author: SMITH, Presiding Justice, PITTMAN, Chief Justice, McRAE, Presiding Justice,

text:
    Tammy WINTERS and David Winters v. Bennie B. WRIGHT, Jr., M.D., Cleveland Clinic, P.A., and Bolivar County Medical Center.
    No. 1999-CA-00483-SCT.
    Supreme Court of Mississippi.
    Sept. 11, 2003.
    Rehearing Denied Dec. 4, 2003.

      Robert W. Smith, Judy M. Guice, Biloxi, attorneys for appellants.
    P.. Scott Phillips, L. Carl Hagwood, Greenville, Lee Davis Thames, Jr., Jackson, R.E. Parker, Jr., attorneys for appel-lees.
   SMITH, Presiding Justice,

for the Court.

¶ 1. Tammy Winters (“Tammy”) and her husband, David Winters (“David”), filed a complaint in Bolivar County Circuit Court against Dr. Bennie B. Wright, Jr. (“Wright”) and his employer, Cleveland Clinic, P.A., Bolivar County Hospital (“BCH”), and Cincinnati Sub-Zero Products, Inc. (“Sub-Zero”) on December 8, 1995. Tammy’s claim arose from an injury to her buttocks and thighs that she claims was caused by a Sub-Zero heating blanket utilized during surgery performed on her by Wright at BCH. Prior to trial, plaintiffs settled their claim against Sub-Zero. Trial with the remaining defendants commenced on January 11, 1999, and ended on January 20, 1999. The jury found in favor of all three remaining defendants, and judgment was entered on February 1, 1999. On February 19, 1999, the trial judge denied the plaintiffs’ motion for new trial and judgment notwithstanding the verdict.

FACTS

¶2. Tammy was out with two friends shooting at cans on the bridge over the Quiver River in Sunflower County late on the evening of December 12, 1994. Somehow, while reloading her .380 caliber pistol, Tammy accidentally shot herself in the abdomen. Her friends managed to load her into a vehicle and get her to the North Sunflower County Hospital in Ruleville, Mississippi. The facility was not equipped to treat Tammy, and thus an ambulance took her from there to BCH. Upon arrival at BCH, Tammy was taken to the emergency room. Wright, who was not on duty that night, had been called in by the emergency room physician to care for Tammy. Upon Wright’s arrival, Tammy had coded, but had been resuscitated by the emergency room physician. Once she had been resuscitated, Wright ordered the nurses to give her 4,000 cc’s of fluid, which is four times the amount normally given to a patient in eight hours. Further, in order to keep Tammy alive, he ordered that she be given uncross-matched blood.

¶ 3. The bullet had entered her left side beneath her ribs and exited out the lower part of her back causing multiple injuries. Wright then accompanied Tammy to the operating room. Once there, he left to change into scrubs and prep for surgery. While he was out, staff moved Tammy from the gurney to the operating table. Glenda Morton, an operating technician that evening, testified that when Tammy was transferred from the gurney to the table that she noted that her backside was blue. She asked Wright about this, and he informed her that Tammy was bleeding out and the blood was pooling in her back. Under Tammy, on the operating table, was a sterile operating sheet. Under that, was the Blanketrol II blanket manufactured by Sub-Zero. This blanket is attached to a unit which circulates water throughout the blanket. Water is heated or cooled and pumped from the unit to the blanket. The person operating the machine sets the desired temperature of the patient, and the machine pumps the water through the blanket accordingly to regulate the patient’s temperature. The unit stands thirty-six inches tall and is seventeen inches wide.

¶ 4. Christy Tolbert, the circulating nurse on the evening of Tammy’s surgery, testified that she turned on the Blanketrol unit that evening and that it was set at 98.6 degrees Fahrenheit. She also testified that she checked the temperature periodically throughout the surgery and that she never saw it go above the original set point. Upon cross-examination, Tolbert did note that during her deposition she had stated that she did not check the machine every twenty minutes, as suggested by the unit’s manual. Once Wright returned to the operating room, Tammy was on the operating table, and the nurse anesthetist, Paul Rayfield, had hooked up his monitors and put Tammy to sleep. Wright then draped Tammy for surgery and began the operation. Wright testified that when he made the initial incision blood spouted from Tammy’s abdomen and he had to clamp her aorta to stop the blood loss. This clamping cut off the blood supply to the stomach, liver, small intestine, pancreas, kidneys, uterus, legs, buttocks and spleen. Once some of the blood was cleared out of her abdominal cavity, Wright moved the clamp lower to get blood to her vital organs, but it was still cut off to the lower portion of her body. Following the operation, two operating technicians and a nurse noticed the imprint of the blanket on her backside and that her buttocks were discolored. Those personnel that had physical contact with Tammy prior to, during and following surgery all testified that her skin was not warm to the touch. Further, the nurse anesthetist testified that he monitored her temperature during surgery and that it was never above normal.

¶ 5. Due to problems Tammy suffered to her lower extremities due to insufficient blood circulation, Wright consulted with Dr. Rodney Frothingham, a neurosurgeon, and Dr. Hugh Gamble, a vascular surgeon. After Tammy was transferred to Delta Regional Medical Center in Greenville, Mississippi, Wright spoke with Gamble to tell him what problems Tammy might have. Gamble mentioned that there was something wrong with Tammy’s buttocks. In Wright’s opinion the injuries to Tammy’s buttocks are the result of the constriction of blood flow back to her buttocks. When her aorta was clamped, blood flow to her buttocks was cut off. He testified that when this occurs, oxygen does not get to the tissue and the tissue dies. He further testified that this is why Tammy lost some of her toes. The staff and physicians that treated Tammy’s injury to her buttocks referred to the injury as a burn. In early treatment notes, however, it is clear that no one was certain it was a burn. Dr. Robert Love, a plastic surgeon at Delta Regional Medical Center, noted the following in regard to Tammy’s injury, “I cannot confirm or deny the etiology of this lesion. It certainly has the appearance of a burn, although it is hyper-emic.” According to Wright’s testimony, hyperemic means that it was full of blood.

¶ 6. Tammy went through multiple skin grafts and treatment at various hospitals due to this injury. Tammy and David brought suit against Wright, Cleveland Clinic, BCH, and Sub-Zero, claiming they were responsible for her injuries and that she had been burned by the heating blanket utilized during her surgery. Following a jury verdict for the defendants, entry of judgment in accordance with that verdict and a denial of plaintiffs’ motion for a new trial or a judgment notwithstanding the verdict, Tammy and David appeal to this Court.

STANDARD OF REVIEW

¶ 7. Our standard for review is de novo in passing on questions of law. Miss. Farm Bureau Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995). In reviewing the denial of a judgment notwithstanding the verdict, peremptory instruction, and directed verdict,

This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). This Court will reverse a trial court’s denial of a request for new trial only when the denial amounts to an abuse of discretion. Id. (citing Shields v. Easterling, 676 So.2d 293, 298 (Miss.1996)).

The standard of review for challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Austin v. State, 784 So.2d 186, 192 (Miss.2001) (quoting Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)).

¶ 8. This Court will consider a trial judge’s decision to admit evidence and whether an expert witness is qualified to testify under an abuse of discretion standard. See Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997); May v. State, 524 So.2d 957, 963 (Miss.1988).

DISCUSSION

¶ 9. The plaintiffs raise multiple issues on appeal. First, they argue that the trial judge erred in denying their request for a res ipsa loquitur instruction. Second, they contend that the trial judge erred in refusing to allow their expert, Dr. Robert Tucker, to testify regarding the standard of care in the use of the heating blanket. Third, they allege the trial court erred by giving conflicting instructions regarding Wright’s vicarious liability for actions of the operating room personnel. Fourth, they maintain that it was error for the trial judge to refuse them request for a peremptory instruction regarding the heating blanket. Fifth, they assert error by the trial court in allowing the defendants to pose leading questions to witnesses called by one another. Finally, they charge that it was error for the trial judge to exclude testimony regarding Wright’s control of the operating room.

¶ 10. BCH raises two issues on cross-appeal. First, it alleges that the trial judge erred in not extending the scheduling order following a change in counsel for BCH after its insurer declared bankruptcy. Second, BCH contends that the trial judge erred in granting a motion in limine to exclude evidence of Tammy’s consumption of alcohol the night of her injury.

I. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A RES IPSA LOQUITUR JURY INSTRUCTION.

¶ 11. Plaintiffs’ requested jury instruction P-3 states:

The Court instructs the jury that under certain circumstances an accident speaks for itself and a presumption of negligence arises. In such cases, the plaintiffs need not allege or prove the particular act of negligence itself which caused the injury but the burden is on the defendants to show an absence of negligence.
The conditions which must occur before this presumption of negligence arises are as follows:
1. the event must be one that would not normally occur absent someone’s negligence;
2. the event must be caused by an agent or instrumentality within the defendant or defendants exclusive control; and,
3. the plaintiff must not have voluntarily contributed to the event.
This presumption of negligence permits but does not compel the jury to find for the plaintiff.
Accordingly, if you find from a preponderance of the evidence that the above factors are present then there is a presumption of negligence in this case. If you further find that the Defendant or Defendants have not met their burden to show an absence of negligence and that the negligence proximately caused injury to the Plaintiff then you must find for the Plaintiff.

Plaintiffs argue that the trial judge erred in denying this instruction.

¶ 12. Res ipsa loquitur is a rule of evidence that allows negligence to be inferred in certain fact situations. Waddle v. Sutherland, 156 Miss. 540, 549-50, 126 So. 201, 203 (1930). The doctrine of res ipsa loquitur is applicable to medical malpractice cases. Id. This Court has stated that the “general rule is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.” Coleman v. Rice, 706 So.2d 696, 698 (Miss.1997) (quoting Erby v. North Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995)). As this Court has noted,

A jury may not presume negligence because of the untoward results of surgery. Ross v. Hodges, 234 So.2d 905, 909 (Miss.1970). Rather, the use of res ipsa loquitur should be cautiously applied. J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779 (1935). In Sanders v. Smith, 200 Miss. 551, 561, 27 So.2d 889, 893 (1946), the Court outlined its use:
The real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such operations, which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.

See also Latham v. Hayes, 495 So.2d 453, 459 (Miss.1986); DeLaughter v. Womack, 250 Miss. 190, 211, 164 So.2d 762, 771 (1964).

¶ 13. With these principles in mind, the doctrine of res ipsa loquitur requires three things. First, the instrumentality causing the injury must be under the control and management of the defendant(s). Coleman, 706 So.2d at 698. Second, the injury must be such that in the ordinary course of things it would not occur if those in control of the instrumentality used proper care. Id. Finally, the injury must not be due to any voluntary act by the plaintiff. Id.

¶ 14. Wright makes two arguments as to why res ipsa loquitur should not apply in the instant case. First, he contends that Tammy did not prove the blanket caused her injury, and thus she was not entitled to a res ipsa loquitur instruction. Alternatively, he argues that Tammy failed to prove that he had exclusive control over the blanket. BCH argues that a res ipsa loquitur instruction was inappropriate because an alternate theory for Tammy’s injuries was offered. BCH argues further that even if a res ipsa loquitur instruction were appropriate, it is not reversible error for the trial judge to have denied it. BCH argues that Instruction P-6 cured any error. Instruction P-6 states in part:

[BCH] ... allowed Plaintiff to be burned while she was unconscious and totally dependent on their care. If you find from a preponderance of the evidence that [BCH] was negligent in rendering or failing to care to the Plaintiff and if you should further find that such negligence was a proximate contributing cause to Plaintiffs injuries, then it is your sworn duty to find in favor of the Plaintiff and against [BCH].

¶ 15. We find that Tammy was not entitled to a res ipsa loquitur instruction. This Court has noted the limits of the doctrine of res ipsa loquitur:

That doctrine (1) has no operation to excuse or dispense with definite proof, by the plaintiff, of material facts which are tangible and are capable of direct and specific evidence, as much within the power of plaintiff to produce as of the defendant; and (2) it is available to establish negligence on the part of the defendant only when the accident is such that, according to ordinary human experience, it could not have happened without such negligence; from which it follows that the doctrine does not apply when, upon the whole case, there has been specific proof which discloses some reasonable explanation for the happening other than the negligence charged against the defendant.

Yazoo & M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274, 277 (1938). While it is true that Tammy was asleep during surgery and has no ability to state conclusively what occurred while she was unconscious, she is capable of having an expert testify as to whether the injury on her backside was the result of a burn or dead tissue, and in fact, Tammy offered such expert testimony that the tissue was burned due to the heating pad. Alternatively, Wright testified as to his contention that the injury suffered by Tammy was dead tissue resulting from loss of blood circulation. When both sides to a dispute have put forth evidence, we find that the issue is a fact question for the jury, and thus a res ipsa loquitur instruction is inappropriate.

¶ 16. This issue is quite similar to the question presented to this Court in DeLaughter v. Womack, 250 Miss. 190, 164 So.2d 762 (1964) overruled on other grounds by Hall v. Hilbun, 466 So.2d 856 (Miss.1985). In DeLaughter, a young boy had been given a penicillin shot by a nurse, as instructed by the doctor. 250 Miss. at 197, 164 So.2d at 764. The child reported back with various problems over the next two days, and the doctors were unable to definitively diagnose the problem. Ultimately, the boy lost his toes and skin off of his foot and lower leg. Id. The boy filed suit alleging that the nurse was negligent in giving the injection, resulting in gangrene. Id. at 200, 164 So.2d at 765. He alleged further that the doctors had been negligent in diagnosing the problem. Id. The doctors and the nurse contended rather that the boy suffered from an unusual allergic reaction to the penicillin, which resulted in the loss of his toes and part of his foot. Id. at 201, 164 So.2d at 766. Ultimately, in considering the issue of res ipsa loquitur, this Court concluded:

In the case now before us, all of the facts have been presented in evidence. The plaintiff made out a prima facie case of negligence. The cause of the injury is shown to have been an injection of penicillin. The results and circumstances are such as would warrant a jury in finding that the penicillin injection was negligently administered intravenously. On the other hand the defendants have shown that the nurse was competent and skilled, and the child was suffering with a peculiar allergy. Both questions are for the jury’s determination ... All the facts are before the jury. There is no room for presumptions. All of the inferences are swallowed up in the known facts and circumstances, making up the issue for the determination of the jury. The doctrine of res ipsa loquitur should be applied cautiously, and in this case we have reached the conclusion that the doctrine should not have been applied. There is no necessity to apply the doctrine in the instant case, because the plaintiff made out a prima facie case of negligence, which, in any case, required the defendants to go forward with the evidence. 38 Am.Jur., Negligence, § 289, p. 981. The doctrine does not apply where there is direct evidence as to the precise cause. 38 Am.Jur. § 296, p. 992, supra.

250 Miss, at 212, 164 So.2d at 771(empha-sis added).

¶ 17. The same is true here. The plaintiffs put forth evidence that the injury to Tammy’s leg was a burn and that a heating pad was used during her surgery. Wright and BCH put forth evidence that the injury to her backside was not a burn. The issue then became one of fact for the jury to determine. Thus, we hold that the trial judge did not err in denying plaintiffs’ request for a res ipsa loquitur instruction.

II. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO ALLOW TESTIMONY BY PLAINTIFFS’ EXPERT THAT DEFENDANTS BREACHED THE STANDARD OF CARE PERTAINING TO THE USE OF THE HEATING BLANKET.

¶ 18. Plaintiffs contend that the trial judge erred by not allowing their expert, Dr. Robert Tucker, to testify regarding the standard of care for using the heating blanket. Wright and BCH both argue that Tucker was not qualified to testify as to the standard of care. BCH also contends that Tucker was allowed to testify in regard to the standard of care as applied to the hospital and its nurses, and thus there was no error in regard to BCH. BCH argues further that if there was any error, this error was harmless as plaintiffs were able to present their theory of the case through Tucker despite the fact that he was limited in regard to his testimony regarding the standard of care in using the heating blanket.

