author: CARLSON, Presiding Justice,

text:
    Angelia PATTERSON, On Behalf of the Wrongful Death Beneficiaries and as Administratrix of the Estate of Atravius Coleman, Deceased v. Dr. Bob TIBBS, Dr. William McArthur and Bolivar County Medical Center.
    No. 2009-CA-01037-SCT.
    Supreme Court of Mississippi.
    March 17, 2011.
    Rehearing Denied May 19, 2011.

      George F. Hollowell, Jr., Greenville, attorney for appellant.
    L. Carl Hagwood, Mary Frances Stall-ings — England, Diane V. Pradat, Bradley K. Overcash, Kimberly Nelson Howland, Jackson, attorneys for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Atravius Coleman was born at 'Bolivar County Medical Center (BMC) on February-22, 2002, at 4:23 a.m. Atravius died less than one day later, on February 23, 2002, at 12:05 a.m. His mother, Angelia Patterson, brought a wrongful-death elainh against BMC, Dr. Bob Tibbs, and Dr. William McArthur (the defendants), claiming that they had caused Atravius’s death either through negligence or by breaching the standard of care. The defendants filed a motion to exclude Patterson’s expert witnesses on causation, claiming that their testimony was not reliable. After a two-day Daubert hearing in the Circuit Court for the Second Judicial District of Bolivar County, the trial judge granted the defendants’ motion and excluded the expert witnesses’ testimony on the predeath levels of Demerol in Atravius’s blood. The trial court subsequently granted summary judgment in favor of the defendants.

¶ 2. Patterson now appeals to this Court. We find that the trial court did not abuse its discretion in excluding the experts’ testimony and that the trial court did not err in granting summary judgment in favor of Dr. William McArthur. However, we are constrained to find that the trial court erred in granting summary judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center. Thus, we affirm in part and reverse in part the trial court’s judgment in favor of all defendants, and we remand this case for further proceedings relating to Patterson’s claims against Dr. Tibbs and Bolivar County Medical Center.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

•¶ 3. Angelia Patterson arrived at BMC on February 21, 2002, and was attended to by Dr. McArthur. She gave birth to a baby boy, Atravius Coleman, on February 22, 2002, at 4:23 a.m. Atravius appeared to be healthy at birth, receiving a nine-out-often APGAR score one minute after delivery and five minutes after delivery. Atra-vius was placed under the care of Dr. Tibbs after his birth, even though Dr. Mc-Arthur performed the circumcision on Atravius.

¶ 4. Atravius was taken for circumcision at 1:45 p.m. on February 22, 2002. Dr. McArthur performed the circumcision and stated in his affidavit that he did not give Atravius Demerol for pain relief. Also, according to Atravius’s medical records, no pain medication was administered for this procedure. A nurse noted that Atravius looked pale at 3:30 p.m. Dr. Tibbs was notified of Atravius’s condition and ordered an echocardiogram. The results of the test were “suspicious for hypoplastic left heart syndrome.” Plans were then made to transport Atravius to the University of Mississippi Medical Center Pediatric Department (UMC). Atravius died at BMC before the ambulance from UMC arrived.

¶ 5. The defendants claim that Atravius died as a result of hypoplastic left heart syndrome and that the condition is fatal without surgery. Patterson claims that Atravius died from an overdose of Demerol, which he either received from his mother before delivery or after his birth, likely during his circumcision. To support this claim, Patterson retained two expert-causation witnesses: Dr. Steven Shukan and Dr. Steven Hayne.

¶ 6. Dr. Shukan is a board-certified pediatrician. Dr. Shukan’s opinion is that Atravius received a lethal dose of Demerol (meperidine) — approximately 100 milliliters — around the same time as his circumcision. To form this opinion, Dr. Shukan used a process called backextrapolation. Dr. Shukan started with the amount of Demerol and normeperidine in the blood sample taken from Atravius after his death. Using the half-life of the drug and the post-death drug levels in Atravi-us’s blood sample, Dr. Shukan was able to calculate a predeath level of the drug. The half-life used is essential to the calculation. Because neonates metabolize drugs more slowly than adults, a different half-life must be used in calculations involving neonates.

¶ 7. Dr. Shukan used a half-life of three to three-and-one-half hours in his back-extrapolation calculation. Dr. Shukan testified in his deposition that he referred to his pharmacy textbooks, Nelson’s Textbook of Pediatrics, The Physicians’ Desk Reference, and WebMD (a website) in forming his opinion. He also stated that he used his professional knowledge of Demerol when forming his overall opinion that Atravius had died from a lethal dose of Demerol. Although Dr. Shukan testified that he had referred to these sources in forming his opinion, he did not state which source specified a half-life of three to three-and-one-half hours. However, he did testify that Demerol has a half-life of two to five hours in adults and that the half-life is a “little longer than the two hours in kids, most authorities would say in the neighborhood of slightly above three hours.” He did not testify as to what authorities he was relying upon when he stated that “most authorities” say the half-life of Demerol in a neonate is slightly above three hours.

¶ 8. Patterson also retained Dr. Steven Hayne as an expert-causation witness. Dr. Hayne, a pathologist, performed an autopsy on Atravius. Using the same back-extrapolation process, Dr. Hayne determined that Atravius likely had died from a lethal dose of Demerol that he had received from his mother prior to birth. Dr. Hayne used a half-life of four-and-one-half to five hours. He obtained this half-life by calling the director of the Mississippi State Crime Laboratory and a toxicologist employed at the lab.

¶ 9. The defendants moved to exclude the expert testimony of both Dr. Shukan and Dr. Hayne. A two-day Daubert hearing was held, and the trial judge ultimately excluded the testimony of Dr. Shukan and Dr. Hayne on Atravius’s predeath Demerol levels.

¶ 10. At the hearing, the depositions of Dr. Shukan and Dr. Hayne were admitted, and several other experts testified. Dr. Christopher Long, a forensic toxicologist, testified for the plaintiff. Dr. Long reviewed a number of articles on the half-life of Demerol in neonates and acknowledged that a wide range of half-lives is documented.

¶ 11. Dr. John Cleary, a board-certified pharmacotherapist, testified for the defense. Dr. Cleary testified that there are multiple articles on the half-life of Demerol in newborns and that the average half-life is approximately eleven hours. When asked if the half-life of three to three-and-one-half hours has a scientific basis, Dr. Cleary responded that “[i]t is scientifically and medically based in an adult. It does not apply to an infant within the first few days of life.”

¶ 12. Dr. John Joel Donaldson, a licensed physician, also testified for the defense. Dr. Donaldson testified that, contrary to Dr. Shukan’s testimony, he had never seen any research or literature that supported the use of a three to three-and-one-half-hour half-life in a newborn.

¶ 13. After the Daubert hearing, the trial court entered an order excluding the testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravi-us’s system. The trial judge noted that the half-lives used by Dr. Shukan and Dr. Hayne are of particular significance because the reliability of the doctors’ mathematical calculations depends on the correct half-life being used. The trial court also noted that it is generally accepted that the half-life of Demerol in an adult is approximately three hours, but that there is difficulty in “attempting to correlate the half-life of [Demerol] to an infant.” It is difficult to determine an exact half-life in newborns because the liver — which is the organ responsible for eliminating drugs from the body — is not fully developed and is not capable of working at its full capacity, which results in a longer half-life in newborns versus adults. The trial court further noted that there is minimal, and varied, scientific documentation on the half-life of Demerol in newborns, stating that “[i]t appears that the breadth of such ranges [is] limited only by the number of medical journals one reads.”

¶ 14. With regard to Dr. Shukan’s assertion that the half-life of Demerol in a newborn is three to three-and-one-half hours, the trial court stated that:

No evidence was presented explaining exactly how Dr. Shukan came to choose three to three and one-half hours as the half-life of meperidine to be used in his back extrapolation calculations. It seems to this court that arbitrarily choosing a half-life from the panoply of half-lives available when dealing with a neonate is tantamount to choosing a half-life by throwing darts at a medical dartboard. While one may occasionally hit the proper number, it is not a process that instills confidence in the result.

¶ 15. When discussing Dr. Hayne’s opinion that the half-life of Demerol in a newborn is four-and-one-half to five hours, the trial court noted in its order that Dr. Hayne received this number from personnel at the Mississippi Crime Laboratory and in a footnote, stated that “[c]ertainly there is nothing untoward in Dr. Hayne seeking additional input from another expert, a practice which appears not to be uncommon among academicians.” The trial court then stated that it had

the same reservations regarding the use of a half-life for meperidine in the range of 4.5 to 5 hours as it does when considering a half-life of 3 to 3.5 hours. To be clear, the court does not question the process of back extrapolation. Rather, the court’s reservations in this case grow from what the court finds to be a lack of scientific agreement and/or specificity as concerns the half-life of meperi-dine in a neonate.

¶ 16. The trial court concluded its order by finding that:

As concerns the opinions offered by Dr. Shukan and Dr. Hayne as to the pre-death levels or concentrations of meperi-dine or normeperidine in the body of this child, the court finds that such opinions are relevant and would assist the trier of fact. However, due to the limited scientific studies gauging the half-life of meperidine in the body of a neonate, this court is compelled to find that the opinions lack the necessary element of reliability in that it is not based upon sufficient data. This court finds, based upon the evidence presented and the scientific and/or medical literature offered describing the ranges of half-lives of meperidine and/or normeperidine in a neonate are so wide that pre-death levels and/or concentrations of such drug in a neonate cannot be determined with any reasonable degree of medical or scientific certainty by the process of back extrapolation.
For the reasons stated above, this court will disallow the introduction of any opinion from any expert attempting to assert a pre-death level and/or concentration of meperidine and/or normeperi-dine in the body of this child based upon any back extrapolation.

(Emphasis added in original.)

¶ 17. After the trial court excluded the expert testimony on the predeath levels of Demerol in Atravius’s system, it granted summary judgment in favor of all three defendants. The trial court stated it was “of the opinion that said motion should be granted because without the excluded testimony, Plaintiffs have no expert testimony to prove causation.... ” Patterson now appeals the trial court’s judgment to this Court.

