author: RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

text:
    Thomas Edwin LODEN, Jr. v. STATE of Mississippi
    NO. 2017-DR-00870-SCT
    Supreme Court of Mississippi.
    December 6, 2018 Rehearing Denied March 7, 2019
    ATTORNEY FOR PETITIONER: STACY FERRARO, Flora
    ATTORNEY FOR RESPONDENT: OFFICE OF THE ATTORNEY GENERAL, BY: JASON L. DAVIS, Jackson
    EN BANC.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Before the Court is Thomas Edwin Loden Jr.'s fourth petition for post-conviction relief. Loden challenges the Mississippi Department of Corrections' use of midazolam in its lethal-injection protocol. He claims that midazolam is not an "appropriate anesthetic or sedative" that, "if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain" under Mississippi Code Section 99-19-51 (Supp. 2018). Loden requests this Court to enter an order forbidding the State from using any drug, including midazolam, as the first drug in its lethal-injection series that is not "likely to render the condemned inmate unconscious," or, in the alternative, to grant him an evidentiary hearing to prove that midazolam is not "an appropriate anesthetic or sedative" under Mississippi Code Section 99-19-51.

¶ 2. First, our review of Loden's filings and affidavits on the critical issue-that is, whether a 500-milligram dose of midazolam meets Mississippi's statutory definition of an "appropriate anesthetic or sedative," reveals that Loden has offered no more than the ipse dixit arguments of his expert, Craig W. Stevens, Ph.D. Loden has failed to carry his burden of proof in presenting a substantial showing of the denial of a state or federal right as required by Mississippi Code Section 99-39-27 (Rev. 2015), for the portions of his affidavits related to the efficacy of a 500-milligram dose of midazolam are a "sham" and are not supported by established medical literature. Gable v. State , 748 So.2d 703, 706 (Miss. 1999) (quoting Young v. State , 731 So.2d 1120, 1122-23 (Miss. 1999) ).

¶ 3. Moreover, the State responds that, in Glossip v. Gross , the United States Supreme Court considered the same arguments presented in Loden's petition and rejected them, affirming the United States Court of Appeals for the Tenth Circuit's and a United States District Court's finding that a 500-milligram dose of midazolam-the same dosage that MDOC requires in its lethal-injection protocol-is capable of placing a person at a sufficient level of unconsciousness so that the recipient is unable to feel pain. Glossip v. Gross , --- U.S. ----, 135 S.Ct. 2726, 2739-41, 192 L.Ed.2d 761, 83 U.S.L.W. 4656 (2015). In addition to Loden's failure to present a substantial showing of the denial of a state or federal right, the holding in Glossip is relevant to the outcome of this petition. Accordingly, his petition for PCR is denied.

FACTS AND PROCEDURAL HISTORY

¶ 4. On June 22, 2000, Loden discovered Leesa Marie Gray's car stranded on the side of the road with a flat tire. Loden v. State , 971 So.2d 548, 552 (Miss. 2007) ( Loden I ). According to an interview of Loden, Loden stopped, asked Leesa what was wrong, and told her "Don't worry. I'm a Marine. We do this kind of stuff." Id. Loden then asked Leesa if she had ever considered becoming a Marine. Id. Leesa responded that "that'd be the last thing I want to do with my life." Id. Loden became so angry that he ordered Leesa to get in his van. Id. Then, "[o]ver the next four hours, Loden repeatedly raped and sexually battered Leesa, videotaping portions of the sadistic acts, before murdering her by way of suffocation and manual strangulation." Id. at 551.

¶ 5. Loden was indicted for capital murder, rape, and four counts of sexual battery. Id. Loden voluntarily waived his right to a jury for both trial and sentencing and pleaded guilty to all six counts in the indictment. Id. at 551-52. "The Circuit Court of Itawamba County, Mississippi, accepted those pleas and adjudged Loden guilty on each count." Id. at 552. "At the sentencing hearing, Loden elected to waive cross-examination of all of the State's witnesses, to waive objection to all exhibits presented by the State, and not to offer any mitigation evidence on his own behalf." Id. Loden then chose to address the court and Leesa's friends and family by stating, "I hope you may have some sense of justice when you leave here today." Id. The circuit court then considered the four factors required by Mississippi Code Section 99-19-101(7) (Rev. 2015) and found that each factor was satisfied, "that sufficient aggravating circumstances existed, and 'that the mitigating circumstances do not outweigh the aggravating circumstances and that the death penalty should be imposed.' " Id.

¶ 6. Loden was also sentenced to thirty years' imprisonment for the rape conviction on Count II of the indictment; thirty years' imprisonment for the sexual battery conviction on Count III; thirty years' imprisonment for the sexual battery conviction on Count IV; thirty years' imprisonment for the sexual battery on Count V; and thirty years' imprisonment for the sexual battery conviction on Count VI; all sentences were ordered to run consecutively to all other sentences imposed. Id. at 575.

¶ 7. Loden's direct appeal was found meritless. Id. at 575. In addition, Loden's three previous petitions for PCR have all either been denied or dismissed. Id. ; Loden v. State , 43 So.3d 365, 376 (Miss. 2010) ( Loden II ); Loden v. State , 222 So.3d 312, 313 (Miss. 2017) ( Loden III ). Loden is also currently a petitioner in a pending federal civil action challenging Mississippi's lethal injection protocol. Jordan v. Hall , No. 3:15CV295HTW-LRA, 2018 WL 1546632 (S.D. Miss. March 29, 2018).

¶ 8. In this fourth petition for post-conviction relief, Loden now argues that MDOC's current lethal-injection protocol violates Mississippi Code Section 99-19-51(1), amended in April 2017, which provides,

The manner of inflicting the punishment of death shall be by the sequential intravenous administration of a lethal quantity of the following combination of substances: (a) an appropriate anesthetic or sedative ; (b) a chemical paralytic agent;
and (c) potassium chloride, or other similarly effective substance, until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice. As used in this section, the term "appropriate anesthetic or sedative" means any substance that, if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain .

Miss. Code Ann. § 99-19-51(1) (Supp. 2018) (emphasis added). Loden argues that midazolam is not "an appropriate anesthetic or sedative" that is "likely to render the condemned inmate unconscious ...." Id.

ISSUE

I. WHETHER MIDAZOLAM IS AN "APPROPRIATE ANESTHETIC OR SEDATIVE" AS DEFINED BY MISSISSIPPI CODE SECTION 99-19-51(1).

STANDARD OF REVIEW

¶ 9. Mississippi Code Section 99-39-27(5) provides that,

[u]nless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by those documents are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application.

Miss. Code Ann. § 99-39-27(5) (Rev. 2015). Mississippi Code Section 99-39-27(7) further provides that the Court, in its discretion, may,

(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted with those documents, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.
(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.

Miss. Code Ann. § 99-39-27(7) (Rev. 2015).

¶ 10. Post-conviction proceedings afford the Court an opportunity "to review those matters which, in practical reality, could not or should not have been raised at trial or on direct appeal." Brown v. State , 798 So.2d 481, 491 (Miss. 2001) (quoting Turner v. State , 590 So.2d 871, 874 (Miss. 1991) ). Loden's petition involves the revised lethal-injection protocol promulgated by MDOC on July 28, 2015, and amended again in November 2017, as well as the revised method-of-execution statute amended in April 2017. Accordingly, the Court may consider Loden's petition because the issue raised in it could not have been raised at trial or on direct appeal. Loden "bears the burden of proof by preponderance of the evidence that he is entitled to post-conviction relief." Lambert v. State , 941 So.2d 804, 811 (Miss. 2006) (internal quotations omitted) (quoting McClendon v. State , 539 So.2d 1375, 1377 (Miss. 1989).

¶ 11. In cases in which a petitioner and the State produce contradictory affidavits in post-conviction proceedings, this Court has held that, "where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required. " Gable , 748 So.2d at 706.

DISCUSSION

¶ 12. In this case, Loden and the State have produced contradictory affidavits regarding whether a 500-milligram dose of midazolam is an appropriate anesthetic or sedative. But one need not examine the State's competing affidavit to find that Loden's petition for post-conviction relief fails to present a substantial showing of the denial of a state or federal right. Miss. Code Ann. § 99-39-27(5). Loden offers multiple affidavits of Craig W. Stevens, Ph.D., who meanders through a series of contradictory, speculative assertions about midazolam, from criticizing the State's definition of "appropriate anesthetic or sedative" (while simultaneously conceding that midazolam satisfies that definition), to criticizing the ability of a 500-milligram dose of midazolam to induce unconsciousness without citing a single scientific publication or study involving such a dose to support his argument. Loden has not carried his burden of proof that he is entitled to post-conviction relief, irrespective of the contradictory affidavit presented by the State.

¶ 13. Stevens opines that midazolam does not satisfy the State's definition of an "appropriate anesthetic or sedative" under Section 99-19-51. Stevens criticizes midazolam as the first drug in MDOC's lethal-injection protocol on two theories. First, Stevens asserts that midazolam does not comply with the statute's definition of "appropriate anesthetic or sedative," arguing that midazolam does not produce "general anesthesia." Second, Stevens opines that the "ceiling effect" of midazolam prevents the drug from changing from a sedative into a general anesthetic. Additionally, Stevens challenges MDOC's preparation and administration of the IV, the actual dose of midazolam to be administered, the lack of a saline flush, and the method of checking consciousness.

¶ 14. Stevens does not dispute that midazolam is a sedative as prescribed in the statute. Indeed, Stevens admits that midazolam is part of the sedative-hypnotic class of drugs, and that sedative-hypnotic drugs have largely replaced barbiturates, which he admits "reliably produce anesthesia," in clinical therapeutics. Despite these concessions, Stevens surmises that the legislative intent of the word "or" in the phrase "anesthetic or sedative" requires an equivalency between anesthetic drugs and sedative drugs; he concludes that the two are not equivalent. Stevens offers that midazolam is not an anesthetic drug because it cannot produce the state of general anesthesia. Stevens continues, opining that midazolam is a sedative, which "by its very nature and definition, cannot meet the criteria of an appropriate drug that is likely to render the inmate unconscious" and "impervious to pain." Stevens offers that the second and third drugs, if not given with a state of general anesthesia produced by the first drug, would be severely painful and cause suffering. Stevens, despite not sharing the education, practical experience, or training of an anesthesiologist, then offers that "even under the best circumstances, ... anesthesiologists inducing general anesthesia appear to get it wrong a significant percentage of the time and their patients are not unconscious (or anesthesized) as often as they think." In a final coup de grâce , Stevens offers that the lethal-injection statute should be modified, stating that, "[t]o be correct and to be in alignment with common pharmacological knowledge," Mississippi Code Section 99-19-51(1)"should be modified to read '(a) an appropriate general anesthetic drug' " as opposed to an "appropriate anesthetic or sedative."

¶ 15. Stevens also opines that midazolam has a "ceiling effect," in which a greater dose will not produce a greater pharmacological effect; yet, he freely concedes that no scientific studies or tests of midazolam's ceiling effect on humans exist. Instead, Stevens opines about midazolam's ceiling effect by extrapolating from studies conducted on cells in laboratory dishes (in vitro ) and studies examining the blood concentration of midazolam in humans who were administered clinical doses of midazolam at five to fifteen milligrams and then offers his ipse dixit opinion about what the concentration of midazolam would be in the human brain after a 500-milligram dose. Stevens concludes that a 200-milligram dose of midazolam is sufficient to reach its ceiling effect.

