author: CARLSON, Presiding Justice,

text:
    Raul FONTE and Helen Flammer v. AUDUBON INSURANCE COMPANY.
    No. 2008-CA-00222-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2009.
    As Modified on Denial of Rehearing May 14, 2009.

      John A. Scialdone, Ryan Andrew Hahn, Gulfport, attorneys for appellants.
    Walker (Bill) Jones, III, Jason Richard Bush, Bradley Clayton Moody, Jackson, attorneys for appellee.
   CARLSON, Presiding Justice,

for the Court.

¶ 1. Raul Fonte and Helen Flammer filed this action against Audubon Insurance Company and other parties in the Circuit Court for the First Judicial District of Harrison County to recover insurance proceeds for the loss of their home following Hurricane Katrina. Audubon filed its Motion for Summary Judgment, which the circuit court granted. Aggrieved, Fonte and Flammer appeal to us. Finding error, we reverse and remand this case to the circuit court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On August 29, 2005, the newly constructed home of Raul Fonte and Helen Flammer (the Fontes) was reduced to a slab as a result of Hurricane Katrina. This house was located on East Beach Boulevard in Pass Christian. The Fontes maintained three separate insurance policies on their home at the time Katrina struck: (1) a wind-and-hail policy through the Mississippi Windstorm Underwriting Association (MWUA); (2) a federal flood policy; and (3) a homeowner’s policy written by State Farm Insurance Company. At the time the Fontes’ home was destroyed, Audubon Insurance Company (Audubon) was handling claims for MWUA.

¶ 3. Audubon entered into a Servicing Insurer Agreement with MWUA effective March 2005 and signed an extension of the agreement through 2007. Under the Servicing Insurer Agreement, Audubon agreed to provide service on MWUA polices such as issuing policies on behalf of MWUA, adjusting claims, and providing full-claim supervision. Audubon contracted with independent adjusting firms, in this case FARA Catastrophe Services (FARA), to assist in the adjusting process.

¶4. John Jay and Deanie Diamond were the FARA adjusters who investigated and adjusted the Fontes’ claim under their wind-and-hail policy. On February 4, 2006, Jay prepared his final report, which concluded that only the second-story portion of the Fontes’ home was damaged by wind; and that the first floor of the property was destroyed by storm surge and thus was not covered under the Fontes’ wind-and-hail policy with MWUA. Shortly thereafter, AIG Claims Service, acting on Audubon’s behalf, sent a letter to the Fontes stating “payment is being made in the amount of $201,402.21, which is the damage determined to be caused by the peril of windstorm ([t]he only peril covered by your policy).” On or about February 16, 2006, payment was sent to the Fontes in the amount of $171,402.21 for windstorm damage to their home and carport and $30,000 for windstorm damage to the contents.

¶5. The Fontes’ wind-and-hail policy had a coverage limit for the dwelling of $400,000 and $30,000 for personal property. The Fontes received the policy limit of $140,000 under their federal flood policy. The Fontes filed suit against State Farm Fire and Casualty Company, MWUA, Audubon, and Steve Saucier, who was the Fontes’ State Farm Insurance agent, alleging, inter alia, that Saucier did not increase their policy limits as requested when their home went from a construction project to a completed dwelling. The Fontes further alleged that State Farm’s denial of coverage under the Fontes’ homeowners’ policy was arbitrary. After the Fontes filed suit, MWUA tendered the remaining limits of the Fontes’ policy, and the Fontes dismissed all claims against MWUA and Audubon for the recovery of policy limits. However, the Fontes maintained their claim against Audubon for negligent and arbitrary adjusting tactics, thus reserving their claims for litigation costs, attorney fees, and punitive damages.

¶ 6. Audubon filed a motion for summary judgment denying any liability for its handling of the Fontes’ wind claim, alleging that: (1) it was an agent for a disclosed principal and was therefore immune from any causes of action arising from negligent claims handling or breach of contract; and (2) its adjustment of the Fontes’ claim did not rise to the level of an independent tort. In response, the Fontes argued that: (1) Audubon’s contractual assumption of MWUA obligations and the equity rights Audubon held in wind-and-hail policy premiums rendered it a co-principal with MWUA, therefore subjecting Audubon to claims for simple negligence; and (2) the absolute control Audubon asserted over the scope and methodology of adjuster John Jay’s investigation, as well as the method actually employed by Jay, were grossly negligent and designed to produce arbitrary results. The Fontes maintained that Jay was given a mandate not to pay one hundred percent of any claims along U.S. Highway 90 in the Gulfport, Pasca-goula, and Bay St. Louis area. The corporate representative of Audubon stated during deposition testimony that if such a mandate was given, then it may have been arbitrary. Following a hearing, the trial court entered an order granting summary judgment in favor of Audubon. From this order, the Fontes appeal to us.

DISCUSSION

¶ 7. Today’s appeal raises six issues: (1) whether the trial court erred in granting summary judgment in favor of Audubon and dismissing the Fontes’ claims against Audubon with prejudice; (2) whether the trial court erred in the standard it applied in granting summary judgment in favor of Audubon and whether it erred in the presumptions or factual issues in favor of the Fontes in granting summary judgment in favor of Audubon; (3) whether the trial court erred in finding that the parties had stipulated that the Fontes’ claim was based solely on the gross negligence of Audubon as an agent for a disclosed principal; (4) whether the trial court erred in finding Audubon to be an agent for a disclosed principal versus a co-principal with MWUA; (5) whether the trial court erred in finding Audubon exhibited no conduct which would allow the jury to determine that Audubon had committed arbitrary acts or gross negligence amounting to an independent tort, and further, whether the trial court erred in taking this issue from the jury when there was direct testimony from Audubon’s corporate representative to the contrary; and (6) whether the trial court erred in finding that the Fontes’ claim was nothing more than a “pocketbook dispute.” Issues three through six all concern the ultimate issue of whether summary judgment was properly granted; therefore, issues one and two will not be independently discussed. Also, because the relevance of issue three turns on our disposition of issue four, only issue four will be discussed. As to the issues we deem appropriate to discuss, we restate these issues for the sake of clarity.

I. WHETHER THE TRIAL COURT ERRED IN FINDING AUDUBON TO BE AN AGENT FOR A DISCLOSED PRINCIPAL VERSUS A CO-PRINCIPAL WITH MWUA.

¶8. In reviewing a trial court’s grant or denial of summary judgment, the well-established standard of review is de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “A summary judgment motion is only properly granted when no genuine issue of material fact exists.” Jackson Clinic for Women, P.A. v. Henley, 965 So.2d 643, 649 (Miss.2007) (citing PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (Miss.2005); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)). “[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” One South, 963 So.2d at 1160; Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006)). “The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.Ct.App.2006)).