DISCUSSION

¶ 18. Patterson presents two issues for this Court’s consideration: (1) whether the trial court erred in excluding the expert testimony of Dr. Shukan and Dr. Hayne; and (2) whether the trial court erred in granting summary judgment in favor of the defendants.

I. WHETHER THE TRIAL COURT ERRED IN EXCLUDING THE EXPERT TESTIMONY OF DR. SHUKAN AND DR. HAYNE.

A. Standard of Review

¶ 19. The standard of review for the admission or exclusion of expert testimony is abuse of discretion. Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 457 (Miss.2010) (citations omitted). This Court should find error in the trial court’s decision to exclude expert testimony only if the decision was arbitrary or clearly erroneous. Franklin Corp. v. Tedford, 18 So.3d 215, 237 (Miss.2009) (citing Troupe v. McAuley, 955 So.2d 848, 856 (Miss.2007)).

B. Mississippi Rule of Evidence 702 and Daubert

¶ 20. In addressing Daubert issues, our analysis must be guided by Rule 702, which addresses the admissibility of expert testimony:

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.

¶ 21. In DaubeH, the United States Supreme Court held that experts should be given wide latitude when offering opinions within their expertise. DaubeH, 509 U.S. at 592, 113 S.Ct. 2786. The DaubeH Court rejected the Frye standard, which required “general acceptance” of the theories offered by experts, and held that expert testimony must be relevant and reliable. Id. at 589, 113 S.Ct. 2786. DaubeH enumerated several factors which the trial courts may consider when determining if expert testimony is reliable: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; and (4) the general acceptance that the theory has garnered in the relevant expert com-raunity. Id. at 593-94, 113 S.Ct. 2786. These factors are nonexclusive, and their application depends on the nature of the issue, the expert’s expertise, and the subject of the testimony offered by the expert. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 37 (Miss.2003).

¶ 22. When determining whether expert testimony is admissible, our trial judges should act as gatekeepers and must determine whether the proposed testimony meets the requirements of Rule 702 and Daubert's relevance and reliability prongs. Evidence is relevant if it will assist the trier of fact. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. The offered testimony in today’s case is clearly relevant, and the defendants do not dispute its relevance. Because the offered testimony is relevant, our inquiry in today’s case will focus on whether the testimony was reliable.

C. Reliability

¶ 23. In his order excluding the expert testimony, the trial judge focused on the lack of consensus among a wide range of authorities on the half-life of Demerol in a newborn. He also, however, pointed out that Dr. Hayne and Dr. Shu-kan had failed to provide an authority that supports the half-lives used in their calculations. Patterson now argues that lack of consensus among authorities is not a valid reason for excluding expert testimony under Daubert.

¶ 24. In support of her argument, Patterson cites Tedford, 18 So.3d at 238, where this Court upheld the trial court’s admission of four expert witnesses in a workers’ compensation case. The plaintiffs in Tedford were exposed to a neuro-toxin while at work, and the expert witnesses testified to the effect the toxin had on the plaintiffs. Id. at 234-36. On appeal, the defendants argued that the trial court had erred in allowing the expert testimony because “none knew of the [neu-rotoxin] exposure level at which injury occurs in humans,” and “none knew of the exposure experienced by the ... plaintiffs.” Id. at 237. This Court noted that the impact of the toxin on humans is a new field of study and that ethical constraints have limited scientists’ studies in this field. Id. Ultimately, this Court found that “the absence of data on the exact exposure level at which humans suffer neurologic injury ought not preclude the Plaintiffs’ experts from testifying.” Id. (emphasis added).

¶ 25. We find Tedford to be distinguishable from today’s case. In Tedford, there was an absence of data relating to the subject of the experts’ opinions. Id. In today’s case there is not an absence of data on the half-life of Demerol in newborns; rather, the defendants presented published data on the subject which contradicts the plaintiffs experts. The shortage of data in this case is an absence of data supporting the half-lives used by the plaintiffs experts.

¶26. In Watts v. Radiator Specialty Company, 990 So.2d 143, 150 (Miss.2008), this Court held that expert testimony may be excluded as scientifically unreliable when there is a lack of scientific data supporting the expert’s opinion. In Watts, the subject of the expert testimony was the focus of several different studies on which the expert had relied in forming his opinion. Id. at 147. However, none of the studies “provide[d] a basis for the conclusion” that the expert had made. Id. The dissenting opinion in Watts argued that expert opinions need not be supported unequivocally by published studies. Id. at 154. The majority responded by stating that:

While certainly there is no requirement that an expert’s opinion be ‘generally accepted in the scientific community1 as under the Frye standard, it is a factor for trial courts to consider. This factor was properly considered by the trial court. When this Court adopted the Daubert standard, it did not ‘lower the bar’ for admittance of expert testimony. We simply recognized that our learned trial judges are in the best position to make the determination. We made them the gatekeepers of expert testimony, not the doormen.

Id. at 150 (emphasis added).

¶ 27. In Poole v. Avara, 908 So.2d 716, 724 (Miss.2005), this Court also held that consensus among peer-reviewed materials is not a requirement of admissibility. Citing Daubert, this Court in Poole stated that “[Requiring that the subject of expert testimony be known to a certainty is not necessary either, however, because, as the Daubert Court pointed out, ‘there are no certainties in science.’ ” Id. at 723-24 (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786).

¶ 28. To counter Patterson’s argument that the trial court erred in excluding the expert testimony, the defendants cite this Court’s recent holding in Hill v. Mills, 26 So.3d 322, 331 (Miss.2010), that “when an expert ... renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.”

¶ 29. This Court in Hill distinguished Poole, stating that:

We do not today retreat in any respect from our holding in Poole. We find it completely distinguishable. Unlike the present case, the challenged opinion at issue in Poole had not been the subject of peer-reviewed articles. Consequently, the defendant in Poole did not challenge the expert’s opinions by producing peer-reviewed articles or authorities which contradicted the opinions. Thus, Poole stands for the proposition that there exists no per se requirement that an expert’s opinion be supported by peer-reviewed articles.
In contrast to Poole, the subject matter of the expert opinion in the case before us today has been extensively explored and documented, and one hundred percent of the documentation presented to the trial judge contradicts Dr. Fuselier’s opinion. Thus, we cannot say that the trial judge abused his discretion in finding that, under Rule 702, Dr. Fuselier’s opinions regarding available interventions to prolong Hill’s pregnancy were unreliable and inadmissible.
We restate for emphasis that, when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion wider attack should provide at least a minimal defense supporiing the reliability of the opinion. The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert’s opinion reliable. Were we automatically to allow introduction of expert opinions which are based upon nothing more than personal experience in cases where those opinions are contradicted in the scientific literature, we would effectively render Rule 702 and Daubert a nullity.

Id. at 332-33 (citations omitted) (emphasis added).

¶ 30. We find that today’s case is analogous to Hill. The defendants presented peer-reviewed articles contradicting the expert opinions offered by Patterson, and she failed to provide evidence that the offered opinions have some degree of scientific acceptance and support. The defendants presented one peer-reviewed article stating that the half-life of Demerol in neonates is approximately 10.7 hours, another article stating that the half-life varies from 6.5 to 39 hours in newborns, and another stating that the average half-life is 13.24 hours. Patterson did not present scientific literature in support of Dr. Shu-kan’s and Dr. Hayne’s opinions. While Dr. Shukan did state that he referred to medical texts and websites in forming his overall opinion, he did not provide a source for the half-life he used in his calculation. Dr. Hayne testified that he obtained the half-life used in his calculation — four and one half to five hours — from Mississippi Crime Laboratory personnel.

¶ 31. Patterson is correct in her assertion that lack of consensus among sources does not automatically render an expert opinion inadmissible. An offered opinion that has been contradicted by published and peer-reviewed data, however, must be supported by some evidence of support and acceptance in the scientific community. Patterson has failed to meet this standard. Accordingly, the trial court did not abuse its discretion in excluding the expert witnesses’ testimony on the pre-death levels of Demerol in Atravius’s system.

D. Credibility Versus Reliability

¶ 32. In the alternative, Patterson argues that today’s issue is one of credibility, which is proper for the trier of fact to determine and not the trial court. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1239 (Miss.2007). As part of its ga-tekeeping role under Rule 702, the trial court is to determine whether expert testimony is reliable. Id. at 1241 (citing Miss. R. Evid. 702 cmt.). “Neither the rule nor its comment mentions any requirement that statements relied upon by an expert using proper, reliable, methodology also be found credible.” Id.

¶ 33. In Treasure Bay, the expert witness relied on a statement made by a drunk driver in forming his opinion that the driver was visibly intoxicated when served intoxicating beverages by a casino. Id. at 1237-38. When arguing that summary judgment was improper, the defendants claimed that the trial court should not have relied on the expert’s opinion “because it was partially based upon a statement by [the drunk driver], which, according to the defendants, lacks credibility.” Id. at 1240. Specifically, the defendants argued that the driver’s statement was untruthful. Id. In response, this Court held that:

Indeed, experts in many fields, including medicine, accident reconstruction and forensic pathology, frequently rely on histories provided by patients and witnesses. Thus, it would be unsettling for this Court abruptly to reject all expert opinion which relies on a historical account of the facts. Of course, whether or not the facts relied upon are credible is a matter for cross-examination and collateral attack at trial.

Id.

¶ 34. Patterson argues that, even if the trial court found the half-lives used by Dr. Shukan and Dr. Hayne to be incorrect, according to this Court’s reasoning in Treasure Bay, it was error to exclude the testimony. Patterson supports this argument by claiming that the half-life used in a back-extrapolation calculation is an issue of credibility, which may be attacked through cross-examination or contradicting experts.

¶ 35. This Court, however, has held that “the sufficiency of foundational facts or evidence on which to base an opinion is a question of law.” Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 60 (Miss.2004) (citations omitted) (emphasis added). As part of the trial court’s gatekeeping role, it must “examine the reliability” of the expert’s opinion and must determine whether the facts “afford a ‘reasonably accurate basis’ for the expert’s conclusion.” Id. (citations omitted).

