author: BARNES, J.,

text:
    THE UNIVERSITY OF MISSISSIPPI MEDICAL, Appellant v. Leontyne LITTLETON, Individually, Appellee
    NO. 2014-CA-00732-COA
    Court of Appeals of Mississippi.
    10/04/2016
    Rehearing Denied February 28, 2017

      JOHN M. COLEMAN, JACOB O. MA-LATESTA, ATTORNEYS FOR APPELLANT
    SUZANNE G. KEYS, CRYSTAL W. MARTIN, ATTORNEYS FOR APPEL-LEE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. The University of Mississippi Medical Center (UMMC) appeals the judgment of the Circuit Court of Hinds County, which found UMMC liable under the Mississippi Tort Claims Act for the death of Cleopatra Littleton (Cleopatra), awarding Plaintiff Leontyne Littleton (Littleton), Cleopatra’s mother, the maximum statutory-damage award of $500,000. On appeal, UMMC raises issues focused on the adequacy of causation testimony by Littleton’s expert, Dr. David Wiggins. UMMC argues that the trial court erred in finding Dr. Wiggins qualified as a hospitalist, that his opinions were speculative, and that his opinions and the trial court’s findings on Cleopatra’s cause of death were contradicted by the autopsy reports. Finding error with the trial court’s reliance on the testi-raony of Dr. Wiggins regarding the proximate cause of Cleopatra’s death, we reverse and render judgment in favor of UMMC.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On February 18, 2009, Cleopatra, a twenty-nine-year-old nursing student and single mother of two young children, went to the emergency room (ER) at Mississippi Baptist Medical Center (Baptist). She complained of a severe headache that had started the previous morning, as well as nausea and dizziness. A CT scan of her brain showed no abnormalities. Cleopatra was diagnosed with a migraine headache, given some pain medication, and told to return to the ER if her condition worsened or changed.

¶3. On February 20, 2009, Cleopatra returned to the Baptist ER, complaining of shortness of breath and vomiting, as well as a severe headache that was not relieved by headache medicine. Dr. Janet Neilson, a second-year family-practice resident from UMMC, treated Cleopatra. Since Cleopatra was a nursing student, she was concerned she may have caught the flu interacting with patients; so Cleopatra was given a flu swab as a professional courtesy. The test was negative. Cleopatra was discharged with antibiotics to treat a possible upper respiratory infection, and pain medication for a migraine headache.

¶ 4. The next afternoon, Saturday, February 21, 2009, Cleopatra went to the UMMC ER, complaining that her headache was worsening, and her vision was blurred. She also complained for the first time that her neck was stiff. A physical examination revealed pain and loss of movement in her neck. She had a temperature of 102 degrees, but her other vitals were normal. Due to these symptoms (which were different and worse than those she presented at the Baptist ER), physicians performed a lumbar puncture, which confirmed a diagnosis of meningitis. Because of Cleopatra’s white blood count and elevated protein in her cerebrospinal fluid, the test results were consistent with bacterial meningitis. Therefore, Cleopatra was given antibiotics and steroids, as well as pain medication, and admitted to the internal-medicine ward in the general hospital at UMMC early Sunday morning, in stable condition.

¶ 5. Later, on the morning of Sunday, February 22, 2009, the nurses’ report showed Cleopatra continued to have extreme headache and neck pain, and could not get comfortable; so she was given IV pain medication. Records show her pain subsided, but at 1 p.m. it returned. She was given more pain medication and fell asleep. At 3 p.m., Cleopatra told nurses she was in such pain that she requested medication to “just knock [her] out.” Physicians ordered a morphine IV, and Cleopatra was noted as sleeping at 6:50 p.m. Cleopatra continued to be given antibiotics as well. The parties agree that the antibiotics given were appropriate for bacterial meningitis.

¶ 6. Also on Sunday, Cleopatra called her sister, who was in the hospital at UMMC for several chronic illnesses. Cleopatra complained that the nursing staff was not responding to her calls; so her sister called the UMMC help line to rectify the alleged problem. At approximately 5 p.m., Cleopatra was seen by attending physician Dr. John D. Wofford Jr. Cleopatra told him that “when she closed her eyes, she saw people.” Her head ached, and her neck was still stiff. Dr. Wofford noted that Cleopatra probably had viral and not bacterial meningitis, but his plan was to continue treating her with antibiotics, “watch[ing] for clinical responses” to them, because it was still a “mixed picture.” Cleopatra was also treated by third-year resident Dr. Cassell on the hospital floor.

¶ 7. On the morning of Monday, February-23, 2009, Nurse Fells recorded on the nursing progress reports that Cleopatra still complained of neck stiffness and headache, but nothing further. Cleopatra was given morphine through her IV for the pain. At approximately 11 a.m., Cleopatra’s brother, Martin Littleton, went to visit her. Cleopatra had asked him to bring her a baked potato and sweet tea from McAl-listers for her lunch. Martin testified that Cleopatra did not “look like herself.” While visiting for about an hour, Martin witnessed a physician, a nurse, and a nursing assistant treat and give medicine to Cleopatra. She told the medical staff her throat was hurting, her vision was blurred, and one arm was tingling; at 12:35 p,m., Dr. Cassell was notified of these symptoms. Dr. Cassell responded five minutes later that he would report to Cleopatra’s bedside. Her antibiotics were increased, and she was given more morphine through her IV. According to the medical records and Fells, a group of physicians examined Cleopatra between 1:00 and 1:35 p.m., including Drs. Cassell and Shoemaker-Moyle. Dr. Shoemaker-Moyle ordered another CT scan on Cleopatra’s brain at approximately 1 p.m., given her new neurological complaints, to determine if she had a possible mass lesion on her brain. Cleopatra’s vital signs did not change significantly until 4 p.m., when her temperature rose to 102 degrees, and her blood pressure dropped to 91 over 58. Records show Fells was notified of this change. Fells did not notify a physician of this change because she had just given Cleopatra morphine, which would account for this drop in blood pressure. However, both Drs. Wofford and Cassell stated that, in hindsight, they would have preferred to have been notified of the change.

¶ 8. Fells’s testimony and her “daily data records” indicate that she cheeked on Cleopatra at 4:45 p.m. Fells testified that at this time, Cleopatra opened her eyes when Fells came into the room and when she put down the clipboard. Cleopatra did not say anything, and neither did Fells, because Cleopatra was resting.

¶ 9. Martin testified that he returned to the hospital Monday afternoon. Entering the room, he thought Cleopatra was asleep, but wanted a nurse to check on her. He went to the desk, told a secretary, and the secretary found Fells. Fells examined Cleopatra and, finding her nonrespon-sive, called a “code blue” at 5:14 p.m. Medical personnel unsuccessfully tried to resuscitate her, but Cleopatra was pronounced dead at 5:39 p.m.

¶ 10. Dr. Charu Subramony, a professor of pathology and director of autopsy services at UMMC, performed the autopsy on Cleopatra’s body the day after she died. The initial report, dated June 22, 2009, diagnosed Cleopatra with “meningoence-phalitis, partially treated, probably bacterial etiology.” Her cause of death was reported as “cerebral edema secondary to bacterial meningitis”; however, the “causative organism” for her meningitis was “unknown” because her premortem and postmortem cerebrospinal-fluid cultures were negative. Therefore, the report stated that additional tests were ox*dered on tissue samples taken from Cleopatra’s brain, and sent to the Infectious Disease Pathology Branch of the Center for Disease Control (CDC). On June 19, 2009, the CDC gave a verbal report to Dr. Su-bramony that the brain-tissue samples were negative for the bacteria neisseria (the bacteria that most commonly cause meningitis), but further tests were being performed to rule out certain viral pathogens.

