author: DREW, J.

text:
    STATE of Louisiana In the Interest of H.M. and Q.M.
    No. 49,097-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 2014.

      Samuel Darnell Goodwin, for Appellant Mother of H.M. and Q.M.
    Suzanne Morelock Owen, Natalie R. Howell, Assistant District Attorneys, for Appellee State of Louisiana.
    Wilbert Dale Pryor, for Appellee Father of H.M. and Q.M.
    Mental Health Advocacy, Service & Child Advocacy Program, By: Joseph Christopher Seyler, Baton Rouge, LA, for Minor Children, H.M. and Q.M.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

| Nile minor children, H.M. and Q.M., were adjudicated as children in need of care following the brutal death of their three-year-old sister, R.M., at the hand of their designated caretaker, T.W. The mother, D.M, has appealed from the juvenile court’s judgment granting custody of H.M. and Q.M. to their father, J.G., and supervised visitation to D.M. with the children as agreed upon by the parties. The State of Louisiana filed a brief urging this court to uphold the juvenile court’s ruling; the attorney for J.G. and counsel for the children join the state in asking that the trial court’s judgment be affirmed. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

D.M. is the mother of eight children: S.M., K.M., B.M., Y.M., R.M., H.M., Q.M., and L.M. D.M. has a criminal history in Virginia and Louisiana. According to D.M., she was convicted of fraud and embezzlement in Virginia, she served five years and was ordered to make restitution in that case.

At some point, after being “on the run” with her children for years, moving from state to state, D.M. relocated to Louisiana. Apparently she was charged with felony theft in this state in 2009, for which she was initially given a suspended sentence. Thereafter, in 2011 her probation was revoked, and D.M. was required to serve her sentence. D.M. began doing her prison time in Louisiana in January 2012 at Cad-do Correctional Center before being transferred to Louisiana Transitional Center for Women in Tallulah. Eventually, D.M. was sent to Virginia to serve the remainder of her sentence in that state.

|2After D.M.’s arrest, her infant daughter, L.M., lived a brief period of time with her older sister, S.M. L.M. then lived with her father, F.M. D.M. gave her then 18-year-old daughter, S.M., a power of attorney and provisional custody of five-year-old H.M., three-year-old Q.M., and two-year-old R.M., with instructions to take care of her younger sisters and remain in contact with D.M.

While incarcerated, D.M. became friends with T.W., an inmate from Shreveport. The two had allegedly met, some four months before D.M. went to jail, through her youngest daughter’s father, F.M. According to D.M., she and T.W. became sisters in Christ during their joint incarceration. In March 2012, F.M. came to see her and told her that he had taken their six-month-old daughter, L.M., from S.M., and that S.M. needed help with the other three girls. She did not hear from S.M. for several months, and she was mad that money was not being deposited to her prison account. D.M. gave T.W., who was released from prison in October 2012, provisional guardianship of H.M., Q.M., and R.M.

T.W. took the three girls while they were at their babysitter’s house, then thwarted all efforts of S.M. and other family members to have them returned to her or other relatives.

On June 17, 2013, three-year-old R.M. was taken to the Louisiana State University Health Sciences Center in Shreveport with serious injuries |sfrom which she died. The fatal injuries were caused by T.W., who had beaten R.M. severely with a thick extension cord. The State of Louisiana, Department of Children and Family Services (“DCFS”), took H.M. and Q.M. into temporary state custody, and T.W. was arrested for the second degree murder of R.M. Forensic interviews with H.M. and Q.M. revealed that they were also subjected to extreme physical abuse and neglect at the hands of T.W.

When the children were taken into state custody, their mother, D.M., was still incarcerated, and DCFS case workers did not know the identity of their father.

J.G., the father of H.M., Q.M., and R.M., lived in the New Orleans area. He made contact with DCFS and related that he had been looking for his daughters for a while. According to J.G., he and his sister, who lived in Shreveport, had lost contact with the children because the girls were moved around a lot and their mother was in and out of jail. A petition seeking to have H.M. and Q.M. adjudicated as children in need of care was filed based upon their mother’s negligent entrustment of them to T.W. Temporary custody of the girls was awarded to their father, J.G., during the pendency of the proceedings.

Following a disposition hearing held on September 26, 2013, the juvenile court judge found that permanency had been achieved and ordered that the children be maintained in the custody of their father, J.G. The mother, D.M., was to be awarded supervised visitation pursuant to a |4mutually acceptable schedule subject to court approval, and child support was to be set by the court at a later date. In his oral reasons for judgment, the juvenile judge observed:

I have refreshed my recollection, as if I could ever get the images out of my mind of the pictures of [RM, the sister of HM and QM]. I have made a finding, essential to an in need of care determination, that the mother was responsible for those injuries due to the negligent entrustment of her children to a virtual stranger in prison, having no knowledge whatsoever of her temperament in the ■free world, her parenting ability.... I reject again, here at disposition, the mother’s implicit argument that she’s not responsible for what happened to that little girl.

D.M. has appealed from the juvenile court’s judgment, asserting that the court erred in adjudicating H.M. and Q.M. to be children in need of care based upon the finding that D.M. was guilty of neglect due to inadequate supervision for negligently entrusting the children to a “stranger.”

DISCUSSION

The purpose of Title VI of the Children’s Code, which authorizes and governs “Child in Need of Care” proceedings, is to protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect, or exploitation. La. Ch. C. art. 601. Under this Title, as is the case throughout the Children’s Code, the health, safety, and best interest of the children are the paramount concern. Id.; State ex rel L.B., 08-1539 (La.7/17/08), 986 So.2d 62; State ex rel A.U.M., 46,082 (La.App.2d Cir.2/16/11), 62 So.3d 185.

At the adjudication hearing, the state bears the burden of proving by a preponderance of the evidence that the children are in need of care. La. Ch. C. art. 665; State ex rel L.B., supra; State ex rel L.M., 46,078 (La.App.2d Cir.1/26/11), 57 So.2d 518. An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex reí S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223. As noted by the Louisiana Supreme Court in State ex rel. L.B., supra, great deference is owed to the juvenile court’s findings in child protection proceedings.

The state alleged that the children were in need of care due to D.M.’s negligent entrustment of them to a stranger, which also was a lack of supervision on D.M.’s part, especially as she had several family members who had expressed their willingness to care for the children during the mother’s incarceration. The trial court observed the following at the adjudication hearing:

[Negligent entrustment is not a term used in the Children’s Code.... [T]he state alleges neglect due to a lack of adequate supervision ... negligent en-trustment of the children by the mother to a stranger in prison with a criminal record which resulted in the death by physical abuse of one of the children. That’s the allegation.
Neglect is the unreasonable failure of a parent to supply a child, for purposes of this case, with necessary care as a result of .which the child’s physical health and safety is substantially threatened.
Just because children are even killed by a third party doesn’t mean a parent is or is not responsible. Rather, it depends upon whether the delegation of care, that definition in neglect, the delegation of care and control, the entrustment is reasonable or not, it’s negligent or not. That’s how we get negligent entrustment as grounds [to support a child in need of care adjudication] in my view....
Necessity is not a defense in this case. There was an alternative to placing them with [T.W.]. They’ve been detailed. [The testimony is] abundant. Various relatives, leaving them with the daughter, contacting the father....
It was not a reasonable thing to do under these circumstances to turn the children over to a fellow inmate.... It was not necessary to turn |fithem over to this fellow inmate.... I find the children that survived that experience [of watching their caretaker beat their younger sister to death and also enduring physical abuse themselves] are children in need of care and adjudicate them as such.

Children who are the victim of neglect are in need of care. La. Ch. C. art. 606(A)(2). Children who are without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of their parents, or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent, are likewise considered to be in need of care. La. Ch. C. art. 606(A)(3). “Neglect” is defined as the refusal or unreasonable failure of a parent or caretaker to supply the children with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the children, as a result of which the children’s physical, mental, or emotional health and safety is substantially threatened or impaired. La. Ch. C. art. 603(18). As observed by the supreme court in State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 813, the Legislature has defined a “neglected” child in very broad terms precisely because foreseeing all of the possible factual situations that may arise is impossible. Furthermore, the broad definition enables experienced juvenile courts to apply their training and experience to the unique facts and circumstances of each case. Id.; See also, State ex reí. L.M., supra.

The instant case is analogous to an older case from the Fourth Circuit. In State in the Interest of Black, 310 So.2d 174 (La.App. 4th Cir.1975), writ denied, 313 So.2d 829 (La.1975), a young child was found to be neglected and was removed from the custody of her mother as a result of her 17mother’s entrustment of the child to a casual acquaintance who administered severe physical beatings to the child. The court noted that while in fairness, at the time the mother sent the infant to live with her friend, she could not have reasonably anticipated the abuse the child would continue, nonetheless the mother’s decision was classified as one made with “total disregard and wanton neglect of the well being of her child.” 310 So.2d at 177. “Parenthetically, we are obliged to observe that neglect is often the handmaiden of abuse in cases such as this. Had there been something less than complete neglect of [the child] by her natural mother ... there would have been far less likelihood of abuse at the hands of [the appointed caretaker].” Id. at 178.

The Fourth Circuit further wrote, Id. at 178-9:

[The mother’s] reasoning [that the episode that precipitated the juvenile proceeding was an isolated one, that the evidence does not show that the abuse of the child was a usual thing, and that she had no previous knowledge that the child was or might have been abused and only learned after the fact of the abuse] is specious. A one time, very minor traffic violation calls the authority’s attention to the driver of an offending vehicle. He is obviously driving while intoxicated. Must the court restrict its inquiry to the minor traffic violation?
Very often the single instance of abuse or neglect that catches the official eye and offends the official conscience is only the tip of the iceberg. Fortunately for little girls like [this child], the legislature of this State has enacted legislation which empowers the Juvenile Court to institute protective action. The fact that this one instance of abuse (assuming that it was the only one) puts the various applicable statutes into operation in [the child’s] behalf is a tribute to the simple majesty of the law. The inexorable response of the law to [this child’s] plight is not based upon the number of times that she has been abused, but upon the fact that she has been abused at all. The fact of that incident has provoked an inquiry which has resulted in the finding that she was not only abused but is neglected and requires protection not only from the abuse of [her caretaker] but from the neglect of [her mother].