¶ 36. We find that the question of whether Dr. Hayne and Dr. Shukan used the correct half-life in their calculations is an issue of reliability, not credibility. The Court in Treasure Bay referred to a “historical account of ... facts” when finding that statements relied upon by experts need not be judged on their credibility by the trial court in determining whether to accept an expert’s opinion. Treasure Bay, 967 So.2d at 1240. The experts in today’s case, however, do not rely on a factual statement made by another doctor or a patient. The experts must rely on scientific data to form their opinions. Under Rule 702, these opinions must be based on “sufficient facts or data.” Using a correct half-life is essential to performing a correct back-extrapolation calculation. Without the correct data, the experts’ calculations will not be based on sufficient data. This is an issue of law which the trial court must determine, not the trier of fact. See Janssen, 878 So.2d at 60; Int’l Paper Co. v. Townsend, 961 So.2d 741, 758 (Miss.Ct.App.2007) (citations omitted) (“The sufficiency of foundational facts or evidence on which an expert bases his opinion is a question of law which must be determined by the trial judge.”).

¶ 37. In sum, we find that the trial court did not abuse its discretion in excluding the testimony of Dr. Shukan and Dr. Hayne. Patterson failed to present evidence supporting her experts’ testimony when the defendants challenged the reliability of the plaintiffs experts with published data. This lack of support is an issue of reliability, not credibility.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

¶ 38. The trial court granted summary judgment in favor of all three defendants after it excluded the testimony of Dr. Shu-kan and Dr. Hayne. The trial court stated that summary judgment was proper because Patterson could not show causation without the excluded testimony. Patterson now argues that she can show causation without the excluded testimony and that summary judgment was improper.

A. Procedural Background

¶ 39. Because of the unusual procedural posture of this case, a brief discussion of the procedural facts relating to this issue is necessary. The trial court entered its order excluding the testimony of Dr. Shu-kan and Dr. Hayne on January 14, 2009. It is important to note that the order excluded only the testimony that related to the predeath levels of Demerol in Atravi-us’s system. The order did not exclude the testimony as a whole. On June 11, 2009, the trial court granted summary judgment in favor of all three defendants. The judgment stated that the defendants had made an ore tenus motion for summary judgment. There is no record of the motion, or Patterson’s response, in the transcript.

¶ 40. At oral argument, counsel for Dr. Tibbs stated that he had drafted the judgment and submitted it to the trial court. Counsel admitted that the defendants did not file a motion for summary judgment and that a summary judgment hearing was never held. Patterson’s counsel argued in his brief and at oral argument that Patterson could show causation without the excluded Demerol testimony.

B. Relevant Law

¶ 41. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a trial court’s grant of summary judgment. Chisolm v. Miss. Dep’t. of Transp., 942 So.2d 136, 140 (Miss.2006) (citing Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006)). This Court examines all evidence, including pleadings, answers to interrogatories, depositions, and affidavits. Id. (citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)). The evidence must be viewed in the light most favorable to the nonmoving party. Id. (citing Hataway v. Nicholls, 893 So.2d 1054, 1057 (Miss.2005)). Summary judgment is appropriate when the nonmoving party has failed sufficiently to establish an essential element of that party’s claim. Buckel v. Chaney, 47 So.3d 148, 153 (Miss.2010) (citations omitted). The essential elements of a medical-malpractice claim are:

(1) the existence of a duty on the part of a physician to conform to the specific standard of conduct, (2) the applicable standard of care, (3) the failure to perform to that standard, (4) that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and (5) that damages to the plaintiff resulted.

Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss.2009) (citing Earner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992)).

¶ 42. The foregoing standard is even more important when considering the unusual procedural history of this case. We are without the benefit of parts of the record commonly used by this Court to guide our analysis of summary judgment issues: the defendants’ motion and supporting documents, the plaintiffs response, or a hearing transcript. Thus, in accord with our standard, we examined all the evidentiary matters in this case in the light most favorable to the nonmoving party. After a careful examination of the record, we find that the trial court did not err in granting summary judgment in favor of Dr. McArthur. We do find, however, that the trial court erred in granting summary judgment in favor of BMC and Dr. Tibbs. Because the causation testimony relating to Dr. McArthur is distinct from the testimony relating to Dr. Tibbs and BMC, wé address Dr. McArthur first. Then, because of the similar analysis used, we address Dr. Tibbs and BMC together.

C. Dr. McArthur

¶ 43. Dr. McArthur delivered Atravius and performed his circumcision. The causation testimony relating to Dr. McArthur focused on Dr. Hayne’s theory that Angelia Patterson had received an overdose of Demerol during labor and Dr. Shukan’s testimony that Atravius had received an overdose of Demerol during his circumcision. Dr. Shukan also testified that Dr. McArthur had breached the standard of care by failing to include a surgical note documenting whether he had given Atravius Demerol during the circumcision. Other than the testimony relating to the Demerol theories, there is no evidence of causation relating to Dr. McArthur in the record. There is no need to discuss the other elements of medical malpractice because Patterson has failed to establish the essential element of causation. See Estate of Northrop, 9 So.3d at 384; Buckel, 47 So.3d at 153. Accordingly, the trial judge did not err in granting summary judgment in favor of Dr. McArthur.

D. Dr. Tibbs and BMC

¶44. At first blush, one might reasonably assume that a grant of summary judgment in favor of Dr. Tibbs and BMC would be appropriate. The bulk of the testimony in this case involved the Demerol theories propounded by Dr. Hayne and Dr. Shukan. Without this testimony, one would naturally think that Patterson cannot prove causation. Upon close examination of the record, however, this Court finds testimony which tends to show causation on the part of Dr. Tibbs and BMC.

¶ 45. During his deposition testimony, Dr. Shukan essentially discussed the time-line of events leading to Atravius’s death, including the standards of care breached and whether those breaches caused Atravi-us’s death. The following are excerpts of Dr. Shukan’s deposition:

Dr. Shukan: At 6 p.m. an IV was started, and this is where I think there was a breakdown in what is considered good nursing abilities and good nursing care. That IV was ordered at 5 p.m. and wasn’t started in this child until 6 p.m. Counsel: Is that a deviation from the standard of care, in your opinion?
Dr. Shukan: I certainly would agree. Counsel: That’s my question. Is it—
Dr. Shukan: I certainly would agree that it is a deviation — were a deviation from good nursing care. Ordered at 5 in a child who has a significant problem, started at 6. This is not medicine they had to go out and get. This is IV fluids that are usually available to most nurses.
Counsel for BMC: Objection to the statement that this is medicine they did not have to go out and get.
Counsel: All right. Do you have an opinion whether or not, based upon reasonable medical probability, this caused or contributed to the death of Atravius Coleman?
Dr. Shukan: I certainly think that there’s a possibility and probability here that it could have contributed.
Counsel: Okay. All right. Go ahead.
Dr. Shukan: Okay. At 7:30 a Dopamine drip was started. Now, Dopamine is a drug that helps to increase blood pressure. That’s its sole usage. That is a full four hours after this child showed significant problems in respiration and significant problems in oxygenation, ability to get oxygen to his blood. At 5:30 he showed a very significant decrease in blood pressure, and we didn’t see this started for another two hours after that, the Dopamine. By that time—
Counsel: I’m sorry.
Dr. Shukan: Uh-huh.
Counsel: So let me ask you this: Based upon reasonable medical probability, is that a deviation in the standard of care to not start the Dopamine until 7:30? Dr. Shukan: I would think so. This child needed Dopamine before.
Counsel: All right. Who do you feel that deviated from the standard of care—
Dr. Shukan: I would think when the doctor in charge looks at 5:30 at a blood pressure of 15 diastolic, that he would be the one that should have ordered that with rapidity. That should have been started much quicker.
Counsel: All right. And your talking about what doctor?
Dr. Shukan: Dr. Tibbs.
Counsel: All right. And did this in any way cause or contribute to the death of Atravius Coleman?
Counsel for Dr. Tibbs: Object to the form of the question.
Counsel: You can answer it.
Counsel: Based upon reasonable medical probability.
Dr. Shukan: In my opinion, this very well could have aided in the death— contributed to the death of Atravius Coleman.
Counsel: All right. Go ahead.
Dr. Shukan: Critical in this chart are the next three entries. At 9:45, some six hours and — six and a quarter hours after the onset of this horrible event, he was noted to have a diastolic pressure of 13. This child is crashing. He is now officially in shock. 9:45. The only thing I can find documented here is that another blood gas was drawn one hour later. There are no changes in TV's; there are no changes in medications given; one hour later further evidence of crashing. This child now had — I’m sorry — 9:45 he had 19 diastolic pressure, low. Here’s 13—
Counsel: What time is that?
Dr. Shukan: That would be at 10:45. A whole hour went by and this child had nothing. This — and also, a blood gas was done back at 9:45 that showed a Ph of 7.22 so our acidosis is getting worse, and the critical agent here is a bicarbonate of 7.1. The normal bicarbonate being in the 26, 28 range. This means the child has used up all the ability to buffer the acid, and there’s virtually no more ability — because bicarb is a base and buffers acid. It’s almost gone. This child now has severe metabolic acidosis, and it’s predictable at this point, you’re going to have trouble. Very predictable. He needed bicarb.
Counsel: All right. Based upon reasonable medical probability, at 9:45 p.m. was there a deviation from the standard of care, and if so, by whom was there a deviation?
Dr. Shukan: Well, there’s no question in my mind that bicarb should have been added here. This situation should have been also fraught with the medicines that we’ll see that were given an hour later, and that would be Dr. Tibbs who should have been there, should have been in the nursery, and we’ll find out in a moment that he wasn’t and should have been in charge here trying to save this child’s life.
Counsel: In your opinion, was that a deviation of the standard of care?
Dr. Shukan: Yes, sir.
Counsel: By Dr. Tibbs?
Dr. Shukan: Yes.
Counsel: Did that cause or contribute to the death of Atravius Coleman?
Dr. Shukan: I would think it contributed very possibly, to the death, yes.
Counsel: All right.
Dr. Shukan: Very probably to the death.
Counsel: Okay. Now, what about the nurses at 9:45? Do you have any deviation from the standard of care as it pertains to the nurses at Bolivar Medical Center at that time?
Dr. Shukan: I certainly do.
Counsel: All right. What deviations did they have at that time?
Dr. Shukan: Okay. As you note at 9:45, I am describing a situation that’s terminal shock. If this isn’t taken care of immediately, this child has no hope. And no phone call was made to Dr. Tibbs until one hour and twenty minutes later. Clearly documented on the chart that this child at this point, the point that the nurse called Dr. Tibbs, the child was unresponsive to deep-pain stimuli, he had a P02 of 92. Dr. Tibbs, who was in the lounge, in the doctor’s lounge, was called. One hour and twenty minutes in shock. There is no increase in fluids; there was no antishock medicine; those will be enumerated down here, epinephrine, Atropine. These are all medicines used in shock, not an hour and 20 minutes after shock has started. So there’s a big deviation here.
Counsel: By whom?
Dr. Shukan: Well, no nurse — the nurse to begin with for not making a phone call, not recognizing this as an agonal or painful, terminal end result — situation rather, and not calling the doctor for 1 hour and 20 minutes. And number two, I believe that Dr. Tibbs, being an intensive care pediatrician involved in this, should have known that this child is this sick. I can’t go to the lounge. I need to be here. He was obviously out of the nursery for at least an hour and twenty minutes here. That’s not what you do when you have a child who’s in metabolic acidosis, and it’s not getting better.
Counsel: All right. As far as Dr. Tibbs is concerned, based upon reasonable medical probability, was there a deviation?
Dr. Shukan: Yes.
Counsel: Have you explained it?
Dr. Shukan: I have explained it.
Counsel: All right. Did this deviation cause or contribute to the death of Atra-vius Coleman, and base that upon reasonable medical probability.
Dr. Shukan: I would think the probability at this point was that the fact that he wasn’t cared for correctly, at least in this time frame, lead to his death 45 minutes later.
Counsel: Okay. Now, do you have any— was there any deviations from the standard of care at 11:05 by the nurses of Bolivar Medical Center?
Dr. Shukan: Yes, the standard — the deviation from normal care. In fact, they should have called him 1 hour and 20 minutes earlier, in my opinion—
Counsel: Okay.
Dr. Shukan: — and we may have saved his life.
Counsel: All right. So, is that based upon l'easonable medical probability, that deviation you just made reference to?
Dr. Shukan: Certainly.
Counsel: Did that, in your opinion, based upon reasonable medical probability, cause or contribute to the death of Atravius Coleman?
Dr. Shukan: I would think that it contributed to the demise 45 minutes later of this child, yes.

