author: DREW, J.

text:
    STATE of Louisiana, Appellee v. George Edward MILLER, Appellant.
    Nos. 47,432-KA, 47,433-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Ross Law Firm, Monroe, LA, by James E. Ross, Jr., for Appellant.
    Jerry L. Jones, District Attorney, Brandon B. Brown, Neal Glen Johnson, Geary Stephen Aycock, John Michael Ruddick, George Mennon Campbell, Jr., Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and SEXTON (Pro Tempore), JJ.
   DREW, J.

hGeorge Edward Miller pled guilty to three misdemeanor crimes:

• one count of cyberstalking, La. R.S. 14:40.8, for which he received the maximum sentence of one year in jail;

• one count of criminal mischief, La. R.S. 14:59(5), for which he received the maximum sentence of six months in jail; and

• one ’ count of violation of a protective order, La. R.S. 14:79(B)(1), for which he received the maximum sentence of six months in jail.

Pursuant to the guilty pleas, other charges were dismissed. At all pertinent times, the defendant was represented by counsel. All three sentences were ordered to be served consecutively.

Miller appeals only the trial court’s imposition of a Louisiana Uniform Abuse Prevention Order directing Miller to have no contact with his minor child for the remainder of the defendant’s natural life.

We affirm the convictions and sentences, but amend the protective order to reduce to 18 months the term of Miller’s prohibition of no contact with the child, as limited by La. R.S. 46:2136(F).

FACTS

The pertinent facts are clearly set forth in the trial court’s extensive and detailed written reasons for sentencing. We commend the trial court in its diligent and organized sentencing efforts. The trial court specifically noted that this defendant “has an extensive adult criminal history, primarily |2involving physical violence directed toward women with whom he has been involved.”

In sentencing Miller, the trial court reviewed the presentence investigation report, including Miller’s horrific criminal history. The report revealed numerous criminal charges involving violation of protective orders, domestic abuse battery, and harassing telephone calls.

The trial court noted that the Ouachita Parish Sheriff’s Office had received a complaint in January 2011 of a burglary on Huntington Drive at the residence of Mark Sledge, the father of his wife, Danielle. While that investigation was underway, the Sheriffs Office received a call from Miller, who alleged that his wife had told him that someone had broken into his house on Liner Drive. An investigation of Miller’s residence showed no evidence of criminal activity. On the other hand, a door and a flat-screen television were damaged at Sledge’s residence. When deputies contacted him, Sledge advised that Danielle had moved in with him to get away from Miller, and that Miller had harassed all of them. Danielle denied telling Miller that his house was being burglarized. She also produced her cell phone which contained numerous text messages she believed to be from Miller, including death threats against her and members of her family, as well as a compromising picture of her.

Is A search warrant was issued for Miller’s phone records, and those records showed that the number used to place the harassing texts was that of his girlfriend. On the day he made the call to the Ouachi-ta Parish Sheriff’s Office with the false report of a possible break-in at his residence, Miller attempted to call Danielle 90 times between 10:13 a.m. and 4:40 p.m. After the call to the Sheriff’s Office, he called her another 49 times that night and sent 8 text messages. As a result, he was charged with criminal mischief for making a false report of a crime, with cyberstalk-ing, and with the unauthorized entry of an inhabited dwelling.

During the investigation in the burglary on Huntington Drive, Danielle was granted a protective order against Miller. While that order was in effect, she reported receiving phone calls from an unknown number. The calls were made from the phone of a female friend of Miller’s. As a result, Miller was charged with another count of cyberstalking and with the violation of a protective order.

In September 2011, the defendant pled guilty to the three charges outlined above, with the other charges being dismissed as part of the plea agreement. This colloquy occurred on the date of the plea:

BY THE COURT:
You also understand that there would remain in place a protective order. Under the terms of the Louisiana Uniform Abuse Prevention Order you would not be allowed to have any contact with either Danielle Miller or with the child whose date of birth 8-8-05, initials D.E.M. And that would be for the rest of your natural life. Also in the terms and conditions of the protective order — under the terms and conditions of the protective order you would not be able to own or possess a firearm or any ammunition. Now do you understand those terms and conditions?
LBY MR. MILLER:
No, Sir. I don’t understand you said for the rest of my life with who? My son?
BY THE COURT:
Yes, Sir.
BY MR. MILLER:
I can’t take that plea, your Honor.
BY THE COURT:
Alright.
BY MR. ROSS [defense counsel]:
Your Honor, that was not part of the plea. There’s no order in place that prevents him from having any type of contact with his son for the rest of his life.
BY THE COURT:
That might be a condition though I’m outlining to him of my sentence. And he needs to be aware of that.
BY MR. ROSS:
May we approach, your Honor?
BY THE COURT:
Yes, you may approach. And he’s going to need to decide if he’s going to take the plea or not or we just need to set it—
BY MR. ROSS:
I mean, we take the plea, but uh, this has never been a part or in the record where a person has been prohibited from seeing his son for the rest of his life. I know you are saying that’s not an order, but that’s what you could do I know. I’ve heard that indicated in the plea that that would be imposed to a client.
BY THE COURT:
But I need to make him aware that that is a possibility. I’m looking here at eight prior arrests for violation of protective since 2007. Two prior domestic batteries.
BY MR. ROSS:
I can see his wife. But his child.
BY THE COURT:
|-He needs to be aware that’s a possibility. And considering that possibility does he still want to go forward •with the plea?
BY MR. ROSS:
I mean, I don’t want to derail the plea, but I, I think if for a parent to be cut off from a child completely—
BY THE COURT:
He just needs to be aware that when I get my report in, the presentence report and it reveals the history here that is a possibility.
BY MR. ROSS:
Yeah, but there’s no harm done to the child in this case. I understand what the Court is saying, but it somewhat overshadows the rest of the case. Because—
BY THE COURT:
It is a major consideration I would hope in his mind. But to say there’s no harm done to the child — it’s not just the mother who suffers in domestic violence, it’s also the child who’s uprooted from the home and has to deal with this.
BY MR. ROSS:
But we really don’t know since the mother is not on trial what the mother’s done because of it.
BY THE COURT:
That’s why we’re here for a plea. If he doesn’t want to accept that possibility ... That’s just a fact that I have to consider. It may be that there’s a protective order in place where he has supervised visitation with the child. But I’m just saying that he has to be aware that it could be.
BY MR. ROSS:
Yeah, but your court said permanent termination. I can understand supervised visitation.
BY THE COURT:
He needs to understand that’s a possibility. The Court is allowed to consider that to enter any needed orders of protection of that family unit. The mother and the child. And I have to make him fully aware of that. There’s a risk.
IfiBY MR. ROSS:
I understand.
BY MR. MILLER:
I’ll take it, your Honor.
BY THE COURT:
Sir, I want you to be fully aware that that is a possibility. I’m not saying that is what is going to happen. But when I’ve reviewed all the facts of these various cases and history here I need to be aware of what I need to do to protect the family. Mother and child. So you understand that is a risk and that is a factor?
BY MR. MILLER:
Yes, Sir.
BY THE COURT:
That could be entered by this Court as a condition of any sentence. You understand that?
BY MR. MILLER:
Yes, Sir.

At sentencing three months later, the trial court stated:

The Court notes the defendant has demonstrated the inclination toward violence directed against Danielle Miller with whom he shares a child. As provided for by law and required by law the defendant is to have no contact with the victim herein Danielle Miller or the minor child for life.

DISCUSSION

The defendant appeals his lifetime prohibition against contacting his minor son, noting that none of these three misdemeanors provides for permanent termination of parental rights as a sanction for violation.

La. C. Cr. P. art. 881.2(A)(2) prohibits a defendant from appealing a sentence imposed in conformity with a plea agreement. Nonetheless, we are concerned that a trial court cannot, even with the defendant’s initial consent, impose an illegal sentence, especially when the sentence infringes on the | defendant’s basic parental rights. The United States Supreme Court has issued several decisions supportive of parental rights.

We recognize that protective orders can be issued pursuant to the Protection from Family Violence Act, La. R.S. 46:2131, et seq. We note, however, the clear language of La. R.S. 46:2136(F):

Any final protective order or approved consent agreement shall be for a fixed period of time, not to exceed eighteen months, and may be extended by the court, after a contradictory hearing, in its discretion. Such protective order or extension thereof shall be subject to a devolutive appeal only. (Our emphasis.)

Two decades ago, the Fifth Circuit spoke to this issue in Keneker v. Keneker, 579 So.2d 1083, 1085 (La.App. 5th Cir.1991), concluding:

[ T]he Legislature did not contemplate indefinite continuances or extensions of temporary restraining orders and protective orders issued under the Domestic Abuse Assistance laws. Where such an order is to be extended, the extension must be done prior to the expiration of the order; the longest duration for a temporary restraining order is thirty days and for a | ¡protective order is three months. The brevity of these time periods requires frequent review of each situation by the court that issued the order. Further, although C.C.P. art. 8604(A) provides an ordinary temporary restraining order may be extended “for a longer period” with consent of the party against whom it is directed, the Domestic Abuse Assistance laws make no provision for indefinite extension by consent of the parties.