¶ 11. In October 2009, the CDC sent a pathology report to Dr. Subramony that the brain tissue was negative for the bacteria streptococcus pneumoniae and the West Nile virus. On March 15, 2011, Dr. Subramony received an email' from the CDC on the final pathology report for the brain tissue. It stated the premortem and postmortem cultures “failed to show a bacterial or entoviral etiology for the meningo inflammation.” The autopsy diagnosis was thus changed to “nonsuppurative[] meningitis and perivascular inflammation” of the brain, as stated on the CDC’s final pathology report. As a result of these findings, the autopsy report was corrected to change the cause of death from menin-goencephalitis “probable bacterial etiology” to “probably viral etiology.” At trial, Dr. Subramony testified that, more likely than not, viral meningitis caused Cleopatra’s death, but the CDC “could not find a specific organism causing her meningitis because no organisms were cultured by our routine methods.”

¶ 12. On February 16, 2010, Cleopatra’s mother filed her medical-malpractice complaint individually and on behalf of Cleopatra’s wrongful-death beneficiaries against Baptist, five physicians (including Dr. Neil-son), and UMMC, alleging that all seven defendants failed to exercise the appropriate standard of care, which resulted in Cleopatra’s death. Specifically, she claims that Dr. Neilson’s failure to diagnose Cleopatra’s meningitis at the Baptist ER, and UMMC’s inadequate care and treatment by numerous hospital physicians and nurses during her hospitalization, negligently caused Cleopatra’s death.

¶ 13. Littleton designated Dr. David Wiggins as an expert in each of her three designations of expert testimony. Dr. Wiggins’s curriculum vitae shows he is a board-certified ER physician, but notably not an internal-medicine or infectious-disease specialist. Dr. Wiggins opined in his first and second designations that the negligence of the nurses and physicians at UMMC proximately caused Cleopatra’s death. In his third designation, Dr. Wiggins disclosed that he would testify that “if [Cleopatra] suffered from viral meningitis, then she needed supportive care,” which was provided below the standard of care on the floor of the general hospital. Dr. Wiggins also disclosed for the first time that he would testify that “had [Cleopatra] been in the ICU, the deterioration of her condition, and her heart eventually stopping, could have been promptly dealt with and avoided.” Dr. Wiggins concluded in the third designation that but for “the negligence of the physicians (admitting doctor and others Dr. Cassell) in failing to admit [Cleopatra] to the intensive care unit, ... more likely than not [Cleopatra] would have recovered but did not due to poor supportive care and lack of monitoring by UMC medical staff.” UMMC notes, however, that there was no explanation in this third designation of exactly what “supportive care” was lacking, specifically what the standard of care was, or what treatment Cleopatra would have received in the ICU that would have prevented her death.

¶ 14. On May 14, 2012, a bench trial began. Witnesses testifying for the plaintiff included Littleton herself, Cleopatra’s sister and brother, expert witnesses Dr. Wiggins and Patricia Ross, and fact witness Fells. Littleton testified that all of the UMMC staff who treated Cleopatra were shocked by her sudden death. Cleopatra’s brother, Martin, also stated that it was his understanding the UMMC physicians did not know ■ why ' Cleopatra died—“[h]er heart just stopped.” Fells maintained that the last time she checked on Cleopatra at 4:45 p.m. she was alive; then at 5:10 p.m. she was found unresponsive.

¶ 15. At trial, Dr. Wiggins was tendered, based on his education, experience, and training, as an expert in both emergency medicine and as a hospitalist. UMMC objected to the hospitalist designation because Dr. Wiggins had no regular experience in treating patients on a hospital floor as opposed to the ER. The trial judge ruled Dr. Wiggins would be accepted in both fields, but the judge would decide how much weight would be given to his expert opinion.

¶ 16. Dr. Wiggins testified that Dr. Neil-son was negligent by not performing a lumbar puncture at the Baptist ER, even though Cleopatra only had a severe headache, with no fever or stiff neck. However, he stated that UMMC utilized the proper standard of care in diagnosing Cleopatra when she arrived at the UMMC ER on February 21 by performing a lumbar puncture. While he admitted Cleopatra was properly started on antibiotics, Dr. Wiggins maintained she should have been admitted to the ICU or another unit where she could receive “continuous monitoring.” Dr. Wiggins claimed that patients “are always admitted to intensive care units when they are diagnosed with meningitis” in the ER. (Emphasis added). Thus, Dr. Wiggins stated the UMMC ER physicians breached the standard of care by not sending Cleopatra immediately to the ICU where she could be closely monitored. Dr. Wiggins also testified that on February 23 at 1:30 p.m., when Cleopatra complained of blurred vision and tingling, the standard of care required the treating physicians to send her to the ICU.

¶ 17. Dr. Wiggins testified, over an objection, that Cleopatra’s cause of death was “lack of adequate monitoring” on the hospital floor, not “direct complications of meningitis.” Dr. Wiggins explained that direct complications from meningitis would be “something like a brain stem herniation,” where the brain becomes so inflamed that it pushes into the spinal canal and is crushed. Dr. Wiggins further testified that Cleopatra died from “some complication of meningitis which could have been various things .... [I]t could have been acidosis, it could have been sepsis, it could have been some cardiac arrhythmia that occurred ....” Dr. Wiggins thought Cleopatra died because “what could have been corrected was not even recognized until it was too late.” UMMC objected to the speculative nature of Dr. Wiggins’s testimony, .noting that Dr. Wiggins never articulated what could have been corrected, or how it could have been corrected. Dr. Wiggins concluded that Dr. Neilson, and all of Cleopatra’s treating physicians and nurses at UMMC, breached the standard of care, and their negligence was the proximate cause of Cleopatra’s death.

¶ 18. Littleton’s nursing expert, Ross, testified that, in her opinion, UMMC’s nursing staff breached the standard of care several times regarding Cleopatra’s care both in the ER and on the hospital floor. For example, she claims the nursing staff failed to follow the exact physician’s orders by checking Cleopatra’s vital signs every five to seven hours, instead of four hours, a few times. Also, they failed to have the pulse oximeter on continuously. Finally, Fells did not call a physician at 4 p.m. Monday when she was notified that Cleopatra’s temperature had risen and blood pressure had dropped. Ross was surprised at Cleopatra’s death and stated it was her experience that most patients with meningitis do not die.

¶ 19. After Littleton’s case-in-chief, UMMC moved for a judgment as a matter of law, because there had been no testimony linking UMMC’s conduct to the death of Cleopatra. UMMC argued that Dr. Wiggins’s testimony was improper and speculative because he failed to identify what caused Cleopatra’s death, and how being admitted to the ICU would have prevented her death. The trial court denied the motion.

¶ 20. Testifying for UMMC were two of Cleopatra’s treating physicians (Dr. Cas-sell and Dr. Wofford), pathologist Dr. Su-bramony, and expert witnesses Dr. Michael Studdard and Dr. Deal. Dr. Cassell was accepted as an expert in internal medicine and medicine in general. He explained that he was finishing an oncology fellowship at UMMC, which is considered a subspecialty of internal medicine, in which he is board certified. In 2009, when he treated Cleopatra, he was almost finished with his third year of residency training. He did not believe any physician or the nursing staff breached the standard of care; Cleopatra was treated properly for either viral or bacterial meningitis. He testified that there were no signs or symptoms in Cleopatra’s clinical presentation that would have indicated she needed to be placed in ICU. Even with her final set of vital signs at 4 p.m., an hour before she expired, Dr. Cassell would not have- placed her in ICU. If Cleopatra had developed sepsis, her blood pressure would have dropped, and her heart rate would have been much higher, but her heart rate was normal. He also thought Cleopatra’s blood pressure dropped due to the morphine. Dr. Cassell testified everyone who knew of Cleopatra’s case, let alone treated her, was “dumbfounded” that she died; her death was not foreseeable.