¶ 19. Tucker was allowed to testify as to the standard of care regarding the hospital. Specifically, he was asked “Do you have an opinion in this case as to whether or not the fact that a hospital allowed a prescription medical device to be used during surgery without a doctor’s order violated the standard of care?” In response he stated that it did violate the standard of care. The trial court, however, noted that it would not allow Tucker to testify regarding the standard of care for nurses or physicians in the use of the machine. The trial judge found, rather, that Tucker could only testify as to whether instructions in the manual were followed. However, later Tucker was asked whether the Standard nursing procedures found in the Blanketrol manual were followed, and he replied negatively.

¶20. The trial judge recognized that Tucker was an expert in medicine, pathology, biomedical engineering and with regard to the Blanketrol II unit. Tucker testified that the majority of his medical research centered around burns, pressure necrosis, chemical burns, and electrical burns. He stated that Tammy’s injuries were the result of a thermal burn, and after reviewing all of the materials he saw no source of that burn other than the heating blanket which she was on during surgery. Tucker testified about and demonstrated his familiarity with the Blanket-rol II unit. He further testified that he was familiar with the Food and Drug Administration’s requirements for medical devices and the use of such devices in surgery. Tucker stated that instruction manuals define how to use the equipment properly, specifically defining the minimum educational level and understanding a person must have to operate the equipment. He then explicitly stated that the manual defines the standard of care for the biomedical engineer who cares for the machine and the standard of care for the nursing staff and physicians.

¶ 21. Tucker also testified as to BCH’s policy that the Blanketrol II unit could be used in any surgical procedure that requires mechanical means to produce normal body temperature that is deemed necessary by the surgeon, the anesthetists, and/or the registered nurse. The policy further states that those operating the device should follow all operating, safety and cleaning procedures contained in the unit’s instruction manual. Tucker noted that the manual requires that a physician set the temperature on the device. In spite of the trial judge’s earlier ruling, Tucker in fact testified that neither the physician, nor the nurses, monitored Tammy’s temperature in the manner instructed by the manual. Tucker stated that the manual contained a statement that those operating the machine should read and understand the instructions in the manual and that the manual should be reviewed semiannually. Tucker testified that the manual warns that if the unit is not used properly then there is a risk of injury. He specifically noted that Tammy suffered from thermal burns and that these burns would not have occurred if the individuals in control of the Blanketrol II unit had exercised reasonable care. He stated that he believed someone had either set the unit at a higher temperature than 98.6 degrees or that it was accidentally bumped and went higher. Tucker was very clear that in his opinion the blanket was the only device in the operating room that could have caused the burns suffered by Tammy. He testified that the operating room staff, including the doctor, nurses, and the certified nurse anesthetist (CRNA) had control of the blanket. Further, after noting that the nurses, CRNA and Wright did not comply with the manual, Tucker stated that if they had done so Tammy’s burns would not have occurred.

¶ 22. As noted, Tucker did testify that he was familiar with the machine and that the instruction manual required a physician to prescribe the use and to dictate the temperature setting. Thus, in spite of the trial judge’s initial ruling, the plaintiffs were able to get their theory of the case as to the cause of her injuries before the jury. As Tucker was allowed to testify to this and to the fact that this procedure was not followed on the night of Tammy’s surgery, we find that the error was harmless. The plaintiffs were allowed to present their theory of the case through Tucker, and thus the fact that he was not allowed to utter the specific words “Wright and the nurses breached a standard of care,” does not constitute reversible error. This issue is without merit.

III. WHETHER INSTRUCTIONS GRANTED BY THE COURT ON THE POTENTIAL VICARIOUS LIABILITY OF WRIGHT WERE HOPELESSLY IN CONFLICT.

¶ 23. Plaintiffs argue that Instruction P-16 and DW-13A are in conflict and that granting both instructions was reversible error. Instruction P-16 states:

The Court instructs the jury that in addition to his own negligence, Plaintiffs have alleged that Defendant Wright is responsible for Plaintiffs injuries under a doctrine referred to as vicarious liability. The theory behind this doctrine is that a surgeon has a non-delegable duty to ensure that proper care is given to an unconscious patient in an operating room under the surgeon’s control. Under this doctrine, Defendant Wright may be held legally responsible for the negligence of nurses who were working under his direction and control or who he had a right to control.
This doctrine is applicable even if Defendant Wright himself was not personally negligent.
If you find from a preponderance of the evidence that other members of the operating room team were negligent and that these negligent persons were acting under the direction and control of Defendant Wright, and if you further find that such negligence proximately caused injuries to Tammy Winters, then it is your sworn duty to return a verdict against both [BCH] and Defendant Wright.

Instruction DW-13A states:

The Court instructs the jury that before you may hold Dr. Wright responsible for any alleged negligent act of the nurses or operating room technicians in the operating room at [BCH], you must find from a preponderance of the evidence that Dr. Wright knew or should have known of the alleged negligent acts and if you so find, Dr. Wright is vicariously liable for the alleged negligent acts. And if you do not so find, then Dr. Wright is not hable.

¶ 24. In applying Mississippi law, the Fifth Circuit stated that “[t]he law imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction and control of the physician.” Hunnicutt v. Wright, 986 F.2d 119, 124 (5th Cir.1993). The plaintiffs assert that the DW-13A inserts a knowledge requirement, which is in conflict with P-16 and further that knowledge is not a prerequisite to a finding of vicarious liability.

¶ 25. We find that these instructions are not hopelessly in conflict. Instruction P-16 instructs the jury that Dr. Wright may be responsible for the negligence of nurses or technicians “who were working under his direction and control or who he had a right to control.” Instruction DW-13A instructs that Dr. Wright may be responsible for such negligence if “he knew or should have known” of such acts. This Court does not approve this instruction, and the bar is cautioned against using such an instruction. However, these instructions read together are not in actual conflict under the facts of this case, and we find no error in giving this instruction. If Dr. Wright had directed the acts or had a right to do so, then it follows that he knew or should have known about them.

¶ 26. Dr. Wright testified repeatedly that he was unaware that the blanket was on the table. Further, operating room technicians and nurses testified that the heating blanket stayed on the table in that particular operating room and that it was routinely used by the nurses without direction by the physician. As the Fifth Circuit has stated, “[t]he routine acts of treatment which an attending physician may reasonably assume may be performed in his absence by nurses of a modern hospital as part of their usual and customary duties, and execution of which does not require specialized medical knowledge, are merely administrative acts for which negligence in their performance is imputable to the hospital.” Hunnicutt, 986 F.2d at 123 (citing Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858, 861 (1961)). Thus,- there must be some connection be it actual or imputed knowledge of the negligent act by the physician. We find this allegation of error to be without merit.

IV. WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION ON THE ISSUE OF THE USE OF A PRESCRIPTION MEDICAL DEVICE WITHOUT A PRESCRIPTION.

¶ 27. The plaintiffs requested the following peremptory instruction, P^i, regarding the impropriety of the use of the heating blanket:

The Court instructs the jury that under certain circumstances negligence is conclusively presumed as a matter of law and cannot be rebutted.
In this case, a prescription medical device was used by hospital personnel without a doctor’s order.
Such action is a violation of FDA rules and regulation and constitutes negligence as a matter of law.
If you find by a preponderance of the evidence that such negligence proximately caused the Plaintiffs injuries, then you must return a verdict for the Plaintiff and against Defendant [BCH],

The trial judge summarily refused this instruction. The plaintiffs argue that this was error. Wright and BCH both contended at trial and now on appeal that the blanket is not a prescription device, however, they have yet to put forth any proof of this contention. Rather, they have continued to argue that the plaintiffs did not put forth any evidence beyond the Blanketrol II instruction manual. They argue further that use of the blanket was a necessity, and thus it could not have been negligence to use the blanket.

¶ 28. The manual states that “[t]he desired setpoint temperature should be set only as prescribed and under the order of a physician.” In the pre-trial statement pursuant to court order, Sub-Zero stated that “[t]he Blanketrol is a prescription device to be used only under order of a physician and used at a temperature ordered by a physician.” Circulating Nurse Tolbert admitted on cross-examination that she had read in the manual that the Blanketrol II was “a prescription medical device” and that it should not be used “except with the order of a physician.” This Court has stated that in regard to prescription medicine

‘[The package insert] is not conclusive evidence of standard or accepted practice in the use of the drug by physicians or surgeons, nor that a departure from such directions is negligent. But it is prima facie proof of a proper method of use, given by the maker, which must be presumed qualified to give directions for its use and warnings of any danger inherent therein.’
The prescribing physician can be permitted to rebut this implication and explain its deviation from the manufacturer’s recommended use on dosage. The holding will shift the burden of persuasion to the physician to provide a sound reason for his deviating from the directions for its use, and will require corroborative evidence to determine whether the physician met or violated the appropriate standard.