Civil provisions exist providing for the termination of parental rights, and this may be an appropriate disposition in due course, strictly following the legal requirements for such a drastic event.

The narrow question here is whether a trial court can impose at sentencing a lifetime sanction forbidding a parent-child relationship, even after adverting to this potential eventuality at the guilty plea. We share and appreciate the trial court’s concern for the protection of these two victims. We are constrained by La. R.S. 46:2136(F), which limits the duration of an order of protection to a maximum of 18 months.

La. C. Cr. P. art. 882 provides that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. This we do here.

DECREE

We affirm the defendant’s convictions. We amend the duration of the protective order to 18 months. As amended, we affirm the sentences and conditions of sentences in all respects.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Though authorized under each crime, the trial court did not assess any fines or court costs relative to any of these three offenses. Miller’s personal property used in the cyber-stalking crime was seized, impounded and ordered publicly sold, pursuant to La. R.S. 14:40.3(C)(4)(a).

      . Subject to future notices, contradictory hearings, and orders of the trial court.

      .' The presentence investigation reveals 15 convictions, including six felonies, and a host of other arrests. This dangerous and violent man is the ultimate recidivist, and he has in large part been treated gingerly by the criminal justice system.
      The defendant's wife surely told the truth when she testified that: "I didn’t leave him for no other man; I left him because he was a fool.” This would almost be funny, were it not for this criminal’s propensity for drastic and senseless mayhem.

      . In Troxel v. Granville, 530 U.S. 57, 65-6, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), the United States Supreme Court stated:
      The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the "liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and "to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the "liberty of parents and guardians” includes the right "to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166, 64 S.Ct. 438.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. Donnie FOSTER and Shirley Foster as Legal Guardians of the Minor Child, Malik R. Caldwell and on behalf of the Wrongful Death Beneficiaries of Tamika Foster.
    No. 2010-CT-00791-SCT.
    Supreme Court of Mississippi.
    Feb. 14, 2013.
    Robert H. Pedersen, Walter T. Johnson, Joseph George Baladi, Jackson, attorneys for appellant.
    David C. Dunbar, Ridgeland, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Tamika Foster died after giving birth at the University of Mississippi Medical Center (UMMC). This wrongful-death suit followed. After a verdict for the plaintiffs, UMMC appealed, claiming that the plaintiffs produced nothing more than an unreliable autopsy report to establish medical negligence, and that the trial judge erred in refusing to allow two doctors to testify about the autopsy. But because we find sufficient evidence in the record to support the verdict and because UMMC failed to make a proffer of the doctors’ expected testimony, we reverse the Court of Appeals’ decision and reinstate and affirm the decision of the Hinds County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Physicians at UMMC provided prenatal care to Tamika Foster during her high-risk pregnancy. When she presented with troubling symptoms, her physicians admitted her to UMMC and diagnosed her with Class I hemolysis, elevated liver enzyme levels, and low-platelet-count syndrome (HELLP).

¶ 3. That same day, she delivered her baby — Malik—by cesarean section under emergency circumstances. After the delivery, she recovered in the intensive care unit and later was returned to the labor and delivery unit. The following day, she went into respiratory arrest and died.

¶ 4. UMMC pathologists performed an autopsy and determined that Foster’s death was caused by “myocardial ischemia with arrhythmia secondary to Thrombotic Thrombocytopenia Purpura” (TTP), meaning she died from arrhythmia caused by TTP. Although HELLP and TTP are both serious complications that cause a decrease in the number of platelets in the blood, the course of treatment for the two is not the same.

¶ 5. According to Dr. Charles Green-berg, the plaintiffs’ hematology expert, the ADAMTS13 is the only laboratory test that could distinguish between TTP and HELLP. Approximately nine hours after Foster died, the pathologists ran an ADAMTS13 test using a postmortem sample of Foster’s blood. The pathologists considered these results and Foster’s medical history to conclude that she had died from complications of TTP. Foster’s death certificate, completed before the autopsy report, did not mention TTP. Instead, it stated that the cause of death was “undetermined,” but listed HELLP under “other significant conditions.”

¶ 6. Foster’s parents, as representatives of Malik, and Foster’s wrongful-death beneficiaries, sued UMMC under the Mississippi Tort Claims Act, alleging Foster died from TTP, a condition UMMC failed to properly diagnose and treat. At trial, UMMC’s theory of the case was that Foster had died from HELLP and not TTP. They argued that the reason its pathologists incorrectly concluded that TTP had caused Foster’s death was because they had conducted the ADAMTS13 test using postmortem blood which — although once acceptable — recently has been shown to produce inaccurate results.

¶ 7. Hinds County Circuit Judge Tomie Green, after hearing the evidence without a jury, found that UMMC’s failure to properly diagnose and treat Foster for TTP proximately caused her death. Judge Green awarded the plaintiffs $1,230,965, which she reduced to the statutory limit of $500,000.

¶ 8. UMMC timely appealed, alleging that Judge Green unreasonably relied on the autopsy report, and that she committed reversible error by refusing to allow UMMC’s experts to testify about the autopsy report. The Court of Appeals, agreeing with UMMC on both arguments, reversed and rendered the judgment. The Fosters petitioned this Court for a writ of certiorari, which we granted.

ANALYSIS

¶ 9. UMMC raises two issues on appeal: whether Judge Green’s finding that Foster died from TTP was supported by substantial evidence; and whether Judge Green committed reversible error by failing to allow UMMC’s expert witnesses to “comment about the content of the autopsy report.”

¶ 10. UMMC’s argument challenges the sufficiency of the evidence. We have held that “ ‘[a] circuit court judge sitting without a jury is accorded the same deference with regard to his [or her] findings as a chancellor,’ and his [or her] findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence” in the record.

¶ 11. Because we “will not disturb those findings unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied” we now look to see whether Judge Green had substantial medical evidence before her to conclude that Foster died of TTP.

The record contains substantial evidence to support Judge Green’s finding that Foster died from TTP.

■ ¶ 12. The factual dispute upon which this issue turns is whether, as the plaintiffs claim, Foster died of undiagnosed and untreated TTP; or whether, as UMMC claims, she had HELLP, and was properly diagnosed with, and treated for, HELLP. Commenting on this issue, the Court of Appeals stated that “there was no expert testimony which supported to a reasonable degree of medical certainty the notion that Foster had TTP,” and that it could find no “testimony directly linking Foster to having had TTP....” After reviewing the record, we reach a different conclusion.

The autopsy report

¶ 13. Three days following Foster’s death, two UMMC pathologists performed an autopsy and concluded that her cause of death was myocardial ischemia with arrhythmia secondary to TTP. The autopsy report — which included the pathologists’ opinions as to Foster’s cause of death— was admitted into evidence without objection.

¶ 14. UMMC now finds itself in the unusual position of challenging the reliability and sufficiency of the opinions of its own pathologists, who clearly are capable of making admissions on behalf of UMMC. Neither of the pathologists testified at trial, and no evidence was introduced that they had changed their minds, or that Foster’s cause of death was anything but TTP. Even if they had, UMMC cites no authority — and we know of none — for the proposition that a party’s admissions cease to be admissions simply because the party later recants or denies them.

¶ 15. A strong argument could be made that the admissions of the two UMMC pathologists, without more, sufficiently supported Judge Green’s finding that Foster died of TTP. But we need not consider that argument because there is more.

Dr. James Martin’s article

¶ 16. One of Foster’s treating physicians was Dr. James Martin, chief of maternal fetal medicine and obstetrics at UMMC. In a scholarly article, Dr. Martin described Foster as “a patient considered to have [HELLP] syndrome, but later determined to have [TTP].” In its brief to this Court, UMMC says Dr. Martin made no admission in the article that Foster had died from TTP. We disagree.

Dr. Charle,s Greenberg

¶ 17. One of the plaintiffs’ expert witnesses was Dr. Charles Greenberg, a board-certified hematologist who has served on the faculties of the University of California and Duke University, and who currently serves on the faculty of the University of South Carolina. Dr. Greenberg testified that TTP caused Foster’s death:

[ I]t’s supported by the medical literature. It’s supported by James George’s articles. It’s supported even by Joe Moake’s UMMC hematologist articles. And I’m still confused about why he doesn’t think it’s TTP. It was TTP that killed her.

¶ 18. Dr. Greenberg’s testimony clearly refutes the Court of Appeals’ finding that the record contained no “testimony directly linking Foster to having had TTP,” and it refutes UMMC’s argument that, other than the autopsy report, “no other evidence in the record is sufficient to support [Judge Green’s] finding that Ms. Foster had and died from TTP.”

¶ 19. UMMC’s counsel argues that UMMC’s admissions in both the autopsy report and Dr. Martin’s article concerning the diagnosis of TTP should be disregarded as unreliable. Both relied on the results of a test that used postmortem blood, which — UMMC argues it has now learned — produces false results. In support of its argument, UMMC says:

A study published on February 27, 2009 concluded that “[Pjostmortem ADAMTS13 activity levels may not be valid in establishing a diagnosis of TTP, and high inhibitor levels in this setting may be related to elevated PFH. Caution must be used in the interpretation of ADAMTS13 testing in the presence of hemolysis.”