¶ 21. Dr. Deal was accepted as an expert in infectious diseases. Dr. Deal, a practicing physician at St. Dominic’s Hospital who treats approximately fifty patients a year with meningitis, opined Cleopatra’s meningitis was viral, although she could not specify which virus. There was no evidence of bacterial meningitis from the cultures. Dr. Deal testified that Dr. Neilson had no reason to suspect that Cleopatra had meningitis on February 20 because her only symptom was a severe headache. For the same reasons, a lumbar puncture and admittance to the ICU on that day were not appropriate. By the time Cleopatra presented at the UMMC ER, however, she had more symptoms of meningitis, and a lumbar puncture was appropriate. Further, Dr. Deal testified that the antibiotics given in the UMMC ER would not have affected the results' of the blood culture taken early on in her hospitalization, but may have impacted the autopsy results “quite a bit.” However, if Cleopatra’s meningitis were viral, the administration and timing of antibiotics would have had no impact with regard to her death—they would not have helped or hurt her. Dr. Deal stated that patients do not usually die suddenly from either viral or bacterial meningitis, and there were no signs or symptoms indicating Cleopatra was about to die. Finally, she concluded that, there was no evidence in Cleopatra’s chart that she needed to be in the ICU.

¶ 22. Dr. Studdard, UMMC’s.expert witness in emergency and family medicine, also testified that there was nothing in Cleopatra’s medical records that showed that she ever needed to be in the ICU until the point when her heart'stopped; she was never in distress and there, was no evidence of septic shock. Further, Cleopatra did not initially show any symptoms that would have raised suspicions about meningitis for Dr. Neilson; however, her symptoms were “markedly” changed when she presented to the UMMC ER. Dr. Studdard did not consider Cleopatra’s change in vital signs on the day she died significant—the lower blood pressure could have been attributed to receiving morphine. Further, Cleopatra’s change in vital signs that day did not indicate she was in distress or shock. Dr. Studdard found it unusual that Cleopatra declined and died so suddenly. Dr. Wofford also testified that there was no indication Cleopatra needed to be admitted to the ICU. He, too, found her death “sudden” and “unexpected.”

¶23. Dr. Subramony testified that the cause of death was changed on the corrected autopsy report to “meningoencephalitis, probably a viral etiology” from a bacterial etiology, due to additional information from the CDC testing. The cultures taken failed to grow bacteria; so it was her opinion the inflammation of Cleopatra’s meninges was not caused by bacteria. The autopsy indicated the inflammation of Cleopatra’s brain was extensive. Dr. Su-bramony testified that, upon examination, a cavity inside Cleopatra’s brain was “obliterated,” meaning the walls of the cavity collapsed. The significance of this finding is that “the common cause of this obliteration of the cavity is edema, that is, swelling of the brain.” Moreover, Dr. Subramony stated the inflammation in Cleopatra’s brain went beyond the meninges, which cover the brain, to the area of the brain that is close to the meninges, or the “sub-arachnoid space.” The autopsy showed this space, which is usually empty, “was occupied by inflammatory infiltrate.” She concluded “[t]hat means there’s been an inflammation of the meninges with all these cells spilling over into the space ... [because] there is so much inflammation.” The inflammatory cells spread into “the superficial cortex and in some areas [of] the white matter” of the brain.

¶24. The trial court determined in its findings of fact and conclusions of law that UMMC breached its duty of care when Dr. Neilson failed to rule out meningitis and perform a lumbar puncture when Cleopatra visited the Baptist ER on February 20. Additionally, the trial court found Cleopatra’s care “abysmal” on UMMC’s hospital floor. The trial court concluded Dr. Wiggins’s opinion that Cleopatra “suffered complications from meningitis [and that] her death was proximately caused by a lack of monitoring of her condition by UMMC staff’ was “supported by the evidence.” While UMMC claimed Cleopatra had viral meningitis that only warranted the supportive care of fluids, rest, and monitoring, the court found persuasive Dr. Wiggins’s opinion that “regardless of whether her meningitis was bacterial or viral, [Cleopatra] should have been placed in ICU where she could have been more closely monitored, and if she had been in ICU, her death could have been prevented.” The trial court stated that “even if one were to believe” that Cleopatra suffered from viral and not bacterial meningitis, and her condition did not warrant being treated in the ICU, UMMC breached its standard of care several times. For example, the nurses did not advise physicians of changes in Cleopatra’s conditions, they did not follow physicians orders such as having a pulse oximeter in operation at all times, and physicians were not notified at 4 p.m. Monday when Cleopatra’s vital signs changed. The trial court found approximately $1.6 million in total damages, entitling Littleton to $500,000 under section ll-46-15(l)(c).

¶25. UMMC timely appealed, raising the following issues: (1) the trial court improperly allowed Dr. Wiggins, an ER physician, to testify about the standard of care for a hospitalist and for ICU care because he was not qualified to do so; (2) Dr. Wiggins was improperly allowed to testify about Cleopatra’s cause of death, in contradiction to the autopsy reports, when he had no training, education, or experience in pathology; (3) the trial court should have granted a directed verdict when the evidence on causation and Cleopatra’s chance of recovery was speculative; and (4) the trial court’s judgment was not based on substantial credible evidence because Littleton failed to provide competent expert testimony on the issue of causation.

STANDARD OF REVIEW

¶ 26. A reviewing court affords a circuit judge sitting without a jury the same deference as a chancellor for findings of fact, which is the abuse of discretion standard. Ill. Cent R.R. v. McDaniel, 951 So.2d 523, 526 (¶ 7) (Miss.2006) (citations omitted). “Abuse of discretion is found when the reviewing court has a ‘definite and firm conviction’ that the court below committed a clear error of judgment [in] the conclusion it reached upon a weighing of the relevant factors.” Id.

¶27. Additionally, the standard of review for the trial court’s admission or exclusion of evidence, including expert testimony, is abuse of discretion. Tunica Cty. v. Matthews, 926 So.2d 209, 212 (¶ 5) (Miss.2006) (citation omitted). The reviewing court will not overturn the decision of the trial court on an evidentiary issue unless the trial court abused its discretion, meaning the decision was arbitrary or clearly erroneous. Barrow v. May, 107 So.3d 1029, 1034 (¶ 10) (Miss.Ct.App.2012) (citation omitted). Regarding the admissibility of expert witness testimony, “the trial judge is to act as a gatekeeper, ensuring that expert testimony is both relevant and reliable.” Poole v. Avara, 908 So.2d 716, 723 (¶ 15) (Miss.2005) (citation omitted). This standard is not relaxed when the trial judge serves as the finder of fact. See, e.g. Univ. of Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1201 (¶ 15) (Miss.2012) (finding error in denying UMMC’s motion for directed verdict in wrongful-death medical-malpractice case with bench trial because expert’s opinion was not based on reasonable degree of medical probability regarding cause of patient’s death).

ANALYSIS

¶ 28. UMMC argues that the trial court’s judgment was not based on substantial credible evidence because Little-ton, through her expert Dr. Wiggins, failed to provide sufficient evidence on causation. We agree.

¶ 29. To establish a prima facie case of medical malpractice, the plaintiff must prove:

(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Hubbard v. Wansley, 954 So.2d 951, 956-57 (¶ 12) (Miss.2007) (citing Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993)). The plaintiff must provide expert testimony articulating “the requisite standard that was not complied with,” and “also establish that the failure was the proximate cause, or proximate contributing cause.” Id. at 957 (¶ 12) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). For “the proximate-cause element, the plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Barrow, 107 So.3d at 1034 (¶ 11) (quoting Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). “In cases alleging that death was caused by the negligence of a health care provider, proximate cause must be established by a medical doctor,” Mariner Health Care Inc. v. Estate of Edwards ex rel. Turner, 964 So.2d 1138, 1144 (¶ 8) (Miss.2007) (citation omitted). Finally, it is well established that if a plaintiff fails to produce sufficient admissible evidence to establish a prima facie case, a judgment notwithstanding the verdict is appropriate. Cleveland v. Hamil, 119 So.3d 1020, 1024 (¶ 14) (Miss.2013) (citing 3M Co. v. Johnson, 895 So.2d 151, 167 (¶ 46) (Miss.2005)).