Thompson v. Carter, 518 So.2d 609, 613 (Miss.1988) (quoting Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954)). The plaintiffs argue that the manual is prima facie evidence that the unit is a prescription device. They contend further that because Miss.Code Ann. § 73-25-33 (Rev. 2000) defines the practice of medicine as prescribing such a device for cure or relief of an injury and Miss.Code Ann. § 73-25-1 (Rev.2000) requires one to obtain a license prior to practicing medicine, it was negligence per se for the staff to have utilized the blanket without the order of a physician.

¶29. Wright and the plaintiffs’ expert, Tucker, testified that the use of the heating blanket was required because of Tammy’s low core temperature prior to surgery. Further, Wright testified that the nurses were responsible for the unit. He also stated that the use of the blanket was an absolute medical necessity under the circumstances and that it was the proper standard of care. We find, however, that this testimony does not rise to the level of rebuttal as to the allegation that the Blanketrol II unit is a prescription medical device. The jury found no liability as to BCH or Wright. Thus, it would appear that the jury found either that her injury was not due to the heating blanket or that it was not negligence to have used it. The denial of the instruction was harmless, particularly considering the fact that the jury heard testimony that the device was a prescription medical device. We find this allegation of error meritless, or at the most harmless error.

V. WHETHER THE TRIAL JUDGE ERRED IN ALLOWING DEFENDANTS TO ASK LEADING QUESTIONS OF EACH OTHER’S WITNESSES.

¶ 30. The plaintiffs contend that the judge erroneously allowed BCH and Wright to ask one another’s witnesses leading questions. Leading questions were asked, examples of which are:

BCH counsel to Wright:
In fact, it would have been below the standard of care not to have used it [the Blanketrol unit] wouldn’t it?
BCH counsel to Wright:
In fact, Dr. Wright, it was an absolute medical necessity to use this blanket on this patient this night under these circumstances, wasn’t it?
Wright’s counsel to Pam Williams (BCH witness):
Okay. So Tammy Winters had already gone to Ms. Guice down in Biloxi and threatened to sue the hospital when Marla talked to you; is that correct?

¶ 31. BCH and Wright contend that it was appropriate for them to ask leading questions as they were cross-examining witnesses and they are not aligned parties as they have adverse interests. Rule 611(c) of the Mississippi Rules of Evidence states that “[o]rdinarily, leading questions should be permitted on cross-examination. When a party calls ... an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” This Court has stated that “[i]t is within the trial judge’s discretion to allow leading questions, and unless there has been an abuse of discretion to the prejudice of the complaining party, it is not reversible error.” Jones v. State, 606 So.2d 1051,1059 (Miss.1992).

¶ 32. The trial judge spent much time considering this issue. He ultimately determined that there was sufficient adversity as to the theories of defense for each party to consider them adverse, and thus he allowed them to ask leading questions of one another’s witnesses. Considering that one of Wright’s theories of defense was that if the jury determined the blanket was the cause of Tammy’s injuries then the hospital was at fault, not him, we find that the trial judge did not abuse his discretion. Thus, we find this allegation of error to be meritless.

VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW PLAINTIFFS’ EXPERTS AND PARTICIPANTS IN THE OPERATION TO TESTIFY REGARDING WRIGHT’S CONTROL OVER THE OPERATING ROOM.

¶ 33. The plaintiffs assert that the trial judge erred in not allowing witnesses to state affirmatively that Wright was in control of the operating room. BCH and Wright contend that the conclu-sory statement plaintiffs wished to elicit from witnesses is a fact determination that falls within the province of the jury. Both the Fifth Circuit in Hunnicutt, 986 F.2d at 122-23, and this Court in Starcher v. Byrne, 687 So.2d 737, 742 (Miss.1997), recognized that physicians may not have control over every happening in the operating room. Wright did concede in his testimony that he was responsible for Tammy. Further, during cross-examination of operating room technician, Pam Smith, the plaintiffs’ counsel elicited an affirmative response to several questions regarding whether or not she would have followed the doctor’s orders in using the Blanketrol II unit. The trial judge also granted Instruction P-16, discussed above. Thus, plaintiffs’ theory of the case in regard to Wright being responsible for the operating room, and thus vicariously responsible for any injury to Tammy that might have been caused by others in the operating room, was before the jury. We find that the issue of control is an issue of fact that should have been decided by the jury. Thus, trial judge did not err in precluding witnesses from providing a conclusion that lies more appropriately within the province of the jury.

CROSS-APPEAL ISSUES

¶ 34. We find that there is no need to discuss the cross-appeal issues, as we affirm the judgment below. The issues raised by BCH, however, are issues within the discretion of the trial judge, and we conclude that the trial judge did not abuse his discretion in ruling the way he did. First, as to the extension of a scheduling order, this case dragged on for quite a while, and the judge had been quite lenient with extensions. While it is true that counsel changed, the central party, BCH, never altered. Second, as to the issue of whether the judge improperly excluded evidence of Tammy’s ingesting alcohol on the evening of her injury, the judge found that the evidence would be too prejudicial. Further, BCH only had testimony that she had been drinking. It had no concrete testimony as to blood alcohol level. Thus, the trial judge was correct in excluding this evidence, as any probative value is far outweighed by the prejudice to the plaintiffs.

CONCLUSION

¶ 35. First, the trial judge did not err in denying the plaintiffs’ request for a res ipsa loquitur instruction. Second, while we agree that Tucker should have been allowed to testify regarding the standard of care as to the use of the heating blanket, we find this to be harmless error. Third, the instructions regarding Wright’s vicarious liability for actions of the operating room personnel were not in conflict. Fourth, we find no error in the trial court’s denial of the plaintiffs’ request for a peremptory instruction regarding the heating blanket. Fifth, the defendants were sufficiently opposed so that it was proper for them to ask leading questions to witnesses called by one another. Finally, it was not error for the trial judge to exclude testimony regarding Wright’s control of the operating room. For the foregoing reasons, we affirm the judgment below.

¶ 36. AFFIRMED.

WALLER, COBB, AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.; McRAE, P.J., JOINS IN PART. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

PITTMAN, Chief Justice,

Dissenting:

¶ 37. I agree with the plurality’s opinion that the trial court did not (1) err in denying the res ipsa loquitur jury instruction, (2) err in refusing to allow the Win-terses’ expert to testify regarding the standard of care of use of the heating blanket, (3) give conflicting jury instructions, and (4) err in allowing defense counsel to pose leading questions to each other’s witnesses. I part company with the plurality where it concludes the trial court did not commit error when it prevented witnesses from testifying regarding Wright’s control of the operating room. This was indeed error. Our rules of evidence are not meant to be as strictly construed as the plurality opinion does today. I also think it was more than harmless error for the trial court to refuse plaintiffs’ tendered peremptory instruction regarding the heating blanket. These errors warrant reversal, therefore, I respectfully dissent. I would reverse the trial court’s judgment and remand for a new trial.

¶ 38. According to our rules of evidence, the presentation of evidence in our trial courts embraces the opinions by experts as well as lay witnesses. M.R.E. 701 & 702. Where a witness is in a position to observe facts from which he can formulate opinions, that witness’s opinion is relevant and admissible testimony if it is helpful to the trier of fact, even though it may embrace an ultimate issue to be decided by the jury. M.R.E. 704. See also Jenkins v. CST Timber Co., 761 So.2d 177, 181 (Miss.2000). In this case, the witnesses who were called by the plaintiffs’ to testify were present in the operating room and observed the procedure and how Wright maintained discipline in the room during the operation. They had the factual basis from which they could formulate conclusions whether Wright was in control of the operating room. Their testimony is helpful to the jury because it would have provided the jury with the opinions of trained medical personnel whose observations that day were based upon the facts and tempered by the life experiences each brought with them to the operating room. I think such testimony would have been valuable to the jury when it considered how much control over the situation Wright had and whether there was negligence.

