              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2013-CA-00572-SCT

JENNIFER McILWAIN, INDIVIDUALLY AND
FOR AND ON BEHALF OF THE WRONGFUL
DEATH BENEFICIARIES OF HUNTER
McILWAIN, A MINOR, DECEASED

v.

NATCHEZ COMMUNITY HOSPITAL, INC.,
JENNIFER VERMAELEN RUSS, M.D., NATCHEZ
PEDIATRIC CLINIC, PLLC., AND MICHAEL L.
WHEELIS, M.D.


DATE OF JUDGMENT:             03/06/2013
TRIAL JUDGE:                  HON. FORREST A. JOHNSON, JR.
TRIAL COURT ATTORNEYS:        R. MARK HODGES
                              R. BRITTAIN VIRDEN
COURT FROM WHICH APPEALED:    ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      EVERETT T. SANDERS
                              CLAUDE PINTARD
                              SCOTT J. PINTARD
ATTORNEYS FOR APPELLEES:      CLIFFORD C. WHITNEY, III
                              R. E. PARKER, JR.
                              L. CARL HAGWOOD
                              CARRIE RICE MCCORMICK
NATURE OF THE CASE:           CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                  AFFIRMED IN PART, REVERSED IN PART,
                              AND REMANDED - 09/03/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE RANDOLPH, P.J., KING AND COLEMAN, JJ.

     RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1.    This is a medical malpractice case involving the death of two-year-old Hunter

McIlwain. Plaintiff filed against two doctors and their respective employers; however,

because only claims of vicarious liability were alleged against the employers, we will discuss

the doctors only. We affirm the trial court’s grant of Dr. Russ’s Motion for Judgment

Notwithstanding the Verdict (JNOV), because Plaintiff’s expert failed to articulate the

standard of care for a minimally competent pediatrician. However, we find that the trial court

improperly granted Dr. Wheelis’s motion for JNOV. We reverse that judgment of the trial

court and remand for a new trial.

            FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶2.    In the early morning hours of June 18, 2001, Dusty McIlwain brought his two-year-

old son Hunter to the Natchez Community Hospital emergency room because Hunter had

been vomiting, crying, and complaining of pain. Dr. Michael Wheelis, the emergency room

doctor, knew Dusty and previously had worked with Carol McIlwain (a nurse), Dusty’s

mother and Hunter’s grandmother. Dr. Wheelis was aware that Hunter had suffered a

subarachnoid hemorrhage previously as a result of a motor vehicle accident. That night,

Dusty and Carol McIlwain informed Dr. Wheelis only that Hunter had abdominal pain and

had vomited. Dr. Wheelis did not observe any neurological symptoms.

¶3.    Dr. Wheelis testified that the triage nurse took a medical history when Hunter was first

brought to the ER. Dr. Wheelis testified that he also took a history. Wheelis testified that the

nurse noted the prior accident on the triage form. Under past medical history, Dr. Wheelis

noted that Hunter had suffered a subarachnoid hemorrhage from a motor vehicle accident



                                               2
prior to June 2001. Dr. Wheelis also made a notation about a “subarachnoid bleed” in a blank

space on the form. After Dr. Wheelis conducted a physical examination of Hunter, he made

a preliminary diagnosis of “possible new onset of diabetes. Gastroenteritis.” His differential

diagnosis was “gastroenteritis, new onset diabetes and dehydration.” Dr. Wheelis ordered lab

work and chest and abdominal x-rays. Dr. Wheelis did not order a computerized axial

tomography (CT) scan of Hunter’s head. Dr. Wheelis’s recorded impressions were acute

abdominal pain, dehydration, hyperglycemia,1 hypokalemia.2 Dr. Wheelis conceded at trial

that Hunter had no diarrhea, a common symptom of gastroenteritis, while at home in the care

of his father and grandmother, nor in the few hours Hunter was observed in the emergency

room.

¶4.     After deciding that Hunter should be kept overnight in the hospital for observation,

Dr. Wheelis, who had no authority to admit patients, spoke with Dr. Russ, a pediatrician, at

the request of the family, at approximately 2:10 a.m. After conferring, Drs. Russ and Wheelis

diagnosed Hunter with dehydration and gastroenteritis.