¶ 20. UMMC’s counsel cross-examined Dr. Greenberg at length about the validity of using postmortem blood in ADAMTS13 testing for TTP, presenting him with the 2009 article that UMMC says calls the practice into question. Dr. Greenberg, however, did not change his opinion that the test was valid. He testified:

In this article ... they raised caution and I believe it’s fair to raise caution. It does not invalidate an autopsy done in 2005, it doesn’t refute the reliability of that sample. It’s just it raises some caution. It was standard practice, it probably will remain to be standard practice for a while until we can get a specific antibody for [sic] perhaps ISA for that.

¶ 21. UMMC based its argument that “new scientific knowledge” made the ADAMTS13 test unreliable — when performed using postmortem blood — on an article from the Journal of Clinical Apher-esis and the testimony of its experts, Doctors Bofill, Moake, and Griffin, who opined that conducting an ADAMTS13 test with postmortem blood yields invalid results.

¶ 22. The Journal of Clinical Apheresis article raised caution in diagnosing TTP postmortem because “low postmortem ADAMTS13 activity and evidence of inhibitor can occur in decedents without clinical or histologic evidence of TTP.” The article concluded “postmortem ADAMTS1S levels may not be valid in establishing a diagnosis of TTP” and “[c]aution must be used in the interpretation of ADAMTS13 testing in the presence of hemolysis.”

¶ 23. Dr. Greenberg, however, testified that, as of 2005, an ADAMTS13 test using postmortem blood was the standard, accepted way to “confirm and diagnose TTP in the postmortem period.” He further stated that it “does not invalidate an autopsy done in 2005,” and that “it was TTP that killed her.”

¶24. Dr. Martin’s article — co-authored by Dr. Bofill and three other members of the Department of Obstetrics and Gynecology at UMMC — reexamined Foster’s case and course of treatment after her death. In this article, they accepted, rather than challenged, the pathologists’ finding that TTP had caused Foster’s death, based on the results from the ADAMTS13 test and Foster’s signs and symptoms of TTP.

¶ 25. As already stated, Dr. Greenberg testified that, based upon the signs and symptoms documented in Foster’s medical records and the ADAMTS13 test results finding both low ADAMTS13 activity and presence of antibody inhibitor, she died of TTP. He also pointed out that Foster’s tissue samples showed the presence of mi-crothrombi. Dr. Bofill admitted — and the lab results reported in the Journal of Medical Apheresis article showed — that the presence of microthrombi in the tissue samples is consistent with TTP.

¶26. The experts’ testimony in this case conflicts considerably, and we consistently have held that the trier of fact is to resolve conflicting testimony. We ordinarily will not disturb those findings merely because the judge adopts the testimony of one party’s experts over the views expressed by another party’s experts.

Judge Green did not refuse “to allow UMMC’s expert and UMMC’s treating physician to comment about the content of the autopsy report,” as claimed by UMMC.

¶ 27. UMMC next argues that the trial court erred by excluding testimony of Dr. Baha Sibai’s and Dr. Martin. We first must determine what testimony, if any, Judge Green excluded so we can fairly decide if it should have been admitted. But, first, we review what actually happened at trial.

Dr. Baha Sibai

¶28. In its designation of experts, as supplemented, UMMC designated Dr. Si-bai as an expert in obstetrics and gynecology to “give general testimony about the care given to Tamika Foster and the rationale behind the treatment.” The designation also disclosed, in general terms, that Dr. Sibai was expected to testify about HELLP and TTP, but it never mentioned any expected opinions related to the autopsy report or the pathologists’ opinions.

¶ 29. During Dr. Sibai’s direct testimony at trial, UMMC’s counsel began questioning him about the autopsy report findings. Plaintiffs’ counsel objected to Dr. Sibai’s “commentary about the autopsy and the findings of the autopsy,” arguing that they were outside his area of expertise. Judge Green sustained the objection, stating to the witness: “[Y]ou can’t testify to the pathology report as to physicians who are pathologists, and that’s outside your area of expertise.”

¶ 30. When Dr. Sibai’s testimony continued, UMMC’s counsel asked: “[a]nd TTP patients, what type of things would you expect to see in the patients who you’ve treated for TTP who died and you reviewed the report. What would you see?” Plaintiffs’ counsel again objected. Although Judge Green never ruled on the objection, a discussion ensued, ending with Judge Green asking: “[W]hy are we going through the autopsy report?” UMMC’s counsel answered: “I’m not going to continue going through it if I could just ask two questions.” Judge Green responded: “If you would ask those two questions, then we will be on our way.” After the above exchange, UMMC’s counsel asked several more questions, without objection and tendered the witness. And it appears to us that the trial judge ultimately allowed UMMC’s counsel to ask Dr. Sibai the questions he wanted to ask.

Dr. James Martin

¶ 31. UMMC also designated Dr. James Martin as an expert in obstetrics and gynecology. According to UMMC, Dr. Martin was expected to testify about Foster’s medical condition, her treatment, and his opinion that she had HELLP syndrome. The designation mentions neither the pathologists’ opinions nor the autopsy report.

¶ 32. Dr. Martin testified at length— without objection — about Foster’s medical condition, her care and treatment at UMMC, his opinion that she died of HELLP, and that UMMC followed the standard of care in treating her. When UMMC’s counsel began to ask questions about the autopsy, Judge Green — on her own and not in response to an objection— told UMMC’s counsel:

I’m going to limit you, counsel, in terms of the autopsy report the same as I did with Dr. Sibai. So let’s move along. This was done at University by the pathology department. So let’s don’t get too deep into it.

UMMC’s counsel responded: “I won’t.”

¶ 33. Following this exchange, Dr. Martin testified — without objection — about the substance of discussions that took place at an autopsy conference he attended at the request of the pathology department.

UMMC failed to make a proffer of the testimony it expected from Dr. Sibai or Dr. Martin.

¶34. UMMC alleges in its brief that Judge Green prohibited Dr. Sibai and Dr. Martin from testifying “about the autopsy report.” We are unable to find any such prohibition in the record. Judge Green prohibited Dr. Sibai from giving “opinions about” the pathology report, because, as she put it, “I think that he’s not an expert in pathology, and I wouldn’t let a pathologist get here and testify to his work.” She later applied the same ruling to Dr. Martin.

¶ 35. We might view this issue differently, had UMMC’s counsel brought to our attention some reasonably specific testimony or opinion it wished to elicit from Dr. Sibai and Dr. Martin. But without a proffer, Judge Green had no opportunity to correct the mistake (if there was one), and we have no way to judge whether the opinions UMMC claims were excluded, were sufficiently important to require reversal. Rule 103 of the Mississippi Rules of Evidence states:

Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

¶ 36. In speaking to this issue, we have said that we will not reverse a judgment unless it can be shown, upon examining the record, that the “error was actually prejudicial and harmful to the rights of the complaining party.” And we:

must be able to see from the record itself whether the offered testimony would be material and of benefit to the merits of the case, and whether its exclusion was actually harmful and prejudicial to the [proponent of the evidence].

¶ 37. “In the absence of a meaningful proffer, we cannot place the lower court in error.” Therefore, because UMMC’s counsel failed to make a proffer at trial, or to this Court on appeal, we affirm the trial court’s ruling.

CONCLUSION

¶ 38. The Court of Appeals erred in reversing and rendering judgment in favor of UMMC. The trial judge’s findings were supported by substantial credible evidence, and any error associated with Judge Green’s ruling on expert testimony was not preserved with an appropriate proffer of the expected testimony. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Hinds County Circuit Court.

¶ 39. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Miss.Code Ann. §§ 11-46-1 to 23 (Rev. 2012).

      . City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000) (citations omitted).

      . Id.

      . See Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 147 (Miss.2007).

      . Univ. of Miss. Med. Ctr. v. Foster, 107 So.3d 155, 160 (¶¶ 17-18) (Miss.Ct.App.2011).

      . Jonathan F. Rehberg, M.D.; Christian M. Brieiy M.D.; William T. Hudson, M.D.; James A. Bofill, M.D.; James N. Martin, M.D., Thrombotic Thrombocytopenic Purpura

        Masquerading as Hemolysis, Elevated Liver Enzymes, Low Platelets (HELLP) Syndrome in Late Pregnancy, in 108 Obstetrics & Gynecology, 817-820 (2006) (emphasis added).

      .Dr. George is head of hematology at the University of Oklahoma. According to Dr. Greenberg, Dr. George is "recognized as a leader for thrombocytopenia ... including pregnancy and TTP.”

      . Dr. Moake is a UMMC hematologist who testified by deposition.

      . (Emphasis added.)

      . D.M. Dwyre, et al., Value of ADAMTS13 Activity and Inhibitor in the Postmortem Diagnosis of Thrombotic Thrombocytopenic Purpura, in J. Clinical Apheresis (Feb. 27, 2009).