¶ 9. The Fontes assert that Audubon was a co-principal with MWUA, and therefore, Audubon can be held liable under a negligence standard. Audubon was acting as the servicing insurer for MWUA at the time of Hurricane Katrina. As a servicing insurer, Audubon provided service on MWUA policies by issuing policies on behalf of MWUA, adjusting claims, and providing full claim supervision. MWUA owned the files, records, and data obtained or created by Audubon in performance of its duties for MWUA. However, the contract between Audubon and MWUA, the “Servicing Insurer Agreement,” does not provide MWUA with surmountable control over Audubon’s operations and obligations under the contract.

This Court has adopted a non-exclusive list of factors for determining whether an agency relationship exists:

Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Miller v. R.B. Wall Oil Co., 970 So.2d 127, 131 (Miss.2007) (quoting Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91 (1931)). “Control and the rights to control are key to determining whether an agency relationship exists.” Id. at 132 (citing Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988)). Although the contract between MWUA and Audubon gives MWUA ownership of “all files, records, and data obtained or created” by Audubon, it does not give MWUA the explicit authority to supervise Audubon’s work under the contract. Thus, Audubon is given a great deal of autonomy in performing its duties. As such, a genuine issue of material fact exists as to whether MWUA had the necessary control over Audubon required for a principal-agent relationship to exist.

¶ 10. Ultimately, this is an issue for a jury to decide. “The determination of whether an agency relationship exists is a question of fact for the jury,” and not a question of law. Id. (citing Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989)); Elder v. Sears, Roebuck & Co., 516 So.2d 231, 236 (Miss.1987). Therefore, as to this issue, we must remand this case to the trial court for determination by a jury.

II. WHETHER THE TRIAL COURT ERRED IN FINDING AUDUBON EXHIBITED NO CONDUCT WHICH WOULD ALLOW THE JURY TO DETERMINE THAT AUDUBON COMMITTED ARBITRARY ACTS OR GROSS NEGLIGENCE AMOUNTING TO AN INDEPENDENT TORT, AND FURTHER WHETHER THE TRIAL COURT ERRED IN TAKING THIS ISSUE FROM THE JURY WHEN THERE WAS DIRECT TESTIMONY FROM AUDUBON’S CORPORATE REPRESENTATIVE TO THE CONTRARY.

¶ 11. The Fontes argue that the conduct exhibited by Audubon rises to the level of an independent tort and that there was enough evidence to send their claim of gross negligence to a jury. “An adjuster has a duty to investigate all relevant information and must make a realistic evaluation of a claim.” Bass, 581 So.2d at 1090. If an agent does not adhere to this duty, the agent will incur individual liability where the agent’s conduct rises to the level of gross negligence. Conyers v. Life Ins. Co. of Georgia, 269 F.Supp.2d 735, 738 (N.D.Miss.2003).

¶ 12. In today’s case, the record reveals that Audubon, through FARA, assigned adjuster John Jay to the Fontes’ claim. Jay stated that he was given the mandate “not to pay one hundred percent of any of the claims along U.S. 90 in the Gulfport/Biloxi/Pass Christian area because of the fact that it was assumed and believed that storm surge, or flood, created a significant part of the total damage.” Audubon’s own corporate representative agreed that doing a loss adjustment under the presumption that in no event could the loss be a hundred percent of the policy’s limits “may be arbitrary.” Further, Jay had no training in meteorology, structural engineering, civil engineering, or other expertise for differentiating between wind and water damage. Audubon also failed to provide Jay with standard meteorological data, a consulting meteorologist, or any other consulting expert in adjusting the Fontes’ claim.

¶ 13. In State Farm Mutual Automobile Insurance Company v. Grimes, 722 So.2d 637 (Miss.1998), this Court addressed the issue of punitive damages for denial of an insurance claim, determining that:

[t]he issue of punitive damages should not be submitted to the jury unless the trial court determines that there are jury issues with regard to whether:
1. The insurer lacked an arguable or legitimate basis for denying the claim, and
2. The insurer committed a wilful or malicious wrong, or acted with gross and reckless disregard for the insured’s rights.

Id. at 641 (emphasis in original). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232-33 (Miss.2001).

¶ 14. The Fontes’ adjuster, John Jay, made an arbitrary determination that he was “going to adjust this claim based on the top half of the home being damaged by wind,” and he thinks it would be correct to say “that this estimate did not take into account possible damage to the lower portions of the home that would have been caused by the loss of the roof or breaking of the windows on the upper portion of the home from the ingress of rainwater or wind-driven water.” Jay’s determination was made with limited expertise, without meteorological data, without a consulting expert, and based on the instruction not to pay one hundred percent of the Fontes’ policy limits. Whether an arguable or legitimate basis for denying the Fontes’ claim existed for Audubon’s decision not to pay the policy limits must be examined by a jury to determine if there existed a gross and reckless disregard for the Fontes’ rights.

¶ 15. The trial court erred in finding that Audubon exhibited no conduct which would allow the fact finder to determine that Audubon had committed acts of gross negligence amounting to an independent tort. Thus, summary judgment was improperly granted on this issue. Finding that this issue has merit, we must remand this case to the trial court for determination by a jury.

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE FONTES’ CLAIM WAS NOTHING MORE THAN A “POCKETBOOK DISPUTE.”

¶ 16. The trial court’s order granting Audubon’s Motion for Summary Judgment states that “the uncontradicted facts in this case are that this was a ‘poek-etbook dispute’ regarding the losses covered by the MWUA (wind) policy.” In Cossitt v. Alfa Insurance Corporation, the insured and the underwriter agreed that the insured’s claim for benefits was covered. Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 137 (Miss.1998). A “legitimate pocketbook dispute existed between the parties as to the amount of med-pay benefits available” under the policy. Id. Thus, a “pocketbook dispute” exists when parties are in agreement as to the extent of damage but disagree on the value to be assigned to the damage. This is simply not the issue in our case today, because the parties do not agree on the extent of the damage subject to the Fontes’ policy. The Fontes maintain that the first floor of their home incurred substantial damage from wind, while Audubon attributes all the first-floor damage to storm surge. This clearly is a liability dispute.

CONCLUSION

¶ 17. The trial court erred in granting summary judgment where a genuine issue of material fact exists as to whether Audubon was an agent for a disclosed principal, MWUA. The trial court further erred in granting summary judgment by finding that Audubon exhibited no conduct which would allow the jury to determine that Audubon had committed gross negligence. Likewise, this case is not a “poeketbook dispute” but a liability dispute. Thus, for the reasons stated, the Harrison County Circuit Court’s final judgment is reversed, and this case is remanded to the Circuit Court for the First Judicial District of Harrison County for further proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . The Mississippi Windstorm Underwriting Association (MWUA) was established by the Mississippi Legislature in 1987 to provide insurance coverage against wind and hail to residents of the Mississippi Gulf Coast. Miss. Code Ann. § 83-34-1 to 83-34-39 (Supp. 2008). MWUA is responsible for the issuance of policies; however, once MWUA determines a policy should issue, a member company acts as a servicing insurer and provides service on the policy. Audubon was the servicing insurer in this case.

      . John Jay was the adjuster primarily responsible for the Fontes’ claim, and Deanie Diamond, another adjuster for FARA, assisted Jay.