¶ 39. I, therefore, disagree with the plurality that this testimony is inadmissible because it invades the province of the jury. It was admissible under our rules of evidence, and it was error to exclude the testimony. Operating against the plurality is its own attempt to bolster its argument by restating other facts these witnesses were allowed to tell the jury and referring to the jury instructions which were granted. This is the beginning of a harmless error analysis. It is not support for the proposition that the trial court did not err in excluding this valuable testimony because the question of control was one for the jury. The issue of control is an issue of fact, but one upon which lay observers of the facts can properly form opinions and give helpful testimony to the jury. Therefore, the plurality is incorrect when it says this is not error.

¶ 40. Turning now to the negligence per se instruction, the plurality correctly concludes that Wright offered insufficient testimony in rebuttal to the plaintiffs’ argument that the instruction should have been given. However, the plurality also finds that it was harmless error to refuse plaintiffs’- tendered instruction on negligence per se with regards to the unauthorized use of a prescription heating blanket. The plurality finds support for its argument in the jury’s verdict, where it can be concluded that the jury either determined that the blanket was not the proximate cause of the injury or that it was not negligence to have used it. I must take issue with this argument. If this Court could definitively state that the jury rejected liability based upon insufficient proof of proximate cause, then this issue could be put to rest. Since it cannot, I think the trial judge should have given the negligence per se instruction. There is an evidentiary basis in the record to support giving P-4, and it was unrebutted that the blanket required a prescription for use.

¶ 41. The standard to be applied by a trial court when determining whether to give certain tendered instructions is quite liberal. “A party to an action is entitled to have the jury instructed regarding a genuine issue of material fact so long as there is credible evidence in the record which would support the instruction.” Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986). In the instant case, the uncontradicted evidence indicates that the blanket required a prescription before it could be used. We do not need to address at this stage whether the quality of care provided to Tammy Winters fell below the appropriate standard of care. The instruction limits itself to the question of whether the blanket was properly used. The facts indicate that it was not prescribed by a physician’s order as our laws require. Therefore, its use here was negligence per se. See Miss. Code Ann. §§ 73-25-1 & -33 (Rev.2000). Where the jury instructions do not fairly or adequately instruct the jury, this Court can and will reverse. Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 447 (Miss.1999) (citing Lovett v. Bradford, 676 So.2d 893, 897 (Miss.1996)). The plaintiffs were entitled to the negligence per se instruction, and it was more than just harmless error to refuse the instruction.

¶ 42. In my opinion, the trial judge committed two errors: excluding the lay opinion testimony of the knowledgeable witnesses who could answer whether Wright was in control of the operating room and refusing to give the negligence per se instruction, P-4. These errors, when taken together, restricted testimony and inadequately instructed the jury to the extent that the plaintiffs were not provided a meaningful day in court. Therefore, I would reverse the judgment below and remand this case for a new trial.

GRAVES, J., JOINS THIS OPINION. McRAE, P.J., JOINS IN PART.

McRAE, Presiding Justice,

Dissenting:

¶ 43. There is no majority in this case. Presiding Justice Smith has the plurality, and the trial court’s judgment is affirmed by this equally divided Court. Again, the “voiding” of Justice Diaz’s votes by the “majority caucus” has manipulated the system. If Justice Diaz’s vote in this matter had been allowed to stand, then either Chief Justice Pittman or I would have secured the majority in this case which would have led to a reversal. The “voiding” of Justice Diaz’s votes has resulted in the outcome of yet another case being manipulated by a divided Court with less than nine Justices participating. Furthermore, while I agree with Chief Justice Pittman’s dissent as to the need for a reversal and remand of this case, I write separately only to emphasize my position that the trial court also erred by refusing the res ipsa loquitur instruction.

¶ 44. This case meets all the elements required for a res ipsa loquitur instruction. Tammy Winters was required to have emergency surgery as a result of a gunshot wound. A heating blanket was placed underneath her body during surgery to stabilize her core body temperature. The heating blanket caused severe burns. Dr. Wright claims he did not know the heating blanket was being used, yet he said it was necessary to help keep the patient alive during surgery. Two technicians and a nurse in the operating room saw the burn marks on the back of the patient. Winters incurred over $100,000.00 in medical expenses to treat the third degree burns to her back side. At trial, testimony regarding Dr. Wright’s control in the operating room was not allowed and a res ipsa instruction was later denied. Based on these errors alone, this case should be reversed and remanded. As the plurality correctly states, this Court will reverse where the jury instructions do not fairly and adequately instruct the jury. Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 447 (Miss.1999) (citing Lovett v. Bradford, 676 So.2d 893, 897 (Miss.1996)). To be entitled to an instruction on res ipsa loquitur, the plaintiff must show that (1) the event must be one that would not normally occur absent someone’s negligence; (2) the injury is such that in the ordinary course of things it would not occur if those in control of the instrumentality used proper care; and (3) the plaintiff must not have voluntarily contributed to the event. Coleman v. Rice, 706 So.2d 696, 698 (Miss.1997) (quoting Erby v. North Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995)). The evidence clearly showed that Winters was burned by the heating blanket during surgery. In fact, the plurality even states that “Tammy offered such expert testimony that the tissue was burned due to the heating pad.” Just because the defense presented their own expert witness who disagreed with this analysis does not negate the fact that Tammy presented sufficient evidence for a res ipsa loquitur instruction. Surely, third-degree bums during operations are not a normal occurrence without some form of negligence. Clearly, Winters would not have sustained the burns if Dr. Wright and his staff had followed the use directions for the heating blanket. Winters was unconscious and could not have voluntarily acted in anyway to injure herself with the heating blanket. Winters presented ample evidence to support an instruction on res ipsa loquitur. The denial of the instruction was a reversible error as the jury was not properly and adequately instructed.

¶ 45. For these reasons, I would reverse the trial court’s judgment and remand this case for a new trial. Accordingly I dissent to the findings reached by the plurality and concur with Chief Justice Pittman’s dissent, even though it fails to recognize reversible error as to the trial court’s refusal to give the res ipsa loquitur instruction.


source: Caselaw Access Project

author: SMITH, Presiding Justice, EASLEY, Justice,

license: Public Domain

text:
    Kay T. NUNNALLY, Individually and on behalf of All Wrongful Death Beneficiaries of Joseph Lee Nunnally, Deceased v. R.J. REYNOLDS TOBACCO COMPANY.
    No. 2001-CA-01079-SCT.
    Supreme Court of Mississippi.
    March 25, 2004.

      Charles M. Merkel, Jack R. Dodson, Jr., Clarksdale, attorneys for appellant.
    Michael W. Ulmer, Lewis W. Bell, Jackson, Edward C. Schmidt, Joseph M. David, William H. Liston, Winona, David B. Alden, attorneys for appellee.
   SMITH, Presiding Justice,

for the Court.

¶ 1. On August 31, 1992, plaintiff Kay T. Nunnally filed a civil action against R.J. Reynolds Tobacco Company (“RJR”), Basic Foods, and other retailers. She asserted that the cigarettes sold to her husband were defective and unreasonably dangerous. Along with a claim of strict liability, plaintiff asserted claims of negligent design defect, failure to warn, fraud, misrepresentation, and conspiracy. The case was removed to federal court, but was subsequently remanded to the Circuit Court of DeSoto County.

¶ 2. Before trial, the court granted the defendants’ motion for partial summary judgment regarding the plaintiffs claims of fraud, negligent misrepresentation, warning, and conspiracy. The case went to trial on only the strict liability and negligence claims.

¶ 3. The jury returned a verdict in favor of RJR, and the trial court entered final judgment on the same day. Plaintiff filed a motion for JNOV or in the alternative a new trial, which the trial court denied. From these decisions, plaintiff appeals.

FACTS

¶ 4. Joseph Lee Nunnally (Nunnally) was born in 1952. He first experimented with cigarettes at the age of eight with his older brother. Nunnally became a regular smoker sometime in the mid-1960’s. By the time Nunnally married in 1976, he was “a smoker” and continued to smoke his entire life until he was diagnosed with lung cancer in 1988 and stopped smoking. Nunnally’s original brand was Salem cigarettes, but he switched to Doral, because they were cheaper. Both brands are products of RJR.

