author: COLEMAN, JUSTICE, FOR THE COURT: KITCHENS, JUSTICE,'

text:
    AMERICAN OPTICAL CORPORATION v. ESTATE OF Robert Lee RANKIN, Sr., Jean Marie Howard Rankin, Jacquelyn Denise Rankin Anderson, and Robert Lee Rankin, Jr., Individually and on Behalf of All the Heirs At Law of Robert Lee Rankin, Sr., Deceased
    NO. 2015-CA-01066-SCT
    Supreme Court of Mississippi.
    05/18/2017
    Rehearing Denied August 17, 2017

      ' ATTORNEYS FOR APPELLANT: MICHAEL JAMES BENTLEY, SIMON TURNER BAILEY, W. WAYNE DRINKWATER, ' JR., WALTER T. JOHNSON, JOSEPH GEORGE BALA-DI, COREY DONALD ‘ HINSHAW, JOHN BURLEY HOWELL, III
    ATTORNEYS FOR APPELLEES: DAVID NEIL McCARTY, ROBERT ALLEN SMITH, JR., TIMOTHY W. PORTER, PATRICK MALOUF, JOHN TIMOTHY GIVENS
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. On May 13, 2013, a former construction worker, Robert Lee Rankin Sr., filed a complaint in Jefferson County Circuit Court against American Optical Corporation (AO) alleging an injury of “lung disease and silica related conditions caused by exposure to respirable crystalline silica” while using defective respirators manufactured by AO. Following trial on February 17-24, 2015, the jury returned a total verdict of $14 million in favor of Rankin.

¶2. According to the verdict form, the jury found by a preponderance of the evidence that (1) Rankin had a “silica-induced lung condition;” (2) Rankin did not know nor should he have known before May 13, 2010, that he had the “lung injury” that he alleged in the lawsuit; (3) Rankin used a respirator manufactured or sold by AO “while working in harmful concentrations of silica;” (4) there was a defect in the design of an AO product that proximately caused Rankin’s silica-induced lung condition; and (5) there was a defect in the warning of an AO product that proximately caused Rankin’s silica-induced lung condition.

¶3. The jury awarded $4 million in non-economic damages and $10 million in economic damages. The jury assigned 45% of fault to AO and 55% to “Other Named and Unnamed Defendants and/or Parties.” The trial court entered a total judgment against AO of $6.3 million, reflecting the jury’s apportionment of fault. AO filed a motion to amend the judgment and a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. The trial court granted AO’s motion to amend the judgment in part and amended the noneconomic damages award from $1.8 million to $1 million to comply with the statutory cap on noneconomic damages. However, the trial court denied AO’s motion for a JNOV or, alternatively, for a new trial.

¶4. AO appeals, raising the following seven issues, restated for clarity:

I. Whether Rankin’s claims are barred by the three-year statute of limitations.
II. Whether Rankin proved that the design of the AO respirators proximately caused his injury and that there was a feasible design alternative.
III. Whether AO is entitled to judgment as a matter of law on Rankin’s failure to warn claim.
IV. Whether Rankin proved that his use of an AO respirator proximately caused his injuries.
V. Whether Rankin proved a reasonable basis for the allegation that his alleged damages were caused by silica exposure.
VI. Whether AO was deprived of its right to a fair trial in an impartial forum.
VII. Whether the $14 million verdict was against the overwhelming weight of the evidence.

¶5. It is necessary for the Court to address only the first issue raised.

FACTUAL BACKGROUND

¶6. AO manufactured and sold respiratory protection products, including the model 1050 and 1010 respirators or masks, which were introduced in 1976 and 1985 respectively. The 1050 and 1010 were single use, disposable respirators designed to protect individuals against pneumoconiosis and fibrosis producing dusts such as silica. Both AO respirators were marketed for use in textile, mining, quarrying, grinding, and rock crushing operations, but not in abrasive blasting operations.

¶7. Rankin worked in the construction business for various employers and independently from approximately 1965 though 2001. Rankin testified that he jackham-mered and sandblasted during his career in the construction business. Rankin identified several different brands of respirators that he used throughout his career while he jackhammered and sandblasted. Two of the respirators that Rankin used while he jackhammered and sandblasted were AO’s 1050 and 1010. Rankin could not recall how often or where he wore any specific respirator that he identified. Rankin never saw any boxes, packaging, or paperwork that came with the respirators, nor did anyone teach him how to use the respirators.

¶8. Larry Brown, Rankin’s former coworker, testified that he worked with Rankin from 1980 to 1985. Brown testified that he and Rankin performed carpentry, sandblasted, and jackhammered during the entire five year period that they worked together. Brown testified that there was “a lot of dust created” when they sandblasted and jackhammered concrete. Although Brown’s testimony was inconsistent, Brown ultimately testified that Rankin wore an AO mask while jackhammering and sandblasting from 1980 through 1985.

¶9. Rankin’s “long and complicated medical history” was well documented at trial. Rankin first was diagnosed with silicosis, an occupational lung disease, on January 14, 2014, eight months after Rankin had filed his complaint in the present case. Rankin also suffered from breathing problems since 2000; had a heart attack in 2001; underwent open heart surgery; had multiple strokes; had blood clots in his legs; suffered pulmonary emboli; had seizure disorders; had Type II diabetes; underwent leg amputátion below the knee due to diabetes; had peripheral vascular disease; had high cholesterol; suffered from hypertension; had coronary artery disease; had congestive heart failure; had chronic obstructive pulmonary disease (COPD), a chronic lung disease; and suffered from pulmonary interstitial lung disease.

1Í10. Dr. Steven Haber, a physician board certified in internal and pulmonary medicine as well as a certified B-reader, testified on behalf of Rankin. A B-reader is a physician certified by the National Institute for Occupational Safety and Health (NIOSH) to read x-rays for dust diseases of the lung such as silicosis and asbestosis. Dr. Haber explained that silicosis is a type of pneumoconiosis or “dust disease of the lung” caused by inhaling ciystalline silica. Dr. Haber testified four criteria are required before a diagnosis of silicosis can be made, which are: (1) an x-ray showing scar tissue; (2) a history of exposure to silica; (8) a latency period; and (4) a clinical evaluation to determine if there was another reason for the scar tissue.

¶11. Dr. Haber testified that respirable silica may be generated during construction activities such as jackhammering and sandblasting. He said that disrupting or breaking up materials through jackham-mering and sandblasting causes crystalline silica to become airborne in high concentrations. Dr. Haber testified that the inhalation of silica causes scar tissue or fibrosis to form in the interstitial or tissue part of the lung, which results in an incurable and progressive lung disease known as silicosis. .

¶12. On January 14, 2014, Dr. Haber personally interviewed and examined Rankin “regarding, possible occupational lung disease.” Dr. Haber took Rankin’s occupational history and reviewed Rankin’s medical records, including x-rays and CT scans, as well as deposition testimony of Rankin and his coworkers. Dr. Haber gave the following summary of Rankin’s occupational history based on his interview with Rankin:

[Rankin] was in the construction indus-. try from about 1966 until 2001 when he left work. He had significant occupational exposures to silica dust. The sources of that silica dust was from sandblasting, jackhammering, construction work and being around others who were doing that sort of .activity. He, over his like 36 years, of work, had done about ten years or so of sandblasting. He worked around other sandblasting or jackhammering or doing activities that were producing silica dust. And that he would experience sand- in the nose or the mouth while he’s doing some of these activities and over man years, primarily from sandblasting and concrete work starting in the 1960s,

¶13. On January 14, 2014, Dr. Haber diagnosed Rankin with chronic silicosis that was incurable and likely to progress. Dr. Haber testified that, although Rankin’s heart problems were not caused by silicosis, the heart problems were “exacerbated” by silicosis.

¶14. Dr. Obie McNair, a board certified internal medicine physician and former board certified pulmonolgist, also testified for Rankin. Dr. McNair opined that Rankin’s x-rays revealed “findings consistent with silicosis.” Dr, McNair testified that Rankin’s OOPD was caused by simple silicosis, by exclusion, Dr. McNair based the conclusion on “articles [that] said that silic[a] exposure can also cause COPD.” Dr. McNair; explained that he “deduced” that Rankin’s COPD was “quite possibly related to his silica exposure.”

¶15. Dr. McNair testified that Rankin’s diabetes, stroke, heart attack, peripheral vascular disease, seizure disorder, hypertension, high cholesterol, and heart failure were not caused by silica exposure. Dr. McNair also testified that Rankin’s medications for diabetes and cholesterol were not related to silica exposure. Dr. McNair was asked on cross examination whether Rankin’s medication isordil had anything to do with silica exposure. In response, Dr. McNair mentioned a peer reviewed journal article (Liu Article) containing a study of 40,000 Chinese workers who were exposed to silica. Over the objection of AO’s counsel, Dr. McNair testified that, according to the article, people who had low level exposure to silica were at an increased risk of dying from heart related complications. '

¶16. Dr. McNair testified that he did not know whether Rankin’s, silicosis would progress at all. Dr. McNair also testified that Rankin’s life expectancy would be shortened due to the number of his medical problems. Dr. McNair also opined that Rankin’s COPD and chronic silicosis contributed to or exacerbated Rankin’s right-sided heart disease. Dr. McNair also testified that Rankin’s left-sided heart disease is not attributable to COPD. When asked whether Rankin’s left-sided heart disease was attributable to silicosis, Dr. McNair again mentioned that, according to the Liu article, people with exposure to silica had an increased risk of ischemic heart disease. Dr. McNair was asked whether Cozaar, a medication for congestive heart failure, was related to silica. Dr. McNair explained that silica could be indirectly related to congestive..heart failure, according to the Liu article. Dr. McNair opined that damaged lungs generally affect the cardiovascular system.

