author: CARLTON, J.,

text:
    Robert L. GRANT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00108-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2008.
    Rehearing Denied Jan. 27, 2009.
    Certiorari Denied May 7, 2009.

      James L. Gray, Picayune, Earl Lindsay Carter, attorneys for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. A Pearl River County grand jury indicted Robert L. Grant on September 30, 2004, for capital murder. The indictment was later amended to charge Grant as a habitual offender. Grant was convicted after a jury trial in August 2006 in the Pearl River County Circuit Court. He was sentenced as a habitual offender to serve a sentence of life imprisonment in the custody of the Mississippi Department of Corrections without eligibility for parole. Aggrieved, Grant appeals, alleging six errors he believes warrant reversal of his conviction. Finding no error, we affirm.

FACTS

¶ 2. On the night of July 16, 2004, Grant and Arthur Joshua had a friend, Shannon Landry, drive them to the home of Terry Adams and his roommates so they could rob the occupants of the home. Landry knew that Adams kept a safe with money and drugs in his bedroom at the home. Grant and Joshua arrived at the home, went in through the front door, and proceeded to rob the occupants. One of the intruders hit one of the occupants, who had been asleep in the living room of the home, over the head with a two-by-four. That occupant never saw either of the men, but the occupant recognized Joshua’s voice and identified him as one of the intruders. At some point during the robbery, Joshua was shot. There was evidence presented at trial from which the jury could have reasonably found that Grant shot Joshua. Joshua’s body was dragged into the wooded area behind the house before the police arrived. Grant escaped into the wooded area and made his way back to Landry’s car. Grant and Landry left the scene together.

¶ 3. The witnesses to the crime claimed that they did not know that anyone had been shot inside the house. There was no blood in the house. However, there were bullet casings and projectiles found inside the house, one with blood on it. Grant was convicted of capital murder and sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections without eligibility for parole.

¶ 4. On appeal, Grant asserts six errors: (1) the Mississippi felony-murder portion of the capital murder statute is not applicable in the case of the death of a co-conspirator; (2) the jury was not properly instructed on capital murder by the trial court — instruction S — 13; (3) the trial court erred in not allowing Grant’s expert to give his opinion as to his first two conclusions; (4) the trial court erred in allowing the inadmissable hearsay testimony of Chris Thomas; (5) the trial court erred in sentencing Grant as a habitual offender; and (6) the verdict of guilty was against the overwhelming weight of the evidence.

I. Whether the Mississippi capital murder statute is applicable in the case of the death of a co-conspirator.

¶ 5. Grant claims that the capital murder statute in Mississippi should not apply when the deceased is a co-conspirator in the underlying felony and not an intended victim. Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006) defines capital murder, and reads, in part:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsen-sual unnatural intercourse with mankind, or in any attempt to commit such felonies[.]

Grant argues that the Mississippi Legislature did not intend for the felony-murder portion of the capital murder statute to apply in cases where the co-conspirator dies during the commission of one of the enumerated felonies. Grant contends that the capital murder statute, and specifically the felony-murder portion, was designed to protect the citizenry or the innocent victims of dangerous felonies. It was not, he argues, designed to protect co-conspirators from each other. Further, he argues that a finding that the capital murder statute applies when the victim was also a co-conspirator is at odds with the United States Supreme Court’s findings in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Those decisions address the appropriateness of imposing the death penalty on a co-conspirator whose involvement in the felony was relatively minor. Grant, however, was not given the death penalty. He was sentenced to life imprisonment without eligibility for parole.

¶ 6. The statute does not address whether the victim in a felony-murder case must be innocent. The statute simply states that capital murder is the “killing of a human being without authority of law by any means or in any manner” when committed, regardless of intent, by a person engaged in one of several enumerated felonies. Robbery is one of the enumerated felonies. The jury found that Grant killed Joshua during the commission of a robbery. This assignment of error is without merit.

II. Whether the trial court erred in granting jury instruction S-13.

¶ 7. In his second assignment of error, Grant argues that the jury received an improper jury instruction on capital murder. Grant argues that jury instruction S-13 confused the elements of murder and capital murder. Grant did not make an objection to the jury instruction before the trial court. Grant objected to the denial of his peremptory instruction to find him not guilty, and he objected to two instructions that dealt with lesser-included offenses. He did not, however, object to the instruction that he now argues was erroneous. Because he did not raise an objection before the trial court, Grant must rely on the plain-error doctrine to raise the issue on appeal. Smith v. State, 907 So.2d 389, 393 (¶ 8) (Miss.Ct.App.2005) (citing Watts v. State, 733 So.2d 214, 233 (¶ 53) (Miss.1999) (overruled in part on other grounds)). “The plain[-]error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Id. (citing Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001)). We apply the plain-error doctrine only when the error affects a defendant’s substantive/fundamental rights. Id. (citing Williams, 794 So.2d at 187 (¶ 23)).

¶ 8. The instruction at issue stated:

The court instructs the jury that if you find from the evidence in this case, beyond a reasonable doubt, that: on or about the 17th day of July 2004 in Pearl River County Mississippi, the deceased, Arthur Joshua, was a living human being; and was killed, without authority of law; while the defendant, Robert L. Grant, was engaged in the commission of a robbery, when the mortal or fatal shot was fired, whether or not the defendant had any intention of actually killing Arthur Joshua then you shall find the defendant Robert L. Grant guilty of murder.

(Emphasis added). Grant argues that because the last phrase of the instruction is simply “guilty of murder,” rather than “guilty of capital murder,” the jury was improperly instructed on the proof required to convict him.

¶ 9. The Mississippi Supreme Court has articulated our standard of review for challenges to jury instructions:

When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed. Similarly, this Court has stated that “in determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Smith v. State, 835 So.2d 927, 934(¶ 23) (Miss.2002) (citations omitted) (emphasis added).

¶ 10. Jury instruction D-8 corrects the omission of the earlier instruction. That instruction stated:

If you believe from the evidence in this case that the [Sjtate has failed to prove beyond a reasonable doubt that Robert Grant participated in a robbery at 123 Ed Reid Road in Lumberton, Mississippi, on July 17, 2004, then you must vote not guilty to the charge of capítol [sic] murder in this case.

When reading the jury instructions as a whole, we find that the jury was properly instructed as to the elements of the crime charged. Grant was indicted on a charge of capital murder, and jury instructions S-13 and D-8, when read together, properly instructed the jury as to the elements of capital murder and as to what the jury was required to find in order to convict Grant. We find no error in the jury instructions as given. This issue is without merit.

III. Whether the trial court erred in not allowing Grant’s expert witness to give opinion testimony as to his first two conclusions.

¶ 11. Grant claims that the trial court erred in not allowing Brent Turvey to testify as to the first two conclusions related to his investigation of the crime scene. “[T]he admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003). “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.’ ” Id.

¶ 12. Mississippi Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mississippi Rule of Evidence 702 addresses expert witness testimony and 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.