¶5.     In the orders signed by Dr. Wheelis, he instructed that Hunter’s vital signs should be

checked, at a minimum, every four hours. Hunter was admitted at 2:30 a.m. to a regular floor

in the hospital. At 7:35 a.m., Hunter was found nonresponsive and twitching, with a

temperature of 103 degrees. Nursing personnel paged Dr. Jennifer Russ, and she arrived at

the hospital at approximately 7:54 a.m.



        1
        High blood sugar.
        2
            Low potassium.

                                              3
¶6.       By the time she arrived at the hospital, Dr. Russ noted that Hunter’s temperature was

103.1, he was tachycardic, and his blood pressure was almost undetectable. A code blue was

called at approximately 8:06 a.m. Dr. Russ intubated Hunter because he was having trouble

breathing. Hunter was then moved to the intensive care unit (ICU).

¶7.       Believing that Hunter suffered from sepsis due to a ruptured appendix, Dr. Russ

consulted Dr. Keith Smith,3 who chose to do an exploratory laparotomy. Although there was

nothing wrong with Hunter’s appendix, Smith removed it during surgery.4

¶8.       At that point, Dr. Russ became concerned about meningitis. Before she could order

a spinal tap to test for meningitis, Dr. Russ was required to order a CT scan of Hunter’s head

to make sure he did not have increased intracranial pressure. The CT scan was ordered at

approximately 11:35 a.m. Dr. Russ received the results at approximately 2:45 p.m.

¶9.       A subarachnoid bleed was discovered following the CT scan of Hunter’s head. After

the bleed was discovered, Dr. Russ began the process of transferring Hunter to the pediatric

intensive care unit (PICU) at the University of Mississippi Medical Center (UMMC).

¶10.      Hunter was transferred to UMMC at 4:00 p.m. and arrived at approximately 7:40 p.m.

Upon arrival, Hunter’s Glasgow Coma Scale was three, and his pupils were unreactive. The

UMMC staff determined that the “C.T. of the head obtained, because – was being considered

secondary to suspicion of meningitis. C.T. reveals blood in third and fourth ventricle. There



          3
        Dr. Smith, initially a defendant in this case, was granted summary judgment and was
dismissed.
          4
              There was no confirmation by any witness that Hunter did, in fact, suffer from
sepsis.

                                                4
was additional density between the interior lobe suggestive of an aneurysm.” After Hunter’s

condition failed to improve, Hunter was pronounced dead at 11:08 a.m. the next morning.

¶11.   On September 4, 2002, Jennifer McIlwain, Hunter’s mother and Dusty’s ex-wife, filed

suit in the Circuit Court of the First Judicial District of the Hinds County against Natchez

Community Hospital, Dr. Russ, Natchez Pediatric Clinic, Dr. Wheelis, Dr. Smith, and

another doctor.5 The only claims alleged against the hospital and clinic were claims of

vicarious liability.

¶12.   On September 13, 2007, this matter was transferred to the Adams County Circuit

Court. Trial commenced on November 6, 2012, more than ten years after the suit had been

filed. After a week-long trial and an extended period of deliberation, the jury announced that

it was deadlocked six-to-six. The trial court declared a mistrial.

¶13.   Following entry of the Order of Mistrial, the defendants filed motions for judgment

notwithstanding the verdict (JNOV), arguing that Jennifer McIlwain had failed to establish

her burden of proof as to the issue of causation. The trial court granted the motions and

entered a final judgment of dismissal as to all claims in favor of all defendants. Jennifer

timely filed this appeal, raising the following issues:

       I.       Whether the trial court erred in granting defendants’ motion for a
                judgment notwithstanding the verdict after the hung jury.

       II.      Whether the trial court abused its discretion in denying plaintiff a fair
                trial.

                A.     Whether the trial court permitted the introduction of collateral,
                       prejudicial, and irrelevant evidence.

       5
           That doctor was not named as a defendant in the First Amended Complaint.

                                                5
               B.     Whether the trial court erred in limiting the evidence on the
                      present net cash value of Hunter McIlwain’s life.

The defendants argue that the trial court properly granted their motions for JNOV because

Jennifer had failed to establish causation and to articulate a violation of the standard of care.

                                           ANALYSIS

¶14.   The standard of review for a trial court’s grant of a motion for 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.” 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)). “We are required to view the evidence in the light most favorable to the

nonmoving party.” Mollaghan v. Varnell, 105 So. 3d 291, 300 (Miss. 2012). “In essence,

judgments as a matter of law present both the trial court and the appellate court with the same

question–whether the evidence, as applied to the elements of a party’s case, is either so

indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” White v.