[ sUnder the legislature’s very broad definition and based upon our review of the evidence in this case, we find that D.M.’s actions clearly constituted neglect. She knowingly and unreasonably entrusted her children to T.W., a complete stranger to them and someone she met and formed a casual friendship with while incarcerated, rather than leaving them with their older sister or accepting the assistance offered by other family members. By doing so, D.M. failed to provide her young children with the necessary care and supervision to which they are entitled, thus placing them at a substantial risk of physical harm and abuse at the hands of T.W. While we are not without empathy for D.M., whose absence was the result of her imprisonment and was not necessarily a deliberate and wilful abandonment of her children, we are struck by the fact, as was the trial judge, that she had several family members, including the father of the children, who could have provided the necessary care and supervision required by these precious children. There is testimony that the children are thriving with their father, who lives in the New Orleans area, and that he is willing to facilitate visitation between the girls and their mother. There is no manifest error in the juvenile court’s factual determinations and adjudication in this case.

CONCLUSION

For the reasons set forth above, the judgment of the juvenile court is AFFIRMED.

      .The instant case is a companion to State in the Interest of L.M., 49,098 (La.App.2d Cir.3/26/14), - So.3d -. Both involve children removed from the care and custody of D.M., but are based on slightly different facts and circumstances, hence the reason for their separate treatment and disposition.

      . According to D.M., 16-year-old K.M., 14-year-old B.M., and nine-year-old Y.M. are with D.M.’s sister in Virginia.

      . T.W. gave investigators the wrong man’s name, and the children’s birth certificates did not list a father.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Brenda C. REDDOCH, Louise Barney, Lynn Sanger and Lettie Marinovich v. The PARISH OF PLAQUEMINES, The Plaquemines Parish Council, and ABC Insurance Company.
    No. 2013-CA-0788.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.
    Rehearing Denied April 3, 2014.

      D. Blayne Honeycutt, Colt J. Pore, Fa-yard & Honeycutt, Denham Springs, LA, for Plaintiffs/Appellees, Brenda C. Red-doch, Louise Barney, Lynn Sanger and Lettie Marinovich.
    Michael L. Mullin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Defendanl/Appel-lant, Plaquemines Parish Government.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

11 This appeal arises from damage awards to eighteen plaintiffs for mold exposure and health problems suffered therefrom while working in the Plaque-mines Parish 911 center between 1998 and 2002. The building housing the 911 center was owned by the Plaquemines Parish Government. The Plaquemines Parish Government asserts that the trial court erred, alleging that the plaintiffs failed to prove a causal link between its alleged tortious conduct and the alleged subsequent injuries. The Plaquemines Parish Government contends that the lack of medical evidence at trial mandates a reversal. We find that the trial court did not err in awarding the eighteen plaintiffs damage awards after weighing their testimony and the scientific evidence presented at trial. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Brenda Reddoch and Lettie Marinovich (“Plaintiffs”) filed a Class Action Petition for Damages, seeking certification, as potential class representatives against Plaquemines Parish, Plaquemines Parish Council, and ABC Insurance Company. The Plaintiffs alleged that they suffered health problems as a result of working in a hazardous, mold-infested building (“Building”) owned by the Plaquemines Parish Government (“PPG”) from 1998-2002, which housed the 911 |acenter and jail. The trial court found that the Plaintiffs failed to establish commonality and denied the request for class certification. Supplemental and amended petitions for damages were then filed to include additional plaintiffs.

Prior to trial, a majority of the Plaintiffs and all of the defendants were dismissed except for PPG. Twenty-five Plaintiffs remained. At trial, eighteen Plaintiffs testified or were represented by testimony from their heirs, if the plaintiff was deceased at the time of trial. The trial court found that the eighteen Plaintiffs established that they were exposed to mold in PPG’s building. As a result, they suffered damages from health problems caused by the exposure to mold. The trial court awarded damages as follows:

June Isaacs $20,000

Lynn Sanger $25,000

Dorothy Barnie $25,000

Michael Hudson $15,000

Albert Perry $15,000

Melissa Buras $25,000

S.E. Roberts $15,000

Mary Ann Bell $ 5,000

Danyl Cosse $ 5,000

Aretha Etienne $25,000

Michael S. Etienne, Jr. $ 5,000 Marie Etienne $ 5,000

Michael Etienne, Sr. $15,000

Arthur Reddick $15,000

Sandra Ritchey $ 5,000

Morris Roberts $10,000

Thomas Reddoch $25,000

Jaunh Dorsey $25,000

PPG then filed a Motion for a New Trial, and the Plaintiffs’ opposition noted that the trial court’s judgment omitted two Plaintiffs. The trial court denied the Motion for New Trial and held that the Plaintiffs did not file a motion for new trial to 13address the two allegedly omitted Plaintiffs. PPG’s suspensive appeal followed.

PPG asserts that the trial court erred because no causal link between the alleged tortious conduct regarding the mold and the alleged subsequent injury was proven and that it is entitled to a judgment of reversal based upon La. G.C.P. art. 2164.

STANDARD OF REVIEW

The manifest error or clearly wrong standard of review is utilized when appellate courts review findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court has established “a two-part test for the reversal of a factfinder’s determinations.” Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). First, “[t]he appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court.” Id. Second, “the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id.

“[WJhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell, 549 So.2d at 844. “[T]he court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. If two reasonable views of the evidence exist, then the factfinder cannot be manifestly erroneous. Id. When findings of fact “are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings” because “only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and 14belief in what is said.” Id.

“However, if a legal error interdicts the fact finding process, the manifest error standard of review is no longer applicable, and, if the record is otherwise complete, the appellate court should make an independent de novo review of the record and determine which party should prevail.” Chambers v. Vill. of Moreauville, 11-898, p. 4 (La.1/24/12), 85 So.3d 593, 597. Questions of law are also reviewed using the de novo standard of review. Thibodeaux v. Donnell, 08-2436, p. 3 (La.5/5/09), 9 So.3d 120, 122.

TRIAL TESTIMONY OF PLAINTIFFS June Isaac

June Isaac worked for the Plaquemine’s Parish Sheriffs Office (“Sheriffs Office”) as a 911 dispatcher from December 1999 until March 2002. Ms. Isaac viewed mold on the ceiling tiles and the vents and stated that “the smell was really bad.” Ms. Isaac began to suffer from headaches, congestion, breathing problems; and her asthma was exacerbated by the mold. While working in the Building, Ms. Isaac had to increase the frequency of her asthma inhaler refills and took Claritin every day. “The longer I [Ms. Isaac] worked in the building it [health problems] got progressively worse.” However, Ms. Isaac’s health improved when she was not at work and after the 911 center moved out of the Building. Ms. Isaac worked next to Ms. Reddoch.

Lynn Sanger

Lynn Sanger was also a 911 dispatcher from 1998 — 2002, while the Sheriffs Office housed the 911 center in the Building. Ms. Sanger saw mold on the ceiling tiles and the carpet and stated that “the equipment room flooded several times ... and you could smell like, it smelled musty when you went in there, it | Bnever smelled fresh.” Ms. Sanger and other dispatchers complained about the mold to PPG. Some of the ceiling tiles were replaced several times and other remediation attempts were made. However, Ms. Sanger suffered from an irritated throat and headaches and had to begin taking over the counter medications to try to alleviate her symptoms. When the 911 dispatchers were removed from the Building, Ms. Sanger’s symptoms improved.

Dorothy Barnie

Dorothy Barnie worked as a 911 dispatcher with the Sheriffs Office in the Building from 1998-2002. Ms. Barnie “started with all kind of allergies which is sneezing, coughing, runny nose, fever.” She did not suffer from these problems prior to working in the building and her symptoms worsened the longer she worked in the Building. Further, Ms. Barnie testified that Plaquemines Parish attempted remediation, but the attempts made her symptoms worse. When the 911 dispatchers moved out of the Building, Ms. Barnie’s symptoms improved.

Michael Hudson

Michael Hudson was incarcerated in the jail located in the Building from 1998-2001. Mr. Hudson experienced a “sore throat and nose problems” that he did not have prior to his incarceration in the Building. Mr. Hudson stated that his health problems ceased after his release.

Albert Perry

Albert Perry, a smoker, was also incarcerated in the jail from 1998 — 2002. Mr. Perry cleaned the “911 room up from the top to the bottom” every day. Mr. Perry had to exit the Building and get fresh air because of breathing problems he developed. He did not previously have breathing problems. Mr. Perry knew he “was cleaning up, all I know it [sic] was some kind of mold.” Mr. Perry did not Rhave the breathing problems when he was not around the mold.

S.E. Roberts

S.E. Roberts, a past smoker, was employed as a “jailer” from 1998-2002. Mr. Roberts saw mold in the Building. Mr. Roberts testified that the ceiling was always black and that the upstairs carpet was always wet. Mr. Roberts could smell the mold. The mold caused Mr. Roberts to experience “a little asthma” and “little allergies and everything.” However, after Mr. Roberts stopped working in the Building, his health problems ceased.

Mary Ann Bell

Mary Ann Bell’s husband was a “jailer” in the Building and she visited him there daily. Mrs. Bell could smell mold, viewed wet carpets, and water coming inside the Building when it rained. Mrs. Bell’s eyes would burn and she would experience headaches and migraines. However, her symptoms disappeared when she was away from the mold. Mrs. Bell’s late husband’s health problems began with flu-like symptoms. Then he suffered from pulmonary problems, his ankles and feet would be swollen by the end of the day, and he would be short of breath. Mrs. Bell’s late husband smoked before they were married.

Darryl Cosse

Darryl Cosse was assigned to the Building for nine or ten months, between 1998-2002, as a “jailer” and then worked transporting prisoners. Mr. Cosse, a smoker, noticed a mildew smell. Mr. Cosse’s doctor told him that a past infection was probably caused by the mold. Mr. Cosse never experienced that same infection again, but the infection caused pain in his chest, headaches, and allergies that lasted “[a] couple days, three or four days.”