¶17. At the close of Rankin’s case in chief, AO moved for a directed verdict, arguing that Rankin’s claims are barred by the statute of limitations because Rankin knew he had a lung injury before May 13, 2010. The trial court denied the motion and AO proceeded with its case in chief. AO called Dr. Malcom Taylor, a cardiologist who treated Rankin in 2013, to the stand. Dr. Taylor testified that Rankin had left-sided heart disease and the right side of his heart was normal. Although Dr. Taylor did not see any problem with Rankin’s lungs, he referred Rankin to a pulmo-nologist at the request of Rankin’s wife, Jean. Dr. Taylor testified that silicosis could lead to COPD, and silicosis could cause lung damage.

¶18. AO also called to the stand Dr. Demondes Haynes, a board certified pulmonary and critical care physician. Dr. Haynes opined that Rankin did not have silicosis or any occupational lung disease. Dr. Haynes opined that silicosis does not cause congestive heart failure or make congestive heart failure worse. Dr; Haynes testified that Rankin’s x-rays dated January 19, 2010, and April 3, 2013, did not indicate silicosis. Dr. Haynes opined that Rankin did not have COPD. Dr. Haynes also opined that Rankin did not have lung disease or interstitial lung disease.

STANDARD OF REVIEW

¶19. The- Court applies a de novo standard of review to statutes of limitation. Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (¶ 12) (Miss. 2012). Likewise, the Court- reviews a trial court’s decision to grant or deny a motion for a directed verdict de novo. Moreno v. TLSL, Inc., 187 So.3d 127, 129 (¶8) (Miss. 2016).

¶20. “A motion for a directed verdict challenges the legal sufficiency of the evidence; it asks if the plaintiff met the burden of going forward on the evidence.” Roop v. S. Pharm. Corp., 188 So.3d 1179, 1184 (¶ 15) (Miss. 2016). “Th[e] Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence.” Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (¶ 10) (Miss. 2008). The Court will affirm the denial of a motion for a directed verdict where there is substantial evidence to support the verdict; but we will reverse if the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated. Hyundai Motor America v. Applewhite, 53 So.3d 749, 752-53 (¶¶ 9) (Miss. 2011).

DISCUSSION

I. Whether Rankin’s claims are barred by the three-year statute of limitations.

¶21. AO argues that the'trial court erred by failing to grant its motion for a directed verdict because Rankin’s claims are barred by the three-year statute of limitations. AO contends that Rankin’s claims accrued when he discovered his lung injury. Specifically, AO argues Rankin’s claims accrued when he was diagnosed with COPD in November 2007 or, at the latest, in January 2010 when his x-ray revealed “pulmonary fibrotic pathology.” Rankin contends that the timeliness of his complaint was a factual issue that was properly resolved by the jury. The special verdict form posed the question, “Do you find by a preponderance of the evidence that [Rankin] knew or should have known before May 13, 2010, that he had the lung injury alleged in this lawsuit?” To this, the jury answered “No.” Rankin argues that “under the unique facts of this case, [he] invoked his right to file suit even though he had not yet received a full diagnosis-only a strong suspicion he was exhibiting signs of silicosis.”

¶22. Under Mississippi Code Section 15-1-49, a plaintiffs cause of action for a latent injury or disease accrues at the point at which he discovered, or by reasonable diligence should have discovered the injury. Section 15-1-49 provides in relevant part:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss. Code Ann. § 15-1-49 (Rev. 2012).

¶ 23. Causes of action accrue upon discovery of the injury, not discovery of the injury and its cause. Ridgway Lane & Assocs., Inc. v. Watson, 189 So.3d 626, 629 (¶ 9) (Miss. 2016). Knowledge of the cause of the injury is irrelevant to the analysis; rather, the inquiry is when the plaintiff knew or should have known of an injury. Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 838 (¶ 23) (Miss. 2010). In determining whether a plaintiff knew or reasonably should have known that he had an injury, the Court considers the actions taken by the plaintiff. Id. at 837-38 (¶¶ 22-23). For example, “seeking medical attention for side effects or symptoms” may confirm that the plaintiff knew he was injured. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 51 (¶ 16) (Miss. 2005).

¶24. The question of whether the statute of limitations is tolled by the discovery rule often turns on the factual determination of what the plaintiff knew and when. Peoples Bank of Biloxi v. McAdams, 171 So.3d 505, 509-10 (¶ 18) (Miss. 2015). The discovery of an injury is an issue of fact to be decided by a jury when there is a genuine dispute. Watson, 189 So.3d at 629 (¶ 9). Although occasionally, the question of whether the suit is barred by the statute of limitations is a question of fact for the jury, the question may be taken.away from the jury if reasonable minds could not differ as to the conclusion, as with other putative fact questions. McAdams, 171 So.3d at 510 (¶ 9).

¶25. In the case sub judice, Rankin’s wife testified that Rankin had breathing problems dating back to 2000. She explained that Rankin suffered from shortness of breath and at times could “hardly get his breath.” On November 27, 2007, Rankin sought medical treatment at the emergency room of Natchez Regional Medical Center. He complained of shortness of breath, asthma, and other respiratory distress. Upon a physical examination, his breathing came in wheezes and rales, and he exhibited crackles in the lung bases. He was suffering from cardiomegaly (enlarged heart), had increased lung markings, and was coughing yellow sputum. He had a history of emphysema, congestive heart failure, and coronary artery disease, as well as a prior myocardial infarction (heart attack). He also had prior cardiac catheterization and bypass surgery in 2001. A prior stroke left him with right-sided weakness, and he also had a history of hypertension, diabetes, and hyperlipide-mia.

¶26. Notably, both Rankin and his wife discussed his medical history, examination, results, diagnosis, and treatment plan with Dr. Barry Tillman. Dr. Tillman, in turn, counseled Rankin and his family regarding lab/radiological results, diagnosis, and need for follow-up. Rankin previously had suffered from symptoms similar to those exhibited on November 27, 2007. According to Dr. Tillman’s report, Rankin was evaluated by the emergency room physicians and was diagnosed with exacerbation of chronic obstructive pulmonary disease, consistent with Dr. Tillman’s clinical impression. Rankin was admitted to the emergency room as a result. A follow-up examination on November 30, 2007, showed that the “[g]eneral appearance of [Rankin’s] chest is essentially unchanged compared to previous 11/27/07. Technique of the chest is somewhat different but the lung fields are essentially unchanged. Car-diomegaly persists.”

¶27. A close inspection of the medical records reveals that Rankin had knowledge of the injury to his lungs because he and his wife relayed his medical history to the medical staff of the Natchez Regional Medical Center on November 27, 2007. Dr. Tillman, in turn, counseled Rankin regarding his lab results, diagnosis, and treatment. Rankin certainly knew his own history of construction work, involving jackhammering and sandblasting, from approximately 1965-2001. Rankin argues that his claim did not begin to run until January 14, 2014—eight months after filing suit—when he was diagnosed with silicosis. The testimony of his own expert, Dr. Obie McNair, contravenes that argument. According to Dr. McNair, silicosis caused Rankin’s COPD.

¶28. At trial, Dr. McNair testified that Rankin’s COPD, a chronic lung disease, was caused by simple silicosis by exclusion. On February 4,' 2008, Rankin went to the ER due to a “sudden onset of acute shortness of breath that was complicated with profound diaphoresis.” He was diagnosed with acute shortness of breath, recent, pulmonary embolism of extremity, coronary artery disease, and atherosclerotic cardiovascular disease. On July 17, 2009, a radiology report noted that Rankin had a “low probability of pulmonary embolic pathology.” On January 19, 2010, Rankin underwent an x-ray at the Jefferson County Hospital, which revealed “pulmonary fi-brotic pathology” or lung scarring disease. At trial, Dr. Haber testified that silicosis causes lung fibrosis or scarring.

¶29. On an unknown date, Rankin’s attorneys retained Dr. Haber to perform a B-reading of Rankin’s x-rays. On October 22, 2012, Dr. Haber performed a B-reading of a Rankin’s x-ray dated August 10, 2012. On October 23, 2012, Dr. Haber submitted a report to Rankin’s attorney stating that his findings were “consistent with silicosis, assuming an adequate exposure history, sufficient latency, and exclusion of other more probable causes.” Dr. Haber also stated that no diagnosis was made or implied and recommended clinical correlation.

¶30. On another unknown date, Rankin’s attorneys arranged for him to undergo a physical and clinical evaluation by Dr. Haber “regarding possible .occupational lung disease.” On January 14, 2014, Dr, Haber performed an examination of Rankin and completed a report of his findings and diagnosis. The same day, which was eight months after Rankin had. filed his complaint against AO, Dr. Haber diagnosed Rankin with chronic .simple silicosis.

,¶31. Rankin filed his complaint against AO on May 13, 2013. Rankin claimed that his injury was “lung disease and silica related conditions, caused by exposure to respirable crystalline silica.” Rankin also alleged that his “lungs and body were injured” and he had “premature disability” as a result of silica inhalation. Rankin’s complaint indicates that he already had been diagnosed with silicosis at the time he filed his complaint. Rankin’s complaint contained a section “DISCOVERY RULE,” in which he alleged that he “suffers from an occupational illness which has a latency period,” and his “occupational illness did not distinctly manifest itself until [he] was diagnosed ivith silicosis.” However, Rankin’s position ultimately was that he was first diagnosed with silicosis on January 14, 2014, eight months after he filed his complaint,

¶32. At trial, Rankin maintained the position that he was first diagnosed with silicosis on January 14, 2014, by his retained expert pulmonologist, Dr. Haber. AO did not. dispute the diagnosis date of January 14, 2014; AO’s position at trial was that Rankin did not have silicosis at all. There is no dispute [Rankin] has never been diagnosed with silicosis- or any other occupational lung injury -by any of his treating physicians.