¶ 30. The admission of expert testimony is governed by the two-prong inquiry of Rule 702 of the Mississippi Rules of Evidence. “A witness may testify as an expert to ‘assist the trier of fact to understand the evidence or to determine a fact issue’ if the witness is ‘qualified as an expert by knowledge, skill, experience, training, or education’ and ‘if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’ ” Hubbard, 954 So.2d at 957 (¶ 13) (quoting M.R.E. 702). The trial court has a “gatek-eeping responsibility to ensure that any and all scientific testimony is not only relevant, but reliable.” McDaniel v. Pidikiti, 39 So.3d 952, 956 (¶ 9) (Miss.Ct.App.2010) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 31. In finding UMMC liable for Cleopatra’s death, the trial court based the majority of its ruling on Dr. Wiggins’s expert testimony. Although Littleton tendered Nurse Ross as an expert witness on the alleged breach of the standard of care by UMMC employees, Dr. Wiggins was Littleton’s only expert witness on causation. Further, because Cleopatra’s specific cause of death was unknown, Dr. Wiggins could not establish, except through speculation, what UMMC medical staff could have done to save her life. It was his opinion that Cleopatra’s death was caused by the alleged failure to send her to the ICU where she would have been more closely monitored. We find, though, that Dr. Wiggins failed to establish a causal connection between UMMC’s alleged negligence and Cleopatra’s death because his testimony was impermissibly based on speculation. We shall discuss Dr. Wiggins’s cause-of-death testimony and standard-of-care testimony in turn.

Cause-of-Death Testimony

¶ 32. Because the specific cause of Cleopatra’s death was unknown according to the final, corrected autopsy report, Dr. Wiggins’s testimony could not specify with any certainty what measures medical personnel could have taken to save her. While expert testimony need not conclusively establish the cause of death, expert causation testimony must, at a minimum, show that deviations from the standard of care caused or contributed to the decedent’s death. Mariner, 964 So.2d at 1144 (¶ 8) (citations omitted).

¶ 33- UMMC cites to Worthy v. McNair, 37 So.3d 609 (Miss.2010), a medical-malpractice and wrongful-death case, as analogous regarding contradictory evidence as to cause of death. In Worthy, the physician-expert witness testified about the infant’s cause of death in contradiction to the autopsy report performed by an expert pathologist. Id. at 613 (¶ 10). The Mississippi Supreme Court affirmed the trial court’s determination that the expert witness’s testimony was inadmissible not only because he was testifying outside of his particular discipline, but also because the autopsy report his opinion relied upon reached an inconclusive result. Id. at 616-17 (¶ 24). As in Worthy, the autopsy report Dr. Wiggins relied upon reached an inconclusive result regarding Cleopatra’s cause of death.

¶ 34. Testimony and medical records show that Cleopatra more likely than not had viral meningitis, which is usually much less deadly than bacterial meningitis. However, according to the autopsy report, Cleopatra did not die directly from meningitis because her meninges did not rupture. Dr. Wiggins agreed, stating she “did not die from direct complications of meningitis.” He also agreed that the exact cause or mechanism of her death was unknown, testifying that Cleopatra died of “some complication of meningitis.” He stated:

[T]he way I would fill out a death certificate on this particular case, would be that the person died of cardiac arrest secondary to some things which were secondary to meningitis, basically. ... [W]e have a pathology report, which variously attributes to either bacterial or viral meningitis .... [I]t’s not really that significant whether it’s one or the other in this particular case because the care was lacking at a more fundamental level. But we know that the patient’s heart stopped beating and ... there’s an important point to make here ... that the person died because of the lack of the monitoring. She didn’t die from direct complications of meningitis. That would be something like a brain stem herniation or something. If the brain became so inflamed that it was actually pushed into the spinal canal and crushed. That could happen but it didn’t happen in this case. The person died of some complication of meningitis which could have been various things. That’s why when I said how I’d fill out the death certificate I left a middle empty. It could have been acidosis, it could have been sepsis, it could have been some cardiac arrhythmia that occurred as a complication.

However, since he could not identify which possible complication of meningitis caused Cleopatra’s heart to stop, his opinion that the ICU would have saved her life is mere speculation and insufficient to establish causation. He needed to establish, to a reasonable degree of medical probability, the causal link between the hospital’s failure to properly care for Cleopatra and the cause of the injury. He failed to do so.

Standard-of-Care Testimony

¶ 35. The trial court relied on Dr. Wiggins’s testimony on the standard of care, to the exclusion of all of the other physician-expert testimony presented at trial. Dr. Wiggins was accepted as an expert in emergency medicine, but UMMC objected to his admission as a hospitalist because he had only treated an occasional patient with meningitis on the hospital floor, and the majority of his experience was in treating patients with meningitis in the ER only, before they were sent to the hospital. UMMC notes Dr. Wiggins was also not experienced in intensive care outside of the ER setting, had never treated anyone in Cleopatra’s condition in the ICU, and had no residency or subspecialty in critical or intensive care; therefore, he was unqualified for testifying about the standard of care for Cleopatra’s hospital stay.

¶ 36. Dr. Wiggins testified that UMMC breached the standard of care as follows: Dr. Neilson’s not performing a lumbar puncture at the Baptist ER; not admitting Cleopatra to the ICU once she was diagnosed with meningitis; and not sending Cleopatra to the ICU when her condition changed February 23. Dr. Wiggins testified that if Cleopatra had been in the ICU, those physicians and nurses would have noticed Cleopatra’s declining condition, because she would have been more carefully monitored, and would have been provided treatment to prevent her death. However, he did not specify the exact nature of her declining condition, or the exact treatment the ICU could have provided to save her life, besides “monitoring.” He also did not state what type of specialists would have been called in to treat Cleopatra in the ICU. UMMC expert-witness physicians Dr. Cassell, Dr. Deal, Dr. Studdard, Dr. Subramony, and Dr. Wofford all testified that the hospital and the physicians’ standard of care was met.

¶ 37. UMMC cites Griffin v. North Mississippi Medical Center, 66 So.3d 670 (Miss.Ct.App.2011), a “loss of chance of recovery” case, as instructive regarding physician/expert-witness testimony to establish causation. In Griffin, this Court affirmed a directed verdict in favor of the hospital. Id. at 671 (¶ 1). The decedent had undergone surgery to place a catheter in her jugular vein for dialysis. The surgeon inadvertently punctured the patient’s carotid artery, attempted to repair it, placed the catheter in the jugular vein, and transferred her to a recovery room under the care of nurses. Id. at 672 (¶ 2). In the recovery room, the patient’s blood pressure and volume dropped, consistent with internal bleeding due to an ineffectively repaired carotid artery. Her condition deteriorated, and she went into cardiac arrest before the artery could be repaired; she passed away several days later. Id. at (If 3). The plaintiffs claimed that if the nurses had noticed her worsening condition sooner, a surgeon could have intervened sooner and saved her life. Id. at (¶ 6). The plaintiffs offered the expert testimony of a family- and emergency-medicine physician, who was not a surgeon. Id. at 673 (¶ 13). He testified regarding causation that the hospital proximately caused her death by failing to recognize her blood loss. Id. at 673-74 (¶ 13). However, he did not testify as to what a surgeon would have done once notified of the blood loss, or the chance of success if the surgeon had timely intervened. Further, since he was not a surgeon, any testimony on these matters would have drawn an objection. Id. at 674 (¶ 13). The trial court found the physician’s testimony insufficient to create a jury question on proximate cause. Id. at (¶ 14).