¶ 13. Rule 702 was modified in 2003 in response to the United States Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See M.R.E. 702 cmt. This Court explained the test required by Daubert in Mooneyham v. State, 915 So.2d 1102, 1104(¶ 3) (Miss.Ct.App.2005) as follows:

[The] analytical framework provided by the modified Daubert standard requires the trial court to perform a two-pronged inquiry in determining whether the expert testimony is admissible under Rule 702. Under M.R.E. 702, expert testimony should be admitted only after a two[-]pronged inquiry. First, the witness must be qualified as an expert because of the knowledge, skill, experience, training, or education he or she possesses. Second, the witness’s scientific, technical, or other specialized knowledge must assist the trier of fact.

(Internal citations and quotations omitted). In the instant case, the trial court held a hearing before Turvey was allowed to testify to determine which opinions he would be allowed to offer in front of the jury. The trial judge refused to allow Turvey to testify regarding the methods the investigators used in collecting evidence and investigating the crime scene. Turvey was also prevented from testifying about the investigators’ failure to collect evidence Grant saw as potentially exculpatory. The trial judge felt that this testimony would not assist the jury, so he excluded it.

¶ 14. The trial judge’s ruling prevented Turvey from testifying regarding two conclusions. First, he believed that the law enforcement officer’s efforts to secure and process the crime scene were almost nonexistent; consequently, they did not meet the national standards. Second, he believed that the failure to meet these standards led to key items of potentially exculpatory physical evidence not being documented, collected, or tested. The trial judge found this testimony to be irrelevant, but he allowed Turvey to testify regarding his other conclusions. Because we find that the trial judge did not abuse his discretion in excluding certain testimony from Turvey, we find that this issue is without merit.

IV. Whether the trial court erred in allowing the inadmissable hearsay testimony of Chris Thomas.

¶ 15. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Winding v. State, 908 So.2d 163, 168 (Miss.CtApp.2005) (citing Ware v. Entergy Mississippi, Inc., 887 So.2d 763, 766(¶ 6) (Miss.2003)).

¶ 16. The State called Chris Thomas to testify against Grant. Thomas testified that on the night of the robbery and murder, Landry called him and told him to meet her at an apartment complex in Lumberton. Thomas arrived, and Landry was there with Grant. During their meeting, Grant stated to Thomas that he and Joshua had been running through the woods and then split up. Grant then stated that Joshua had been shot.

¶ 17. Grant objected to the testimony at trial on the ground that the statements were hearsay. The trial judge allowed the testimony over Grant’s objection as an exception to the hearsay rule. Mississippi Rule of Evidence 801(d)(2) provides an exception to the general rule of excluding hearsay evidence when the statement was an admission by party-opponent. In Conley v. State, 790 So.2d 773, 787(¶ 43) (Miss.2001), the supreme court held that “a statement is not hearsay if it is the party’s own statement offered against him. It is irrelevant that the defendant did not intend it to be a statement against interest and that it was self-serving when made.” Id. (citing Thornhill v. State, 561 So.2d 1025, 1029 (Miss.1989)). The trial judge did not abuse his discretion in allowing the testimony under Mississippi Rule of Evidence 801(d)(2). See McGee v. State, 853 So.2d 125, 131-32(¶ 19) (Miss.Ct.App.2003) (holding that there is no hearsay issue regarding testimony about what the defendant told the witness). Therefore, this issue is without merit.

V. Whether the trial court erred in sentencing Grant as a habitual offender.

¶ 18. In his fifth assignment of error, Grant contends that his five prior convictions were not properly authenticated before the jury to be admissible against him. The prosecution offered three “pen packs” prepared by the Mississippi Department of Corrections to show that he had prior felony convictions. The supreme court has held that “pen packs” are appropriate evidence of prior convictions in order to enhance sentencing. Russell v. State, 670 So.2d 816, 832 (Miss.1995). Grant claims that two of the pen packs were signed only by the custodian of records, not by an official of the department of corrections. Grant claims that under Rule 902(l)-(4) of the Mississippi Rules of Evidence, the pen packs were not sufficiently authenticated and should not have been admitted into evidence. Rule 902 applies to documents that could be considered self-authenticating. Authentication is required under Rule 901 of the Mississippi Rules of Evidence. That rule states:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of a Witness With Knowledge. Testimony that a matter is what it is claimed to be.

M.R.E. 901(a) and (b)(1).

¶ 19. The State called Ron Montgomery as a witness to authenticate the pen packs. Montgomery was Grant’s probation and parole officer on a prior conviction. He testified that the prior convictions were part of a file he received on Grant when he became his parole officer. The trial judge did not abuse his discretion in allowing the pen packs into evidence. This issue is without merit.

VI. Whether the verdict of guilty was against the overwhelming weight of the evidence.

¶ 20. Grant’s final challenge to his conviction alleges that the jury’s verdict was contrary to the overwhelming weight of the evidence. This Court has articulated the standard of review for such challenges as follows:

In deciding whether the weight of the evidence can sustain the verdict, we accept as true the evidence supporting the verdict, including all reasonable inferences arising from that evidence. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court order a new trial.

Campbell v. State, 749 So.2d 1208, 1213-14(¶ 27) (Miss.Ct.App.1999) (citing Collier v. State, 711 So.2d 458, 461 (Miss.1998)).

¶ 21. To support his argument that the verdict was against the overwhelming weight of the evidence, Grant points to the testimony of the defense witnesses whose testimony contradicted the testimony of the State’s witnesses. One witness testified that Grant had been playing cards with her on the night of the robbery and murder. Another witness testified that after playing cards, Grant came to her home and remained with her the entire night. Furthermore, Grant argues that Adams tested positive for gunshot residue after the incident. However, the evidence presented to the jury showed how the residue could have been transferred from Grant to Adams during the course of the robbery.

¶ 22. We are not persuaded by Grant’s arguments. Considering the evidence presented in the light most favorable to the State, we find that there was sufficient evidence to support the jury’s verdict. Two witnesses, Landry and Adams, testified that Grant was at the scene of the robbery and murder. Landry drove Grant and Joshua to the home to commit the robbery and waited on the men to complete the crime. She drove Grant away from the scene. Additionally, Thomas testified that Grant admitted to being at the scene with Joshua that night.

¶ 23. Adams, one of the robbery victims, testified that Grant was the man who robbed the home. Adams recognized Grant because he had known him for many years. Adams testified that he had been cleaning his room the night of the robbery. He heard his roommate scream, and then he heard three or four gunshots fired. Then, Grant came immediately into his room with a nine millimeter handgun demanding the contents of his safe. Adams testified that Grant came into his room pointing the gun at him. Grant ordered Adams to get down on the floor, and then Grant began to intimidate him by touching the gun to his body. Adams stated, “He pointed it directly at me, and after he got me down, and I gave him all the contents out of my safe, he started playing with the gun up and down my spinal cord and stuff.” Adams testified that Grant then hog-tied him and put a pillowcase over his head. Grant continued to touch Adams with the gun. David Whitehead, an analyst with the Mississippi Crime Laboratory testified that he had performed the gunshot residue tests. He explained to the jury that a person can have gunshot residue on his body by being in close proximity to a weapon being fired, by actually firing a weapon, or by touching something that has gunshot residue on it. Based on the testimony of Adams and Whitehead, the jury could easily infer that the contact Adams had with Grant and with the gun during the course of the robbery left the gunshot residue on Adams’s hands.