¶33. At trial, in response to AO’s motion for a directed verdict, Rankin’s counsel argued that Rankin had filed within the statute of limitations because “Mr. Rankin was not diagnosed until—J mean, was not diagnosed with silicosis until three years prior to him filing a suit.” Rankin argued in its written response to AO’s post trial motion: “In cases involving latent injury such as silicosis, the claim only arises once the Plaintiff is diagnosed with the disease.”

¶34. A summary of the foregoing pertinent dates to the statute of limitations issue is provided by the Court:

1Í35. AO argues that McLemore is directly on point with the facts of the present case. On November 14, 2005, a welder, McLemore, filed a products liability suit against manufacturers of welding rods, claiming that his exposure to harmful welding fumes from the rods resulted in “serious neurological injuries” and his eventual diagnosis of manganism, a neurological disease caused by high exposure to manganese. McLemore, 54 So.3d at 833-35 (¶¶ 1-2, 9). The manufacturers argued that McLemore’s claims were time barred because he knew he had an injury on September 3, 2002, when a neurologist had diagnosed him with Parkinsonism and had informed him that his condition may have been related to his occupation as a welder. Id. at 835 (¶ 12). McLemore argued that his cause of action did not accrue until October 2005, when he was specifically diagnosed with manganism. Id, at 835 (¶ 13). McLemore argued that he did riot know that the welding fumes had caused his damages until the manganism diagnosis. Id. at 835 (¶ 13). At trial,- the physician who had diagnosed McLemore with man-ganism testified that manganism was a syndrome with features of atypical Parkin-sonism. Id. at 834 (¶ 8).

¶36. The Court held that McLemore’s cause of action was time barred because he knew of his injury in September 2002 when he was “informed of the correlation between his symptoms and welding.” Id. at 837, 839 (¶¶ 23-31). The Court held that, while notice of the causal relationship is irrelevant to the accrual of a cause of action, it showed McLemore’s knowledge of his injury at that time. Id. at 837 (¶ 23). The Court determined that the following “events and actions” taken by McLemore showed that he knew or should have known that he had an injury no later than September 2002: he had difficulty using his left hand in December 2001; he was informed that his Parkinsonism might have been related to his welding work; he sought legal advice and he filed a complaint in 2004 prior to his manganism diagnosis alleging “serious neurological injury” from exposure to manganese products. Id. at 835, 838 (¶¶ 9, 24).

¶37. AO also relies on the district court’s decision in Langston v. Pangborn Corp., 2014 WL 347718 (S.D. Miss. Jan. 31, 2014) (not reported) in support of its argument. On May 14, 2012, Langston filed a complaint, which seems to be strikingly similar to Rankin’s complaint in the présent case, against personal respiratory equipinent manufacturers, including AO. Id. at *1. Like Rankin, Langston alleged that he suffered from “lung disease and silica related conditions” as a result of béing exposed to crystalline silica while working as a sandblaster. Id. The defendants argued that Langston had knowledge of his “lung injuries” before May 14, 2009, three years prior to the filing of his complaint. Id. at * 2. Langston argued that his claim did not accrue until he was diagnosed with silicosis on November 7, 2012, which was six months after he filed his complaint. Id. at **4-5. The district court addressed the issue of the post-complaint silicosis diagnosis:

Without overlooking the obvious, the Court notes that Langston’s November 7, 2012, silicosis diagnosis occurred almost six (6) months after he filed suit on May 14, 2012. The diagnosis was made by Dr. Steven Haber, Langston’s retained medical expert. No medical record showing a diagnosis of silicosis from any of Langston’s treating physicians has been presented to the Court. Clearly then, the subject diagnosis is immaterial to the issue of when the claims alleged in the Complaint accrued for statute of limitations purposes and fails to give rise to a genuine dispute for trial. Any contrary argument from Langston is “disingenuous and without merit.” Powe v. Byrd, 892 So.2d 223, 228 (¶ 17) (Miss. 2004) (rejecting the plaintiffs argument that the statute of limitations did not start to run until December 1, 2000, when her complaint was filed on August 3, 2000). Further, the accrual rule cited by the Mississippi Supreme Court in Morgan, Kinsey, and Kelly is inapplicable here since the plaintiffs in those actions filed suit subsequent to each respective silicosis diagnosis. See [Empire Abrasive Equip. Corp. v.] Morgan, 87 So.3d [455,] 462 (¶25) [(Miss. 2012)]; Kinsey [v. Pangborn Corp.], 78 So.3d [301,] 307 (¶ 18) [ (Miss. 2011) ]; [Clark Sand Co. v.] Kelly, 60 So.3d [149,] 162 (¶ 46) [ (Miss. 2011) ].

Langston, 2014 WL 347718, at *5.

¶38. The key distinguishable fact from the present case, however, was that Lang-ston testified that in 2007 he had researched silicosis and learned that it is caused by the inhalation of silica dust after he had found out he had “lung trouble.” Id. at *3. The district court held that “the extensive and consistent medical treatment sought by Langston for his breathing problems confirms that he either knew or should have known of his lung injuries prior to 2009.” Id. at *6. And “the accrual of Langston’s cause of action was not dependent upon an expert witness placing the label of silicosis on his injury.” Id. The district court concluded that Langston’s claims were time barred under Section 15-1^49 because the record established that Langston knew or should have known of his “lung disease and silica related conditions,” “injury to his lungs and body,” and “premature disability” more than three years prior to the filing of his complaint. Id.

¶39. In Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1056 (¶ 1) (Miss. 2012), Lofton, a former oil rig worker, filed a complaint on May 19, 2004, alleging that he suffered from asbestosis as a result of exposure to a defendant’s product. Lofton began experiencing shortness of breath in 1995, and chest x-rays from 1995 and 1996 revealed pulmonary fibrosis. Id. at 1057 (¶ 5). Lofton first sought treatment for his pulmonary symptoms in September 2003 with a pulmonologist, who diagnosed Lofton with pulmonary fibrosis. Id.

¶40. In 2004, the same pulmonologist noted that Lofton likely was suffering from pneumoconiosis, also known as asbestosis. Id. Lofton was diagnosed conclusively with asbestosis in 2010, several years after he had filed his complaint. Id. The defendant argued that the statute of limitations began running in 1995, or at the latest 1996, when physicians discovered pulmonary fibrosis in Lofton’s lungs. Id. at 1059 (¶ 14). However, Lofton argued that “he could not have reasonably known of his lung injury until he sought treatment from [a pulmonologist] and was diagnosed with pulmonary fibrosis, or scarring of the lungs in September 2003.” Id.

¶41. The Court sated: “[According to Lofton’s testimony, he was seeking medical treatment for health concerns unrelated to his lungs in 1995 and 1996 and was not made aware of the fibrosis until [a pulmonolgist] diagnosed him in 2003.” Id. at 1059 (¶ 16). “Accordingly, Lofton could not reasonably have known about his injury until he sought treatment in September 2003 for symptoms associated with his asbestosis and was diagnosed with pulmonary fibrosis.” Id.

¶42. Because the discovery of the injury was a disputed issue of fact, the trial court submitted the following question of discovery to the jury: If you determine that Mr. Lofton knew or by reasonable diligence should have known of his injury before May, 2001, then you must return a verdict for the defendant. Id, at 1059-1060 (¶ 17). The Court held that the issue of whether the statute of limitations barred Lofton’s claim was a disputed issue of fact that was resolved by the jury in favor of Lofton. Id.

¶43. The record does not reveal when Rankin sought legal advice related to his lung injury. However, it is undisputed that Rankin began experiencing breathing problems in 2000. It also is undisputed that Rankin sought medical treatment for shortness of breath and had been diagnosed with exacerbation of COPD in 2007.

¶44. The district court in Bryant v. 3M Co., 2014 WL 2761553, *3 (S.D. Miss. June 18, 2014) (not reported), addressed a set of facts nearly identical to the present case under Mississippi law. On April 9, 2013, Bryant, a sandblaster for several years in the 1970s, filed a products liability complaint claiming that he had developed “lung disease and silica related conditions” because he had used defective personal respiratory equipment from certain manufacturers. Id. at *1. Bryant claimed in his discovery responses that he suffered from “shortness of breath, silicosis, and any condition caused by his exposure to respirable silica.” Id. at *2. The issue before the district court was whether Bryan knew or reasonably should have known of his alleged injuries before April 9, 2010. Id. at *2.

¶45. Bryant experienced both wheezing and shortness of breath as early as 1992; was diagnosed with both emphysema and severe COPD as early as 2000. In 2005, a radiologist identified markings on Bryant’s lungs that “could be chronic fibrotic type changes,” but made no definitive diagnosis. He was referred to a pulmonologist in 2007. Id. The Court stated: “First, [Bryant] did not know about the ‘B reading’ until February 2014-after he had already filed suit. Similarly, [Dr.] Haber first diagnosed [Bryant] with silicosis on January 14, 2014-after [he] had already filed suit.” The district court stated that, as a result, neither Dr. Haber’s B-reading nor his diagnosis report could have provided Bryant with the knowledge necessary to file suit. Id. at *4.

¶46. In applying the Court’s holdings in Lofton and McLemore, the district court held that there was a genuine issue of material fact regarding when a plaintiff knew or reasonably should have known of his alleged “silicosis/pulmonary fibrosis.” Id. at *4. However, the district court granted the defendant’s motion for summary judgment in part with respect to Bryant’s claims for “COPD, emphysema, shortness of breath, wheezing, and any other injury or medical condition diagnosed before April 9, ■ 2010.” Id.

¶47. The Court stated in Lofton that the plaintiff could not reasonably have known about his injury until he sought treatment for symptoms associated with his alleged injury and was diagnosed. Lofton, 94 So.3d at 1059 (¶ 16). The Court has held that “absolute certainty nor an expert opinion vest the right to a cause of action under [Mississippi’s] products liability statute.” Lowery, 909 So.2d at 52 (¶18). The post-complaint diagnosis of the occupational injury, silicosis, is irrelevant to the analysis, because the Court has emphasized that “the cause of action accruefe] upon discovery, of the,injury, not discovery of the. injury and its cause.” Angle v. Koppers, Inc., 42 So.3d 1, 5 (¶ 9) (Miss. 2010).