Stewman, 932 So. 2d 27, 32 (Miss. 2006). Judgments as a matter of law test the legal

sufficiency of that litigant’s case. Id.

       I.      Whether the trial court erred in granting defendants’ motion for
               a judgment notwithstanding the verdict after the hung jury.

¶15.   In order to establish a prima facie case of medical negligence, the plaintiff must prove

the following elements:

       (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


                                               6
       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.

Mid-South Retina, LLC v. Conner, 72 So. 3d 1048, 1050-51 (Miss. 2011) (quoting

McDonald v. Mem’l Hosp. at Gulfport, 8 So. 3d 175, 180 (Miss. 2009); Delta Reg’l Med.

Ctr. v. Venton, 964 So. 2d 500, 504 (Miss. 2007)) (other citations omitted).

¶16.   We examine whether Jennifer established the aforementioned elements as to each

defendant. As to Dr. Wheelis, we find that the Plaintiff offered sufficient evidence of the

requisite elements, and the trial court’s grant of the motion for JNOV was improper.

However, as to Dr. Russ, the standard of care and putative breaches of duty articulated by Dr.

Miller failed to conform to our established law. The trial court properly granted the motion

for JNOV as to the claims alleged against Dr. Russ.

              A. Dr. Wheelis

¶17.   In response to interrogatory requests, Jennifer designated Dr. David Wiggins as an

expert and informed the defendants that he was expected to testify:

       to a reasonable degree of medical certainty that . . . [Dr.] Michael Wheelis . .
       . breached the applicable standard of care regarding [his] treatment of
       Plaintiff’s decedent, and that the breach of said standard of care caused or
       contributed to the death of Plaintiff’s decedent.

As to Dr. Wheelis,6 Dr. Wiggins opined four breaches: (1) failure to perform an adequate

history; (2) failure to perform an adequate physical exam; (3) failure to order the appropriate

tests; and (4) failure to make the proper diagnosis. Dr. Wiggins further opined that a head

       6
        In the discovery phase, Dr. Wiggins also was designated to offer testimony against
Dr. Russ. However, at trial, Jennifer’s replacement expert, Dr. Truly, offered testimony only
against Dr. Wheelis.

                                              7
CT, which would have been “indicated in a severely ill child with a history of subarachnoid

hemorrhage, . . . might have revealed the presence of a subarachnoid hemorrhage.” Dr.

Wiggins opined that, had Dr. Wheelis made the proper diagnosis, Hunter would have been

treated earlier, would not have undergone an unnecessary exploratory laparotomy, and would

have been admitted to the ICU where he could have been closely monitored. Dr. Wiggins

concluded that the “delay in recognizing the patient’s deteriorating status delayed treatment,

thus prolonging the pathological conditions and almost certainly worsening the outcome.”

¶18.   Approximately six weeks before trial, Jennifer moved to designate an expert out of

time, stating that Dr. Wiggins was unavailable to testify at trial. Following a motion hearing,

the trial judge ruled that:

       What the Court is going to do is to allow partially what plaintiff is requesting.
       But this Court – as I said, it’s always a matter of fairness within the rules.
       Now, you will be allowed to designate a new expert, but this expert cannot go
       outside what has already been disclosed by this prior expert. In other words,
       there’s no new surprises or anything like that. That’s a matter of fairness, and
       with the aging of this case – in other words, the new expert will not be allowed
       to give any opinions which are outside of what has already been designated.
       In other words, I’m giving you an opportunity, because of the time from this
       prior designation, to get a replacement expert, not a new expert. . . . But it
       won’t be like we’re starting off with a new expert where you find out what
       he’s going to say, because the expert will be limited to the opinions and the
       facts and basis for it that’s already been disclosed.

The court memorialized his finding in an order granting Jennifer’s motion to designate an

expert out of time, “provided . . . that the opinions of the newly designated expert shall not

differ from the opinions disclosed previously for Dr. Wiggins in scope, substance, basis, or

in any other material respect. . . .”




                                              8
¶19.   Dr. William Truly, a physician in family and emergency medicine, testified at trial.

Dr. Truly was accepted as an expert in emergency-room medicine without objection by

defendants. Dr. Truly testified that his testimony was based on a reasonable degree of

medical certainty and that, based on his knowledge, education, training, and experience, he

was aware of what was required of a minimally competent emergency-room physician.

