author: COBB, Presiding Justice, for the Court. GRAVES, Justice,

text:
    Richard HOBGOOD a/k/a Ricky Buchanan Hobgood v. STATE of Mississippi.
    No. 2004-KA-01917-SCT.
    Supreme Court of Mississippi.
    March 23, 2006.
    Rehearing Denied May 4, 2006.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
   COBB, Presiding Justice, for the Court.

¶ 1. On January 28, 2004, Richard Hob-good was convicted in the Hinds County Circuit Court, First Judicial District, of sexual battery of a child under the age of 14, pursuant to Miss.Oode Ann. Section 97 — 3—95(l)(d). He was sentenced to life in the custody of the Mississippi Department of Corrections, pursuant . to Miss.Code Ann. Section 97-3-101(3). Hobgood asserts the trial court erred by: (1) ruling the victim was unavailable pursuant to Miss. R. Evid. 804; (2) allowing hearsay evidence under the tender years exception; (3) allowing the State to bolster its case with double hearsay; (4) allowing the State’s expert witness to vouch for the victim’s credibility; (5) allowing expert opinion testimony on child sexual abuse; (6) precluding Hobgood from presenting evidence in defense of his charges based on relevancy; and (7) sentencing Hobgood to life, without a hearing, an opportunity to present mitigating evidence, or considering other penalties. Finding no reversible error, we affirm the trial court.

FACTS

¶ 2. From June 1, 2000, until June 27, 2001, Hobgood, then age 28, was living with his girlfriend in Jackson. Due to his girlfriend’s emotional problems and difficulties with Hobgood, her two minor children lived with their maternal grandmother, Jane Doe. However, for a period of time, their mother regained custody, and the two children lived with her and Hob-good.

¶ 3. On June 28, 2001, Christina Cooke was baby-sitting the victim and his sister while staying at Doe’s home. The victim, who was 5 years of age at that time, approached Cooke and asked if he could tell her a secret. He then proceeded to describe to Cooke how Hobgood forced him to lie on the bed and performed anal sex on him, something which the victim called “bad medicine.” Cooke then called Doe and informed her that she needed to return home. When Doe arrived, Cooke asked the victim to tell Doe what he had told her, and he repeated the story “word-for-word.”

¶ 4. Doe and Cooke took the victim to see psychotherapist Denise Detotto. De-totto spoke individually with each of them about the victim’s allegations and then directly questioned the victim. When asked, the victim told Detotto that:

Ricky Hobgood had been giving him bad medicine. When I asked what he meant by that he said that Mr. Hobgood would have him pull his pants down and he would put his thing in his bootie, that there would be water and that Mr. Hob-good would then wipe off the water with a towel.

Detotto testified that the victim told her it happened frequently and that it was painful. She also testified that the victim was told to do “bad medicine” to his younger sister.

¶ 5. Following the meeting with Detotto, the victim, was taken to the University of Mississippi Medical Center where he met with Dr. Gowdagere Srinath, a pediatrician. The victim gave a vivid description of the abuse to Srinath, which included a demonstration of a humping movement. Dr. Srinath testified that his physical examination of the victim revealed decreased anal tone, which was consistent with the description of abuse the victim had given him. While at UMMC, the victim also met with Jackson Police Department Officer Jay Albright, and described what Hobgood had done. Albright also questioned Doe and a social worker with whom the victim had met.

ANALYSIS

I. VICTIM’S UNAVAILABILITY TO TESTIFY UNDER MISS. R. EVID. 804(a)(6)

¶ 6. On January 26, 2004, the court held a pre-trial hearing on the State’s motion to have the victim declared unavailable so his testimony could be admitted under the tender years exception. The State called Detotto to testify, and established that she has a master’s degree in psychology with a specialization in clinical mental health, and attended a four-year doctoral program at the Massachusetts School of Professional Psychology. During the first and second years she took part in clinical programs and was assigned to the children’s assessment team at the University of Massachusetts Medical Center in Worcester, Massachusetts. After eliciting her significant credentials, the state began questioning Detotto regarding her examination of the victim. The record does not reveal that the State moved to qualify her as an expert, but neither does the record reveal that Hobgood objected to her testimony.

¶ 7. Detotto further testified that the victim attended therapy sessions with her for slightly more than one year. In her opinion, the victim would be re-traumatized, “like taking a scar [sic] off a wound”, if forced to testify in front of Hobgood since he had not seen him in two years. The trial court found, pursuant to Miss. R. Evid. 804(a)(6), there was substantial likelihood the victim’s emotional or psychological health would be substantially impaired if he were required to testify in the physical presence of the accused, and therefore declared him to be unavailable.

¶ 8. Hobgood now contends the trial court erred in this determination, because its decision was based on an expert opinion that was not properly elicited pursuant to Miss. R. Evid. 702. However, Hobgood failed to object to Detotto’s testimony in the hearing, and thus is procedurally barred from raising this issue on appeal. See Robinson v. State, 585 So.2d 735, 737 (Miss.1991). Notwithstanding the procedural bar, Hobgood’s argument is also without merit.

¶ 9. Although this Court has not specifically addressed the standard to be applied when qualifying a witness as an expert in child abuse cases, it is clear from the record that the trial court found Detotto qualified to deliver expert testimony. However, this is not what Hobgood challenges.

¶ 10. Hobgood challenges the State’s failure to use the magic words of “tendering” Detotto as an expert witness during the pretrial hearing. To find in favor of Hobgood would put form over substance so as to cause a miscarriage of justice. The State and the trial court complied with Rule 702, in eliciting Detotto’s qualifications in open court. Hobgood was put on notice of her qualifications, credentials and the nature of her testimony. Hobgood had ample opportunity to challenge these qualifications but chose not to do so. We find Hobgood’s argument without merit.

II. THE TENDER YEARS EXCEPTION UNDER MISS. R. EVID. 803(25)

¶ 11. The trial court admitted the victim’s statements regarding Hob-good’s “bad medicine”, under Miss. R. Evid. 803(25), the tender years exception. These statements and a description of the abuse were testified to by: Doe, Cooke, Detotto, Albright, Srinath and Detective Carnell Kitchens. Hobgood asserts their testimony violated his right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution and Article 3 Section 26 of the Mississippi Constitution, citing Crawford, v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, Hobgood failed to contemporaneously object to this testimony, but because Hobgood raises an issue implicating his fundamental rights, it is not procedurally barred. This Court reviews the admission or exclusion of evidence for abuse of discretion. Clark v. State, 891 So.2d 136, 139 (Miss.2004) (citing Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000)).

¶ 12. Crawford only applies to the use of testimonial statements, and unfortunately the United States Supreme Court left .“for another day any effort to spell out a comprehensive definition of ‘testimonial’ ”. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. In this Court’s recent decisions in Clark, 891 So.2d at 140 and Burchfield v. State, 892 So.2d 191, 202 (Miss.2004), we concluded that a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused. That is clearly not the circumstance in the present case. Thus, the trial court did not err in admitting the testimony of Doe, Cooke, Detotto or Srinath, as the victim’s statements related by them were not testimonial under Crawford.

¶ 13. These individuals were not working in connection with the police. Further, their statements were not made for the purpose of aiding in the prosecution. There was a previous relationship between the victim and Doe and Cooke. The victim’s unsolicited statements were made to them for the sake of his well-being and not for the purpose of furthering the prosecution. The same can be said of statements to Detotto and Srinath. While no previous relationship existed, the purpose of these statements was to seek medical and psychological treatment. The victim was taken to Detotto and Srinath at the family’s request and not sent there by police to further their investigation. Had the police directed the victim to seek treatment from a doctor and a therapist for the purpose of discovering evidence to aid in the investigation then it might be possible for the statements to implicate the Confrontation Clause.

¶ 14. The statements testified to by Albright and Kitchens were testimonial and should have been excluded. Therefore, the trial court erred in admitting them. However, similar testimony was properly admitted from four other witnesses. Therefore, this testimony was du-plicative, and the error is harmless.

III. HEARSAY WITHIN HEARSAY

¶ 15. When Albright arrived at UMMC, he met with DHS personnel, a social worker and Doe. When called at trial, the State questioned him regarding his conversations with Doe and the social worker. Albright testified, over objection, to the details of the abuse related by Doe and the social worker. The trial judge overruled Hobgood’s objection “based on the exception to the hearsay rule for the child of tender years. And also it’s the official investigation report of this officer.” Hobgood asserts the trial court erred by allowing “double hearsay” to improperly bolster other witnesses’ testimony.

¶ 16. This is not hearsay within hearsay, and Albright’s testimony does not improperly bolster the testimony of the State’s other witnesses. This Court’s standard of review for the admission of evidence is abuse of discretion. Clark, 891 So.2d at 139. Therefore, unless that discretion is abused this Court should not overturn the trial court’s ruling. Id. A statement is inadmissible hearsay if it is made for the truth of the matter asserted, and typically a witness’ statement to the police is hearsay. Swindle v. State, 502 So.2d 652, 657 (Miss.1987). However, to be deemed hearsay, the purpose of the testimony must be for the truth of the matter asserted. Id. at 658. In this case the trial court did not abuse its discretion in finding the social worker’s and Doe’s statements were not admitted for their substantive truth, but to show why Al-bright’s report indicated Hobgood as a suspect.