¶ 24. Our supreme court has held that “[t]he jury must be left to resolve matters regarding the weight and credibility of the evidence.” Stevenson v. State, 733 So.2d 177, 186(¶ 37) (Miss.1998) (citing Hiter v. State, 660 So.2d 961, 964 (Miss.1995)). Furthermore, “[o]nce a case is submitted to the fact finder, ‘any factual disputes are properly resolved by the jury and do not mandate a new trial.’ ” Id. (quoting Clark v. State, 693 So.2d 927, 931 (Miss.1997)). There was more than sufficient evidence to allow the verdict to stand. Therefore, this issue is without merit.

CONCLUSION

¶ 25. Because we can find no reversible error as to any of Grant’s assignments of error, we affirm the judgment of the trial court.

¶ 26. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: ROBERTS, J., IRVING, J.,

license: Public Domain

text:
    Kathleen W. HEANEY, Appellant, v. Thomas F. HEWES, M.D. and William L. Seidensticker, M.D., Appellees.
    No. 2007-CA-01083-COA.
    Court of Appeals of Mississippi, En Banc.
    Sept. 30, 2008.
    Rehearing Denied Feb. 17, 2009.
    Certiorari Denied May 7, 2009.

      Joseph E. Roberts, Grady L. McCool, Jackson, attorneys for appellant.
    Harry R. Allen, Gulfport, Ross Douglas Vaughn, attorneys for appellees.
    MYERS, P.J., ISHEE and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Kathleen W. Heaney sued Dr. Thomas F. Hewes and Dr. William L. Seidensticker for medical malpractice. During voir dire, several members of the venire indicated that they had either direct or indirect professional contact with Dr. Hewes and/or Dr. Seidensticker. Heaney requested that the circuit court excuse those members of the venire for cause, but the circuit court declined to excuse some of those jurors. Ultimately, the jury returned a verdict for Dr. Hewes and Dr. Seidensticker, and Heaney filed unsuccessful post-trial motions. Aggrieved, Heaney now appeals and claims the circuit court erred when it did not remove all prospective jurors who had prior contacts with Dr. Hewes and Dr. Seidensticker. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Heaney underwent surgery to replace her right hip. Dr. Hewes and Dr. Seidensticker performed that surgery. Heaney later sued Dr. Hewes and Dr. Seidensticker for medical malpractice. According to Heaney, Dr. Hewes and Dr. Seidensticker did not properly perform the hip replacement surgery, and she suffered multiple hip dislocations as a result. Dr. Hewes and Dr. Seidensticker denied that they committed medical malpractice, and the matter proceeded to trial in the Harrison County Circuit Court.

¶ 3. During the circuit court’s voir dire of the venire, many prospective jurors indicated that they personally — or members of their family — had been treated by Dr. Hewes or Dr. Seidensticker. Eight members of the venire had personally been treated by either Dr. Hewes or Dr. Seid-ensticker. Two members of the venire had personally been patients of Dr. Hewes. Those members of the venire were James Webb and Mary Ann Blount. Six members of the venire had been patients of Dr. Seidensticker: Keith Starita, David Moh-ler, Jan White, Ruby Necaise, William Jackson, and Lana Hoda. Additionally, Mohler’s mother had been treated by Dr. Seidensticker.

¶ 4. Aside from Mohler, eight additional members of the venire had a family member who had been a patient of Dr. Hewes or Dr. Seidensticker. Dr. Hewes had treated a family member of six members of the venire: Donna Winstead, Theresa Wilson, Susan Beckham, Kelle Mayfield, Nancy Peterson, and Nancy Graben. Mayfield and Peterson also each had a family member who had been treated by Dr. Seidensticker. Additional voir dire by the circuit court and counsel for Heaney resulted in more information about those prior contacts, which will be discussed later.

¶ 5. During the challenges for cause portion of jury selection, the circuit court mentioned that it had notes on several jurors that were potential candidates to excuse for cause. The circuit court excused juror fifteen, Kathy Hanephin, because Hanephin expressed an opinion that damages should be limited in medical malpractice cases. The circuit court also excused juror twenty-three, Francesca McKay, because McKay would have to go out-of-town soon. The circuit court later excused juror thirty-nine, Gearldine Williams, for the same reason. Next, the circuit court excused juror twenty-six, Jan White, for cause. Heaney’s stated reason for challenging White was “[s]he said that she could not put out of her mind the limits.” The circuit court then added, “she or some member of her family also was treated by ... Dr. Seidensticker.”

¶ 6. After the circuit court excused White from the jury, the circuit court stated that it had juror twenty-seven, Ashley Harris, “marked as possible cause.” Counsel for Heaney requested that Harris be excused for cause since “[s]he said she could not set her personal feelings aside ... with regard to caps.” The circuit court added that Harris had a conflict with her employer that might interfere with her duties as a juror. Accordingly, the circuit court excused Harris. Next, the circuit court mentioned that it “made a notation about cause on Niki Burwell, Dr. Burwell’s wife. He’s an orthopedic [physician].” Heaney’s attorney challenged Burwell, and the circuit court excused her for cause.

¶ 7. Following the circuit court’s removal of Burwell for cause, Heaney’s attorney challenged juror thirty-five, Peterson, and juror thirty-six, Carmon Gaines. During voir dire, Peterson’s responses indicated that both Dr. Hewes and Dr. Seidensticker had previously treated people in her family. Peterson also stated that she had previously sat on a jury in a medical malpractice case. According to Peterson, that jury returned a verdict for the defendant physicians. Peterson also expressed her opinion that “there should be a predetermined limit on the amount of damages [one] can recover in a lawsuit against a doctor[.]” Like Peterson, Gaines indicated that there should be a limit to the damages one can recover in a lawsuit against a doctor. The circuit court struck Gaines for cause, but declined to strike Peterson. According to the circuit court, “just because [the jury on which Peterson sat] ruled for the defendants, I don’t think that that gives any reason for a cause challenge. So [Peterson will] remain.”

¶ 8. The circuit court then stated, “[n]ow I see nothing on any of the rest of them that would indicate to me that they should be struck for cause, but that doesn’t limit you if you want to try it.” Counsel for Heaney then challenged all members of the venire that had a previous relationship with Dr. Hewes or Dr. Seidensticker. Hea-ney’s attorney also attempted to have juror seventeen, Mohler, struck for cause. Heaney’s attorney mistakenly thought that Mohler had been treated by Dr. Hewes, and that Mohler’s son had been treated by Dr. Seidensticker. In fact, Mohler’s voir dire responses indicated that he and a member of his family had been a patient of Dr. Seidensticker. In any event, the circuit court declined to strike Mohler for cause. Likewise, the circuit court declined to strike all members of the venire that had prior contacts, directly or indirectly, with Dr. Hewes and/or Dr. Seidensticker. The circuit court’s stated reasoning was that “I’m not going to strike the others because I’d almost have to strike the whole panel.”