      . Id.

      . Univ. Med. Ctr. v. Martin, 994 So.2d 740, 746 (Miss.2008).

        . Id. at 748.

      . Miss. R. Evid. 103.

      . Illinois Cent. R. Co. v. Benoit Gin Co., 248 So.2d 426, 429 (Miss.1971) (citations omitted).

      . Dazet v. Bass, 254 So.2d 183, 187-88 (Miss.1971).

        . See Knotts by Knotts v. Hassell, 659 So.2d 886, 891 (Miss.1995) (finding no reversible error when the trial court excluded plaintiff's expert on the ground that the testimony would be cumulative when plaintiff failed to make a proffer for court to determine if the testimony would be different or noncumulative).


author: ISHEE, J., RUSSELL, J.,

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellant v. Donnie FOSTER and Shirley Foster as Legal Guardians of the Minor Child, Malik R. Caldwell and On Behalf of the Wrongful Death Beneficiaries of Tamika Foster, Appellees.
    No. 2010-CA-00791-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied June 19, 2012.

      Walter T. Johnson, Robert H. Pedersen, Joseph G. Baladi, attorneys for appellant.
    David C. Dunbar, attorney for appellees.
   ISHEE, J.,

for the Court:

¶ 1. In 2005, Tamika Foster was treated at the University of Mississippi Medical Center (UMMC) on several occasions for various abnormal symptoms she was experiencing during her pregnancy. On August 18, 2005, Foster was diagnosed with Class I hemolysis, elevated liver enzyme levels, and low-platelet-count syndrome (HELLP). Thereafter, Foster gave birth at UMMC and later admitted to the intensive care unit (ICU) with continuing symptoms of pain, nausea, and vomiting. On August 20, 2005, Foster went into respiratory arrest and died. An autopsy was performed several days after Foster passed away. The autopsy included a test for thrombotic thrombocytopenia purpura (TTP). On November 30, 2005, the autopsy report was finalized; the report stated the cause of death was myocardial ische-mia with arrhythmia secondary to TTP. However, Foster’s death certificate stated that she died of HELLP. Foster’s parents later filed suit in the Hinds County Circuit Court against UMMC on behalf of Foster’s minor child, Malik R. Caldwell, claiming UMMC was negligent in failing to diagnose and treat Foster for TTP and that the negligence was a proximate contributing cause of Foster’s wrongful death. During the bench trial on the matter, the circuit court focused heavily on the autopsy report. UMMC objected to the circuit court’s use of the autopsy report in its analysis because the circuit court refused to allow UMMC to present expert testimony regarding the content of the autopsy report and statistical evidence showing TTP tests using postmortem blood are unreliable. Despite UMMC’s protests, the circuit court concluded that based on the autopsy report, UMMC had breached the standard of care by negligently failing to diagnose and treat Foster for TTP and that the TTP was a contributing cause of Foster’s wrongful death. The circuit court then entered a judgment against UMMC in the amount of $500,000. Aggrieved, UMMC appeals, claiming the circuit court erred in its reliance upon an invalid test when concluding that UMMC was negligent and that the court erred when it refused to allow UMMC’s expert and treating physician to testify as to the content of the autopsy report. We agree; accordingly, we reverse the judgment of the circuit court and render.

STATEMENT OF FACTS

¶ 2. On January 25, 2005, Foster arrived in the UMMC obstetrics department (OB) complaining of blurred vision and a headache. After an evaluation, she was prescribed medication and sent home. Five days later, Foster returned to the OB with high blood pressure. She was diagnosed with gestational diabetes and was, therefore, deemed to have a high-risk pregnancy. On August 8, 2005, Foster reported to the OB High Risk Clinic for her initial visit. Four days later, she arrived at the OB complaining again of blurred vision as well as numbness in her fingertips and toes. Finally, on August 18, 2005, she returned to the OB with complaints of nausea, burning in the upper abdomen, vomiting, epigastric pain, intermittent headaches, and some urinary urgency. She was diagnosed with HELLP, which is a serious disease in pregnant women. HELLP and TTP are two separate causes of thrombocytopenia, which is a decrease in the number of platelets in the blood. Foster was taken to labor and delivery, where her baby boy was delivered via a cesarean section.

¶ 3. The following day, the record indicates Foster’s condition improved. She was restful through the night; her pain, nausea, and vomiting ceased. However, on August 20, 2005, her condition worsened, and she went into respiratory arrest. She died at approximately 4:00 a.m.

¶ 4. On August 23, 2005, an autopsy was performed. The autopsy included an ADAMTS13 test, which determines the existence of TTP. Generally speaking, pertinent TTP symptoms include microan-giopathic hemolytic anemia; neurological abnormalities including confusion, headache, paresis, visual hallucinations, and seizures; fever; and renal dysfunction. On November 30, 2005, the autopsy report was signed and released. Therein, the autopsy stated the cause of death was myocardial ischemia with arrhythmia secondary to TTP. In sum, Foster was stated to have had TTP and to have died from arrhythmia, an abnormal heart rhythm, caused by TTP. However, Foster’s death certificate stated that she died of HELLP.

¶ 5. Foster’s parents filed suit in circuit court against UMMC on behalf of Malik. Foster’s parents asserted that UMMC was negligent in failing to diagnose and treat Foster for TTP, which contributorily caused her death. Specifically, Foster’s parents argued that had UMMC delivered Foster’s baby earlier than August 18, 2005, the progression of TTP would have been less severe and more manageable. A bench trial on the matter was held on June 8, 2009, in the circuit court.

¶ 6. At trial, UMMC’s theory of the case was that Foster did not have TTP, but had HELLP, and that UMMC adhered to the proper standard of care required for treating pregnant women in their third trimester who suffer from HELLP. UMMC further argued that delivering Foster’s baby earlier would have endangered the child, and even if the baby had been delivered earlier, Foster would have suffered from HELLP nonetheless.

¶ 7. In support of its theory, UMMC presented Dr. Baha Sibai as its expert witness. Dr. Sibai was tendered as an expert in obstetrics and gynecology, and Dr. Sibai explained his extensive knowledge of HELLP and TTP. At trial, Dr. Sibai attempted to testify regarding the ADAMTS13 test for TTP and the invalidity of the test’s results when using postmortem blood. Foster’s parents’ counsel objected to Dr. Sibai testifying regarding the finding of TTP in the autopsy report because it was allegedly outside his area of expertise. Counsel for Foster’s parents asserted that only a pathologist could testify as to the ADAMTS13 test. The circuit court sustained Foster’s parents’ counsel’s objection over UMMC’s protests.

¶ 8. Instead, Dr. Sibai was limited to an explanation as to why he believed Foster had HELLP and not TTP. He was also briefly allowed to opine as to how UMMC met the proper standard of care in its treatment of Foster. He further testified regarding his use of the ADAMTS13 test on living patients using live blood and what he looks for in the patients and in the test results. Even though Dr. Sibai outlined his ample knowledge of HELLP, TTP, and the ADAMTS13 test, he was not allowed to testify as to his experience with the ADAMTS13 test using postmortem blood and why the use of postmortem blood corrupts the results.

¶ 9. Next, UMMC presented witness testimony from Foster’s treating physician, Dr. James Martin. Foster’s parents’ counsel objected to Dr. Martin being tendered as an expert in obstetrics and requested that Dr. Martin be limited as simply a treating physician. The circuit court sustained the objection and refused to allow Dr. Martin to testify as to his opinion regarding the ADAMTS13 test results for TTP. Dr. Martin was only allowed to testify about the autopsy report’s findings, but not as to his opinion as to whether or not the findings were accurate for TTP. Dr. Martin offered his opinion as to why he believed Foster had HELLP, but he was not allowed to challenge the autopsy report’s finding of TTP via the ADAMTS13 test using postmortem blood.

¶ 10. At the conclusion of the three-day bench trial, the circuit judge ruled against UMMC in the amount of $1,230,965, which was reduced to the statutory limit of $500,000. The circuit judge then issued a ten-page order and opinion. Therein, the circuit judge opined that: Foster had TTP; the TTP contributed to her death; and UMMC failed to diagnose and treat the TTP properly, thereby breaching the proper standard of care. However, the circuit judge’s opinion was grounded in the ADAMTS13 test results for TTP found in the autopsy report. No other scientific evidence was presented at trial indicating that Foster had TTP, and the circuit judge did not discuss any supporting evidence that Foster had TTP other than the disputed ADAMTS13 test results.

¶ 11. As such, UMMC appeals, claiming that the circuit court erred in its reliance upon the ADAMTS13 test results, which concluded Foster died of TTP, and that the circuit court erred when it refused to allow UMMC’s expert and treating physician to testify as to their opinions of the contents of the autopsy report. Finding error, we reverse the circuit court’s judgment and render a judgment in favor of UMMC.