¶ 16. Stevens's contradictory opinions overwhelmingly belie his assertion that midazolam is not an "appropriate anesthetic or sedative." See Gable , 748 So.2d at 706 (holding that petitioner is not entitled to an evidentiary hearing when petitioner's affidavit is belied by written statements of the affiant to the contrary). Stevens opines that a 500-milligram dose of midazolam cannot render an inmate unconscious, yet in the very same report, Stevens concedes that much smaller doses of midazolam are routinely used for sedation and anesthesia. Stevens himself provided five different uses of midazolam as an anesthetic or sedative: (1) preoperative sedation, (2) outpatient sedation, (3) anesthesia induction, (4) sedation for intubated patients, and (5) co-anesthesia.

¶ 17. Stevens also admits that "the highest-clinically used" dosage of midazolam does "not approach the ceiling effect dosage," admitting that "the usual clinical midazolam IV doses produce brain concentrations that are far below ceiling or plateau effect." In other words, Stevens admits that the highest clinically used dosage of midazolam, which is routinely used for sedation and anesthesia, does not reach the drug's ceiling effect. Furthermore, Stevens admits that no scientific tests, studies, or literature concerning midazolam's ceiling effect on humans following a 500-milligram dosage exist. Additionally, Stevens does not provide any evidence that his own calculation of midazolam's purported ceiling effect was the product of reliable principles and methods.

¶ 18. As to midazolam's effectiveness in inducing unconsciousness, Stevens's affidavits and supplemental reports focus entirely on midazolam's inability to produce "general anesthesia," which is not required under either Mississippi Code Section 99-19-51 or Glossip . Indeed, the statute only requires an appropriate anesthetic or sedative, and Stevens concedes that midazolam is routinely used as both an anesthetic and a sedative. Even if Mississippi's lethal-injection protocol required only anesthetics, Stevens admits that midazolam, among other drugs, has largely replaced barbiturates, which "reliably produce anesthesia" in clinical therapeutics. Stevens defines anesthesia as "the loss of all feeling and is generally meant to be in a state of unconsciousness."

¶ 19. Furthermore, Stevens concedes that midazolam is used for regional anesthesia and actually cites clinical studies in which midazolam was infused until patients became unresponsive to mild prodding or shaking. Stevens further admits that midazolam has been documented to produce a "BIS value" of 65 in surgery patients, which represents "deep sedation." And just like the weakness contained in Stevens's "ceiling effect" argument, Stevens opined that unconsciousness cannot be measured.

¶ 20. As previously stated, "where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required." Gable , 748 So.2d at 706. Having examined Stevens's contradictory, speculative affidavits, the Court finds that the portions of the affidavits related to the efficacy of a 500-milligram dose of midazolam are a "sham" and are without established medical support. Id.

Loden has not carried his burden of proof in presenting a substantial showing of the denial of a state or federal right; therefore, he is not entitled to post-conviction relief. Miss. Code Ann. § 99-39-27(5).

¶ 21. Moreover, Loden is not entitled to post-conviction relief because the United States Supreme Court has already rejected squarely the claims advanced by Loden in his challenge to midazolam.

¶ 22. In Glossip , the United States Supreme Court granted certiorari on an Eighth Amendment challenge to Oklahoma's use of midazolam in its lethal-injection protocol. Glossip , 135 S.Ct. at 2726. Oklahoma's three-drug protocol (like Mississippi's) included a 500-milligram dose of midazolam as the first drug. Id. Four death-row inmates filed a 42 U.S.C. § 1983 challenge, claiming that the use of midazolam violated the Eighth Amendment, because, they alleged, it would not render them unable to feel pain as the second and third drugs were administered. Id. Specifically, the petitioners claimed that a 500-milligram dose of midazolam would not induce or maintain unconsciousness and that its "ceiling effect" prevented midazolam from producing a greater pharmacological effect than a normal dose, the very same arguments presented by Stevens in his affidavits and reports.

¶ 23. The district court held an evidentiary hearing and denied the four prisoners' application for preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The United States Court of Appeals for the Tenth Circuit affirmed. After granting certiorari, the United States Supreme Court affirmed the judgments of the trial and appellate courts and addressed the lack of contrary scientific evidence to support the petitioners' claims:

