author: LAMAR, Justice, CHANDLER, Justice,

text:
    GALLAGHER BASSETT SERVICES, INC. v. Gary Lee MALONE and Nabors Drilling USA, Inc.
    No. 2007-CA-00585-SCT.
    Supreme Court of Mississippi.
    Jan. 7, 2010.
    Rehearing Denied April 1, 2010.
    Michael A. Heilman, Patricia J. Kennedy, Christopher T. Graham, Jackson, attorneys for appellant.
    Joseph A. O’Connell, Mark A. Nelson, Hattiesburg, Richard O. Burson, Laurel, Doris T. Bobadilla, Thomas J. Smith, Tommy Smith, attorneys for appellees.
   LAMAR, Justice,

for the Court.

¶ 1. Gary Lee Malone’s right leg was amputated below the knee approximately two years after he suffered a work-related injury. Subsequently, Malone instigated this bad-faith lawsuit against several defendants, including his former employer, Nabors Drilling USA, Inc. (Nabors), and a workers’ compensation insurance claims adjuster, Gallagher Bassett Services, Inc. (Gallagher Bassett). Malone argued that the defendants’ bad-faith delay in paying his viable workers’ compensation claim proximately caused him to delay medical treatment, eventually resulting in the loss of his leg.

¶ 2. Nabors cross-claimed against Gallagher Bassett for breach of contract, asserting that it was a third-party beneficiary of a contract between Nabors’s workers’ compensation insurance carrier, CNA Insurance Services (CNA), and Gallagher Bassett. Nabors argued that Gallagher Bassett’s bad-faith delay in paying Malone’s workers’ compensation claim proximately caused Nabors to incur potential liability and defense costs from Malone’s bad-faith lawsuit.

¶ 3. Subsequently, Nabors and Malone entered into a written agreement commonly referred to as a “Mary Carter” settlement agreement, in which Nabors paid Malone $1.5 million and remained a litigant in the case. In the settlement agreement, the parties agreed that Na-bors’s liability to Malone arose out of Gallagher Bassett’s bad-faith failure to timely pay Malone’s workers’ compensation claim.

¶ 4. After a trial in the Circuit Court of Jones County, the jury found Gallagher Bassett and Nabors liable for bad faith in handling Malone’s workers’ compensation claim and awarded compensatory damages to Malone in the amount of $250,000. The jury also found Gallagher Bassett liable to Nabors on the cross-claim for breach of contract and awarded compensatory damages in the amount of $1.25 million. Gallagher Bassett appeals; Malone and Nabors both cross-appeal.

FACTS

¶ 5. Malone worked for Nabors as a motorman on an oil rig in Jones County, Mississippi. Nabors, an oil and gas drilling company, had workers’ compensation insurance with CNA Insurance Company (CNA). CNA had a claims-service agreement with Gallagher Bassett under which Gallagher Bassett would adjust Nabors’s workers’ compensation claims during times relevant to this appeal.

¶ 6. We set out the facts leading up to Malone’s instigation of this lawsuit in the following time line:

July 28, 2000 — Malone struck his front lower right leg on a beam at work and suffered a cut at the site of a recurrent skin infection. Malone reported the injury to his supervisor, Bobby Wallace, who put a Band-Aid on the cut, filled out an incident report, and notified his supervisor, Rob Holbrook.
August 7, 2000 — Malone visited his family physician, Dr. William Moak, who recommended that Malone keep the cut clean and bandaged.
August 14, 2000 — At a follow-up visit, Dr. Moak observed that one centimeter of Malone’s shin bone was exposed in the middle of the cut. Dr. Moak informed Malone that he needed skin-graft surgery and referred him to the Southern Bone and Joint Clinic.
August 15, 2000 — Malone informed Wallace that he needed surgery; Wallace instructed him to discuss the matter with Holbrook.
August 16, 2000 — Gallagher Bassett’s claims adjuster, Deborah Robichaux, called Wallace to discuss Malone’s injury. Wallace informed Robichaux that, although Malone had cut his leg at work and he needed surgery, Malone’s need for surgery might be attributable to his pre-existing condition. After the telephone conversation, Robichaux did nothing further toward investigating Malone’s potential workers’ compensation claim.
August 16, 2000 — Dr. Keith Melancon and Dr. Rocco Barbieri at the Southern Bone and Joint Clinic recommended that Malone have surgery.
August 16, 2000 — Malone discussed his anticipated surgery with Holbrook. According to Malone, Holbrook refused to allow him to make a workers’ compensation claim for the surgery. In contrast, Holbrook testified that, although Malone had informed him that he needed surgery, Malone did not tell him the need for surgery was attributable to his work-related leg injury. It is undisputed that Malone asked Holbrook to approve his working eight weeks in a row in order to have eight weeks off to recover from the surgery; Holbrook approved the request.
August 30, 2000 — Dr. Barbieri diagnosed Malone with a bone infection known as chronic osteomyelitis, and informed him that delaying surgery would risk the loss of his leg. After this visit, Malone worked eight weeks in a row.
October 23, 2000 — Dr. Barbieri performed a bone scraping and a skin-graft surgery on Malone’s leg wound. Malone’s family medical insurer paid his medical expenses.
January 24, 2001 — Malone fell and broke his injured leg; he suffered continuing problems with his leg thereafter.
January 31, 2001 — Nabors terminated Malone due to his inability to return to work due to a non-work-related injury.
February 26, 2001 — Malone applied for social security benefits; in his application, he swore that he had not filed a workers’ compensation claim, nor did he plan to do so.
November 19, 2001 — Malone contacted Nabors’s safety director, Jerry Poole, and informed him he was ready to return to work after the injury.
November 27, 2001 — Poole completed a “B-3 first report of injury” form and faxed the form to Robichaux at Gallagher Bassett.
December 5, 2001 — Gallagher Bassett opened a claim file and sent medical release forms to Malone.
January 9, 2002 — Nabors entered information concerning Malone’s injury into its incidents database.
June 21, 2002 — Robichaux closed the claim file on Malone’s injury because she had never received medical records from Malone.
July 12, 2002 — Malone filed a petition to controvert with the Mississippi Workers’ Compensation Commission (the Commission).
July 23, 2002 — Robichaux reopened the claim file after being notified of the petition to controvert.
August 19, 2002 — Dr. Barbieri amputated Malone’s injured leg below the knee due to a recurrence of infection.
September 9, 2002 — Gallagher Bassett set Malone’s claim for payment of full workers’ compensation indemnity and medical benefits. Subsequently, the Commission entered an order recognizing that Malone had received a net balance of $111,684.22 in indemnity benefits after subtracting sums paid to him in penalties and interest, and his attorney’s fees.
December 3, 2003 — Malone filed the instant bad-faith lawsuit in the Circuit Court of Jones County, alleging that the defendant’s delay in processing this workers’ compensation claim caused his injured leg to deteriorate to the point that it required amputation.

A. Pre-trial proceedings

¶ 7. On September 30, 2005, Nabors cross-claimed against Gallagher Bassett, asserting it was a third-party beneficiary of Gallagher Bassett’s contract with CNA. Nabors argued that Gallagher Bassett’s bad-faith delay in paying the claim had proximately caused Malone’s damages, and it sought to recover from Gallagher Bas-sett all costs it incurred in the defense of Malone’s bad-faith claim.

¶ 8. On October 15, 2005, Malone and Nabors entered into a Mary Carter agreement that resolved all claims between them. In the agreement, Nabors agreed to pay Malone $1.5 million for his physical injuries caused by the bad-faith actions of Gallagher Bassett, and Nabors reserved the right to continue as a defendant in the matter. The parties further agreed that Nabors would receive the first $250,000 of any sums awarded to either party against Gallagher Bassett, and Malone and Nabors would divide equally any additional sums awarded to either party.

¶ 9. On November 2, 2005, Gallagher Bassett filed a cross-claim against Nabors that sought indemnification for any damages arising out of Malone’s bad-faith claim.

B. The trial

¶ 10. At trial, Malone sought to prove that Gallagher Bassett’s failure to investigate and pay his legitimate workers’ compensation claim had caused him to delay the surgery, which proximately caused the amputation of his leg. He presented the expert testimony of Dr. Melancon, who testified to a reasonable degree of medical certainty that the delay caused an increase in infection that necessitated aggressive surgery, and caused or contributed to the amputation. Nabors attempted to show that Gallagher Bassett’s failure to promptly investigate and pay the claim after August 16, 2000, proximately caused Malone’s damages, constituted a breach of Gallagher Bassett’s contract with CNA, and proximately caused Nabors’s liability to Malone. Gallagher Bassett’s position was that it had no duty to investigate the claim until November 27, 2001, when Poole faxed the B-3 first-report-of-injury form to Robi-ehaux.

C. The jury verdicts and post-trial ■proceedings

¶ 11. After all parties had rested at trial, the jury assessed compensatory damages to Malone in the amount of $250,000. The jury allocated fault as follows: 42.5 percent to Gallagher Bassett, 42.5 percent to Nabors, and 15 percent to Malone. Applying these percentages of fault, the trial court entered final judgments in favor of Malone against Nabors and Gallagher Bas-sett in the amounts of $106,250 each.

¶ 12. The jury also found for Nabors on its cross-claim against Gallagher Bassett and assessed damages in the amount of $1.25 million. The trial court entered a final judgment on this verdict. The trial court declined to submit the issue of punitive damages to the jury. After the entry of final judgment, Gallagher Bassett moved for a set-off and for judgment notwithstanding the verdict (JNOV). Malone moved for a JNOV, additur, or a new trial on damages, and Nabors moved for a JNOV seeking additur. The trial court denied all post-trial motions.