DISCUSSION

¶ 12. “This court affords a circuit court judge sitting without a jury the same deference as a chancellor.” Young v. Univ. of Miss. Med. Ctr., 914 So.2d 1272, 1275 (¶ 10) (Miss.Ct.App.2005) (citing City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000)). As such, “after reviewing the entire record, we will affirm if the judge’s findings of fact are supported by substantial, credible evidence and are not manifestly wrong or clearly erroneous.” Id. However, issues of law are reviewed de novo. Id.

I. Circuit Court’s Reliance on the Autopsy Report

¶ 13. The circuit court held that UMMC had breached the proper standard of care by failing to diagnose Foster with TTP when she arrived at UMMC for treatment on August 12, 2005, and on August 18, 2005. After a thorough review of the record and the circuit judge’s written memorandum and opinion, it is clear the judge primarily based her ruling on Foster’s autopsy report. The circuit court’s order states in pertinent part:

Tamika Foster’s autopsy report by Defendant UMMC’s own pathologists concluded that the cause of death was myocardial ischemia with arrhythmia, secondary to thrombotic thrombocy-topenia purpura (TTP) with a history of HELLP. TTP was never diagnosed prior to Tamika’s death.... This Court finds the autopsy report of Defendant UMMC’s pathologists’ [sic] to be credible and reliable. Despite Defendant’s challenge of the methods and tests used by the UMMC pathologists, the pathologist [sic] have stood firm regarding their objective finding of TTP as the cause of Tamika’s death rather than HELLP. Thus, the autopsy findings lean heavily in favor of Plaintiffs [sic] claim that Defendant UMMC’s physicians failed to timely diagnose TTP and that said failure proximately cause [sic] Tameka’s [sic] untimely death_ Tamika’s medical records attest to Defendant UMMC’s failure to aggressively monitor and treat what they mistaking [sic] believed was HELLP.

¶ 14. The autopsy report is the only physical evidence asserting that Foster died of TTP. Her diagnosis at the hospital and the cause of death listed on her death certificate both reflect that Foster contracted and died of HELLP. Foster’s parents do not contend UMMC breached the applicable standard of care for its treatment of Foster with HELLP. They do not address UMMC’s care of Foster as related to HELLP. Rather, they argue Foster died of TTP and her death was the result of UMMC misdiagnosing Foster with HELLP and failing to diagnose or treat Foster for TTP. As such, the pivotal question of the case was whether or not Foster had TTP. If Foster did not have TTP, but instead had HELLP, then UMMC would not have been charged with breaching the standard of care in treating Foster. Accordingly, the circuit court’s analysis in determining whether or not Foster had TTP is paramount to our review.

¶ 15. As discussed later, the circuit court refused to allow UMMC to provide expert testimony as to why the conditions listed in the autopsy report regarding TTP were unreliable. With regard to the validity of the autopsy report’s finding of TTP, the circuit judge only credited testimony from hematologists. However, the two hematologists that testified either specifically stated that using postmortem blood in the ADAMTS13 test makes the results unreliable or stated they were unaware at the time the test was conducted of the studies showing that postmortem blood corrupted the test results.

¶ 16. UMMC’s hematologist, Dr. Joel Lawrence Moake, stated the doctors at his pathology lab “don’t accept postmortem samples because they’re not reliable.” He went on to state: “I’ve run a lab for twenty years[,] and we don’t accept [postmortem blood] samples.” While Foster’s parents’ hematologist, Dr. Charles Greenberg, did link Foster to TTP, he only did so through the autopsy report. Dr. Green-berg testified that as of August 18, 2005, the lab results would have given either a diagnosis of HELLP or TTP, but would not have distinguished between the two diagnoses:

Q: So you agree that as of August 18th, HELLP and TTP are the differential diagnosis [sic]?
A: Yes sir, in the differential, yes.

He further admitted his opinion, that Foster died of TTP, was based upon the autopsy report results:

Q: Your opinion that she died of TTP as you just said was based on the lab test deficiency in ADAMTS13; is that correct?
A: Both a deficiency in the activity and the presence of an inhibitory antibody activity.

¶ 17. Indeed, after reviewing the expert testimony presented at trial and in depositions, we cannot find any testimony directly linking Foster to having had TTP. Dr. Sibai and Dr. Martin both testified that Foster had HELLP and that she was properly treated for HELLP. Foster’s parents’ expert in obstetrics and gynecology could not expressly state that Foster had TTP. He could only state the following:

A: I think that the main point on August 12th was that she had symptoms. She had neurological symptoms. She had an unexplained low platelet count. The diagnosis was not clear at this point. I’m not going to say it was HELLP syndrome. We can’t say it was TTP, TTP. It was uncertain.
Q: You don’t disagree with the diagnosis of HELLP on August the 18th, '05 when she presented, do you?
A: No, I don’t.
A: The final autopsy report revealed TTP, thrombotic thrombocytopenic purpura.

(Emphasis added).

¶ 18. Here, there was no expert testimony which supported to a reasonable degree of medical certainty the notion that Foster had TTP. Only the autopsy report concretely linked Foster with having had TTP. The Mississippi Supreme Court has stated: “A conclusion for which there was no underlying medical support was not vindicated by the use of general methodology in the medical field.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 38 (¶ 19) (Miss.2003) (citation omitted).

¶ 19. We can find no evidence in the record, other than the autopsy report, to support a determination that Foster had TTP and that she died because UMMC failed to treat her properly for TTP. Furthermore, the conclusions of the autopsy report stating Foster died of TTP are questionable, at best. Because we have concluded that there was insufficient evidence to support a finding that Foster had TTP and died of TTP, we cannot find that UMMC was negligent. As such, we find reversible error in the circuit court’s reliance on the autopsy report.

II. Refusal to Allow UMMC’s Expert Witnesses to Testify

¶ 20. The circuit judge acknowledged that UMMC challenged the methods and tests used in the autopsy report. However, the circuit judge could not have understood the full extent of UMMC’s concerns because she refused to allow UMMC’s expert and treating physician to testify regarding their opposition to the use of postmortem blood in ADAMTS13 tests. As noted above, the circuit court made substantial reference throughout its ten-page opinion to the autopsy report’s finding of TTP, but the court never addressed UMMC’s objections regarding the validity of the test. The circuit court only stated that the experts UMMC presented for testimony were not qualified to comment on the ADAMTS13 test because they were not pathologists. However, both Dr. Sibai and Dr. Martin testified regarding their extensive knowledge of TTP and HELLP as well as the applicable tests for HELLP and TTP.

¶ 21. Mississippi Rule of Evidence 702 governs testimony by experts, stating:

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.

The Mississippi Supreme Court has also stated, “a witness need not be a specialist in any particular profession to testify as an expert.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶ 17) (Miss.2007) (citation omitted). Rather, “[t]he scope of the [expert] witness’s knowledge and experience, and not any artificial classification, governs the question of admissibility.” Id.

¶ 22. Here, it is obvious that both Dr. Sibai and Dr. Martin were well versed in the areas of HELLP and TTP. Both doctors testified that they had studied, researched, published, and treated both conditions for decades, during which time they had become expertly knowledgeable with the ADAMTS13 test since the use of the test indicated the presence of TTP.

¶ 23. Dr. Sibai explained his extensive knowledge in the field of HELLP, including his role as a professor in obstetrics and maternal fetal medicine and the hundreds of articles, papers, and studies he had completed on the characteristics of HELLP, how to test for the syndrome, and how to treat the syndrome. Dr. Martin outlined his then-twenty-eight year employment with UMMC, including his twenty-year role as the Chief of Maternal Medicine and Obstetrics. Dr. Martin then discussed his extensive study of HELLP and TTP during his career and his ten to fifteen-year work with the Director of Hematology at UMMC researching and treating conditions that are associated with HELLP and TTP.

¶ 24. The doctors should not have been prevented from testifying about specific conditions described in the autopsy report because of their extensive experiences and observations of patients with HELLP and TTP. We find the circuit court’s refusal to allow UMMC’s experts to testify regarding the autopsy report’s finding of TTP to be reversible error.

¶ 25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

GRIFFIS, P.J., BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J. LEE, C.J., AND MYERS, J., NOT PARTICIPATING.

RUSSELL, J.,

dissenting:

¶ 26. The circuit court listened to testimony from several witnesses, observed their demeanor, and carefully reviewed the evidence submitted by Tamika Foster’s wrongful-death beneficiaries (collectively “Fosters”) and the University of Mississippi Medical Center (UMMC). After observing a trial replete with evidence showing that UMMC’s negligent treatment of Foster had caused her death, the circuit court entered a judgment against UMMC. As I find this Court should defer to the circuit court’s decision and affirm the judgment, which is supported by substantial, credible evidence, I must respectfully dissent.

¶ 27. As the Mississippi Supreme Court recently reaffirmed, “[o]ur longstanding case law is clear that the failure to make a contemporaneous objection to the evidence waives the issue on appeal.” InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 719 (¶ 28) (Miss.2011) (citation and internal quotations omitted). While UMMC claims the circuit court improperly relied on the autopsy report that was generated by UMMC’s own pathologists, this issue is, in fact, procedurally barred. At trial, UMMC could have objected to the autopsy report’s admissibility; it did not. Because UMMC failed to challenge the admissibility of the autopsy report at trial, this issue is not properly before this Court.