      . By order entered on August 5, 2008, this Court granted MWUA's motion for leave to file an amicus brief, and MWUA’s Brief of Amicus Curiae was filed the same day. In arriving at our decision today, we have likewise considered this amicus brief.

      . This Court uses the term "co-principal” only with respect to the duties and obligations of adjusting claims, and in no way does this Court deem "coprincipal” to be a "coinsurer.”

      .Although references are made to a negligent standard, based on the Complaint in this case, the Fontes’ claim is one of tortious breach of contract.


source: Caselaw Access Project

author: RANDOLPH, Justice, for the Court.

license: Public Domain

text:
    Gigi KILHULLEN v. KANSAS CITY SOUTHERN RAILWAY and Robert W. Lay.
    No. 2006-CT-01564-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2009.
    Rehearing Denied May 14, 2009.

      Kenneth Martin Heard, III, Barry W. Gilmer, Reid Stuart Bruce, Jackson, attorneys for appellant.
    Charles Edwin Ross, Jackson, William B. Lovett, attorneys for appellant.

      . According to Halfacre’s deposition, in Mississippi "we’re not registered as by discipline .... [W]e are registered professional engineers. ...”

   ON WRIT OF CERTIORARI

RANDOLPH, Justice, for the Court.

¶ 1. Following a fatal collision at a railroad crossing between the tractor-trailer driven by Thomas D. Kilhullen (“Thomas”) and a train owned by Kansas City Southern Railway Company (“Kansas City Southern”), Thomas’s widow, Gigi Kilhul-len (“Kilhullen”), filed a wrongful-death suit against Kansas City Southern and the train’s engineer, Robert W. Lay, in the Circuit Court of Scott County, Mississippi. Thereafter, Kansas City Southern and Lay moved for summary judgment, which was granted by the circuit court. The Mississippi Court of Appeals affirmed. See Kilhullen v. Kansas City S. Ry., 8 So.3d 186, —, 2008 Miss.App. LEXIS 195 at *26 (Miss. Ct.App. April 1, 2008). Kilhullen’s subsequent “Petition for Writ of Certiora-ri” was then granted by this Court.

FACTS

¶ 2. On June 20, 2000, Thomas drove a tractor-trailer loaded with lumber onto the Herring Road railroad crossing in Morton, Mississippi. Thomas subsequently was killed when the truck was struck by a train owned by Kansas City Southern and operated by Lay. On December 4, 2001, Kilhul-len filed a wrongful-death suit against Kansas City Southern and Lay. Discovery commenced on May 14, 2002. According to the circuit court, “following discovery ... the single issue which remained] is the complaint that due to vegetation and other objects which were present near the right-of-way, [Thomas] had limited visibility of a train approaching said crossing, and this sight limitation was the proximate cause of the accident.”

¶3. On October 21, 2004, Kansas City Southern and Lay filed a motion for summary judgment. On January 4, 2005, one day prior to hearing, Kilhullen produced affidavits from lay witness Jimmy Shelton and a registered professional engineer, Jimmy Halfacre, in opposition to the motion for summary judgment. Following the hearing, the circuit court entered an order on January 21, 2005, which “put a moratorium on any further discovery in the case, with the exception that [Kansas City Southern and Lay] could depose Hal-facre and Shelton.... The court also held the motion for summary judgment in abeyance pending a hearing on whether Shelton and Halfacre’s affidavits were admissible.” Kilhullen, 8 So.3d at 188, 2008 Miss. App. LEXIS 195 at *4.

¶ 4. On April 20, 2006, Kilhullen filed an affidavit from accident reconstructionist Brett Alexander which agreed with Halfa-cre’s opinion that a clear line of sight, adequate to react to the presence of a train, was not present at the railroad crossing, and that Halfacre utilized the proper methodology in reaching his conclusions. Specifically, Alexander’s affidavit provided, in part, that:

[b]ased upon my training and experience, I agree with the engineering procedures and computations performed by [Halfacre]. I concur in [Halfacre’s] opinion and it is my opinion that [Thomas], the operator of the tractor-trailer rig, was not provided a clear line of sight adequate to enable [Thomas] to see the approaching train, react to the presence of the train, and safely pass through the grade crossing.

Thereafter, the circuit court entered an order deeming Alexander’s affidavit to be “further discovery, which was disallowed in [the] order of January 21, 2005[,]” and directing Kilhullen to file a motion “for leave to engage in further discovery” pursuant to Mississippi Rule of Civil Procedure 6(b)(2). On June 12, 2006, the circuit court held a subsequent hearing on the motion for summary judgment.

¶ 5. In its “Opinion and Order,” the circuit court deemed the motion for summary judgment and discovery issues to be “inextricably joined or intertwined....” Addressing Halfacre’s affidavit, the circuit court stated that, “applying the Daubert standard to the case sub judice it is clear that accident reconstruction is a specified field in which a witness must be qualified by education and experience specific to the field in order to testify as an expert.” The circuit court then found that Halfacre lacked “any specialized knowledge, training or expertise in the field of accident reconstruction[,]” and, therefore, deemed his affidavit inadmissible. Regarding Alexander’s affidavit, the circuit court likewise found it inadmissible, determining that it was impermissible “further discovery” and irrelevant under Mississippi Rule of Evidence 402. After striking the affidavits of both Halfacre and Alexander, the circuit court concluded that “[d]ue to the nature of the cause, wherein there were no eyewitnesses and wherein [Kilhullen’s] proof was dependent upon accurate reconstruction expert testimony the [c]ourt finds there to be no genuine issue of material fact, and the Motion for Summary Judgment is sustained.”

¶ 6. The Court of Appeals affirmed. See Kilhullen, 8 So.3d 186, - , 2008 Miss.App. LEXIS 196 at *26. Regarding Halfacre’s affidavit, the Court of Appeals found that the circuit court did not abuse its discretion in finding it inadmissible because his testimony, “regardless of ... arguments to the contrary, [was] clearly an attempt at accident reconstruction!,]” and “[w]hile [Halfacre] was an engineer, his education was in electrical engineering and the majority of his experience was in conducting home inspections.” Id. at 191, 2008 Miss.App. LEXIS 195 at *12-13. Given Halfa-cre’s purported lack of experience “in any field relevant to his opinion[,]” the Court of Appeals concluded that:

[t]his case cannot be disposed of by a simple calculation without taking into account the numerous other factors that had an impact on the accident.[] While extensive accident reconstruction testimony might not have been required to overcome summary judgment, Kilhullen still must provide testimony regarding line of sight from someone qualified to do so.

Id. at 195, 2008 Miss.App. LEXIS 195 at *16, 23. As to Alexander’s affidavit, the Court of Appeals found that the circuit court “correctly ruled ... as Alexander did not offer any opinion as to Halfacre’s qualifications or expertise.” Id. at 194, 2008 Miss.App. LEXIS 195 at *20. Accordingly, the Court of Appeals concluded that “[s]ince we have found that Kilhullen’s proposed affidavits were properly rejected by the court, we also find that summary judgment was properly entered against Kilhullen.” Id. Thereafter, Kilhullen filed her “Petition for Writ of Certiorari,” which was granted by this Court.