¶ 17. Further, Albright’s testimony did not improperly bolster the testimony of other witnesses. Hobgood points to Anderson v. State, 171 Miss. 41, 156 So. 645 (1934), for the proposition that this Court condemns the practice of bolstering a witness’ testimony using hearsay. This case is irrelevant and factually distinguishable. Anderson involves an out-of-court identification by the victim of his armed assailant, when the police brought the defendant to the victim’s hospital room for identification. At trial the police testified as to the identification. The facts of this case are dissimilar to the facts of Anderson. We find Hobgood’s argument regarding hearsay within hearsay is without merit.

IV. EXPERT VOUCHING FOR THE CREDIBILITY OF THE VICTIM

¶ 18. Hobgood asserts it was error to allow Dettoto to make a direct comment on a child sex abuse victim’s credibility. At trial Detotto’s testimony was as follows:

Q. Okay. And during the disclosure that [the victim] made to you, did you find him credible?
A. Yes.
Q. Why?
A. Every time that—
BY MR. WADE: Your honor, I will object to her passing on the credibility of this witness. I believe the Supreme Court has spoken to this.
BY THE COURT: She’s making an observation. Overruled. It’s subject to cross-examination.
BY MS. PURNELL: (Continuing)
Q. Why did you find him credible?
A. Every time that [the victim] discussed) the above with me the details never changed. They were consistent over an entire year’s period. And in addition to that, there was also physical evidence which was found.

The State recognizes that such testimony has been held to be “of dubious competency” but asserts that here it is admissible because Detotto vigorously pursued the victim’s credibility through an extensive developmental history study and administration of several tests, one of which, “showed that the victim had ‘maladaptive behaviors’ ” encompassing cheating and lying.

¶ 19. This Court has never held that an expert’s direct comment on a child sex abuse victim’s credibility is per se reversible error, because in previous cases we reversed and remanded for several reasons including that error. However, this Court has stated that such testimony is at best of dubious competency. Griffith v. State, 584 So.2d 383, 387 (Miss.1991). In Griffith the mother of a ten-year-old mentally disabled girl brought the child to a teacher who specialized in educating mentally disabled children. The purpose was to determine if the stories the child had told her mother were true. The teacher testified that she believed the child’s stories because “[the child] could not have told this story twice and almost word for word if she had not experienced it.” Id. at 385. This Court found the teacher’s statements inadmissible. Id. at 387. However, the case was remanded for another reason. Id. at 386. On remand, the Court cautioned the trial court against allowing direct comments as to the victim’s “veracity.” Id. at 387.

¶ 20. This Court has, however, stated that under Rule 702 “experts called to testify about behavioral characteristics that may affect an alleged victim’s credibility may not give an opinion of the credibility of a particular witness.” Goodson v. State, 566 So.2d 1142, 1153 (Miss.1990). In Goodson, this Court first addressed the present issue. There a man was charged with sexual abuse of a young girl, when four years after the incident, the girl approached her family with the allegations. The family took her to see a physician. At trial, the physician testified that the victim had been telling the truth because the girl’s statements were corroborated by physical evidence. Goodson, 566 So.2d at 1144. This Court again held such testimony inadmissible. Id. at 1145-46. However, and again, Goodson was reversed on other grounds.

¶ 21. The Court of Appeals dealt with this issue in Jackson v. State, 743 So.2d 1008 (Miss.Ct.App.1999). In Jackson, a young girl reported being sexually abused by a neighbor. The child was taken to UMMC where she met with a therapist to describe the encounter. At trial the therapist testified that she assumed the child’s statements were true unless they were disproved. Jackson, 743 So.2d at 1016. In that case the Court of Appeals held that the statement was not reversible error because it was not a direct comment on the child’s veracity. Id. at 1016-17.

¶ 22. In the present case, Dettoto never stated that the victim was telling the truth. Rather she explained the consistency of the accounts he made to individuals, at different times, not in the presence of the others, and found them to be credible. Hobgood contends that Detotto’s testimony denied the jury its role as judge of credibility. We disagree. The jury heard Dettoto’s testimony along with that of five other witnesses. The trial court thoroughly and correctly instructed the jurors regarding their role as the sole judges of the credibility of the witnesses and the weight their testimony deserved. He specifically stated they “should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves.”

¶ 23. We hold that allowing Detotto’s comment regarding the victim’s credibility was not error, when viewed in the totality of her testimony. She did not cross the line and say that he was telling the truth. This issue is without merit.

V. EXPERT OPINION TESTIMONY IN THE AREA OF CHILD SEXUAL ABUSE

¶ 24. A witness must be qualified as an expert under Miss. R. Evid. 702 if her testimony is such that the peculiar knowledge or information to be presented is not likely possessed by a layman. Crawford v. State, 754 So.2d 1211, 1215-16 (Miss.2000); Sample v. State, 643 So.2d 524, 529 (Miss.1994). Before testimony is offered pursuant to Rule 702, the witness must be offered as an expert. Sample, 643 So.2d at 530. If expert testimony is offered from an unqualified witness, there is reversible error. Cotton v. State, 675 So.2d 308, 312 (Miss.1996) (citing Roberson v. State, 569 So.2d 691, 696 (Miss.1990)). The purpose of qualifying a witness as an expert, is to allow opposing counsel the opportunity to challenge the witness’ credentials and qualifications prior to testimony being proffered. Sample, 648 So.2d at 580. It puts opposing counsel on notice and grants an opportunity to prepare rebuttal. Id.

¶ 25. At trial Detotto was qualified as an expert in the field of psychology. On direct examination, Detotto testified to her observations and opinions of the victim. The relevant testimony was as follows:

Q. Okay. And did he have unusual behavior at any time during these therapy sessions?
A. During the therapy sessions?
Q. Uh-huh.
A. Yes. He during one therapy session in particular became upset that he was going to have to — that the session was ending and that he was going to have to take a nap, and he started banging his head against the wall very violently. In fact, we had to almost restrain him at that point. He also when he was angry would bite himself. And then he was constantly putting his hands down inside of his pants and pulling on his penis.
Q. Did these actions surprise you coming from a sexual assault victim?
A. No.
Q. Why not?
A. Frequently when we are working with children who have been sexually abused we see self-harm like the head banging, the biting, because they’re having difficulty dealing with their anger. We frequently see excessive masturbation. And then also there will be sleep disturbances frequently. Children will sometimes not be able to become toilet trained. And at five (the victim) was able to stay dry during the day, but at night he was having to be put into diapers.

There was no objection made by Hobgood at trial.

¶ 26. Hobgood argues that because this issue affects his fundamental rights, his failure to object at trial does not procedurally bar him from raising it on appeal. Hobgood asserts that the underlying error is the admission of expert testimony from a witness in a field about which they are not qualified to testify. Further, he argues that no witness may be qualified as an expert in the field of child sexual abuse. We disagree.

¶ 27. Hobgood failed to object at trial and therefore is procedurally barred from raising this issue here. See Watts v. State, 733 So.2d 214, 233 (Miss. 1999). Admission of such testimony does not affect the defendant’s fundamental rights, and therefore Hobgood’s failure to object to it at trial bars appeal. See Id. Notwithstanding the procedural bar, the trial court did not err in the admission of Detotto’s expert testimony. The qualification of an expert on issues of child sexual abuse is left to the sound discretion of the trial judge. Crawford, 754 So.2d at 1215, overruled on other grounds. Therefore, this Court will reverse only if it is clear that the witness is not qualified. Id. Hob-good argues that Goodson stands for the principal that a trial court may neither qualify an expert in the field of child abuse nor allow expert testimony about common characteristics of sexually abused children. This reading of Goodson is incorrect. This Court has held that Goodson stands for the principal that experts may not testify as to a syndrome commonly associated with children who have been sexually abused, but can testify as to common characteristics of sexually abused children. Hall v. State, 611 So.2d 915, 919 (Miss. 1992). When an expert testifies as to substantive evidence of abuse via a description of behaviors seen in sexually abused children, the expert is not describing a syndrome. Id. This Court has held that expert testimony about common characteristics is admissible unless its probative value is substantially outweighed by the potential for unfair prejudice or confusion of the jury. Id.

¶28. Detotto was within her area of expertise when she described the common characteristics of sexually abused children. She testified directly as to the victim’s psychological condition. Detotto did not testify as to a syndrome; rather she spoke directly about the victim’s behavior. The testimony was admitted as substantive evidence of Hobgood’s guilt and it was not unfairly prejudicial or confusing to the jury. Therefore, we find Hobgood’s argument without merit.

VI. EXCLUDING TESTIMONY OF HOBGOOD’S WITNESSES

¶ 29. After the close of the State’s case, Hobgood made a proffer to introduce evidence from his mother and two uncles that the conditions of the victim’s house were “dirty, stinky, smelly type and that with the inference to be drawn from that that [the victim] would not want to live there; therefore, would have made up stories to leave.” The State objected as to relevancy. The trial court held the evidence was not relevant and that if it were relevant it was unduly prejudicial, confusing and needlessly cumulative. Further, the other witnesses would not be appropriate because they were not mentioned during voir dire, and therefore the jury was not given notice they would testify.