Petitioners attack the District Court's findings of fact on two main grounds. First, they argue that even if midazolam is powerful enough to induce unconsciousness, it is too weak to maintain unconsciousness and insensitivity to pain once the second and third drugs are administered. Second, while conceding that the 500-milligram dose of midazolam is much higher than the normal therapeutic dose, they contend that this fact is irrelevant because midazolam has a "ceiling effect"-that is, at a certain point, an increase in the dose administered will not have any greater effect on the inmate. Neither argument succeeds.
The District Court found that midazolam is capable of placing a person "at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs." ... This conclusion was not clearly erroneous. Respondents' expert, Dr. Evans, testified that the proper administration of a 500-milligram dose of midazolam would make it a "virtual certainty" that any individual would be "at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from application of the 2nd and 3rd drugs" used in the Oklahoma protocol.... And petitioners' experts acknowledged that they had no contrary scientific proof.... (Dr. Sasich stating that the ability of midazolam to render a person insensate to the second and third drugs "has not been subjected to scientific testing"); ... (Dr. Lubarsky stating that "there is no scientific literature addressing the use of midazolam as a manner to administer lethal injections in humans").
....
Testimony from both sides supports the District Court's conclusion that midazolam can render a person insensate to pain. Dr. Evans testified that although midazolam is not an analgesic, it can nonetheless "render the person unconscious and 'insensate' during the remainder of the procedure." ... In his discussion about the ceiling effect, Dr. Sasich agreed that as the dose of midazolam increases, it is "expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness)." ... Petitioners argue that midazolam is not powerful enough to keep a person insensate to pain after the administration of the second and third drugs, but Dr. Evans presented creditable testimony to the contrary.... (testifying that a 500-milligram dose of midazolam will induce a coma). Indeed, low doses of midazolam are sufficient to induce unconsciousness and are even sometimes used as the sole relevant drug in certain medical procedures. Dr. Sasich conceded, for example, that midazolam might be used for medical procedures like colonoscopies and gastroscopies....
Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery, but there are two reasons why this is not dispositive. First, as the District Court found, the 500-milligram dose at issue here "is many times higher than a normal therapeutic does of midazolam." ... The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution. We recognized this point in Baze [v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ], where we concluded that although the medical standard of care might require the use of a blood pressure cuff and an electrocardiogram during surgeries, this does not mean those procedures are required for an execution to pass Eighth Amendment scrutiny....
....
Petitioners assert that midazolam's"ceiling effect" undermines the District Court's finding about the effectiveness of the huge dose administered in the Oklahoma protocol. Petitioners argue that midazolam has a "ceiling" above which any increase in dosage produces no effect. As a result, they maintain, it is wrong to assume that a 500-milligram dose has a much greater effect than a therapeutic dose of about 5 milligrams. But the mere fact that midazolam has such a ceiling cannot be dispositive. Dr. Sasich testified that "all drugs essentially have a ceiling effect." ... The relevant question here is whether midazolam's ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs.
Petitioners provided little probative evidence on this point, and the speculative evidence that they did present to the District Court does not come close to establishing that its factual findings were clearly erroneous. Dr. Sasich stated in his expert report that the literature "indicates" that midazolam has a ceiling effect, but he conceded that he "was unable to determine the midazolam dose for a ceiling effect on unconsciousness because there is no literature in which such testing has been done." ... Dr. Lubarsky's report was similar, ... and the testimony of petitioners' experts at the hearing was no more compelling. Dr. Sasich frankly admitted that he did a "search to try and determine at what dose of midazolam you would get a ceiling effect," but concluded: "I could not find one." ... The closest petitioners came was Dr. Lubarsky's suggestion that the ceiling effect occurs "[p]robably after about ... 40 to 50 milligrams," but he added that he had not actually done the relevant calculations, and he admitted: "I can't tell you right now" at what dose the ceiling effect occurs....We cannot conclude that the District Court committed clear error in declining to find, based on such speculative evidence, that the ceiling effect negates midazolam's ability to render an inmate insensate to pain caused by the second and third drugs in the protocol.

Glossip , 135 S.Ct. at 2740-43 (internal citations and emphasis omitted). The United States Supreme Court also noted that numerous courts have examined similar challenges to midazolam but have ultimately concluded "that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride." Glossip , 135 S.Ct. at 2739.

¶ 24. Based on the above holdings in Glossip , Loden's petition fails. Like the petitioners in Glossip , Loden's filings lack contrary scientific evidence to support his challenge to midazolam. Furthermore, Loden's expert, Stevens, has failed to present any new argument that was not already considered and rejected by the United States Supreme Court. Indeed, like the petitioners in Glossip , Stevens attacks MDOC's use of midazolam on two main grounds: (1) that midazolam is incapable of rendering an inmate unconscious, and (2) that midazolam's "ceiling effect" renders the drug's effect no greater than normal therapeutic doses. Stevens provides nearly identical expert opinions and conclusions to those offered in Glossip . The United States Supreme Court expressly rejected those arguments, opinions, and conclusions as speculative, because the petitioners had not offered contrary scientific proof to support their challenge to midazolam. See Glossip , 135 S.Ct. at 2741 (noting expert's testimony that, to a virtual certainty, any individual would be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from application of the second and third drugs after administering a 500-milligram dose of midazolam ). Here, too, Stevens's opinions concerning the ceiling effect of midazolam and its ability to induce unconsciousness lack scientific proof supporting Loden's challenge to midazolam and contain the same speculative assertions that the Supreme Court rejected in Glossip . Stevens conceded that no scientific studies or tests of midazolam's ceiling effect on humans exist and freely conceded that "unconsciousness per se cannot be measured." Loden offered no other scientific proof to support his hypothesis that midazolam is not an "appropriate anesthetic or sedative" under Mississippi Code Section 99-19-51(1).

¶ 25. Loden attempts to distinguish Glossip , arguing that the Supreme Court merely held that the district court "did not abuse its discretion in denying a preliminary injunction." Loden argues that, if MDOC's argument is correct-that is, if the Supreme Court held that midazolam is clearly sufficient to induce unconsciousness and render an inmate insensate to pain, then "the case would be over." Loden asserts that, because Glossip is still proceeding in Oklahoma, the Supreme Court's holding is not dispositive. This argument is without merit. The Supreme Court's analysis began with holding that "this case turns on whether petitioners are able to establish a likelihood of success on the merits" of their challenge to midazolam. Glossip , 135 S.Ct. at 2737 (emphasis added). The Supreme Court then examined the petitioners' substantive arguments against the use of midazolam-the same arguments made by Stevens for Loden-and specifically rejected them, affirming the district court's and the Tenth Circuit's holding that midazolam is capable of placing a person "at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs." Id. at 2740. Because Loden has not offered any contrary scientific proof to support his challenge to midazolam, we hold likewise. Pursuant to the United States Supreme Court's holdings in Glossip , a 500-milligram dose of midazolam satisfies Mississippi's statutory standard for lethal injection under Mississippi Code Section 99-19-51(1).