¶28. Notwithstanding the procedural bar, this Court should reverse and render if considering “the evidence in the light most favorable to the ...” Fosters, the facts “point so overwhelmingly in favor of ...” UMMC’s claims “that reasonable [jurors] could not have arrived at a contrary verdict....” White v. Stewman, 932 So.2d 27, 32 (¶ 10) (Miss.2006) (citations omitted). Thus, our review should focus on whether the circuit judge, as the trier of fact, had substantial evidence before her to determine that the autopsy report was credible and reliable. See Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 147 (¶¶ 23-26) (Miss.2007). Here, neither the testimonies of Dr. James Martin and Dr. Baha Sibai nor the 2009 study on the postmortem diagnosis of thrombotic thrombocytopenia purpura (TTP) were sufficient to challenge the autopsy report’s reliability.

¶ 29. UMMC contends the circuit court improperly excluded expert testimony on the reliability of the autopsy report, but “[a] trial judge’s decision as to whether a witness is qualified to testify as an expert is given the widest possible discretion.” Id. at 145 (¶ 13). Well before trial, UMMC knew its own pathologists had concluded in Foster’s autopsy report that TTP was her cause of death. Instead of tendering an expert in the field of pathology to challenge the autopsy report, UMMC called two obstetrician-gynecologists (OB-GYN) — Dr. Martin and Dr. Sibai. In this case, the circuit court decided to limit Dr. Martin’s and Dr. Sibai’s testimonies regarding the autopsy report, since neither doctor was qualified to testify in the field of pathology. The Pounders opinion requires us to defer to the circuit court’s decision to limit their testimonies. Further, in a case with similar facts, our supreme court determined that the circuit judge did not abuse his discretion by not allowing an OB-GYN to testify as to the cause of death. See Worthy v. McNair, 37 So.3d 609, 616-17 (¶¶ 21-26) (Miss.2010).

¶ 30. Additionally, the circuit court properly determined that the 2009 study tendered by UMMC did not change the reliability of Foster’s postmortem TTP diagnosis. First, Dr. Charles Greenberg explained why the study’s results did not invalidate Foster’s autopsy report. Unlike Foster, the study’s subjects had no clinical signs of TTP before their deaths. Further, Dr. Greenberg testified that UMMC had no scientific basis to dispute the reliability of Foster’s ADAMTS13 test results; ADAMTS13 test results were part of the standard, accepted method of making a postmortem diagnosis of TTP. And Dr. Joel Moake admitted that his lab’s practice of refusing postmortem blood samples was not the accepted practice in the scientific community. Second, Foster’s tissue samples indicated the presence of microthrom-bi in Foster’s organs, a finding critical to a clinical diagnosis of TTP. None of the study’s subjects had mierothrombi in their tissue samples. Since the circuit court, sitting as the fact-finder, had substantial evidence to reject UMMC’s challenge to the sufficiency of the autopsy report, the judgment should be affirmed.

¶ 31. The circuit court’s opinion and order also points to evidence other than the autopsy report to support the finding that Foster had died from TTP. Shortly after Foster died, Dr. Martin, her treating physician, co-authored a journal article discussing Foster’s treatment at UMMC. In that article, Dr. Martin concluded that Foster had TTP, and her treatment should have been managed differently. It matters not that at trial, Dr. Martin changed his .opinion, as his article admitted that Foster had signs of TTP before her death. Dr. Greenberg also concluded that Foster had TTP. He based his opinion on the presence of certain inhibitory antibodies in Foster’s blood and the clinical signs of TTP reflected in her medical records. Finally, Dr. Robert Stern also testified that Foster had symptoms indicative of TTP. Because this evidence further supports the circuit court’s finding that Foster died from TTP, this Court should affirm the judgment.

¶ 32. Moreover, the complaint and the circuit court’s order and opinion reflect the Fosters’ allegation that UMMC also breached the standard of care for evaluating and treating hemolysis, elevated liver enzyme levels, and low-platelet-count syndrome (HELLP). -Specifically, the circuit court’s opinion and order states:

[ A]ll experts agree that plasma exchange therapy was the appropriate standard [of] care for the treatment of TTP and unrelenting HELLP patients whose symptoms fail to abate within 72 hours of deliver. [Foster]’s medical records attest to Defendant UMMC’s failure to aggressively monitor and treat what they mistaking[ly] believed was HELLP.

The record supports this finding. Dr. Stern testified that UMMC failed to admit Foster to the hospital on August 12th and monitor her condition. Dr. Stern and Dr. Greenberg both explained that the standard of care required UMMC to consult a hematologist after Foster’s treatment regimen for HELLP did not improve her condition. Dr. Greenberg added that UMMC should have initiated plasma-exchange therapy when Foster’s condition did not improve after she delivered her child. Substantial, credible evidence also supports the circuit court’s determination that UMMC’s negligent treatment for HELLP caused Foster’s death.

¶ 33. The evidence in this case belies UMMC’s claim that its own pathologists produced an unreliable autopsy report. And even without the autopsy report, the evidence still supports the circuit court’s finding that Foster died of TTP. Further, the circuit court did not abuse its discretion in limiting the testimonies of Dr. Martin and Dr. Sibai regarding the autopsy report, as they were not present during the autopsy and were not experts in the field of pathology. After reviewing the record, I find substantial, credible evidence to support the circuit court’s conclusion that UMMC’s breach of the standard of care for treating HELLP or TTP caused Foster’s death. Accordingly, I would affirm the judgment.

IRVING, P.J., JOINS THIS OPINION.

      . The study compared postmortem tissue and postmortem blood samples from four subjects without TTP to a subject with TTP. The tissue samples were evaluated for the presence of microthrombi. The blood samples were evaluated for ADAMTS13 activity levels and ADAMTS13 inhibitor levels. The TTP tissue sample had microthrombi, a finding consistent with a clinical diagnosis of TTP. The non-TTP tissue samples did not have microthrom-bi. But some of the non-TTP blood samples were similar to the TTP blood sample. Therefore, the study concluded that "caution” should be used when testing postmortem blood to make a TTP diagnosis because the ADAMTS13 activity levels "may not” be valid. Importantly, the expert witnesses at trial explained that the study’s results would not invalidate Foster’s postmortem diagnosis of TTP. Unlike the non-TTP subjects, Foster had: (1) clinical signs of TTP before her death; (2) microthrombi present in her heart, lungs, kidneys, thyroid, and adrenal glands; and (3) levels of ADAMTS13 activity and ADAMTS13 inhibitor consistent with a diagnosis of TTP.


author: RUSSELL, J.,

text:
    Danny McGLEACHIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00798-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 20, 2012.
    Certiorari Denied Feb. 14, 2013.
    Danny McGleachie, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Danny McGleachie appeals the Washington County Circuit Court’s grant of his motion for post-conviction relief (PCR). He argues that the circuit court erred in reducing his fine from $6,000,000 to only $2,000,000, and that the fine should have been reduced more. Upon review, we find that the $2,000,000 fine was within the limits of the applicable statute. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 10, 1995, McGleachie was convicted of possession of cocaine with intent to distribute. He was sentenced as a subsequent offender to serve sixty years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a fine' of $6,000,000. This Court affirmed his conviction on direct appeal without published opinion. See McGleachie v. State, 726 So.2d 596 (Miss.Ct.App.1998).

¶ 3. On October 13, 2010, the Mississippi Supreme Court granted McGleachie leave to proceed with his PCR motion in the circuit court, limited to the claim that the $6,000,000 fine was illegal. On December 2, 2010, McGleachie filed a PCR motion, arguing that the $6,000,000 fine exceeded the maximum amount allowed by statute. On May 16, 2011, the circuit court entered an order granting McGleachie’s PCR motion and reduced the fine from $6,000,000 to $2,000,000 in accordance with the applicable statute. McGleachie’s sixty-year sentence was left intact, and he does not dispute his sentence on appeal.

DISCUSSION

¶ 4. McGleachie argues that the circuit court’s reduction of the fine imposed against him from $6,000,000 to $2,000,000 was not a big enough reduction. “This Court has held that ‘sentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.’ ” Miller v. State, 973 So.2d 319, 321 (¶ 7) (Miss.Ct.App.2008) (quoting Falconer v. State, 873 So.2d 163, 164 (¶ 6) (Miss.Ct.App.2004)). “As a general rule, a sentence will not [be] disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Stromas v. State, 618 So.2d 116, 122 (Miss.1993).

¶5. Under Mississippi Code Annotated section 41-29-139(b)(l) (Supp.2011), a person convicted of possession of cocaine with intent to sell or distribute “may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,-000.00), or both[.]” Further, “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Miss. Code Ann. § 41-29-147 (Rev.2009).

¶ 6. McGleachie was fined $1,000,000, which was doubled under section 41-29-147. Thus, the $2,000,000 fine was within the limits prescribed by statute. Therefore, we affirm the circuit court’s order reducing the fine from $6,000,000 to $2,000,000.