¶ 46. Dr. Shukan also submitted an affidavit in which he stated that, regardless of the cause of Atravius’s condition, Dr. Tibbs should have treated his condition more aggressively. Dr. Shukan stated:

Dr. Tibbs should have recognized that the combination of metabolic acidosis and depressed respirations are not part of hypoplastic left ventricular syndrome. He should have treated the metabolic acidosis more aggressively. Regardless of the cause, the metabolic acidosis must be treated more aggressively and certainly Dr. Tibbs should have used life saving vasoactive medications earlier instead of saving them for the last few minutes of the child’s life.

¶ 47. Although one may argue that the foregoing testimony was predicated on the assumption that Atravius died of a Demerol overdose, we must keep in mind that the cause of Atravius’s death is an issue for the trier of fact to determine. See Worthy v. McNair, 37 So.3d 609, 620 (Miss.2010) (quoting Causey v. Sanders, 998 So.2d 393, 403 (Miss.2009)). The defendants argue that Atravius died of hypoplastic left heart syndrome. And although Patterson has argued that Atravius died of as a result of a Demerol overdose, the testimony above focused on the treatment that Atravius received after his condition began to deteriorate for whatever reason. Dr. Shukan was of the opinion that, regardless of the cause of Atravius’s condition, Atravius should have received different treatment in the hours before his death. When viewing the testimony above in the light most favorable to Patterson, we find that genuine issues of material fact exist concerning whether BMC and Dr. Tibbs caused Atra-vius’s death or failed to prevent it. See Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995) (quoting Kelley v. Frederic, 573 So.2d 1385, 1389 (Miss.1990)) (“There is no magical form to which a plaintiffs supporting expert opinion must conform, so long as its import is apparent.”).

¶48. We also find that Patterson has presented sufficient evidence to withstand summary judgment concerning the other essential elements of a medical-malpractice claim against Dr. Tibbs and BMC. Dr. Tibbs and BMC had a duty to meet the following national standard of care:

Given the circumstances of each patient, each care giver has the duty to use his or her knowledge and treat, through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, confidence, and prudence as are practiced by minimally competent care givers 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.

Jeffrey Jackson & Mary Miller, 6 Encyclopedia of Miss. Law § 58:5 (Miss. Practice Series 2001) (citing Starcher v. Byrne, 687 So.2d 737 (Miss.1997); Toche v. Killebrew, 734 So.2d 276 (Miss.1999); Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346 (Miss.1990)). Dr. Shukan testified in his deposition to the specific standards that the nurses and Dr. Tibbs should have met while treating Atravius. Dr. Shukan also testified that the nurses and Dr. Tibbs failed to meet some of these standards. Finally, Patterson suffered various damages due to Atravius’s death.

¶ 49. When viewing all of the evidence in the light most favorable to Patterson, we find that a genuine issue of material fact exists concerning Patterson’s claims against Dr. Tibbs and BMC. Accordingly, we find that the trial court erred in granting summary judgment in favor of Dr. Tibbs and BMC.

CONCLUSION

¶ 50. The trial court did not commit reversible error in excluding the expert testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravi-us’s system. The defendants contradicted the experts’ testimony with published, peer-reviewed data, and Patterson failed to respond with evidence showing acceptance and support in the scientific community of the experts’ theories. Thus, the trial court’s decision to exclude the testimony was not arbitrary or clearly erroneous. The trial court properly granted summary judgment in favor of Dr. McArthur. Without the excluded Demerol testimony, Patterson could not show that Dr. McArthur had caused any injury.

¶ 51. On the other hand, the trial court did err in granting summary judgment in favor of Dr. Tibbs and BMC. Even without the excluded Demerol testimony, evidence in the record supports Patterson’s claims against Dr. Tibbs and BMC.

¶ 52. For these reasons, we affirm the trial court’s judgment in favor of Dr. William McArthur; however, we reverse the trial court’s judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center, and we remand this case to the Circuit Court for the Second Judicial District of Bolivar County for further proceedings consistent with this opinion.

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

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

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

      . APGAR is an acronym for Activity, Pulse, Grimace, Appearance, and Respiration. It measures the status of these conditions and is usually given immediately following birth and a second time five minutes later. A score of seven or above is indicative of a healthy newborn.

      . 0.17 mcg/ml of Demerol and 0.12 mcg/ml of normeperidine were found in the sample. The results of the sample are undisputed. Normeperidine is a byproduct of Demerol and occurs in the body after metabolism of Demerol. Demerol is a trade name for mep-eridine.

      . The half-life of a drug is the time required for the activity of a drug taken into the body to lose one half its initial effectiveness.

      . It is undisputed that Angelia Patterson received two doses of Demerol during her labor. The amount, however, is disputed. Patterson claims she received two 100-ml doses, which is more than the recommended amount. The defendants claim that Patterson received two 50-ml doses, which is a generally accepted therapeutic amount.

      . The defendants presented the following sources: Pharmacokinetics and Pharmacody-namics of Intravenous Meperidine in Neonates and Infants reports that the half-life of Demerol in babies less than one week old ranges from 4.9 to 16.8 hours, averaging at 10.7 hours. A half-life of 3.3 hours was reported in one preterm baby. Marja-Leena Pokela et al., Pharmacokinetics and Phannacodynamics of Intravenous Meperidine in Neonates and Infants, 52 Clinical Pharmacology and Therapeutics 345 (Oct. 1992). Disposition of Meperi-dine and Nonneperidine Following Multiple Doses During Labor reports that the half-life can range from 11.36 to 17.33 hours, averaging at 13.24 hours. Betty R. Kuhnert et al., Disposition of Meperidine and Nonneperidine Following Multiple Doses During Labor, 151 American Journal of Obstetrics and Gynecology 414 (Feb. 1985). Drug Therapy in Infants: Pharmacologic Principles and Clinical Experience reports that the half-life of Demerol in newborns can range from 6.5 to 39 hours. This source also states that the half-life in infants three to eighteen months is 2.3 hours. Robert J. Roberts, Drug Therapy in Infants: Pharmacologic Principles and of age Clinical Experience 302 (W.B. Saunders Co. 1984).

      .The trial judge gave the following explanation of half-lives:
      [I]n the context of drugs and medications, the term "half-life” refers to the amount of time required for half the dosage of a particular drug to be metabolized by the body. For example, if a healthy adult is given 100 milligrams of a particular drug and the half-life of that drug is ten hours, then after ten hours one would expect to find only 50 milligrams of that drug remaining active in the body. In another ten hours, there would only be 25 milligrams of that drug remaining active in the body. In another ten hours, only 12.5 milligrams, and so on.

      . The trial court's order states that the defendants made an ore tenus motion for summary judgment. There is no record of the motion in the transcript.

      . Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923).

      . The defendants argued in their briefs and at oral argument that Patterson had waived her ability to appeal the entry of summary judgment because she did not object to it at the trial-court level. Because the record does not contain a motion for summary judgment, we find that this argument is without merit. One cannot respond, or object, to a motion that does not exist.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Richard F. SCRUGGS and SLF, Inc. v. Derek A. WYATT.
    No. 2010-CA-00122-SCT.
    Supreme Court of Mississippi.
    March 31, 2011.