¶ 30. Hobgood argues the trial court erred in denying him the opportunity to introduce this evidence because it was crucial to his theory that the victim fabricated his story in order to continue living with his grandmother. Further, Hobgood complains the trial court committed a more serious error in failing to allow him to present these witnesses because they were not listed during voir dire.

¶ 31. Hobgood’s argument is without merit, and the trial court did not abuse its discretion in excluding the cumulative testimony. The trial court is afforded great deference whether to admit evidence. Foster v. State, 508 So.2d 1111, 1118 (Miss.1987). This Court has long held that evidentiary rulings are within the trial judge’s broad discretion and will only be reversed if the' reviewing court perceives an abuse of that discretion. Hentz v. State, 542 So.2d 914, 917 (Miss.1989). The primary premise for denying Hob-good’s proffer was that it was cumulative. Hobgood presented the same evidence or variations on it, at least three times. Therefore, the additional testimony would have been cumulative, and the trial court was within its discretion when it denied Hobgood’s proffer. See Gray v. State, 799 So.2d 53, 60-62 (Miss.2001); Gribble v. State, 760 So.2d 790, 792-93 (Miss.2000); Alexander v. State, 610 So.2d 320, 335-36 (Miss.1992).

¶ 32. Also, the unkempt nature of the home has no relevance to whether the sexual assault occurred. Hobgood exaggerates the severity of the trial court’s decision. He claims the trial court’s ruling denied him the ability to call these witnesses simply because they were not on the witness list during voir dire. It is true that the trial court did state its concern that they were not on the list at that time, but made its decision based on the evidence to be presented. The rationale for excluding the testimony was its substance and not who was testifying to it.

VII. LIFE SENTENCE

¶ 33. Pursuant to Miss.Code Ann. Section 97-3-101(3) the trial court sentenced Hobgood to life in the custody of the Mississippi Department of Corrections. The trial judge observed that the crime committed by Hobgood was “a very despicable crime” and therefore imposed its sentence. Hobgood asserts that the procedure used by the trial court violated his due process rights because it failed to take into consideration certain factors in determining a proper sentence.

¶ 34. In order for an error related to improper sentencing to be preserved for appeal, there must be an objection made at trial. Cox v. State, 793 So.2d 591, 599 (Miss.2001); Smith v. State, 530 So.2d 155, 162 (Miss.1988); Reed v. State, 536 So.2d 1336, 1339 (Miss.1988). Because no objection was made at the time of sentencing, Hobgood is procedurally barred from raising this issue here. Cox, 793 So.2d at 599.

¶ 35. Notwithstanding the procedural bar, Hobgood’s argument is also incorrect. Hobgood relies on Stewart v. State, 372 So.2d 257 (Miss.1979), for the premise that a trial court may not sentence a defendant to life imprisonment without a finding made by the jury. Stewart is both factually and statutorily distinguishable from the present case. In Stewart the defendant was convicted of armed robbery and sentenced pursuant to Miss. Code Ann. Section 97-3-79, which states in relevant part:

... upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

In the present case Hobgood was sentenced for sexual battery pursuant to Miss. Code Ann. Section 97-3-101(3) which reads in relevant part:

Every person who shall be convicted of sexual battery under Section 97-3-95(l)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty years (20).

The sexual battery statute does not contain the same limiting language as the armed robbery statute in Stewart. We agree with the Court of Appeals’ holding in Ray v. State, 844 So.2d 483, 486 (Miss.Ct. App.2002) that this distinction is pivotal. Ray distinguished between the armed robbery statute and others which do not contain language requiring a jury finding to impose a penalty of life. The Court of Appeals found the Stewart decision inapplicable where the Legislature has not required jury involvement in the text of the statute. Id. at 486. The present statute authorizes the maximum sentence to be life in prison, but does not require the jury to arrive at that verdict. Because the trial court acted within the limits of the statute and the statute did not require a finding by the jury, this issue.of appeal is without merit.

CONCLUSION

¶ 36. We hold that Hobgood’s rights were not violated when Detotto commented on the victim’s credibility, and we find no merit to the other issues raised. We affirm the judgment of the trial court.

¶ 37. CONVICTION OF SEXUAL BATTERY OF A CHILD AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

dissenting:

¶ 38. Unlike the majority, I find the trial court committed reversible error when it allowed an expert witness to testify directly to the credibility of the victim’s statements over the objection of defense counsel. The majority correctly points out that we do not allow “experts called to testify about behavioral characteristics that may affect an alleged victim’s credibility [to] give an opinion of the credibility of a particular witness.” Goodson v. State, 566 So.2d 1142, 1153 (Miss.1990) (citation omitted). While the Goodson Court found this type of testimony inadmissible, it did not reach the issue of whether admission of such testimony constituted reversible error since the ■ Court reversed on other grounds. This Court, now confronted with this issue, reaches the wrong result.

¶ 39. A number of our sister jurisdictions have addressed the issue and have found that an expert witness’ direct comment, such as the one above, on the credibility, truthfulness or veracity of a child sex abuse victim is reversible error. See State v. Grenier, 257 Conn. 797, 805-06, 778 A.2d 159, 164 (2001); Floray v. State, 720 A.2d 1132, 1135 (Del.Supr.1998) (expert testimony on credibility does not assist the trier of fact); State v. Doan, 1 Neb.App. 484, 493, 498 N.W.2d 804, 810 (1993) (testimony that child sex abuse victims as a class tend to tell the truth is the equivalent of direct testimony on the credibility of testifying complainant); State v. Foret, 628 So.2d 1116, 1127 (La.1993); State v. Koepsell, 508 N.W.2d 591, 594 (S.D.1993); Yount v. State, 872 S.W.2d 706, 711-12 (Tex.Crim.App.1993); State v. Batangan, 71 Haw. 552, 558, 799 P.2d 48, 52 (1990); State v. Rimmasch, 775 P.2d 388, 406-07 (Utah 1989); Thompson v. State, 769 P.2d 997 (Alaska Ct.App.1989); Head v. State, 519 N.E.2d 151, 153 (Ind. 1988); People v. Reinhardt, 167 Mich.App. 584, 596, 423 N.W.2d 275, 282 (1988); State v. Bailey, 89 N.C.App. 212, 219, 365 S.E.2d 651, 655 (1988); Tingle v. State, 536 So.2d 202, 205 (Fla.1988); Zabel v. State, 765 P.2d 357, 360 (Wyo.1988); Commonwealth v. McNeely, 368 Pa.Super. 517, 520, 534 A.2d 778, 779 (1987); People v. Oliver, 745 P.2d 222, 225 (Colo.1987); State v. Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987); State v. Brotherton, 384 N.W.2d 375, 378-79 (Iowa 1986) (claiming even indirect testimony on credibility is inadmissible); State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232, 238 (1986); State v. Moran, 151 Ariz. 378, 385, 728 P.2d 248, 255 (1986); State v. Miller, 377 N.W.2d 506, 508 (Minn.Ct.App.1985); State v. Middleton, 294 Or. 427, 437, 657 P.2d 1215, 1221 (1983).

¶ 40. Sister jurisdictions have held as such for a variety of different reasons. One reason is that an expert witness’ comment on a sex abuse victim’s credibility usurps a critical function of the jury. United States v. Toledo, 985 F.2d 1462, 1470 (10th Cir.1993) (citing United States v. Scop, 846 F.2d 135, 142 (2d Cir.1988)). This testimony inherently usurps the jury’s traditional role as the judge of credibility in the courtroom. State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986); State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986); State v. Holloway, 82 N.C.App. 586, 587, 347 S.E.2d 72, 73 (1986). This Court has continually held that the jury is the sole judge of a witness’ credibility and the weight and worth of their testimony. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). See Head v. State, 519 N.E.2d 151, 153 (Ind.1988) (expert testimony on credibility is an invasion of the province of the jury in determining what weight they would place upon the child’s testimony). Detotto’s testimony in the present case clearly denied the jury its role as judge of credibility. By stating unequivocally that the victim was credible in relating his story about the sexual abuse he suffered at Hobgood’s hands, she eviscerated the jury’s determination of that issue.

¶41. Building on this reason, other courts have found this testimony inappropriate because an impressively qualified expert’s opinions will likely prejudice the jury and unduly influence them in their finding of credibility. Toledo, 985 F.2d at 1470. “The use of expert testimony presents a risk of overbearing the jury in its deliberative responsibility. The disparate expertise of the witness and the average juror tends to produce a natural inclination to accept the expert testimony as gospel.” Dunnington v. State, 740 S.W.2d 896, 898 (Tex.Ct.App.1987). See also United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986); Commonwealth v. Seese, 512 Pa. 439, 443-44, 517 A.2d 920, 922 (1986); United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Given the unique position the victim’s testimony had in the present case this reason is even more pertinent.

¶ 42. The victim did not testify, but his statement was admitted under the tender-years exception. Therefore, the jury was denied the ability to make a firsthand judgment of the victim’s credibility and rather had to do so through the filter of other witnesses who repeated his statement. That the victim’s statement was repeated by several different witnesses and stood nearly alone as evidence against Hobgood illustrates the prejudice he suffered. Absent Detotto’s testimony, it remained the province of the jury to determine the credibility of the victim’s statement. However, when Detotto testified that the victim was credible, she created a bedrock foundation for the testimony of every other individual who repeated the victim’s statement. Compare that to the minor amount of direct physical evidence that any abuse occurred, much less that the abuse was at the hands of Hob-good, and it becomes clear that Detotto’s testimony played a pivotal role in the trial.