J¡¡Aretha Etienne

Aretha Etienne was employed at the 911 center from 1998-2002. She was in the 911 center every day and could see and smell the mold. While working in the Building, Mrs. Etienne suffered from “[cjoughing, headaches, nausea, [and a] scratchy throat.” Mrs. Etienne did not have those health problems prior to work-tag in the Building. After the 911 center moved out of the Building, Mrs. Etienne’s symptoms lessened. Mrs. Etienne’s two children stayed with her in the Building every day after school for a couple of hours. Her childrens’ health problems were similar to allergies, so Mrs. Etienne gave them over the counter medications to relieve their symptoms. Mrs. Etienne’s childrens’ health problems ceased after the 911 center relocated.

Michael Etienne, Jr.

Michael Etienne, Jr., Mrs. Etienne’s son, remained with his mother in the Building after school until her workday ended. Michael “would be congested like my nose would start running, I would have headaches.” Michael no longer experienced these health problems after the 911 center was relocated.

Maria Etienne

Maria Etienne, Mrs. Etienne’s daughter, also remained with her mother in the Building after school. Maria suffered from headaches, nausea, and a runny nose. Maria did not experience these health problems before her mother worked in the Building or after the 911 center was relocated.

Michael Etienne, Sr.

Michael Etienne, Sr., Mrs. Etienne’s husband, was at the jail every day from 1998-2002, and maintained all personnel files in the Building. He stated that the Building had a “stale smell.” Mr. Etienne suffered from headaches, sinus ^problems, and nausea. His symptoms improved after leaving the Building. Mr. Etienne reiterated that his two children were at the Building daily and that he witnessed the symptoms of both his children and his wife.

Arthur Reddoch

Arthur Reddoch worked as a “jailer” in the Building from 1998-2002, and also went into the 911 center. Arthur saw mold and noticed a smell in the Building. Arthur suffered from a runny nose that ceased when he stopped going to the Building.

Sandra Ritchey

Sandra Ritchey’s husband was a “jailer” in the Building for an unspecified period of time between 1998-2002. Ms. Ritchey visited the 911 center almost every day that her husband worked. She brought her husband lunch and visited with him. She also visited with the 911 center dispatchers. Ms. Ritchey noticed moldy smells and saw black mold. She experienced “[ajllergies, [a] burning nose, [and a] throat, itchy.” Ms. Ritchey did not have these health issues “much” prior to working in the Building and her symptoms ceased after leaving the Building.

Morris Roberts

Morris Roberts, a road deputy for the Sheriffs Office and a smoker, went to the 911 center on a daily basis for work. Mr. Roberts also visited the 911 center on some of his days off from work. Mr. Roberts noticed the mold and testified that the mold smell was very strong in the 911 dispatchers’ office. Mr. Roberts’ health problems included “sneezing, runny nose, burning eyes, [and] coughing real bad.” Mr. Roberts did not experience these health problems prior to working in the Building, and his symptoms “ceased somewhat” after he stopped working in the Building.

J¿Thomas Reddoch

Thomas Reddoch, the husband of deceased plaintiff Mrs. Reddoch, testified that his wife worked with the 911 center from 1998-2002. Mr. Reddoch’s wife was “very sick a lot of the time.” Mrs. Red-doch suffered from headaches, runny nose irritation, eye irritation, coughing, and congestion. Mrs. Reddoch did not have those health problems prior to 1998. Lastly, Mr. Reddoch could smell the mold on Mrs. Reddoch and in her hair when she came home from working in the Building.

Jaunh Dorsey

Jaunh Dorsey was employed as a 911 dispatcher from 1998 to May 2000. Ms. Dorsey saw and smelled the mold in the Building. She suffered from headaches and “more allergy and the sinus definitely.” Ms. Dorsey did not suffer from these health problems before working in the Building, and her health problems improved after leaving the Building. However, Ms. Dorsey’s symptoms “still act up sometimes.” PPG’s attempt at remediat-ing the mold “kind of made it worse, the smell and with the bleach and all that, it did, it kind of made the situation worse.” Ms. Dorsey testified that the attempted remediation did not alleviate the problems in the Building.

Melissa Buras

Melissa Buras worked in the criminal records room and the 911 center as a dispatcher from 1998-2002. Ms. Buras witnessed the mold “dripping from the ceiling, the carpet” was “always wet dew,” and could always smell mold. She suffered from “[h]eadaches, sore throat,” and nausea. She did not suffer with these health problems prior to working in the Building, and her health problems 1 ^diminished once the offices moved out of the Building. Ms. Buras no longer has any nose related health problems.

THE SCOTT REPORT

All of the parties stipulated to and entered into evidence a “Report of Fungal Sampling and Analysis Services” (“Scott Report”) regarding the Building, as prepared by the W.D. Scott Group, Inc. for the Plaquemines Parish Health Department. The Scott Report took two “tape lift samples” from the 911 center in the Building. The Scott Report identified seven fungal organisms present in the Building from the two samples. Those fungal organisms were alternaría spp., aspergil-lus spp., chaetomium spp., curvularia spp., drechslera/helminthosporium spp., pencillium spp., and stachybotrys spp. The Scott Report concluded that “[f]rom the data obtained in this study, it is clear that fungal activity is present.”

Following the identification of the fungal activity present, the Scott Report contained these conclusions:

1. There is considerable evidence of elevated fungal activity in the ceiling area of the 911 Room. Stachybotrys spp. is present in this sample.
2. The carpet on the floor of the 911 Room shows relatively low levels of fungal activity.
3. The examined portion of the structure requires remediation to arrest further infestation, eliminate the fungal growth already present, and to prevent future, favorable conditions for fungal growth.

The Scott Report also made recommendations based on the information that six of the fungal organisms present “are known and documented aeroallergens” and that “[a]t least” one of the fungal organisms is “classified as toxigenic.” According to the Scott Report, PPG should “[e]liminate the current source of condensation in the above-ceiling area of the structure,” “[r]e-move and dispose of building materials l^that show substantial and visible fungal growth,” “[c]onduct the removal of building materials that show visible fungal growth under containment conditions, with the use of negative or positive pressure ventilation, as applicable,” “HEPA vacuum all surfaces of the structure, to the extent possible, to capture fungal spores that have been spread by renovation and other activities,” “[d]evelop a specification for the remedial work,” and “[rjetain the services of a qualified remediation contractor, with appropriately trained and equipped personnel to carry out the above outlined actions.”

CAUSAL LINK

PPG contends that the trial court erred because the Plaintiffs failed to establish a causal link between their mold exposure and their alleged resulting symptoms. PPG states that the Plaintiffs did not introduce any medical evidence, “[n]ot a medical report, not a medical bill, not a prescription receipt, not so much as a drug store receipt for a package of cough drops.”

PPG contends that the Plaintiffs failed to prove general and specific causation between their alleged health symptoms and the mold present in the Building due to a lack of specific medical testimony.

In Watters, this Court explained that:

[plaintiffs in a mold personal injury case must establish causation on five different levels: (i) the presence of mold, (ii) the cause of the mold and the relationship of that cause to a specific defendant, (iii) actual exposure to the mold, (iv) the exposure was a dose sufficient to cause health effects (general causation), and (v) a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation).

Watters v. Dep’t of Soc. Servs., 08-0977, pp. 16-17 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1142-43. Additionally,- in Housley, the Louisiana Supreme Court held that:

|12[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Housley v. Cerise, 579 So.2d 973, 980 (La.1991), quoting Lucas v. Ins. Co. of N. Am., 342 So.2d 591, 596 (La.1977). This Court expounded upon Housley, which required proof of a “causal connection between” the alleged tortious conduct and the resulting injury, by stating that Housley represented “an extension of this presumption into the realm of general delictual actions.” Juneau v. Straumyer, 94-0903, p. 5 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294, 1298. This Court further held that the causal connection must be demonstrated “through evidence — medical, circumstantial, or common knowledge” and provide “a reasonable possibility of causation between the accident and the claimed injury.” Id., 94-0903, p. 6, 647 So.2d at 1299.

“A trial court’s finding of causation is a factual finding that should not be disturbed unless the record does not furnish a basis for that finding, and it is clearly wrong or manifestly erroneous.” Watters, 08-0977, p. 32, 15 So.3d at 1152. “While expert medical evidence is sometimes essential, it is self-evident that, as a general rule, whether the defendant’s fault, was a cause in fact of a plaintiffs personal injury or damage may, be proved by other direct or circumstantial evidence.” Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

Eighteen plaintiffs testified during the trial about the mold in the Building, its smell, and the health problems they suffered as a result of exposure to the mold. The presence of mold in the Building was undisputed. In further support, the Scott Report confirmed the presence of seven kinds of fungal organisms in the Building. | joThe Scott Report also described the symptoms the seven types of fungal organisms can cause, most notably “allergic disease” and “allergic reaction.” Based on the record, we do not find that the trial court committed manifest error in finding causation. The Plaintiffs’ testimony coupled with the Scott Report are sufficient sources of direct and circumstantial evidence that the mold caused the Plaintiffs’ symptoms. Accordingly, we affirm.

LA. C.C.P. ART. 2164

PPG next asserts that this Court should review the record de novo based upon La. C.C.P. art. 2164, which provides that:

[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including at-tomey fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

PPG also avers that the trial court committed legal error by applying incorrect principles of law. However, this Court, as discussed above, found that the trial court was not manifestly erroneous in its findings. Therefore, PPG’s argument is without merit.

DECREE

For the above-mentioned reasons, we find that the trial court did not commit manifest error in awarding damages to the eighteen plaintiffs based on the evidence presented at trial and affirm.

AFFIRMED.

      . Additional defendants were added following the filing of the original Class Action Petition for Damages. However, only the documents filed with the trial court after the denial of the class certification were compiled into the record on appeal.

      . Ms. Bell's deceased husband was also a plaintiff.

      . Mrs. Reddoch was a smoker and passed away from lung cancer.