¶ 26. Although Loden frames his petition for PCR as a state-law challenge instead of an Eighth Amendment challenge as in Glossip , the underlying claims to support his statutory challenge are the very same claims that were made in Glossip . Loden cannot circumvent the Supreme Court's holding in Glossip -that a 500-milligram dose of midazolam is capable of placing a person "at a sufficient level of unconsciousness" to "render a person insensate to pain[,]" for the Supreme Court's holdings mirror Mississippi's statutory requirement for lethal injection. Glossip , 135 S.Ct. at 2739-41 ; see also Miss. Code Ann. § 99-19-51(1) ("[T]he term "appropriate anesthetic or sedative" means any substance that, if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain."). Glossip dictates the outcome in this case. Loden has not demonstrated otherwise. Loden fails to demonstrate any likelihood of success on the merits to his challenge to midazolam and fails to present a substantial showing of the denial of a state or federal right from MDOC's use of midazolam in its lethal-injection protocol. See Miss. Code Ann. § 99-39-27.

CONCLUSION

¶ 27. For the aforementioned reasons, the Court finds that Loden has failed to demonstrate any likelihood of success on the merits of his challenge to midazolam and has failed to present a substantial showing of the denial of a state or federal right based on MDOC's use of a 500-milligram dose of midazolam in its lethal-injection protocol. Thus, Loden has not demonstrated that he is entitled to post-conviction relief. His petition is denied.

¶ 28. PETITION FOR POST-CONVICTION RELIEF IS DENIED.

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

KING, JUSTICE, DISSENTING:

¶ 29. The sole issue in this case is whether Thomas Loden is entitled to an evidentiary hearing on his petition for post-conviction relief. This Court need not and should not reach the merits of his petition, because he is entitled to an evidentiary hearing in the trial court. Accordingly, I respectfully dissent.

¶ 30. The parties disagree about whether a 500-milligram dose of midazolam is an "appropriate anaesthetic or sedative" that will render Loden "unconscious, so that the execution process should not entail a substantial risk of severe pain" pursuant to state statute. Miss. Code Ann. § 99-19-51(1) (Supp. 2018). Loden presents two affidavits from Dr. Craig Stevens to support his argument that midazolam is incapable of rendering an inmate unconscious and insensate to pain. The State presents Dr. Richard Antognini's affidavit, in which he opines that 500 milligrams of midazolam will render an inmate "completely unconscious and insensate to pain."

¶ 31. When a petitioner and the State produce contradictory affidavits in post-conviction proceedings, an evidentiary hearing should be ordered when the contested facts are material and the affidavit produced by the petitioner is not a "sham." Wright v. State , 577 So.2d 387, 390 (Miss. 1991) ("In order for a contested fact to require an evidentiary hearing it must be material. Moreover, where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required."); see also Neal v. State , 525 So.2d 1279, 1281 n.2 (Miss. 1987) ("Post-conviction actions employ many of the procedural trappings of a civil action.... As in civil actions, we do not resolve genuine issues of material fact by a process of trial by affidavit.").

¶ 32. Loden frames the issue as a "simple matter of enforcing the statutory command." He clarifies that the instant petition does not raise an Eighth Amendment method-of-execution challenge, but is grounded solely in state law.

¶ 33. The majority of cases that discuss midazolam address constitutional arguments. See Glossip v. Gross , --- U.S. ----, 135 S.Ct. 2726, 2739-40, 192 L.Ed.2d 761 (2015). Here, the majority argues that Glossip is instructive to the state-law claim at issue. The Court in Glossip , however, was not presented with a state-law based claim; instead, it considered whether midazolam violates the Eighth Amendment. The petitioners in Glossip were on death row in Oklahoma. Id. at 2735. In contrast to Section 99-19-51's requirement that the State of Mississippi use "an appropriate anesthetic or sedative[,]" Oklahoma's statute does not contain a specific directive. Oklahoma's statute provides, "The punishment of death shall be carried out by the administration of a lethal quantity of a drug or drugs until death is pronounced by a licensed physician according to accepted standards of medical practice." Okla. Stat. Ann. § 1014. Additionally, Glossip was not dispositive regarding midazolam; the district court found that the plaintiffs were not entitled to a preliminary injunction because their claims did not have a substantial likelihood of success; the Supreme Court affirmed this decision, but did not rule that the plaintiffs also should lose the substantive case. Glossip , 135 S.Ct. at 2736, 2746. And, importantly, the Supreme Court was reviewing a more developed record including testimony and documents, not simply affidavits. Id. at 2735. It did not itself weight the expert opinions, as the majority inappropriately does; rather, it found that the trial court was not clearly erroneous in its conclusion regarding midazolam after the trial court held a three-day evidentiary hearing. Id. at 2739. Thus, Glossip is not dispositive regarding whether an evidentiary hearing is warranted on a state-law claim. Indeed, a thorough evidentiary hearing did occur in Glossip , providing the Supreme Court with an adequate record and allowing the district court to decide evidentiary matters and matters of credibility. The majority goes so far as to chastise Dr. Stevens for failing to cite enough "proof" for his conclusion that he was unable to determine the ceiling effect for midazolam, even criticizing him for failing to "provide any evidence" regarding a ceiling effect. Maj. Op. ¶ 17. However, the majority denies the very evidentiary hearing in which Loden and Dr. Stevens would have the opportunity to present proof and evidence under the Mississippi Rules of Evidence. Moreover, in Glossip , the Supreme Court specifically held that the lack of research on non-therapeutic doses of midazolam applies equally to both parties' cases, noting that "because a 500-milligram dose is never administered for a therapeutic purpose, extrapolation was reasonable." Glossip , 135 S.Ct. at 2741.