¶ 43. Another reason for excluding such evidence is that it fails to meet the standard for admissibility of expert testimony because it does not aid the jury in its deliberative functions. Toledo, 985 F.2d at 1470 (citing United States v. Binder, 769 F.2d 595, 602 (9th Cir.1986)); Goodson, 566 So.2d at 1153 (under Rule 702 experts called to testify about behavioral characteristics that may affect an alleged victim’s credibility may not give an opinion of the credibility of a particular witness); State v. Friedrich, 135 Wis.2d 1, 16, 398 N.W.2d 763, 770 (1987); Holloway, 347 S.E.2d at 73 (evidence did not meet the requirements for expert testimony as it concerned the credibility of a witness, a field in which jurors are supreme and require no assistance). Expert opinion testimony admitted under Miss. R. Evid. 702 must be helpful to a determination of the case before it will be admissible. Alexander v. State, 610 So.2d 320, 334 (Miss.1992). The testimony of Detotto did not assist the jury but rather hindered its deliberations. The objectionable testimony did not provide scientific evidence but rather a factual conclusion. The jury was not assisted in determining whether the victim was credible, but was denied its duty because Detot-to made that determination for them. Nothing in the above testimony was beneficial to the jury, and its mere utterance caused prejudice.

¶ 44. Lastly, and for policy reasons, this testimony is inadmissible because it places Detotto in the role of a human polygraph machine. This Court has held that results of a polygraph are inadmissible. Garrett v. State, 549 So.2d 1325, 1330 (Miss.1989). Therefore, if the admission of polygraph results are not permitted to test a person’s credibility then the opinions of an expert witness regarding a witness’ credibility should not be admitted. See Goodson, 566 So.2d at 1153. A polygraph is a mechanical instrument, however its results are still an opinion of the person’s credibility based on an analysis of biological responses. The polygraph results are themselves meaningless until interpreted by an expert making it the same as an expert’s opinion. Detotto’s testimony is the same thing; while she possesses advanced degrees and brings with her a human element to the recording of data, the end result is still the analysis of biological responses. Fundamental fairness requires the inadmissibility of her testimony. If a defendant is denied the ability to use the results of a polygraph to exonerate himself, then the State should not be allowed to use a psychotherapist to convict him.

¶ 45. For the above-stated reasons, I respectfully dissent.

      . We use a fictitious name to identify the grandmother in order to protect the victim’s identity.

      . The May 29, 2003, amendment to M.R.E. 702, which clarified the responsibilities of the court in evaluating the admissibility of expert testimony, was in effect at the time of this hearing.

      . At trial the State did use the "magic words” and tendered Detotto to the trial court as an expert witness. The court accepted her as such, without objection from Hobgood.


source: Caselaw Access Project

author: COBB, Presiding Justice, for the Court.

license: Public Domain

text:
    3M COMPANY v. Simeon JOHNSON, et al.
    No. 2004-IA-00289-SCT.
    Supreme Court of Mississippi.
    April 13, 2006.

      Barry W. Ford, Walker (Bill) Jones, III, Scott William Bates, Barry Clayton Campbell, Jackson, attorneys for appellant.
    Suzanne Griggins Keys, and Isaac K. Byrd, Jr., Jackson, attorneys for appellees.
   COBB, Presiding Justice, for the Court.

¶ 1. This interlocutory appeal comes from the Holmes County Circuit Court’s denial of the 3M Company’s motion to dismiss for forum non conveniens. On appeal, 3M argues the trial court erred because: (1) it abused its discretion in failing to apply the multi-factor-balancing test to determine whether the application of forum non conveniens is appropriate, and (2) it violated 3M’s due process rights under the United States and Mississippi Constitutions. The 19 appellees argue this appeal is moot because, prior to 3M’s filing, they offered to voluntarily dismiss their claims.

¶ 2. We hold that the appeal is not moot and the trial court abused its discretion in failing to apply the multi-factor-balancing test to the wholly out-of-state appellees. Therefore we reverse and render, granting 3M’s motion to dismiss as to the wholly out-of-state appellees. As to Willie Kern, we reverse the trial court's decision and remand with an order to apply the multi-factor-balancing test to see whether he, too, should be dismissed. Because the first issue is dispositive of this appeal, we need not address 3M’s violation of constitutional rights argument.

FACTS

¶ 3. 3M is one of many defendants in this asbestos action, which initially involved a single complaint by 185 plaintiffs against 70 defendants seeking damages for injuries from exposure to asbestos-containing products. Only 36 of the 185 plaintiffs in the initial mass-tort action had a claim against 3M, and only 17 of those 36 clearly had a connection with Mississippi. One plaintiff, Willie Kern, had a connection with Mississippi, but his connection with Illinois was longer in duration. None of the 18 wholly out-of-state appellees worked, resided or had any connection with Holmes County.

¶ 4. This is the second time this case has found its way to this Court. Previously, in 3M Co. v. Johnson, 895 So.2d 151 (Miss. 2005) (Johnson I), a trial group of ten plaintiffs was chosen: three settled before or during trial, and one was dismissed. Of the six remaining plaintiffs in the trial group, only four had a claim against 3M. The other two had claims against other defendants. At trial the jury awarded $25 million to each plaintiff. On appeal this Court reversed and rendered in favor of 3M as to the four plaintiffs with claims against 3M. As to the plaintiffs not in the trial group, this Court instructed that their claims be severed according to this Court’s opinion in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004).

¶ 5. 3M now argues that the 19 out-of-state appellees should be dismissed because 3M is substantially inconvenienced by having to litigate their claims in Holmes County. Twelve of the 19 claim exposure to asbestos-containing products at the Greenlee Brothers Foundry in Rockford, Illinois. Six claim similar asbestos exposure in other places including: Chicago, Colorado, Minnesota, Louisiana, Missouri and North Carolina. Only Kern claims exposure from more than one place.

¶ 6. On October 17, 2003, 3M filed its motion to dismiss for forum non conve-niens against the out-of-state plaintiffs. In response, the out-of-state plaintiffs argued that, while they were not from Mississippi, they were properly joined with plaintiffs from Mississippi, and therefore venue was proper in Holmes County. The plaintiffs argued that because of the variety of parties, there was no perfect forum, and therefore a less-than-perfect, but still proper forum, was acceptable. After hearing arguments, the trial judge’s bench ruling, in its entirety, provided that:

The court finds that the out-of-state plaintiffs have similar' claims to the plaintiffs in Mississippi and in Holmes County, and therefore, they are properly before this Court, and the Motion to Dismiss Forum of [sic] Non Conveniens is denied.

3M moved for permission to file an interlocutory appeal which was denied by the trial court, but its subsequent petition for interlocutory appeal to this Court was granted.

ANALYSIS

¶ 7. The appellees argue this appeal is moot, because, prior to the filing of briefs, they had offered to “dismiss out of state plaintiffs who did not have exposure here in Mississippi or have a Mississippi defendant”. That offer was made in a July 1, 2005, letter from Byrd, Gibbs & Martin, PLLC to 3M’s counsel, Baker Donelson, after 3M filed its petition in the trial court but prior to the filing of 3M’s petition in this Court. The letter states in its entirety:

I was calling to see if we could resolve this last interlocutory appeal on the Si-meon Johnson case. . In light of the numerous decisions that have come down from the Supreme Court, it appears to me that out of state cases filed here for those who did not have exposure here in Mississippi or haye a Mississippi defendant, need to be dismissed. To me that was the thrust of 3M’s motion that is on the interlocutory appeal.
We are prepared to move forward with a Mangialardi Order in the Simeon Johnson case that would dismiss out of state plaintiffs who were not exposed here in Mississippi, if 3M would voluntarily dismiss the interlocutory appeal. Please give me a call so we can discuss this further.

The letter did not contain a list of appel-lees that would be dismissed. No proposed Mangialardi Order was ever proffered to 3M or the trial court. 3M did not respond to the letter, citing that it did not offer to unconditionally dismiss the out-of-state appellees. The letter was at' best an offer to begin negotiations and not one that would moot the appeal. When the appeal was taken, the dispute was seasonable, and the offer was incomplete and ambiguous in both scope arid effect. Therefore, this case is ripe for review.

¶ 8. In reviewing the trial court’s decision to grant or deny a motion for forum non conveniens this Court will uphold the trial court unless it was clearly erroneous. Ill. Cent. R.R. Co. v. Travis, 808 So.2d 928, 930 (Miss.2002). This Court recently held that even though asbestos litigation is a “mature tort”, the parties must still comply with the traditional limits' imposed by the rules of civil procedure. Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493, 493 (Miss. 2004). Expanding on that, this Court has pointed out that convenience and judicial economy must yield to a paramount concern for a party’s right to a fair trial. Ill. Cent. R.R., Co. v. Gregory, 912 So.2d 829, 834 (Miss.2005) (benefits of -efficiency can never be purchased at the cost of fairness).