¶ 38. Similarly, Dr. Wiggins testified that UMMC’s physicians and staff negligently failed to recognize Cleopatra’s worsening condition on February 23, because her temperature had elevated through the day, and at 4 p.m. her blood pressure had dropped. However, he did not identify what care should have been provided and how that care, more likely than not, would have allowed Cleopatra to survive. Dr. Wiggins also failed to explain how UMMC’s failure to provide supportive care or transfer Cleopatra to ICU caused or contributed to her death. He merely alleged that the standard of care for meningitis is to place the patient in the ICU; with proper monitoring, the ICU would have been aware Cleopatra suffered cardiac arrest and could have somehow resuscitated her. However, to prove causation, Dr. Wiggins needed to testify not only as to what procedures would have saved Cleopatra’s life from cardiac arrest, but also that there was a fifty-one percent or greater chance she would have had a better outcome had these unknown procedures been performed. Moreover, there is no evidence that the unnamed lifesaving procedures would have been successful, because Cleopatra may well have died anyway from the unknown underlying cause of the cardiac arrest. Treatment in the ICU does not guarantee survival; it was mere speculation that ICU care would have changed Cleopatra’s outcome, much less increased her probability of survival beyond fifty percent. We cannot find that Dr. Wiggins’s testimony met the lost-chanee-of-recovery standard.

CONCLUSION

¶ 39. We find the trial court abused its discretion in relying upon Dr. Wiggins’s speculative testimony in order to find UMMC hable for Cleopatra’s death. Dr. Wiggins claimed that admitting Cleopatra to the ICU would have saved her life from an unknown cause of death. Yet he offered no specifics on the treatment that she would have received, and how monitoring would have saved her life. Moreover, under the “lost chance of recovery” theory, Dr. Wiggins did not offer sufficient evidence to show that, absent malpractice, there was a greater than fifty-percent chance that a substantially better result would have occurred had Cleopatra been admitted to the ICU. Accordingly, we reverse the judgment and render in favor of UMMC..

¶ 40. THE JUDGMENT OP THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, FAIR, WILSON AND GREENLEE, JJ., CONCUR. CARLTON AND JAMES, JJ., NOT PARTICIPATING.

      . Mississippi Code Annotated section 11—46— 15(l)(c) (Rev. 2012) establishes the limitations of liability for governmental entities or employees.

      . A hospitalist is an inpatient internal-medicine physician.

      . Baptist and UMMC had an agreement that UMMC’s family medical residency program admitted patients to Baptist who were seen and treated by UMMC family-practice residents. Residents on call at the hospital saw hospitalized patients as well as those who came to the ER. It is undisputed that Dr. Neilson was an employee of UMMC at the time she treated Cleopatra at Baptist.

      . Dr. Michael Shoemaker-Moyle, an attending physician who was treating Cleopatra, had ordered a pulse oximeter and disposable sensor at 4 a.m. Sunday morning. This device shows if the patient is receiving insufficient oxygen. However, reports show the oximeter was on "stand-by” at 10:45 a.m. and 11 p.m. Sunday, February 22, and at 3 a.m. Monday, February 23. At trial, registered nurse Brittany Fells testified that when Cleopatra died, the alarm of the oximeter should have gone off but did not.

      . Littleton, however, claimed the UMMC nursing staff untimely and improperly administered the dosages. Littleton claims the antibiotic dose at 9 a.m. was given late; however, UMMC's Dr. Matthew Cassell, one of Cleopatra’s treating physicians, testified that this delay would not have mattered after the initial dose, and if Cleopatra had viral meningitis, the timing of the antibiotics would have had no impact at all. Additionally, Littleton points out that one dose infiltrated the muscle causing Cleopatra’s condition to worsen due to lack of antibiotics, even though her nursing expert admitted this is a common occurrence with IVs,

      . Littleton complains that there was no consultation between the general medicine physicians and specialized physicians, such as a neurologist, cardiologist, or infectious-disease . specialist when Cleopatra was in the hospital; however, this statement is not supported by the record. Dr. Wofford, a hospitalist on staff at UMMC, testified at trial as both an expert and fact witness. He treated Cleopatra on the hospital floor and is board certified in internal medicine as well as infectious diseases. At trial, he was accepted as an expert in both of these specialties. He completed an infectious-disease fellowship and practiced as an infectious-disease specialist for thirteen years, before changing his specialty to emergency medicine, and then taking a position as a hospitalist. While Dr. Wofford’s current title may not have indicated he was an infectious-disease specialist, he certainly had substantial experience in this specialty.

      . Expert witnesses testified that viral meningitis is usually not as serious as bacterial meningitis.

      . Littleton criticized Dr. Wofford for "ordering] nothing new” for Cleopatra once he considered that her meningitis was possibly viral, but Dr. Wofford testified at trial there is no treatment for viral meningitis except supportive care, such as pain medication and IV fluids. Additionally, giving Cleopatra antibiotics would not have affected a possible viral infection, but would also have done no harm.

      . The CT scan was unable to be completed before Cleopatra expired. Regardless, her autopsy showed no brain lesions.

      . At 8 a.m., her temperature had been 99.2 degrees, her pulse 66, and her blood pressure 151 over 104. At noon, her temperature had increased to 100 degrees, her pulse to 90, and her blood pressure to 153 over 108. Fells attributed the elevation in pulse and blood pressure to Cleopatra’s escalating pain. At 4 p.m., Cleopatra’s pulse was 86.

      . Nonetheless, the death certificate, dated February 23, 2009, inaccurately listed sepsis and bacterial meningitis as the immediate cause of death.

      . UMMC’s infectious-disease expert, Dr. Jo Deal, testified that only the most common viral infections for meningitis are tested, as there are so many viral infections that can cause it, and the CDC does not have accurate tests for all of them.

      . "Nonsuppurative” means inflammation without the production of pus.

      . Prior to trial, Littleton settled with Baptist, and each individual physician-defendant was dismissed, leaving UMMC as the sole defendant at trial.

      . At trial, Littleton’s theory of negligence focused on the UMMC medical staff’s alleged breach of the standard of care by not admitting Cleopatra to the intensive-care unit (ICU) once she was diagnosed with meningitis.

      .Littleton filed three expert designations, each naming Dr. Wiggins. The first and second designations, filed in January 2011, contained similar opinions. The third designation was filed in July 2011.

      . The alleged breach of this standard of care is not addressed in the appellate briefs.

      . "To establish the element of proximate cause where the allegation is that a medical provider failed to administer proper care and that the failure allowed an already existing injury to deteriorate, the plaintiff must prove that had proper care been administered, then it is probable, or more likely than not, that a substantially better outcome would have resulted.” Stated another way, "the plaintiff must show that, absent malpractice, there is a greater than fifty-percent chance that a substantially better result would have followed.” Griffin, 66 So.3d at 673 (¶ 9) (citing Hubbard, 954 So.2d at 964 (¶ 9)). "Mississippi case law generally requires the plaintiff to employ expert testimony in making this showing.” Drummond, 627 So.2d at 270. “This 'greater than fifty percent’ opinion must be backed up by specific facts.” King v. Singing River Health Sys., 158 So.3d 318, 324 (¶ 26) (Miss.Ct.App. 2014) (citing Hubbard, 954 So.2d at 965-66 (¶ 48)).