¶20.   Dr. Truly testified that he disagreed with Dr. Wheelis’s impression of gastroenteritis

because Hunter had no evidence of diarrhea. Dr. Truly also testified that, with a child who

has a history of an intracranial bleed and who presents with vomiting, the standard of care

would have been to perform a C.T. scan of the head. Dr. Truly testified that Dr. Wheelis did

not perform a C.T. scan of the head and further testified, over objection by the defendants,

that Wheelis’s failure was a deviation from the standard of care, and such deviation

contributed to Hunter’s death. Dr. Truly further testified that there was a failure to properly

diagnose on the part of Dr. Wheelis and his failure to diagnose was a breach of the standard

of care.

¶21.   Dr. Wheelis’s brief offers a side-by-side comparison of Dr. Wiggins’s designated

testimony vis-a-vis what Dr. Truly testified to at trial. The wording used by each doctor is not

an exact replication. However, the issue to be determined is whether Dr. Wheelis was

prejudiced by Dr. Truly’s C.T. testimony. There can be no doubt that Dr. Wheelis was on

notice that Dr. Wiggins would testify as to breach and causation, specifically that the failure

to order a timely C.T. scan was a breach of the standard of care, and that a C.T. scan should

have been ordered by Dr. Wheelis, given Hunter’s history.



                                               9
¶22.   Dr. Truly’s testimony discussed above was within the parameters of the designation

in offering an opinion that Dr. Wheelis’s failure to order a C.T. scan on a child with a history

of an intracranial bleed resulted in the initial misdiagnosis. While parts of Dr. Truly’s

testimony did not recite verbatim Dr. Wiggins’s designation, the parameters of Dr. Truly’s

testimony are markedly similar, ultimately opining, as did Dr. Wiggins, that Dr. Wheelis’s

breach of the standard of care contributed to or caused Hunter’s death. Therefore, we find

that the trial court erred in granting a JNOV in favor of Dr. Wheelis.

¶23.   In his order granting the motions for JNOV, the trial judge specifically stated “that as

to the issue of causation, the Plaintiff failed to establish its burden of proof as required by

law.” The trial judge made no other finding or explanation. This Court is troubled by the trial

court granting JNOV instead of granting a new trial. Trial courts have three options when

motions for JNOV are made: (1) deny the motion and try the case to a verdict; (2) grant the

motion and enter a judgment for the moving party; or (3) grant a new trial. White v.

Stewman, 932 So. 2d 27, 32 (Miss. 2006) (internal citation omitted). “[A] new trial becomes

appropriate when a trial court determines that error within the trial mechanism itself has

caused a legally incorrect or unjust verdict to be rendered.” White, 932 So. 2d at 33. Courts

have granted new trials “whenever convinced, from the evidence, that the jury has been

partial or prejudiced, or has not responded to reason upon the evidence produced.” Beard v.

Williams, 172 Miss. 880, 884 161 So. 750, 751 (1935). A new trial may be necessary if

mistakes were made in conducting the trial or in applying the law. White, 932 So. 2d at 33.




                                              10
¶24.   Because we find that the trial court erred by granting Dr. Wheelis’s motion for JNOV,

we reverse the judgment of the trial court in part and remand for a new trial as to Dr.

Wheelis.

       A new trial provides a clean slate. The issues must be retried, and the parties
       may thus present evidence differently. As such, a new trial requires its own
       law, and the judge is once again empowered to make judgments concerning
       Mississippi law as required by the evidence.

White, 932 So. 2d at 33-34.

              B. Dr. Russ

¶25.   Dr. Carol Miller was accepted as an expert in the field of pediatrics. Although Dr.

Miller stated that her testimony would be based upon a reasonable degree of medical

certainty and that she was familiar with the standard of care required of a minimally

competent pediatrician, she opined that the standard of care required Dr. Russ to examine

Hunter within one hour of his admission. That testimony was based on Dr. Miller’s thirty

years’ experience in a teaching hospital in San Francisco, California. But on cross-

examination, Dr. Miller conceded that the one-hour rule was based on that “hospital[’s]

medical staff bylaws” and from the “various hospitals over the thirty years that [she] has

worked.” She testified that she did not review the bylaws of either Natchez Community

Hospital or Natchez Regional Medical Center. Additionally, she could not cite any specific

authority, publication, text, treatise, or peer-reviewed article in support of her opinion

regarding a one-hour rule.