ANALYSIS

¶ 13. While the parties raise multiple issues before this Court, the most challenging issue we face is that we are confronted with jury verdicts which reflect contradiction and inconsistency. The jury was asked to consider both the independent tort of bad-faith denial of a workers’ compensation claim and a separate claim, purely contractual in nature, between employer Nabors and adjuster Gallagher Bas-sett. It is our duty to harmonize these verdicts, if at all possible. See Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).

¶ 14. On the one hand, the jury returned a verdict in favor of Malone and allocated fault at 42.5 percent each to Na-bors and Gallagher Bassett and established Malone’s damages in the amount of $250,000. The jury’s second verdict found, on a theory of breach of contract and/or indemnity (the jury was instructed on both), that Gallagher Bassett was liable to Nabors for $1.25 million — a figure five times the amount which the jury had established as reasonable damages to Malone.

¶ 15. Additionally, jury instruction D-34 (an instruction presented by Nabors) told the jury that in order to find for Nabors on their claim, it must find “that nothing Nabors Drilling, U.S.A., L.P., did contributed to the damages, if any, suffered by Malone.... ” The jury’s finding that Nabors was as much at fault as Gallagher Bassett clearly is in direct conflict with its finding that Nabors did nothing which contributed to Malone’s damages.

¶ 16. In post-trial motions, Malone argued inter alia for additur, claiming that the verdict was the result of bias and confusion resulting from conflicting jury instructions. Nabors, post-trial, additionally sought additur. Gallagher Bassett, in post-trial motions, argued that both verdicts fail as a matter of law, and pointed the court to the contradictions raised by the verdicts. The trial court denied all post-trial motions.

¶ 17. We have done our best to reconcile the verdicts after an exegetic review of the record, especially concentrating on the jury instructions, jury verdict, and the post-trial motions. However, we are left with the inescapable conclusion that the jury obviously was (as Malone asserted in post-trial motions) confused. Ultimately, we conclude that there is no way these two verdicts can be reconciled, as they create an uncertainty that is fundamentally unacceptable. After careful consideration, we find that the appropriate remedy is to vacate both judgments and remand this case for a new trial. See Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) (ruling that appellate courts are free to remand for new trial when the jury delivers inconsistent verdicts that cannot be harmonized); see also Gordon v. Degelmann, 29 F.3d 295, 298-99 (7th Cir.1994) (ruling that “[tjhere is no priority among inconsistent verdicts ... [and] the proper thing to do is to hold a new trial with respect to all affected parties”); Wood v. Holiday Inns, Inc., 508 F.2d 167, 175 (5th Cir.1975) (ruling that “[w]here verdicts in the same case are inconsistent on their faces indicating that the jury was confused, a new trial is certainly appropriate....”)

¶ 18. Apparently, all parties elected for strategic reasons to try both the bad-faith claim and the breaeh-of-contract/indemnity cases together, making full disclosure to the jury of the settlement agreement between Nabors and Malone. The case presented multiple legal theories, and the result was a completely confused jury. Our rules provide that a trial court has broad discretion to consolidate or order separate trials for a cross-claim. Miss. R. Civ. P. 42(b). Separate trials are appropriate when necessary to avoid undue confusion for the jury. What is clearly evident in retrospect was perhaps not so obvious to the court and the attorneys at the outset. Upon remand, we strongly urge the trial court to consider severing Nabors’s cross-claim for trial.

CONCLUSION

¶ 19. The judgments of the circuit court are reversed and remanded for proceedings consistent with this opinion.

¶ 20. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON AND KITCHENS, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION. RANDOLPH AND PIERCE, JJ., NOT PARTICIPATING.

CHANDLER, Justice,

dissenting:

¶ 21. With respect for the majority, I would reverse and render the judgments against Gallagher Bassett. I would find that there was insufficient evidence of gross negligence, malice, or reckless disregard for the rights of Malone to support the verdict in his favor against Gallagher Bassett. I would further find that, under the facts presented, there was no legal theory that enabled Nabors to recover damages from Gallagher Bassett for breach of contract. Because the evidence presented at the trial was insufficient to support the verdicts, a new trial is unwarranted.

¶ 22. Gallagher Bassett specifically challenged the sufficiency of the evidence as to Malone’s claim with its motion for a directed verdict at the close of evidence, and as to Nabors’s claim with its motion for a JNOV. The denial of a directed verdict and the denial of a motion tor a JNOV are reviewed under the same standard. Tupelo Redev. Agency v. Gray Corp., Inc., 972 So.2d 495, 514 (Miss.2007). This Court has stated:

The standard of review for the denial of a directed verdict and a judgment notwithstanding the verdict is the same. Ala. Great S. R.R. Co. v. Lee, 826 So.2d 1232, 1235 (Miss.2002). “This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence.” Id. at 1235 (quoting Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)). “If the evidence is sufficient to support a verdict in favor of the non-moving party, the trial court properly denied the motion.” Henson v. Roberts, 679 So.2d 1041, 1044-1045 (Miss.1996) (citations omitted). In other words, this Court considers “whether 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.” White v. Stewman, 932 So.2d 27, 32 (Miss.2006).

Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (Miss.2008).

1. The Workers’ Compensation Act and the tort of bad-faith failure to pay workers’ compensation benefits.

¶ 23. A review of pertinent provisions of the Mississippi Workers’ Compensation Act and of our bad-faith law is warranted. The Act provides that compensation is payable for “disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.” Miss.Code Ann. § 71-3-7 (Rev. 2000). The first installment of compensation becomes due on the fourteenth day after the employer has notice of the injury, but an employer disputing the right to compensation may file a petition to controvert with the Commission on or before the day the first installment is due. Miss. Code Ann. § 71-3-37(2), (4) (Rev.2000). Automatic penalties for late payments are assessed in the amount of ten percent for payments not made pursuant to an award, and twenty percent for payments made pursuant to an award. Miss.Code Ann. § 71-3-37(5), (6) (Rev.2000).

¶ 24. Section 71-3-9 of the Mississippi Workers’ Compensation Act makes the Act the exclusive remedy available to an employee who has suffered a work-related injury. Miller v. McRae’s, Inc., 444 So.2d 368, 370 (Miss.1984). Section 71-3-9 provides:

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

Miss.Code Ann. § 71-3-9 (Rev.2000). Regarding the exclusivity provision, it has been stated that:

Three main themes make up the “compensation principle” that underlies workers’ compensation laws. The employer provides benefits for work injuries without regard to fault; the benefits are limited to those prescribed in the statute, and the employee gives up a common law tort claim for the compensable injury against the employer in exchange for the employer’s providing the no-fault benefits.

John R. Bradley & Linda A. Thompson, Mississippi Workers’ Compensation § 11:1 (2007).

¶25. In Taylor v. U.S. Fidelity & Guaranty Co., 420 So.2d 564 (Miss.1982), this Court reviewed a trial court’s dismissal of an employee’s lawsuit against a carrier for bad-faith delay in paying workers’ compensation benefits. The complaint had alleged that the carrier “negligently, carelessly, wrecklessly [sic], willfully and hazardously [sic], failed, refused and neglected to process legitimate medical claims ...,” causing mental distress and exacerbation of physical pain. Id. at 564. The Court determined that the Legislature had intended that a tort action of this kind be subject to the exclusivity clause. Id. at 566.

¶ 26. In Southern Farm Bureau Casualty Insurance Co. v. Holland, 469 So.2d 55, 59 (Miss.1984), this Court limited Taylor by finding that the Act’s exclusivity clause does not bar an injured worker’s action against a workers’ compensation insurance carrier for the commission of an intentional tort. Holland had alleged that she had suffered mental distress caused by the carrier’s termination of her benefits, that the carrier had terminated her benefits in order to force an inadequate settlement of her claim, and that the carrier’s actions amounted to tortious breach of contract, breach of fiduciary duties, and an intentional infliction of emotional distress. Id. Relying upon Taylor, the carrier argued that the action was barred by Section 71-3-9. Id. This Court distinguished Taylor, stating:

A review of the Taylor record discloses without question that the pleading sounds in negligence. No intentional tort is alleged, as is present in the allegation of this case. The rule in Taylor is accordingly limited to cases where the injured worker attempts to sue the carrier for negligent refusal to pay. In the case sub judice the pleading alleges the withholding of compensation for no legitimate or arguable reason and in an effort to force a settlement for an inadequate amount, harassment regarding an auto insurance policy issued by the same company, refusal to pay medical bills, using economic pressure to force a settlement, all such acts with “grossness and recklessness” as to evince utter indifference to the plaintiff. The comparison of the pleading factually distinguishes the cases. This Court, therefore, concludes that Taylor does not control this case and has no application to cases alleging independent, intentional torts between a worker and the employer’s compensation carrier.

Id. at 57. The Court recognized several reasons that actions against the carrier are barred when based on negligence, but not when based on intentional conduct: (1) a carrier’s intentional failure to pay workers’ compensation benefits does not arise out of the employee’s work-related injury, rather, it is independently tortious conduct by the carrier; (2) a carrier is not the alter ego of the employer when the carrier’s intentional conduct is alleged; (3) the statutory penalties were intended as the exclusive remedy for claims not promptly paid by the carrier, not for intentional conduct; and (4) the statutory penalties are inadequate to deter carriers from intentional wrongdoing. Id. at 58.

¶ 27. Since Holland, the parameters of a common-law action for bad-faith nonpayment of workers’ compensation benefits have become well-established. In Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290 (Miss.1985), the Court expanded Holland to permit a bad-faith suit against an employer as well as a carrier. In McCain v. Northwestern National Insurance Co., 484 So.2d 1001, 1002 (Miss.1986), the Court held that “[t]he same rules applicable to health, fire, casualty, accident, and other insurance policies are likewise applicable to workers’ compensation insurance carriers.” Punitive damages are available against an insurer that denies a claim without a legitimate or arguable reason, and acts with malice, gross negligence, or reckless disregard for the rights of others. Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1095 (Miss.1996).