      . The descriptions in the Scott Report also state that "hypersensitive individuals” and those who are "immune-compromised” are more likely to notice the adverse health effects.


author: LAMAR, Justice, CHANDLER, Justice,

text:
    Eddie E. DOUGLAS and Yazoo Valley Electric Power Association v. James A. BURLEY, Parent/Guardian and Next Friend of Joshua Hill, Deceased, Jakura Hill, Deceased, and Earnestine Hill, as Administrator of the Estate of and on behalf of all Wrongful Death Beneficiaries of Francesca Hill, Deceased.
    No. 2011-IA-00534-SCT.
    Supreme Court of Mississippi.
    Nov. 1, 2012.
    Rehearing Denied Feb. 28, 2013.

      Bradley F. Hathaway, Greenville, Phillip A. Gunn, attorneys for appellants.
    Drew M. Martin, Dennis C. Sweet, III, Eduardo A. Flechas, Ronald E. Stutzman, Jr., Rick D. Patt, Jackson, attorneys for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. James A. Burley filed a wrongful-death action on June 7, 2004, for the deaths of his daughter and grandchildren resulting from a vehicular accident between his daughter and an employee of Yazoo Valley Electric Power Association (collectively ‘YVEPA”). During the course of discovery, YVEPA attempted to determine whether Burley would support his theory of liability with expert testimony. Following two motions to compel for Rule 26(b)(4) disclosures, Burley’s withdrawal of his liability expert, the close of discovery, and four trial settings, Burley supplemented his interrogatory response with a new liability expert on October 7, 2010. YVEPA then moved to strike Bur-ley’s designation as untimely and substantively insufficient. The trial court allowed the designation and moved the trial to its fifth setting. Aggrieved by the trial court’s order, YVEPA filed this interlocutory appeal. Finding the trial court abused its discretion, we reverse the judgment and remand this ease for a trial without the plaintiffs’ expert testimony on liability. As this Court previously has ruled, “ ‘[i]t may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds ... [a]t some point the train must leave.’ ”

STATEMENT OF FACTS

¶ 2. James Burley filed this action on June 7, 2004. Burley filed as “Parent/Guardian and Next Best Friend of Francesca Hill, Joshua Hill and Jakura Hill, Minors” against YVEPA. Burley alleged that YVEPA was negligent for a vehicular collision resulting in the death of Francesca and her two children.

¶ 3. On August 5, 2004, YVEPA served Burley with written discovery that included an interrogatory asking him to identify the experts he intended to call at trial and to make Rule 26(b)(4) disclosures. On September 14, 2004, Burley responded: “This information will be provided and disclosed pursuant to Mississippi Rules of Civil Procedures [sic].” After receiving no supplementation, YVEPA moved to compel. The trial court ordered Burley to provide a “full and complete response to the Defendants’ expert interrogatory” within ten days from entry of its order filed March 11, 2005. On March 17, 2005, Burley identified Ricky Shivers, who was:

to testify concerning the causes and circumstances involved in the deaths of Francesca Hill, Joshua Hill, and Jakura Hill. It is expected that Mr. Shivers’ [sic] will testify that the subject automobile accident was the sole and proximate cause of the deaths in question. In addition, it is expected that Mr. Shivers will provide testimony regarding autopsies and other tests performed on the decedents. Mr. Shivers’ testimony will be based on his education, training, work experience, life experiences, information and photographs derived from the accident scene, and an examination of the decedents.

¶ 4. Thereafter, the trial court entered a scheduling order which provided that “the Plaintiffs experts shall be designated on or before May 30, 2005, together with [Rule] 26(b)(4) disclosures ... the Defendants’ experts shall be designated on or before June 30, 2005, together with [Rule] 26(b)(4) disclosures ... that all discovery be completed on or before October 30, 2005,” and a trial date was set for April 3, 2006. The parties then entered an agreed order extending the deadline for discovery to be completed on or before December 31, 2005, but that “all other terms of the original scheduling order shall remain in force and effect.” About two weeks before the discovery deadline, YVEPA again moved to compel for Rule 26(b)(4) disclosures. In response, Burley withdrew Shivers as an expert. The trial subsequently was reset to August 8, 2006, and then a third time for December 3, 2007.

¶ 5. Meanwhile, YVEPA filed a motion to dismiss or alternatively, for summary judgment, on the basis that Burley lacked standing to commence a wrongful-death action on behalf on Joshua and Jakura Hill. On November 7, 2007, the trial court dismissed the claims brought on behalf of the grandchildren. Aggrieved by the trial court’s decision, Burley appealed to this Court. While that appeal was pending, the trial court entered a stay of proceedings regarding Burley’s claims for Francesca’s death. On November 5, 2009, this Court entered its order reversing the trial court’s dismissal and remanded the case to the trial court “for further proceedings consistent with [its] opinion.”

¶ 6. On October 8, 2010, Burley and his ex-wife Earnestine Hill, as newly appointed administrator of the Estate of Francesca Hill, filed an expert designation of Alvin Kirk Rosenhan. The designation provided in relevant part that:

Mr. Rosenhan has testified in the area of Accident Reconstruction and been accepted by the courts in the state of Mississippi and other states in that area.... Applying the principles and methods to the facts of the instant action, Mr. Rosenhan will testify to a reasonable degree of professional certainty to the following: that on July 17, 2003 Francesca Hill was travelling on Carter Road in Yazoo County Mississippi when her automobile collided with the vehicle driven by Eddie Douglas. Eddie Douglas was driving a vehicle owned by Ya-zoo Valley Electric Power Association. Eddie Douglas was an employee of said association and acting within the course and scope of his employment at the time. Kirk Rosenhan is expected to testify that the accident was caused or contributed [to] by the operation of the GMC pole truck and trailer by Eddie Douglas.
Plaintiff will make Kirk Rosenhan available for deposition at an agreeable time and date prior to trial. Plaintiffs will be responsible for the costs associated with the deposition of Kirk Rosenhan by Defendants, limited to charges of Kirk Rosenhan and a court reporter.

On the same day at Rosenhan’s designation, Rick Patt filed an “entry of appearance” as counsel for the Estate of Francesca Hill and “notice of substitution of administrator.”

¶ 7. In response to the expert designation, YVEPA moved to strike Rosenhan. YVEPA argued that the designation was untimely, since it was filed five and a half years after the expert-designation deadline and five years after the close of discovery. YVEPA argued that Burley had had YVE-PA’s timely designation and that “after years of ruminating over the defense expert’s opinions, the Plaintiff presumes to designate an expert on his own time-table in derogation of the court’s scheduling orders.” YVEPA further argued that the disclosure failed to comply with Rule 26(b)(4), and that Hill had no standing to make an expert designation as a nonparty without a motion and order of substitution under Mississippi Rule of Civil Procedure 25.

¶ 8. Burley and Hill filed no response to YVEPA’s motion to strike. However, at the hearing on the motion, they argued that, on remand, the scheduling order had no effect, as there was a “clean slate,” and that they had complied with Rule 4.04, which prohibits the designation of an expert witness within sixty days of trial absent special circumstances. And Rick Patt asserted he entered the case due to a potential conflict between Francesca’s estate and the estate of the children, since Francesca may be at fault. Patt also requested that his client, Earnestine Hill, be substituted for Burley as administrator of Francesca’s estate.

¶ 9. At the hearing, the court noted that no party had moved to extend the scheduling order. The court further noted that “if there was something in the Supreme Court’s opinion that required reopening the scheduling deadline, then that wouldn’t be a problem, but I don’t know of anything. I don’t recall anything in that opinion that requires reopening the scheduling order. And to allow Rosenhan to come in as an expert now when this case is set for April 6, that means I’m reopening the scheduling deadlines!.]” The court also asked why Rosenhan was so important, when he was not initially designated. In response, Burley’s counsel stated, “Well, Your Honor, quite frankly, we were not satisfied with our expert witness that we had.”

¶ 10. Following the hearing, the court issued a written order granting Earnestine Hill’s motion for substitution but rejecting the plaintiffs’ arguments that they were entitled to a “clean slate” on remand. However, the court refused to strike Ro-senhan and ordered the parties to enter an agreed scheduling order “covering all necessary and outstanding discovery to include designation of experts and motion deadline.” The court reasoned that its ruling was “an effort to prevent possible injustice to the Plaintiffs” and that the defendants would suffer “no actual prejudice.” It also continued the (fourth) April 6, 2011, trial setting to April 2, 2012. Aggrieved by the trial court’s order allowing Rosenhan’s designation, YVEPA filed this interlocutory appeal.

DISCUSSION

¶ 11. This appeal presents one issue: whether the trial court abused its discretion by allowing Rosenhan’s designation. YVEPA argues that Rosenhan’s designation was untimely and that it failed to comport with Rule 26(b)(4). YVEPA asserts that no evidence or law supports the trial court’s ruling, especially when the trial court expressly rejected the plaintiffs’ arguments.

¶ 12. In response, the plaintiffs argue the trial court has considerable discretion in allowing expert designations, and that it had authority to allow the designation under Rule 4.04. They argue that substitution for the newly-appointed administrator was a “special circumstance” under Rule 4.04 to allow Rosenhan’s designation. They argue that any existing scheduling order was “wiped clean” when this Court remanded the case. Last, the plaintiffs argue that YVEPA can always file a motion to compel to obtain more information about Rosenhan’s opinion and anticipated testimony.

¶ 13. The plaintiffs are correct that the trial court has “considerable discretion” in ruling on discovery matters, and that this Court will not reverse absent an abuse of discretion. However, judicial discretion is not boundless but “is defined as a ‘sound judgment which is not exercised arbitrarily, but with regard to what is right and equitable in circumstances and law, and which is directed by the reasoning conscience of the trial judge to just result.’ ” An abuse of discretion means “‘clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.’ ”

¶ 14. Furthermore, the plaintiffs are incorrect that, when this Court remands a case, it completely starts over as with a “clean slate.” This Court has held that when it remands a judgment entered after a trial, the new trial generally proceeds de novo. But “[wjhether to reopen discovery and other pretrial matters in a case is left squarely within the sound discretion of the trial court[.]” Thus, upon remand, prior orders governing discovery remain in place absent a party’s motion to extend deadlines and a subsequent order by the trial court. The last scheduling order required plaintiffs’ expert designations by June 30, 2005, and required discovery to be completed by December 31, 2005. This Court’s decision and remand did not alter discovery deadlines, and these orders remained in force when the plaintiffs filed their designation of Rosen-han. Therefore, the plaintiffs’ argument that no scheduling order was in place and that only Rule 4.04 governs on remand is without merit. Rule 4.04 does not take precedence over such scheduling orders, but must be read in conjunction with them.