¶48. Rankin’s complaint alleged that his injury was “lung disease and silica related conditions, caused by exposure to respira-ble crystalline silica.”-Rankin also alleged that his “lungs and body were injured” and he had “premature disability” as a result of silica inhalation. Reasonable minds could not have differed in answering the question on the special verdict form: “Do you find by a preponderance of the evidence that [Rankin] knew or should have known before May 13, 2010, that he had the' lung injury alleged in this lawsuit?” It is undisputed that Rankin was aware of and sought treatment for lung disease, COPD, in 2007. Moreover, Rankin’s experts opined that Rankin’s myriad of remaining medical conditions, of which he was aware and for which he sought treatment before May 13,2010, were related “in part” or “exacerbated” by silica exposure. Accordingly, we hold that the trial court erred by failing to grant AO’s motion for a directed verdict because Rankin’s claims are time barred.

CONCLUSION

¶49, Because Rankin’s claims are time barred, we reverse the jury verdict, vacate the judgment in favor of Rankin, and render a judgment as a matter of law in favor of AO.

¶50. REVERSED AND RENDERED.

WALLER, C. J., DICKINSON AND RANDOLPH, P.JJ., MAXWELL AND BEAM, JJ.,-CONCUR. CHAMBERLIN, J.,-CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.,

KITCHENS, JUSTICE,'

DISSENTING:

¶51. I respectfully dissent. In holding that Rankin’s entire claim is time barred, the majority wields a club when a scalpel is appropriate. While I agree that this case must be reversed on statute of limitations' grounds, I would remand for a new trial. Although these two statements may seem, at first blush, to be mutually exclusive, in this instance they are not. The majority finds that Rankin’s 2007 COPD diagnosis, as a matter of law, started the running of the' statute of limitations on his silicosis claim. But that conclusion is not supported by the case law the majority cites or by the medical testimony adduced at the trial. This is a silicosis claim, not a COPD claim. While CQPD indeed is a lung condition, there was a complete absence of evidence that the COPD diagnosis should have informed Rankin of the presence of silicosis, which was the specific lung injury for which Rankin sought recovery. Our case law dictates that, under the circumstances, the question of when Rankin knew or should have known of his silica-induced injury was a jury issue. Because Rankin’s COPD was diagnosed outside the limitations period, he was not entitled to recover damages for COPD, and I would reverse and remand for a new trial.

¶52. The three-year statute of limitations applicable to Rankin’s action is found in Mississippi Code Section 15-1-49(2). The statute provides that, “[i]n actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2) (Rev. 2012). A latent injury is one that is “undiscoverable by reasonable methods.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 51 (Miss. 2005). According to this Court’s decision in Angle v. Koppers, 42 So.3d 1, 5 (Miss. 2010), a cause of action for a latent injury or 'disease accrues when the plaintiff discovers the injury. This Court thus decided that the plain language of Section 15—1— 49(2) means “that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.” Id. (emphasis in original).

¶53. The determination of when the plaintiff “discovered, or by reasonable diligence should have discovered, the injury” is a • fact-intensive inquiry, focusing oh what the plaintiff knew and when. “Because there is no bright line rule, the specific facts of the case will determine whether the plaintiff knew or reasonably] should have known that an injury existed.” Lowery, 909 So.2d at 51. This Court has' observed that an individuals seeking of medical attention for side effects or symptoms may show knowledge of an injury, although other persons may not discover an injury until they review pertinent medical records. Id. Others may discover an injury through personal observation or experience. Id. One’s receipt of. medical treatment for an injury also may trigger the running of the limitations period. Id. When a genuine dispute exists, discovery of an injury is a question of fact for the jury. Weathers v. Metropolitan Life Ins. Co., 14 So.3d 688, 692 (Miss. 2009) (quoting Donald v. Amoco Prod. Co., 735 So.2d 161, 167 (Miss. 1999)).

¶54. Rankin suffered from a multitude of medical conditions, including congestive heart disease, coronary artery disease, diabetes, dementia, seizure disorders, and multiple strokes. He developed breathing problems in' 2000, and in 2007 he was diagnosed with exacerbation of COPD, Dr. Obie McNair testified that “[t]hree types of major disease'processes come under the heading of COPD: emphysema, chronic bronchitis, and asthma.” Dr. McNair testified that Rankin had a history of emphysema, “which is a form- of COPD,” and he thought Rankin’s COPD possibly was caused by silicosis, because he could find no other cause. Dr. Malcolm Taylor, a defense expert, testified that COPD is a condition that encompasses “a lot of different lung diseases,” and had numerous possible causes, such as childhood asthma or multiple infections. He testified that it is uncommon for silicosis to cause COPD.

¶55. Dr. Steven Haber testified that silicosis is a form of pneumoconiosis, which is a' dust disease of the lungs caused' by inhaling particles that scar the lung. He testified that silicosis results when scar tissue, also known as fibrosis, develops in the lung tissues after the inhalation of silica. All experts agreed that a diagnosis of silicosis requires four criteria: (1) imaging, such as an x-ray, showing the scar tissue; (2) a history of exposure to silica; (3) a sufficient latency period; and (4) no other explanation for the presence of scar tissue. On January 19, 2010, Rankin had a chest x-ray that, according to the radiologist’s note, showed “pulmonary fibrotic pathology.” No reason for the x-ray appears in the record, and no accompanying physician’s note or other evidence shows that this information ever was communicated to Rankin. This chest x-ray was one of forty-two chest x-rays admitted in evidence. Dr. McNair testified to the existence of thousands of pages of medical records on Rankin, and defense expert Dr. Desmondes Haynes testified that he had reviewed several banker’s boxes of medical records on Rankin.

¶56. On October 22, 2012, Dr. Haber performed a B-reading of a more recent chest x-ray and found the x-ray to be consistent with silicosis. On May 13, 2013, Rankin filed a complaint alleging that he suffered of “lung disease and silica related conditions, caused by exposure to respira-ble crystalline silica.” Later, on January 14, 2014, Dr. Haber diagnosed Rankin with silicosis. During closing arguments, Rankin argued that he did not know he had a silica-induced injury until he had the Breading and diagnosis. Although the defense argued that Rankin’s 2007 COPD diagnosis started the limitations period, the jury found for Rankin.

¶57. The majority finds that the trial court erred by submitting the statute of limitations issue to the jury because the 2007 COPD diagnosis began the running of the statute of limitations as a matter of law. I disagree. The case law cited by the majority does not support its conclusion. In Angle v. Koppers, 42 So.3d 1, 2 (Miss. 2010), the plaintiff sued a wood-treatment plant and other defendants in 2006 for numerous injuries caused by her exposure to toxic chemicals. Angle had been diagnosed with her last injury five years before filing the complaint. Id. at 3. She argued that the statute of limitations did not begin to run until she knew the cause of her injuries. Id. at 4. This Court rejected that argument, finding that her cause of action had accrued when she had discovered the injury itself, not the injury and its cause. Id. at 5 (citing Miss. Code Ann. § 15-1-49(2)). The Court held that, because Angle’s claims had accrued, at the latest, when she had been diagnosed with her last disease five years before filing the complaint, her claim was time barred. Id. at 7.

¶58. In Lincoln Electric Co. v. McLemore, 54 So.3d 833, 833-34 (Miss. 2010), McLemore sued manufacturers of welding rods, alleging that his exposure to harmful fumes from welding had caused his diagnosis of a neurological disease known as manganism. On September 3, 2002, McLe-more had been informed by a physician that he had Parkinsonism or Parkinsonism syndrome, and that his condition could have been related to welding. Id. at 834. McLemore then sought legal advice. Id. In December 2002, he was advised by a physician to discontinue welding. Id. From 2004 through 2006, McLemore filed several lawsuits claiming neurological injury from exposure to welding products. Id. at 835. In October 2005, he was diagnosed with man-ganism, and, on November 14, 2005, he filed his complaint seeking recovery specifically for manganism. Id. This Court held that McLemore had known of his injury on September 3, 2002. Id. at 838. This was because, on that date, McLemore had been diagnosed with Parkinsonism or Parkin-sonism syndrome related to welding, which prompted him to seek legal advice and to file lawsuits alleging neurological injury from exposure to manganese products. Id.

¶59. But in Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1059 (Miss. 2012), the Court held that Lofton’s asbestosis claim, filed May 19, 2004, was not time barred, despite the facts that, in 1995, Lofton had experienced shortness of breath and both a 1995 CT scan and a 1996 x-ray had shown pulmonary fibrosis. As in this case, Lofton definitively was diagnosed with the injury after he had filed' suit, in 2010. We held that, although as early as 1995 Lofton had shortness of breath and a CT scan had shown pulmonary fibrosis, Lofton reasonably could not have discovered the asbestosis in 1995 or 1996 because then he had been seeking medical treatment for conditions unrelated to his lungs. Id. And a physician had testified that fibrosis in the lungs has many causes and is not always associated with asbestosis. Id. We held that Lofton reasonably could not have known of his asbestosis injury until he was notified of the pulmonary fibrosis when he sought treatment in September 2003 for asbestosis symptoms: Id. For these reasons, this Court held that the question of discovery was for the jury. Id. at 1059-60.