¶ 28. The Court has stated that, to succeed on a bad-faith claim, a workers’ compensation claimant must show that the employer or carrier lacked “a legitimate or arguable reason to deny the benefits,” and “that the denial constituted a willful or malicious wrong in disregard for [the claimant’s] rights.” Miss. Power & Light Co. v. Cook, 832 So.2d 474, 479 (Miss.2002). Where there was a legitimate or arguable reason to delay or deny benefits, there is no basis for an award of punitive damages. Id. However, “the absence of an ‘arguable reason’ does not necessarily establish that the insurer acted with malice or with gross negligence or reckless disregard for the insured’s rights.” Caldwell, 686 So.2d at 1098 (Miss.1996) (quoting Blue Cross & Blue Shield of Miss. v. Maas, 516 So.2d 495, 497 (Miss.1987)). This is because “we have repeatedly held that ‘punitive damages are not mandated by the absence of an arguable reason ... because the denial of the claim could be the result of honest mistake or oversight — ordinary or simple negligence.’ ” Id. (quoting State Farm Fire and Cas. v. Simpson, 477 So.2d 242, 250 (Miss.1985)).

¶ 29. The Court has specifically set out the standard applicable to a bad-faith action against an insurance adjuster for nonpayment of claims. Bass v. California Life Ins. Co., 581 So.2d 1087, 1090 (Miss.1991). An adjuster’s relationship with the insured is purely contractual; it owes the insured no fiduciary duty. Id. (quoting Dunn v. State Farm Fire & Cas. Co., 711 F.Supp. 1359 (N.D.Miss.1987)). Rather, an adjuster’s duty is “to investigate all relevant information and ... make a realistic evaluation of a claim.” Id. An adjuster can be liable for conduct constituting malice, reckless disregard for the rights of the insured, or gross negligence. Id. “However, an adjuster is not liable for simple negligence in adjusting a claim.” Id. Thus, like an employer or carrier, an adjuster cannot be held liable for bad faith when the conduct at issue amounts to ordinary or simple negligence. This Court applied this standard in Gallagher Bassett v. Jeffcoat, 887 So.2d 777, 786 (Miss.2004), to find that a claims adjuster’s delay in paying uninsured motorist benefits due to her unfamiliarity with Mississippi insurance law was simple negligence as a matter of law, not bad faith.

2. The sufficiency of the evidence supporting the verdict in favor of Malone for bad-faith delay of payment.

¶ 30. Malone sought to prove that Gallagher Bassett’s bad-faith failure to investigate and pay his legitimate workers’ compensation claim caused him to delay having skin-graft surgery, which proximately caused the amputation of his leg. His expert, Dr. Keith Melancon, testified to a reasonable degree of medical certainty that the delay caused an increase in infection that necessitated aggressive surgery, and caused or contributed to the eventual leg amputation. While there was voluminous evidence surrounding Gallagher Bas-sett’s handling of Malone’s claim, the only relevant evidence pertains to what occurred in August 2000, because it was Gallagher Bassett’s conduct during precisely that time frame that Malone claimed to have delayed his skin-graft surgery. The appropriate analysis focuses on Gallagher Bassett’s conduct in light of what Gallagher Bassett knew or reasonably should have known at that time.

¶ 31. The evidence of Gallagher Bas-sett’s role in the delayed payment of workers’ compensation benefits centered upon the conduct of a claims adjuster, Deborah Robichaux. Robichaux’s only source for notice of a workers’ compensation injury was Nabors. The evidence was that Robi-chaux had received notification from Na-bors that Malone had a work-related injury and a pre-existing condition. Then, she had initiated a conversation with Malone’s supervisor, Bobby Wallace, who had confirmed that Malone had cut his leg at work, that he had a pre-existing condition that affected the area of the cut, that he needed skin-graft surgery, and that the need for the skin graft was due either to the cut or to the pre-existing condition.

¶ 32. After her conversation with Wallace, Robichaux did nothing. She testified that it was Gallagher Bassett’s practice not to investigate a Nabors workers’ compensation claim until Nabors had transmitted a B-3 form, and she expected that a B-3 form would be submitted. Nabors’s claims coordinator, Alice Lankford, and Nabors’s counsel, Laura Doerre, both agreed that a B-3 form was required for Gallagher Bas-sett to set up a claim file. Lankford testified that if a claim is reported by phone, the claim file should be set up after the B-3 form is obtained by the claims adjuster. Nabors’s policy was to complete a B-3 form and transmit it to Gallagher Bassett any time a first-aid-only injury necessitated surgery or lost time; yet, it did not do so in this case. Nevertheless, Robichaux admitted that, when she did not receive a B-3 from Nabors, she should have requested one.

¶ 33. It is vital to evaluate Robichaux’s conduct in light of the applicable law governing the compensability of workers’ compensation claims. Workers’ compensation benefits are payable for a work-related injury that aggravates, accelerates, or lights up a pre-existing condition, but no benefits are due for disability that is solely attributable to a pre-existing condition, or when the work-related injury no longer combines with the pre-existing condition to produce disability. Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 594, 115 So.2d 674, 676 (1959). A federal court has recognized that in Mississippi, a pre-existing condition may be a complete defense to workers’ compensation benefits, and an adjuster placed on notice of a preexisting condition has “a valid legal basis ... to spend some time investigating the relationship between the Plaintiffs prior injury and his work-place injury.” McLendon v. Wal-Mart Stores, Inc., 521 F.Supp.2d 561, 566 (S.D.Miss.2007). Thus, Robichaux’s conversation with Wallace only placed her on notice of a possibility that Malone had suffered a compensable injury. Further investigation was needed for Robichaux to determine compensability. Viewing the evidence in the light most favorable to Malone, Robichaux’s next step should have been to commence an investigation of the claim.

¶ 34. Considering all of the evidence in the light most favorable to Malone, I do not find that Robichaux’s failure to investigate after her conversation with Wallace rises to the level of malice, reckless disregard for Malone’s rights, or gross negligence. No evidence suggests that Robi-chaux acted maliciously or with reckless disregard for the consequences to Malone. Nor is there sufficient evidence of gross negligence. “ ‘Gross negligence’ is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.” Dame v. Estes, 233 Miss. 315, 318 101 So.2d 644, 645 (1958). “Simple negligence” is the failure to exercise due care, and signifies conduct that amounts to heedlessness, inattention, or inadvertence. Turner v. City of Ruleville, 735 So.2d 226, 229 (Miss.1999) (citing Beta Beta Chapter of Beta Theta Pi v. May, 611 So.2d 889, 895 (Miss.1992)); Green v. Ingram, 269 Va. 281, 608 S.E.2d 917, 923 (2005).

1135. In August 2000, Robichaux lacked any knowledge that, without the immediate receipt of benefits, Malone would delay the surgery against medical advice. What she knew was that Malone needed skin-graft surgery for a possible work-related injury, and she expected further contact from Na-bors. Although Robichaux should have followed up with Nabors, her failure to do so amounts to mere inadvertence when considered in light of the facts that: (1) Nabors’s admitted practice was to send a B-3 form to prompt Gallagher Bassett to investigate a claim; (2) Robichaux had no notice that a claim definitely was going to be made; and (3) Robichaux commenced an investigation once she received a B-3 form in November 2001. At worst, it appears that, in August 2000, Robichaux failed to follow up on a possible claim due to her own thoughtlessness. Her omission constituted mere inadvertence, heedlessness, or inattention, which constituted simple negligence. In my opinion, viewing the evidence in the light most favorable to the verdict, Malone proved that Gallagher Bassett’s conduct amounted to nothing more than simple negligence. Therefore, not only was Gallagher Bassett’s conduct insufficient to support a finding of bad faith, but recovery against Gallagher Bas-sett for simple negligence was barred by the exclusivity clause of the Workers’ Compensation Act. Miss.Code Ann. § 71-3-9 (Rev.2000). The evidence was insufficient to support the verdict against Gallagher Bassett in favor of Malone.

¶ 36. I point out that a delay of virtually any length in the payment of workers’ compensation benefits invariably will cause damages of some kind to the injured employee, such as a slight worsening of the work-related injury, emotional distress, or the like. The Workers’ Compensation Act has established a balance between the interests of employers and employees: the employer provides compensation for work-related injuries -without regard to fault, and the Act is the employee’s exclusive remedy. See 9 John R. Bradley, Jr., Encyclopedia of Mississippi Law (Jeffrey Jackson & Mary Miller eds.) § 76:1 (2002). This balance is threatened if minor misconduct by the employer, carrier, or adjuster that causes a delay in payment is sufficient to permit an employee to recover damages at law. On this point, a California appellate court aptly has stated:

[Mjinor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen’s compensation could thereby be partially nullified.

Taylor, 420 So.2d at 566 (quoting Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976, 979 (1959)).

¶ 37. I would reverse and render the verdict against Gallagher Bassett in favor of Malone.

3. The sufficiency of the evidence supporting the verdict in favor of Na-bors for breach of contract.

¶ 38. I turn to the verdict in favor of Nabors against Gallagher Bassett for breach of contract. Gallagher Bassett argues that its conduct was not imputable to Nabors and could not have rendered Na-bors liable to Malone. At trial, Nabors’s theory of recovery against Gallagher Bas-sett was that, but for Gallagher Bassett’s bad faith, Nabors would not have been liable to Malone, and would not have incurred settlement and defense costs. Na-bors contended that Gallagher Bassett’s bad-faith delay breached the contract with CNA requiring Gallagher Bassett to provide fair and expeditious handling of Na-bors’s workers’ compensation claims, and the breach proximately caused Nabors to incur liability to Malone. Nabors argued that its potential liability to Malone, based on Gallagher Bassett’s bad faith, prompted its Mary Carter settlement with Malone. Nabors’s jury instruction D-33 permitted the jury to find that Nabors had proven by a preponderance of the evidence that Gallagher Bassett’s breach of contract proximately caused or contributed to Na-bors’s damages, including:

(1) the costs, benefits, and penalties associated with Gary Malone’s workers’ compensation claim and (2) the settlement and cost of defense, including attorney’s fees, incurred in defense of both Gary Malone’s bad faith action and Gary Malone’s workers’ compensation claim against Nabors Drilling USA, L.P. and that Nabors Drilling USA, L.P. would not have incurred but for Gallagher Bas-sett Services, Inc.’s breach of contract, if any.