ISSUES

¶ 7. On petition for writ of certiorari, see Mississippi Rule of Appellate Procedure 17, this Court will consider:

(1) Whether the circuit court abused its discretion in rejecting the affidavit of engineer Jimmy Halfacre.
(2) Whether the circuit court abused its discretion in rejecting the affidavit of accident reconstructionist Brett Alexander.
(3) Whether the circuit court erred in granting summary judgment for Kansas City Southern and Lay.

ANALYSIS

I. Whether the circuit court abused its discretion in rejecting the affidavit of engineer Jimmy Halfacre.

¶8. “[T]he admission of expert testimony is within the sound discretion of the trial judge.... Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citation omitted).

¶ 9. “Mississippi law requires the trial court to ensure that proposed [expert] testimony satisfies Rule 702 of the Mississippi Rules of Evidence.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (Miss.2007) (citing Donaldson v. Covington County, 846 So.2d 219, 226 (Miss.2003)). Mississippi Rule of Evidence 702 provides:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Miss. R. Evid. 702 (emphasis added). This Rule “recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable.” Miss. R. Evid. 702 cmt. (emphasis added).

¶ 10. By his own admission, Halfa-cre is not an accident reconstructionist. However, for purposes of admitting his affidavit, such terminology or certification is unnecessary. See Pounders, 970 So.2d at 146 (“a witness need not be a specialist in any particular profession to testify as an expert.... The scope of the witness’s knowledge and experience, and not any artificial classification, governs the question of admissibility.”) (citations omitted); Sacks v. Necaise, 991 So.2d 615, 622 (Miss.Ct.App.2007). Halfacre possessed the professional qualifications to take the requisite measurements at the accident site and then input those figures into an accepted mathematical equation, in order to calculate Thomas’s line of sight. According to his resume, Halfacre received his Bachelor of Science degree in Engineering from Mississippi State University in 1974 and has been a registered professional engineer since March 1, 1980. Furthermore, he is an member of the National Society of Professional Engineers, the Mississippi Engineering Society, and the American Society of Civil Engineers. As a “licensed, professional engineer[,]” Halfacre examined photographs of the accident site, reviewed relevant deposition testimony, and then visited the accident site in January 2005. At the accident site, Halfacre studied the topography and obstructions at the railroad crossing, observed trains approaching and crossing the railroad crossing, and positioned his engineering instruments at the same location that Thomas’s tractor-trailer was positioned prior to the accident. Halfacre then conducted measurements and collected line-of-sight data using engineering instruments and devices. Regarding the subsequent calculations, Halfacre’s deposition testimony is instructive:

Q-In making your time distance calculations, what engineering principles or what body of learning did you rely upon as a professional engineer in doing that?
A. Pretty elementary physics in terms of motions studies from-I would say that most engineers who have had two semesters of physics can calculate the speed and correlate that to a time distance travel.

(Emphasis added). From those calculations, Halfacre found that:

58-feet, ... which is ... the 50-feet from the nose of the truck plus the 8-feet to the driver’s eyeballs, looking this way measuring the distance down the track would have been 447-feet.[] Now, 447-feet, knowing that there’s 5,280-feet in a mile and knowing that we’re dealing with a closing speed of 50 miles an hour, doing that calculation means that there is only about a 6.8 or somewhat less than seven seconds time from the point where the 447-foot mark would be until the center of the crossing.

After providing his affidavit, but prior to his deposition, Halfacre verified his calculations using a recognized equation from Train Accident Reconstruction and FELA and Railroad Litigation by James R. Loumiet and William G. Jungbauer. According to Halfacre, applying that equation:

reinforces the fact that 447 [feet] plus or minus what few percent of possible error that you could argue because of different seasons and height distance and whatever, if anything, reinforces the fact that there is not adequate field of vision there to move the distance that that vehicle would have moved to have cleared the tracks.[]

¶ 11. Utilizing sound engineering principles and the laws of physics, obtained through “knowledge, skill, experience, training, or education,” see Mississippi Rule of Evidence 702, as a registered professional engineer, Halfacre collected relevant line-of-sight data using appropriate engineering instruments and devices, and subsequently input that data into a recognized line-of-sight equation. From those calculations, Halfacre opined that the obstructions “prevented Kilhullen from seeing the approaching train until he was dangerously close to the railroad track.” In rejecting Halfacre’s affidavit due to his lack of “specialized knowledge, training or expertise in the field of accident reconstruction[,]” this Court finds that the circuit court abused its discretion. Given his applied engineering expertise, classification as an accident reconstructionist was not necessary, see Pounders, 970 So.2d at 146; Sacks, 991 So.2d at 622, and this Court concludes that Halfacre’s affidavit satisfied Mississippi Rule of Evidence 702.

II. Whether the circuit court abused its discretion in rejecting the affidavit of accident reconstructionist Brett Alexander.

¶ 12. The January 21, 2005, order of the circuit court held the motion for summary judgment in abeyance. On April 20, 2006, Kilhullen filed Alexander’s affidavit, well before the June 12, 2006, hearing on the motion for summary judgment. Nonetheless, the circuit court found Alexander’s affidavit inadmissible, determining that it was impermissible “further discovery” and irrelevant under Mississippi Rule of Evidence 402.

¶ 13. Mississippi Rule of Civil Procedure 56(c) states, in pertinent part, that “[t]he adverse party prior to the day of the [summary judgment] hearing may serve opposing affidavits.” Miss. R. Civ. P. 56(c). Additionally, this Court has stated that “[w]e ... require that, when an expert’s opinion is challenged, the party sponsoring the expert’s challenged opinion be given a fair opportunity to respond to the challenge. The provision of a fair opportunity to respond is part of the trial court’s gate keeping responsibility....” Smith v. Clement, 983 So.2d 285, 2008 Miss. LEXIS 172 at *11 (Miss.2008). As Alexander’s affidavit was filed nearly two months prior to the June 12, 2006, hearing, this Court finds that its submission was permissible under the “twenty-four-hour rule” of Mississippi Rule of Civil Procedure 56(c). The circuit court erroneously applied the rules of discovery, see Mississippi Rules of Civil Procedure 26-37, when the rule regarding affidavits filed in opposition to a motion for summary judgment was applicable. See Miss. R. Civ. P. 56(c). Accordingly, by failing to acknowledge the applicability of Rule 56(c) or to provide Kilhullen with “a fair opportunity” to respond to Halfacre’s challenged opinion, this Court concludes that the circuit court abused its discretion in finding Alexander’s affidavit inadmissible.

III. Whether the circuit court erred in granting summary judgment for Kansas City Southern and Lay.

¶ 14. The circuit court’s grant of a motion for summary judgment is reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The Comment to Rule 56 adds that “summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.... [I]t cannot be used to deprive a litigant of a full trial of genuine fact issues.” Miss. R. Civ. P. 56 cmt. In this Court’s de novo review, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1998) (citation omitted).

