsel for Entergy:          I’ll have you one in an hour, Your Honor.

       Court:                        Sounds good. Let’s do that.



       8
       The “Entergy Book” is the Manual referred to earlier in this opinion. In its April 9,
2012, order, the court ruled the Mississippi Public Service Commission service policy
concerning a utility provider’s duty to its customer superceded such internal manuals.

                                               9
       ....

       Counsel for Griffith:        Do I understand you’re granting total summary
                                    judgment?

       Court:                       Isn’t that what you just suggested where you
                                    could take it on up?

       Counsel for Griffith:        Well. Your Honor, I – yes. sir.

       Court:                       Okay. That’s what we’re doing.

¶19.   In his final order, the trial judge noted first that he did not “necessarily agree” with

Entergy’s argument that industry standards did not require the use of tree wire, because “an

industry standard may not be conclusive regarding the issue of negligence as the industry

standard itself may be subpar.” But the trial judge ultimately was convinced by Entergy’s

causation argument in its motion to reconsider. Quoting Entergy’s motion in his order, the

judge wrote:

       [N]either Plaintiff nor Zipse presented any testimony or evidence whatsoever
       that, if tree wire had been used at the time the line was constructed (which is
       the relevant time period for Plaintiff’s negligent construction claim), the wire
       would have been in such “good condition” at the time of Plaintiff’s injury as
       to have more probably than not prevented the Plaintiff’s injuries. This failure
       is fatal to Plaintiff’s claim.

Based on this argument, the trial judge granted Entergy’s motion to reconsider and entered

judgment in its favor.

¶20.   Griffith now appeals to this Court and raises three issues which we restate for clarity:

       (1) Did the circuit court err when it found that Entergy had no duty to install
       the conduit or to be present at the job site?

       (2) Did the circuit court err when it excluded Zipse’s opinion regarding the
       neutral wire located below the transformer?

                                              10
       (3) Does a genuine issue of material fact remain regarding whether Entergy’s
       failure to use tree wire proximately caused Griffith’s injuries?

                                  LAW AND ANALYSIS

       I.     The trial judge did not err when he found that Entergy had no duty
              to install the conduit or be present at the job site.

¶21.   “The existence vel non of a legal duty is a question of law,” and the issue of

“[w]hether a defendant breached its duty to the plaintiff is a question of fact.” Eli Inv. v.

Silver Slipper Casino Venture, LLC, 118 So. 3d 151, 154 (Miss. 2013). “To prevail in any

type of negligence action, a plaintiff must first prove the existence of a duty.” Enter.

Leasing Co. S. Cent. v. Bardin, 8 So. 3d 866, 868 (Miss. 2009) (citing Laurel Yamaha, Inc.

v. Freeman, 956 So. 2d 897, 904 (Miss. 2007)). Once the plaintiff establishes a duty was

owed, “[t]he elements of breach and proximate cause must be established by the plaintiff

with supporting evidence.” Todd v. First Baptist Church of West Point, 993 So. 2d 827, 829

(Miss. 2008) (citations omitted). “Duty and breach of duty, which both involve forseeability,

are essential to finding negligence and must be demonstrated first.” Duckworth v. Warren,

10 So. 3d 433, 440 (Miss. 2009) (quoting Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss.

2004)).

¶22.   In his complaint, Griffith alleged that Entergy breached a nondelegable duty to send

crew members to locations where individuals are operating near electrical transformers or

power lines and to supervise and instruct all activity near the power lines and equipment

owned by its company. Griffith argued that this nondelegable duty includes the duty to turn

off electrical current, to ensure that safe practices are followed, and to ensure that employees



                                              11
of contracting companies are not operating near electrical transformers and/or electrical

power lines.

¶23.   According to Griffith, these alleged duties arise from a policy outlined in Entergy’s

Manual, which says, in pertinent part:

       8.7.3 Underground Secondary Service from Overhead Systems

       Underground secondary service from an overhead distribution system may be
       provided to non-residential Customers. The Company will install any conduits
       and conductors to be attached to its poles.

(Emphasis added.) But importantly, the Manual also anticipates conflicts with state and

federal law. Section 2.2 of the Manual says:

       2.2     Code Requirements

       The data contained herein is intended to conform with and be supplementary
       to recognized codes or rules and regulations of the authority having
       jurisdiction over the installation. In all cases, those codes or rules and
       regulations shall govern, regardless of possible conflict in the expressed or
       implied meaning of the contents of this book.

(Emphasis added.)