      . It is true that if turned on, Cleopatra’s pulse oximeter would have sounded an alarm when her heart stopped, but it did not. The alarm may have alerted nurses sooner to Cleopatra's cardiac arrest. However, UMMC physicians did order one for her when she was admitted to the hospital. It is unclear from the record why the oximeter was on “stand-by” Sunday and early Monday morning.


source: Caselaw Access Project

author: GREENLEE, J„

license: Public Domain

text:
    Edwin Clyde NEELLY, IV v. Lisa Leatherman NEELLY
    NO. 2015-CA-00438-COA
    Court of Appeals of Mississippi.
    10/11/2016

      ATTORNEY FOR APPELLANT: JOE M. DAVIS
    ATTORNEYS FOR APPELLEE: JASON D. HERRING, MICHAEL SPENCER CHAPMAN
    BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
   GREENLEE, J„

FOR THE COURT:

¶ 1. Edwin Neelly appeals the Lee County Chancery Court’s order finding him in contempt of a divorce and separation agreement for failure to reimburse his ex-wife for certain expenses related to their minor children and denying his request to modify the original decree to allocate to him tax-exemption benefits. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Edwin and Lisa Neelly divorced in 2005. The divorce decree incorporated a Separation and Property Settlement and Child Support and Custody Agreement (“Agreement”) relating to their four minor children. The Agreement provided in part that Edwin be responsible for one-half of all uncovered medical care (including dental and optical), one-half of automobile expenses for the minor children, and all reasonable college expenses.

¶3. In May 2012, the court issued an order finding Edwin in contempt of certain provisions of the Agreement. Edwin was ordered in part to reimburse Lisa for $3,500 in medical and automobile expenses, to provide proof of life insurance, and to provide the minor children a fuel card or a credit card for the exclusive use of fuel. By agreement of the parties, the contempt order also directed that Lisa send the bills for quarterly reimbursement to Edwin through his attorney at the time, rather than send them directly to Edwin. The purpose of this arrangement was to minimize the need for Lisa and Edwin to communicate with each other, given the strained nature of their relationship.

¶ 4. Lisa filed a second motion for contempt in January 2013, asserting that Edwin had accrued more than $17,000 in ar-rearage for failure to reimburse his share of qualified expenses. Edwin counter-petitioned, requesting in part that the trial court modify the original Agreement to allow him to claim certain tax benefits related to the dependent children.

¶ 5. The court held a hearing. Edwin testified that he paid all bills that were forwarded to his former attorney. The former attorney testified that she understood her role as intermediary to include screening whether the expenses submitted by Lisa were reasonable and in accordance with the Agreement. Lisa submitted as evidence a list of the unreimbursed expenses along with receipts. Edwin had been personally sent a copy of these expenses and acknowledged having access to the record of them. The submitted medical and automobile expenses totaled $19,577.67, with $9,788.84 constituting the half Edwin would owe. The college expenses included $953.08 for a computer and $6,700 for the couple’s freshman daughter renting an apartment off of campus. Edwin expi’essed dissatisfaction that he was not involved in the decision-making process of certain expenses, such as the purchase of a $6,400 vehicle, the $936.08 laptop, and the cost of the freshman daughter renting an apartment instead of living on campus or commuting from home. He also testified that modification of the original order to permit him to claim some of the minor children as dependents on his taxes would help him pay for his reasonable share of these expenses.

¶ 6. The court found Edwin to be in contempt and established an instalment timeline for him to pay the $14,073.92 ar-rearage. The court found him liable for only one-half of the off-campus apartment expense, instead of for the whole amount. Edwin’s request for modification to receive the tax benefits was denied. The court vacated the provision of the previous contempt order directing that bills be sent to Edwin through his former attorney.

¶ 7. Edwin appeals.

DISCUSSION

¶ 8. An appellate court will not disturb a chancellor’s findings related to domestic matters unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Louk v. Louk, 761 So.2d 878, 882 (¶ 8) (Miss. 2000).

I. The trial court did not abuse its discretion in denying Edwin’s request for modification relating to tax benefits.

¶ 9. Edwin argues that the chancellor erred in refusing to modify the original agreement to permit him to claim some of the children as dependents on his tax return. He cites largely to the Mississippi Supreme Court’s decision in Nichols v. Tedder, 547 So.2d 766 (Miss. 1989), in which the court held that a chancellor has the authority to order a custodial parent to execute a tax-dependency waiver in favor of the noncustodial parent. The court held:

The decision to allocate [the tax exemption to the noncustodial parent] is to be made on a case-by-case basis in the exercise of the chancellor’s wide discretion, and where the equities of the case require an allocation and order of waiver, the custodial parent’s obligation to execute the release is to always be contingent on the receipt of all due and owing payments related to the care and maintenance of the dependent children.

Id. at 780. The court referenced with approval examples from other jurisdictions of when allocation to the noncustodial parent is appropriate, emphasizing that income-tax exemptions are typically most valuable to the party in the higher tax bracket and can be worthless to a party with little or no income.' Id. at 776. Chancellors can construct an order for child support that equitably takes into consideration which party received the benefit of the tax advantage, while maximizing the overall income available to benefit the child. Id; see also Louk, 761 So.2d at 884 (¶ 17) (enumerating various factors chancellors can consider when allocating tax exemptions, including noneconomic contributions by the custodial parent, the value of the exception at the marginal tax rate of each parent, the income of each parent, the age of the child and how long the exemption will be available, the percentage of the cost of supporting the child borne by each parent, and the financial burden assumed by each parent under the property settlement in the case).

¶ 10. Here, Edwin is not challenging the allocation of tax exemptions with a direct appeal from a chancellor’s original decree. When the request to transfer a tax exemption is pursuant to a request to modify a prior decree, a material and adverse change in circumstances must occur to transfer to one parent a tax exemption that was previously awarded to the other parent. Peters v. Ridgely, 797 So.2d 1020, 1024 (¶ 18) (Miss. Ct. App. 2001). For example, in Peters, this Court affirmed the modification of an original decree transferring tax deductions to the custodial parent following a significant and unexpected increase in medical expenses for minor children coupled with the custodial parent’s need to purchase medical insurance due to the noncustodial parent’s failure to maintain a policy. Id. at 1024-25 (¶ 20). The noncustodial parent had also “abused the dependent deductions in a manner [which violated] Internal Revenue Service regulations.” Id.; see also Laird v. Blackburn, 788 So.2d 844, 852 (¶ 14) (Miss. Ct. App. 2001) (affirming tax-allocation modification where chancellor took into consideration various considerations including party’s employment status).

¶ 11. Outside of Edwin’s testimony that the tax benefit would help him pay some of his arrearage, the record does not reflect that Edwin argued or presented evidence below that any of the parties’ circumstances had materially changed so that “equity requires” allocation to him of one or more of the tax exemptions under the principles of Nichols and Louk. While Edwin states that evidence was never presented to the trial court of Lisa’s financial condition due to her failure to disclose her Uniform Chancery Court Rule 8.05 form, the record does not reflect that Edwin ever requested an 8.05 form from her or that he called the matter to the court’s attention. Edwin’s accrued arrearage stemming from the agreed terms and foreseeable circumstances of the original decree does not constitute a material change in circumstances warranting transfer of the tax exemption.

II. The trial court did not err in finding Edwin in contempt for failure to reimburse his share of qualified expenses related to the minor children.

¶ 12. Edwin argues that Lisa’s refusal to involve him in the decision-making process on major expenses violates an implicit duty of sharing joint legal custody. In Laird, this Court affirmed the chancellor’s refusal to order the noncustodial parent to reimburse the custodial parent for various expenses incurred on behalf of the child, including clothing, school supplies, and a bicycle. Laird, 788 So.2d at 851 (¶ 14). In that case, the original decree required consultation and mutual agreement between the parties prior to incurring expenses for education and similarly important matters. Id. The parties did not communicate concerning the expenses, and many of the expenses were duplicated between the two households. Id.