¶ 9. This Court has held that the courts of this state should not try cases that would be seriously inconvenient to one or more of the parties, provided that a more appropriate forum can be found. McWhorter v. Cal-Maine Farms, Inc., 913 So.2d 193, 196 (Miss.2005); Mo. P.R. Co. v. Tircuit, 554 So.2d 878, 881-82 (Miss.1989). This Court has also laid out a multi-factor test which should be considered in any application for forum non conveniens dismissal. Tircuit, 554 So.2d at 882. The reviewing court must balance various public and private interests in order to determine if litigation in the chosen forum would seriously inconvenience a party. The factors are: (1) relative ease and access to sources of proof; (2) availability of compulsory process for obtaining attendance of unwilling witnesses; (3) possibility of a view of the premises (if appropriate); (4) expense or trouble to the defendant not necessary to the plaintiffs own right to pursue his remedy; (5) administrative burden on Mississippi courts in entertaining the suit; (6) whether there are local interests in deciding the case at home; and (7) the plaintiffs forum should rarely be disturbed. McWhorter, 913 So.2d at 196.

¶ 10. It has become apparent that our current approach has led to some confusion, and therefore a brief history of the origin of this multi-factor balancing test is appropriate. In the two most recent cases on this subject, Gregory and McWhorter, this Court announced factors to be considered. Gregory lists six factors, while McWhorter includes a seventh factor. The factor found in McWhorter, but missing in Gregory, instructs the court to apply deference to the plaintiffs choice of forum. In both of these cases, one can trace the lineage of the test back to Tircuit which had seven factors. Tircuit pulled these factors from two United States Supreme Court decisions, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) which was later modified by Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), and the Restatement (Second) of Conflict of Laws Section 84. These reference the factors but do not enumerate them as this Court did.

¶ 11. The United States Supreme Court and the Restatement (Second) of Conflict of Laws did not create a mathematical equation but intended that these factors be weighed along with other relevant considerations. See Piper Aircraft, 454 U.S. at 249, 102 S.Ct. 252; Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839; see also Restatement (Second) Conflict of Laws § 84 cmt. c. In Piper Aircraft the United States Supreme Court in discussing the doctrine of forum non conveniens opined:

we would not lay down a rigid rule to govern discretion and that each case turns on its facts. If central emphasis were placed on any one factor the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.

Piper Aircraft, 454 U.S. at 249-50, 102 S.Ct. 252. From reviewing the development of the law, it is clear that the United States Supreme Court intended the forum non conveniens analysis to be a multi-factor test with six factors comprising the relevant public and private interests, balanced against the deference afforded to the plaintiffs choice of forum. Id. at 255, 102 S.Ct. 252; Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839.

¶ 12. Comment c of Section 84 of the Restatement which was cited favorably by this Court in Tircuit, lays out a detailed approach to analysis of a forum non conve-niens problem. Tircuit, 554 So.2d at 881 (citing Shewbrooks v. A.C. & S., Inc., 529 So.2d 557 (Miss.1988)). Comment c instructs that one should weigh the relevant public and private interests (the six factors shared by Gregory and McWhorter) against the plaintiffs choice of forum; however, no conclusion on the motion should be made without determining whether there is a suitable alternative forum. See Restatement (Second) of Conflict of Laws § 84 cmt. c. It appears from Comment c that the plaintiffs choice of forum is not a factor to be weighed but a presumption to be overcome. Thus, the trial court should default to the plaintiffs choice of forum unless the public and private interests defeat that presumption. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252; Tircuit, 554 So.2d at 883.

¶ 13. This Court previously applied the multi-factor-balancing test to wholly out-of-state appellees. In Gregory, nine former and current railroad employees filed suit against Illinois Central alleging that occupational exposure to asbestos caused their lung cancer. Gregory, 912 So.2d at 831. In that case, seven plaintiffs were either Mississippi residents or alleged exposure in Mississippi, while the remaining two were neither Mississippi residents nor exposed while in Mississippi. Id. at 832-33. This Court held that the out-of-state plaintiffs, whose cause of action accrued elsewhere, should be dismissed. Id. at 836-37. This Court held that the doctrine of forum non conveniens protects litigants from unnecessary burdens and the courts and taxpayers from incurring the expense of litigating foreign disputes. Id. at 836. Because the evidence was out-of-state, the relevant witnesses were out-of-state and the appellees themselves were out-of-state, this Court opined that Mississippi had no connection with the lawsuit and therefore it should be dismissed. Id.

¶ 14. Following that rationale, the 18 wholly out-of-state appellees in the present case should be dismissed. 3M is correct in its assertion that to do otherwise would be a serious inconvenience. For 3M there would be difficulty in obtaining the evidentiary proof needed to confront the appellees’ claims. See Tircuit, 554 So.2d at 883 (dismissal is favored when the majority of the proof is located in another state). In the present case virtually all the relevant evidence, both witnesses and documents, for the wholly out-of-state appel-lees is located outside of Mississippi. This includes the appellees’ medical histories, work sites and employment information. See generally McWhorter, 913 So.2d at 196-97 (finding that Arkansas was a more convenient forum where alleged injuries arose due to exposure to chicken house waste in Arkansas). This leads directly to an additional difficulty for 3M any witnesses and evidence for the wholly out-of-state appellees are beyond the compulsory subpoena power of the trial court. This would require 3M to travel to multiple locations and obtain assistance from foreign courts to secure process. See Id.

¶ 15. In the present case, a view of the premises by the jury would is unnecessary, because the appellees do not assert that 3M’s facilities caused their injuries. Rather, the appellees assert that 3M’s products failed to adequately protect them from injury. Therefore, the jury would gain nothing from being shown the premises.

¶ 16. The choice of Holmes County as a forum does not impose unnecessary trouble or expense on 3M, in the sense that 3M will be required to face these appellees in one forum or another. That they are consolidated in a single forum is fortuitous for 3M. Having to defend these claims in one forum means there would be no duplicative costs. 3M would not be forced to raise the same arguments in different courts. However, judicial economy cannot be favored at the price of unfairness to the parties. Gregory, 912 So.2d at 834.

¶ 17. There will be serious administrative difficulty if this case is tried in Holmes County. First, the trial court will have difficulty compelling the production of documents and the attendance of witnesses from other states. See Poole v. Am. Pub. Life Ins. Co., 878 So.2d 1102, 1105 (Miss. App.2004). Second, the trial court will likely have to apply foreign products liability statutes and give multiple jury instructions. See State Farm Mut. Auto. Ins. Co. v. Murriel, 904 So.2d 112, 116 (Miss.2004) (affirming trial court’s conclusion that where the Mississippi court would be forced to apply not only Mississippi law, but also California, Alabama and Georgia law, the confusion to the jury and the burden on the court are insurmountable). See also McWhorter, 913 So.2d at 197. In the present case, if all 18 wholly out-of-state appellees were not dismissed, the trial court would likely have to apply the laws of Colorado, Illinois, Louisiana, North Carolina, Minnesota, Missouri and Mississippi. This would require seven different products liability statutes, seven different jury instructions and seven different verdicts. This would confuse the jury and lead to possible error.

¶ 18. Holmes County lacks the required interest in the wholly out-of-state appel-lees’ claims, and it would be a waste of judicial resources if tried in Mississippi. These appellees have no connection to Mississippi. They are neither from Mississippi nor did their injuries arise from conduct in Mississippi. The courts of Mississippi will not become the default forum for plaintiffs seeking to consolidate mass-tort actions. To allow otherwise would waste finite judicial resources on claims that have nothing to do with the state. Each trial requires the empaneling of Mississippians as jurors and the use of Mississippi tax dollars. These resources should be used for cases in which Mississippi has an interest. Therefore, we find Mississippi lacks the necessary interest to keep this case here.

¶ 19. The above-mentioned public and private interests weigh heavily in favor of granting 3M’s motion to dismiss for forum non conveniens. In addition, less deference should be given to the wholly out-of-state appellees’ choice of forum. Although a plaintiffs choice of forum is rarely disturbed, the choice of a foreign forum is given substantially less deference. McWhorter, 913 So.2d at 196. However, this does not mean it is given no deference at all. Travis, 808 So.2d at 938. Because of the obvious difficulties presented to the appellees who would have to come from seven different states, it is likely that the choice of forum here was made for the convenience of counsel rather than the convenience of the parties. The wholly out-of-state appellees have not chosen their home forum, and therefore this Court should afford them less deference than traditionally expected. See Piper Aircraft, 454 U.S. at 255-56, 102 S.Ct. 252.

CONCLUSION

¶ 20. The trial court abused its discretion in denying 3M’s motion to dismiss the 18 wholly out-of-state appellees for forum non conveniens. Compelling 3M to defend against these appellees creates a substantial inconvenience to 3M. As applied to Kern, the trial court erred in failing to consider him individually and apply the multi-factor-balancing test. The trial court denied 3M’s motion on the grounds that all the plaintiffs’ had “similar claims.” However, similar claims do not, in-and-of themselves, survive a motion to dismiss for forum non conveniens. The trial court needs to have a detailed factual accounting of the claimed connections between the individual challenged party and the forum. The trial court failed to do this and made its decision based on alleged similarities rather than the factual details; therefore, its findings are erroneous.

¶ 21. As to the 18 wholly out-of-state appellees, this Court’s decision acts to dismiss their claims. As to Kern, we remand to the trial court with the order to conduct further factual analysis consistent with this opinion to determine whether he should be included. Because our holding on 3M’s first issue is dispositive of the appeal we do not address the violation of constitutional rights argument raised in issue two.