¶ 15. The opinions of the circuit court and Court of Appeals regarding summary judgment are predicated upon the propriety of rejecting the affidavits of Hal-facre and Alexander. However, this Court finds that the circuit court abused its discretion in excluding those affidavits. See Issues I. and II. supra. Given the admissibility of Halfacre and Alexander’s affidavits, for purposes of summary judgment and when reviewed in the light most favorable to Kilhullen, this Court finds that genuine issues of material fact exist for a jury to consider in determining the liability, vel non, of Kansas City Southern and Lay.

CONCLUSION

¶ 16. Based upon the aforementioned analysis, this Court reverses the circuit court and Court of Appeals, and remands for further proceedings.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, AND PIERCE, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

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

      . The court also struck the affidavit of Shelton. That ruling, however, was not presented in Kilhullen’s "Petition for Writ of Certiorari” and, therefore, will not be considered by this Court.

      .According to the Court of Appeals, these factors included the "vertical line of sight, horizontal line of sight, placement of any lights, and any braking done by the train or Thomas....” Id. at 193, 2008 Miss.App. LEXIS 195 at *18.

      . Halfacre's deposition provided that:
      [m]y involvement in this is limited specifically to looking at time and distance measurements and doing a calculation on what two bodies, in this case a train and truck, would travel in a given and specified length of time and comparing that time distance to the measured field of vision.

      . According to Lay’s ' deposition testimony, Thomas’s truck was fifty feet from the railway upon his initial observation.

      . According to Halfacre’s deposition, ‘‘[t]he measurements we made would be, by most any standard, considered to be an application of engineering instruments

      . According to Halfacre's deposition testimony, "[t]hat tree line from the 58 foot mark limits a person's vision to a distance measured down the tracks to about 447 feet.”

      . Halfacre's deposition testimony provided:
      Q.... The fact that you’re using one formula or using your general education and experience the result is the same?
      A. Exactly.

      . Specifically, Halfacre’s deposition noted that ”[i]f we’re over 447 feet, we’re out of his line of sight. If that train is closer in than 1955 feet, there is not adequate time to clear.”

      . Even the Court of Appeals acknowledged that "the second hearing addressed the propriety of summary judgment....” Kilhullen, 8 So.3d 186, 2008 Miss.App. LEXIS 195 at *19.

      . Additionally, Mississippi Code Annotated Section 77-9-249(3) provides:
      [i]n the trial of all actions to recover personal injury or property damages, sustained by any driver of such vehicles for collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions hereof, the question of whether or not the said violation was the sole or approximate cause of the accident and injury shall he for the jury to determine. The violation of this section shall not of itself defeat recovery, and the question of negligence or the violation aforesaid shall be left to the jury; and the comparative negligence statutes and prima facie statute of this state shall apply in these cases as in other cases of negligence.
      Miss.Code Ann. § 77-9-249(3) (Rev.2000). See also Clark v. Ill. Central R.R. Co., 794 So.2d 191, 194-95 (Miss.2001).


author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    Naomi Ruth McDONALD and Janella Lavette McDonald v. MEMORIAL HOSPITAL AT GULFPORT and Dr. Juan Carlos Teran-Benitez. Naomi Ruth McDonald and Janella Lavette McDonald v. Memorial Hospital at Gulfport and Dr. Juan Carlos Teran-Benitez.
    Nos. 2007-CA-01743-SCT, 2007-CA-02169-SCT.
    Supreme Court of Mississippi.
    April 30, 2009.

      F. Gerald Maples, Attorney for Appellants.
    Shellye Vines McDonald, Gulfport, William E. Whitfield, III, Kimberly S. Rosetti, Biloxi, Attorneys for Appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court.

¶ 1. Naomi Ruth McDonald filed this wrongful-death/medical-malpractiee action against several medical providers arising out of the treatment and care of her husband, Janella Lavette McDonald. Defendant Memorial Hospital at Gulfport filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment, asserting that McDonald’s claims were time-barred under the Mississippi Tort Claims Act. Defendants Dr. Juan C. Teran-Benitez and Gastroenterology Center, P.A., filed a Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment. The Circuit Court for the First Judicial District of Harrison County ultimately granted both motions, thus dismissing these defendants from the suit. Aggrieved, McDonald appealed both final judgments, properly certified pursuant to Mississippi Rule of Civil Procedure 54(b), and this Court consolidated the appeals. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On March 7, 2003, Janella Lavette McDonald (Mr. McDonald) was admitted to Memorial Hospital at Gulfport (MHG) by Dr. David LaRosa for treatment of pneumonia. Dr. Frederick Pakron was consulted, and on March 14, 2003, Mr. McDonald was discharged from MHG, and Dr. Pakron took over Mr. McDonald’s care, admitting him to Select Specialty Hospital (SSH). SSH is a long-term, acute-care hospital located on the fifth floor of MHG.

¶3. On March 24, 2003, while still a patient at SSH, Mr. McDonald experienced nausea and vomiting of brown material or blood, and Dr. Juan C. Teran-Benitez (Dr. Teran-Benitez) was consulted. Dr. Teran-Benitez ordered an endoscopic procedure, and Mr. McDonald was sent to the endoscopy suite at MHG, where Dr. Teran-Benitez attempted to perform an esophagogastroduodenoscopy (EGD). Foreign or coffee-ground-appearing material was encountered upon insertion of the scope. Due to Mr. McDonald’s Do-Not-Resuscitate (DNR) status as noted on his chart, Dr. Teran-Benitez and members of the lab staff consulted Mr. McDonald’s wife, Naomi Ruth McDonald, regarding the insertion of an endotracheal tube to protect Mr. McDonald’s airway. Mrs. McDonald refused, and Mr. McDonald expired in the endoscopy lab on March 24, 2003.

¶ 4. Naomi Ruth McDonald (McDonald), as widow of Janella Lavette McDonald, deceased, and as personal representative of statutory heirs, originally filed this wrongful-death and medical-malpractice action on June 9, 2004. Subsequent amended complaints also were filed, and in the end, several medical providers were named as defendants. McDonald gave previous notice of her claim to MHG on March 22, 2004, pursuant to the Mississippi Tort Claims Act, more specifically, Mississippi Code Annotated Section 11-46-11(1) (Rev.2002).

¶ 5. On July 25, 2005, McDonald designated as experts Dr. Rodrigo Galvez, Dr. George Nichols, and Judith Kidd, a registered nurse. On December 9, 2005, Dr. Teran-Renitez and Gastroenterology Center, P.A., filed their Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment, asserting that Dr. Galvez and Dr. Nichols were not qualified to offer opinions regarding the standard of care for a gastroenterologist. Also on December 9, 2005, MHG filed its Motion to Dismiss or in the Alternative Motion for Summary Judgment, stating that McDonald did not substantially comply with Mississippi Code Section 11-46-11(3). The Circuit Court for the First Judicial District of Harrison County, Judge Stephen B. Simpson presiding, conducted a hearing on the aforementioned motions. The trial court subsequently granted summary judgment in favor of Dr. Teran-Benitez and Gastroenterology Center, P.A., and MHG, and entered final judgments consistent with the grant of summary judgment.