¶ 15. Rule 4.04 requires that:

All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of the court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.

The plaintiffs argue that Rosenhan’s designation was proper because they complied with Rule 4.04. However, compliance with Rule 4.04 does not excuse a party’s failure to adhere to a scheduling order. The plaintiffs’ suggestion that Rule 4.04 gave them the right to designate an expert as long as it was sixty days before trial is without merit.

¶ 16. The plaintiffs also fail to satisfy Mississippi Rule of Civil Procedure 26(f), which states that a party has a “duty” to “seasonably” supplement interrogatory responses regarding expert witnesses expected to testify at trial. This Court has ruled that “seasonably” means “ ‘immediately’ ” and “soon after new information is known and far enough in advance of trial for the other side to prepare.” Seasonably “ ‘must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.’ ” Here, the plaintiffs admitted unhappiness with a former expert with no indication of the circumstances surrounding that relationship, the timing of the dissatisfaction, or the discovery of any new information. And the plaintiffs designated Rosenhan approximately six years after filing the complaint, five and a half years after the expert-designation deadline, and five years after the close of discovery. All discovery was complete at the time the court entered the stay during . the first appeal. The trial court entered the stay only to prevent Burley from possibly facing two trials.

¶ 17. .While the trial court appropriately found that the plaintiffs filed an untimely designation without a proper motion, it still allowed Rosenhan’s designation and continued the trial to its fifth setting. The trial court’s order identifies two bases for allowing the untimely designation: (1) prevent possible injustice to the plaintiffs and defendants; and (2) no actual prejudice to the defendants. This Court has found such reasons relevant in determining whether to exclude evidence for a discovery violation. Here, the plaintiffs present no evidence of an excusable oversight. And the plaintiffs present no evidence of harm. They withdrew their first liability expert and had three trial settings before filing Rosenhan’s designation. YVEPA also argues that the trial court denied the defendants’ motion for summary judgment without the plaintiffs having any expert testimony in support of their case, so Rosenhan’s testimony could not be too important.

¶ 18. Furthermore, YVEPA points out that Rosenhan’s designation fails to comply with Rule 26(b)(4), so the court was without the benefit of truly determining the importance of Rosenhan’s testimony. Rule 26(b)(4) provides that:

[a] party may through interrogatories require any party to identify each person whom the other party expects to call as a witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of and facts and opinions to which the expert is expected to testify and a summary of grounds for each opinion.

This Court has held that Rule 26(b)(4) requires the disclosure of “the substance of every fact and every opinion which supports or defends the party’s claim or defense” and that the disclosure must “set forth in meaningful information which will enable the opposing party to meet it at trial.” As argued by YVEPA, Rosen-han’s designation contains no more information than a pleading. It fails to provide any “meaningful information,” much less “the substance of and facts and opinions to which the expert is expected to testify and a summary of grounds for each opinion.”

¶ 19. The trial court found that a continuance of almost one year was warranted to allow the parties to engage in additional discovery, presumably to prevent any prejudice to YVEPA by allowing YVEPA time to depose Rosenhan or to provide a counter designation. While such time would prevent a trial by ambush, it also adds additional expense associated with another year of continuance and possibly even more discovery.

¶ 20. Last, the late designation was in derogation of the scheduling order and was made without proper motion, and thus certainly disrupted the “orderly proceedings” of the trial court. This Court has ruled that a “trial court has the authority and indeed the duty to maintain control of the docket and ensure the efficient disposal of court business.” We are unable to see how another continuance and the allowance of Rosenhan’s designation ensure the “efficient disposal” of this case, especially in light of YVEPA’s two prior motions to compel the same information. The plaintiffs consistently have failed to provide the necessary Rule 26(b)(4) disclosures, and YVEPA should not have to go through the time and expense of filing another motion to compel as urged by the plaintiffs. Thus, after reviewing the totality of circumstances, this Court finds that the trial court abused its discretion in failing to strike Rosenhan’s expert designation. “It would be inherently unfair and a •violation of our rules of civil procedure for the plaintiffs] — who consistently [have] ignored the rules and violated the discovery deadlines” to proceed to trial with Ro-senhan’s testimony.

CONCLUSION

¶ 21. This Court finds the trial court abused its discretion in refusing to strike Rosenhan’s belated and inadequate designation. The plaintiffs failed to follow the trial court’s orders and the rules governing civil procedure. As noted in another case, “[w]hile the end result in today’s case may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts” and with the rules governing civil procedure. This Court reverses and remands for trial consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., AND RANDOLPH, J., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, PIERCE AND KING, JJ.

CHANDLER, Justice,

dissenting:

¶ 23. In this ease, the plaintiffs filed an expert designation of Kirk Rosenhan after a lengthy interlocutory appeal and outside the time set by a scheduling order. The trial court denied the defendants’ motion to strike, ordered the parties to enter into an “agreed scheduling order covering all necessary and outstanding discovery to include designation of experts and motion deadline,” and continued the trial. The majority finds that this ruling was outside the trial court’s discretion. In other words, the majority finds that the plaintiffs’ conduct in this case was so egregious as to remove all discretion from the trial court, resulting in the exclusion of expert testimony. Because I believe the majority erroneously substitutes its judgment for that of the trial court, I respectfully dissent.

¶ 24. Excluding evidence based on a discovery violation is an extreme measure. Mississippi Power & Light v. Lumpkin, 725 So.2d 721, 788 (Miss.1998). Therefore, “lower courts should exercise caution before doing so, because our courts are “‘courts of justice [and] not of form.’” Estate of Bolden ex rel. Bolden v. Williams, 17 So.3d 1069, 1072 (Miss.2009). Before excluding evidence based on a discovery violation, the trial court should consider: (1) the explanation for the transgression; (2) the importance of the testimony; (3) the need for time to prepare to meet the testimony; and (4) the possibility of a continuance. Lumpkin, 725 So.2d at 733-34.

The first consideration involves a determination whether the failure was deliberate, seriously negligent or an excusable oversight. The second consideration involves an assessment of harm to the proponent of the testimony. The third and fourth considerations involve an assessment of the prejudice to the opponent of the evidence, the possibility of alternatives to cure that harm and the effect on the orderly proceedings of the court.

Id. at 734. Because the trial court has considerable discretion in discovery matters, we must affirm its decision absent “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Estate of Bolden, 17 So.3d at 1072.

¶ 25. The following evidence was before the trial court. The plaintiffs- gave no explanation for the late designation other than the convoluted nature of the proceedings. Before the interlocutory appeal, the plaintiffs had withdrawn the designation of their first expert witness because they were dissatisfied with him. They designated Rosenhan after the remand, arguing that all discovery deadlines started anew after a remand for further proceedings. Rosenhan was the plaintiffs’ only expert on liability. The defendants did not show they would suffer any prejudice other than the prejudice inherent in the delay. The plaintiffs offered to make Rosenhan available for deposition at their own expense.

¶ 26. The trial court rejected the plaintiffs’ argument that all discovery deadlines begin anew after the remand. However, the trial court ordered the entry of an agreed scheduling order “in an effort to prevent a possible injustice to the Plaintiffs and Defendants and finding no actual prejudice to the Defendants.” Thus, rather than simply denying the motion to strike, the trial court reopened discovery. This ruling was within the trial court’s considerable discretion in discovery matters, and it was supported by the evidence before the trial court. Exclusion of the plaintiffs’ liability expert would result in foreseeable harm to the plaintiffs’ case. While there was no explanation for the late designation, there also was no evidence that reopening discovery and continuing the trial would prejudice the defendants. Further, the plaintiffs offered to pay the costs of deposing Rosenhan. Obviously, the trial court determined that, under these circumstances, justice, not form, should prevail. See Estate of Bolden, 17 So.3d at 1072.

¶ 27. The majority substitutes its judgment for that of the trial court by reweighing the evidence. While the trial court would have been within its discretion in granting the motion to strike, its decision to reopen discovery also was within its discretion. This Court has stated that “[p]re-trial discovery is governed by flexible rules well within the administrative capacity of our trial courts.” Crawford v. Wall, 593 So.2d 1014, 1017 (Miss.1992) (quoting In re Knapp, 536 So.2d 1330, 1333 (Miss.1988)). Because this Court interferes with a matter committed to the trial court’s sound discretion, I respectfully dissent.

KITCHENS, PIERCE AND KING, JJ., JOIN THIS OPINION.

      . Mississippi Rule of Civil Procedure 26(b)(4) provides in relevant part:
      A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
      Miss. R. Civ. P. 26(b)(4)(A)(i).

      . Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003) (quoting Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388-89 (Miss.1987)).

      . Burley v. Douglas, 26 So.3d 1013, 1016 (Miss.2009).

      . Id. at 1025. (The mandate issued February 26, 2010.)

      . This Court notes that, under Rule 4.04, a "special circumstance” is necessary only to justify an expert designation within sixty days of trial. Here, the plaintiffs designated Ro-senhan almost six months before trial. Therefore, whether the appointment of a new administrator constitutes a "special circumstance” is irrelevant.

      . This Court notes that YVEPA argues the plaintiffs should have filed a cross-appeal, since the trial court rejected their arguments. However, this Court has quoted with approval the following rule: " '[wjhile a cross appeal is necessary to obtain a decision more favorable than that rendered by the lower tribunal, it is not necessary to urge an alternative ground for affirmance, even if the trial court considered and rejected that alternative ground.’" Dunn v. Dunn, 853 So.2d 1150, 1152 (Miss.2003) (quoting Hajj v. Roat, 2002 WL 571785, *1 (Mich.Ct.App. April 16, 2002)).