¶ 39. In my opinion, Gallagher Bassett correctly argues that its acts were not imputable to Nabors. In Luckett, this Court held that an employer, as well as a carrier, may be held liable for bad-faith nonpayment of workers’ compensation benefits. Luckett, 481 So.2d at 290. However, when a carrier acts in bad faith, the carrier “ceases to be the ‘alter ego’ of the employer,” but is involved in an independent relationship with the employee. Holland, 469 So.2d at 58; Pilate v. Am. Fed. Ins. Co., 865 So.2d 387, 395 (Miss.Ct.App. 2004). The import of this rule is that an employer is not liable for the bad-faith acts of an insurance carrier, or, as in this case, the bad-faith acts of an insurance adjuster with whom the carrier has contracted to determine the compensability of claims. In the context of a fraudulent-joinder claim, the United States District Court for the Southern District of Mississippi determined that an employer who was free from any wrongdoing could not be held liable for the carrier’s bad-faith nonpayment of a workers’ compensation claim. Toney v. Lowery Woodyards, 278 F.Supp.2d 786, 793 (S.D.Miss.2003) (citing Holland, 469 So.2d at 58). Because the employer and carrier are not alter egos when acting in bad faith, the employer and carrier each are liable for their own bad-faith acts, and the bad-faith acts of one are not imputable to the other.

¶40. I have concluded that the evidence was insufficient to support a finding that Gallagher Bassett acted in bad faith. But even if Gallagher Bassett was guilty of bad faith, its bad faith was not imputable to Nabors. Holland, 469 So.2d at 58; Pilate, 865 So.2d at 395; Toney, 278 F.Supp.2d at 793. Nabors settled the case because it perceived its potential liability to Malone; however, any liability which Nabors had to Malone could have arisen only from Nabors’s own failure to comply with the Workers’ Compensation Act concerning Malone’s claim. Evidently, Na-bors settled with Malone to avoid this potential liability, and then sought to recover the settlement amount and defense expenses from Gallagher Bassett based on an “alter-ego” theory. This Nabors could not do, because it was not liable as a matter of law for any bad-faith conduct committed by Gallagher Bassett. I would reverse and render the verdict against Gallagher Bassett in favor of Nabors.

      . A Mary Carter agreement is a contract whereby the contracting defendant settles with the plaintiff, but remains a litigant in the case and will be reimbursed a specified amount of the plaintiff's recovery from the other defendants. McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298 (5th Cir.1993).

      . It is undisputed that Malone had longstanding medical problems at this location on his right leg for which he had received prior medical treatment. The deposition of his family physician, Dr. William Moak, reveals that Dr. Moak had treated the site on several occasions for skin infection and, later, for osteomyelitis, an infection of the bone. Dr. Rocco Barbieri, an orthopedist, testified that Malone reported a twenty-year history of problems at the site.

      . Malone testified that, not only did Holbrook refuse to allow him to seek workers’ compensation benefits, but Wallace told him not to tell anyone at the district office or the corporate office about having received medical treatment, because the rig would lose its safety bonus for that period if there was a workers' compensation injury.

      . In the event of an injury which causes lost time in excess of five days, Mississippi Code Section 71-3-67 requires the employer to file a report with the Mississippi Workers’ Compensation Commission on a form approved by the Commission. Miss.Code Ann. § 71-3-67 (Rev.2000). This form is commonly known as a ’’B-3” form. There was no evidence that Nabors had completed a B-3 form prior to November 27, 2001.

      . Three hours into deliberations, the jury sent a note to the court inquiring “Who will pay Gary Malone’s future medical expenses, Na-bors or Nabors’s insurance company?”

      . Mississippi Rule of Civil Procedure 42(b) provides that:
      [t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Section 31 of the Mississippi Constitution of 1890.
      Miss. R. Civ. P. 42(b).

      . I note that the trial court appeared to recognize the paucity of evidence supporting a heightened tort when the court refused to submit the issue of punitive damages to the jury.


source: Caselaw Access Project

author: GRAVES, Presiding Justice,

license: Public Domain

text:
    Carolyn Marie BARNES v. STATE of Mississippi.
    No. 2008-KA-00684-SCT.
    Supreme Court of Mississippi.
    March 4, 2010.

      Office of Indigent Appeals by Erin Elizabeth Pridgen, Toni Demetresse Terrett, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   GRAVES, Presiding Justice,

for the Court.

¶ 1. Carolyn Barnes was convicted of one count of embezzlement in the Circuit Court of Warren County and sentenced to ten years in the custody of the Mississippi Department of Corrections. Barnes’ post-trial motion was denied and she filed this appeal. We find that the issues raised by Barnes are without merit and that her conviction should be affirmed.

FACTS

¶ 2. Carolyn Barnes was a home caregiver for Lottie Montague’s husband. Upon his death, the family continued to employ Barnes to assist 86-year-old Lottie Montague with daily activities. Barnes had a key to Montague’s home, kept Montague’s vehicle for personal use and to take Montague on errands, and was paid an hourly wage. On May 8, 2006, Barnes drove Montague to a senior citizens center in Vicksburg. After leaving the center, Barnes drove Montague to BancorpSouth, where Montague cashed a check for $3,000 with the intention of depositing the money into the credit union account of Montague’s daughter, Joyce. The pair picked up lunch and proceeded to Mutual Credit Union, where Barnes offered to take the money inside and deposit it in Joyce’s account because she said she knew the teller. Barnes took the money and entered the credit union. When Barnes exited the credit union, Montague’s son, Charles, came walking up. Charles, who worked across the street from the credit union, asked what Montague and Barnes were doing there and Barnes indicated she would tell him later.

¶ 3. The pair returned to Montague’s house and ate lunch. Montague then told Barnes she was going to take a nap and that Barnes could leave for the day. Barnes said she would lock the door and then left. Shortly thereafter, Montague was awakened by someone straddling her and holding a pillow over face and rubbing it back and forth. Montague testified that she initially struggled, but then she thought she was going to die and just relaxed. The attacker removed the gold and diamond ring from Montague’s fingers, took her leather wallet containing $300 and her credit cards, and her keys. Montague was unable to identify her attacker, but was able to tell that the person was tall, thin and wearing a white shirt with a blue stripe. Montague called 911. Law enforcement and emergency medical personnel arrived on the scene. Montague provided details of the attack and was later transported to the emergency room. Barnes returned to Montague’s house and spoke with investigators from the Warren County Sheriffs office, including Todd Dykes and Randy Lewis. Investigators found no signs of forced entry. Barnes never returned to work for Montague. However, Barnes kept in contact with investigators, wanting to know how the case was progressing.

¶ 4. On May 9, 2006, the day following the attack, Barnes called Dykes. Barnes told Dykes that, although the initial report made by Montague was that $300 was taken, an additional $3,000 actually had been taken. However, Barnes failed on at least two separate occasions to mention anything about going to Mutual Credit Union to deposit the money. Dykes relayed the information provided by Barnes to Lewis, who was working the case. After Barnes told investigators that an additional $3,000 had been taken, investigators talked with Montague, and she told them that Barnes was supposed to have deposited the money into Joyce’s account. However, the money was never deposited. Further, investigators obtained surveillance photographs, taken from surveillance video from Mutual Credit Union, that showed Barnes, wearing a white shirt with a blue stripe, enter the bank, go toward the deposit counter and do nothing. Barnes was wearing a different shirt when she returned to Montague’s home following the attack.

¶ 5. Investigators asked Barnes to go to the sheriffs office on May 23, 2006, for an interview. During the course of the interview and based on discrepancies in her version of the events, Barnes was read her Miranda , rights and was later arrested. On May 24, 2006, authorities executed a search warrant on Barnes’ home, but did not find any of the items taken from Montague or the white shirt with a blue stripe that Barnes was wearing on the surveillance video.

¶ 6. Barnes was indicted on charges of embezzlement and robbery. Barnes was convicted only of embezzlement and sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Subsequently, Barnes filed this appeal.

ANALYSIS

1. Whether the trial court misapplied the law in admitting Barnes’ statements made during custodial interrogation, thus depriving Barnes of her constitutional Right to Counsel.

¶ 7. Barnes asserts that the trial court should have suppressed her statements because they were taken in violation of her constitutional Right to Counsel. Barnes asserts that she attempted to invoke her Fifth Amendment Right to Counsel during her interview with authorities on May 23, 2006. Barnes further asserts that her statement to police was taken in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Section 26 of Article 3 of the Mississippi Constitution.

¶ 8. This Court will reverse a trial court’s denial of a motion to suppress only if the ruling is manifest error or contrary to the overwhelming weight of the evidence. Ruffin v. State, 992 So.2d 1165, 1169 (Miss.2008) (citations omitted). Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), custodial interrogation must be preceded by advising the defendant of his right to remain silent and his right to an attorney. Id. at 479, 86 S.Ct. 1602. Upon invocation of the right to remain silent, the interrogation must cease. Id. If the defendant invokes his right to counsel, the interrogation must cease until an attorney is present. Id. “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475, 86 S.Ct. 1602. Once a defendant asks for counsel, he cannot be interrogated further until counsel has been made available, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

¶ 9. However, the “applicability of the ‘ “rigid” prophylactic rule’ of Edwards requires courts to first ‘determine whether the accused actually invoked his right to counsel.’ ” Davis v. U.S., 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citations omitted). Determining whether a defendant actually invoked his right to counsel is an objective inquiry. Id. at 459, 114 S.Ct. 2350. A defendant must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. Davis, 512 U.S. at 459, 114 S.Ct. 2350. Further, the U.S. Supreme Court in Davis reiterated that there is no requirement that police clarify whether or not a defendant actually wants an attorney when the defendant makes an ambiguous or equivocal statement. Davis, 512 U.S. at 461, 114 S.Ct. 2350. The Court said that, although clarifying questions are good police practice, “we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62, 114 S.Ct. 2350.