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

■ LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

      . McGleachie previously pled guilty to conspiracy on February 18, 1986. McGleachie v. State, 800 So.2d 561, 562 (¶ 2) (Miss.Ct.App.2001). On June 26, 1987, McGleachie entered a plea of guilty to conspiracy to deliver marijuana. Id.


author: ISHEE, J.,

text:
    John Barry BOWEN, Appellant v. Patricia Lynn (Curico) BOWEN, Appellee.
    No. 2010-CA-01741-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.
    Rehearing Denied Dec. 4, 2012.
    Certiorari Denied Feb. 14, 2013.

      Joe Morgan Wilson, Senatobia, attorney for appellant.
    Nancy Ball Liddell, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On November 16, 2005, the DeSoto County Chancery Court granted John and Patricia Bowen a divorce based on irreconcilable differences. On May 4, 2010, the chancery court found John in contempt for failure to pay child support and increased his child-support obligation. The chancery court awarded Patricia attorney’s fees of $10,000 and held Patricia was not in contempt of court. Aggrieved, John appeals the chancery court’s judgment. With regard to the award of attorney’s fees, we reverse and remand in part for further proceedings consistent with this opinion. Finding no further error, we affirm as to all other issues.

FACTS AND PROCEDURAL HISTORY

¶ 2. John and Patricia were married on October 15, 1998, in Shelby County, Tennessee. Their twin children were born on April 2, 1991. On November 16, 2005, the chancery court granted a divorce based on irreconcilable differences. At that time, John and Patricia were granted joint physical and legal custody of their children. Pursuant to the final decree of divorce, John’s visitation included every other weekend, one full week each month, and four weeks during the summer.

¶ 3. John was ordered to pay $300 per month in child support and $150 per month for one-half of the children’s medical-insurance premiums. The payments were due at the first of each month. John was also ordered to maintain a $100,000 life-insurance policy for himself, naming the children as irrevocable beneficiaries until they were emancipated. Both parties were ordered to share the cost of the children’s school expenses and extracurricular activities. John paid his monthly child-support payments and reimbursements for the children’s medical-insurance premiums through the DeSoto County Chancery Clerk’s Office. The chancery clerk charged a $5 administrative fee each time child-support payments were forwarded to the recipient.

¶4. On March 7, 2006, Patricia filed contempt petition based on John’s failure to pay child support and his portion of the children’s medical-insurance premiums. Patricia later filed an amended petition on June 30, 2008. John filed a counter-petition for contempt alleging Patricia had interfered with his visitation with the children. Thereafter, a hearing was held on April 9, 2009. After hearing testimony, the chancellor found John in contempt for failure to pay child support and his portion of the children’s medical-insurance premiums. The chancery court also modified the final decree of divorce and increased John’s monthly child-support payments from $300 to $500 per month. The chancery court awarded Patricia $10,000 in attorney’s fees and found Patricia was not in contempt of court.

¶5. Aggrieved, John alleges the chancery court erred by (1) failing to find the Mississippi Department of Human Services (DHS) was a necessary party; (2) finding him in contempt of court; (3) increasing his child-support obligation; (4) failing to find Patricia in contempt of court; and (5) granting Patricia’s request for $10,000 in attorney’s fees.

STANDARD OF REVIEW

¶ 6. The standard of review in domestic-relations cases is limited. Arrington v. Arrington, 80 So.3d 160, 164 (¶ 11) (Miss.Ct.App.2012) (citing In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010)). “The findings of a chancellor will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous!,] or an erroneous legal standard was applied.” Id. (internal quotation omitted). We review questions of law de novo. Id.

DISCUSSION

I. DHS as a Necessary Party

¶ 7. John contends the chancery court erred by failing to find DHS was a necessary party. DHS was originally named as a party in the contempt proceedings from early 2006 through 2007. John initially listed DHS as a party defendant, claiming DHS wrongfully suspended his driver’s license due to nonpayment of child support. Beginning in 2008, however, DHS was no longer listed as a party in the contempt proceedings. John argues the chancery court’s judgment should be reversed and this case remanded for further proceedings to include DHS as a party.

¶ 8. Mississippi Rule of Civil Procedure 19(a)(1) provides: “A person ... shall be joined as a party in [an] action if ... in his absence complete relief cannot be accorded among those already parties!.]” Mississippi Rule of Civil Procedure 21 further provides: “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.”

¶ 9. The underlying issue in the present case is John’s failure to pay child support and his portion of the children’s medical-insurance premiums. Pursuant to the chancery court’s order, John was required to pay $300 per month in child support and $150' per month in medical-insurance premiums. These amounts, as indicated by the chancery court’s order, were undisputed. We cannot say DHS is necessary for complete relief to be accorded. DHS has not participated in any proceeding since 2008. Moreover, DHS could not have offered any further testimony regarding John’s nonpayment of child support that had not already been established.

¶ 10. In addition, John testified that once he became current on his child support payments, DHS reinstated his driver’s license, and after DHS reinstated his driver’s license, he began making his child-support payments through the chancery court, not DHS. This supports the conclusion that DHS was not a necessary party to the contempt proceedings. Accordingly, this issue is without merit.

II. John’s Contempt of Court

¶ 11. John contends the chancery court erred by finding him in contempt for failure to pay child support. Specifically, he argues that because he always made his monthly payments before they were thirty days delinquent as provided by Mississippi Code Annotated section 93-11-71 (Supp. 2011), he should not have been found in contempt. However, the divorce decree provides: “Child support shall be due no later than the first (1st) of the [m]onth beginning December 1, 2005.”

¶ 12. John admits in his own brief he was frequently late in making his monthly child-support payments. John even offered testimony regarding at least three different months in which he paid child support and insurance premiums after the first of the month. This was also evidenced by the numerous letters from Patricia’s attorney demanding that John become current on his support obligations. John erroneously assumes the chancery court’s order contained a provision that allowed him to become thirty days delinquent in his monthly payments before his payments were considered late.

¶ 13. Because the chancery court acknowledged that John attempted to purge himself of his contempt by bringing his child-support payments and medical-insurance premiums up-to-date, John claims the chancery court erred by finding him in contempt. However, the chancery court’s finding was not based solely on John’s repeated failure to make timely payments, but also on the $5 charge per payment deducted by the chancery court before forwarding the payments to Patricia. These charges total $135, which still remain unpaid. The chancery court ruled that until John pays this amount in full, his child-support obligation is still in arrears, and he cannot fully purge himself of his contempt. Based on these facts, substantial evidence exists to support the chancellor’s finding. Accordingly, this issue is without merit.

III. Basis for Increase in John’s Child-Support Obligation

¶ 14. “[I]n cases involving child support, we afford the chancellor considerable discretion, and his findings will not be reversed unless he was manifestly in error or abused his discretion.” Sturdavant v. Sturdavant, 53 So.3d 838, 843-44 (¶ 18) (Miss.Ct.App.2011) (quoting Sessums v. Vance, 12 So.3d 1146, 1147 (¶ 3) (Miss.Ct.App.2009)). Child-support modification is warranted if there has been “a substantial or material change in the circumstances of one or more of the interested parties.” Id. at 843 (¶ 15) (quoting Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991)).

¶ 15. John contends the chancery court abused its discretion by increasing his child-support obligation, as there was no basis for the increase. He argues the child-support modification was based on speculative testimony from Patricia. At the hearing, Patricia asserted John makes more money than he reports and that John’s current wife is independently wealthy. However, the chancellor made it clear that the child-support modification was due to the increased needs of the children. At the time of the divorce, both parties anticipated the children would spend considerably more time with John in the future than they had spent with him immediately following the parties’ separation. The chancery court reasoned this change required Patricia to bear most of the cost of feeding, housing, and supporting the children, whereas the divorce decree provided both parties were to split these expenses equally. Also, at the time of the divorce, the children were minors, yet both of the children are now in college and driving. Each of these facts constitutes a material change in circumstance warranting a modification of John’s child-support obligation. The chancery court did not abuse its discretion in finding a basis for an increase in child support. This issue is without merit.

IV. Patricia’s Contempt of Court

¶ 16. Next, John argues the chancery court erred by failing to find Patricia in contempt of court for interfering with his visitation with the children. In finding Patricia was not in contempt, the chancery court reasoned “there was no proof that [Patricia] in any way interfered with [John’s] right to visit with his children.” The chancery court further stated: “[Patricia] advised that she did not interfere with his visitation, and ... in fact, [John] did not attempt to visit with the children as often as he had the right to do so.”

¶ 17. “[I]n a proceeding for criminal contempt of court[,] the evidence of guilt must be established beyond a reasonable doubt.” Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975) (citing Ferguson v. State ex rel. Biggers, 250 So.2d 634 (Miss.1971)). “The respondent may show by way of defense that failure to comply with a court’s decree was not willful or intentional and without fault on her part.” Id.

¶ 18. Patricia acknowledged that there were several instances in which the children did not want to visit John and that she did not “push the issue.” Patricia also admitted she refused to let their daughter visit John whenever the child was ill. Additionally, when asked on cross-examination whether she had interfered with John’s visitation with the children and violated the chancery court’s order, she answered affirmatively to both questions.