¶26.   “Mississippi physicians are bound by nationally-recognized standards of care. . . ,”

and not institution-specific standards which may exceed the nationally recognized standard

                                             11
of care for minimally competent physicians. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.

2d 1346, 1354 (Miss. 1990) (quoting Phillips v. Hull, 516 So. 2d 488, 491 (Miss. 1987);

Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985); King v. Murphy, 424 So. 2d 547 (Miss. 1983)).

Physicians have a “duty to employ ‘reasonable and ordinary care’ in their treatment of

patients.” Id. Our law requires a plaintiff “to establish–through a qualified expert–what is

required of a minimally competent [physician], ‘whose skills and knowledge are sufficient

to meet the licensure or certification requirements for the profession or specialty practiced.’”

Braswell v. Stinnett, 99 So. 3d 175, 179 (Miss. 2012) (quoting McCarty v. Mladineo, 636

So. 2d 377, 381 (Miss. 1994)). Our law does not require meeting the standards and protocols

of an unknown institution in an unknown locale, unless it can be shown they are one and the

same. No evidence was offered of such.

¶27.   Dr. Miller failed to establish that the nationally recognized standard of care was one

and the same as that of the San Francisco teaching hospital. As Dr. Miller’s testimony fell

short of establishing the standard of care applicable to Dr. Russ, no further analysis is

required. We affirm the trial court’s grant of Dr. Russ’s motion for JNOV.

       II.    Whether the trial court abused its discretion in denying Plaintiff a
              fair trial.

              A.      Whether the trial court permitted the introduction of
                      collateral, prejudicial, and irrelevant evidence.

¶28.   The dynamic of this family is extremely contentious. Jennifer and Dusty are no longer

married. Dusty refused to have any part of this lawsuit, claiming that the doctors did

everything properly, even though he and his mother, a former registered nurse, failed to tell



                                              12
the doctors that Hunter had bumped his head on a church pew earlier that morning. Dusty’s

and his family’s testimony focused on the alleged wrongdoings of Jennifer and her

responsibility surrounding the car accident months prior.

¶29.   Jennifer sought to exclude evidence of the facts surrounding the automobile accident

which had occurred approximately ten months prior to Hunter’s death. The defendants

initially sought to introduce evidence that Jennifer was driving the car and that Hunter was

unrestrained. The defendants argued that the reason the prior car accident was relevant was

because Hunter had suffered a subarachnoid bleed as a result. The defendants also argued

that Jennifer did not take Hunter to a follow-up appointment, which might have revealed an

aneurysm or rebleed.

¶30.   In response, the trial judge acknowledged that this action was a medical negligence

case and the issue to be determined was the standard of care rendered by Drs. Wheelis and

Russ. The trial judge ruled that “[t]he fact that there was some type of injury if you can show

that by the evidence that affects what happened or how the child was treated, then that will

be dealt with by the Court.” The trial judge stated that if Hunter had suffered a previous

injury to the head, the defendant would be allowed to introduce evidence regarding the

injury. However, he also stated any evidence regarding fault for the accident would not be

allowed.

       And there are not to be any questions giving into the driving, the circumstances
       of the accident or things of that nature. However, it is probative – I have ruled
       about the injury that the child suffered on this occasion. Reason being because
       there’s a lot of testimony about what [effect] that had in the following months
       leading up to the death of Hunter McIlwain. Therefore, the defendants will be
       allowed to elicit testimony as to whether or not he was in the car seat and

                                              13
       whether or not the plaintiff, Ms. Patterson, McIlwain, made any statements to
       this witness in regard to that, but it will be limited to whether the child was in
       the . . . car seat or not . . . . I don’t want to hear fault.

The trial judge ultimately allowed questions to be asked about whether the child was

unrestrained, holding such testimony went to the severity of the injury.

¶31.   On direct examination, Jennifer testified that, as a result of a car accident in 2000,

Hunter was taken to a hospital in Jackson. She stated that she did not remember missing any

appointments in Jackson. On cross-examination, Jennifer testified that Hunter was restrained

in his car seat in the back seat of the car when the accident occurred.

¶32.   Donnie McIlwain, Dusty’s brother, was allowed to testify, over objection, as to the

damage done to Jennifer’s car after the car accident. He testified that he saw a crack on the

inside of the windshield to the right of the steering wheel, closer to the passenger side. He

testified that, after further examination, he noticed what appeared to be hairs in the crack. On

cross-examination, Donnie admitted that he did not know what happened to the windshield.