¶60. The majority also relies on a pair of unpublished federal district court opinions applying Mississippi law to -this issue. Federal court decisions are not binding upon this Court and are merely persuasive. Corban v. United Servs. Auto. Ass’n, 20 So.3d 601, 611 n.15 (Miss. 2009). But because the majority relies heavily upon these cases, I address them. In Langston v. Pangborn Corp., 2014 WL 347718 (S.D. Miss. Jan. 31, 2014) (not reported), Langston filed suit on May 14, 2012, against various defendants alleging “lung disease and silica related conditions” from silica exposure. Id. at *1. Langston argued that the limitations period did not start running until he was diagnosed with silicosis after he had filed the complaint. Id. at *2. But Langston had sought treatment for emphysema and COPD beginning in 2001, and 2005 x-rays showed pulmonary fibrotic scarring. Id. at *3. Langston testified that, in 2007, he researched silicosis and discovered it was caused by the inhalation of silica dust. Id. First, the district court held that the limitations period had begun to run soine time prior to Langston’s formal silicosis diagnosis; obviously, Langston had known of his injury because it had prompted him to file suit. Id. at *5. Second, the district court determined that the statute of limitations had expired before Langston had filed his suit. Id. at *6. The district court found that Langston knew or should have known of his injury prior to May 14, 2009, because, more than three years before the lawsuit, he had pulmonary problems related to silicosis, he had been diagnosed with numerous pulmonary conditions, he had researched silicosis, and no definitive expert diagnosis is necessary to commence the running of the statute of limitations. Id. at **5-6.

¶61. Langston seems to imply that a plaintiffs diagnosis with any physical problem even tangentially related to silicosis might commence the running of the statute of limitations on a silicosis claim. If that were the law, then Rankin’s COPD diagnosis, later related by Dr. McNair to his silicosis, would have commenced the running of the statute of limitations. But as previously discussed, Langston, a federal case, is not binding on this Court. Moreover, the federal district judge who authored Langston distinguished it in the other unpublished opinion cited by the majority, Bryant v. 3M Company, 2014 WL 2761553 (S.D. Miss. June 18, 2014) (not reported). As the majority astutely recognizes, the facts of Bryant and the facts of this case are practically, identical.

¶62. Bryant filed his complaint against certain respiratory equipment manufacturers on April 9, 2013, alleging “lung disease and silica related conditions.” Id. at *1. Medical records showed that Bryant’s breathing problems began in 1991. Id. at *2. He was diagnosed with severe COPD and emphysema in 2000. Id. In April 2005, chest x-rays showed prominent interstitial markings that, the radiologist stated “could be chronic fibrotic type changes,” but it was “unclear.” Id. In 2007, a radiologist found prominent .markings in Bryant’s lungs. Id. After 2007, Bryant’s breathing problems worsened, and he began oxygen treatment in 2008. Id.

¶63. Faced with this set of facts, the district court allowed Bryant to proceed with his claims for “silicosis/pulmonary fibrosis,” finding that a genuine issue of material -fact existed' as to whether these claims had been brought within 'the limitations period. Id. at *4. But the district court found that Bryant’s claims for “COPD, emphysema, shortness of breath, wheezing, and any other injury or medical condition diagnosed before April 9, 2010” were time barred. Id. The district court discussed Lofton’s holding that, despite the fact that Lofton had experienced lung symptoms and had exhibited scarring on his lungs for years before filing suit,-Lof-ton’s “claim did not accrue until he received a diagnosis of pulmonary fibrosis.” Id. at ⅜3. And the district court distinguished Langston because, in that case, the plaintiff had been diagnosed with .pulmonary fibrosis seven years before filing suit and had researched silicosis for five years before filing suit. Id. The district court also found MoLemore to be distinguishable because, in McLemore, the plaintiff had been informed of the connection between his symptoms and welding and had. sought legal advice years before filing the lawsuit at issue. Id.

¶64. In Bryant, the district court rejected the notion that the mere appearance of some symptom, such as COPD, that later is linked to silicosis commences the running of the statute of limitations on the silicosis claim. Id. at *4. Rather, the dis-

trict court held, a diagnosis of a such a symptom starts the running of the limitations period as to that injury. Id. The plaintiff still may recover for silicosis if the claim is brought within three years of the date the plaintiff knew or should have known of the silicosis. Id. And Bryant recognized this Court’s holding in Lofton that a radiologist’s identification of pulmonary fibrotic scarring on an x-ray does not commence the statute of limitations, unless the plaintiff has some awareness of that finding. Id. at *3 (citing Lofton, 94 So.3d at 1059). In Lofton, the plaintiff was unaware of the finding of pulmonary fibrotic scarring because the plaintiff had sought treatment for unrelated medical conditions. Lofton, 94 So.3d at 1059. And in Bryant, the plaintiff was not charged with knowledge of pulmonary fibrotic scarring because the radiologist had stated that its presence was “unclear.” Bryant, 2014 WL 2761553, at *3.

¶65. The medical evidence in this case established that pulmonary fibrosis, or scarring of the lung tissue, is the physical finding that attends a diagnosis of silicosis. The cases discussed above provide that, before a court can hold, as a matter of law, that a plaintiff knew or should have known of a silicosis injury, the plaintiff must have had some reasonable awareness of a finding of pulmonary fibrosis or of some other unambiguous indicator of silicosis. Under Lofton and Bryant, merely seeking treatment for some physical condition later linked to silicosis is- not enough. Bryant held that seeking treatment for COPD outside the three-year limitations period merely bars the. plaintiffs recovery for COPD. As the medical evidence in this case, discussed above, demonstrates, COPD and silicosis are vastly different injuries of the lung, and a diagnosis of COPD is not indicative of the presence of silicosis. Thus, without more, a plaintiff diagnosed with the lung injury, COPD, should not be charged with automatic knowledge of the very different lung.injury, silicosis.

¶66. In this case, Rankin received a COPD diagnosis in 2007. Applying Bryant and Angle, his claim for recovery for COPD is time barred, because Rankin had three years from the date of the COPD diagnosis to commence an action to recover for that injury. Under the same logic, Rankin cannot recover for any other injury or medical condition diagnosed before May 13, 2010, because those claims also are time barred as a matter of law. But a jury question undoubtedly existed on Rankin’s claim for silicosis. While a radiologist’s note on a chest x-ray dated January 19, 2010, identified “pulmonary fibrotic pathology,” no evidence existed that Rankin had sought treatment for silicosis or pulmonary fibrotic pathology on that date, or that the contents of the radiologist’s note were communicated to Rankin on that date. See Lofton, 94 So.3d at 1059. Rankin presented evidence that he first knew or should have known of his pulmonary fibrosis when he received the B-reading from Dr. Haber in 2012. Thus, under Lofton, the question of whether he knew or should have known of his silicosis injury prior to May 13,2010, was for the jury.

¶67. As this Court has held, determining when the plaintiff knew or should have known of an injury is a fact-intensive inquiry. In this case, a correct application of the case law to the facts yields the conclusion that a genuine dispute existed on the issue of when Rankin knew or should have known of his silicosis. However, Rankin’s claims for any other medical conditions diagnosed prior to May 10, 2010, are time barred. Therefore, I would reverse and remand for a new trial.

KING, J., JOINS THIS OPINION.

      . The terms "respirator” and "mask” are used interchangeably in the record.

      . Rankin died after the conclusion of the trial on March 10, 2015.

      . Rankin named twenty other defendants, in-eluding manufacturers of respiratory equipment, sand, and silica related equipment, that he claimed also were responsible for his injuries. Ml other defendants were dismissed pri- or to trial and are not parties to the instant appeal.

      . AO ceased manufacturing and selling respiratory protective equipment in 1990.

      . Rankin’s deposition was taken at a nursing home where he was residing at that time. A video of the deposition was shown to the jury at trial.

      .Rankin’s wife, Jean Rankin, testified that Rankin regularly would come home from work with clothes covered in dust and sand. Jean testified that his clothes would be so dusty that she had to wash his clothes separately from those of the rest of the family.

      . Dr, Haber also prepared a report of'his findings. Dr. Haber stated in his report that Rankin spent "an estimated 10 years sandblasting bridges and buildings. Dr. Haber determined that Rankin "often sandblasted on a daily basis" and "would routinely get sand in his nose and mouth.” Dr. Haber stated that Rankin had "done a lot of jackhammering of concrete and cement,” Dr. Haber stated that "Rankin has a history of COPD and interstitial lung disease from asbestosis.” Dr. Haber stated in his report that Rankin was a "lifelong nonsmoker, who had significant occupa-tionál silica exposures while working construction, primarily from the mid 1960s ■through the mid 1980s from sandblasting.” Furthermore, “[h]e also did jackhammering.” Dr„ Haber concluded that Rankin had chronic simple silicosis. Dr. Haber opined that Rankin’s COPD was "most likely related to occupational silica exposure given that he never smoked.” ■

      . Dr. McNair also testified that the following medications prescribed for Rankin were unrelated to silicosis: Lexapro, Norvasc, Depak-ene (seizure medication), Apresoline (high blood pressure medication), Patanol (eye drop), MiraLAX (stool softener),- Colate (stool ■softener), Aplisol injection (unknown purpose), Tylenol, Robitussin, Simethicone.

      . The past-tense language in the complaint mirrors complaints in other silicosis lawsuits, Two cases filed in federal district court contain identical alleged injuries in complaints against respiratory equipment manufacturers brought by the same attorneys. See Bryant v. 3M Co., 2014 WL 2761553 (S.D. Miss. June 18, 2014); Langston v. Pangborn Corp., 2014 WL 347718 (S.D. Miss. Jan. 31, 2014). Namely, in Bryant and Langston, the plaintiffs, who had not been diagnosed with silicosis at the timé they filed their complaints, alleged their injury was “lung disease and silica related conditions” and injury to their "lungs and body.”

      . Dr. Haber specifically stated in his October 23, 2012, report that, although Rankin’s x-ray revealed findings - consistent with silicosis, "[n]o diagnosis is made or implied.”

      . "Asbestosis is a progressive disease caused by scar tissue in the lungs as a result of the body’s response to the presence of asbestos fibers in the lungs.” Lofton, 94 So.3d at 1057 (¶ 5).