¶ 13. Here, the Agreement between Lisa and Edwin does not explicitly require consultation and mutual agreement between the parties prior to incurring the expenses. With the exception of reasonable college expenses, each expense is divided equally between the two parties. The chancellor heard testimony concerning whether each expense was reasonable, and held in Edwin’s favor that he did not have to pay the entirety of the expense of his freshman daughter renting an apartment off-campus, even though the original decree provided that Edwin would be solely responsible for all reasonable college expenses. We cannot find that the chancellor abused his discretion in finding Edwin in contempt and ordering him to reimburse the qualified expenses of $14,073.92.

¶ 14. Finally, in the initial 2012 contempt order, the court specified that Edwin provide a fuel card or a credit card designated exclusively for fuel expenses. The chancellor found Edwin in contempt of this provision and ordered him to come into compliance. Edwin argues that the provision of the contempt order requiring him to provide a fuel card up front is impermissible because it is outside of the terms of the original Agreement requiring him generally to pay for one-half of the automobile expenses. He argues that fuel is a “transportation” expense rather than an “automobile” expense. We agree with Lisa that the cost of fuel is within the concept of “automobile expenses” and that the trial court was within its authority to specify that Edwin pay for his half of the fuel expenses by this method of providing either a prepaid fuel card or a credit card designated exclusively for the purchase of fuel.

CONCLUSION

¶ 15. The chancellor did not abuse his discretion in determining that Edwin was in contempt of the Agreement. Edwin failed to demonstrate a material change in circumstances that would warrant modification of the original order to grant him tax-exemption benefits. Finding no error, we affirm.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ„ CONCUR. IRVING, P.J. CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . At the time of the 2013 motion for contempt, the original chancellor, Talmage Little-john, was no longer sitting on the bench. The Mississippi Supreme Court appointed senior status judge Mills Barbee to preside after multiple other local chancellors recused due to professional or personal relationships with the parties.

      . And allocation of a tax exemption to Edwin would not immediately assist him in paying the arrearage under the Nichols rule that the custodial parent has no legal obligation to sign over the exemption waiver until the noncustodial parent has paid “all due and owing payments related to the care and maintenance of the dependent children.” Nichols, 547 So.2d at 780.


author: LEE, C.J.,

text:
    Bryce B. HEISSER a/k/a Bryce Brandon Heisser a/k/a Bryce Heisser a/k/a Brice Brandon Heisser, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01046-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied March 14, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this appeal, we must decide whether the jury was properly instructed on the elements of the crime.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of December 7, 2005, Linda White Brett was alone at her house in Florence, Mississippi. According to Brett, Jennifer Dillon knocked on Brett’s door, and asked if Brett’s grandson was home. Brett told Dillon that he was not and closed the door. Dillon knocked again and asked to use Brett’s telephone. Brett handed Dillon the cordless phone and closed the door again. Dillon knocked a third time. When Brett opened the door to retrieve the phone, Dillon,. Bryce Heisser, and Lemartine Taylor forced their way inside. Brett testified that she saw another person—Javon Ransburgh—through a window.

¶3. According to Brett, the intruders took a cell phone, approximately six telephones, a TV, a DVD player, two sets of speakers, jewelry, a purse, and car keys. Before fleeing, the phone lines were cut, and Heisser used a knife to cut Brett’s throat and stab her repeatedly. Shortly thereafter, Brett’s grandson arrived and called for help.

¶ 4. The Florence Police Department tracked Brett’s stolen cell phone to Taylor. Taylor gave the police a confession and named two others who were involved— Dillon and Heisser.

¶5. Dillon pleaded guilty and, in exchange for a reduced sentence, agreed to testify at Heisser’s trial. Dillon testified that she, Heisser, Ransburgh, and Taylor went to purchase speakers from Brett’s grandson. She confirmed that she knocked on Brett’s door and asked for Brett’s grandson. She knocked again and asked to use the telephone. And she knocked a third time, which was when the group forced their way inside. Dillon testified that they disconnected the telephone lines, and then went in separate rooms “looking for stuff to take.” Dillon also testified that Heisser told them to kill Brett. When the others did not comply, Heisser grabbed the knife. Dillon went outside, but Heisser later told her that he killed Brett by stabbing her.

¶ 6. Ransburgh testified that he entered the house sometime after the others. Rans-burgh saw Heisser take a TV to his car and heard Heisser tell Dillon and Taylor to kill Brett. When Dillon and Taylor refused, Heisser took the knife and stabbed Brett. Ransburgh did not receive anything in exchange for his testimony.

¶ 7. Ultimately, Heisser was convicted in the Circuit Court of Rankin County of Count I, armed robbery, and sentenced to life; Count II, aggravated assault, and sentenced to twenty years; and Count III, burglary of a dwelling, and sentenced to twenty-five years, with his sentences to run consecutively, in the custody of the Mississippi Department of Corrections.

¶ 8. Heisser filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, which was denied. Heisser later filed a motion for an out-of-time appeal, which was granted. Heisser appeals.

STANDARD OF REVIEW

¶ 9. “This Court reviews the giving or refusal of a jury instruction for an abuse of discretion.” Sheriff v. State, 156 So.3d 924, 925 (¶ 7) (Miss. Ct. App. 2014) (citation omitted). Jury instructions are reviewed as a whole to determine if any error occurred. Id. “If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found.” Id. (citation omitted).

DISCUSSION

¶ 10. Jury Instruction S-5 provided, in pertinent part:

If you find from the evidence in this ease, beyond a reasonable doubt, that:
1. on or about the 7th day of December, 2005, in Rankin County, Mississippi,
2. the defendant, Bryce Brandon Heis-ser, did willfully, unlawfully, intentionally and burglariously break and enter the dwelling house of Linda White Brett ...,
3.with the intent to commit the crime of larceny therein, then you shall find the Defendant guilty of burglary of a dwelling house.

(Emphasis added).

¶ 11. Heisser argues that the jury should have been instructed on the elements of the crime of larceny. Instead, he argues, the jury was left to “construct its own meaning of that legal term.”

¶ 12. When the circuit court considered jury instruction S-5, defense counsel responded, “I believe that’s a proper statement of the law. We have no objection.” Because Heisser did not object to jury instruction S-5 at trial, we review Heisser’s claim under plain error, which “requires the finding of not only an error, but one that resulted in a ‘miscarriage of justice’ affecting the defendant’s fundamental rights.” Windless v. State, 185 So.3d 956, 961 (¶ 11) (Miss. 2015). And because we find that no error occurred here, it follows that there is no plain error. We also note that Heisser failed to raise this issue in his posttrial motion. See Watts v. State, 492 So.2d 1281, 1290-91 (Miss. 1986). Still, we briefly touch on Heisser’s substantive argument.

¶ 13. In Windless, our supreme court addressed an argument identical to Heis-ser’s argument here. Windless argued the trial judge failed to instruct the jury on the elements of larceny as the “underlying offense” of the burglary. Windless, 185 So.3d at 960 (¶ 9). In dismissing that argument, the supreme court stated: “Larceny is commonly understood to connote stealing or theft. The State submitted sufficient evidence for the jury to find that Windless feloniously broke into and entered the victim’s house with the intent to steal.” Id. at 962 (¶ 11) (internal citations omitted). “Our caselaw holds that only the intent to commit some crime need be proven in order to establish the second element of burglary— the State need not also prove the elements of that intended crime.” Quinn v. State, 191 So.3d 1227, 1233 (¶ 24) (Miss. 2016).