To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.

Davis, 512 U.S. at 462, 114 S.Ct. 2350. See also Delashmit v. State, 991 So.2d 1215, 1221 (Miss.2008); and Chamberlin v. State, 989 So.2d 320, 333 (Miss.2008).

¶ 10. During the hearing on the motion to suppress, Lewis testified that Barnes was not a suspect when he called her and asked her to come to his office for a noncustodial interview. Barnes’ interview was videotaped and later transcribed. However, Lewis testified that during the course of the interview, Barnes made some contradictory statements, which are discussed further herein, that made her a person of interest. At that point, Lewis said Barnes was given her Miranda rights and a waiver. Lewis further testified that Barnes still was not a suspect at that point, but that he was aware that she had made contradictory statements. Lewis also testified that Barnes never asserted her right to have an attorney present, but that she was offered an attorney.

¶ 11. In the motion to suppress her statement, Barnes argued that she had asserted her right to counsel multiple times. The trial court denied Barnes’ motion, finding that Barnes understood her right to get an attorney, that Barnes never asked for an attorney, and that her statements were free and voluntary. The trial court also noted that Barnes never made any inculpatory statements.

¶ 12. Barnes argues on appeal that the first assertion after she was given the Miranda warning was when she made the statement, “So, I don’t need legal, okay....” However, this is not an assertion of her right to counsel, but rather an attempt to clarify whether she must have an attorney present. Barnes testified during the hearing on the motion to suppress that she made the statement “[t]o see did I need to have a lawyer there, did I need some legal representation.... ” Further, after Barnes made this statement, Lewis explained to her that he had to advise her of her rights and make sure she understood before he asked her any more questions. Barnes indicated that she understood.

¶ 13. Barnes next claims that she again asserted her right to counsel when she said, “But I don’t have an attorney here.” However, again, this statement read in the context in which it was made does not indicate an explicit request for an attorney. Barnes continued talking. Lewis interrupted her on two separate occasions and advised her to “hold on just a second” until he had the information written on the waiver so she could read over it. Lewis then reviewed the waiver with Barnes. Barnes indicated that she understood. Further, Barnes again testified during the hearing on the motion to suppress that this statement was merely a question as to whether she needed to have an attorney present.

¶ 14. Barnes claims that the “clearest example” that she had asserted her right to counsel was when she said, “Now if I do need to get a lawyer ... I will get one.” However, Lewis asked whether that was what she wanted to do and she replied, “It don’t matter to me.” Lewis again asked whether she wanted to, and she replied, “Whatever I’ve got to do, but I’m not fixing to get railroad [sic] up in this mess because Joyce is the one that gets ... getting all ... getting her and her husband since she bought him from Iraq, she’s the one that’s talking about she’s been broke since she got ‘Farkad’ [Joyce’s husband] over here.” Barnes testified at the hearing on the motion to suppress that this statement meant exactly what it says, “[m]eaning if I needed to get a lawyer, that I would get one, whatever I have to do.”

¶ 15. We find that the record supports a finding that Barnes received the Miranda warning, that she knowingly and intelligently waived the rights, and that she freely and voluntarily made the statements. Pursuant to Davis, Barnes failed to make an unambiguous, unequivocal request for an attorney, and Lewis had no obligation to stop questioning her. Id. at 461-62,114 S.Ct. 2350. See also Chamberlin, 989 So.2d at 333. Therefore, this issue is without merit.

II. The trial court erred in denying Barnes’ motion for a new trial as the verdict was against the overwhelming weight of the evidence.

¶ 16. Barnes was indicted for embezzling the $3,000 under Mississippi Code Section 97-23-19, which provides, in relevant part:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both.

Miss.Code Ann. § 97-23-19 (Rev.2003).

¶ 17. This Court reviews a trial court’s denial of a motion for new trial under an abuse-of-discretion standard. Dilworth v. State, 909 So.2d 731, 737 (Miss.2005). “A greater quantum of evidence favoring the [S]tate is necessary for the [S]tate to withstand a motion for a new trial, as distinguished from a motion for J.N.O.V.” Id. (quoting Pharr v. State, 465 So.2d 294, 302 (Miss.1984)). “Accordingly, we defer to the discretion of the trial judge, and ‘[w]e will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.’ ” McLendon v. State, 945 So.2d 372, 385 (Miss.2006) (quoting Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). This Court further has said:

However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Dilworth, 909 So.2d at 737.

¶ 18. Barnes asserts that the verdict was not supported by the overwhelming weight of the evidence because too much weight was placed on Montague’s testimony. Barnes also asserts that Montague’s testimony was “riddled with inconsistencies and contradictions.” Barnes’ claim is an exaggeration not supported by the record in this matter.

¶ 19. Barnes asserts that statements about whether she returned to the home after the attack and whether Montague had an additional set of house keys were contradictory. However, it is rational to assume that since Montague had just been attacked, was treated at the scene and then taken to the hospital, she may not have realized whether Barnes returned to the scene. Further, various parts of the record are contradictory as to which keys were even taken. More importantly though, neither of these statements has anything to do with the embezzlement.

¶ 20. Barnes further asserts that “Montague’s most damaging contradiction occurred when she acknowledged Carolyn’s conversation with Charles, her son, outside the Mutual Credit Union.” Barnes asserts that because Montague admitted that Charles asked what the pair was doing at the credit union and Barnes responded she would tell him later, that it somehow proves that Montague was hiding something from Charles. However, this argument is nonsensical. There is no contradiction in the record regarding what was said by and to Charles at the credit union. The only contradictions regarding the credit union are Barnes’ various versions of what occurred there. Barnes failed to mention anything about the credit union to investigators. When Lewis specifically asked Barnes during the interview whether the pair stopped at the credit union, Barnes indicated that the pair stopped at the bank so Montague could withdraw money. Further, Barnes said the pair then proceeded to the credit union because Montague wanted to withdraw more money, but that they saw Charles and Montague changed her mind. Barnes then indicated that, upon changing her mind, Montague told Barnes to go in and get some change. However, this scenario was contradicted by both Barnes herself and other evidence in the record. Barnes testified at trial that, after they left the bank and as they were driving, Montague indicated she needed some change, so Barnes stopped at the credit union. The surveillance video indicated that Barnes did nothing, and did not even get change, upon entering the credit union. Further, the video, Montague, and Barnes’ statement established that Charles was not there before Barnes went into the credit union, but came up as Barnes exited. The evidence presented at trial established that Barnes was employed by Montague. The evidence also established that Montague entrusted Barnes with $3,000 to deposit into Joyce’s account. Further, Barnes failed to deposit the money, but instead secreted it for her own use.

¶ 21. Barnes has failed to establish that the trial court abused its discretion in denying the motion for new trial. Further, Barnes has failed to establish that the verdict is contrary to the overwhelming weight of the evidence. Therefore, this issue is without merit.

CONCLUSION

¶ 22. For the reasons stated herein, we affirm the judgment of conviction of embezzlement in the Circuit Court of Warren County and sentence of ten years in the custody of the Mississippi Department of Corrections.

¶ 23. CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

      . A bank employee also testified regarding the video.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At this point, Lewis advised Barnes of her rights.


author: PIERCE, Justice, GRAVES, Presiding Justice,

text:
    David ABERNATHY v. STATE of Mississippi.
    No. 2008-KA-01457-SCT.
    Supreme Court of Mississippi.
    March 4, 2010.

      Joseph Patrick Frascogna, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorneys for appellee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. This appeal comes to this Court from the Rankin County Circuit Court’s denial of David Abernathy’s Motion for Judgment of Acquittal Notwithstanding the Verdict and, in the alternative, Motion for a New Trial.

FACTS AND PROCEEDINGS BELOW

¶ 2. On August 24, 2006, David Abernathy was indicted for the felony offense of sexual battery in violation of Mississippi Code Section 97-3-95(l)(a) (Rev.2006). Abernathy waived arraignment and entered his plea of not guilty the same day.

¶ 3. These charges arose from an incident that occurred on September 6, 2005, in the home of one of his coworkers, Justin Gordon (“Justin”), and Justin’s girlfriend, Jennifer Pigg (“Jennifer”). All of the relevant events occurred in the Gordon home, which is within the Pearl city limits, Rankin County, Mississippi. Tammy was the victim of the sexual assault; she was twenty-two years of age at that time. Abernathy was forty-three years of age at the time.

¶ 4. A trial was conducted on December 14, 2007, in the Circuit Court of Rankin County. At trial, the State called four witnesses in its case-in-chief: Detective Dewitt Seal of the City of Pearl Police Department (“Seal”), Jennifer, Justin, and the victim, Tammy.

¶ 5. Seal was the primary investigating officer involved in the case. He testified regarding the particulars of his investigation, specifically detailing the statements taken from Tammy, Jennifer, and Justin. Following Seal’s testimony, the State called Jennifer. At the time of the inei-dent, Jennifer lived with her boyfriend Justin. Jennifer testified that she had worked for Custom Products Corporation of Flowood, where Justin and Abernathy both were employed. Justin and Abernathy were coworkers and friends at the time.