¶ 9. To summarize, the circuit court excused seven jurors for cause-one of whom had been previously treated by Dr. Seiden-sticker. However, the circuit court refused two of Heaney’s attorney’s specific challenges for cause. That is, the circuit court refused to strike Peterson and Moh-ler for cause. The circuit court also declined to strike all members of the venire with prior direct or indirect contact with Dr. Hewes and Dr. Seidensticker.

¶ 10. At that point, the parties moved along to the peremptory challenge portion of jury selection. Counsel for Heaney used peremptory challenges on (1) juror two, Webb; (2) juror seven, Winstead; and (3) juror twelve, Wilson. Heaney’s attorney declined to use a peremptory challenge on juror sixteen, Starita, because “although he has been a previous patient of Dr. Seidensticker, ... if we did take our peremptory challenge on him, the next person we would get is David Mohler ... [a]nd we would therefore still have a ... previous patient of one of the defendants on the jury.” Counsel for Heaney then tendered the panel to counsel for Dr. Hewes and Dr. Seidensticker.

¶ 11. After counsel for Dr. Hewes and Dr. Seidensticker exercised their four peremptory challenges, the panel was tendered back to Heaney’s attorney. Hea-ney’s attorney used his last peremptory challenge on Mohler. As for the alternates, neither of the two alternates had prior contact with Dr. Hewes or Dr. Seid-ensticker. However, one juror, Starita, personally saw Dr. Seidensticker fifteen years prior to the trial. The record reflects that Dr. Seidensticker performed some surgical procedure for Starita, but the precise procedure is unclear beyond that it was not a hip replacement surgery. When asked whether his prior experience would cause him to favor Dr. Seidensticker, Starita answered, “[n]ot at all.”

¶ 12. The transcript before us is restricted to the events related to jury selection. Thus, we are unaware of anything that occurred at trial beyond voir dire and jury selection. The jury ultimately returned a verdict for Dr. Hewes and Dr. Seidensticker. Heaney appeals and claims the circuit court erred when it declined to excuse all jurors who had prior direct or indirect contact with Dr. Hewes or Dr. Seidensticker.

STANDARD OF REVIEW

¶ 13. “Article 3, § 14 of the Mississippi Constitution guarantees due process of law, including a fair and impartial trial.” Brown by & Through Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997). The circuit court has an absolute duty to see that the jury selected to try any case is fair, impartial, and competent. Id. (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992); King v. State, 421 So.2d 1009, 1016 (Miss.1982)). Where, as here, we review a circuit court’s decision whether to excuse a potential juror for cause, we are mindful that circuit courts have “wide discretion in determining whether to excuse any prospective juror, including one challenged for cause.” Brown, 697 So.2d at 769 (citations omitted). Accordingly, we will reverse the circuit court only where its decision is clearly erroneous or against the overwhelming weight of the evidence. Burnett v. Fulton, 854 So.2d 1010, 1013(¶ 7) (Miss.2003) (citations omitted). We defer to the circuit court due to its relative proximity to the venire during voir dire and the fact that the circuit court is in a better position to measure the prospective jurors’ responses. Id.

ANALYSIS

WHETHER THE CIRCUIT COURT ERRED WHEN IT DECLINED TO ALLOW HEANEY’S REQUEST TO EXCUSE SEVERAL MEMBERS OF THE VENIRE FOR CAUSE.

¶ 14. Heaney claims the circuit court committed reversible error when it did not grant her challenges for cause. Sixteen members of the fifty-three-person venire had direct or indirect prior professional contacts with Dr. Hewes and/or Dr. Seidensticker. According to Heaney, the circuit court should have excused those people for cause or taken other remedial measures to ameliorate those people’s influence over the rest of the venire.

¶ 15. In Hudson v. Taleff, 546 So.2d 359, 361-62 (Miss.1989), twelve people out of the twenty-five-person venire had contacts with the defendant doctor, his medical partners, or his attorney. The plaintiff unsuccessfully requested that the circuit court excuse for cause every member of the venire who had such prior contacts. Id. at 362. The Mississippi Supreme Court held that there was a “statistical aberration” in the number of jurors who had previously been treated by the defendant in Hudson. Id. at 364. The supreme court went on to hold that the circuit court should have: (1) afforded counsel more peremptory challenges; (2) increased the size of the venire “as well as affording additional challenges”; or (3) sustained at least some of the challenges for cause. Id. at 363. Accordingly, the supreme court reversed the judgment of the circuit court and remanded the matter for a new trial. Id. at 364. Hudson suggests that the proper resolution is to reverse the circuit court based solely on the number of jurors who had prior contacts with Dr. Hewes or Dr. Seidensticker and the circuit court’s decision not to take remedial measures to ameliorate the influence such members of the venire could have on the jury. However, a more recent decision by the Mississippi Supreme Court suggests that jurors with prior contacts should not be per se summarily excused for cause.

¶ 16. In Hamilton v. Hammons, 792 So.2d 956, 962(¶ 28) (Miss.2001), “several of twenty-three potential jurors noted that they knew one of five plaintiffs or counsel for the plaintiffs.” “Moreover, some of those potential jurors further stated that if they had to hire a lawyer, they would hire [counsel for the plaintiffs].” Id. Counsel for the defendant challenged six of those jurors for cause, but the circuit court declined to excuse all such members of the venire. Id. at 962-63(¶ 31). After a successful verdict for the plaintiffs, the defendant appealed and claimed, among other things, that the circuit court erred when it did not excuse for cause all members of the venire who had prior contacts with the plaintiffs or their attorney. Id. at 958-59 (¶¶ 2-3,10).

¶ 17. The supreme court noted that, after peremptory challenges, only one juror that the plaintiff attempted to have removed for cause sat on the jury. Id. at 964(¶37). That juror previously stated that she would seek out the plaintiffs attorney if she needed legal representation. Id. However, that juror had not sought out the plaintiffs attorney’s representation in the past. Id. Accordingly, the supreme court declined to find reversible error. Id. at (¶ 38). In so doing, the supreme court stated that there are two competing forces “that enter into the equation as to the impartiality of a juror.” Id. at 963(¶ 34). The first “force” is “the factor or circumstance which tends to indicate a potential for bias on the part of that juror.” Id. The second “force” is “the juror’s promise that he or she can and will be impartial.” Id. The supreme court went on to state:

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one’s claim or the other’s defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired. It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference.... These varied imponderables make selection of jurors a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.

Id.

¶ 18. Though Hudson suggests that, without more, the circuit court committed reversible error by declining to strike all jurors with prior contacts to the defendants, Hamilton states otherwise. The supreme court did not distinguish Hudson and Hamilton based on the fact that a physician was the defendant in Hudson, and the defendant was not a physician in Hamilton. Accordingly, that the defendants in this case are retired physicians is of no moment, and we therefore balance the competing forces as mentioned in Hamilton. Hamilton, 792 So.2d at 963(¶ 34). Further, Hamilton specifically states that the circuit court’s decision is entitled to “considerable deference.” Id. at 964(¶ 37).