¶ 5. Since 1966, all cigarette packages have been required to display warnings that cigarette smoking presented health risks. In 1972, Congress mandated that all advertisements about cigarettes must do the same. All advertisements and cigarette packages that Nunnally came across after these respective dates contained this message. In 1988, doctors diagnosed Nunnally with lung cancer. After undergoing radiation treatment, Nunnally found a specialist in Houston, Texas, who was willing to remove the cancerous lung. Nunnally’s right lung was removed, and he underwent chemotherapy. In 1989, after experiencing great pain, Nunnally returned to the doctor. Tests revealed that the cancer had returned and spread. Later that year, Nunnally, his wife, and their four children went on vacation to Panama City, Florida. On September 1, 1989, Nunnally’s wife found him on the floor in the condominium vomiting. She called paramedics, who took Nunnally to the hospital. He died later that night from complications from the cancer.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN SUBMITTING A SPECIAL INTERROGATORY TO THE JURY WHICH PERMITTED THE APPEARANCE OF THE NEED OF THE JURY TO FIND A DEFECT IN THE CIGARETTES SEPARATE AND APART FROM THE FACT THAT UNDER THE RISK-UTILITY TEST THEY WERE UNREASONABLY DANGEROUS.

¶ 6. The trial court submitted the following interrogatory to the jury:

1. Do you find from the preponderance of the evidence that the cigarettes designed and manufactured by R.J. Reynolds Tobacco Company and smoked by Joe Nunnally were in a “defective and unreasonably dangerous” condition as defined elsewhere in these instructions?
_Yes _No
If you answered “no,” then proceed no further. If you answered “yes,” then go to the next question.
2. Has plaintiff proven by a preponderance of the evidence that the “defective and unreasonably dangerous” condition of the cigarettes designed by R.J. Reynolds Tobacco Company proximately caused or substantially contributed to Joe Nunnally’s cancer and death?
_Yes _.No
If you answered “no,” then proceed no further. If you answered “yes,” then go to the next question.
3. Do you find from a preponderance of the evidence that Joe Nunnally was negligent by knowing and appreciating the dangers of smoking cigarettes and exposing himself to those dangers by smoking? If so, then state the percentage below.
_ %
4. What are the total compensatory damages sustained as a result of the death of Joe Nunnally?
•se-

The jury answered question one m the negative. Plaintiff argues that this special interrogatory includes language from instructions D-7 and D-8, which the trial court denied. Plaintiff contends that RJR was, therefore, permitted to argue that no specific manufacturing defect was present in the cigarettes and that RJR’s products were the same as all other cigarettes. Moreover, plaintiff asserts that her requested special interrogatory would have eliminated the perceived confusion. RJR argues in response that the special interrogatory correctly stated the law; the court properly instructed the jury regarding risk-utility; and this issue is procedurally barred because plaintiff did not object to the language complained of before the trial court.

¶ 7. Our standard of review for jury instructions is as follows:

[T]he instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (Miss.2008). Where a party fails to make a contemporaneous objection to a proposed jury instruction so that the trial court has an opportunity to cure the defect, we are procedurally barred from considering arguments that the trial court erred in submitting the instruction. Haggerty v. Foster, 838 So.2d 948, 954 (Miss.2002). Thus, failure to object constitutes a waiver of that assertion on appeal. Id. “When reviewing the form or content of special interrogatories it is essential that adequate objections were timely made.” Jones v. Westinghouse Elec. Corp., 694 So.2d 1249, 1251 (Miss.1997) (quoting Barton’s Disposal Serv., Inc., v. Tiger Corp., 886 F.2d 1430 (5th Cir.1989)). We have held that the appropriate procedure for preserving this issue for appeal is (1) making a clear objection for the record, or (2) proposing an alternative interrogatory. Id.

¶ 8. We find that plaintiff did not preserve this issue for appeal. She is, therefore, procedurally barred from raising this issue. RJR concedes that plaintiffs attorney initially objected to proposed Instruction D-24, the instruction on which Special Interrogatory Number 1 was based. However, Nunnally’s attorney participated in the subsequent modification of RJR’s proposed instruction D-24. Nunnally’s attorney did not object to the language at issue here during the modification, nor did he object after the modifications were complete. We find that this issue is without merit.

II. WHETHER THE VERDICT OF THE JURY WITH RESPECT TO SPECIAL INTERROGATORY NUMBER ONE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN REFUSING TO GRANT A JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL.

¶ 9. When considering whether a jury verdict was against the overwhelming weight of the evidence, we “show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor.” Venton v. Beckham, 845 So.2d 676, 684 (Miss.2003) (quoting Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389 (Miss.2001)). We will disturb a jury verdict on appeal only if it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Herrington v. Spell, 692 So.2d 93, 103-04 (Miss.1997)).

¶ 10. “[T]he standard of review for denials of motions for directed verdict, judgment notwithstanding the verdict and a request for a peremptory instruction is the same.” Shelton v. State, 853 So.2d 1171, 1186 (Miss.2003). Each tests the legal sufficiency of the evidence presented to the trial court. Id. We properly review the ruling “on the last occasion the challenge was made in the trial court, when the circuit court overruled the JNOV.” Id. Further, we have stated:

[T]his Court will consider the evidence in the light most favorable to the appel-lee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Ala. Great S.R. Co. v. Lee, 826 So.2d 1232, 1235-36 (Miss.2002). Moreover, where a party requests a new trial and the trial court denies that request, we will reverse only if the denial amounts to an abuse of discretion. Id. at 1236.

¶ 11. Plaintiff argues that the verdict should have been overturned because the jury instructions were too confusing. She further contends that if the jury had been given the correct instructions, it would not have rendered the verdict that it did in this case. Plaintiff refers us to Sperry-New Holland v. Prestage, 617 So.2d 248 (Miss.1993), in support of this argument. While Prestage does stand for the proposition that Mississippi uses the risk-utility analysis instead of the “consumer expectations” analysis, it does not support plaintiffs argument that “there is no requirement that a product either differ from its intended form or have a manufacturing defect.” The simple fact is that plaintiffs claim is based on a strict liability design defect. The language of the risk-utility instruction that was given to the jury, which originated from plaintiffs proposed P-2A instruction and was approved by the plaintiff at trial, contains the words “defective condition.” Furthermore, Section 402A of the Restatement (Second) of Torts (1965) employs the wording “defective condition unreasonably dangerous”. Prestage states “Section 402A is still the law in Mississippi.” Id. at 254. In light of these facts, the trial court properly instructed the jury.

¶ 12. Plaintiff further contends that the verdict was against the weight of the evidence. She asserts that she presented solid evidence about the risks of cigarettes and smoking, supported by all the warnings that are required by law to be on advertisements and packaging. In addition, plaintiff contends that she presented evidence about the alleged minimal utility of cigarettes. She contends that no reasonable juror could have heard the evidence that was presented and conclude that the utility of cigarettes outweighs' their risk.

¶ 13. This Court in Prestage held:

In balancing a product’s utility against the risk of injury it creates, a trial court may find it helpful to refer to the seven factors enumerated in Professor John Wade’s article, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825. The factors are:
(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of the product— the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility-
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

617 So.2d at 256. The parties agreed to omit the seventh factor from the instructions submitted to the jury.

¶ 14. With respect to the Pres-tage factors, RJR presented an array of evidence that included information regarding Nunnally’s enjoyment and love of cigarette smoking, as well as expert evidence regarding the subjective personal benefits reported by smokers. There was evidence that there exists no “safe” cigarette and that RJR constantly did research to provide the safest, consumer-desirable cigarette possible. Plaintiff was not aware that her husband had ever tried to quit smoking, therefore avoiding any danger from the product. Further, there was evidence concerning the community awareness of the cigarette smoking’s harmful effects.

¶ 15. In light of the evidence presented and the fact that plaintiff put on evidence only to support the “unreasonably dangerous” aspect of the case and failed to provide evidence of any type of defect, we find that the trial court did not err in refusing to grant a judgment notwithstanding the verdict or in the alternative, a new trial.