      . Venton v. Beckham, 845 So.2d 676, 684 (Miss.2003). See also Miss. R. Evid. 103 (stating "[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”).

      . White v. State, 742 So.2d 1126, 1136 (Miss. 1999) (quoting Black's Law Dictionary 848 (6th ed. 1990)).

      . Id. (quoting Black’s Law Dictionary 848 (6th ed. 1990)).

      . West v. State, 519 So.2d 418, 425 (Miss.1988); see also Weems v. Am. Sec. Ins. Co., 486 So.2d 1222, 1226 (Miss.1986) (emphasis added) (ruling that judgment on an issue not assigned for appeal may stand undisturbed when appellate court reverses and remands on another, unrelated issue).

      . Venton, 845 So.2d at 683-84.

      . URCCC 4.04(A) (emphasis added).

      . Venton, 845 So.2d at 683-84.

      . Miss. R. Civ. P. 26(f)(1)(B).

      . Bowie v. Montfort Jones Mem'l Hosp., 861 So.2d 1037, 1041 (Miss.2003) (quoting West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995)).

      . Robert v. Colson, 729 So.2d 1243, 1246 (Miss.1999) (emphasis added).

      . Bowie, 861 So.2d at 1041.

      . Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34 (Miss.1998).

      . The plaintiffs argue that YVEPA is barred from raising this argument on appeal, since it failed to designate its petition for interlocutory appeal as part of the record on appeal. That argument is misplaced, as YVEPA’s petition and the plaintiffs' response are part of this Court’s record, not the record before the trial court that must be compiled for appeal.

      . Miss. R. Civ. P. 26(b)(4)(A)©.

      . Nichols v. Tubb, 609 So.2d 377, 384 (Miss. 992).

      . Id.

      . Miss. R. Civ. P. 26(b)(4)(A)©.

      . See Huff v. Polk, 408 So.2d 1368, 1371 (Miss.1982) (ruling that a party’s noncompliance with its expert-designation deadline is not cured by the court offering a continuance over the other party’s objection); see also Clark v. Mississippi Power Co., 372 So.2d 1077, 1080 (Miss.1979) (ruling that it is appropriate to prohibit the testimony of an expert who is not timely designated).

      . Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 734 (Miss.1998).

      . Venton v. Beckham, 845 So.2d 676, 684 (Miss.2003) (emphasis added).

      . Id.

      . Banks v. Hill, 978 So.2d 663, 666 (Miss.2008).

      . Bowie v. Montfort Jones Mem'l Hosp., 861 So.2d 1037, 1043 (Miss.2003).


author: KITCHENS, Justice,

text:
    T.C.B. CONSTRUCTION COMPANY, INC. v. W.C. FORE TRUCKING, INC.
    No. 2010-CT-00177-SCT.
    Supreme Court of Mississippi.
    Feb. 28, 2013.
    Rehearing Denied March 13, 2013.

      William F. Goodman, Jr., Jackson, Lawrence Cary Gunn, Jr., Hattiesburg, attorneys for appellant.
    Michael E. Cox, Biloxi, James Kenneth Wetzel, Gulfport, Michael B. Wallace, Jackson, Rebecca L. Hawkins, attorneys for appellee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. In this breach of contract case, we granted the plaintiffs petition for writ of certiorari to review the Court of Appeals’ decision affirming the trial court’s refusal to submit the issue of punitive damages to the jury. T.C.B. Constr. Co. v. W.C. Fore Trucking, Inc., 134 So.3d 752 (Miss.Ct.App.2012). Finding that the plaintiff presented clear and convincing evidence that the defendant exhibited bad faith in breaching the contract, we reverse the Court of Appeals on this issue, and remand the case to the trial court for a jury to determine what punitive damages, if any, are due.

Facts and Procedural History

¶ 2. In the aftermath of Hurricane Katrina, Harrison County hired W.C. Fore Trucking, Inc. (Fore) to remove debris from the county’s rights of way in an area designated as Zone 2. Fore contracted with T.C.B. Construction Company, Inc. (TCB) to perform the removal from a portion of Zone 2. The contract between Fore and TCB was limited to areas in Harrison County north of Highway 5B, but also contained an express good-faith clause which stated that the contract “can and will be modified based upon the facts and circumstances of all debris removal.”

¶ 3. As required by the contract, TCB sent Fore daily reports, known as “work tickets” or “truck tickets,” showing the location and amount of removed debris. R.W. Beck & Associates (Beck), an independent auditing firm hired by Harrison County, calculated the cubic yardage and verified the locations listed on TCB’s work tickets. TCB also submitted weekly invoices to Fore, and Fore in turn used those invoices to bill the county. Once Beck had audited the invoices and bills, the county approved payment from funds provided by the Federal Emergency Management Agency (FEMA). Fore then gave TCB a percentage of those payments. Under their contract, Fore was to pay TCB $8.90 for every cubic yard of debris removed, out of the $10.64 Fore received from the county.

¶ 4. TCB began work on September 19, 2005, and, nine days later, began clearing debris south of Highway 53. According to the TCB, the work was moved south at the request of W.C. Fore, Fore’s principal. Fore claimed that it did not know that TCB was removing debris from south of the highway until some time in March 2006. At that time, Fore stopped paying TCB, claiming that any work south of the highway was not contemplated by the contract. Nevertheless, Fore did not dispute that it had billed the county and was paid in full, for all of the debris removed by TCB. In total, Harrison County paid Fore approximately $12.3 million for the debris removed by TCB, and Fore paid TCB roughly $3.6 million.

¶ 5. TCB sued Fore for breach of contract, claiming it was owed an additional $6,634,436.69 for work performed south of Highway 53. TCB alleged that, although the written contract specified that TCB would be paid to remove debris north of Highway 53, the contract was orally modified to include removal south of Highway 53. Fore responded with a counterclaim, alleging that TCB was entitled only to the value of the debris removed north of the highway, and that Fore actually had overpaid TCB for this work in the amount of $620,731.-

¶ 6. The case proceeded to trial, and, in a special verdict form, the jury found that the contract had been modified to include work south of the highway. Despite this finding, the amount of damages awarded by the jury did not fully compensate TCB for the work it indisputably had performed. The jury also found that Fore was entitled to recoup “overpayments.” The result was a $3,577,583.34 net award for TCB, or about half of its alleged damages. The court awarded TCB prejudgment interest from the date it filed the complaint, but refused to send the issue of punitive damages to the jury.

¶ 7. TCB appealed, Fore filed a cross-appeal, and the case was assigned to the Mississippi Court of Appeals. That court held that, as a matter of law, the contract was modified, Fore breached the contract, and TCB was entitled to the amount it would have received without the breach. T.C.B., 134 So.3d 752. The Court of Appeals reversed the jury’s award of damages and rendered judgment in favor of TCB in the full amount of $6,634,436.69, with prejudgment interest from the date of the breach, rather than the date that TCB filed its complaint. Finally, the Court of Appeals affirmed the trial judge’s refusal of TCB’s request to submit punitive damages to the jury, finding some evidence that Fore’s breach was not malicious.

¶ 8. Both TCB and Fore filed petitions for writ of certiorari, with Fore arguing it was not liable for any damages, and TCB arguing that punitive damages should have been submitted to the jury. Agreeing with the decision of the Court of Appeals to render judgment in favor of TCB for the full amount owed, we denied Fore’s petition, but granted TCB’s petition to review the punitive damages issue.

Discussion

¶ 9. An award of punitive damages is an extraordinary remedy, reserved for the most egregious cases, and designed to discourage similar misconduct. Warren v. Derivaux, 996 So.2d 729, 738 (Miss.2008) (citing Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 442 (Miss. 1999)). In a breach of contract case, the plaintiff “must prove that the breach was the result of an intentional wrong or that a defendant acted maliciously or with reckless disregard of the plaintiffs rights.” Pursue Energy Corp. v. Abernathy, 77 So.3d 1094, 1101 (Miss.2011) (citing Hamilton v. Hopkins, 834 So.2d 695, 703 (Miss.2003)). When punitive damages are sought, and only after compensatory damages have been awarded, the trial judge will hold an evidentiary hearing and make an initial determination whether the jury should pass on the issue. Miss.Code Ann. § 11 — 1—65(1) (c) — (d) (Supp.2012). “The jury should be allowed to consider the issue of punitive damages if the trial judge determined under the totality of the circumstances and in light of defendant’s aggregate conduct, that a reasonable, hypothetical juror could have identified either malice or gross disregard to the rights of others.” Paracelsus Health, 754 So.2d at 442 (citing Wirtz v. Switzer, 586 So.2d 775, 783 (Miss.1991), abrogated on other grounds by Upchurch Plumbing, Inc. v. Greenwood Utilities Comm’n, 964 So.2d 1100 (Miss.2007), and Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (Miss.1999)).

¶ 10. In the present case, the trial court denied TCB’s request to submit punitive damages to the jury. The court based its ruling in large part on the jury’s verdict, which had awarded damages to both parties and awarded TCB only half of its requested damages. However, we agree that the Court of Appeals correctly reversed the jury verdict and rendered judgment in favor of TCB, because, as a matter of law, the contract was modified, and the amount of TCB’s damages was not questioned. Given that there was no issue of fact for the jury to decide, the jury’s verdict could not serve as a roadblock to a consideration of punitive damages by the jury.

¶ 11. We find that TCB presented more than sufficient evidence that a reasonable, hypothetical juror could find Fore’s conduct in breaching the contract was either malicious or done with a reckless disregard of TCB’s rights. Pursue Energy, 77 So.3d at 1101; Paracelsus Health, 754 So.2d at 442. In its thorough examination of the facts, the Court of Appeals noted that Fore’s defense was based solely on the scope of the written contract and W.C. Fore’s denial that he had agreed to a modification. W.C. Fore testified that he was unaware of TCB’s work south of Highway 53 because, he said, the ladies in bookkeeping handled all of the invoices. The Court of Appeals correctly held that W.C. Fore’s personal knowledge was immaterial to the case, because the corporation never disputed that it lacked knowledge of TCB’s work south of Highway 53, and it also did not argue that its employees (i.e., “the ladies in bookkeeping”), were unauthorized to accept TCB’s invoices or submit them to the county for payment. It was undisputed that Fore represented to the local government that TCB’s invoices were accurate and that it received the full benefit of TCB’s work without fully compensating TCB. Moreover, the entire process was overseen by an accounting firm hired by the county, and TCB was the only company removing debris in the area. As the Court of Appeals observed, “it defies credibility to suggest Fore, the corporation, had no knowledge TCB was submitting invoices for work south of Highway 53.” T.C.B., 134 So.3d at 763.