¶24.   Entergy argues that the Manual’s intent is clear: when a local policy, ordinance, code

or regulation conflicts with Entergy policy or requires a specific action from its employees,

that policy will govern a crew’s responsibilities and on-site activities. And here, the

Mississippi Public Service Commission’s (MPSC) service policy9 mandates that




       9
        MPSC’s “Policy for the Extension of Underground Electrical Distribution Facilities”
was filed July 2, 1986, and became effective August 14, 1986.

                                             12
       Installation of Facilities for Secondary Voltages – The Customer [BOMAC]
       will install, own, operate, and maintain the service line including the required
       rigid metal conduit up the Company’s [Entergy’s] pole.

(Emphasis added.) So, argues Entergy, the MPSC policy provision controls here, making

BOMAC responsible for installing the conduit.

¶25.   We agree and find that the MPSC policy controls here, per the Manual’s own

language. As such, the trial judge did not err when he found that “it was the duty of the

customer and not Entergy to install the line and conduit,” and that “Entergy did not have a

duty to be present and cannot be held potentially liable for failure to do so.” Nor did he err

when he granted summary judgment on this issue, because the Manual was the sole basis for

Griffith’s general negligence claims.10

       II.    The trial judge did not err when he struck Zipse’s neutral wire
              opinion.

¶26.   As mentioned, in his April 9 Order, the trial judge struck several of Zipse’s opinions.

Griffith argues that Zipse’s opinion on the neutral wire/conductor was both relevant and

timely and should not have been stricken. He argues that,“although sometimes described as

‘neutral,’ such conductors are energized and carry current to the extent that when a person

who simultaneously touches a neutral conductor and the earth, electric current is allowed to




       10
          Griffith argues that the standards set forth by the MPSC are nothing more than a
“tariff,” and as such, do not amount to a code, rule, or regulation. We disagree. In South
Central Bell v. Epps, 509 So. 2d 886, 891 (Miss. 1987) we wrote that, “[b]y statute, [public
utilities] still retain the right to make rules and regulations concerning the operation of their
business. However, these rules, or tariffs, must be submitted and approved by the
[Mississippi] Public Service Commission before they are valid and binding on the
subscribers.” (Emphasis added.)

                                               13
flow through the person’s body.” Griffith maintains that Entergy’s failure to supervise or

disconnect the current from these wires, along with Mallett’s insistence on the use of metal

conduit (a known conductor of electricity), establish a genuine issue of material fact as to

whether Entergy breached its duty to ensure Griffith’s safety and caused his injuries as a

result.

¶27.      Griffith also argues that Zipse’s opinion was timely submitted. Citing the expert

designation submitted on December 27, 2011, Griffith asserts that he provided Entergy with

enough detail to put the defense on notice that Zipse would testify “as an electrical expert

generally and . . . concerning the negligent conduct of Entergy.” Griffith asserts that the

failure to mention the location of the neutral wire in the first designation is irrelevant,

because Zipse’s first affidavit referred to a “bare overhead conductor attached to the

transformer” which put Entergy on notice, fully complying with Mississippi Rule of Civil

Procedure 26(b)(4)(A)(i).11

¶28.      Entergy counters that (1) prior to the second designation, Griffith had alleged only that

the high voltage lines above the transformer—not neutral conductors below the

transformer—posed a danger to him, and (2) it is undisputed that the only line Wallace




          11
                  “A party may through interrogatories require any other party to
                 identify each person whom the other party expects to call as an
                 expert witness at trial, to state the subject matter on which the
                 expert is expected to testify, and to state the substance of the
                 facts and opinions to which the expert is expected to testify and
                 a summary of the grounds for each opinion.” Miss. R. Civ. P.
                 26(b)(4)(A)(i).

                                                 14
contacted was a high voltage line, above the transformer, at the top of the pole. Thus, argues

Entergy, the designation was both untimely and irrelevant.

¶29.   “Our well-established standard of review for the trial court’s admission or suppression

of evidence, including expert testimony, is abuse of discretion.” Tunica County v.

Matthews, 926 So. 2d 209, 212 (Miss.2006) (citing Miss. Transp. Comm’n v. McLemore,

863 So. 2d 31, 34 (Miss. 2003)). “A trial judge’s determination as to whether a witness is

qualified to testify as an expert is given the widest possible discretion and that decision will

only be disturbed when there has been a clear abuse of discretion.” Worthy v. McNair, 37

So. 3d 609, 614 n. 3 (Miss. 2010) (quoting Sheffield v. Goodwin, 740 So. 2d 854, 856

(Miss.1999)).