¶ 19. Out of fifty-three specifically mentioned members of the venire, sixteen veniremen had direct or indirect contacts with one or both of the defendants. In Hudson, twelve of twenty-five veniremen had prior contacts with the defendant, his partners, or his attorney. Consequently, there is no severe “statistical aberration” in this case — at least not to the degree as in Hudson. Additionally, both Dr. Hewes and Dr. Seidensticker were retired at the time of the trial. Thus, no member of the venire had an ongoing doctor/patient relationship with one of the defendants, and there was no risk that a member of the venire would be influenced by the possibility of future treatment by one of them.

¶ 20. Though it is not singularly outcome determinative in this case, it bears mentioning that Heaney’s attorney did not request that the circuit court grant him additional peremptory challenges, nor did he request that the circuit court increase the size of the venire — which are both curative steps the circuit court might consider under Hudson. Hudson, 546 So.2d at 363. Additionally, Heaney’s attorney only challenged two specifically named members of the venire for cause on the basis of their prior contacts with Dr. Hewes and Dr. Seidensticker. That is, while counsel for Heaney generally attempted to have all members of the venire with prior contacts removed for cause, he only challenged for cause two members of the venire on any specific basis.

¶ 21. What is more, Peterson and Moh-ler both indicated that their prior experiences would not cause them to be partial toward Dr. Hewes or Dr. Seidensticker, and neither one of them sat on the jury. Mohler’s voir dire responses indicated that he and his mother had been treated by Dr. Seidensticker. However, Mohler did not state that he would believe Dr. Seiden-sticker over anyone else. Based on Moh-ler’s voir dire responses, Mohler could have just as easily been biased against Dr. Seidensticker based on Dr. Seidensticker’s having performed hip replacement surgery on his mother and his mother’s subsequent problem with dislocations. That is, one could reasonably argue that Heaney had more reason to keep Mohler on the jury in that Mohler could have been sympathetic to Heaney, who suffered problems similar to his mother.

¶22. Starita sat on the jury. Starita personally saw Dr. Seidensticker fifteen years prior to the trial. Dr. Seidensticker performed some unspecified surgical procedure for Starita. The exact procedure is unclear, but it was not hip replacement surgery. Heaney’s attorney did not ask Starita how many times he personally saw Dr. Seidensticker, whether he was pleased or displeased with Dr. Seidensticker’s treatment, whether he formed an opinion of his skills as a physician from his prior relationship with him, or any other such questions which would shed light on Stari-ta’s ability to decide the case based solely on the facts and the law. From the record, it appears that Heaney was not even aware that Dr. Seidensticker assisted Dr. Hewes during her procedure until after her recovery. As far as we can surmise from the record, Starita’s relationship with Dr. Seidensticker fifteen years earlier may well have been the same. Moreover, when asked whether his prior experience would cause him to favor Dr. Seidensticker, Star-ita answered, “[n]ot at all.”

¶ 23. “[J]urors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference[.]” Hamilton, 792 So.2d at 963(1134). Suffice it to say, we are not prepared to say that, in general, jurors commit perjury when they promise they can remain impartial. The jury’s verdict was eleven to one in favor of Dr. Hewes and Dr. Seidensticker. The record only contains the events that took place during jury selection. We do not know how Starita voted. Regardless of his vote, the result would have been the same.

¶ 24. With due respect for the dissent, there is nothing in the record regarding whether Starita was pleased or displeased with Dr. Seidensticker’s service as a surgeon. We only know that, fifteen years prior to Heaney’s trial, Dr. Seidensticker performed some unspecified surgery on Starita. Whatever opinion Starita had, he swore that his prior experience would not cause him to favor Dr. Seidensticker. While it is within the realm of possibilities that Starita could have a favorable impression, based on the voir dire at trial, there is no reason to reach that conclusion. Dr. Seidensticker was retired at the time of Heaney’s trial. Starita did not expect that he or anyone in his family would ever again have a patient/physician relationship with him. There were no circumstances that tended to “indicate a potential for bias” on Starita’s part. Hamilton, 792 So.2d at 963(¶ 34). Combined with Stari-ta’s sworn statement that nothing about his experience with Dr. Seidensticker would cause him to favor Dr. Seidensticker, the circuit court was well within its discretion when, per Hamilton, it balanced the two competing forces and did not excuse Starita for cause. Id. After all, these “varied imponderables make selection of jurors a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.” Id.

1125. Starita swore that he would not favor Dr. Seidensticker even though he had a prior relationship with him. That promise is “entitled to considerable deference.” Id. Notwithstanding Starita’s promise, the dissent would find that the circuit court clearly abused its discretion because (a) Dr. Seidensticker performed some unspecified surgery on Starita fifteen years prior to Heaney’s trial, and (b) the circuit court could have excused Stari-ta for cause and still would have had enough jurors to fill a jury panel. Without more evidence to indicate a bias on Stari-ta’s part, to find an abuse of discretion under these facts would be to find a complete lack of discretion. That would be contrary to the supreme court’s decision in Hamilton. We cannot find a clear abuse of discretion in the circuit court’s decisions regarding jury selection. Accordingly, we are required to affirm the judgment of the circuit court.

¶ 26. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., ISHEE AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND GRIFFIS, J. LEE, P.J., AND CHANDLER, J., NOT PARTICIPATING.

IRVING, J.,

Dissenting:

¶ 27. Because I believe the majority fails to follow the precedent established in Hudson v. Taleff, 546 So.2d 359 (Miss.1989), reaffirmed in Brown v. Blackwood, 697 So.2d 763 (Miss.1997), and followed by this Court in Davis v. Powell, 781 So.2d 912 (Miss.Ct.App.2000), I dissent.

¶ 28. After the trial court refused to remove for cause jurors who were former patients of one or both of the defendant doctors or had a close family member who was a former patient, Heaney used all of her peremptory challenges to remove them. Nevertheless, one former patient, Keith Starita, remained as a juror. Dr. William L. Seidensticker had performed some unspecified surgery on Starita fifteen years earlier. However, in my judgment, the passage of time does not mean that Starita could not still harbor a positive opinion of Dr. Seidensticker. On this point, I note that during voir dire when Starita was asked if his prior experience would cause him to favor Dr. Seidensticker, he answered, “[n]ot at all.” There is nothing in the record to indicate that Star-ita was displeased with the surgery. If he was satisfied with the surgery, we know from human nature that he would likely favor Dr. Seidensticker. Our supreme court made this very observation in Scott v. Ball, 595 So.2d 848, 850-51 (Miss.1992):

In a suit in which a physician is a party, a circuit judge must be sensitive to the qualification of a juror who has himself or herself been treated by him, or whose family members have at one time or another been patients of his. This is especially true in our smaller cities and towns, where often there is a shortage of practicing physicians. Mississippians in less populated areas enjoy a close, fraternal relationship with their doctors, and regardless of a ‘prospective juror’s complete sincerity in his belief of his ability to be fair, it is only human nature that in most cases he will be more than reluctant to return a verdict against the physician. The circuit judge recognized this, of course, when he excused seven of the jurors challenged for cause for this reason. He erred in not excusing prospective juror Smith, No. 20, for cause for this reason.

(Emphasis added).