III. WHETHER THE COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PLAINTIFF’S CLAIM OF NEGLIGENCE.

¶ 16. We afford trial courts “considerable discretion regarding the form and substance of jury instructions.” Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). This Court does not look at jury instructions in isolation — rather, we read them as a whole. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054 (Miss.2003). “While a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that ‘incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence’ need not be submitted to the jury.” Id. (quoting Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)). If, after reading the instructions as a whole, we find that they fairly announce the law of the case and create no injustice, then we will not find reversible error. Bolden, 854 So.2d at 1054.

¶ 17. Plaintiff argues that she was deprived of a jury instruction on negligence. She contends that her complaint contained claims for negligent design and for simple negligence. Plaintiff maintains that although half of the trial was consumed with evidence regarding negligence and proximate cause, the trial court denied the proffered negligence instructions and submitted the case to the jury solely on the theory of strict liability. She asserts that RJR made “the reasonableness of its conduct the theme of its defense”; RJR was negligent in not removing the more dangerous higher tar brands from the product line, thereby forcing acceptance of the safer brand; and RJR was negligent for marketing the cigarettes when it knew the cigarettes were addictive and deadly.

¶ 18. First, we consider plaintiffs negligent design claim. Our holding in Estate of Hunter v. General Motors Corp., 729 So.2d 1264 (Miss.1999), is directly on point. In Hunter, the trial court refused to accept the plaintiffs requested negligence instruction. Instead, the court gave an instruction based on the risk-utility test set out in Prestage, just as the trial judge did here. In Hunter, we relied on United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947), for the proposition that “[t]he risk-utility balancing test is merely a detailed version of Judge Learned Hand’s negligence calculus.” 729 So.2d at 1277. “As a common-sense matter, the jury weighs competing factors presented in evidence and reaches a conclusion about the judgment or decision (i.e., conduct) of the manufacturer. The underlying negligence calculus is inescapable.” Hunter, 729 So.2d at 1277. “An examination of the riskutility [sic] test establishes that the test is essentially a negligence test, and [there was] ... .no error in failing to grant a negligence instruction in addition to the risk-utility test.” Id. at 1278. Because Hunter controls the case at hand, we find that the trial court did not err when it refused to submit a negligence instruction in addition to the Prestage-based instruction.

¶ 19. Next we consider plaintiffs claim that RJR was guilty of negligence in selling the cigarettes after RJR became aware that its cigarettes were addictive and could result in death. We find that this point is without merit because it is the same claim that plaintiff asserted in different wording through its defective design claim.

¶ 20. Third, plaintiff asserts that RJR was negligent in not removing the higher tar brands from the product line and forcing acceptance of the lower tar brands. This argument also mirrors the design defect claim since, in essence, it states that the levels of tar found in the cigarettes is a defect. Plaintiff failed to proffer any evidence that the proximate cause of Nunnally’s death was RJR’s failure to remove the higher tar brands from the market. Therefore, this point is without merit.

¶ 21. Next, plaintiff contends that RJR was negligent because it withheld from the governmental and scientific communities information concerning carcinogens found in cigarette smoke; maintained the appearance of a controversy over whether cigarettes caused lung cancer when no such controversy existed; and failed to encourage smokers to use a lower tar brand developed by RJR as their only brand. All three of these arguments are covered by plaintiffs claims of failure-to-warn, misrepresentation, which were dismissed before trial began. Thus, we find that this point is likewise without merit.

¶ 22. Finally, plaintiff contends that RJR made its central issue the “reasonableness of their actions,” thereby making that the negligence instruction was an essential part of this trial. RJR asserts that plaintiff picks and chooses phrases from the transcript in order to make it seem like this was the case. In fact, all testimony that plaintiff refers to was given by David Townsend, an RJR expert. RJR asserted that Townsend is a design expert and the focus of his testimony was RJR’s design efforts to make the safest, most desirable product possible. We find that this point is without merit.

¶ 23. We find that the trial court committed no error in refusing the proffered negligence instruction.

IV. WHETHER THE COURT COMMITTED ERROR BY GRANTING THE DEFENDANT’S MOTION IN LIMINE CONCERNING THE “FRANK STATEMENT TO CIGARETTE SMOKERS”.

¶ 24. RJR made a motion in li-mine requesting the exclusion of a document entitled “Frank Statement to Cigarette Smokers” (Frank Statement) that was published on January 4, 1954, in newspapers nationally, including those circulated in the Southaven, Mississippi, area. The trial court granted the motion, thereby excluding the document. Our standard of review for either the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765 (Miss.2002).

¶ 25. A group of tobacco companies which included RJR sponsored the publication of the Frank Statement. It stated, inter alia, that “[rjecent reports on experiments with mice have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings.” Further, it stated that the company sponsors did not regard the experiments as conclusive in the field of cancer research. The companies “pledg[ed] aid and assistance to the research effort into all phases of tobacco use and health.” To that end, the companies created the Tobacco Research Committee.

¶ 26. Plaintiff asserts that the Frank Statement should have been allowed because it supported her claim of negligence. She asserts that the Frank Statement explains in detail the responsibility that RJR took upon itself but subsequently breached. RJR, in contrast, argues that there was no proffer to the court of the evidence that the plaintiff wanted to submit, and therefore, the issue was not properly preserved for appeal. RJR cites Metcalf v. State, 629 So.2d 558, 567 (Miss.1993) for the proposition that “when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Alternatively, RJR asserts that the circuit court did not abuse its discretion in denying the motion.

¶ 27. Motions in limine are properly granted “only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Tatum v. Barrentine, 797 So.2d 223, 228 (Miss.2001) (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)). M.R.E. 103(a) states:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
* * *
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(emphasis added). The Comment to M.R.E. 103 states: “when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded.” (citing Brown v. State, 338 So.2d 1008 (Miss.1976); King v. State, 374 So.2d 808 (Miss.1979)).

¶ 28. We find that the learned trial judge did not abuse his discretion in granting the motion in limine. The transcript indicates that there were lengthy arguments before the trial judge regarding RJR’s public statements, including the Frank Statement. Thus, we find that M.R.E. 103(a) is satisfied. Furthermore, the record indicates that Joseph Nunnally was not yet two years old when the Frank Statement was published nationally. Thus, it is apparent that Mr. Nunnally could not have read, understood, or relied on this statement in any meaningful way. Plaintiff also admitted she had no evidence that her husband saw, heard, or relied upon any of RJR’s public statements in choosing to start or continue smoking. We find that the Frank Statement was not relevant to any issue in this case and was, therefore, inadmissible. Moreover, we find that the Frank Statement would have unfairly prejudiced the jury. Because the Whittley standard and M.R.E. 103(a) are satisfied, granting the motion in limine was appropriate under this Court’s established precedent.

V. WHETHER THE MATERIALS THAT WERE EXCLUDED BY THE MOTION IN LIMINE BECAME RELEVANT AND ADMISSIBLE FOR IMPEACHMENT PURPOSES.

¶29. Plaintiff argues that the design expert, Dr. David Townsend, presented testimony about the company’s “responsi-bleness and reasonableness” and asserts that this testimony was used to exonerate RJR “in the eyes of the jury as to all of its sales and marketing activities.” Plaintiff therefore contends that she should be able to refute this evidence by presenting the “Frank Statement” discussed in issue IV and any other material that was excluded before trial.

¶ 30. There is no merit in this argument due to the simple fact plaintiff has misconstrued the testimony on which she bases her argument. She contends that Dr. Townsend’s testimony is commented on and bolstered RJR’s responsibility and reasonableness in marketing and sales. But the actual testimony on which the plaintiffs argument is based states, “I also believe that from this first rate research and development effort, we’ve been responsible and reasonable in addressing smoking and health issues and actually making a difference.” (emphasis added).

¶ 31. Dr. Townsend is a design expert. This testimony makes clear that he was testifying about RJR research and development activities and nothing else.

¶ 32. We find that the trial court did not abuse its discretion in excluding the evidence at issue here. Therefore, this assignment of error is without merit.