¶ 12. Nevertheless, the Court of Appeals rejected TCB’s claim that punitive damages should have been submitted to the trier of fact. The court acknowledged that the question was “admittedly close,” but found there was evidence to support that Fore did not act with any malicious intent. Id. at (¶ 58). The Court of Appeals characterized Fore’s denial as “a hard-line business position,” but credited the circuit court’s finding “some validity” in W.C. Fore’s claim that he was unaware of TCB’s work south of the highway. Id. Notably, the Court of Appeals’ analysis focused only on maliciousness and did not address reckless disregard or intentional wrongs. Pursue Energy, 77 So.3d at 1101 (punitive damages may be warranted if the breach was a result of an intentional wrong, malicious conduct, or reckless disregard for the plaintiffs rights) (citing Hamilton, 834 So.2d at 703)).

¶ 13. We agree with Chief Judge Lee’s separate opinion, that Fore’s claim of ignorance was “disingenuous and contradictory to the defense put on at trial.” T.C.B., 134 So.3d 752, 770 (Lee, C.J., concurring in part and dissenting in part). Fore claimed that, over several months, millions of dollars of invoices, multiple meetings, and an independent auditor overseeing the process, it was oblivious to the fact that TCB was working south of Highway 53. Even after Fore claimed it had become aware that TCB was working south of the highway, it allowed TCB to continue to work in that area, continued to submit invoices to the county for work performed by TCB, and continued to receive payments from the county, apparently feeling safe in the knowledge that the technical language of the contract did not obligate them to pay for TCB’s work. Moreover, three months after Fore had stopped paying TCB, it wrote a letter to TCB stating that payments were delayed because there was a possible set-off for interest on delayed payments from the county. This position was entirely inconsistent with its defense at trial that TCB was due nothing because it was performing work outside the scope of the contract. TCB submitted invoices for several million dollars to Fore for the cleanup south of the highway. Fore in turn based its own invoices to the county on TCB’s. It is undisputed that Fore collected payment for all of the work performed by TCB, that, as a .matter of law, the contract was modified to include all of the work performed by TCB, and that Fore blatantly breached its promise to compensate TCB.

¶ 14. We find that the evidence demonstrates a type of conduct for which punitive damages are designed. TCB provided sufficient proof that Fore acted in bad faith, with complete disregard for TCB’s rights, seeking to reap the benefits of its contract while at the same time denying its obligations. Based on the evidence, a reasonable, hypothetical juror could find that Fore had breached the contract either maliciously, by an intentional wrong, or with reckless disregard for TCB’s rights. We hold that the trial court erred by not submitting the issue of punitive damages to the jury, and this case is therefore remanded for trial on punitive damages and for consideration of attorneys’ fees. Warren, 996 So.2d at 739 (attorneys’ fees justified when punitive damages awarded) (quoting Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992)).

Conclusion

¶ 15. We agree with the Court of Appeals on the issue of compensatory damages, and affirm its decision rendering judgment in favor of TCB in the amount $6,634,436.69 and its remanding the case to the trial court to award prejudgment interest from the date of the breach. We disagree with the Court of Appeals’ decision on the issue of punitive damages, and find that the evidence presented at trial was more than sufficient for the jury to have been permitted to decide whether TCB was entitled to punitive damages, and if so, in what amount. We therefore reverse the decision of the Court of Appeals regarding punitive damages, but we do not disturb its holding that, as a matter of law, the contract was modified, that Fore breached this contract, and that TCB is entitled to compensatory damages in the amount $6,634,436.69, with prejudgment interest awarded from the date of the breach. Accordingly, the decision of the Court of Appeals is reversed in part and affirmed in part, and judgment is rendered in favor of TCB in the amount of the $6,634,436.69. The case is remanded to the Harrison County Circuit Court, First Judicial District, for a jury trial on punitive damages, for consideration of attorneys’ fees, and for award of prejudgment interest from the date of the breach.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS REVERSED IN PART, RENDERED IN PART, AND REMANDED.

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


author: COLEMAN, Justice,

text:
    Bre’Annah BANKS, a Minor, by and through her Natural Mother, Legal Guardian and Next Friend, Etta BANKS; Ladarius Harp, a Minor by and through his Natural Mother, Legal Guardian and Next Friend, Barbara Thomas; Kimberly Norris, a Minor by and through her Natural Mother, Legal Guardian and Next Friend, Mary Norris; Zerlanzeia Lambouths, a Minor by and through his Natural Mother, Legal Guardian and Next Friend, Annie King; and Lakedrick Reed, a Minor by and through his Natural Mother, Legal Guardian and Next Friend, Juanita Reed v. SHERWIN-WILLIAMS COMPANY.
    No. 2012-CA-00880-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied April 10, 2014.

      Jared Wayne Eastlack, Hattiesburg, Mark W. Davis, Gulfport, Ron M. Feder, Martin D. Crump, Gulfport, Robert Shields Crump, III, Cleveland, attorneys for appellants.

      Margaret Oertling Cupples, Jackson, W. Wayne Drinkwater, Jr., John G. Corlew, Kathy A. Smith, Janine Cone Metcalf, Lucas Wade Andrews, attorneys for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The instant matter is before the Court on appeal filed by Bre’Annah Banks, Ladarius Harp, Kimberly Norris, Zerlanz-eia Lambouths, and Lakedrick Reed (collectively the “plaintiffs”) against the Sher-win-Williams Company (“Sherwin-Williams”). The matter is an action for products liability and negligence in the Circuit Court of Bolivar County, First Judicial District. After both sides elicited evidence from lay and expert witnesses supporting their arguments, the trial court entered an order granting summary judgment for Sherwin-Williams based on the plaintiffs’ failure to establish product identification, an essential element of their claim. We hold that, under the applicable standard for the consideration of summary judgment, the plaintiffs have presented enough evidence to create an issue of material fact as to whether the paint in question came from Sherwin-Williams. Accordingly, we reverse the judgment and remand the case.

FACTS AND PROCEDURAL HISTORY

¶ 2. The five adult plaintiffs were all minor children who lived in Rosedale, Mississippi, in the early 1990s and attended the Bolivar County Head Start facility in Rosedale. They brought a claim for products liability and negligence in the Bolivar County Circuit Court, First Judicial District, against Sherwin-Williams, alleging Sherwin-Williams sold lead paint to the Bolivar County Head Start, and the paint was used to paint playground equipment. Plaintiffs further alleged that exposure to the lead paint on the playground equipment resulted in elevated levels of lead in their blood, causing injury. During their enrollment in the early to mid-1990s, the plaintiffs received blood-lead testing, which revealed that they had blood-lead levels ranging from fifteen to nineteen micrograms per deciliter.

¶ 3. In 1985, Head Start hired Sylvester Vickers, a named defendant in the original suit, to sandblast all of the playground equipment, remove all of the old paint from it, and apply a fresh coat of paint, which he testified (and for our purposes the parties agree) was non-lead paint. It is uncontested that, between 1986 and 1991, Sherwin-Williams sold six gallons of lead paint to Bolivar County Head Start, although no direct evidence exists as to where the six gallons of lead paint were used. The lead paint sold by Sherwin-Williams included a gallon of yellow paint, four gallons of red, and a gallon of orange. In 2000, an investigation by the Mississippi Department of Environmental Quality revealed lead paint on the Rosedale Head Start playground equipment. The report itself notes that lead was found on playground equipment painted red, green, and yellow, as well as on equipment bearing unspecified colors or “many colors.”

¶ 4. Adolf Hilliard, the business manager of Bolivar County Head Start, testified that ninety-nine percent of the paint that Head Start purchased came from Sher-win-Williams. But Sherwin-Williams countered that his testimony was equivocal and that he admitted he did not really know where all the paint was purchased. Hilliard stated in a sworn affidavit that, since 1985, all painting of Head Start equipment was handled by Head Start employees, and he was “almost certain” that, prior to 1991, all of the playground equipment paint was acquired from Sherwin-Williams. On the other hand, Robert Lit-tleton, director of field operations for Bolivar County Head Start, testified that Bolivar County Head Start used Sherwin-Williams paint for “a lot of different projects,” but, at times, they also would use paint from the now-closed Nowell’s Lumber Company, Fleming Lumber Company, and, rarely, Bolivar Paint and Glass.

¶ 5. Plaintiffs contend that James Lewis, a former janitor for the Rosedale center, personally applied lead paint to the Rose-dale center playground equipment. In response, Sherwin-Williams points to inconsistencies in Lewis’s statement, including the fact that the lead paint in question was gloss paint and oil-based while Lewis testified that, to his memory, the paint he used was non-gloss and water-based. In a sworn affidavit, Lewis stated that he acquired paint from Sherwin-Williams’ store and painted the playground equipment in Rosedale with it sometime after 1985.

¶ 6. Dr. Richard Lee opined on behalf of Sherwin-Williams as to chemical analyses he performed, which he claimed showed that the chemical composition of the lead paint on the playground equipment did not match Sherwin-Williams’ paint formulas. Dr. Lee tested equipment supplied by plaintiffs’ counsel, a see-saw left at the former playground,- and monkey bars purchased from a neighboring town, which purportedly acquired them from the Rose-dale center. Plaintiffs retained Dr. John Drexler as an expert; he testified that Dr. Lee’s analysis did not support his conclusion to a reasonable scientific probability, emphasizing that Dr. Lee’s technique lacked any estimate of error, could not be tested, and had not been subject to peer review. In turn, Sherwin-Williams characterized Dr. Drexler’s report and testimony as merely a “list of questions” about Dr. Lee’s methodology rather than any actual conclusion as to whether the paint tested matched paint from Sherwin-Williams.