      J. Cal Mayo, Jr., Paul Bowie Watkins, Jr., Pope Shannon Mallette, Oxford, attorneys for appellants.
    Michael D. Simmons, Donna Marie Mee-han, Jackson, attorneys for appellee.
   RANDOLPH, Justice,

for the Court:

¶ 1. In December 2006, Derek A. Wyatt entered into an unwritten employment agreement with Nutt & McAlister, PLLC. Nutt & McAlister was a member of the Katrina Joint Venture (which also included the Scruggs Law Firm, PA ), a joint venture governed by the “In Re: Katrina Joint Venture Agreement” (“Katrina JVA”) and created to bring lawsuits on behalf of those “denied insurance coverage for property damage arising out of Hurricane Katrina.” The Katrina JVA included an arbitration provision, which stated that “[a]ny dispute arising under or relating to the terms of this agreement shall be resolved by mandatory binding arbitration .... ” (Emphasis in original.)

¶ 2. In April 2008, all Katrina Joint Venture attorneys and associates were disqualified from Mississippi federal court cases against State Farm Insurance Company in which they were involved, based upon payments to material witnesses in hurricane-damage claims which were likely to become the subject of litigation. Following that disqualification, Nutt & McAl-ister, despite Wyatt’s protest, withdrew from the Katrina Joint Venture and relinquished its interest in all cases related thereto. Concurrently, Wyatt was engaged in a fee dispute with Nutt & McAlis-ter regarding his claim to a ten-percent interest in Nutt & McAlister’s share of Katrina Joint Venture fees.

¶ 3. Wyatt’s First Amended Complaint (“Complaint”) was filed in the Circuit Court of Lafayette County, Mississippi, in June 2009, against Scruggs and SLF, Inc. (“Scruggs Defendants”), et al. In the Complaint, Wyatt asserted that he is a “fee sharing participant” and a “fee sharing attorney” in the Katrina Joint Venture; that he has a “fee-sharing interest in the Katrina Joint Venture”; and that the defendants have a “fee sharing relationship” with him. Wyatt further maintained that his employment with Nutt & McAlister was within the scope of the Katrina Joint Venture’s business such that, as co-ventur-ers, the Scruggs Defendants were “jointly and severally liable with Nutt & McAlister for its breach of fiduciary duty and breach of its fee-sharing agreement with Wyatt.”

¶ 4. In response, the Scruggs Defendants filed a “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration,” asserting that all of Wyatt’s claims against them related to “his alleged entitlement to fees collected in the course of the [Katrina Joint] [Venture.” As such, the Scruggs Defendants maintained that such claims were within the “broad” scope of the Katrina JVA’s “mandatory binding arbitration” provision. Following hearing, the circuit court found the arbitration provision “broad enough in scope to cover the instant controversy,” yet overruled the Scruggs Defendants’ “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration.” The circuit court reasoned that “there is no agreement between [Wyatt] and the [Scruggs Defendants] to arbitrate since [Wyatt] did not sign the [Katrina JVA] nor was his particular involvement foreseeable as a [third-]party beneficiary.” From that ruling, the Scruggs Defendants timely filed their “Notice of Appeal.”

FACTS

¶ 5. On November 8, 2005, the Scruggs Law Firm; Barrett Law Office, PA; Nutt & McAlister; John G. Jones of Jones, Funderburg, Sessums & Peterson, PLLC (“Jones Firm”); and Dewitt “Sparky” Lovelace of the Lovelace Law Firm, PA, entered into the Katrina JVA. The Katrina JVA provided that “[t]his agreement constitutes the sole and only agreement of the members hereto and supersedes any prior understandings, written or oral agreements between the members of this venture.” (Emphasis added.) The Katrina JVA stated that the role of the Scruggs Law Firm was as “[l]ead counsel,” while the role of Nutt & McAlister was “[f]und-ing;[] client relations.” As to the “Division of Attorneys’ Fees,” the Katrina JVA provided that “[a]ll fees or compensation received by any joint venturer and anyone associated by them shall be timely paid in full without reduction to the joint venture and divided as provided in this agreement.” Notably, the Katrina JVA also included an arbitration provision, which stated that u[a]ny dispute arising under or relating to the terns of this agreement shall be resolved by mandatory binding arbitration .... ” (Emphasis added.)

¶ 6. According to Wyatt’s Complaint, when the Katrina JVA was signed, he was “employed as a salaried associate at the Barrett Law Office.... ” Wyatt claimed that “[b]y mid-2006,” he was advised by “Barrett’s senior partner ... to ... devote the majority if not all of his time to the Katrina [Joint] Venture,” and that in the fall of 2006, Nutt & McAlister requested that he come to work for their firm. Before beginning that employment on December 15, 2006, Wyatt allegedly entered into an unwritten employment agreement with Nutt & McAlister. According to the Complaint, Wyatt was hired for a “nominal salary of $100,000,” along with “a fee sharing agreement that allocated to [him] a 10% fee sharing interest in Nutt & McAlister’s [Katrina Joint] Venture fees.... ” Conversely, Nutt & McAlister claimed that Wyatt was an “at-will employee” who “was paid an annual salary of $100,000, later increased to $150,000, and a bonus calculated on the basis of 10% of the net fees that [Nutt & McAlister] received from cases on which Wyatt provided substantial services to firm clients.” (Emphasis added.)

¶ 7. On January 23, 2007, the Katrina Joint Venture publicly announced a $106.8 million settlement with State Farm, although Wyatt had been instructed to “stand down” from taking depositions in that litigation as early as January 5, 2007, three weeks after his employment began. Wyatt’s Complaint provided that the Katrina Joint Venture’s attorneys fees from that settlement “were $26.7 million.” According to Wyatt, he was entitled to an estimated $823,770.12 share of that settlement, which was not paid by Nutt <& McAl-ister. Instead, he was given only a $100,000 bonus for his three weeks of service. By contrast, Nutt & McAlister maintained that Wyatt “was clearly and unequivocally informed ... that he would not receive a bonus in connection with the State Farm ... settlement^]” but nonetheless Wyatt was “gratuitously paid” the $100,000 bonus. Wyatt further averred that “additional settlements were [subsequently] made, distributing $75.4 million in policy benefits to homeowners who had retained the [Katrina Joint] Venture[,]” of which he alleged that he was not paid his claimed share. Ultimately, Wyatt maintained that Nutt & McAlister had failed to pay “his 10% share of its Katrina [Joint Venture] fees[,]” in “breach of [his] promised fee share....”

¶ 8. In March 2007, the Jones Firm filed an amended complaint “asserting] claims against the co-venturers, and [Scruggs] and Don Barrett individually....” Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So.3d 363, 365-66 (Miss.2009). The defendants in that action filed a motion to stay the proceedings and compel arbitration pursuant to the Katrina JVA. See id. at 366. Thereafter, Scruggs was federally indicted for his involvement in “a conspiracy to attempt to influence [Circuit Court Judge Henry L. Lackey] to grant the motion to compel arbitration by offering to pay Judge Lackey $40,000 in exchange for a favorable order.” Id. at 366. On March 14, 2008, Scruggs “pleaded guilty to conspiracy to commit bribery of an elected state official....” Id. at 367-68.

¶ 9. Subsequently, all Katrina Joint Venture attorneys and associates who had worked on any of the Katrina Joint Venture’s Mississippi federal court cases against State Farm were disqualified therefrom. According to Wyatt’s Complaint:

[w]ithin days of the disqualification, [David H.] Nutt announced on behalf of Nutt & McAlister that the firm was withdrawing from the Katrina [Joint] Venture, and relinquishing all interest in the [Katrina Joint] Venture’s remaining Katrina cases.... [0]ver [Wyatt’s] voiced objection, Nutt instructed his private counsel to transfer 685 remaining Katrina cases plus $629,682.00 in cash and annuities to two former [Katrina Joint] Venture partners, for no monetary consideration.

¶ 10. On June 18, 2009, Wyatt filed the Complaint at issue, naming the Scruggs Defendants; David H. Nutt, Mary Krichb-aum McAlister, Nutt & McAlister, David Nutt, P.A., David Nutt & Associates, PC (collectively, “Nutt Defendants”); and John/Jane Does 1-25 as defendants. The “Introduction” to the Complaint began by stating that “[f]rom 2006-2008, [Wyatt] was employed as an attorney in a litigation joint venture[] formed by five law firms to file suit for Coastal homeowners against insurance companies refusing to pay Hurricane Katrina claims.... ” Wyatt’s “Claims for Relief’ included the following:

(1) Pattern and Practice Fraud (Fee-Stripping)
—Defendants used fee-stripping techniques “to defraud Wyatt” of the fees to which he was entitled, “amounting to pattern and practice fraud.”
(2) Negligent and Malicious Breach of Fiduciai~y Duty
—“[B]y virtue of his employment as a litigation attorney in the [Katrina Joint] Venture, at all relevant times, Wyatt was a fee sharing participant in the Katrina Joint Venture.”
—“[T]he legal relationship between Wyatt, Scruggs, Nutt, McAlister, the Scruggs Law Firm and Nutt & McAl-ister ... was governed by a fiduciary duty of absolute honesty, loyalty, full disclosure and the covenant of good faith and fair dealing.”
(4) Negligent and Intentional Misrepresentation
—“Defendants had a non-delegable fiduciary duty to [Wyatt], which included ... the duty to refrain from negligently or intentionally misrepresenting material facts to [Wyatt] in connection with the matters alleged.”
(5) Breach of Contract and Tortious Breach of Contract (Covenants of Good Faith and Fair Dealing)
—“Defendants breached the covenants of good faith and fair dealing implied by law under the agreement entitled In Re: Katrina Litigation Joint Venture and in their fee sharing relationship with [Wyatt].”
(7) Civil Conspiracy
—“[T]he objective of the conspiracy was to illicitly profit from the fruits of the [Katrina Joint] Venture, and once having done so, collapse the [Katrina Joint] Venture in an effort to avoid personal liability to fee sharing partners and/or third parties.”
(9) Conversmu-Misappropriation
—“[W]hile acting in a fiduciary capacity the Defendants assumed dominion and control of funds and property rightfully belonging to [Wyatt], depriving [Wyatt] of lawful possession.”
(10) Unjust Enrichment
—“[A]t all relevant times [Wyatt] performed valuable services in connection with the Katrina Joint Venture.... [S]uch services were performed for the benefit of the Katrina Joint Venture, its members and associates, and did in fact greatly benefit the Defendants.”
—Defendants were unjustly enriched by “possession of funds, money or property derived from [Wyatt’s] work in the Katrina Joint Venture .... ”
(11) Accounting
—“Wyatt is entitled to examination of the books and records of the [Katrina Joint] Venture ... along with an accounting of and from all the Defendants for money, profits, property, business advantages and opportunities, choses in action, and assets and rights belonging legally and equitably to the [Katrina Joint] Venture and its joint fee sharing participants.
Wyatt is entitled to restitution of all such....”
(12) Forfeiture of Ill-Gotten Gains and Profits
—“[T]he Defendants’ exploitative and ill-gotten gains from the [Katrina Joint] Venture, to the detriment of fee-sharing attorneys such as [Wyatt], should be forfeited or alternatively, placed under a constructive trust.”
(13) Imposition of Constructive Trust —“[Wyatt’s] services to the [Katrina Joint] Venture were induced through an agreement between persons and entities in a fiduciary relationship, to the effect that jointly shared fees recovered in the [Katrina Joint] Venture would be held in trust for those having shared fee interests. [Wyatt] justifiably relied on this confidential or fiduciary relationship and Defendants breached their fiduciary duty to live up to their end of the agreement.”
(14) Waiver and Equitable Estoppel
—“Wyatt believed and relied upon the multiple representations of the Defendants that his shared fees in the Katrina Joint Venture would be fully paid, and upon such reliance, performed all things necessary and reasonable for the mutual profit and success of the [Katrina] Joint Venture.” This belief “ultimately resulted] in the loss or destruction of his fee-sharing interest in the Katrina Joint Venture ....”

(Emphasis added.)

¶ 11. On August 28, 2009, the Scruggs Defendants filed a “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration.” While the Scruggs Defendants denied that they owed any duty to Wyatt or were liable to Wyatt “under any of his theories of recovery[,]” they maintained that all of Wyatt’s claims against them “relate to his alleged entitlement to fees collected in the course of the [Katrina Joint] [Vjenture. His claims necessarily fall within the scope of the [Katrina JVA’s] ‘broad’ arbitration provision.”

¶ 12. On September 15, 2009, in response to the Nutt Defendants’ “Motion to Transfer Venue or To Stay and For Other Relief,” Wyatt maintained that:

the [Scruggs Law Firm] and [Nutt & McAlister] were agents of the Katrina Joint Venture for the purpose of its business, and as such were bound by the acts of each member of the [Katrina Joint] Venture, unless the acting member in fact had no authority to act for the partnership in the particular matter, and the person with whom they were dealing had knowledge of the fact that they had no such authority.

As such, Wyatt argued his employment with Nutt & McAlister was -within the scope of the Katrina Joint Venture’s business, and that Nutt & McAlister’s:

wrongful act or omission in failing to fully pay Wyatt[’s] ten percent fee sharing interest in [Katrina Joint Venture] cases, and confiscating for itself monies owed to Wyatt from Katrina Joint Venture funds in its custody, whether known or unknown by the Scruggs Defendants, is imputed to the Katrina Joint Venture itself, and the [Scruggs Law Firm], as a partner and agent in the joint venture and single purpose partnership.

(Emphasis added.) In sum, Wyatt contended that “Scruggs is jointly and severally liable -with Nutt & McAlister for its breaches of fiduciary duties owed to Wyatt.”

¶ 13. Following hearing, the circuit court overruled the Scruggs Defendants’ “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration.” First, the circuit court noted that Wyatt was “not a signatory party under the Katrina JVA....” The circuit court further determined that Wyatt was not a third-party beneficiary to the Katrina JVA. The circuit court then found that “[t]he dispute sought to be arbitrated is not within the scope of the arbitration clause.” According to the circuit court, “[e]ven though the clause is broad enough in scope to cover the instant controversy, there is no agreement between [Wyatt] and the [Scruggs Defendants] to arbitrate since [Wyatt] did not sign the [Katrina JVA] nor was his particular involvement foreseeable as a [third-]party beneficiary.” (Emphasis added.) Finally, the circuit court stated that “Scruggs should be estopped to enforce the arbitration clause because of his criminal conduct[] ” but added that “[s]ince [Wyatt] is not a party or [third-]party beneficiary, a discussion of the applicability of estoppel is unnecessary.” (Emphasis added.)

¶ 14. Thereafter, the Scruggs Defendants filed a “Motion for Stay Pending Appeal,” which was granted upon agreement of the parties, and then a timely “Notice of Appeal” from the denial of their “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration.” See Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026, 1084 (Miss.2010) (citing Miss. RApp. P. 3, 4) (“any final decision with respect to arbitration is appeal-able to this Court pursuant to Mississippi Rules of Appellate Procedure 3 and 4.”).

ISSUE

¶ 15. This Court will consider:

Whether the circuit court erred in denying the Scruggs Defendants’ “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration.”

ANALYSIS

¶ 16. “This Court reviews the grant or denial of a motion to compel arbitration de novo.” Sawyers, 26 So.3d at 1034 (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002)). In that analysis, this Court’s:

sole function is to determine whether the claim is referable to arbitration. Once that determination is made, the [C]ourt may not delve further into the dispute. “The courts ... have no business weighing the merits of a particular claim, or determining whether there is particular language in the written instrument which will support the claim.”

Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1054-55 (Miss.2004) (quoting Russell v. Performance Toyota, Inc., 826 So.2d 719, 722 (Miss.2002)). In:

determining whether a particular claim falls within the scope of the arbitration agreement^ courts] “focus on factual allegations in the complaint rather than the legal causes of action asserted. If the allegations underlying those claims ‘touch matters’ covered by the parties’ ... agreements, then those claims must be arbitrated, whatever the legal labels attached to them.”

Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A., 372 F.3d 339, 344 (5th Cir.2004) (quoting Smith/Enron Co-generation Ltd. P’ship v. Smith Cogeneration Int’l, 198 F.3d 88, 99 (2nd Cir.1999)).

¶ 17. Under the Federal Arbitration Act, this Court conducts a two-prong arbitration inquiry, “first, whether the parties intended to arbitrate the dispute, and second, if they did intend to arbitrate, ‘whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.’ ” Qualcomm Inc. v. Am. Wireless License Group, 980 So.2d 261, 268 (Miss.2007) (quoting East Ford, 826 So.2d at 713). “The first prong is two-fold in that the court considers whether there is a valid arbitration agreement and then whether the parties’ dispute is within the scope of the arbitration agreement.” Greater Canton Ford Mercury, Inc. v. Ables, 948 So.2d 417, 421 (Miss.2007) (citing East Ford, 826 So.2d at 713). Under the second prong, “[t]he FAA mandates that arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Ables, 948 So.2d at 423 (quoting Terminix, 904 So.2d at 1055).

(1)(A) Whether there is a valid arbitration agreement.

¶ 18. Wyatt does not challenge the validity of the arbitration provision itself, but instead contends that there was no agreement to arbitrate between himself and the Scruggs Defendants. Furthermore, in Jones, Funderburg, this Court determined that, apart from sanctions, this exact arbitration provision was valid and enforceable. See Jones, Funderburg, 27 So.3d at 376-77. Accordingly, this Court concludes that this subprong is satisfied.

(1)(B) Whether the parties’ dispute is within the scope of the arbitration agreement.

¶ 19. Under this subprong, “two questions must be answered: (1) whether the proper forum for determining the scope of the arbitration agreement is in court or in arbitration,[] and (2) whether the arbitration agreement encompasses the dispute.” Ables, 948 So.2d at 421-22 (citations omitted) (emphasis added).

¶ 20. Wyatt was not a signatory party to the Katrina JVA, although he claims that he was a “fee sharing participant” thereto. Since arbitration provisions are “contractual in nature, the general rule is that ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” Qualcomm, 980 So.2d at 269 (quoting Adams v. Greenpoint Credit, LLC, 943 So.2d 703, 708 (Miss.2006)). See also Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 354 n. 3 (5th Cir.2003) (quoting Westmoreland v. Sadoux, 299 F.3d 462, 465 (5th Cir.2002)) (arbitration agreements apply to nonsignatories only “in rare circumstances.”). However, “a non-signatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.” Miss. Care Ctr. of Greenville, LLC v. Hinyub, 975 So.2d 211, 216 (Miss.2008) (quoting Washington Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 266 (5th Cir.2004)). For example, “a signatory may enforce an arbitration agreement against a non-signatory if the non-signatory is a third-party beneficiary or if the doctrine of ... estoppel applies.” Qualcomm, 980 So.2d at 269 (citing Adams, 943 So.2d at 708). See also Bridas, 345 F.3d at 356 (“[s]ix theories for binding a non-signatory to an arbitration agreement have been recognized: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing/alter ego; (e) estoppel; and (f) third-party beneficiary.”). This Court will address only estoppel, as we find it applicable to Wyatt.

(i) Direct-benefit estoppel.

¶ 21. “Direct-benefit estoppel involve[s] non-signatories who, during the life of the contract, have embraced the contract despite their non-signatory status, but then, during litigation, attempt to repudiate the arbitration clause in the contract.” Noble Drilling Servs., Inc. v. Centex USA, Inc., 620 F.3d 469, 473 (5th Cir.2010) (quoting Hellenic Inv. Fund, Inc. v. Det Norske Veritas, 464 F.3d 514, 517-18 (5th Cir.2006)) (emphasis added). See also Simmons Hous., Inc. v. Shelton, 36 So.3d 1283, 1287-88 (Miss.2010) (“estoppel prevents a party from embracing the benefits of a contract while simultaneously trying to avoid its burdens.... ”); Bailey, 364 F.3d at 268 (quoting Grigson v. Creative Artists Agency, LLC, 210 F.3d 524, 528 (5th Cir.2000)) (thus, “estoppel prevents a party from ‘having it both ways.’”). According to Noble Drilling, “[a] non-signatory can ‘embrace’ a contract containing an arbitration clause in two ways: (1) by knowingly seeking and obtaining ‘direct benefits’ from that contract;[] or (2) by seeking to enforce the terms of that contract or asserting claims that must be determined by reference to that contract.” Noble Drilling, 620 F.3d at 473 (citing Hellenic, 464 F.3d at 517-20) (emphasis added).