¶ 6. Jennifer testified regarding the events of the evening in question. At some time during the day, Jennifer had spoken with Tammy, and they had agreed that Tammy would spend the night at Jennifer’s home. Jennifer stated that, in the early afternoon, Justin had arrived home with beer, planning to have an evening cookout. Shortly thereafter, Abernathy arrived, bringing more beer. Abernathy had intentions of staying with Justin and Jennifer that evening, as he was without a permanent home at the time.

¶ 7. Jennifer testified that, shortly after Tammy arrived at Jennifer’s house that evening, she became ill and complained of a headache. Tammy then retired to the guest bedroom in the house. Jennifer further testified that she was aware that Tammy previously had suffered from migraines but, to her recollection, Tammy did not suffer from them often. Throughout the evening, Abernathy made several trips to the bedroom to “check” on Tammy. After several visits, Jennifer and Tammy instructed Abernathy not to return.

¶ 8. After Jennifer’s testimony, the court called a recess for lunch. During the break, Jamie McBride, attorney for the State, requested the trial court to invoke the rule as to the exclusion of witnesses, and addressed the court regarding Dr. Howard Katz’s presence in the courtroom. The defense then indicated that it intended to call Dr. Katz later in the trial to testify as an expert concerning migraine headaches. The attorney for the defense made an ore tenus motion regarding the relevance of Dr. Katz’s testimony and discussed his reasons for calling him. After the defense’s explanation, the court responded:

Well, we’re not going to get through with this trial today. It’s going to go into tomorrow at this point. But, I’m not going to rule on that right now. I’ll do a Dauberthearing on it at the proper time. But we need to get the rest of the testimony in and then I’ll do the Daubert []hearing and ever how long it takes, it takes. We’re going to stay here until we get through with it. I don’t care if it’s Sunday.

¶ 9. Next, the State called Justin to testify. Justin testified regarding his friendship with Abernathy. He restated the facts previously offered by Jennifer. He also testified that, in the past, Tammy had used the term “migraine headache” in his presence. However, he testified that the night in question was the first time she had described her personal illness as a migraine headache.

¶ 10. Finally, the State called Tammy. She testified regarding her illness that evening. Tammy had been diagnosed in high school with having migraines by her personal physician, Dr. Roy B. Kellum. She said that after Jennifer and Justin went to their bedroom on the evening in question, Abernathy entered the bedroom in which she was sleeping. Tammy testified that Abernathy had climbed on top of her, at which point she told him to “stop” and “get off.” Tammy recalled that Abernathy told her not to scream. She further testified that Abernathy pulled down her shorts and panties, spread her legs apart and placed his finger into her vagina. In addition, Tammy stated that Abernathy had inappropriately touched her on several parts of her body. Finally, Tammy testified that she was pregnant at the time of the incident but did not discover her pregnancy until after the incident occurred. The State rested after Tammy’s testimony.

¶ 11. At the close of the State’s case-in-chief, the court asked the defense again for its reasoning in calling Dr. Katz. Attorney Pat Frascogna responded:

Your Honor, the victim in this case, just a few moments ago, said that she has been diagnosed since high school, with a migraine headache condition of some sort. She has suffered from those since that age, since high school age. Dr. Katz is here to not — -not to offer any kind of conclusion or expert opinion on what David Abernathy may or may not have been involved in at that house that evening, but merely to describe for the jury the migraine headache and what it means as far as its affect [sic] or possible effects on suffering and such.
Your Honor, the migraine — the migraine headaches, and this is what Dr. Katz will show, migraine headaches are responsible for a wide variety of, let’s say mis-perceived, misperceived [sic] events in one’s life while they’re having such. In other words, the sufferer of a migraine headache may perceive something about their environment that is not actually there, which is not part of that environment, and testimony today would be merely to give case history an example of that and nothing more.

¶ 12. After further discussion with both attorneys, the Court responded:

Okay. Normally, you hold a Daubert ... hearing to determine whether or not the evidence, testimony offered is — and whoever came up with the term, I don’t particularly like it, but they want the courts to be the gate keeper to determine if it’s junk [science]. I don’t believe for one minute that what Dr. Katz would testify to would be junk [science]. But because we all know migraine headache exists, there are different causes for them, and people react to them and in different ways.
That being said, my observation at this point is this that, (1) I hadn’t heard any testimony that — of a medical nature that would classify this headache this lady had as a migraine headache. There’s no medical testimony to that. She said she had a headache. She said that it — she used the term migraine to describe it. But other than her saying that, I don’t know that it’s a migraine. There’s been no testimony to indicate that this lady has ever suffered from any hallucinations with or without a headache. We don’t know the severity of the degree of the headache. There’s no evidence about that.
Unless I’m told otherwise, I’m not sure that Dr. Katz knows what the medical history of this victim is, if it’s ever been reviewed by him. I don’t know whether or not he’s ever examined this victim. Medications taken. The witness is not even sure what medication she’s taken, whether — or what it was, so we don’t know how that would affect this headache.
If Dr. Katz is going to testify as to generally the case histories and generally to how migraine affects people, that doesn’t mean that it affects this woman that way. It might. It might not. Unless you can come up with something to tie his testimony to this witness, it’s not relevant as far as I’m concerned and I’m deciding it on a relevancy issue and not on a medical issue.
So with that, seat the jury and call your first witness. If you think you can get it to that point, that’s you know, I’ll reconsider it. But at this point, I don’t see how.
MR. FERRELL: Your Honor, I’m Wayne Ferrell and I’m here representing Dr. Katz when we — when it was announced that there would be a Dau-bert hearing. I’m here to represent him individually as far as his qualifications and, you know, being disqualified on what — on his expertise. That’s the reason I’m here in the courtroom.
THE COURT: Okay. Well, right now it’s not relevant and we’re not even getting over into that boat.

¶ 13. At the close of the discussion, Judge Richardson denied Abernathy’s motion for directed verdict. The defense then began its case-in-chief with the testimony of Sandra Newman. Next, the defense called Abernathy. Abernathy’s testimony consisted of his recollection of the night in question. Abernathy testified that Tammy had complained of headaches throughout the evening and even had vomited at one point in the night. Abernathy had assisted Tammy outside with a wet washcloth, and then she retired to bed almost immediately thereafter. Abernathy testified that he did enter her room at one point and sit on the side of the bed where Tammy was sleeping. He claims that he did not disturb her by pulling back the covers and that he did not disrobe her.

¶ 14. After Abernathy’s testimony the court asked the defense to call its next witness. The following exchange occurred:

THE COURT: Who would you have next for the Defendant?
MR. FRASCOGNA: That’s all, your Honor.
THE COURT: Does the Defendant rest?
MR. FRASCOGNA: Yes, sir.

¶ 15. After the defense rested, the State called Justin Gordon as a rebuttal witness. At the close of his testimony, the State finally rested. At that time, the judge delivered instructions to the jury and charged it with its duty. After closing arguments, the judge dismissed the jury for deliberation. Once the jury retired, the trial court offered one last statement regarding Dr. Katz’s testimony:

The jury is out. On the record just a moment. There was another issue, or not issue, but I wanted to have something else included in the record on my ruling on the — on Dr. Katz’s testimony I forgot to put in there earlier.
[Tammy] testified that she threw up. Tammy testified that she discovered she was six weeks pregnant, and I think that the Court can probably take judicial notice of the fact that when you’re pregnant, you throw up, or most, I’d say 99 percent of the women do and it is not necessarily in the morning, and that’s, I know, also an indicator, that throwing up is an indicator of a migraine headache. It’s also an indication of being pregnant. Okay.

¶ 16. The jury returned a verdict of guilty as charged in the indictment. Abernathy subsequently was sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections with twenty years suspended and a period of five years on supervised probation upon release from incarceration.

¶ 17. After the trial, Abernathy moved for judgment of acquittal notwithstanding the verdict. Counsel for the defense argued that there was no specific finding regarding Dr. Katz’s testimony and that there was no specific finding regarding the reliability of the opinions that Dr. Katz would have provided. Judge Richardson summarily denied the motion.

ANALYSIS

I. Whether the trial court erred in excluding the expert testimony of Dr. Katz.

¶ 18. “[T]he admission of expert testimony is -within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999)). “Therefore, the decision of the trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id.

¶ 19. The basis of Abernathy’s appeal centers around the fact that Dr. Katz did not testify at trial. Specifically, Abernathy avers that the trial court erred because it determined Dr. Katz’s testimony to be irrelevant, and, therefore, excluded said testimony. “This Court has repeatedly held that when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Murray v. State, 849 So.2d 1281, 1289 (Miss.2003). The Official Comment to Rule 103 of the Mississippi Rules of Evidence states that “... when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded.” Vaughan v. State, 759 So.2d 1092, 1105 (Miss.1999) (Smith, J., specially concurring); see also King v. State, 374 So.2d 808 (Miss.1979); Brown v. State, 338 So.2d 1008 (Miss.1976).

¶ 20. It is evident from the trial transcript that the defense failed to make a sufficient proffer after the trial court excluded Dr. Katz’s testimony. Although the defense mentioned Dr. Katz prior to trial and discussed Dr. Katz’s proposed testimony during trial, the defense did not effect a sufficient proffer. See ¶¶ 11-12, supra, for the trial excerpts containing said discussion. Even finding that the testimony of Dr. Katz would have been relevant, the record is insufficient for us to determine whether it could have survived under the Mississippi Rule of Evidence 403 balancing test for admissibility. It is incumbent upon the proponent of evidence to make an adequate record of the proposed testimony which this Court can review. This was not done in this case; without such we are unable to find that the trial court erred.

¶ 21. Accordingly, we find that the record lacks the necessary information to make a determination concerning the admissibility of the evidence, even if found to be relevant. Likewise, the lack of a sufficient proffer renders this Court unable to hold the trial judge in error. Therefore, the conviction and sentence of David Abernathy are hereby affirmed.