¶ 22. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The term "wholly out-of-state appellees” refers to those 18 appellees who neither live in Mississippi nor claim a cause of action that arose in Mississippi. They are: Charlie L. Beasley, Sr., Otis Box, Jimmy C. Buchanan, John Cannon, Oreadis Craig, Nathaniel Harper, Willie Harper, Franklin Hunter, Richard Meadows, Ben Polk, Ernest Taylor, Willie Williams, Clarence Hewitt, J.C. Davis, Wallace Wubbles, Julius Baker, James Bills, and Thomas Cabe.

      . Kern claims he was exposed to asbestos while working in Attala County, Mississippi and in Illinois, and thus the term “out-of-state appellees” refers to the 18 named in footnote 1, plus Kern.

      . The identity of all ten plaintiffs in the trial group is not known by the Court. However, the four plaintiffs with claims against 3M who remained parties on appeal in Johnson I, were Simeon Johnson, James Curry, Bobby Joe Lawrence and Phillip Pate. From this Court’s opinion, it is not known where they claimed their injuries arose. However, none of the four from the original trial group are parties to the instant appeal.

      . The Rockford, Illinois appellees are: Charlie L. Beasley, Sr., Otis Box, Jimmy C. Buchanan, John Cannon, Oreadis Craig, Nathaniel Harper, Willie Harper, Franklin Hunter, Richard Meadows, Ben Polk, Ernest Taylor and Willie Williams.

      . Clarence Hewitt, Jr. (Chicago), J.C. Davis (Louisiana), Wallace Wubbles (Minnesota), Julius Baker (Missouri), James Bills (Colorado) and Thomas Cabe (North Carolina).


author: SMITH, Chief Justice, for the Court.

text:
    Ollie WINDMON and Robert Joe Windmon v. Stephanie Ward MARSHALL and Mississippi Farm Bureau Insurance Company.
    No. 2004-CA-00528-SCT.
    Supreme Court of Mississippi.
    April 13, 2006.

      Anita M. Stamps, attorney for appellant.

      Justin Strauss Cluck, Batesville, Kent E. Smith, Holly Springs, J. Tucker Mitchell, Andy Lowry, James R. Moore, Ridgeland, attorneys for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   SMITH, Chief Justice, for the Court.

¶ 1. Ollie and Robert Windmon filed suit against Stephanie Ward Marshall and Mississippi Farm Bureau Insurance Company (Farm Bureau) after Ollie Windmon was seriously injured when her vehicle ran off of the highway and struck a tree. Ollie Windmon claimed her injuries were due to Marshall’s negligent act of failing to properly yield. Also, the Windmons claimed Farm Bureau was liable for committing alleged acts of bad faith in the investigation of their claim. The trial court ordered a bifurcation of this matter. In the first phase, the jury returned a verdict finding Windmon and Marshall equally at fault for the accident. During the second phase of the trial, after all of the evidence was presented, the trial court granted Farm Bureau’s motion for a directed verdict. Feeling aggrieved, the Windmons subsequently filed this timely appeal.

FACTS

¶ 2. In June 2000, Stephanie Ward Marshall proceeded down her driveway in Her-manville, Mississippi, and attempted to enter Valley Moon Road. At the same instant Ollie Windmon was traveling toward Marshall on Valley Moon Road in her Ford Explorer. Prior to reaching the Marshall driveway, Windmon’s Explorer veered off the road and struck a tree. After witnessing the crash, Marshall immediately rushed to Windmon’s aid. At the scene Marshall assisted Windmon in exiting her vehicle. Also, because of the seriousness of the injuries Windmon sustained Marshall telephoned the hospital and requested an ambulance.

¶ 3. The facts are in dispute as to what actually caused the accident. Windmon claimed Marshall was attempting to pull out on the road, and to avoid a collision she swerved off of the road. Conversely, Marshall contended she stopped at the end of her driveway when Windmon ran off of the road in front of her for no apparent reason.

¶ 4. Within days after the accident, Windmon filed a loss notice claim with her insurer, Farm Bureau. Danita Lewis, Farm Bureau’s adjuster, promptly paid medical and collision benefits, which she determined to be the only payable benefits allowable under policy. However, Windmon claimed she was also entitled to recover uninsured motorist benefits. Initially, Farm Bureau refused uninsured motorist benefits because the accident appeared to involve only one vehicle. Farm Bureau investigated the matter and was unable to discover Marshall’s identity and the role she may have played in the accident. Even Ollie Windmon herself failed to inform Farm Bureau of Marshall’s involvement.

¶ 5. Several months after the accident, the Windmons’ counsel informed Farm Bureau of Marshall’s identity and alleged Marshall’s negligence was a cause in fact of the accident. Notwithstanding Wind-mon’s allegations, Farm Bureau adopted Marshall’s version of events, which supported that Marshall was not the proximate cause of Windmon’s injuries. To avoid a trial on the issue of uninsured motorist benefits, Farm Bureau presented an offer of settlement to the Windmons.

¶ 6. Subsequently, Ollie and Robert Windmon filed suit against both Marshall and Farm Bureau in the Circuit Court of Claiborne County on December 10, 2001. The Windmons alleged that Marshall, as an under or uninsured driver, through her negligent acts was the proximate cause of the automobile accident. Additionally, the complaint alleged that Farm Bureau failed to use good faith in handling the Wind-mons claim.

¶ 7. In August 2002, the Windmons filed an application for entry of default judgment and supporting affidavit. In December 2002, the Windmons filed an additional application for entry of default and supporting affidavit. Entry of default was subsequently entered and docketed by the circuit court clerk.

¶ 8. In April 2003, Marshall filed a motion to set aside the clerk’s entry of default and for leave of court to file responsive pleadings. On May 6, 2003, a hearing was held before the trial court wherein the Windmons attempted to have a default judgment entered against Marshall. However, the trial court set aside the entry of default and, at the Windmons’ request, continued a trial on the merits until September 2003. Additionally, the trial court determined it was proper to bifurcate the trial on issues of negligence and bad faith.

¶ 9. On September 3, 2003, opening statements were given regarding Marshall’s negligence, thus commencing the first phase of the bifurcated trial. In the first phase of the trial the jury returned a unanimous verdict finding each Ollie Wind-mon and Stephanie Marshall fifty percent at fault for the accident.

¶ 10. The second phase of the trial dealt with the Windmons allegations of Farm Bureau’s bad faith in its investigation of the uninsured motorist claim. During this phase Windmon called several witnesses to prove bad faith on behalf of Farm Bureau. After Windmon presented her case and without presenting any witnesses of its own, Farm Bureau motioned the trial court for a directed verdict. The trial court granted Farm Bureau a directed verdict and dismissed the second phase of the trial.

ANALYSIS

I. ENTRY OF DEFAULT

¶ 11. “The decision to grant or set aside a default judgment is addressed to the sound discretion of the trial court.” Tatum v. Barrentine, 797 So.2d 223, 227 (Miss.2001) (citing Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992)). The trial court’s discretion must be exercised in accordance with the M.R.C.P. 55(c) and 60(b). Tatum, 797 So.2d at 227(citing Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987)). Further, “absent abuse of discretion, we will not disturb the rulings of the trial court on a default judgment.” Id.

¶ 12. The Windmons contend the trial court erred and abused its discretion when it set aside the clerk’s entry of default against Marshall without a hearing on the grounds for setting it aside. The Windmons call this Court’s attention to the following subsection of Rule 55 of the Mississippi Rules of Civil Procedure:

(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days’ notice. If in order to enable the court to enter judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court’s discretion, or order such references as it deems necessary and proper.

(emphasis added).

¶ 13. However, this rule does not support the Windmons’ argument. Moreover, the Windmons’ argument effectively fails to distinguish between an entry of default and a default judgment. In the matter at hand, it is undisputed that the Windmons obtained an entry of default against Marshall prior to the hearing on May 6, 2003; however, the Windmons had not obtained a final judgment of default at that juncture. The trial court determined that its discretion would best be served by setting aside the entry of default. M.R.C.P. 55(b) clearly enables that discretion and states “judgment by default may be entered by the court on the day the case is set for trial....”

¶ 14. Notwithstanding the Windmons’ asseverations, we find M.R.C.P. 55(c) sets forth the appropriate rule for setting aside an entry of default.

(c) Setting Aside Default. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

M.R.C.P. 55(c) draws a clear distinction between setting aside an entry of default and setting aside a judgment of default. This Court has previously held “there is a more liberal standard for setting aside a default than the standard for setting aside a default judgment.” King v. Sigrest, 641 So.2d 1158, 1162 (Miss.1994). Therefore, in accordance with M.R.C.P. 55(c) the trial court was permitted to set aside the entry of default for good cause shown. See Tatum, 797 So.2d at 226.

¶ 15. “ ‘[G]ood cause shown’ ... requires the moving party to provide an explanation for the default or give reasons why vacation of the default entry would serve the interests of justice.” Allstate Ins. Co. v. Green, 794 So.2d 170, 179 (Miss. 2001) (Waller, J., concurring) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2696 at 141-42; 143-49 (3d ed.1998) (footnotes omitted)).