      . The district court unequivocally stated that Dr. Haber "first diagnosed [Bryant] with silicosis on January 14, 2014-after he had already filed suit.” However, the Court notes that there appears to have been a typographical error as to the year of a B reading and silicosis diagnosis in the preceding sentences in the same paragraph. The entire paragraph reads:
      To be clear, the Court does not hold that Plaintiff's claims accrued when he received a "B reading” from Dr. Steven Haber on September 14, 2011, or when Dr. Haber provided a silicosis diagnosis on January 14, 2011- as urged by Plaintiff. First, Plaintiff did not know about the "B reading” until February 2014-after he had already filed suit. Similarly, Haber first diagnosed Plaintiff with silicosis on January 14, 2014-after Plaintiff had already filed suit. Therefore, neither Dr. Haber's "B reading” nor his diagnosis report could have provided Plaintiff with the knowledge necessary to file suit.

        Bryant, 2014 WL 2761553, at *4 (record citations omitted and emphasis added to show the inconsistency of the years). Despite the two different years, it is clear that Bryant, at minimum, received actual knowledge of his silicosis diagnosis after he filed his complaint.

      , While I have expressed strong disagreement with-this Court's holding that a claim can accrue when the plaintiff knows of an injury but not its cause; for the purposes of my analysis today, I apply the test from Angle, since it is the relevant precedent of this Court, See City of Tupelo v. Patterson, 208 So.3d 556, 574 (Miss. 2017) (Kitchens, J., dissenting); Lincoln Electric Co. v. McLemore, 54 So.3d 833, 840 (Miss. 2010) (Kitchens, J., dissenting); Angle, 42 So.3d at 9 (Kitchens, J., dissenting).


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT: KITCHENS, JUSTICE, KING, JUSTICE,

license: Public Domain

text:
    Jesse Frank MOUTON v. STATE of Mississippi.
    NO. 2015-KA-01062-SCT
    Supreme Court of Mississippi.
    05/18/2017
    Rehearing Denied August 31, 2017

      ATTORNEYS FOR APPELLANT: MICHAEL W. CROSBY, OFFICE OF THE STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Our trial judges have considerable discretion over discovery matters. This discretion extends to the handling of requests for continuances or mistrials based on alleged discovery violations. In this case, an expert witness testified that injuries to a child were consistent with sexual abuse. Her reports, photographs of the injured body area, and expert opinion were previously disclosed to the defense. Yet, at trial, the defense took issue with the expert’s testimony about the relevance of the shape of some of the injuries. After thoughtfully assessing the defendant’s request to exclude the expert’s testimony, the trial judge denied it. Though she found no discovery violation, the judge recessed trial for the day so defense counsel could further interview the expert. She also restricted the expert’s testimony to external injuries but allowed the expert to give an opinion that the child’s injuries resulted from sexual assault. ■

¶2. On appeal, we find no abuse of discretion in the judge’s handling of this issue, nor do we find she abused her discretion in denying a mistrial. Another alleged error involving the giving of a Sharplin instruction lacks merit. And the defendant’s claims of prosecutorial misconduct were either waived or unfounded.

¶ 3. We affirm.

Background Facts and Procedural History

¶ 4. In 2012, Jesse Frank Mouton lived with his brother Jody and Jody’s girlfriend Katelyn, at the Country Living Trailer Park in Woolmarket, Mississippi. Katelyn often babysat Toni Carpenter’s children— three-year-old N.B. and two-year-old A.B. On June 17, 2012, Toni noticed that N.B. “act[edj with discomfort” when she strapped him in his car seat. Toni asked N.B. what was wrong. And he said “his butt was hurting.” He told her Mouton “had been playing with his butt and wiener.” When Toni confronted Mouton, N.B. pointed to Mouton and again said Mouton had played “with his butt and wiener.”

¶ 5. Ocean Springs Hospital performed a sexual-assault examination on the child. And Susan Auge, a Sexual Assault Nurse Examiner, interviewed and examined N.B. Auge found four injuries to N.B.’s anus—a “rather large” abrasion and three anal tears. Auge concluded N.B.’s injuries were consistent with sexual abuse. She produced a ten-page forensic report, along with photographs taken during N.B.’s interview and examination.

¶ 6. On April 13, 2015, a Harrison County grand jury indicted Mouton on four counts of sexually assaulting N.B. Counts one and two charged Mouton with sexual battery. Counts three and four charged him with touching a child for lustful purposes..

¶ 7. Mouton was tried in May 2015. The State presented evidence and testimony from Toni, Auge, and a Biloxi police investigator, among other witnesses. Auge testified as an expert witness. She described one of the tears to N.B.’s anüs as “V-shaped.” In her opinion, the child’s anal tears were consistent with sexual-assault.

'¶ 8. Mouton objected, claiming the State failed to disclose Auge’s opinion on the significance of the “V-shaped” tear. He argued this violated Mississippi Uniform Rule of Circuit and County Coürt Practice 9.04. But the trial judge disagreed. She found no discovery violation and held the State had met its discovery obligations. Thus, she denied Mouton’s motion for a mistrial.

¶ 9. The judge did, however, grant a brief continuance .and recessed court for the day to give Mouton an additional opportunity to question Auge about her expected testimony. When trial resumed the next day, the judge permitted Auge to testify. But the judge limited her testimony to only the external injuries she had observed while examining N.B.

¶ 10. The State also called Toni as a witness. Inconsistencies arose concerning' her initial statement to police and trial testimony. She originally told police Mouton’s ex-wife, Shannon McGrew, had informed her of other sexual-assault allegations involving Mouton and one of his children. But at trial, Toni claimed no knowledge of prior allegations against Mouton.- She testified she made these statements to the police while she was “distraught and very flustered.” Mouton called Shannon in response. She testified that the Mississippi Department of Human Services had cleared Mouton in the prior sexual-assault investigation. During cross-examination, the State asked Shannon if Mouton had visitation with their children and whether that visitation was supervised. Shannon answered affirmatively to both questions. Shannon was the defense’s 'sole trial witness.

¶ 11, After nearly four hours of deliberation, the jury sent a rióte to the judge. The note explained the jurors were unable to reach a unanimous decision and needed guidance. After hearing from both sides, the judge decided to read a Sharplin instruction to the jury, instructing them to continue to deliberate. See Sharplin, 330 So.2d at 596. Forty-one minutes later the jury returned its verdict—finding Mouton guilty on one count of sexual battery and not guilty of the remaining three counts.

¶ 12. Mouton filed a post-trial motion, seeking.a new trial or judgment notwithstanding the verdict. In it, he claimed three specific errors—(1) the State violated discovery rules by failing to disclose Auge’s expert opinion on the shape of N.B.’s injuries; (2) the trial court gave an improper Sharplin instruction; and (3) the State committed prosecutorial misconduct during Toni’s and; Shannon’s testimony. The trial judge denied Mouton’s motion. On appeal, Mouton raises the same three claimed errors.

Discussion

I. Discovery Violation

¶ 13. From the beginning of trial, Mouton made a host of inconsistent discovery-violation claims. But he only advances one on appeal—that the State introduced undisclosed expert testimony about the significance of the shape of N.B.’s anal tears.

' ¶ 14. Mouton does not claim that Auge was not qualified to give an opinion that N.B.’s injuries were consistent with sexual abuse. Nor does he claim the State failed to provide discovery and photographs depicting the child’s anal tears. Rather, what Mouton coins a discovery violation is that Auge did hot write the words “V-shaped tear” in the disclosed materials. So, as he sees it, Auge could not testify that one of the depicted tears to the' child’s anus was V-shaped, and that N.B.’s injuries were consistent with sexual abusé. For this reason, Mouton insists, the judge erred by finding no discovery violation, improperly allowing Auge to continue testifying, and not granting his motion for a mistrial.,

A. Standard of Review .

¶15. The decision to. admit or exclude evidence is left to the trial court’s discretion. Wade v. State, 683 So.2d 965, 967 (Miss. 1991) (citations omitted). And we review evidentiary decisions for abuse of discretion. Taylor v. State, 954 So.2d 944, 947 (Miss. 2007) (citations omitted). This abuse-of-discretion standard also extends to alleged violations of Mississippi Uniform Rule of Circuit and County Court Practice 9.04 and to a trial court’s denial of motions for continuance or mistrial. See Payton v. State, 897 So.2d 921, 942 (Miss. 2003) (decisions on Rule 9.04 and motions for continuance are within the trial court’s discretion); see also Hurst v. State, 195 So.3d 736, 744 (Miss. 2016) (decisions on motions for mistrial 'are within the trial coui’t’s discretion).

¶ 16. Under Rule 9.04(1), if the State attempts to introduce previously undisclosed evidence, the defense may object and be afforded an opportunity to examine the evidence or interview the witness; URCCC 9.04(1). If, after examination or interview, the defense claims unfair surprise or prejudice, the judge may either exclude the evidence or grant a continuance or mistrial. Id.

¶ 17. Mouton’s counsel admitted he had received Auge’s ten-page forensic report—a report that specifically diagrams and pinpoints the three distinct tears to N.B.’s anus. Defense counsel also acknowledged he had received photographs of the tears. And he admitted receiving a letter from the State, disclosing that Auge would testify that the child’s injuries were consistent with sexual assault. Defense counsel also acknowledged he “interviewed [Auge] on at least one occasion” before trial.

¶ 18. The record shows the trial judge carefully considered Mouton’s argument, finding no merit to the bulk of it. While she found no discovery violation, the judge still employed a “modified So* procedure” by.granting Mouton a brief continuance. See Box v. State, 437 So.2d 19 (Miss. 1983). The judge recessed court for the day and Mouton was allowed additional time to interview Auge. And ultimately, Auge’s testimony was limited. Because Auge had- not examined N.B. internally, the judge restricted her from testifying about internal injuries. But, given the State’s discovery and disclosures to Mouton, and the additional time to question the expert, Auge was allowed to continue her expert testimony.