¶ 34. In addition to sharply criticizing Dr. Stevens for extrapolations that the Supreme Court found acceptable, the majority attempts to paint Dr. Stevens's affidavits as a sham and "contradictory" because "Stevens opines that a 500-milligram dose of midazolam cannot render an inmate unconscious, yet in the very same report, Stevens concedes that much smaller doses of midazolam are routinely used for sedation and anesthesia." Maj. Op. ¶ 16. To hold that these two statements are "contradictory" misrepresents or misunderstands medical terminology, a misunderstanding that might be corrected at an evidentiary hearing. "Unconscious" is defined as "not conscious" and "unconsciousness" is defined as "an imprecise term for severely impaired awareness of self and the surrounding environment; most often used as a synonym for coma or unresponsiveness." Unconscious , PDR Medical Dictionary (3d ed. 2006); Unconsciousness , PDR Medical Dictionary (3d ed. 2006). "Sedation" is defined as "the act of calming, especially by the administration of a sedative" and "sedative" is defined as "calming; quieting" and "a drug that quiets nervous excitement." Sedation , PDR Medical Dictionary (3d ed. 2006); Sedative , PDR Medical Dictionary (3d ed. 2006). "Anesthesia" is defined as a "loss of sensation resulting from pharmacological depression of nerve function." Anesthesia, PDR Medical Dictionary (3d ed. 2006). Clearly, a person can lose some of his sensation (anesthesia ) without becoming unconscious. A person can also become calm (sedative) without becoming unconscious. Dr. Stevens's admission that midazolam is used for sedation and anesthesia in no way contradicts his assertion that it cannot render an inmate unconscious.

¶ 35. In fact, Dr. Stevens was the expert witness for prisoners in the Ohio litigation regarding midazolam, and the trial court found that,

[a]lthough there was no time to conduct a Daubert hearing, Plaintiffs presented an adequate foundation in this hearing which, when coupled with what was presented in January, established a sufficient basis to find Dr. Stevens was qualified to offer opinions on the subjects on which he was presented so as to comply with Fed. R. Evid. 702.

In re Ohio Execution Protocol Litig. , No. 2:11-cv-1016, 2017 WL 5020138 (S.D. Ohio Nov. 3, 2017). In the appeal of that case, the United States Court of Appeals for the Sixth Circuit, while ultimately finding that the petitioners had not proved that midazolam is "sure or very likely" to cause serious pain, conceded that "the plaintiffs have shown some risk that Ohio's execution protocol may cause some degree of pain, at least to some people[,]" a showing made primarily through Dr. Stevens's testimony. In re Ohio Execution Protocol , 860 F.3d 881, 890 (6th Cir. 2017).

¶ 36. Furthermore, the majority parses two phrases out of approximately thirty-five pages of scientific reports and gaslights its readers into thinking that these two phrases, taken out of context, magically render the affidavit so contradictory as to be a sham. The majority's conclusion, which is essentially that any scientist who disagrees with the majority's unscientific opinion on midazolam is a sham, is simply not supported by the expert reports, nor is it supported by caselaw that by and large allows and examines contradictory expert opinions on midazolam. The information upon which Dr. Stevens bases his conclusions does not appear to be a sham, and reasonable minds in the scientific community often disagree regarding issues that cannot be proven to certainty, which is exactly what occurred here. To declare the affidavit a sham and speculatively inadmissible under Daubert and the Rules of Evidence without a hearing and without a full record of scientific testimony goes far beyond the appropriate role of an appellate court. It also seemingly ignores the Supreme Court's warnings that scientific controversies are beyond the expertise of the courts by declaring its scientific opinion to be more informed than that of an actual scientist who other courts have found to be an acceptable expert.

¶ 37. Loden provides a Montana case which addresses a similar deviation-from-state-law challenge, and distinguishes such a claim from a constitutional challenge. Smith v. Montana , No. BDV-2008-303, 2015 WL 5827252 (Oct. 6, 2015). There, the petitioners challenged whether pentobarbital-the drug selected by the Montana Department of Corrections to perform lethal injections-meets the legislative directive that the drug be an "ultra-fast acting barbiturate." Id. at *2 ; see also Mont. Code Ann. § 46-19-103(3). The Montana court went to great lengths to distinguish this state-law challenge from an Eighth Amendment claim:

[I]t is important to clarify the nature of this case. This Court has not been asked and will not make a determination as to whether lethal injection of the Plaintiffs constitutes cruel and unusual punishment. This case is not about the constitutionality or appropriateness of the death penalty in Montana. This case is not about whether the use of pentobarbital in a lethal injection setting is cruel and unusual or if pentobarbital in the doses contemplated by the State of Montana would produce a painless death.... This case is only about whether the drug selected by the Department of Corrections to effectuate the Plaintiffs' lethal injections, pentobarbitol, meets the legislatively required classification of being an "ultra-fast acting barbiturate."

Id. at **1-2. After a hearing, the court found that pentobarbital did not meet Montana's statutory requirements and enjoined the state from using the drug in its lethal injection protocol. Id. at **1-2.

¶ 38. Taking Loden's claim as a state-law challenge-that is, whether midazolam conforms with Section 99-19-51's requirement that the State use "an appropriate anesthetic or sedative" which "is likely to render the [Loden] unconscious, so that the execution process should not entail a substantial risk of severe pain"-he has presented sufficient support to warrant an evidentiary hearing. Loden and the State have produced competing affidavits on a material issue. And, although the State presents a Daubert - style defense to Dr. Stevens's affidavit, his affidavit is not a "sham." Wright , 577 So.2d at 390 ("[W]here an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.").

¶ 39. At this point, the relevant inquiry before the Court is whether Loden is entitled to a hearing. Cf.

Thorson v. State , 76 So.3d 667, 676 n.14 (Miss. 2011) ("the evidence sufficient to warrant the granting of an evidentiary hearing ... in no way permeates the trial judge's testing and weighing of the evidence"); see also Rowland v. Britt , 867 So.2d 260, 262 (Miss. Ct. App. 2003) ("The purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact.").