VI. WHETHER THE COURT ERRED IN EXCLUDING PROOF OF THE DEFENDANT’S YOUTH MARKETING PRACTICES.

¶ 33. Plaintiff contends that she should have been allowed to present as evidence a 1973 memorandum written by Claude E. Teague, Jr., Ph.D., an RJR scientist, titled, “Some thoughts About New Brands of Cigarettes for the Youth Market.” Plaintiff argues that she should have been permitted to present this article to show RJR’s knowledge regarding youth marketing. Moreover, Plaintiff asserts that this evidence would have shown that Joe Nunnally was not negligent and simply succumbed to peer pressure in exactly the manner anticipated by RJR.

¶ 34. We find that this argument is without merit. The article in question was published in 1973. Nunnally was born in 1952 and began smoking in 1960. Nun-nally became a habitual smoker in the mid-1960’s. By 1973, Nunnally was twenty-one-years old and no longer a minor. Therefore, RJR’s actions after this article was published could not have influenced Nunnally to begin smoking or affected his smoking habits as a minor. Therefore, the trial court was correct in refusing to admit it into evidence.

VII. WHETHER THE COURT ERRED IN ALLOWING DEFENDANT’S EXPERT WITNESS DR. GEORGE SEIDEN TO OFFER OPINION TESTIMONY AS TO THE PLAINTIFF’S APPRECIATION OF CERTAIN RISKS AND HIS ALLEGED ABILITY TO STOP SMOKING AT WILL.

¶ 35. Rulings on the admissibility of expert testimony are reviewed for abuse of discretion. Gatewood v. Sampson, 812 So.2d 212, 221 (Miss.2002). The Plaintiff asserts that Dr. George Seiden’s expert testimony should have been excluded because he had never had any contact with Nunnally nor read any type of deposition he might have ever made and he formed an opinion about whether Nunnally could have stopped smoking whenever he chose to. She also argues that Dr. Seiden’s opinion should not have been admitted because the information on which he based his opinion was never admitted and would not have been admissible.

¶ 36. Whether an expert witness is qualified to testify is within the trial court’s discretion. See, Detroit Marine Eng’g v. McRee, 510 So.2d 462, 467 (Miss.1987); Hooten v. State, 492 So.2d 948 (Miss.1986). The test is whether a witness “possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.” See also May v. State, 524 So.2d 957, 963 (Miss.1988); McRee, 510 So.2d at 467; Henry v. State, 484 So.2d 1012, 1015 (Miss.1986). There was no abuse of discretion in allowing Dr. Seiden to testify concerning Nunnally’s ability to quit smoking.

¶ 37. M.R.E. 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.”

¶ 38. M.R.E. 703 clearly states that experts can base their testimony on facts or data that need not be admissible in evidence. “[F]orensic psychiatry is recognized as a proper field of expertise.... ” May, 524 So.2d at 963.

¶ 39. Dr. Seiden was clearly established as a seasoned expert in the fields of psychiatry and forensic psychiatry. Dr. Seiden testified that he based his scientific opinion on “deposition testimony of [Nun-nally’s] wife, his mother, his father, his siblings, his friends from childhood, his friends from school and his adult life, teachers at various stages in his life. Physicians who treated him, and then ... also reviewed the medical records of the physicians who treated him.” Dr. Seiden explained how he took this information he had gathered and formed an opinion by applying the background education, experience with other smokers and addicts of other substances and his knowledge of addictions.

¶ 40. Because M.R.E. 703 allows an expert to form an opinion on facts or data that is inadmissible and that forensic psychiatry has been recognized as a proper field of expertise we find that no error was committed by the trial court in allowing Dr. Seiden to form an opinion on whether Nunnally could have stopped smoking at any time.

VIII. WHETHER THE COURT ERRED IN RESTRICTING PLAINTIFF’S CROSS-EXAMINATION OF DEFENSE WITNESSES TOWNSEND AND SEIDEN ABOUT THE INDUSTRY’S ACTION TO INFLUENCE PUBLIC OPINION AND KNOWLEDGE AS TO THE RISKS OF SMOKING.

¶ 41. Plaintiff argues that there were at least four different occasions during cross-examination in which she was not allowed to pursue her line of questioning and, therefore, the trial court erred in not allowing her to pursue this questioning.

¶ 42. Plaintiff contends that these lines of questioning would have helped prove that “smokers such as Joe Nunnally did not truly understand how serious the risk of smoking is.” While this is what the plaintiff said that she wished to prove, none of the lines of questioning that are cited in the plaintiffs brief support this argument. Each and every line of questioning either pertained to evidence that was excluded in a motion in limine, claims that were dropped before the trial and therefore not at issue, or were cumulative because it was allowed elsewhere during the questioning. The plaintiff has failed to show that the trial court abused its discretion. This issue is without merit.

IX. WHETHER THE COURT ERRED IN DENYING PLAINTIFF’S CHALLENGES FOR CAUSE OF FOUR JURORS.

¶ 43. Plaintiff asserts that four different jurors should have been excused for cause, which, according to the plaintiff, could not be removed by using her peremptory strike because it would have allowed the seating of another juror which she claimed “may be the most strongly opinionated juror we’ve had in here from the standpoint of the ultimate issues in the case.”

¶ 44. We have held:

It should .... be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference ... These varied imponderables make selection of jurors a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.

Scott v. Ball, 595 So.2d 848, 850 (Miss.1992) (citing Harding v. Estate of Harding, 185 So.2d 452, 456 (Miss.1966); Howell v. State, 107 Miss. 568, 65 So. 641, 642 (1914)). Accord, Hamilton v. Hammons, 792 So.2d 956, 968 (Miss.2001).

¶ 45. This Court has a longstanding rule that when a party has challenges remaining and fails to use them, he cannot object to the court for failing to excuse a juror for cause. Davis v. Wal-Mart Stores, Inc., 724 So.2d 907, 911 (Miss.1998); Capler v. City of Greenville, 207 So.2d 339, 341 (Miss.1968) (citing Bone v. State, 207 Miss. 20, 41 So.2d 347 (1949)).

¶ 46. The threshold test for an objection to the court’s failure to excuse a juror for cause is a showing on appeal that the objecting party had used all of his peremptory challenges and the party was forced to take the incompetent juror. Chisolm v. State, 529 So.2d 635, 639 (Miss.1988). Any other rule would allow the objecting party to take advantage of error he helped commit. Capler, 207 So.2d at 341.

¶ 47. We find that plaintiffs arguments are without merit. The trial judges decide whether jurors need to be excused for cause. The trial judge views the demeanor and hears the responses of each possible juror. Plaintiff reserved one of her peremptory challenges, deciding not to exhaust them. Mississippi law holds that before one can appeal based on whether a juror should be excused, they must exhaust all peremptory challenges. Plaintiff did not do this and, therefore, cannot raise this point on appeal.

¶ 48. We find that the trial court did not err in denying plaintiffs challenges for cause. Thus, this issue is without merit.

CONCLUSION

¶ 49. Because the issues presented are without merit, we affirm the judgment of the DeSoto County Circuit Court.

¶ 50. AFFIRMED.

PITTMAN, C.J., WALLER, P.J., COBB AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting.

¶ 51. I must respectfully dissent from the majority’s finding that the trial judge acted properly in its handling of the “Frank Statement to Cigarette Smokers.” The trial judge rejected the statement based solely on arguments made by the attorneys at the motion in limine. Clearly, the statement was published by a group of tobacco companies including the defendant, RJR on January 4, 1954. The statement provided, “recent reports on experiments with mice have given wide publicity to a theory that cigarettes smoking is in some way linked with lung cancer in human beings.” However, the tobacco companies did not print warning labels on the cigarette packages until 1966. Therefore, the tobacco companies waited approximately 12 years between publication of the Frank Statement and the introduction of warning labels to inform smokers of the dangers of smoking. Nunnally was not born until 1952 and begin experimentation at approximately age 8. Nunnally did not become a regular smoker until the mid-1960’s.

¶ 52. Apparently, the tobacco companies had notice of potential hazardous, cancer causing consequences of smoking in 1954 when it published the Frank Statement before Nunnally became a regular smoker. However, the Frank Statement was not published again. The warnings were not displayed until 1966 on the cigarette packages and then in all advertisement in 1972.

¶ 53. Therefore, the trial judge erred in not allowing Frank Statement to be considered by the jury. I would reverse and remand for a new trial.