¶ 19. After review, we find no abuse of discretion in the judge’s handling of the claimed discovery violation. From the State’s discovery—which Mouton admitted receiving—it was clear Auge would testify that the anal tears depicted in the photographs and forensic reports were consistent with sexual assault. And the judge was thoughtful in her evidentiary analysis, crafting an approach that granted Mouton’s request for additional time to question Auge, and ultimately limiting the expert’s testimony to only external injuries. The judge did not abuse her discretion in denying a mistrial and allowing Auge to give her opinion about the cause of the child’s external injuries.

II. Sharplin Instruction

¶ 20. Mouton next argues the trial judge’s Sharplin instruction was improper and prejudicial. Mouton claims that because the jury’s note indicated the numerical split among jurors—“8-3 guilty”—the judge’s Sharplin instruction was designed to influence the jury’s decision.

¶ 21. We have approved using a Sharplin instruction when a jury says it cannot reach a unanimous verdict. See Powell v. State, 58 So.3d 55, 57-58 (Miss. 2011); see also Tyler v. State, 19 So.3d 663, 667-68 (Miss. 2009). But given “the possibility of coercion,” this Court takes note of a trial judge’s “conduct and comments after he receives the [jury’s] division[.]” Sharplin, 330 So.2d at 596. It is reversible error for a trial judge to attempt “to force a verdict by suggestive or coercive measures.” Lafayette v. State, 90 So.3d 1215, 1219 (Miss. 2012) (quoting Isom v. State, 481 So.2d 820, 822 (Miss. 1985)). The question we ask is “whether the judge merely afford[ed] the jury additional time to deliberate or [whether] he attempted] to force a verdict .... ” Sharplin, 330 So.2d at 596.

¶ 22. Here, the judge’s Sharplin instruction was essentially verbatim from our approved language, the one exception being the final sentence. This last sentence simply stated: “Please keep this jury instruction with the other jury instructions.” We also notice Mouton did not acknowledge it was the jury that provided the numerical division. This was done without instruction or request from the trial judge. And the note did not indicate guilt or innocence as to the specific counts. See Sharplin, 330 So.2d at 596 (the mere request and receipt [by the trial court] of the jury’s numerical division without reference to guilt or innocence does not coerce the jury and is not error). As such, there is no evidence of coercion or suggestion by the judge in giving the Sharplin instruction.

III. Prosecutorial Misconduct

¶ 23. Mouton’s final argument cites several moments at trial he now claims show prosecutorial misconduct. He points to his own witness’s statements during the State’s cross-examination, Toni’s differing testimony from an earlier police statement, and the State’s use of Auge’s expert testimony. Mouton suggests these examples, both individually and together, warrant a new trial. We disagree.

¶24. This Court has been clear— “preservation of an issue for appeal requires a contemporaneous objection at trial.” Roby v. State, 183 So.3d 857, 870-71 (Miss. 2016) (quoting Kirk v. State, 160 So.3d 685, 692 (Miss. 2015)). And Mouton’s attempts to now frame several unchallenged issues as “prosecutorial misconduct” does not relieve him from the requirement to contemporaneously object to preserve prosecutorial misconduct issues for appeal. See Simmons v. State, 805 So.2d 452, 489-90 (Miss. 2001).

¶25. Mouton called Shannon, his ex-wife, to testify as a defense witness. During cross-examination, the State asked if Mouton had visitation rights with their three children and if his visitation was supervised. Shannon answered affirmatively to both questions. Mouton now suggests the State improperly implied his supervised visitation requirement related to the prior abuse allegations, when it knew the condition was required under Mouton’s court bond. This was probably an area of inquiry the State should have avoided. But Mouton did not object to the State’s inquiry. Nor did he try to clarify the visitation issue on redirect. So this argument is waived.

¶ 26. Shifting to Toni’s testimony, Mouton argues the State improperly “con-donad] the change” in her testimony “without warning to the defense.” He insists the State knew Toni’s trial testimony—that she was unaware of prior abuse allegations—conflicted with her initial police statement. But the judge allowed the defense to exhaustively impeach her with her prior statement, which was admitted into evidence. And while Mouton claims' he was barred from introducing rebuttal testimony, the witnesses he previously chose to disclose to the State were designated to testify only about Mouton’s character. The trial judge noted this and denied his request. Afterward, Mouton opted not to offer either character witness.

¶27. Again, Mouton’s counsel made no objection based on prosecutorial misconduct, and we see no obvious prejudicial error on the State’s part.

¶ 28. Since this Court has already addressed Mouton’s claims about Auge’s testimony, further discussion is unneees-sary. To the extent Mouton claims cumulative error, we are not persuaded. “The cumulative error doctrine stems from the doctrine of harmless error, codified under Mississippi Rule of Civil Procedure 61.” Ross v. State, 954 So.2d-968, 1018 (Miss. 2007). But “prejudicial rulings or events that do not even rise to the level of harmless error will not be aggregated to find reversible error.” Id On review, the only issue that even potentially rises to the level of harmless error involves the judge’s ruling on the State’s supposed Rule 9.04 violation. And one potential harmless error does not amount to cumulative error. What is more, even if this Court were to conduct a. cumulative-error analysis, we would examine “whether the issue of innocence or guilt is close,” and because Mouton challenges neither the weight nor the sufficiency of the evidence, we do not find the issue close. Id. So reversal is not proper.

Conclusion

¶ 29. We find no abuse -of discretion in the trial court’s decisions involving the State’s expert testimony. Nor do we find the trial court’s Sharplin instruction improper or préjudicial. And because Mouton failed to. timely object tó alleged prosecuto-rial misconduct, those issues are not properly preserved for this Court’s review. We therefore affirm Mouton’s conviction.

¶ 30. CONVICTION OP SEXUAL BATTERY-COUNT I AND SENTENCE OP TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OP CORRECTIONS, AFFIRMED. APPELLANT SHALL REGISTER AND RE-REGISTER AS A SEX OFFENDER. APPELLANT SHALL RECEIVE CREDIT FOR ANY AND ALL TIME SERVED AS TO THIS CHARGE.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED-BY KING, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

KITCHENS, JUSTICE,

DISSENTING:

¶ 31.1 fully join the excellent analysis in Justice King’s dissent and agree that Jesse Frank Mouton is entitled to a new trial because the trial court permitted the State’s expert to provide opinion testimony which had not been disclosed to defense counsel as required by Rule 9.04' of the Uniform Rules of Circuit and County Court Practice.

¶ 32. I write only to observe that this Court has held, in civil cases, that “nurses cannot testify as to medical causation.” Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 652 (Miss. 2009). The Court continued that, “[sjince medical diagnosis is outside a nurse’s scope of practice, logically it would follow that a nurse' should not be permitted to testify as to his/her diagnostic impressions or as to the cause of a particular infectious- disease or illness.” Id. “This is in keeping with the majority rule that nursing experts cannot opine as to medical causation and are unable to establish the necessary element of proximate' cause.” Id.

¶ 33. Conversely, this Court attempted to craft a distinction in order to permit sexual assault nurse examiners (SANEs) to testify that sexual assault injuries are consistent with trauma: “Thomas, a sexual-assault nurse examiner, did not testify as to what caused [the victim’s] injuries; her testimony was only that those injuries were consistent with blunt, penetrating trauma.” Young v. State, 106 So.3d 775, 783 (Miss. 2012) (emphasis in original). There, the Court found that “the supervising physician, in this case Dr. Claudette Shepard, made a final determination as to ultimate causation, medical diagnosis, and treatment.” Id. at 781. Seemingly to the contrary, the Court then reasoned that to require physician supervision would be too restrictive: “[t]o restrict SANEs from testifying as to sexual assault would set a dangerous precedent, forcing supervising physicians to devote more of their valuable time to trial work, and making it more difficult for rape victims to achieve justice, while failing to provide any useful protections to sexual-assault defendants.” Id. at 784.

¶ 34. I concurred in part and dissented in part in Young, quoting my Vaughn dissent in support of the majority’s holding that the trial court had not erred by allowing the sexual assault nurse examiner’s testimony:

[T]he issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast' rule that permanently forecloses the possibility of any nurse’s being qualified to give expert testimony on medical causation in any and all cases that may arise in the future.

Young, 106 So.3d at 790 (Kitchens, J., concurring in part and dissenting in part) (quoting Vaughn, 20 So.3d at 657 (Kitchens, J,, dissenting)).

135,-In the present case, Nurse-Auge opined, .as an. expert, that the shape and location of the .victim’s injuries indicated that those injuries were caused, not by a hard stool exiting the anus, but rather by something entering the anus: “[t]he tears are indicative of something large penetrating the anal sphincter.”

¶ 36. I maintain that qualified nurses— irrespective of whether they are qualified in civil or. criminal cases—should be allowed to testify to causation. If this Court forbids a qualified nurse to testify to causation in a civil case in which mere money is at’ stake, why should a sexual assault nurse examiner be permitted to testify to causation in a criminal óase in which the defendant’s liberty is at stake and in which the State is obligated to prove each element of the crime beyond a reasonable doubt? The only apparent explanations for such arbitrary, contradictory rules are, first, the interest of civil defendants in preventing potentially harmful causation testimony from an otherwise-qualified nurse and, second, the expediency to the State of utilizing the testimony of a qualified sexual assault nurse examiner in obtaining a conviction. Such interest-driven distinction is not legitimate and renders the notion that the Mississippi Rules of Evidence are applied the same in civil and criminal trial a'mere myth. • ■

KING, J., JOINS THIS OPINION.

KING, JUSTICE,

DISSENTING:

¶37. Because I believe that.the State essentially conducted a trial by ambush by failing to disclose Auge’s testimony about the.shape and location,of the tears, I respectfully dissent with the majority’s finding -on that issue.