¶ 19. Although John cites the above reasons as proof that Patricia inhibited his visitation with the children, Patricia claims the children did not spend much time at John’s house during the first year following the divorce, and, although the custody schedule allowed John to have custody of the children four weeks during the summer, he only kept them once during this allotted time. Furthermore, Patricia contends that John was out of town a significant amount of time during the past several years, even spending three continuous months in Florida, where his current wife resides. Accordingly, while Patricia admits that she did not insist that their children visit their father, she asserts he never tried to enforce his rights.

¶ 20. In Prestwood, the supreme court found that because the mother made an effort to encourage her child to visit the child’s father, even though the child refused, “[the mother’s] failure to comply with the court’s decree was without fault on her part.” Prestwood, 308 So.2d at 85. The supreme court ruled that considering the mother’s efforts, the evidence did not show beyond a reasonable doubt that she willfully and intentionally refused to comply with the chancery court’s decree. Id.

¶ 21. In Goodson v. Goodson, 816 So.2d 420 (Miss.Ct.App.2002), this Court reiterated the holding in Prestwood. In Goodson, the mother declined to force the child to visit the father against the child’s will. Id. at 423 (¶ 5). The chancery court found the mother was in contempt regardless of whether the child wanted to see her father or not. Id. This Court reversed the chancery court’s ruling by finding that “[because [the mother] tried to make [the child] comply with the visitation order and because the child’s refusal to comply was not [the mother’s] fault, she did not act in willful violation of the [chancery] court’s order.” Id. at (¶ 8).

¶ 22. In the instant case, while Patricia did not force the children to visit their father, she did not interfere with the visitation. The children were thirteen years old at the time of the order setting the visitation schedule; thus, they were capable of expressing their desires regarding visitation with their father. Furthermore, the testimony indicates that John did not readily attempt to enforce his visitation rights. He missed scheduled visitations and left town often. Accordingly, we agree with the chancery court that the actions in this case do not rise to the level of a willful violation of the chancery court’s order. Accordingly, we find this issue is without merit.

V. Attorney’s Fees

¶ 28. John contends the chancery court erred by granting Patricia $10,000 in attorney’s fees. “[T]he matter of determining attorney[’]s fees in divorce eases is largely entrusted to the sound discretion of the trial court.” McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) (citing Walters v. Walters, 388 So.2d 827 (Miss.1980)). When assessing whether the amount of attorney’s fees is appropriate, “a sum sufficient to secure one competent attorney is the criterion by which [courts] are directed.” Id. (citing Rees v. Rees, 188 Miss. 256, 194 So. 750, 751 (1940)). With regard to attorney’s fees, the Mississippi Supreme Court has stated:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id. Moreover, the amount of fees assessed “must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary.” Id. Further guidance as to the reasonableness of attorney’s fees is provided by Mississippi Rule of Professional Conduct 1.5(a), which states:

A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

¶ 24. With regard to contempt actions, Mississippi law is clear that “[w]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.” Mabus v. Mabus, 910 So.2d 486, 489 (¶ 8) (Miss.2005) (quoting State v. Blenden, 748 So.2d 77, 87 (¶ 33) (Miss.1999)). However, even in contempt actions, “[t]he reasonableness of attorney’s fees are controlled by the applicable [Rule] 1.5 factors and the McKee factors.” Mabus, 910 So.2d at 489 (¶ 10) (footnote omitted).

¶ 25. When awarding Patricia attorney’s fees, the chancery court stated:

Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, ... the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶ 26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. See Mabus, 910 So.2d at 490 (¶ 14). Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s “repeated, willful refusal to abide by the orders of [the chancery court],” fees not related to the contempt action should not have been included in the award amount awarded.

¶ 27. While we acknowledge attorney’s fees may still be appropriate in this case, we find the chancery court should conduct a McKee analysis to assure the award is reasonable and proper. Accordingly, we reverse and remand in part for further proceedings consistent with this opinion.

¶ 28. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

LEE, C.J., GRIFFIS, P.J., ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


text:
    Dallas B. McCRARY, Appellant v. Marti J. BRIDGES, Appellee.
    No. 2011-CA-01206-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.
    Rehearing Denied Feb. 12, 2013.

      Dawn Davis Carson, Russell Barton Jordan, Hal Scot Spragins Jr., Hernando, attorneys for appellant.
    Alfred Thomas Tucker Jr., Alfred Thomas Tucker III, Tunica, attorneys for appel-lee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from a judgment of the Circuit Court of DeSoto County, Mississippi, which granted a motion for a new trial on the issue of damages. The action arose from a motor-vehicle accident in which Dallas McCrary rear-ended Marti Bridges. McCrary brings three issues for our review: (1) whether the circuit court’s order granting the motion for a new trial on the issue of damages is analogous to a final judgment as a matter of law and is directly appealable; (2) whether the evidence presented at trial was sufficient to support the jury verdict; and (8) whether the jury’s assessment of zero dollars in damages was responsive to the evidence. We find the order granting a new trial on the issue of damages is not a final judgment subject to appellate review. Therefore, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 6, 2007, while Bridges’s vehicle was stopped, McCrary’s vehicle collided with the rear end of Bridges’s vehicle. Bridges’s vehicle sustained minor damage. At the scene of the accident, both parties agreed that they were not injured. On July 15, 2009, Bridges filed a complaint in the circuit court. She alleged that she suffered injuries to her neck and back as a result of the accident. While McCrary admitted he was negligent in causing the accident, he denied his negligence was the proximate cause of Bridges’s injuries.

¶ 3. On April 11, 2012, a jury trial began. McCrary’s defense centered around Bridges’s significant history of neck and back problems. He also noted Bridges’s failure to provide her history of neck and back problems to any of the physicians she saw after the accident. Although Bridges’s previous neck and back issues were presented at trial, there was no other evidence to suggest the accident did not cause or aggravate Bridges’s injuries.

114. Because McCrary did not dispute that his negligence caused the accident, at the close of the trial, the trial judge instructed the jury to determine Bridges’s reasonable damages based on the evidence presented. The jury returned a verdict in favor of Bridges due to McCrary’s admission of negligence, but assessed zero dollars in damages. On May 17, 2011, Bridges filed a motion for a new trial on the issue of damages. The trial court granted the motion, finding the jury’s verdict of zero dollars in damages was against the overwhelming weight of the evidence. On July 22, 2011, McCrary filed a motion to reconsider granting a new trial, which was denied. McCrary now appeals.

DISCUSSION

¶ 5. In Mississippi, it is well established that appellate courts will “respect and follow the holding of the trial judge with reference to his order in granting a new trial since such an order is not a final disposition of the case.” Standard Prods., Inc. v. Patterson, 317 So.2d 376, 379 (Miss.1975) (citing Dendy v. City of Pascagoula, 193 So.2d 559, 562 (Miss.1967)). This is particularly true “where a new trial has been granted, since the rights of the parties are not finally settled at this point.” Dendy, 193 So.2d at 564. Accordingly, “[this Court] will not disturb such action unless it is a manifest abuse of discretion.” Id.

¶ 6. When granting a motion for a new trial, the trial judge must follow the general rule that the motion should be granted where “the verdict is against the substantial or overwhelming weight of the evidence.” White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (¶ 7) (Miss.2004). The Mississippi Supreme Court has stated: “[W]here it is evident that the trial judge failed to follow the general rule in the light of the testimony, [appellate courts] will not hesitate to set aside the order improvidently granted and to reinstate the verdict of the jury.” Standard Prods., 317 So.2d at 379.

¶ 7. In the instant case, in granting the motion for a new trial, the trial judge reasoned that all of the evidence regarding Bridges’s failure to provide a complete history of her preexisting medical conditions to her treating physicians went to the weight and credibility surrounding her disability and not the initial treatment by medical providers. Accordingly, the trial judge held the jury’s verdict was not responsive to the proof or the instructions given and, thus, was against the overwhelming weight of the evidence. Therefore, it appears the trial judge followed the general rule such that we may not set aside the order.

¶ 8. The trial judge found, and we agree, that Knight v. Brooks, 881 So.2d 294 (Miss.Ct.App.2004), is on point in this case. In Knight, the parties were involved in a motor-vehicle accident in which the appel-lee rear-ended the appellant, causing damage to both the vehicle and the driver. Id. at 295 (¶ 2). After evidence was presented, the jury found for the appellant, but assessed his damages at zero dollars. Id. at 296 (¶ 8). This Court found that an award of zero dollars in damages should be considered an award of no damages, rather than inadequate damages. Id. at 297 (¶ 12). Accordingly, in situations where no damages are awarded and a trial judge finds such an award to be improper, the grant of a motion for a new trial is the proper remedy rather than an additur.

¶ 9. Because the trial judge’s decision does not fall within the parameters of an exception to the general rule, the granting of a new trial is not a final, appealable judgment. Accordingly, this appeal is dismissed.

¶ 10. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.