¶ 6. More specifically, as to Dr. Teran-Benitez and Gastroenterology Center, P.A., Judge Simpson entered a judgment of dismissal which stated, inter alia, that the judgment was entered pursuant to the provisions of Mississippi Rule of Civil Procedure 54(a), and that, pursuant to the provisions of Mississippi Rule of Civil Procedure 54(b), the final judgment should be entered as to Dr. Teran-Benitez and Gas-troenterology Center, P.A., “as there is no just reason for delay.” As to MHG, Judge Simpson entered a judgment of dismissal which stated, inter alia, that MHG’s “[mjotion to [djismiss or in the alternative for [sjummary [jjudgment is granted and final judgment is hereby entered, as there is no just reason for delay.”

¶ 7. From these final judgments entered in favor of Dr. Teran-Benitez, Gastroen-terology Center, P.A., and MHG, and properly certified pursuant to Mississippi Rule of Civil Procedure 54(b), McDonald appealed to us asserting two issues: (1) whether the trial court erred in dismissing the plaintiffs’ claims against MHG based on the one-year statute of limitations set forth in Mississippi Code Section 11-46-11(3); and (2) whether the trial court erred in ruling the plaintiffs’ expert witnesses were not qualified to testify regarding the standard of care applicable to Dr. Teran-Benitez, and in consequently granting the motion for summary judgment, entering a judgment of dismissal in favor of Dr. Teran-Benitez and Gastroenterolo-gy Center, P.A.

DISCUSSION

¶ 8. This Court’s well-established standard of review in reviewing a trial court’s grant or denial of summary judgment is de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “We will not reverse the trial court’s decision unless it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party.” Moore v. Mem’l Hosp., 825 So.2d 658, 663 (Miss.2002) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999)). However, “[a]bsent an abuse of discretion, a judge’s determination as to the qualifications of an expert witness will remain undisturbed on appeal.” Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007) (citing Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1357 (Miss.1990) (citation omitted)). This Court stated:

The law empowers a trial judge to determine whether a proffered expert is qualified to testify and does not restrict exercise of this power to the trial stage only. That is, a judge has as much power to resolve doubts on qualifications of proffered experts during the summary judgment stage as he has during the trial stage. And of course, the standard which this Court must apply when reviewing a trial judge’s decision to disqualify remains unchanged-notwithstanding that the decision was made during the summary judgment stage. That is, this Court will determine whether the trial judge abused his discretion.

Id.

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

¶ 9. The trial court granted MHG’s Motion to Dismiss or in the Alternative Motion for Summary Judgment; thus, dismissing the action against MHG as time-barred pursuant to Mississippi Code Section 11-46-11(3), which states in part:

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

Miss.Code Ann. § 11-46-11(3) (Rev.2002). The trial court determined that “any negligence for which MHG would be liable had to have occurred on or before March 14, 2003,” the date on which Mr. McDonald was discharged from MHG and admitted to SSH. The trial court ruled that since MHG did not receive notice of the claim until March 22, 2004, a little more than one year after Mr. McDonald’s discharge from MHG, the action was barred by the statute of limitations.

¶ 10. However, since the trial court did not address the discovery rule with respect to section 11-46-11(3), we must do so today for the sake of clarity. This Court has held that a discovery rule applies to claims under the Mississippi Tort Claims Act (MTCA). See Caves v. Yarbrough, 991 So.2d 142, 154 (Miss.2008) (“we therefore shall continue to recognize a discovery rule with respect to Section 11-46-11(3)”). In Caves, decided after the trial judge’s entry of judgments in today’s case, this Court stated:

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

Caves, 991 So.2d at 155. Therefore, when analyzing claims under the MTCA one-year statute of limitations, trial courts must employ the discovery rule. When applying this rule to the facts of the case sub judice, it is evident that McDonald complied with the one-year statute of limitations. McDonald assuredly had no way of knowing “of both the damage or injury, and the act or omission which proximately caused it” until at least March 24, 2003, when her husband vomited blood and eventually died later that day. Id. McDonald submitted the statutory notice to MHG on March 22, 2004; so, even assuming arguendo that she discovered an actionable injury on March 24, 2003, McDonald complied with the one-year statute of limitations imposed by Section 11-46-11(3). Thus, the trial court erred in ruling that McDonald’s claims were barred based on the statute of limitations.

¶ 11. However, the trial court correctly determined that “[wjithout a genuine issue of material fact as to causation established by experts plaintiff cannot survive summary judgment.” McDonald designated three experts: Judith Kidd, Dr. Galvez, and Dr. Nichols. As addressed by the trial court, Nurse Judith Kidd testified via deposition to alleged breaches of nursing standards of care and their application to Mr. McDonald’s treatment while a patient at MHG, but she failed to address causation. In her deposition testimony, Nurse Kidd (a registered nurse certified as a medical/surgical nurse and as a gerontological nurse) stated “I don’t speak to medical causation,” acknowledging that she was not competent to testify as to medical causation. The two other experts, Dr. Galvez and Dr. Nichols, did not offer testimony regarding any alleged breach by MHG.

¶ 12. In order to establish a pri-ma facie case of medical negligence, McDonald must prove “that (1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result.” Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss.2007) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). As a general rule, expert testimony must be used in proving these elements. “Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986)). Although McDonald offered evidence regarding breach of duty, she failed to produce any expert testimony that MHG or its agents were the cause of Mr. McDonald’s injuries or death. As a result, the trial judge did not err in finding that there was no genuine issue of material fact as to causation, and the trial court thus properly granted summary judgment in favor of MHG.

1113. We thus find this issue to be without merit.

II. WHETHER THE TRIAL COURT ERRED IN RULING PLAINTIFF’S EXPERT WITNESSES UNQUALIFIED TO TESTIFY REGARDING THE STANDARD OF CARE APPLICABLE TO DR. TERAN-BENITEZ, AND CONSEQUENTLY GRANTING DR. TERAN-BENITEZ’S MOTION FOR SUMMARY JUDGMENT.

¶ 14. McDonald argues that the trial court misapplied Mississippi Rule of Evidence 702 in granting the Motion to Strike Expert Witnesses of Plaintiff and for Summary Judgment filed by Dr. Ter-an-Benitez and Gastroenterology Center, P.A. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702.

¶ 15. Expert testimony should only be admitted if it withstands the two-prong inquiry under Rule 702. “First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35 (Miss.2003) (citing Miss. R. Evid. 702) (citation omitted). Generally, it is not required that an expert in a medical-malpractice case be of the same specialty as the doctor about whom the expert is testifying. Hubbard, 954 So.2d at 957 (Miss.2007). “It is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Id. (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995)). However, the expert still must show satisfactory familiarity with the specialty of the defendant doctor in order to testify as to the standard of care owed to the patient. Id. (citing West, 661 So.2d at 718-19).