¶ 14. Here, the jury was instructed on the essential elements of the crime of burglary—(1) “breaking and entering the dwelling house or inner door of such dwelling house of another”; and (2) “with the intent to commit some crime therein.” Miss. Code Ann. § 97-17-23(1) (Rev. 2014). In addition, the jury instructions specifically identified larceny as the crime Heisser intended to commit with regard to the burglary. Cf, Daniels v. State, 107 So.3d 961, 964 (¶ 17) (Miss. 2013); Bolton v. State, 113 So.3d 542, 544 (¶ 4) (Miss. 2013). The State submitted sufficient evidence for the jury to find that Heisser broke into and entered Brett’s house with the intent to commit larceny. Therefore, Heisser’s appeal is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF LIFE; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT III, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . It is unclear if they took the car.


author: ISHEE, J.,

text:
    Nathaniel WALDEN a/k/a Nathaniel “Dude” Walden, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CP-00165-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2016.
    Rehearing Denied June 7, 2016.

      Nathaniel Walden, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On October 11, 2006, Nathaniel Walden was convicted in the Holmes County Circuit Court of the crimes of murder and shooting into an occupied dwelling. Walden was sentenced to serve life for the charge of murder and ten years, with five years suspended and five years of probation, for the charge of shooting into an occupied dwelling, all in the custody of the Mississippi Department of Corrections (MDOC). The sentences were ordered to run consecutively. This Court affirmed his conviction and sentence.

¶ 2. On July 12, 2013, Walden filed a motion for postconviction relief (PCR), alleging a claim of ineffective assistance of counsel. The circuit court denied the motion, finding that it was procedurally barred, time-barred, and without merit. Walden now appeals, arguing that the circuit court erred in its denial of his PCR motion. Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶3. In April 2005, Walden discovered that his brother James Walden’s son had removed a battery from Walden’s logging truck without permission while the truck was being stored on James’s property. When Walden confronted James about the incident, James punished his son and asked Walden to remove the truck and any of his other belongings from James’s property. Walden obliged and moved his truck down the street, which was still near James’s property.

¶ 4. Approximately two weeks later, on April 28, 2005, Walden discovered that James’s son had taken a saw out of the truck. Walden again confronted James and eventually became belligerent. When Walden refused to leave James’s property, James forced him to leave by pointing an unloaded shotgun at him. Walden retreated to the nearby home of his sister, Mattie Brown. He stayed at Brown’s house for approximately fifteen to twenty minutes.

¶ 5. Brown testified that just before Walden left her home he said, “I’m going to kill that [James].” Walden then walked back to James’s property and, according to the testimony of James, Brown, and James’s neighbor, Walter Thomas, Walden pulled out a gun and fired it several times. Although Brown did not actually witness the shooting, James and Thomas testified that Walden fired at James, causing James to run into his home. They said that Walden then began shooting into the home. In response, James fired his shotgun out the front door, and Walden got into his truck and left.

¶ 6. James found his wife, Mary Walden, lying dead in a pool of blood between the master bedroom and the bathroom. The autopsy report stated that Mary died from a single bullet to her head, which passed out of her body. A bullet was later found in the bathroom. The Mississippi Crime Laboratory determined that the bullet came from the pistol in Walden’s possession at the time of his arrest and that the pistol contained six spent cartridges that had been fired. The home had four bullet holes in its side after the incident.

¶ 7. On April 28, 2005, Walden was arrested and gave a statement to authorities containing conflicting accounts as to who fired the first shot. At trial, Walden testified that he only fired a single shot into the air in response to James firing a shot at him. At the end of the trial, the jury found him guilty of murder and shooting into an occupied dwelling.

¶ 8. In 2011, Walden filed an application for leave to file a PCR motion in the Mississippi Supreme Court. In denying Walden’s application, the supreme court found that the following complaints were without merit: (1) that a proposed jury instruction was erroneously denied; (2) that he received ineffective assistance of counsel; and (3) that Walden’s sentences were excessive. In 2013, Walden filed a second application in the supreme court requesting leave to file a PCR motion, which was granted on June 20, 2013. Walden subsequently filed a PCR motion in the circuit court on July 12, 2013. The circuit court dismissed the motion, holding that it was procedurally barred and without merit. Aggrieved, Walden appeals. Upon review of the record, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 9. “We review the dismissal or denial of a PCR motion for abuse of discretion.” Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012). We will only reverse a circuit court’s denial or dismissal of a PCR motion when the court’s factual findings are clearly erroneous. Purnell v. State, 126 So.3d 949, 951(114) (Miss.Ct.App. 2013) (citation omitted). “However, we review the [circuit] court’s legal conclusions under a de novo standard.” Id.

DISCUSSION

I. Procedural Bars

¶ 10. We first address the alleged procedural bar. Both parties agree that the circuit court erred in finding that it lacked jurisdiction to review the PCR motion pursuant to Mississippi Code Annotated section 99-39-7 (Rev.2015), which requires that the supreme court grant a petitioner leave to file a PCR motion in the circuit court. As mentioned above, the supreme court did, in fact, grant leave for Walden to file his PCR motion on June 20, 2013, and the PCR motion was filed on July 12, 2013. Because Walden received leave from the supreme court before filing his PCR motion, we find that the circuit court was not procedurally barred from reviewing the motion under section 99-39-7.

¶ 11. Next, we analyze the question of the time-bar. The circuit court found that Walden’s PCR motion was time-barred since it was filed outside the three-year statute of limitations found in Mississippi Code Annotated section 99-39-5 (Rev. 2015). Walden appealed his sentence to this Court, and it was affirmed on July 29, 2008. See Walden, 29 So.3d at 19 (¶3). The supreme court denied Walden’s request for a writ of certiorari regarding his direct appeal on March 4, 2010.

¶ 12. Walden timely filed his first motion for leave to file a PCR motion with the supreme court on July 5, 2011, but it was denied. He then timely filed a second motion with the supreme court requesting leave to file a PCR motion on January 14, 2013. However, by the time the supreme court granted his request on June 20, 2013, the three-year statute of limitations had expired. Nonetheless, Walden promptly filed his PCR motion on July 12, 2013.

¶ 13. Section 99-39-5 requires that a PCR motion “shall be [filed] within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi.” The supreme court denied Walden’s request for a writ of certiorari in March 2010, thereby starting the three-year window of opportunity to file a PCR motion. Because Walden filed his motion seeking leave before the three-year statute of limitations expired, but it was not granted until after the three-year deadline had passed, we must presume that the supreme court intended to allow Walden to file his motion without subjecting it to the three-year statute of limitations. As such, we decline to dismiss Walden’s motion on the ground that it was time-barred.

II. Merits of the Claim

¶ 14. Placing the issues of procedural bars aside, we look to the merits of Walden’s claim that he received ineffective assistance of counsel. Walden complains that his counsel was defective in advising him to reject a plea deal that would have eliminated the charge of shooting into an occupied dwelling in exchange for Walden pleading guilty to the lesser charge of manslaughter. Walden alleges that his attorney told him that the State would not have the ability to prove that Walden intentionally murdered the victim at trial. The State, on the other hand, contends that Walden’s claim of ineffective assistance of counsel cannot stand, because it is founded solely upon Walden’s allegations.

¶ 15. “In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s representation fell below an objective standard of reasonableness.” McBride v. State, 108 So.3d 977, 979 (¶ 11) (Miss.Ct. App.2012) (quoting Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006)). Claims for ineffective assistance of counsel must be pleaded with specificity, and “the claim must be supported by affidavits other than [the claimant’s].” Avery v. State, 179 So.3d 1182, 1188-1189 (¶ 13) (Miss.Ct.App. 2015) (citation omitted). This Court has specifically addressed matters involving requests for postconviction relief, stating that “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Because Walden fails to present any evidence that he was offered a plea deal for manslaughter, he has no grounds to support his claim of ineffective assistance of counsel. As such, the circuit court did not err in dismissing Walden’s PCR motion for lack of merit.

¶ 16. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES AND WILSON, JJ„ CONCUR.

      . See Walden v. State, 29 So.3d 17, 19 (¶ 3) (Miss.Ct.App.2008).