¶ 16. Although the trial court does not expressly enumerate good cause for setting aside the entry of default, the record reflects that good cause existed. On the scheduled trial date, May 6, 2003, Marshall and Farm Bureau appeared before the trial court and announced they were ready to proceed with trial. At the hearing, the Windmons urged the trial court to enter a judgment of default against Marshall on the issue of liability. The trial court noted that “the entry of default is no admission of liability. As a matter of fact, until a judgment is entered in court, there has not been an adjudication.” Further, the trial stated “the very thing that’s going to have to be established is liability on the part of Ms. Marshall before Farm Bureau will be responsible.”

¶ 17. Therefore, even if the trial court had granted the default judgment, for the Windmons to proceed on their claim against Farm Bureau, the issue of Marshall’s liability would still have had to be tried. It is apparent that in order to preserve the sanctity of justice, the trial court judiciously allowed Marshall the opportunity to defend herself in court. The Windmons were not prejudiced by undue delay, as Marshall was present and ready to proceed at the initial hearing on May 6, 2003. Therefore, we find the trial court’s decision setting aside the entry of default was supported by good cause because it erred on the side of caution and served the interests of justice.

¶ 18. The Windmons assert that the trial court did not have a legal basis for setting aside the entry of default. For support the Windmons cite this Court’s prior precedent in an attempt to formulate an analogy with the present set of facts. However, in each of the cases cited by the Windmons, a default judgment had been already entered, not a mere entry of default as in the case at hand. Thus, these cases are factually distinguished from the case at bar.

¶ 19. This Court finds the trial court did not abuse its discretion in setting aside the entry of default. Thus, this issue is without merit.

II. DIRECTED VERDICT

¶ 20. This Court has repeatedly stated the standard of review for determining whether a motion for a directed verdict should be granted. The standard of review for both a peremptory instruction and directed verdict is as follows:

[T]his Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted. Additionally, this Court has held that a trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.

Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1055 (Miss.2003) (internal citations omitted). The Windmons argue that the trial court erred by not adhering to the correct legal standard of review in this case because the evidence presented did in fact create a question upon which reasonable jurors could disagree.

A. Failure to Investigate

¶ 21. The Windmons argue they established bad faith due to Farm Bureau’s failure to investigate the accident. Thus, the Windmons maintain the trial court erred in granting a directed verdict and not submitting this matter to the jury.

¶ 22. In Murphree v. Federal Ins. Co., 707 So.2d 523, 529 (Miss.1997), this Court stated that “[i]f there is a finding that there was a reasonable arguable basis to deny the claim then the [appellant] is not entitled to have the jury consider any bad faith award against the insurance company.” Further, the plaintiff bears a heavy burden in demonstrating to the trial court that there was no reasonably arguable basis for denying the claim. Blue Cross & Blue Shield v. Campbell, 466 So.2d 833, 844 (Miss.1984).

¶ 23. Danita Lewis testified that some accidents require more investigation than others. Lewis revealed that an accident involving two or more vehicles is a disputed accident usually requiring a scene investigation. However, Lewis stated that this was an apparent one-car accident and even though the police report mentioned someone may have pulled out in front of Ollie Windmon it failed to identify another driver. Also, the report’s diagram supported the notion that only a one-car accident occurred. Farm Bureau apparently was unaware that Marshall was the driver of the other vehicle until seven months post accident when the Windmons revealed her identity. One month after the accident Lewis took a statement from Ollie Windmon. During that statement Lewis inquired if Windmon knew the name of the driver of the other vehicle, and Windmon responded in the negative. Also, Lewis stated that in her attempts to locate the identity of the supposed second driver, she knocked on the door of the mobile home across the street from where the accident occurred to no avail. Further, Lewis explained that additional door-to-door canvassing would not have been a reasonable investigatory tactic due to the rural nature of and limited number of houses in the area.

¶ 24. “[I]f the insurance company cannot give its insured a valid reason for denying the claim, it has a final duty to promptly honor it.” Bankers Life & Cas. Co. v. Crenshaw, 483 So.2d at 254, 276 (Miss.1985). We find Farm Bureau’s conduct was not bad faith because there was a valid and arguable reason to deny the uninsured motorist claim. An arguable reason has been defined by this Court as “nothing more than an expression indicating the act or acts of the alleged tortfeasor do not rise to [the] heightened level of an independent tort.” Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 293 (Miss.l992)(quoting Pioneer Life Ins. Co. of Illinois v. Moss, 513 So.2d 927, 930 (Miss.1987)). Farm Bureau’s actions in the case at bar certainly do not rise to the level of an independent tort. Thus, Farm Bureau’s reason for denying the Wind-mons’ uninsured motorist claim was arguable at a minimum.

¶ 25. The facts demonstrate Farm Bureau initially denied the uninsured motorist claim because after reasonable efforts Marshall’s identity had not been discovered. This is an arguable reason. Further, this Court has held:

[T]he plaintiffs burden in proving a claim for bad faith refusal goes beyond proving mere negligence in performing the investigation. The level of negligence in conducting the investigation must be such that a proper investigation by the insurer would easily adduce evidence showing its defenses to be without merit.

Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530, 534 (Miss.2003)(citing Murphree, 707 So.2d at 531). Lewis may not have performed her adjusting duties in the ideal fashion. However, the record demonstrates at most mere negligence on Lewis’ part. Thus, the Windmons did not meet their burden of proving their claim.

¶ 26. In addition, Farm Bureau correctly points out that even had they been able to quickly identify Marshall after the accident, they would have adopted Marshall’s account of disputed liability, which still justifies denial of the uninsured motorist claim. This contention was strengthened when the jury returned a verdict apportioning fault equally between Marshall and Windmon. This is also an arguable reason for denying the claim. Therefore, this Court finds that a more aggressive investigation by Farm Bureau would not have yielded evidence showing its defenses to be without merit.

B. Delay

¶27. Next, the Windmons argue that Farm Bureau was guilty of bad faith delay. However, we are unclear as to the exact delay of which the Windmons are complaining. The Windmons apparently attempt a continuing garbled argument regarding Farm Bureau’s negligent investigation. However, it is abundantly clear the Windmons are in disagreement with the trial court’s grant of a directed verdict.

¶ 28. The Windmons assert this matter should have been submitted to the jury for a determination of punitive damages. They allege that in Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1097 (Miss.1996), this Court allowed a punitive damage instruction to the jury as the result of a delay in payment of a claim. However, after reviewing Caldwell, this Court disagrees. In Caldwell, this Court affirmed the trial court’s grant of summary judgment in favor of Alfa Insurance Company on the issue of bad faith. Caldwell held that Alfa Insurance Company’s explanation of delaying payment to Caldwell was reasonable, not egregious. Id. at 1093. Further, this Court found that Alfa’s conduct was at most simple negligence, and punitive damages were not proper. Id. Thus, Caldwell actually favors dismissal of bad faith claims and punitive damages when just simple negligence is at hand.

¶29. The Windmons also attempt to draw a comparison between Travelers Indent. Co. v. Wetherbee, 368 So.2d 829 (Miss.1979), and the case at bar. “In Travelers, this Court affirmed a punitive damage instruction where the insurer withheld payment for a period of eight months, despite being warned that the insured was suffering economically.” Caldwell, 686 So.2d at 1098. Further, in Travelers, Travelers Indemnity withheld payment from the Wetherbee’s attempting to force settlement at a lower price. This Court concluded that Traveler’s intentional withholding of coverage was a gross breach, equivalent to an independent tort. Travelers, 368 So.2d at 835. Hence Travelers was not an instance of mere delay. Rather Travelers was an instance of an egregious attempt by an insurance company to bully an insured into a cheap settlement. Nevertheless, the factors in Travelers are not present in the case at bar. Moreover, Farm Bureau’s conduct does not rise to the level of an independent tort.

¶ 30. There is no evidence in the record suggesting that Farm Bureau delayed any of the Windmons’ claims in bad faith. Farm Bureau’s adjuster, Danita Lewis, was at most simply negligent in her handling of certain aspects of the Windmons’ claims. The Windmons call this Court’s attention to Lewis being reprimanded in a memorandum by her supervisor for poor claims handling. However, Lewis’ supervisor testified that the memorandum regarding Lewis’ efforts to garner the Wind-mons additional money on their collision claim. In response, Farm Bureau insists the Windmons are presenting evidence which demonstrates Lewis actually acted in good faith by “going the extra mile” during the claim process.

¶ 31. This Court has failed to ascertain a single instance of bad faith on behalf of Farm Bureau in this ease. The Windmons did not prove by a preponderance of the evidence that Farm Bureau acted with malice or gross or reckless disregard for the rights of others. See Caldwell, 686 So.2d at 1095. We find Farm Bureau’s conduct was at most simple negligence. Therefore, Farm Bureau’s conduct does not rise to a level requiring punitive damages to be considered. Id. at 1093.

C. Consequential/Extra-Contmctual Damages

¶ 32. Finally, the Windmons assert that even if they cannot show bad faith on behalf of Farm Bureau for an award of punitive damages, they may still be entitled to consequential or extra-contractual damages for lack of a reasonably arguable basis. However, as we previously noted, Farm Bureau had a reasonably arguable basis for denying the claim.