¶ 16. McDonald designated Dr. Rodrigo Galvez and Dr. George Nichols to offer testimony regarding the standard of care applicable to Dr. Teran-Benitez. In ruling on the motion, the trial court determined that the “[pjlaintiffs have offered no evidence that either of their experts have any familiarity with the standard of care applicable to Dr. Teran, a gastroenterologist.” Dr. Galvez, a board-certified pathologist and psychiatrist, has practiced pathology since 1968 and both pathology and psychiatry since 1981. He has never practiced in the field of gastroenterology, and since medical school has not performed any procedures in this field other than one colo-noscopy in 1976. Further, Dr. Galvez has never admitted a patient to an acute-care facility other than a psychiatric facility, and he has not performed an EGD, the procedure Mr. McDonald was undergoing, since medical school in the 1960s. He last intubated a patient in 1963. Dr. Galvez also has never been involved in a procedure with a DNR patient, where consent from a family member was necessary to take action to save the patient’s life.

¶ 17. In order to testify, Dr. Galvez, while not required to be a gastroenterologist, had to at least be familiar with the standard of care to which a gastroenterologist is held. See Troupe v. McAuley, 955 So.2d 848, 856-57 (Miss.2007). Based on Dr. Galvez’s deposition testimony and curriculum vitae, the trial court found that Dr. Galvez was not familiar with the proper standard of care and had not exercised the same level of intellectual rigor that characterizes the practice of an expert in the field of gastroenterology. Poole v. Avara, 908 So.2d 716, 724 (Miss.2005) (citing McLemore, 863 So.2d at 37-38).

¶ 18. Regarding the standard of care applicable to Dr. Teran-Benitez, Dr. Nichols, a pathologist, testified in his deposition that he (Dr. Nichols) had never treated a patient in Mr. McDonald’s situation. Dr. Nichols also admitted that “I have never written DNR orders or been involved in those discussions about anyone other than my own relatives.” McDonald presented no evidence that Dr. Nichols was familiar with the standard of care attributable to gastroenterologists. When questioned about his standard-of-care testimony, Dr. Nichols responded that he was not really there to offer standard-of-care testimony “other than standard of care for a proven practicing physician” ... “a plain M.D.” Dr. Nichols offered no testimony that he was competent to testify to the standard of care of a gastroenterologist. As this Court stated in Hubbard, “[i]t is illogical to allow a proposed expert to testify as to the standard of care of a specialty with which he has demonstrated no familiarity.” Hubbard, 954 So.2d at 958.

¶ 19. The trial court did not abuse its discretion in granting the Motion to Strike Expert Witnesses of Plaintiff filed by Dr. Teran-Benitez and Gastroenterology Center, P.A. The trial court committed no error in ruling that the “experts offered no testimony that convinces this Court that either of them is competent to testify as to that standard of care.” Thus, the trial court did not err in granting summary judgment. As previously discussed, as a general rule, expert testimony must be used in proving the elements of medical negligence. Absent expert testimony, there is no triable issue of fact with regard to the alleged medical negligence of Dr. Teran-Benitez. See Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346 (Miss.1990).

¶ 20. This issue is without merit.

CONCLUSION

¶ 21. For the reasons stated, the final judgments of dismissal entered in favor of Memorial Hospital at Gulfport, Dr. Juan Carlos Teran-Benitez, and Gastroenterolo-gy Center, P.A., by the Circuit Court for the First Judicial District of Harrison County are affirmed.

¶ 22. AFFIRMED.

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

KITCHENS, Justice,

Concurring in Part and Dissenting in Part:

¶ 23. I agree with the majority’s analysis regarding Memorial Hospital at Gulf-port, insofar as today’s decision holds that McDonald’s case is not time-barred by virtue of the discovery rule but that the plaintiff offered no evidence of causation against MHG. However, I find fault with the majority’s analysis concerning expert witnesses, and therefore, I dissent from the determination that the plaintiff failed to offer qualified experts.

¶ 24. It is undisputed that, generally speaking, Mississippi law requires medical-malpractice plaintiffs to use expert witnesses to “identify and articulate the requisite standard that was not complied with ... [and] also [to] establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992). The use of expert witnesses in Mississippi courtrooms is governed by Mississippi Rule of Evidence 702, which defines an expert as one “qualified ... by knowledge, skill, experience, training, or education” who may impart that expertise “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Miss. R. Evid. 702. Rule 702 serves only to distinguish fact witnesses from witnesses with some degree of specialized knowledge who may provide assistance to jurors in their labors as finders of fact. The rule serves to separate witnesses possessed of relevant factual information from those who, because of special knowledge about a particular subject are, for evidentiary purposes, deemed experts and are allowed to give opinions.

¶ 25. The courts of this state and others acknowledge this principle through the recognition that a plaintiffs medical-expert witness need not be “of the same specialty as the doctor about whom the expert is testifying,” Hubbard v. Wansley, 954 So.2d 951, 957 (Miss.2007), because “[i]t is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Id. (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995)). Rule 702 is broadly constructed and broadly construed. It “seeks to encourage the use of expert testimony in non-opinion form when counsel believes the trier can draw the requisite inference.” Miss. R. Evid. 702 cmt. (emphasis added). It does not purport to restrict expert testimony to the domain of a tiny class of geniuses, but merely to differentiate between experts and laypersons. Rule 702 sets a “low threshold for competency” in favor of courts’ “preference for leaving matters of credibility1 to the judgment of the jury....” State v. Calliham, 2002 UT 86, ¶ 27, 55 P.3d 573, 583 (Utah 2002).

¶ 26. Despite such traditionally broad treatment, in recent years, this Court consistently has tightened the requirements for expert testimony in medical-malpractice cases. See Hubbard, 954 So.2d at 966-67 (Diaz, J., dissenting). In 1987, for example, the Court followed the consensus approach, quoting the third edition of McCormick on Evidence, by holding that although expert testimony was required, “a specialist in a particular branch within a profession will not be required.” Brown v. Mladineo, 504 So.2d 1201, 1202 (Miss.1987). Today, the national consensus remains broadly permissive of expert testimony; a party seeking to admit expert testimony need only demonstrate “that the witness has sufficient skill or knowledge related to the pertinent field or calling that his inference will probably aid the trier in the search for truth.” McCormick on Evidence § 13 (Kenneth S. Broun ed., 6th ed.2006) (emphasis added). As recently as 2002, Mississippi courts treated Rule 702 broadly enough to permit “a physician in one specialty [to] testify as to the standard of care in another specialty, provided he is familiar with the standards of that other specialty.” Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 4:1, at 48 (2002). This rule is as pragmatic as it is principled. In addition to adhering to the broad construction of Rule 702, courts’ permissive attitudes toward expert witnesses in medical-malpractice suits recognize “the traditional reluctance of members of the profession to testify against each other, and the difficulty of securing the testimony of a specialist in the same field as the defendant.” Bender on Medical Malpractice § 29.02(3) (2008).