¶30.   Expert testimony should be admitted only if it satisfies M.R.E. 702 through “scientific,

technical, or other specialized knowledge [to] assist the trier of fact to understand the

evidence or to determine a fact in issue.” M.R.E. 702. If that witness is “qualified as an

expert by knowledge, skill, experience, training, or education,” then he or she may testify,

“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.” Id. In other words, the expert witness must be qualified to

render the opinion, and the testimony must be relevant and reliable. Watts v. Radiator

Specialty Co., 990 So.2d 143, 146 (Miss. 2008) (citing McLemore, 863 So. 2d at 35). See

also Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 494 (Miss. 2010)(“expert’s

qualification and reliability of testimony are separate questions”).



                                              15
¶31.   To be relevant, evidence must have a tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence. M.R.E. 401. Here, it is undisputed that Griffith was harmed

by the high-voltage lines above the transformer. Indeed, the facts are simple. Wallace was

holding a ten-foot piece of conduit. Wallace flipped it around vertically. The conduit hit the

bare overhead conductor which was above the transformer. This contact caused a “fire ball,”

injuring both Wallace and Griffith. At no point did either electrician come in contact with

the neutral wire.

¶32.   In short, the cause of the accident may have been Griffith’s instruction to turn the

conduit around so they could install it properly or Wallace’s decision to flip the conduit

vertically, but it is undisputed that the injury was not caused by the presence of an unrelated,

neutral wire. As such, the trial judge did not err when he excluded Zipse’s neutral-wire

theory as irrelevant.

¶33.   And while irrelevance alone was a sufficient basis to exclude Zipse’s opinion, we also

agree with the trial court that it was not timely disclosed. This Court said in Nichols v. Tubb

said that Mississippi Rule of Civil Procedure 26(b)(4)

       requires disclosure of “facts known and opinions held by experts,” and as to
       each proposed testifying expert, to state “the substance of the facts and
       opinions to which the expert is expected to testify and a summary of the
       grounds for each opinion.” This means that the substance of every fact and
       every opinion which supports or defends the party’s claim or defense must be
       disclosed and set forth in meaningful information which will enable the
       opposing side to meet it at trial.


       Not only this, the “grounds” or basis of each opinion must be disclosed. If the
       expert’s opinion is based upon his own experience, the answer should so state,

                                              16
       and if based upon some other ground, the precise source should be likewise
       disclosed.

Nichols v. Tubb, 609 So. 2d 377, 384 (Miss. 1992) (emphasis in original).

¶34.   Griffith argues that Zipse’s testimony was properly disclosed in his first expert

designation, in which he submitted that Zipse would testify, “as an electrical expert generally

and . . . concerning the negligent conduct of Entergy on or about September 13, 2005.”

Further, Zipse was to testify that Entergy’s contradictory rules/requirements prevented

Griffith “from avoiding contact with Entergy’s energized bare overhead conductors” which

eventually led to his “making contact with Entergy’s energized overhead bare conductors.”

¶35.   But we agree with the trial judge and find that this language was insufficient to put

Entergy on notice that Zipse would testify regarding the neutral-wire theory presented in his

second affidavit. Nowhere in the first designation did Zipse mention neutral wires or

conductors below the transformer. Stated differently, Griffith did not “set forth meaningful

information” about the tree-wire theory that would allow Entergy to meet it at trial. Id.

Accordingly, we find also that the neutral-wire theory was not timely disclosed.12




       12
          We note specifically the discovery deadline set by the trial court, October 28, 2011;
the date Griffith’s expert designation was filed, December 27, 2011; the date Entergy filed
its motion for summary judgment, January 25, 2012; and finally, the date Griffith filed
Zipse’s second affidavit, February 21, 2012. So, not only was the second affidavit submitted
nearly four months after the scheduled deadline for expert designations, but it was provided
as part of a responsive pleading one month after the close of discovery

                                              17
       III.   The trial judge did not err in granting summary judgment on
              Griffith’s tree-wire theory.

¶36.   After the court issued its April 9 Order, the only issue remaining was whether

Entergy’s use of semi-insulated cable (tree wire) would have prevented the “accident

resulting from bare energized overhead conductors.” As with his other theories, Griffith

supports his tree-wire theory via the multiple affidavits submitted by Zipse. In his second

affidavit, Zipse opined that with

       such semi-insulation, an individual can make contact with semi-insulated cable
       momentarily, with the high probability of no resulting harm to the individual.
       One could make momentary contact with semi-insulated cable without any
       harm as long as the insulation is not compromised. In the instant case, it would
       be expected that the insulation would not have been broken and would have
       maintained the ability to offer momentary protection against any contact with
       the energized conductor(s).