¶ 7. At the conclusion of discovery, Sher-win-Williams and Roy Peacock moved for summary judgment on the basis of lack of product identification. The trial court granted the motion on January 24, 2012. The court’s order stated, “there is no evidence whatsoever to show that the six gallons of lead based paint sold by Sher-win-Williams to the Bolivar County Head Start Program ended up on the playground equipment at the Rosedale Center.” 'Additionally, the court stated that the “Plaintiffs seem to want this Court, and ultimately a "jury, to speculate on where the ... alleged lead based paint on the playground equipment in Rosedale [came] from and come to the conclusion that it must have come from Sherwin-Williams.” On April 17, 2012, the trial court entered a Final Judgment of Dismissal under Mississippi Rule of Civil Procedure 54(b) as to Sherwin-Williams, and the plaintiffs appealed.

DISCUSSION

¶ 8. Under Mississippi Rule of Civil Procedure 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). A trial court’s grant or denial of a motion for summary judgment is reviewed under a de novo standard. Poppenheimer v. Estate of Coyle, 98 So.3d 1059,1062 (¶ 7) (Miss.2012) (citing Whitaker v. Limeco Corp., 82 So.3d 429, 433-34 (¶ 10) (Miss.2010)).

¶ 9. In reviewing a trial court’s grant of summary judgment, the Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Pratt v. Gulfport-Biloxi Reg'l Airport Auth, 97 So.3d 68, 71 (¶ 5) (Miss.2012). However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e). Additionally, “it is incumbent upon the plaintiff in any products liability action to show that the defendant’s product was the cause of the plaintiffs injuries.” Moore ex rel. Moore v. Miss. Valley Gas Co., 863 So.2d 43, 46 (¶ 13) (Miss.2003). Where doubt exists as to whether a genuine issue of material fact exists, courts should err on the side of denying summary judgment. Todd v. First Baptist Church of West Point, 993 So.2d 827, 829 (¶ 9) (Miss.2008).

¶ 10. In the instant case, the sole issue before the Court is whether the trial court erred in granting summary judgment in favor of Sherwin-Williams on the issue of product identification. As previously stated, review of a trial court’s grant of summary judgment should be done “in the light most favorable to the party against whom the motion has been made.” Pratt, 97 So.3d at 71 (¶ 5). “The party opposing the motion is required to bring forward significant probative evidence demonstrating the existence of the triable issue of fact.” Brown v. Credit Ctr., Inc., 444 So.2d 358, 364 (Miss.1983) (citing Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir.1982)). “[S]ummary judgment is improper when the plaintiff has advanced enough circumstantial evidence to take [his] claims out of the realm of ‘mere conjecture’ and plant them in the solid ground of ‘reasonable inference.’ ” Buckel v. Chaney, 47 So.3d 148, 156 (¶ 26) (Miss.2010) (quoting Thomas v. Great Atl. & Pac. Tea Co., Inc., 233 F.3d 326, 330 (5th Cir.2000)). Thus, stated differently, the issue sub judice is whether the plaintiffs advanced enough circumstantial evidence to create a reasonable inference that the lead paint on the Rosedale playground equipment came from Sher-win-Williams.

¶ 11. Taking the evidence in the light most favorable to them, the plaintiffs produced evidence demonstrating the following facts: (1) Sherwin-Williams sold six gallons of lead paint in the colors of yellow, red, and orange to Bolivar County Head Start over the span of 1986-1991; (2) in 2000, lead was found in the Rosedale Head Start center playground equipment in yellow, red, and green paint; (3) Vickers sandblasted the equipment in 1985, removing all the previously applied paint, and repainted the equipment with non-lead paint; (4) sometime after 1985 but before he quit working for Head Start in 1990, Lewis bought paint from Sherwin-Williams and personally painted the playground equipment; (5) the majority of the paint purchased by Bolivar County Head Start — according to Hilliard, ninety-nine percent — came from Sherwin-Williams; (6) none of the paint used to paint Head Start playground equipment came from Nowell Lumber; and (7) after 1985, Bolivar County Head Start never hired an outside contractor to paint its playground equipment again, choosing instead to have Head Start employees, including Lewis, paint the equipment.

¶ 12. The stated facts clearly fall into the category of circumstantial evidence, as they rely on an inference to connect them to the conclusion of fact that Sherwin-Williams’ lead paint was used to paint the playground equipment. Taking them in the light most favorable to the plaintiffs, they show that, at the moment in 1985 when Vickers finished stripping and painting the playground equipment, there was no lead paint on the equipment. Following the completion of Vickers’s work, only Head Start employees painted the equipment, and they used only paint from Sherwin Williams. In 2000, the paint on the playground equipment tested positive for lead. The court need not draw every possible inference in favor of the plaintiff, only reasonable ones. Parrilla v. Commercial Union Ins. Co., 85 F.3d 1245, 1250 (7th Cir.1996). Given the facts plaintiffs have supported with evidence listed above, we hold that a jury could reasonably infer that the paint on the playground equipment came from Sherwin-Williams.

¶ 13. Certainly, Sherwin-Williams has produced evidence in its favor, including, inter alia, that (1) the analysis of the playground equipment that indicated the paint contained lead was performed years after the plaintiffs left the program, (2) the Sherwin-Williams lead paint cans carried warnings to keep the paint out of the reach of children, (3) the Head Start program had a policy against using lead paint on playground equipment, (4) the chemical makeup of the paint on the playground equipment does not match the chemical makeup of Sherwin-Williams paint, and (5) contrary to Hilliard’s testimony, the Head Start program bought paint from other sources. Nevertheless, the jury should be “permitted to pass upon the question of fact raised by this conflicting evidence.” Searles v. Alabama & Vicksburg Ry. Co., 69 Miss. 186, 13 So. 815, 816 (1891). “When evidence is conflicting, we defer to the jury’s determination of the credibility of witnesses and the weight of their testimony.” Bickham v. Grant, 861 So.2d 299, 307 (¶ 34) (Miss.2003) (quoting Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996)). The credibility of witnesses and the weight of their testimony, along with the interpretation of the evidence where there are multiple reasonable interpretations, is primarily a determination for the trier of fact. Bickham, 861 So.2d at 307 (¶ 34); Abrams v. Marlin Firearms Co., 838 So.2d 975, 981 (¶24) (Miss.2003); Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967).

¶ 14. Without question, Sher-win-Williams has come forward with evidence contradicting the plaintiffs’ evidence that the lead-containing paint came from Sherwin-Williams. Likewise, Sherwin-Williams attacks the credibility of the plaintiffs’ witnesses. It is not, however, the province of the Court to make weight and credibility determinations during the summary judgment stage. “The weight and credibility of expert testimony are matters for determination by the trier of fact.” Hubbard ex rel. Hubbard v. McDonald’s Corp., 41 So.3d 670, 675 (¶ 19) (Miss.2010) (citing Univ. Med. Ctr. v. Martin, 994 So.2d 740, 747 (¶25) (Miss.2008) (quoting Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990))). Determinations of weight and credibility of expert witnesses lie “within the sole province of the jury as fact finder.” Butler v. State, 102 So.3d 260, 268 (¶22) (Miss.2012) (quoting King v. State, 798 So.2d 1258, 1262 (Miss.2001)).

¶ 15. Sherwin-Williams contends that the instant case is similar to Anglado v. Leaf River Forest Products, Inc., 716

So.2d 543 (Miss.1998), in which the Court affirmed a trial court’s grant of summary judgment. In Anglado, riparian owners sued Leaf River Forest Products and others, alleging that a pulp mill operated by the defendants discharged toxic waste water containing dioxin. Anglado, 716 So.2d at 544-45 (¶¶ 2-3). Like the case sub ju-dice, the presence of the toxin was conclusively established, and the defendants had experts who presented evidence that the defendants were not responsible for the toxin. Id. at 545-46 (¶¶ 5-7). However, unlike the instant case, the plaintiffs in Anglado did not produce their own evidence to counter the defendants’ expert witness testimony. Id. at 548 (¶¶ 21-22) (“The Anglado Plaintiffs produced no evidence that the defendants’ mill is the source of any dioxin in the samples.”)

¶ 16. According to the United States Supreme Court,

[i]t is true that the issue of material fact required by Rule 56(c) ... is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of truth at trial.

First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) (interpreting Fed. R.Civ.P. 56(c)). Analyzing the evidence in the light most favorable to the plaintiffs, Pratt, 97 So.3d at 71 (¶ 5), the facts create a “reasonable inference,” Buckel, 47 So.3d at 156 (¶ 26), that the playground equipment was painted with Sherwin-Williams lead paint. Such an inference establishes a factual dispute to be resolved by the fact-finder.

CONCLUSION

¶ 17. In the case sub judice, Sherwin-Williams did an excellent job of compiling evidence to contradict the plaintiffs’ evidence that the lead paint on the playground equipment originated at its store in Cleveland, Mississippi. However, pursuant to the above analysis, Sherwin-Williams’ evidence at best creates doubt that summary judgment is appropriate. If doubt exists regarding the propriety of summary judgment, then it should be denied. We hold that a jury may reasonably infer that Sherwin-Williams’ lead paint was on the playground equipment. Accordingly, we reverse the trial court’s grant of summary judgment in favor of Sherwin-Williams and remand the case for further proceedings consistent with the instant opinion.

¶ 18. REVERSED AND REMANDED.

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

      . The original defendants were Sherwin-Williams; Roy Peacock, the store manager of the Sherwin-Williams store in Cleveland, Mississippi; Playcore Holdings, Inc., seller of the playground equipment; WREN, Inc., a company hired to sandblast and repaint the equipment; and Sylvester Vickers, owner of WREN, Inc. After granting Sherwin-Williams' and Roy Peacock’s motion for summary judgment, the trial court entered a Final Judgment of Dismissal under Mississippi Rule of Civil Procedure 54(b) as to Sherwin-Williams, and the plaintiffs appealed.