¶ 22. The Scruggs Defendants contend that the circuit court failed to address the issue of direct-benefit estoppel and assert that “[ejstoppel principles ... prohibit Wyatt from avoiding arbitration while seeking benefits under the [Katrina JVA].” According to the Scruggs Defendants, “virtually every claim stated by Wyatt references and relies upon the existence of the [Katrina JVA] and rights and duties allegedly arising from that agreement.” For example, the Scruggs Defendants maintain that “[t]he [Katrina JVA] ... is the sole basis for the existence of th[e] purported fiduciary duties and contractual obligations” alleged in Wyatt’s Complaint, such that “Wyatt’s claims are impossible to resolve or determine without reference to the legal relationships and obligations created by the” Katrina JVA.

¶ 23. By brief, Wyatt responded that his claims against the Scruggs Defendants “are not dependent on the Katrina JVA. He is not alleging that the Scruggs Defendants breached the [Katrina] JVA, and he is not seeking to enforce the terms of the [Katrina JVA].” Instead, Wyatt contended that only his unwritten fee-sharing agreement with Nutt & McAlister, which was not made “subject to the arbitration clause in the [Katrina JVA,]” is at issue. According to Wyatt, his claims against the Scruggs Defendants “arise under the Mississippi Uniform Partnership Act (“MUPA”) ... and tort law[,]” in that:

(1) the Katrina Joint Venture was a single purpose partnership, subject to the MUPA; (2) members of the Katrina Joint Venture owed each other fiduciary duties; (3) the members of the Katrina Joint Venture could associate attorneys to prosecute the [Katrina Joint] Venture’s cases; (4) Nutt & McAlister associated ... Wyatt; (5) acts of each member of the Katrina Joint Venture are imputed to all other members of the [Katrina Joint] Venture; (6) members of a joint venture are jointly and severally liable for acts of all venture members; and (7) the Scruggs Defendants are jointly and severally liable with Nutt & McAlister for its breaches of fiduciary duties owed to Wyatt.[]

¶ 24. Wyatt adds that “[t]o the extent [his] ... Complaint is read or interpreted as asserting a breach of contract claim against Scruggs, the claim is withdrawn. Wyatt intends to amend his Complaint once the trial court stay is lifted.” The Scruggs Defendants respond that “[t]his Court should give no weight to this ... promise, particularly in light of the fact that Wyatt provides no details about how his second amended complaint would remedy the fatal defects on his first two pleadings.” This Court will consider all claims as pleaded within Wyatt’s Complaint. On that point, this Court further notes the following exchange at oral argument:

Justice Randolph: Are you conceding that as the Complaint is drafted right now that the [Katrina JVA] would apply ...?
Wyatt’s Counsel: Your Honor, yes. I’m not going to argue against the obvious, that would be foolish.

In light of the “fee-sharing participant”— type language throughout the Complaint, see supra ¶¶ 3, 10, the factual allegations in Wyatt’s Complaint clearly “ ‘touch matters’ covered by” the Katrina JVA. Waste Mgmt., 372 F.3d at 344 (quoting Smith/Enron, 198 F.3d at 99).

¶ 25. This Court has stated that:

[a] joint venture is a single-purpose partnership. Duggins v. Guardianship of Washington, 632 So.2d 420, 427 (Miss.1993). As a joint venture, [the Katrina Joint Venture] was governed by Mississippi’s partnership law, the Uniform Partnership Act of 1997, effective January 1, 2005. Under the Act, a joint venture is liable for any penalty incurred as the result of a wrongful act or omission, or other actionable conduct, of a joint venturer acting in the ordinary course of business of the joint venture. Miss.Code Ann. § 79-13-305 (Rev.2009). In the absence of an agreement with the claimant or as otherwise provided by law, all co-venturers are jointly and severally liable for joint-venture obligations. Miss.Code Ann. § 79-13-306(b). A litigant may sue a joint venture “in the name of the partnership” or he may bring an action against “any or all of the partners in the same action or in separate actions.” Miss.Code Ann. § 79-13-307(a), § 79-13-307(b) (Rev. 2009). However, a judgment against a partnership may not be satisfied from a partner’s assets unless there is also a judgment against the individual partner. Miss.Code Ann. § 79-13-307(e) (Rev. 2009).

Jones, Funderburg, 27 So.3d at 372-73 (emphasis added). See also Miss.Code Ann. § 79-13-302(1) (Rev.2009) (“[a]n act of a partner ... for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority.”); Miss.Code Ann. § 79-13-305 (Rev.2009) (a partnership is hable for “loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.”); Idom v. Weeks & Russell, 135 Miss. 65, 76-77, 99 So. 761, 763 (1924) (citations omitted) (“[i]f a tort be committed by one partner while engaged in a transaction within the scope of the partnership business, and such tort be committed in furtherance of the interests of the partnership, it will be liable.”).

¶ 26. The only reference by the circuit court to estoppel was that “Scruggs should be estopped to enforce the arbitration clause because of his criminal conduct” in the Jones, Funderburg case. The circuit court did not address the effect, vel non, of direct-benefit estoppel as applied to Wyatt.

¶ 27. This Court first addresses the “knowingly exploited” theory of direct-benefit estoppel. Wyatt argues that “he is not seeking to enforce the terms of’ the Katrina JVA, but only his unwritten fee-sharing agreement with Nutt & McAlister. If one assumes the validity of this position, the benefit sought by Wyatt from the Katrina JVA seems more collateral than “direct,” insofar as the Scruggs Defendants’ duties as joint venturers with Nutt & McAlister are implicated. Noble Drilling, 620 F.3d at 473. However, Wyatt’s Complaint also asserted that he is a “fee sharing participant in the Katrina Joint Venture”; a “fee sharing attorney” under the Katrina Joint Venture; that he has a “fee-sharing interest in the Katrina Joint Venture”; and that the defendants have a “fee sharing relationship” with him. If one assumes the validity of Wyatt’s assertions, these claims allege “direct benefits” are due to Wyatt by virtue of the Katrina JVA. But even if one accepts the argument that the “knowingly exploited” theory of direct-benefit estoppel does not apply to Wyatt, the direct-benefit estoppel inquiry is not complete.

¶ 28. The foundation of Wyatt’s lawsuit is premised upon a dispute with Nutt & McAlister over his compensation (fee share) directly tied to successful recovery by the Katrina Joint Venture against its client’s insurers. As such, Wyatt’s claims against the Scruggs Defendants are directly dependent on the Katrina JVA, and require reference thereto. See id. Counsel for Wyatt acknowledged as much during the following exchange at oral argument:

Presiding Justice Graves: Does Mr. Wyatt have any claims that are not derivative of his association with [Nutt & McAlister]? Any claims against [the Scruggs Defendants] that are not derivative of his association with [Nutt & McAlister]?
Wyatt’s Counsel: No, Your Honor.
Presiding Justice Graves: So all of his claims grow out of his relationship with [Nutt & McAlister]?
Wyatt’s Counsel: That is a correct statement, Your Honor.
Presiding Justice Graves: [Nutt & McAlister] has a relationship with Mr. Scruggs ... memorialized by way of the [Katrina JVA]?
Wyatt’s Counsel: That is correct, Your Honor.
Presiding Justice Graves: And the [Katrina JVA] is what contains this arbitration clause?
Wyatt’s Counsel: That’s also correct.
Presiding Justice Graves: So having conceded that all of that is involved, tell me how it is that the arbitration clause is inapplicable to this dispute.
Wyatt’s Counsel: The [Katrina JVA] is not the [Katrina] Joint Venture. The [Katrina JVA] memorialized the [Katrina] Joint Ventured.[]

¶ 29. The Scruggs Defendants argued before the circuit court that, “[without the [Katrina JVA],” Wyatt’s claims against the Scruggs Defendants “could not exist in any shape, form or fashion[,]” adding that:

[i]f they’re going to argue the provisions of [the Katrina JVA] to support their claims, then the arbitration provision taints those claims as they relate to [the Scruggs Defendants], the breach of fiduciary duty claim and the breach of contract claim. If on the other hand they’re going to abandon the agreement and say there is no agreement, then there can be no claim against [the Scruggs Defendants], but they cannot have it both ways....

In short, even if Wyatt claims that the Scruggs Defendants are jointly and severally hable with Nutt & McAlister as joint venturers, the fount of such alleged joint and several liability flows from the Katrina JVA, which was “the sole and only agreement of the members” of the Katrina Joint Venture. See Bailey, 364 F.3d at 267 (a nonsignatory was bound by an arbitration provision because “the factual basis of each of her claims” arose from “her husband’s loan and credit insurance transactions[,]” to which the arbitration provision applied). As Wyatt’s claims against the Scruggs Defendants are “determined by reference to” the Katrina JVA, this Court concludes that direct-benefit estoppel theory requires the nonsignatory claimant, Wyatt, to arbitrate his claims against the Scruggs Defendants. Noble Drilling, 620 F.3d at 473.

(ii) Enforcement of the arbitration provision by Scruggs, individually.

¶ 30. Alternatively, Wyatt contends that “Scruggs, individually, has no standing to compel arbitration” because he was not individually identified as a party to the Katrina JVA and “did not even sign the Katrina JVA on behalf of The Scruggs Law Firm.” Therefore, Wyatt maintains that, even if his claims against SLF, Inc. must be arbitrated, “no available legal authority supports compelling Wyatt to arbitrate his claims against Scruggs individually.” The Scruggs Defendants respond that Scruggs is not precluded from enforcing the arbitration provision because “Wyatt relies on the [Katrina JVA] in making his claims against [Scruggs].”