¶ 40. Loden, through Dr. Stevens's affidavits, has established a prima facie claim. The affidavits are not a "sham." As such, an evidentiary hearing is warranted, especially when considering the heightened standard of review we apply to death penalty cases. See Harveston v. State , 597 So.2d 641, 643 (Miss. 1992) (petition meeting basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that petitioner can prove no set of facts which would entitle him to relief). I would therefore grant Loden's petition and remand to the trial court for an evidentiary hearing.

KITCHENS, P.J., JOINS THIS OPINION.

      Loden's first petition for post-conviction relief was filed in July 2003 and was denied. Loden v. State , 971 So.2d 548, 552 (Miss. 2007). Loden filed a second petition, which was denied in April 2010. Loden v. State , 43 So.3d 365, 401 (Miss. 2010). Loden's third petition was dismissed in May 2017 as moot. Loden v. State , 222 So.3d 312, 313 (Miss. 2017).

      Mississippi employs a three-drug lethal-injection protocol. Miss. Code. Ann. § 99-19-51(1). MDOC's current protocol states that, "[i]n the event of the unavailability of a sufficient quantity of Pentobarbital from available sources, a sufficient quantity of Midazolam will be acquired and administered in the place of Pentobarbital. The Midazolam will be administered in the same serial order as Pentobarbital (Two 50 cc syringes totaling 500 MG)." The revised protocol also requires that, "when three (3) minutes have elapsed following the administration of the first drug in the protocol, the IV Team leader, dressed in a manner to preserve their anonymity shall enter into the room where the offender is located to determine, pursuant to necessary and medically appropriate and approved methods, whether the offender is unconscious." Furthermore, the revised protocol provides that, "[t]hroughout the entire procedure, the IV Team members, and other Execution Team members shall continually monitor the offender using all available means to ensure that the offender remains unconscious and that there are no complications."

      Additionally, the State points out in its response to Loden's petition that Stevens's testimony was recently rejected by the United States Court of Appeals for the Sixth Circuit in In re Ohio Execution Protocol , 860 F.3d 881, 887-88 (6th Cir. 2017). The State notes that the Sixth Circuit found that "Dr. Stevens [sic] 'estimates' regarding the ceiling effect of midazolam were 'highly speculative' and that Stevens'[s] testimony that midazolam could not produce 'general anesthesia' (the same claims asserted here) was contradicted by the fact that the studies he relied on did not involve the 'massive' 500 mg dose such as here." The State notes that "the Sixth Circuit held that Ohio's three-drug protocol including midazolam was not "sure or very likely" to cause serious pain in violation of Glossip ."

      Per the curriculum vitae provided for this litigation, Stevens currently serves as a professor of pharmacology in the department of pharmacology and physiology at the College of Osteopathic Medicine at Oklahoma State University. Stevens is neither a licensed anesthesiologist nor a medical doctor. Stevens has provided litigation assistance as a litigation consultant and expert witness in a number of cases involving pharmacological issues. Stevens states that he has worked with various state departments of corrections, as well as with death-row attorneys in lethal-injection cases. Loden previously offered Stevens's opinions in the pending federal civil action and in his successive petition for post-conviction relief, in which he challenged the use of midazolam under the former version of Mississippi Code Section 99-19-51, which required the first drug to be an "ultra-short acting barbiturate or other similar drug." Loden III , 222 So.3d at 313. Loden offers the same report supplemented by two others authored by Stevens in support of his challenge to MDOC's revised lethal-injection protocol.

      "The manner of inflicting the punishment of death shall be by the sequential intravenous administration of a lethal quantity of the following combination of substances: (a) an appropriate anesthetic or sedative ; ...." Miss. Code Ann. § 99-19-51(1) (emphasis added).

      "[T]he term 'appropriate anesthetic or sedative' means any substance that, if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain." Miss. Code Ann. § 99-19-51(1) (emphasis added).

      "Or: Used to indicate 1. An alternative, usu. only before the last term of a series < cold or hot> < this, that, or the other>." Or , Webster's II New College Dictionary (2001).

      Stevens's suggestion to amend the statute is a form of relief that the trial court cannot grant.

      In one of his affidavits, Stevens opines that researchers utilize a "bispectral analysis," or BIS value, to measure the patient's level of anesthesia. In another affidavit, Stevens states that the BIS method is not universally accepted as a measure of unconsciousness and that it is "not without controversial results." This is yet another example of Stevens's own contradictory assertions, which are contained throughout his affidavits.

      Though not necessary to conclude that Stevens's affidavits are a "sham," the Court has the benefit of the counter-affidavit of Dr. Joseph F. Antognini, M.D., M.B.A., a board-certified medical doctor in the medical specialty of anesthesiology licensed to practice medicine in the State of California. Dr. Antognini received his medical degree from the University of Southern California and currently serves as a clinical professor of anesthesiology and pain medicine at the University of California, Davis-School of Medicine, and as the director of peri-operative services at the University of California, Davis Health System. Dr. Antognini has provided expert testimony in one case over the last four years.
      Dr. Antognini relates that, in practice, the typical therapeutic dose of midazolam is two to three milligrams, and that a dose above five milligrams must be used with extreme caution because of the well-known risks of unconsciousness, respiratory depression, and apnea. He further relates that midazolam has been used for the induction of anesthesia and cites two scientific studies in support. He specifically points out that a 500-milligram dose of midazolam, which is about 100 to 200 times the normal therapeutic dosage, would render a person "completely unconscious and insensate to pain and noxious stimuli." Dr. Antognini cites the "Black Box Warning" of midazolam, which signifies that midazolam can cause respiratory depression, unconsciousness, and death. Further, Dr. Antognini states that "there is only an exceedingly small risk that a person administered a 500[-milligram] dose of midazolam would experience any pain" from the administration of vecuronium bromide and potassium chloride. Dr. Antognini also relates that 500 milligrams of midazolam would produce a state of anesthesia that is considered adequate "for many thousands of surgical procedures performed on a daily basis." Further, Dr. Antognini states that Stevens's hypothesis on the "ceiling effect" of midazolam is erroneous. Applying the Supreme Court's holding in Glossip coupled with his training, knowledge, and experience in performing real-life anesthesia, Dr. Antognini states that the ceiling effect is only germane as to the dosage at which the ceiling effect kicks in. Dr. Antognini states that "the primary medical and scientific issue raised in this case is whether the ceiling effect, if it exists for midazolam, occurs before a person becomes unconscious and insensate to pain and noxious stimuli." Dr. Antognini ultimately concludes that "a purported ceiling effect does not affect midazolam's ability to induce unconsciousness and render a person insensate to pain and noxious stimuli."