¶ 29. It is noteworthy that the trial judge could have excused Starita for cause, and there would have been thirty-five jurors left on the panel, more than an ample supply from which to select twelve jurors who were neither challenged for cause nor were former patients of either of the defendant doctors, nor had a family member who was a former patient. On these facts, I cannot discern any justification for the trial judge’s decision not to strike for cause juror Starita. Therefore, I am compelled to conclude that the trial judge abused his considerable discretion when he refused to strike Starita for cause. The majority posits that Kathleen W. Heaney might have had a better reason for keeping another juror, David Mohler, on the panel and using her peremptory strike on Starita. It seems to me that there was no good reason to keep either. From Moh-ler’s responses, it is' very reasonable to assume that he may not have been entirely candid. Again, human nature tells us that if Mohler’s mother had problems with the surgery performed by Dr. Seidensticker, that fact would weigh on his mind, notwithstanding his assertion that it would not.

¶ 30. For the reasons presented, I dissent. I would reverse and remand this case for a new trial.

KING, C. J., AND GRIFFIS, J., JOIN THIS OPINION.

      . It is unclear whether White’s prior contact with Dr. Seidensticker was one of the reasons the circuit court struck White. Based on the circuit court’s statement, it seems appropriate to assume that her prior contact was at least one of the circuit court’s reasons for excusing her for cause.

      . Mohler indicated that at some unspecified time prior to the trial, Dr. Seidensticker had performed a hip replacement surgery on his mother. Mohler also indicated that his mother had “problems with dislocations.” Additionally, Dr. Seidensticker performed knee surgery for Mohler at some unspecified time prior to the trial. Counsel for Heaney asked Mohler, "would that weigh on your mind that you had seen Dr. Seidensticker and your mom had seen Dr. Seidensticker?” Mohler answered, "[n]o, sir.” Later, counsel for Heaney asked, "there's nothing about the relationship that would make you favor Dr. Seidensticker?” Again, Mohler responded, "Mo.”

      . Mohler indicated during voir dire that Dr. Seidensticker had performed hip replacement surgery on Mohler’s mother and knee surgery on him and that his mother had had problems with dislocations. Mohler also said that these facts would not weigh on his mind. At some later point, Mohler said that there was nothing about the relationship with Dr. Seiden-sticker that would make him favor Dr. Seid-ensticker.


author: GRIFFIS, J.,

text:
    Barbara DOTSON, Appellant v. Paul JACKSON, M.D., Appellee.
    No. 2006-CA-01275-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2008.
    Rehearing Denied Feb. 10, 2009.
    Certiorari Denied May 7, 2009.

      Suzanne Griggins Keys, Isaac K. Byrd, Jackson, Gary Silberman, attorneys for appellant.
    Clinton M. Guenther, Greenwood, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Barbara Dotson filed a medical negligence action against Paul Jackson, M.D., in the Circuit Court of Washington County. Dr. Jackson filed a motion for summary judgment arguing that Dotson’s designation of an expert witness was untimely and the statement provided by the expert witness did not set forth a prima facie case of medical negligence. The circuit court granted Dr. Jackson’s motion for summary judgment, and Dotson now appeals. We find no error and affirm.

FACTS

¶ 2. On August 8, 2000, Dr. Jackson, an obstetrician/gynecologist, performed a hysterectomy on Dotson. Dotson’s bladder was lacerated during surgery. Dr. Robert Curry, a urologist, was brought in to repair Dotson’s bladder during the surgery. Dotson claims to have had problems associated with her bladder following the surgery.

¶ 8. On August 31, 2001, Dotson initiated this lawsuit for medical negligence. She alleged that Dr. Jackson’s negligence caused her to be unable to control her bladder. Further, she claimed that Dr. Jackson’s negligence also led to meralgia paresthetica, a condition that causes pain and numbness in her thighs. She was diagnosed with this condition by a neurologist in November 2000. However, Dotson failed to present any evidence that relates her meralgia paresthetica with the surgery performed by Dr. Jackson.

¶ 4. The complaint was amended to join The King’s Daughters Hospital as a defendant. This was the hospital where the surgery was performed.

115. The parties entered an agreed scheduling order. According to the order, Dotson’s expert witnesses were to be designated by February 1, 2002, and the defendants’ expert witnesses were to be designated by March 15, 2002.

¶ 6. Dotson failed to designate any expert witnesses until March 26, 2002. On September 4, 2002, Dr. Jackson filed a motion for summary judgment. The motion was based on the following: (1) Dotson’s failure to designate an expert witness and (2) Dotson’s failure to provide any expert testimony to prove the elements required to establish a prima facie case of medical negligence. The hospital filed a similar motion for summary judgment. Dotson’s response to Dr. Jackson’s motion contained a copy of her designation of two medical experts, but it contained no affidavits from either expert. Dr. Jackson’s counsel claimed to have never received Dotson’s designation.

¶ 7. Thereafter, Dr. Jackson’s counsel learned that Dr. Jackson had filed for bankruptcy. Dotson moved for partial relief from the automatic stay in bankruptcy; thus, the malpractice case was continued.

¶ 8. On October 4, 2004, Dotson filed a motion to have the circuit judge assigned to the case, the Honorable Margaret Carey-McCray, removed because she had been one of Dr. Jackson’s patients. Following that motion, despite numerous attempts, Dr. Jackson’s counsel received no information from the circuit court or Dotson’s counsel regarding the case. It was not until April 7, 2006, that Dr. Jackson’s counsel was finally apprised that the circuit judge had entered an order granting Dotson’s motion for recusal. Circuit Judge Richard A. Smith was then assigned the case.

¶ 9. The parties agreed to have a hearing on the motions for summary judgment on June 5, 2006. On June 1, 2006, Dotson’s counsel requested that Dr. Jackson’s counsel agree to a continuance of the hearing so that he could discuss the case with Dotson. Dr. Jackson’s counsel refused to agree to a continuance due to the lengthy nature of the proceedings to that point.

¶ 10. About one hour before the scheduled hearing, Dr. Jackson’s counsel received Dotson’s response to the motion for summary judgment. The response contained a letter from Dr. Norman Reiss, Dotson’s expert witness. The letter was dated March 24, 2002, more than four years before the hearing. The letter stated the following:

With regard to laceratio[n] of bladder
a. it is against the Standard of Care to injure the bladder (laceration of bladder) during the performance of a vaginal and or abdominal hysterectomy [sic].
1. Should such an injury occur during the above operative proceedure [sic], it must be recognized and suitable repair done at this time — either by operating surgeon and a consultant Urologist.
2. The Urologist should be available by the fact that the operati[n]g surgeon anticipates a diffi[c]ult procee-dure [sic]. The Urologist stands by just in case.
b. The Standard of Care requires that the operating surgeon should anticipate possible bladder injury during the performance of vaginal and or abdominal hysterectomy especially if the dissection is difficult depending on the pathological condition in the pelvis.

The Standard of Care requires anticipation of possible complication — (inadver-tant [sic] injury t[o] bladder)[.] Proper measures to insure that complications if they occur during a surgical proceedure

[sic] receive prompt attention by suitable specialist consultants.
The Standard of Care requires anticipation of possible problems, as well, as to take measures to insure these problems are resolved at the time they occur.
Have Urologist on standby [for] a difficult proceedure [sic]. Have Urologist scrub at operation-until urological structures are not damaged.