¶ 31. In both Bailey and Blinco v. Green Tree Servicing, LLC, 400 F.3d 1308 (11th Cir.2005), nonsignatories permitted to compel arbitration against other nonsig-natories were “operating under a broad arbitration clause.” Amstar Mortgage Corp. v. Indian Gold, LLC, 517 F.Supp.2d 889, 899-900 (S.D.Miss.2007) (citing Blinco, 400 F.3d at 1311-12; Bailey, 364 F.3d at 267-68) (emphasis added). In the present case, the arbitration provision in the Katrina JVA is broad, applying to “[ajny dispute arising under or relating to the terms of this agreement....” (Emphasis added.) See MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 176 (Miss.2006) (“[b]road arbitration language governs disputes ‘related to’ or ‘connected with’ a contract....”). Furthermore, as discussed under Section (1)(B)(i) supra, Wyatt’s claims against Scruggs necessarily require “reference to” the Katrina JVA. Noble Drilling, 620 F.3d at 473. Finally, in light of the fact that even Wyatt’s Complaint provided that SLF, Inc., is “owned 100% by [Scruggs],” this argument is rather dubious. For these collective reasons, this Court concludes that Scruggs, individually, may enforce the arbitration provision.

(Hi) Scope of the arbitration agreement.

¶ 32. As discussed previously, the arbitration provision at issue plainly uses broad language (i.e., “[a]ny dispute arising under or relating to the terms of this agreement shall be resolved by mandatory binding arbitration”). See Horton, 926 So.2d at 176. The circuit court acknowledged that “the clause is broad enough to cover the instant controversy....” Finally, the factual allegations in Wyatt’s Complaint clearly “ ‘touch matters’ covered by” the Katrina JVA. Waste Mgmt., 372 F.3d at 344 (quoting Smith/Enron, 198 F.3d at 99). Therefore, this Court concludes that Wyatt’s claims against the Scruggs Defendants are within the scope of the Katrina JVA’s arbitration provision.

(2) Whether legal constraints external to the parties’ agreement will foreclose arbitration of the claims.

¶ 33. Wyatt argues that because the Scruggs Defendants “are seeking to enforce an arbitration clause that Scruggs previously entered into a criminal conspiracy to enforce in the [Jones, Funderburg ] Iawsuit[,]” then they “should be estopped from invoking” that same arbitration provision in this case. The Scruggs Defendants respond that Wyatt did not present an “unclean hands” argument in the circuit court and, furthermore, that “for the unclean hands doctrine to bar recovery, the party seeking relief must be ‘guilty of willful misconduct in the transaction at issue.’ ” See Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). According to the Scruggs Defendants, Wyatt essentially is arguing “that this Court should further sanction [the Scruggs Defendants] due to misconduct for which they have already been sanctioned.” As Wyatt presented an argument akin to “unclean hands” in the circuit court, we will address this issue.

¶ 34. This Court has stated that “[t]he clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Id. (citing Calcote v. Calcote, 583 So.2d 197, 199-200 (Miss.1991)) (emphasis added). In Community Bank of Mississippi v. Stuckey, 52 So.3d 1179 (Miss.2010), this Court applied that doctrine against Community Bank in concluding that “we will not compel arbitration based on third-party-beneficiary status or equitable estoppel where the movant has encouraged or engaged in forging the non-movant’s signature.” Id. at 1183.

¶ 35. This Court reiterates that Wyatt’s lawsuit is premised upon his dispute with Nutt & McAlister over his fee share under an unwritten employment agreement. There is no allegation that the Scruggs Defendants have engaged in criminal conduct like that for which they were sanctioned in Jones, Funderburg. Therefore, the question becomes whether the Scruggs Defendants are now categorically prohibited from enforcing the subject arbitration provision in all cases because of Scruggs’ criminal conduct related to the Jones, Funderburg case. As the clean-hands doctrine focuses upon “willful misconduct in the transaction at issue[,]” this Court finds it inapplicable here. Bailey, 724 So.2d at 337. Therefore, this Court concludes that no external legal constraints should foreclose the arbitration of Wyatt’s claims against the Scruggs Defendants.

CONCLUSION

¶ 36. Accordingly, this Court reverses the Circuit Court of Lafayette County’s denial of the Scruggs Defendants’ “Motion to Compel Arbitration and To Stay Pending Completion of Arbitration,” and remands with directions to the circuit court to stay the proceedings as against the Scruggs Defendants and refer this matter to arbitration.

¶ 37. REVERSED AND REMANDED.

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

      . Now, SLF, Inc. Wyatt’s First Amended Complaint provided that SLF, Inc., "formerly ... Scruggs Law Firm, P.A.[,]” is "owned 100% by [Richard F. Scruggs].”

      . Subsequent pleadings reflect that "the dispute regarding the terms of the unwritten employment contract between Wyatt and Nutt & McAlister is ... the subject of Nutt & McAlister's request for declaratory judgment” in a prior suit filed in the Chancery Court of Madison County, Mississippi, on February 19, 2009.

      .Wyatt had filed his initial Complaint on April 16, 2009. Circuit Court Judges Henry L. Lackey, Andrew K. Howorth, and Robert W. Elliott then signed an "Order of Recusal.” Thereafter, this Court entered an Order appointing Senior Status Judge Edward C. Pri-sock to "preside and conduct proceedings” in this case.

      . The Katrina JVA provided that "[f|or financing the litigation and for all of their professional efforts herein, Nutt and Associates will receive 35% of the net fee.”

      . Wyatt's Brief provides that this "nominal salary” was paid by David Nutt & Associates, P.C.

      . As noted in footnote 2 supra, a separate suit was filed by Nutt & McAlister regarding the terms of the unwritten employment agreement in the Chancery Court of Madison County, Mississippi.

      . “No members of the other defendant law firms [were] charged in the bribery investigation.” Id. at 368.

      . The "Memorandum Opinion on Motion to Disqualify” of the United States District Court for the Southern District of Mississippi, Senior Judge L.T. Senter, Jr., presiding, filed on April 4, 2008, stated that:
      I have determined that disqualification is required because Scruggs, acting in furtherance of the [Katrina Joint Venture], paid the Rigsby sisters a substantial sum of money (a consulting fee of $150,000 per year) despite Scruggs's knowledge that the Rigs-by sisters were material witnesses in connection with many hurricane damage claims that were likely to become the subject of litigation. While Scruggs made the arrangements for these payments, the other members of the [Katrina Joint Venture] knew or should have known that the payments were being made, and I am of the opinion that their failure to take timely and reasonable remedial steps or to object to this arrangement amounts to a ratification of Scruggs’s actions.... [T]he payments to the Rigsby sisters are, in and of themselves, sufficient to warrant disqualification.

      .In reference to the joint venture, the Complaint included footnote 1, which stated "[s]ee attached Exhibit 1, agreement entitled In Re: Katrina Litigation Joint Venture." Therefore, Exhibit 1 to Wyatt's Complaint was the Katrina JVA.

      . These claims are taken verbatim from Wyatt’s Complaint, as noted.

      . This question is not at issue in this case, as neither party disputes that the proper forum for determining the scope of the arbitration provision is in court.

      . This is termed the " ‘knowingly exploited’ theory of direct benefits estoppel.” Noble Drilling, 620 F.3d at 474. “To satisfy the knowledge requirement, the case law requires that the non-signatory have had actual knowledge of the contract containing the arbitration clause.” Id. at 473.

      . Wyatt adds elsewhere that "the Scruggs Firm is jointly and severally liable with Nutt & McAlister for its breach of fiduciary duty and breach of its fee-sharing agreement with Wyatt.” (Emphasis added.)

      . "Before January 1, 2007, the Uniform Partnership Act of 1997 applied to all partnerships formed after January 1, 2005; after January 1, 2007, the revised Act applies to all partnerships. Miss.Code Ann. § 79-13-1205 (Rev.2009). Therefore, the revised Act applies to [the Katrina Joint Venture].” Jones, Funderburg, 27 So.3d at 373 n. 5.

      . Former Presiding Justice Graves, now sitting as a judge on the Fifth Circuit Court of Appeals.

      . Similarly, before the circuit court, Wyatt maintained that his claims "are not dependent on the Katrina JVA, and he is not seeking to enforce the terms of the [Katrina JVA], The Katrina [J]oint [V]enture could have existed without the written Katrina JVA.” This Court agrees that the Katrina Joint Venture "could have existed” without the Katrina JVA, as no "formal agreement” is necessary to form a joint venture. Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 261 (1942) (in a joint venture, "[a] contract between the parties is necessary, but it need not be express or embodied in a formal agreement. It may be inferred from the facts, the conduct of the parties and the circumstances.”). However, in this case, the written Katrina JVA was formalized as "the sole and only agreement of the members hereto...." As such, the Katrina Joint Venture was governed by the Katrina JVA. See Miss.Code Ann. § 79 — 13—103(a) (Rev.2009) ("[ejxcept as otherwise provided in subsection (b), relations among the partners and between the partners and the partnership are governed by the partnership agreement. To the extent the partnership agreement does not otherwise provide, this chapter governs ....") (emphasis added).

      . Wyatt makes a similar argument regarding SLF, Inc., contending that "[t]he Scruggs Law Firm was a party to the Katrina JVA, not SLF, Inc...." But this argument was not presented to the circuit court and is, therefore, waived. See Regan v. S. Cent. Reg'l Med. Ctr., 47 So.3d 651, 654 (Miss.2010) (quoting Goode v. Vill. of Woodgreen Homeowners Assoc., 662 So.2d 1064, 1076 (Miss.1995)) ("[t]his Court has stated previously that it 'need not address issues raised for the first time on appeal.’ ”). Additionally, this Court reiterates that Wyatt’s Complaint provided that SLF, Inc., "formerly ... Scruggs Law Firm, P.A.[,]” is "owned 100% by [Scruggs].”