II. Whether the evidence was insufficient to support the verdict.

¶ 22. Additionally, Abernathy avers on appeal that the evidence presented at trial was insufficient to support the verdict. The critical inquiry when considering the sufficiency of the evidence is to decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Morris v. State, 927 So.2d 744, 748 (Miss.2006) (citing Bush v. State, 895 So.2d 836, 843 (Miss.2005)). In the instant case, there was testimony that Abernathy did commit sexual assault upon Tammy. The case largely consisted of the victim’s word against the defendant’s. This presents a factual dispute to be resolved by a jury. We cannot conclude that any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt, when the evidence is viewed in the light most favorable to the State. Accordingly, this assignment of error is without merit.

CONCLUSION

¶ 23. Because Abernathy failed to make a sufficient proffer concerning Dr. Katz’s testimony, this Court finds that Abernathy failed to preserve the issue of Dr. Katz’s testimony for appeal. Accordingly, the trial court’s ruling denying Abernathy’s Motion for Judgment of Acquittal Notwithstanding the Verdict and Motion for New Trial is hereby affirmed, as is the conviction and sentence.

¶ 24. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. THE LAST TWENTY (20) YEARS OF THE SENTENCE ARE HEREBY STAYED AND THAT PORTION OF THE SENTENCE IS SUSPENDED. UPON RELEASE, THE APPELLANT SHALL BE PLACED ON SUPERVISED PROBATION UNDER THE DIRECT SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR FIVE (5) YEARS.

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

GRAVES, Presiding Justice,

dissenting:

¶ 25. I disagree with the majority’s conclusion that Abernathy failed to make a sufficient proffer concerning Dr. Katz’s testimony. Abernathy complied with the rule of evidence and the caselaw relevant to proffering evidence by adequately explaining to the trial court and into the record why Dr. Katz’s testimony was relevant. Therefore, I must dissent.

I. Abernathy complied with the rule of evidence and the caselaw relevant to proffering evidence by adequately explaining why he was offering Dr. Katz’s testimony.

¶ 26. Rule 103 of the Mississippi Rules of Evidence explains that a trial court’s exclusion of expert testimony can be found in error only if “the substance of the evidence Le.g., expert testimony] was made known to the court by offer or was apparent from the context within which questions were asked.” Miss. R. Evid. 108(a)(2). See also Heidel v. State, 587 So.2d 835, 844 (Miss.1991) (“Before a party may secure appellate reversal on an evi-dentiary exclusion, that party must have placed in the record the substance of the evidence he would have offered had the court ruled otherwise”). The comment to Rule 103 explains that “when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded.” Miss. R. Evid. 103(a) cmt.

¶ 27. As explained in the cases regarding proffers cited by the majority, the purpose of the rule requiring the proponent of excluded evidence to “state[ ] into the record what is excepted [sic] to be proved ...” is “to enable the trial court to judge the competency of the proffered evidence and this Court can review it on appeal.” Brown v. State, 338 So.2d 1008, 1009-10 (Miss.1976). See also White v. State, 507 So.2d 98, 102 (Miss.1987) (“The rule is that ‘when a party would seek a reversal because of excluded testimony ... the witness must be presented, and there must be a specific statement of what the answers or testimony of the witness would be, if allowed, so that the court may see from the record itself whether the offered evidence would be material and of benefit to the merits of the case ... ’ ”); McQuaig v. McCoy, 806 F.2d 1298, 1301 (5th Cir.1987) (“The purpose of the proffer is to make known to the court for what reasons the evidence is offered.”).

¶ 28. This Court has explained that “counsel, when not permitted to present a witness’s testimony, must by some manner or means cause the record to show precisely what he intended to prove by the witness.” Bell v. State, 443 So.2d 16, 20 (Miss.1984) (emphasis added). See also McQuaig, 806 F.2d at 1301 (“While the evidence must be offered to the court, we do not require a formal proffer; instead, the proponent of excluded evidence need only show in some fashion the substance of the proposed evidence.”) (emphasis added). In other words, the fundamental requirement of the rule is not that the proponent of the excluded testimony use the word “proffer” or any other specific language in introducing his explanation of the relevance of the testimony; rather, the fundamental requirement is that the proponent adequately explain to the court why the testimony is being offered.

¶ 29. This Court emphasized the flexibility of the rule regarding proffers in Murray v. Payne. It explained:

It is not necessary that the parties place in the record every detail of what their proof would have shown. All we require is that the party offering the excluded testimony make a clear record showing to us that there is substance to his point, that on reversal and remand there is a substantial likelihood that he will be able to offer evidence which may reasonably be expected to have an impact on the outcome of the case. We do not require that the appealing party place in the record the total and complete details of the proffered but excluded testimony. Nor do we require certainty that exclusion of that testimony affected the outcome of that first trial.

Murray v. Payne, 437 So.2d 47, 55 (Miss.1983). The Murray court held that, while the proponent of the excluded testimony did not make a formal proffer, the record was sufficient to inform the Court what the substance of the excluded testimony would be. Id.

¶ 30. In the instant case, Abernathy complied with Rule 103 and the relevant caselaw by presenting Dr. Katz to the court and explaining to the court what the upshot of Dr. Katz’s testimony would be. Abernathy detailed to the court and into the record on multiple occasions why Dr. Katz’s testimony about the psychological and physiological effects of migraines was relevant and essential to his theory of defense.

¶ 31. In a pretrial motion, Abernathy’s counsel explained why he intended to call Dr. Katz as a witness:

... [T]he complainant in this cause provides numerous statements in the discovery relating to the ill-effects she suffered from a severe migraine headache (i.e., vomiting, nausea, etc.) which continued throughout the events, both before and subsequent to, the alleged criminal conduct of the Defendant.
... [B]ecause the medical condition the complainant experienced from the migraine headache she suffered on the action date of the case, the Defense identified a medical doctor in the Rankin County area, Dr. Howard Katz, during the spring of 2007 who is qualified to give expert testimony in the physiological and psychological effects on the human body during a severe attack of a migraine headache.
[T]he expert testimony of Dr. Katz is essential to virtually every aspect of the Defendant’s case to be presented at trial, without which, he will be severely prejudiced.

Additionally, in Abernathy’s Notice of Witnesses and Reciprocal Discovery, he stated that “Dr. Katz will testify as to the physiological and psychological effects of migraine headaches.”

¶ 32. Abernathy discussed the relevance of Dr. Katz’s testimony on two separate occasions during trial and again during the argument of his Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in the Alternative, Motion for New Trial. The first time the issue was raised during trial was during a lunch break when the State noticed Dr. Katz sitting in the courtroom and notified the court that it objected to Abernathy calling Dr. Katz as a witness. During this discussion, Abernathy’s counsel explained:

Your Honor, Dr. Howard Katz is here today and he’s been noticed as an expert — as an expert witness in this case. Dr. Katz is an expert in migraine headaches ....
[Hje’s here ... to discuss and explain what a migraine headache involves and the physiological events [sic ] as well as psychological, generally, on those who suffer from it, and that has relevance in this case because the victim in this case has alleged that she was compromised physically because of the migraine headache and that she was unable to protect herself in some regard and to some degree from the defendant. She talks about faking a seizure or something.
Dr. Katz is basically here to merely explain what the migraine headache is and how it affects someone such as [Tammy] in this case.

¶ 33. The issue of Dr. Katz’s testimony was again discussed during trial when Abernathy’s counsel, before calling his first witness, made a motion in limine regarding this issue. In support of its argument that Dr. Katz’s testimony was relevant and should be admitted, Abernathy’s counsel stated:

Your Honor, the victim in this case, just a few moments ago, said that she has been diagnosed, since high school, with a migraine headache condition of some sort. She has suffered from those since that age, since high school age. Dr. Katz is here to not — not to offer any kind of conclusion or expert opinion on what David Abernathy may or may not have been involved in at that house that evening, but merely to describe for the jury the migraine headache and what it means as far as its affect [sic ] or possible effects on suffering and such.
Your Honor, the migraine — the migraine headaches, and this is what Dr. Katz will show, migraine headaches are responsible for a wide variety of, let’s say mispereeived, misperceived events in one’s life while they’re having such. In other words, the sufferer of a migraine headache may perceive something about their environment that is not actually there, which is not part of that environment, and testimony today would be merely to give case history an example of that and nothing more.

¶ 34. Abernathy’s counsel explained the relevance of Dr. Katz’s testimony a final time during the argument of Abernathy’s Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in the Alternative, Motion for New Trial. Abernathy’s counsel explained:

As the court no doubt is aware, your Honor, a basic tenet of the rules of evidence with regards to the relevance of evidence is ... whether any piece of evidence ... would tend to make a fact or consequence more or less likely or more or less probable than that fact or consequence would have been without that ... particular piece of evidence.
In this case, one of the facts or consequence at trial was whether or not the victim, as alleged ... accurately recalled the events that ... were testified to.
Dr. Katz was proffered to testify with respect to the effects of migraine headaches upon individuals, and in particular the propensity ... that migraine headaches, among other things, caused not necessarily hallucinations, but cause the possibility that a migraine could cause a person to inaccurately recollect events that unfolded during that period of time that the person was suffering from migraine headaches.
So we submit, your Honor, that ... this proffered testimony would no doubt ... have been relevant to the issue of whether or not the victim, as alleged, accurately recalled the events of propensity to the sexual battery.
[T]he victim did testify that she was diagnosed with migraines and, therefore, we submit that there was sufficient basis to allow Dr. Katz to expound on ... what symptoms that particular condition could cause and specifically how that particular condition could have affected the accuracy of the victim’s recollection of the ... events.

¶ 35. In sum, Abernathy complied with Rule 103 and the relevant caselaw by adequately explaining to the trial court and into the record why Dr. Katz’s testimony was relevant and important to his theory of defense.