The remainder of the letter contained Dr. Reiss’s answers to specific questions posed by Dotson’s attorney.

¶ 11. The opinions of Dr. Reiss contained in this letter were not presented in a sworn affidavit. Instead, it was accompanied by the affidavit of Dotson’s attorney who stated under oath that the letter contained the expert medical opinion of Dr. Reiss. Dotson’s attorney claimed that Dr. Reiss did not have access to a fax machine in order to immediately fax a signed affidavit. Dotson requested a continuance in order to obtain such affidavit, but the request was never addressed by the circuit judge.

¶ 12. Also at the hearing, Dotson announced that she was dismissing her claim against the hospital; thus, only her claim against Dr. Jackson remained. The circuit court heard arguments from both parties regarding Dr. Jackson’s motion for summary judgment and then took the matter under advisement.

¶ 13. On June 14, 2006, before the circuit judge ruled on the motion for summary judgment, Dotson filed a motion to reconsider and attached an affidavit from Dr. Reiss. Dr. Reiss’s affidavit contained the following statements:

1.I am a medical doctor, duly licensed. I am now retired from active practice. My resume is attached as Exhibit A.
2. I was retained by Byrd and Associates to review the above named case for possible medical negligence.
3. I reviewed the medical records of the Plaintiff as well as her deposition and that of Dr. Paul Jackson.
4. It is my opinion, to a reasonable degree of medical probability, that Dr. Paul Jackson breached the acceptable standard of care when, during his lapa-roscopic hysterectomy on Ms. Dotson, he cut her bladder. Even though Ms. Dotson underwent surgery to correct this error, it was still a breach of the standard of care for him to have cut her bladder in the first place, causing her injury.
6.The standard of care requires that the operating surgeon should anticipate possible bladder injury during the performance of a vaginal or abdominal hysterectomy, especially if the dissection is difficult depending on the pathological condition in the pelvis. A surgeon should take the time to properly examine a patient before he or she is brought to the operating room. A proper abdominal and physical examination will demonstrate that structures within the pelvis are non movable.
6. In the instant case, Dr. Jackson failed to conduct a proper examination of Ms. Dotson and failed to anticipate and prepare for the possible complication of cutting the bladder.
7. However, even if a urologist was available and made the proper repair, it is still my opinion that Dr. Jackson breached the standard of care by cutting the bladder.
8. I was contacted prior to the hearing on the Motion for Summary Judgment that was held on June 5. However, I have retired since I was originally retained in this case and relocated to Tennessee. I told Attorney Suzanne Keys that I did not have access to a fax machine to be able to receive a fax of this affidavit and return a faxed signed copy to her prior to the hearing. However, I authorized her to inform the Court of my opinion stated above.

¶ 14. Dr. Jackson filed a motion to strike the affidavit of Dr. Reiss as being untimely. Dr. Jackson alternatively argued that the affidavit failed to set forth a prima facie case of medical negligence. The circuit judge never ruled on Dr. Jackson's motion to strike, and as far as this Court can tell, the circuit judge considered the affidavit before ruling on the summary judgment motion.

¶ 15. The circuit court granted summary judgment in favor of Dr. Jackson on June 26, 2006, finding that Dotson failed “to meet her burden of establishing through expert testimony that Dr. Jackson was negligent as alleged in the [cjomplaint herein.”

¶ 16. On appeal, Dotson argues that summary judgment was inappropriate because: (1) she produced evidence of the identity of an expert and evidence of the expert’s opinion, (2) she made out a prima facie case for medical negligence, and (3) the facts of this case are such that the layman’s exception applies. We have combined Dotson’s first two assignments of error as they are interrelated.

STANDARD OF REVIEW

¶ 17. The standard of review of a motion for summary judgment is well settled:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted).

ANALYSIS

1. Whether Dotson provided timely expert medical testimony sufficient to establish a prima facie case of medical negligence.

¶ 18. Dotson first argues that summary judgment was improper because she produced evidence of the identity of an expert and evidence of the expert’s opinion. Second, she argues that she has met her burden of establishing a prima facie case of medical negligence via the entire pleadings. In response, Dr. Jackson contends that Dotson’s expert affidavit was both untimely and insufficient to establish a pri-ma facie case of medical negligence.

¶ 19. Dotson claims that Dr. Jackson had notice as to whom her expert was and to what he would testify because she served her response to the motion for summary judgment. That response contained an affidavit of Dotson’s attorney that explained the substance of the expert’s opinion. Dr. Jackson responds that the affidavit of Dotson’s attorney, along with the letter from Dr. Reiss — the expert witness — did not establish the requisite elements of a medical negligence claim. However, as Dr. Jackson notes, the circuit court did not rule on the untimeliness of Dotson’s medical expert affidavit.

¶ 20. At the hearing, Dotson requested a continuance to obtain a sworn affidavit from Dr. Reiss. The circuit court took the entire matter under advisement. Nine days later, Dotson filed the affidavit with the circuit court. Dr. Jackson moved to strike the affidavit as untimely. The circuit court did not rule on the motion for continuance or the motion to strike. Furthermore, the circuit judge, in his order granting summary judgment, did not make a specific finding that Dotson’s expert affidavit was untimely. The order simply finds that the “[pjlaintiff has failed to meet her burden of establishing through expert testimony that Dr. Jackson was negligent as alleged in the [cjomplaint herein.”

¶ 21. It is unclear from the order whether the circuit court’s determination was based on the untimeliness of the affidavit or the sufficiency of the affidavit’s content. However, because we find that the expert affidavit was both untimely and insufficient to set forth a prima facie case of medical negligence, we find no error in the circuit court’s grant of summary judgment in favor of Dr. Jackson.

a. Timeliness of Dotson's Expert Witness Affidavit

¶22. The Mississippi Supreme Court has stated:

Discovery responses are to be supplemented seasonably pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure. It has been held that “seasonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995). Additionally, “seasonableness must be determined on a case[-]by[-]ease basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Board of Supervisors, 720 So.2d 190, 195 (Miss.1998).

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1041(¶ 10) (Miss.2003).

¶ 23. Dotson’s surgery was performed on August 8, 2000. Her complaint was filed on August 31, 2001. An agreed amended scheduling order was entered on November 1, 2001, and it required Dotson to designate her expert witnesses no later than February 1, 2002. In Dotson’s response to Dr. Jackson’s interrogatories, which were filed on November 20, 2001, Dotson stated that the discovery request regarding the identity of her expert witness would be seasonably supplemented when her expert witness had been determined. Her designation of experts was not filed until March 26, 2002.

¶ 24. Dr. Jackson, claiming to have never seen that designation, filed a motion for summary judgment on September 4, 2002. He based the motion on his belief that Dotson had failed to designate an expert witness and because Dotson had failed to provide any medical testimony whatsoever supporting her claims. Dotson’s response to the motion for summary judgment contained her designation of experts, but it still did not provide any medical testimony from those experts.

¶ 25. The case was then delayed because of Dr. Jackson’s bankruptcy. Dotson was granted partial relief from the automatic stay in 2004. Next, Dotson moved to have the circuit judge removed, which further prolonged the case. Dr. Jackson’s motion for summary judgment was re-noticed before the new circuit judge to be heard on June 5, 2006.