¶ 27. More recently, though, Mississippi’s longstanding, broad treatment of Rule 702 has been cast aside in favor of increasingly demanding requirements. Although our most recent decisions purport to adhere to the traditional standard, this Court has demanded more and more that “an expert ... be of the same specialty as the doctor about whom the expert is testifying,” while professing that such a rigid standard “is generally not required.” Hubbard, 954 So.2d at 957.

¶ 28. In 2004, for example, the Court found no error in a trial court’s decision to allow a defendant’s expert witness because all that was required to satisfy Rule 702 was “something more than unsupported speculation of subjective belief that is grounded in methods and procedures of science.” Poole v. Avara, 908 So.2d 716, 723 (Miss.2005). Whatever imperfections existed in the witness’s qualifications, the Court reasoned, would be properly addressed during cross-examination. Id. at 724. That same holding described Rule 702 as “unquestionably flexible.” Id. at 723. But only a year later, the Court found that a trial court correctly disqualified a family physician from testifying for a plaintiff about dialysis, a common procedure, because the witness “did not have the specialized knowledge to assist the trier of fact to understand the evidence.... ” Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 121 (Miss.2005). By 2007, the Court’s application of our “unquestionably flexible” Rule 702 had grown so rigid that it found no error in a trial court’s decision to disqualify a seasoned neurologist seeking to testify about a neurological condition because, according to the Court, the plaintiff offered no evidence that this neurologist “ha[d] any familiarity with” the relevant neurological condition. Hubbard, 954 So.2d at 958.

¶ 29. Our case law now stands witness to the simple truth that Mississippi no longer adheres to the national standard. The restrictive approach enunciated in Hubbard, and built upon today, conflicts with the expert-witness evidentiary rules of virtually every state in the country and may very well be the most restrictive approach in the nation. While this Court now requires nearly identical curricula vitae between defendant and witness, other states generally accept witnesses based not on their particular specialties but on the extent of their knowledge. In Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989) (superseded by statute on other grounds), the Connecticut Supreme Court allowed a neurologist to testify as an expert against a general surgeon, despite the fact that the witness was not a professional clone of the defendant. “[T]he crucial question is whether the expert knows what the standards of practice are.” Id. at 542, 551 A.2d 1254 (citations omitted). In Roberts v. Warren, 791 So.2d 1278 (La.2001), the Louisiana Supreme Court found an oral surgeon qualified to testify as an expert in a dental malpractice trial, not because the expert was familiar with the relevant procedure or even because of his particular expertise with oral surgery, but because “where there is a uniform nationwide method of performing a particular medical procedure, an expert having knowledge of such method is qualified to testify, and the testifying expert in this circumstance is not constrained by the need to have practiced ... under similar circumstances.” Id. at 1280. Georgia law, similarly, does not require an expert witness in a medical-malpractice case to be a specialist in the same area of medicine as the defendant. Rixey v. West Paces Ferry Hosp., Inc., 916 F.2d 608, 612 (11th Cir.1990) (applying Georgia law described in Beatty v. Morgan, 170 Ga.App. 661, 317 S.E.2d 662, 664 (1984)). Florida has permitted a neurosurgeon to testify against a gynecologist, Brown v. Sims, 538 So.2d 901 (Fla.Dist.Ct.App.1989), just as the South Carolina Supreme Court found an emergency medical technician qualified to testify to the standard of care owed by a defendant anesthesiologist for the latter’s performance dur ing an intubation. Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997). “A medical practitioner’s experience teaching and interacting with persons in the applicable specialty are sufficient to support his qualification as an expert. Qualification depends on the particular witness’ reference to the subject.” Id. at 253, 487 S.E.2d 596.

¶ 30. Simply put, this Court has abandoned adherence to the traditional interpretation of Rule 702. Gone are the days when this Court found Rule 702 satisfied when an expert was qualified to testify with an opinion grounded in “something more than unsupported speculation of subjective belief that is grounded in methods and procedures of science,” Poole v. Avara, 908 So.2d 716, 723 (Miss.2005), and this Court seems increasingly disinterested in the plain language of the rule itself, which clearly notes that expert witnesses may be qualified not only by virtue of experience, but also by knowledge, skill, training, or education. Miss. R. Evid. 702. In the case at bar, any deficiencies in these experts’ knowledge could have been exposed by competent cross-examination.

¶ 31. Plaintiffs expert witnesses in the instant case undoubtedly satisfy Mississippi’s traditional requirements for qualification of expert witnesses. Dr. Rodrigo Galvez, one of McDonald’s proffered witnesses, testified in his deposition that he has knowledge of ear, nose, and throat treatment dating back to his days as an intern in New York in the 1960s. He performed intubations and EGDs during his time in medical school, and he has experience charting patients under do-not-resuscitate status and explaining that status to patients’ families. Likewise, Dr. George Nichols is also qualified to testify under the Court’s longstanding Rule 702 treatment. As a forensic pathologist, Nichols’s curriculum vitae undoubtedly does not parallel Teran’s, but he deposed that he is well studied in the area of “human biologic fluids ... [,] how they relate to disease or to health ... [and] how a person goes from alive to dead.” Nichols and Galvez certainly have the “knowledge, skill, experience, training, or education” necessary to “assist the trier of fact to understand the evidence.... ” Miss. R. Evid. 702.

¶ 32. But even under the Court’s new, overly restrictive approach legislated in Hubbard, the proffered experts still should have been permitted to testify. As forensic pathologists, Galvez and Nichols both are deeply experienced in the innumerable causes of death that human beings encounter. In Hubbard, this Court found “no evidence that [the proffered expert witness] has any familiarity with the standard of care that would be required.... ” Hubbard, 954 So.2d at 958 (emphasis added). No such lack of evidence exists in this case. As Galvez told his deposer, “I know the lung pathology very well, but I wouldn’t dare to treat anybody with a lung problem. But I know when the treatment is good or causes some damage to the patient; that’s part of pathology.” As was the case in the Pennsylvania case of Smith v. Paoli Memorial Hospital, 885 A.2d 1012 (Pa.Super.2005), the experts’ bodies of knowledge overlap the relevant area of medical care to a sufficient degree to make their testimony helpful to the trier of fact. Unless we are prepared again to trim back Rule 702 and, for all practical purposes, jettison the notion that “the artificial classification by title ... should [not] govern the threshold question of admissibility,” Hubbard, 954 So.2d at 957, then it cannot be said that McDonald’s experts lacked the “knowledge, skill, experience, training, or education” to “assist the trier of fact to understand the evidence.... ” Miss. R. Evid. 702.

¶ 33. A trial court necessarily abuses its discretion when it applies an incorrect legal standard. See Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989). In this case, the trial court failed to look beyond the proffered experts’ professional titles to consider knowledge, training, or education. As a violation of the plain language of Rule 702, this oversight amounts to an abuse of discretion.

¶34. Therefore, I would reverse the trial court’s grant of summary judgment in favor of Dr. Teran and remand McDonald’s relevant claims for trial. From my learned colleagues’ decision to the contrary, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION.

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