¶ 33. In support of their assertion, the Windmons call attention to this Court’s opinion in Blue Cross & Blue Shield of Mississippi, Inc. v. Maas, 516 So.2d 495 (Miss.1987). In Maas, Blue Cross insisted they committed an error due to a mere oversight, and punitive damages were not proper. This Court disagreed and upheld the award of punitive damages after weighing facts such as:

(6) Maas never received an answer from Blue Cross, following his claim’s denial, though assured of an investigation and response, (7) Blue Cross denied a doctor’s claim on Maas, related to the surgery, approximately three weeks after he had filed suit; significantly, the denial occurred after Blue Cross’ investigation had determined that the insurer wrongfully terminated coverage, and (8) Blue Cross failed to remit payment until March 11,1985, approximately six weeks after the investigation had found that the insurer improperly denied the original claim.

Id. at 497-98.

¶ 34. The facts in this case bear no relation to the conduct of the insurer in Maas. Farm Bureau remained in contact with the Windmons and never mistakenly denied their uninsured motorist claim. Once Marshall’s identity was revealed, Farm Bureau adopted her account of the accident. Moreover, because Farm Bureau then contended the accident was due to Ollie Windmon’s negligence, denial of the claim was proper. Thus, Maas is factually distinguished from the case at hand.

¶ 35. Further, the Windmons apparently rely on Justice Roberston’s concurring opinion in Maas. Id. at 498. In his concurrence, Justice Robertson opines that the parties and trial court should have litigated the matter for ordinary tort damages. Nonetheless, Justice Robertson’s rationale would not apply in the case at bar because Farm Bureau’s conduct does not rise to the level of an independent tort. Therefore, a trial on ordinary damages would be improper on this occasion.

¶ 36. In conclusion, the trial court allowed the Windmons the opportunity to present their case to the jury during this second phase of the bifurcated trial. At the close of the Windmons’ case in chief Farm Bureau did not call a single witness, but instead motioned the trial for a directed verdict in their favor. The trial court subsequently granted Farm Bureau’s motion and stated “the court is just convinced beyond any doubt that there simply cannot be any fair-minded juror who could come to any conclusion but the fact that there has been no bad faith exercised in this particular case.”

¶ 37. We find the trial court was well versed on the applicable standard of review. Moreover, for the reasons stated above, the trial court was correct in finding that no reasonable juror could have found Farm Bureau in bad faith. Therefore, the directed verdict was proper. Thus, this issue is without merit.

III. PLAINTIFFS’EXPERTS

¶ 38. “The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Roberts v. Grafe Auto Co., Inc., 701 So.2d 1093, 1098 (Miss.1997). “For a case to be reversed on the erroneous admission or exclusion of evidence, the error must result in prejudice and harm or adversely affect a substantial right of a party.” Busick v. St. John, 856 So.2d 304, 319 (Miss.2003)(citing Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995); Hansen v. State, 592 So.2d 114 (Miss. 1991)).

¶ 39. The Windmons insist they were prejudiced by the trial court’s dismissal of their witnesses regarding insurance and hedonic damages. At the May 6, 2003 hearing the following pertinent communications took place:

COUNSEL FOR WINDMONS: I think we would be prejudiced by the fact that we haven’t been able to do full discovery as it pertains to Ms. Marshall.
TRIAL COURT: So you want me to continue the Ms. Marshall portion of the case and try the Farm Bureau portion of the case?
COUNSEL FOR WINDMONS: Well, we could do that if the Court — but seems like that might be out of order.
TRIAL COURT: [I]t doesn’t make any difference whether you continue Ms. Marshall’s portion of the case or not as to Farm Bureau. So you’re ready to go with Farm Bureau?
COUNSEL FOR WINDMONS: We’re ready to go, Your Honor, based on the Court’s ruling.
TRIAL COURT: Well, I mean, I don’t want to prejudice you.
COUNSEL FOR WINDMONS: But if you make us try the case in this posture, Your Honor, we’ll be prejudiced, but we’re prepared to do whatever the Court wants us to do.
TRIAL COURT: What do you suggest? How would you not be prejudiced?
COUNSEL FOR WINDMONS: If we have a continuance while we develop the liability aspects of the case, Your Honor. But I think the Court has made its ruling and I’m ready to proceed.
TRIAL COURT: ... [I]t seems like we’re continuing the case based on something that just don’t make any difference, and I do not see any prejudice, but if you do, I’m inclined to grant your continuance just because you feel like you’re prejudiced. I don’t want to do that to you.
COUNSEL FOR WINDMONS: In light of the—
TRIAL COURT: I want to be fair to everybody in this courtroom, I want to be fair to you, I want to be fair to [Farm Bureau’s counsel], I want to be fair to Farm Bureau, I want to be fair to everybody, and I don’t see how anybody is prejudiced, but if you think you are, I’m inclined to grant your request.

¶ 40. At the May 6 hearing the Wind-mons were anticipating the trial court would grant a default judgment in their favor against Marshall. However, they were ready to proceed on the bad faith claim against Farm Bureau. When the trial court attempted to proceed to trial on the issue of Marshall’s liability, the Wind-mons asserted they would be prejudiced in that aspect. Hence, the trial court judiciously granted a continuance solely on the issue of liability in an attempt to appease the Windmons’ concerns.

¶41. On July 3, 2003, before the trial was continued, the Windmons designated Stan Smith, Ph.D., as an economist expert, and Donald Dinsmore, J.D., as an insurance expert. Farm Bureau filed a motion in limine to exclude the testimony of these experts. Subsequently, the trial court disallowed these witnesses based on the premise that the continuance was granted to allow the Windmons the opportunity to further prepare a case on the liability aspect only, not to strengthen their case against Farm Bureau. Because the Wind-mons were ready to proceed against Farm Bureau before the continuance, allowing them additional time to prepare would have prejudiced Farm Bureau. The trial court stated:

This Court, relying on plaintiffs’ adamant statements on May 6, that they were ready and willing to try the damages issues, ruled not to allow testimony from these two witnesses. Since the trial was continued due to plaintiffs being unprepared to try the issue of liability on May 6, this Court felt that to have allowed them additional time to prepare for the phases of the case which they represented were ready to be tried on May 6, would have been a miscarriage of justice. Accordingly, this Court ruled not to allow the testimony of these two witnesses.

¶ 42. The Windmons maintain that Farm Bureau was afforded more than ample time to prepare, thus Farm Bureau would have suffered no prejudice by admittance of the testimony of their experts. In support of this contention the Wind-mons cite this Court’s precedent. Nevertheless, Farm Bureau correctly notes the entirety of the Windmons’ supporting authority, contrary to the ease at bar, are instances where the trial court chose to allow expert testimony.

¶ 43. It is clear to us the trial court did not allow a continuance for the purpose of bestowing an unfair advantage upon the Windmons. Further, the trial court was very insistent in its quest to be fair. This Court will accept no less; “[o]ur trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.” Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003).

¶ 44. Prejudice certainly would have occurred had the trial court allowed the experts at issue to testify. It is apparent the trial court barred the experts’ testimony in the interests of justice. Therefore, this Court finds the trial court did not abuse its discretion. Thus, this issue is without merit.

IY. J.N.O.V.

¶ 45. A judgment notwithstanding the verdict is subject the same standard of review as a peremptory instruction or directed verdict, see supra. That standard is “[i]f 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.” Illinois Cent. R.R. Co. v. Hawkins, 830 So.2d 1162, 1169 (Miss.2002).

¶ 46. The Windmons simply fail to set forth a new argument or any precedent for this issue. Instead, the Windmons aver that they are “re-adopting” the foregoing arguments submitted on appeal. This Court has already determined the trial court’s grant of a directed verdict was proper because no reasonable juror could have reached a contrary verdict, see supra. Because the same standard governs a J.N.O.V., we find the trial court properly denied the Windmons’ motion for J.N.O.V. Thus, this issue is without merit.

CONCLUSION

¶ 47. For these reasons, we affirm the judgment of the trial court.

¶ 48. AFFIRMED.

WALLER AND COBB, P. JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . See Pointer v. Huffman, 509 So.2d 870 (Miss. 1987); Vining v. Mississippi State Bar Ass’n., 508 So.2d 1047 (Miss.1987); Bryant v. Walters, 493 So.2d 933 (Miss.1986); Donaldson v. Pontotoc County Welfare Dept., 445 So.2d 1377 (Miss.1984); Guar. Nat'l, 501 So.2d at 377.

      . Extra-contractual damages include reasonable attorney fees, court costs, and other economic losses.

      . Windmon avers in her brief that Farm Bureau’s motion for a directed verdict was actually a motion for peremptory instruction. We admit there is little or no difference between a peremptory instruction and a directed verdict in this case. Moreover, both are governed by the same standard of review, see supra. However, Farm Bureau presented the motion at trial as a motion for a directed verdict, and the trial court granted what it deemed a directed verdict. Thus, this Court will address whether or not a directed verdict was proper in this instance.

      . Mississippi Valley Gas Co. v. Estate of Walker, 725 So.2d 139 (Miss.1998); Eastover Bank for Sav. v. Hall, 587 So.2d 266 (Miss.1991); Motorola Commc'ns & Elec. v. Wilkerson, 555 So.2d 713 (Miss.1989).