¶ 26. At the time of the hearing, Dotson had yet to file an expert witness affidavit to support her claim. She failed to file such affidavit until nine days following the hearing. Rule 56(c) of the Mississippi Rules of Civil Procedure states that “[t]he adverse party [to a motion for summary judgment] prior to the day of the hearing may serve opposing affidavits.” (Emphasis added). Clearly, the affidavit of Dr. Reiss, which was filed nine days after the hearing, was untimely under this rule.

¶ 27. Dotson did not request a continuance from the circuit court until the day of the hearing — nearly five years after the complaint was filed. Rule 56(f) allows the court to order a continuance to allow affidavits to be obtained if they were unavailable for some reason. M.R.C.P. 56(f). The circuit court never ruled on Dotson’s request for a continuance. However, because the circuit court did not strike the untimely filed affidavit, the circuit court, in effect, allowed the additional time requested by Dotson. Nevertheless, because there is no indication that the motion for summary judgment was granted because of the evident untimeliness of the affidavit, we now look to see whether the affidavit itself sufficiently met Dotson’s burden of proof.

b. Sufficiency of Dotson’s Expert Witness Affidavit

¶ 28. To present a prima facie case of medical negligence, Dotson had the burden to prove: (1) the requisite standard of care, (2) a breach of the standard of care, (3) a causal connection between the breach and the injury, and (4) the extent of her damages. McCaffrey v. Puckett, 784 So.2d 197, 206(¶ 33) (Miss.2001). In Erby v. North Mississippi Medical Center, 654 So.2d 495, 500 (Miss.1995), the supreme court held that “our general rule is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.”

¶ 29. Further, “Mississippi case law demands that in a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.” Sheffield v. Goodwin, 740 So.2d 854, 856(¶ 5) (Miss.1999) (internal quotation and citation omitted). The supreme court has defined a physician’s duty to exercise ordinary skill in the following manner:

Given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment, and options.

Starcher v. Byrne, 687 So.2d 737, 740 (Miss.1997) (citing Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993); Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1354 (Miss.1990)).

¶ 30. Again, we quote the relevant portions of Dr. Reiss’s affidavit to determine whether it sufficiently proved the elements of medical malpractice set forth above:

4. It is my opinion, to a reasonable degree of medical probability, that Dr. Paul Jackson breached the acceptable standard of care when, during his lapa-roscopic hysterectomy on Ms. Dotson, he cut her bladder. Even though Ms. Dotson underwent surgery to correct this error, it was still a breach of the standard of care for him to have cut her bladder in the first place, causing her injury.
5. The standard of care requires that the operating surgeon should anticipate possible bladder injury during the performance of a vaginal or abdominal hysterectomy, especially if the dissection is difficult depending on the pathological condition in the pelvis. A surgeon should take the time to properly examine a patient before he or she is brought to the operating room. A proper abdominal and physical examination will demonstrate that structures within the pelvis are non movable.
6. In the instant case, Dr. Jackson failed to conduct a proper examination of Ms. Dotson and failed to anticipate and prepare for the possible complication of cutting the bladder.
7. However, even if a urologist was available and made the proper repair, it is still my opinion that Dr. Jackson breached the standard of care by cutting the bladder.

(Emphasis added).

¶ 31. Dr. Reiss opined that Dr. Jackson breached the standard of care by cutting Dotson’s bladder during the hysterectomy, i.e., the mere existence of cut itself amounted to negligence. However, this opinion is contrary to Dr. Reiss’s opinion that a surgeon should anticipate possible bladder injury. He explicitly acknowledges that cutting the bladder is a possible and expected complication of this type of surgery.

¶ 32. The medical records in this case show that Dr. Jackson did, in fact, anticipate an inadvertent cystotomy (incision into the bladder). Dr. Jackson’s report of the operation states that “the bladder had been filled with a dilute Methylene blue solution which served as a marker for inadvertent cystotomy. Shortly after entering the peritoneum anteriorly, blue dye was seen to flow from a cystotomy in the bladder.” Thereafter, Dr. Curry, a urologist, was consulted to repair the cystoto-my.

¶ 33. Further, Dr. Reiss states that a proper exam of the abdominal and pelvic areas was not performed and that such exam would have shown the structures within the pelvis to be non moveable. However, he fails to explain how the exam done by Dr. Jackson was improper; nor does he state the requirements of a proper exam. This is again a conclusion contrary to the medical records stating that Dr. Jackson conducted a pelvic exam of Dotson before beginning her surgery that revealed a “freely mobile uterus.”

¶ 34. But more importantly, Dr. Reiss does not make the causal connection of Dr. Jackson’s failure to perform a proper abdominal exam with Dotson’s injury — the cutting of her bladder. Dr. Reiss does not state that, had Dr. Jackson performed the proper abdominal exam, Dr. Jackson would not have cut the bladder. Even if Dr. Jackson were to have performed this “proper” abdominal exam, it is clear from Dr. Reiss’s affidavit that Dr. Jackson would still be required to anticipate cutting the bladder.

¶ 35. Dr. Reiss’s affidavit in no way proves that Dr. Jackson breached the standard of care in this case. It simply concludes that Dr. Jackson breached the standard of care by cutting the bladder — a statement that is contrary to Dr. Reiss’s own opinion that cutting the bladder is an anticipated complication during this type of surgery and also contrary to the medical evidence presented in this case.

¶ 36. Accordingly, we find that the circuit judge properly found that Dotson failed to meet her burden of proof, through expert testimony, to demonstrate that Dr. Jackson was negligent. Because we find that the expert affidavit was both untimely filed and insufficient, Dr. Jackson’s motion for summary judgment was properly granted by the circuit court.

2. Whether the layman’s exception to medical testimony applies in this case such that summary judgment was improper.

¶ 37. Dotson also claims that even if she did not establish a prima facie case of medical negligence through her medical expert, summary judgment was nonetheless improper because the layman’s exception applies. Specifically, she states that it is within the common sense of the fact-finder that the bladder should not be cut during a hysterectomy.

¶ 38. It is true that there is a layman’s exception in medical malpractice cases. Erby, 654 So.2d at 500. The general rule that medical malpractice must be shown through expert medical testimony does not apply to “instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.” Id.

¶ 39. However, this argument was raised by Dotson for the first time on appeal. Because the issue of the layman’s exception was never presented to the circuit court, we need not consider it here. Jones v. Fluor Daniel Servs. Corp., 959 So.2d 1044, 1048(¶ 15) (Miss.2007) (citing Anglin v. Gulf Guar. Life Ins. Co., 956 So.2d 853, 864(¶ 26) (Miss.2007)). Even so, it is difficult to see how the layman’s exception could apply here when Dotson’s own medical expert testified via affidavit that cutting the bladder is a complication to be anticipated during a hysterectomy.

¶ 40. Accordingly, we find that this issue is without merit. We find no error on the part of the circuit court; therefore, the order granting summary judgment in favor of Dr. Jackson is affirmed.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., AND IRVING, J., NOT PARTICIPATING.