1138. Pursuant'to Uniform Rule of Circuit and County Court Practice 9.04, “[t]he prosecution must disclose to each defendant or to defendant’s attorney ... any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert .... ” URCCC 9.04(A)(4). The purpose of Rule' 9.04 is to “avoid unfair surprise to either the state or defendant at trial.” Ramos v. State, 710 So.2d 380, 386 (Miss. 1998). “[W]e have held that the duty to make discovery extends to unwritten statements and reports as well.” West v. State, 553 So.2d 8, 17 (Miss. 1989). Therefore, pursuant to Rule 9.04, the prosecution must disclose any expert opinions and the substance of the opinion of any oral statement made by any such expert. I believe that the prosecution’s failure to disclose that its expert would testify about the v-shape of the tear, that the tear was an anterior tear, and that the tear had been partially internal was highly prejudicial to the defense.

¶ 39. First, the prosecution provided to the defense a statement that Auge’s testimony would include that the injuries sustained were consistent with the history presented. That statement was vague and gave no indication that Auge would testify as to the V-shape of one of the tears or of its implications. Auge’s ten-page medical report also did not contain any references concerning the shape of the anal tears or references to internal injuries or the implications thereof. Had the defense been informed of Auge’s opinions prior to trial, it would have had the opportunity to prepare an effective cross-examination and to present its own evidence in rebuttal.

¶ 40, The prosecution’s failure to disclose Auge’s testimony and its allowing Auge to testify repeatedly on the undisclosed opinions caused a miscarriage of justice. Auge testified extensively about the shape and position of the tears:

• I noted four specific injuries. One was a tear at 12 o’clock, again' that was v-shaped ...
• The tears, the anal tears, there is— the major reason for an anal tear is actually a large hard stool that is passed .... Usually those—99 percent of those tears are posterior. They go toward the back side. So on the anus it would go toward the backside. Ninety-nine percent of all cases are of anal tears due to constipation is a posterior tear. You can have an anterior tear as well, but again 99 percent are posterior.
• [Posterior tears are] [b]ehind in the backside of the anus. That piece of tissue receives less vascular circulation. So that part is the one that generally tears as posterior.
• He had three anal tears. One was at 12 o’clock again based on the clock. That was a v-shape tear.
• The v-shape tear was wide toward the outer aspect of the anus and went in toward the inner aspect of the anus with traction and dilatation, w'hich is just the slightness of the anus. I was unable to see the end of the tear. So it went inside where the anus was dilated.
• As you can see this—if you’re not upclose and looking at it it’s difficult to see. But up here is the v-shape tear. It starts here and it goes here, and it goes into the anal vault.
• The v-shape tear is at 12 o’clock .... There is a large tear to the posterior area, which again for certain aspects you would expect that. An anterior tear is not necessarily something that I would expect.
• This right here with the blue dye it allows us to see injuries a lot clearer. And if you look right here this area here, it starts here and it is a v-shape tear that goes toward the rectum. Again even with dilatation I was unable to see the very end of that tear.
• Like—I don’t know—previously I’ve stated that just having a large bowel movement with a rectal tear generally in the posterior area adults come into the emergency room with that pain.
• Individually, individually each tear certainly could be caused, other than the v-shape tear, by a large stool coming out. Collectively, no, sir.
• Again the v-shape tear is just significant of an outside force going in toward the anus. So there would have to be a rational reason, and again that would come from your history as to why that particular tear was there.
• [Let me ask you. You’re saying that you got the outside—that you think that the v-shape indicates an outside force, right?] Absolutely.

¶ 41. Auge was the only expert witness called at trial and her testimony arguably was the most convincing evidence that the prosecution produced. Thus, her opinion that one of the tears was in a V-shape and that this particular shape indicated that there had been an outside force going into the anus, was extremely prejudicial to the defense. Out of the four counts with which Mouton had been charged, the jury convicted only on Count I—Sexual Battery: sexual penetration by inserting his finger into the anus of N.B. Auge’s testimony that the V-shaped tear indicated that something was going into the anus instead of a large stool going out of the anus directly was correlated with Count I. This, coupled with the jury’s initial deadlock in convicting Mouton, indicates that Auge’s testimony on the V-shaped tear and the posterior/anterior location of the tear was extremely prejudicial to the defense and important to the jury. As this Court has emphasized, “[j]ustice is better served when the accused knows ‘reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof....’” Densmore v. State, 27 So.3d 379, 382 (Miss. 2009). Accordingly, I believe that the prosecution’s failure to notify the accused in advance of trial of the opinions of its expert was reversible error.

¶42. The clear language of Rule 9.04 states that any expert opinions must be disclosed. Mere disclosure of the location of anal tears does not fulfill the rule’s requirement to disclose any expert opinions. In a trial in which the defendant is accused of sexual battery, a blanket disclosure that Auge would testify that the injuries were consistent with sexual abuse does not suffice. That in no way put Mouton on notice of Auge’s opinions about the shape of the anal tears or of her opinion that the particular shape indicated the tear was caused by an outside force. Mouton had prepared a defense that the tears had been caused by constipation. Had Auge’s opinion that the specific “V-shape” of the tear indicated it was caused by an outside force been disclosed, Mouton would have had an opportunity to amend his defense.

¶ 43. NJB.’s mother potentially had known of similar accusations against Mouton that, after an investigation, were found to be without evidence and were dropped. In her own statement to the police, she asserted that, “[ajfter I picked up my son [N.B.] and daughter [A.B.], [N.B.] start [sic] to complain about his butt. I asked him has anyone messed with him in his areas' ...N.B. was three years old at that time and Auge admitted that a child that young could hear someone ask questions about a situation and the child would think that it had happened to him even though it did not. At the time of trial, N.B. could not remember most of what, if anything, had happened that night. Thus, the opinion that N.B.’s anal tears could have been caused by constipation were it not for the V-shape became vitally important.

¶ 44. Moreover, Mouton’s attorney stated that he had interviewed Auge at great length and that he had asked her to “tell [him] everything that she found and why and the possibilities associated therewith.” Auge did not disclose her opinions about the shape of any of the tears, that the tears were anterior as opposed to posteri- or, or of her opinions on what she believed the shape and location of the tears indicated. Therefore, despite Mouton’s attorney having inquired, Auge either withheld or changed her opinions as to the shape, location, and meaning of the tears. In either scenario, Mouton lacked notice of Auge’s opinions at trial. Hence, I believe a new trial giving Mouton an opportunity to prepare an effective defense is the appropriate remedy for the discovery violation.

¶ 45.1 submit that the prosecution’s failure to disclose Auge’s opinions violated Rule 9.04, unfairly surprised the defense, and constituted a miscarriage of justice. Accordingly, I dissent and would reverse the judgment and remand for a new trial.

KITCHENS, J., JOINS THIS OPINION.

      . Sharplin v. State, 330 So.2d 591 (Miss. 1976).

      . Mouton, Toni, N.B., and A.B. all spent the night of June 16, 2012, at Jody and Katelyn’s trailer.

      .Toni initially took N.B. to the Biloxi Regional Medical Center. That hospital could not perform the examination, so the Biloxi Police escorted Toni and N.B. to Ocean Springs Hospital.

      . See Miss. Code Ann. § 97-3-95(l)(d) (Rev. 2014).

      . See Miss. Code Ann, § 97-5-23(1) (Rev. 2014).

      .During argument on the objection, the court examined and found that State’s Exhibits 1,3, and 4 were photographs, provided during discovery, that clearly showed N.B.’s anus and the "V shaped” tear. As the judge put it, ''I've already ruled on the v. It’s in the photographs, it's there,”

      . Even if Auge’s use of the word "V-shaped” violated Rule 9.04, its mention was at most harmless. We may not reverse based on a judge’s handling of a claimed Rule 9.04 violation "unless it affirmatively appears from the record that the violation caused a miscarriage of justice.” Ben v. State, 95 So.3d 1236, 1249 (Miss. 2012) (quoting Payton, 897 So.2d at 942); see also Hurst v. State, 195 So.3d 736, 744 (Miss. 2016) ("even in a total failure to adhere to Rule 9.04 by the trial court, that failure must still prejudice the party to constitute reversible error”) (citations omitted). Auge’s disclosed opinion was and still remained that N.B.'s anal injuries were consistent with sexual assault. And there was testimony from N.B.’s mother and the Biloxi police officer dispatched to investigate N.B.’s sexual assault, which corroborated N.B.’s statement that Mouton had “been playing with his butt and wiener.”

      . The instruction approved by this Court states:
      I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
      Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

        Sharplin, 330 So.2d at 596.

      . Mouton claims this information was known only to the State and was discovered during an interview with Shannon that Mouton's counsel was not allowed to attend. This is unsupported. Furthermore, nothing in the record suggests Mouton could not have interviewed his own witness. Nor is it evident Mouton was unaware of the terms of his release on bond.

      . Rule 9.04 formerly was Uniform Rule of Criminal Court Practice Rule 4.06.

      . The majority asserts that the trial court had examined and found that the State's ex- . hibits had clearly shown "N.B.’s anus and the 'V-shaped' tear.” The majority misstates the trial court. During argument on the objection, the trial court asked Auge which photographs depicted the v-shaped tears. The trial court said, "With that then clearly depicted in the photographs so she can clearly testified it wasn’t in the opinion what the shape of it was....” The trial court went on to say, "I've already ruled on the v. It's in the photographs, it's there. You can call it whatever shape you want to. She can call it whatever shape she wants to. That’s a matter that the' jury will decide if a V, a W, an X, whatever it might look like to them.” The trial court did not state that the photographs clearly depicted a V-shape, only that the photographs depicted a tear and it was up to the jury to decide whether it looked like a V-shape to them. In addition, whether the photographs depict a V-shape ‘ is a secondary issue. The primary issue is that Auge was directly asked to disclose all opinions before trial. Auge clearly failed to disclose, or to even mention, any opinions at all on the shape of the tear and the implications thereof.