II. The trial court abused its discretion when it found Dr. Katz’s testimony irrelevant.

¶ 36. As the majority notes, the standard of review for the admission or exclusion of expert testimony is abuse of discretion. Taylor v. State, 954 So.2d 944, 948-49 (Miss.2007) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003)). It was an abuse of discretion to exclude Dr. Katz’s testimony about migraines because testimony was offered that Tammy had a migraine on the evening of the alleged assault, and therefore, expert testimony regarding the effects of migraines would have been relevant.

A. Testimony was offered that Tammy had a miyraine on the eveniny of the alleyed assault.

¶ 37. During direct examination of Tammy, she testified that she had suffered from a migraine on the evening of September 6, 2005 — the evening of the alleged assault. She explained:

I had had it [i.e., a headache] all afternoon and it just got worse as the night went on. While we [i.e., Jennifer and I] were riding around [in the car doing errands] it got really bad. And by the time we got home, I asked her [i.e., Jennifer] for something to take to make it feel better. So she gave me — I don’t know what it was. It was probably Tylenol or an Excedrin or something. But I took that and for the rest of the night it just got worse and worse and worse.
[S]he and I both had migraines in the past and I knew she would have something to take for it, because I didn’t bring anything with me.

¶ 38. Further, when Tammy was asked during direct examination what type of medication she would normally take if a migraine came on, she explained that she would normally take Darvocet, a drug legally obtained only by prescription. In other words, a medical professional at some point must have diagnosed Tammy with a migraine condition before prescribing her the drug Darvocet.

¶ 39. Moreover, when Tammy was asked during cross-examination whether she was “suffering from a migraine headache” the evening of the alleged assault, she replied, ‘Yes, sir.” She went on to explain that she had been diagnosed with a migraine condition, that it was common for her to get migraines, and that she had suffered from them since she was in high school.

¶ 40. In addition, when Abernathy’s counsel asked on cross-examination, “Previously or earlier in that same evening when you were having symptoms from the migraine, did that include nausea — and vomiting and so forth?” Tammy responded ‘Yes, sir.”

¶ 41. Jennifer and Justin testified that during the evening in question, Tammy referred to her headache as a migraine. Further, Jennifer testified: “... [Tammy] did get sick from her migraine and she threw up” and “I knew she had migraines .... ”

¶ 42. Lastly, in the State’s Disclosure of Trial Witnesses, which was provided during discovery, the State informed Abernathy that “[Tammy] will testify that on the evening of September 6, 2005, that she was suffering from a migraine headache and was feeling very ill.” In other words, even the State (which now argues that it is questionable that Tammy had a migraine that evening) at one time asserted that Tammy did in fact suffer from a migraine that evening.

¶ 43. In sum, Tammy’s friends testified that Tammy had told them on the evening of the alleged assault that she was suffering from a migraine; Tammy, as well as her friends, testified that Tammy had a very bad headache that evening and that she also had vomited; Tammy herself testified that she had suffered from a migraine that evening; Tammy testified that her doctor had diagnosed her with migraine headaches and that she had suffered from them since high school; Tammy testified that she had been prescribed Darvocet for her migraine condition; and lastly, Tammy told the prosecutors that she had a migraine that evening, and they informed Abernathy that this fact would be a part of Tammy’s testimony.

B. Dr. Katz’s testimony was relevant.

II44. In light of the testimony regarding Tammy’s history of migraine headaches and her symptoms during the evening of the alleged assault, Dr. Katz’s testimony about migraines and how they may impair sufferers’ ability to recall events accurately was relevant. Rule 401 of the Mississippi Rules of Evidence explains that evidence is “relevant” when it has a “tendency to make the existence of any fact that is of consequence to the determination of the action [e.g., the fact that Tammy accurately recalled the events of the evening in question] more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. See also Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 417 (Miss.2009) (“Rule 401 favors admission of the evidence if it has any probative value. ‘[T]he threshold for admissibility of relevant evidence is not great. Evidence is relevant if it has any tendency to prove a consequential fact.’ ” (internal citation omitted)). In addition, Rule 702 of the Mississippi Rules of Evidence provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.... ” Miss. R. Evid. 702.

¶ 45. Dr. Katz’s testimony would have assisted the jury in understanding what bearing Tammy having a migraine that evening had on the case, and in determining whether Tammy’s recollection of that evening’s events had been impaired. The ability of a witness — not to mention the prosecution’s key witness — to observe and recollect the assault about which she is testifying is of utmost relevance.

¶46. Relevant evidence “may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Miss. R. Evid. 403. As discussed above, the testimony introduced at trial regarding Tammy’s history of migraines and her symptoms during the evening of the alleged assault makes the probative value of Dr. Katz’s testimony significant. Second, the only “danger” (of those dangers listed in Rule 403) that the State raised during discussions of the admissibility of Dr. Katz’s testimony was the danger of confusion of the jury. While Dr. Katz’s testimony likely would have caused the jurors to consider the possibility that Tammy’s ability to observe or recollect that evening’s events was impaired, it would not have confused the jurors, and it certainly would not have confused them to the extent that the confusion would have outweighed the probative value. Furthermore, the State would have had the opportunity during cross-examination of Dr. Katz to attack the weight and worth of his testimony.

¶47. Even the trial court seemed to agree that when a victim testifies that she had a migraine on the date and time of an alleged assault, expert testimony regarding migraines and their effects on those who suffer from them would be relevant. At the hearing regarding Abernathy’s Motion for Judgment of Acquittal Notwithstanding the Jury Verdict or, in the Alternative, Motion for New Trial, which occurred nearly six months after the trial, the trial court heard arguments regarding the relevance of Dr. Katz’s testimony, and in closing remarks stated:

If I remember correctly, I think the lady testified that she had a headache, but it was not a migraine headache, that she had them before. And if she didn’t have a migraine headache, then Dr. Katz’s testimony was not necessary. It was not relevant.
If she had testified that she had them, experienced a migraine headache that night, then you’ve got a whole different situation. She didn’t testify to that. That was something that the defendant brought to the court’s attention, and since he was drunk, I don’t know he knew that she had a migraine headache. So, the motion is denied.

(Emphasis added.) Again, Tammy did testify that she had a migraine the evening of the alleged assault; the trial court did not correctly recall Tammy’s testimony. At trial, the trial court itself noted that Tammy had testified that she had a headache and that “she used the term migraine to describe it.” Thus, but for the trial court’s erroneous recollection that Tammy had testified that she did not have a migraine on the evening in question, it appears the trial court would have found Dr. Katz’s testimony relevant.

¶ 48. It is true that the trial court, earlier in the proceeding, found Dr. Katz’s testimony irrelevant on other grounds— those grounds being, namely: 1) no testimony of a medical nature was offered that would classify Tammy’s condition on the evening in question as a migraine, and 2) Dr. Katz would not be testifying to the effects that migraines have on Tammy specifically, but rather to the effects migraines have, generally, on people who suffer from them. As just noted, however, in the trial court’s final remarks on the issue of Dr. Katz’s testimony, it agreed that when a victim testifies that she had a migraine on the date and time of an alleged assault, expert testimony regarding the effects of migraines would be relevant.

C. A defendant has a right to have every lawful defense he asserts presented to the jury.

¶ 49. A defendant has a fundamental right to have every lawful defense he asserts presented to the jury, even if that defense is highly unlikely. See Chinn v. State, 958 So.2d 1223, 1225 (Miss.2007) (“... every accused has a fundamental right to have [his] theory of the case presented to a jury, even if the evidence is minimal.”); Phillipson v. State, 943 So.2d 670, 671-72 (Miss.2006) (“We greatly value the right of a defendant to present his theory of the case....”); O’Bryant v. State, 530 So.2d 129, 133 (Miss.1988) (“It is, of course, an absolute right of an accused to have every lawful defense he asserts, even though based upon meager evidence and highly unlikely, to be submitted as a factual issue to be determined by the jury under proper instruction of the court. This Court will never permit an accused to be denied this fundamental right.”). According to Abernathy’s brief, his theory of defense was “first, that he did not commit the acts of which he stood accused, and second, the stated fact that the victim was suffering from a migraine headache and possibly enceinte at the time was material and crucial to the matter of the victim’s accurate recollection of the events, among other things, that transpired that evening.” Abernathy thus had a right to call Dr. Katz in support of his theory that the migraine headache Tammy had the evening of the alleged assault may have caused her to recollect inaccurately what happened between the two of them.

Conclusion

¶ 50. In conclusion, I disagree with the majority’s finding that Abernathy failed to make a sufficient proffer concerning Dr. Katz’s testimony; I conclude that Abernathy made an adequate proffer, satisfying the purpose of Rule 103. In addition, I conclude that the trial court abused its discretion in finding Dr. Katz’s testimony irrelevant. Accordingly, I dissent and would reverse and remand this case for a new trial with instructions to the trial court to admit Dr. Katz’s testimony.

WALLER, C.J., KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . "Tammy” is a pseudonym used by this Court to protect the victim's identity.

      . Rule 615 of the Mississippi Rules of Evidence provides that at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. Jamie McBride, attorney for the State, simply invoked this rule.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding general acceptance is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, and that the Rules assign trial judges the task of ensuring that expert's testimony both rests on a reliable foundation and is relevant to the task at hand). Usually, a Daubert hearing is held prior to trial or during trial regarding the reliability and relevance of a party's expert witness.

      . It should be noted that Tammy used the words "migraine” and “headache” interchangeably throughout her testimony.

      . Rule 403 of the Mississippi Rules of Evidence allows for relevant evidence to be excluded "... if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Miss. R. Evid. 403.

      . As the majority has noted, "Tammy” is a pseudonym used by this Court to protect the victim’s identity.