¶37.   Zipse went on to say that, if tree wire had been used, there would have been “a very

significant likelihood that Mr. Griffith would not have sustained injuries to his body

generally as a result of the severe electrical shock . . . .” Zipse also opined that

       One should err on the side of safety. The use of electrical conductors such as
       semi-insulated electrical conductors are less costly to install than fully
       insulated and rated electrical conductors and semi-insulated electrical cable
       possesses likely possibility that Mr. Griffith would not have been injured when
       the metallic conduit came in contact with a semi-insulated electrical
       conductor[.]

(Emphasis added.)

¶38.   We note Zipse’s use of words like “could,” “should,” and “possibility” throughout his

affidavits. That type of testimony simply is not sufficient to create a genuine issue of

material fact under Mississippi law. This Court has stated that “‘verdicts are to be founded



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upon probabilities according to common knowledge, common experience, and common

sense, and not upon possibilities; and a verdict cannot convert a possibility or any number

of possibilities into a probability.’” White v. Yellow Freight Sys., Inc., 905 So. 2d 506, 512

(Miss. 2004) (quoting Elsworth v. Glindmeyer, 234 So. 2d 312, 319 (Miss. 1970)).

¶39.   Here, Zipse provided no evidence or data to support the theory that the use of semi-

insulated or insulated conductors more likely than not would have prevented Griffith’s

injuries, as opposed to bare overhead conductors. Further, while Zipse continuously opined

that the use of tree wire provides a safeguard to people who may come in contact with it, at

no point did he opine that Entergy’s compliance with the industry standard of insulating bare

conductors through air, space, and distance put Griffith in danger. Nor did he provide

evidence that the use of tree wire has been proven superior to the “air, space, and distance”

industry standard in areas where dense foliage is not present.

¶40.   Additionally, the Dagenhart article13 indicates that the tree wire’s protection value

remains intact in normal-to-dry conditions, though the “addition of moisture” or “very severe

(and evident) conditions of moisture” increase the likelihood that current might leak through

the protection. It further explains that “[w]hile the probability of electrocution due to

accidental contact is small if the covering remains intact, should a fault occur at the point of




       13
        This article was co-authored by Entergy’s lead witness and was relied on heavily
by Zipse for his tree-wire theory. See A.L. Clapp, J. B. Dagenhart, C.C. Landiner, J. W.
McAuliffe, and W. A. Thue, Safety Considerations of Aerial Systems Using Insulated and
Covered Wire and Cable, Vol. 12, No. 2, IEEE Transaction on Power Delivery, 1012-1014
(1997).


                                              19
contact, electrocution, flash burns, or burns from hot debris associated with the fault are

possible, even on a shielded cable.”

¶41.   As mentioned above, the trial court recognized that, in order to lessen injury, the tree

wire must be in good condition and devoid of cracking, weathering, or moisture damage.

Zipse provided no testimony regarding the effects of damaged insulated wire or the condition

of insulated wire after a catastrophic event—other than the fact that it may crack, decay, or

retain moisture over time—and there is simply no evidence that the wire would have

maintained its protective properties.

¶42.   Again, the trial judge found that

       neither [Griffith] nor Zipse presented any testimony or evidence whatsoever
       that, if tree wire had been used at the time the line was constructed (which is
       the relevant time period for Plaintiffs negligent construction claim), the wire
       would have been in such “good condition” at the time of Plaintiffs injury as to
       have more probably than not prevented the Plaintiffs injuries.

(Emphasis in original.) The lack of testing, evidence, and data supporting Zipse’s theory was

“fatal to [Griffith’s] claim,” and the trial judge agreed that “any opinion from Zipse that the

use of tree wire would more probably than not have prevented [Griffith’s] injuries is pure

speculation and conjecture, which is inadmissible under MRE 702 and is insufficient to

establish proximate causation.” See, e.g., Hill v. Mills, 26 So. 3d 322, 329 (Miss. 2010) (an

expert’s opinions must be based on more than “subjective or unsupported speculation”).

¶43.   We agree, and we find that the trial judge did not err when he determined that no

genuine issue of material fact remained as to Griffith’s tree-wire theory.




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                                      CONCLUSION

¶44.   For the foregoing reasons, we find that the trial judge did not err in granting Entergy’s

motion for summary judgment, and we therefore affirm the judgment of the Hinds County

Circuit Court.

¶45.   AFFIRMED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.




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