¶33.   Dusty McIlwain testified that Jennifer had told him Hunter was not restrained in a car

seat at the time of the accident. He stated that he did not inform any medical personnel

because his focus was on his son. Dusty testified that he was not aware of any follow-up

appointments because Jennifer had not informed him of any. Dusty testified that when he

observed Jennifer’s car after the accident, he noticed a “grapefruit sized indention on the

passenger side of the windshield, right above the glove box area, indented from the inside

out.” Dusty testified that, during church the Sunday before Hunter died, he bumped the back

of his head on a padded pew.



                                              14
¶34.   The trial judge, in his ruling, properly limited testimony of the accident to the injury

that was received. This Court has held that when similar injuries have occurred in the past,

it is permissible “to interrogate further as to whether or not they had any connection with the

claim then being presented.” Boyd v. Smith, 390 So. 2d 994, 997 (Miss. 1980). Evidence

showing that Hunter had suffered a previous head injury properly was allowed by the trial

court. However, any evidence that tended to show that Jennifer was at fault, i.e., she was

driving, or it was a one-vehicle accident, was not proper because it was not relevant to this

medical malpractice suit.

              B.        Whether the trial court erred in limiting the evidence on
                        the present net cash value of Hunter McIlwain’s life.

¶35.   Jennifer argues that the trial erred in limiting the testimony of Dr. George Carter, her

economic expert. In a bench conference prior to Dr. Carter’s testimony, the trial court made

the following ruling:

               The Court’s ruling pursuant to the authority of the Greyhound case is
       that he will be allowed to testify as long as they’re based on national averages,
       national averages that are set forth. That is the presumption that is set out by
       the law. As long as it’s clear that that’s the basis that he’s going by, the
       national average.

             As far as the income, the Court will not allow any fringe benefits to be
       added because that’s the law.

¶36.   In Rebelwood Apartments RP, LP v. English, 48 So. 3d 483 (Miss. 2010), this Court

held that “[f]ringe benefits must not be added unless they actually have been received.” Id.

at 496-97.




                                               15
¶37.   In Greyhound Lines, Inc. v. Sutton, 765 So. 2d 1269 (Miss. 2000), a case which

concerned the damages awarded to the estates of three children, this Court held:

       in cases brought for the wrongful death of a child where there is no past
       income upon which to base a calculation of projected future income, there is
       a rebuttable presumption that the deceased child’s income would have been the
       equivalent of the national average as set forth by the United States Department
       of Labor. This presumption will give both parties in civil actions a reasonable
       benchmark to follow in assessing damages. Either party may rebut the
       presumption by presenting relevant credible evidence to the finder of fact.
       Such evidence might include, but is certainly not limited to, testimony
       regarding the child’s age, life expectancy, precocity, mental and physical
       health, intellectual development, and relevant family circumstances. This
       evidence will allow the litigants to tailor their proof to the aptitudes and talents
       of the individual’s life being measured.

       ...

       [T]he consumption rate is another factor which may be argued by the parties
       to the finder of fact in support of increasing or decreasing the presumption that
       the deceased child’s income would have been equivalent to the national
       average. The credibility and weight of such testimony as are to be determined
       solely by the finder of fact.

Sutton, 765 So. 2d at 1277, 1279.

¶38.   Based upon our caselaw and the record before us, we cannot say that the trial court

erred in limiting the testimony of Dr. Carter.

                                       CONCLUSION

¶39.   Jennifer offered sufficient evidence of the requisite elements of a medical-negligence

case against Dr. Wheelis; therefore, the trial court erred in granting Dr. Wheelis’s motion for

JNOV. However, Plaintiff’s expert Dr. Miller failed to develop evidence that a violation of

the standard of care in the setting in which she practiced was equivalent to that as applied to

Dr. Russ, and we find the trial court did not err in granting Dr. Russ’s motion for JNOV.


                                               16
Furthermore, we find that, based on the record before us, the trial court properly limited

testimony of Hunter’s previous accident and properly limited the testimony of Dr. Carter.

Therefore, the judgment of the trial court is affirmed in part and reversed in part, and this

case is remanded to the Circuit Court of Adams County for a new trial consistent with this

opinion.

¶40.   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




                                             17