      See , e.g. , In re Ohio Execution Protocol , 860 F.3d 881 (6th Cir. 2017) ; Gray v. McAuliffe , No. 3:16CV982-HEH, 2017 WL 102970 (E.D. Va. Jan. 10, 2017) ; Grayson v. Warden , 672 Fed. Appx. 956 (11th Cir. 2016) ; Brooks v. Warden , 810 F.3d 812 (11th Cir. 2016) ; Warner v. Gross , 776 F.3d 721, 723 (10th Cir. 2015) ; Chavez v. Florida SP Warden , 742 F.3d 1267, 1268 (11th Cir. 2014) ; Banks v. State , 150 So.3d 797 (Fla. 2014) ; Howell v. State , 133 So.3d 511 (Fla. 2014) ; Muhammad v. State , 132 So.3d 176 (Fla. 2013).

      In Neal , Justice Robertson explained in his separate opinion that the State should respond to a petitioner's affidavit in PCR proceedings by showing that an evidentiary hearing is not warranted, not by presenting a contradictory affidavit:
      The State appears to be of the view that its function in responding to a post-conviction application is to present counter affidavits which contradict and overcome petitioner's affidavits. But this is not the case at all, for we do not engage in trial by affidavits here any more than any other proceeding. The State would be better advised to direct its responses to the idea that an evidentiary hearing is not required, that is, to the proposition that either the petitioner's showing is not in proper form or that the facts he alleges are supported by affidavits suggesting no reasonable possibility that at an evidentiary hearing [the petitioner] may be able to establish a claim for relief from his sentence or conviction. The counter affidavit process is at the very earliest one in which the State should engage in connection with a motion for summary judgment. Miss. Code Ann. § 99-39-19(2) (Supp. 1986).
      Neal , 525 So.2d at 1287 (Robertson, J., concurring in part, dissenting in part).

      "[A]fter discovery, the District Court held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court heard testimony from 17 witnesses and reviewed numerous exhibits." Id. at 2735.

      In an attempt to bolster its finding that Dr. Stevens's affidavit is a sham, the majority misrepresents the findings of the Sixth Circuit. After an evidentiary hearing , the Sixth Circuit took no issue with Dr. Stevens's qualifications and even credited his testimony, but simply determined that it did not meet the legal standard the plaintiff was required to meet. Crediting Dr. Stevens's testimony is a far cry from determining that his affidavit is so untrustworthy as to be a sham. The majority appears to find that whenever two experts disagree, the expert who "loses" automatically becomes a scientific sham. Such a ruling is dangerously contrary to science and the law. Further, the majority's misrepresentations of caselaw and the affidavit actually bolster the notion that an evidentiary hearing is needed, because the majority factfinds and makes misrepresentations and leaps from facts to determine that the affidavit is a sham.

      In fact, in Glossip , the petitioners challenged the state's expert, who was a doctor of pharmacy, claiming that inconsistencies in his testimony existed. The district court denied the Daubert challenge, and the Supreme Court upheld that decision.

      Because execution is final, it "weighs in favor of hearing plaintiffs' claims." McGehee v. Hutchinson , No. 4:17-cv-00179 KGB, 2017 WL 1381663, at *1 (E.D. Ark. April 15, 2017). A review of the caselaw indicates that courts generally hold evidentiary hearings regarding midazolam claims.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Tracy Marie Miles WILLIAMS v. Brent Reid WILLIAMS
    NO. 2017-CA-01476-SCT
    Supreme Court of Mississippi.
    January 17, 2019 Rehearing Denied March 7, 2019
    ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW, VANESSA WINKLER PRICE, Southaven
    ATTORNEY FOR APPELLEE: LUTHER PUTNAM CRULL, JR.
    BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶1. This appeal and cross-appeal arise from a judgment of divorce in the DeSoto County Chancery Court. At the trial of this matter, the chancellor granted Brent and Tracy Williams an irreconcilable-differences divorce and resolved the issues upon which the parties could not agree. At issue in the direct appeal is (1) whether the chancellor erred by not providing Tracy a set visitation schedule with their teenage son, (2) whether the chancellor erred in requiring Tracy to pay child support, (3) whether the chancellor erred in the valuation of the Williams's business interests, and (4) whether the chancellor erred in finding an airplane and a boat to be marital property. On cross-appeal, the issue is whether the chancellor erred by not ordering Tracy to make monthly payments to Brent on his $1 million judgment award. Finding no merit to the assignments of error on appeal or cross-appeal, we affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶2. Brent and Tracy married on March 5, 1993, and separated on September 1, 2013. The parties had three children, two of whom are emancipated. The youngest child, Kendall Williams, was fourteen years old at the beginning of this matter and seventeen years old by the time the chancellor ruled. At present, he is eighteen years old, attending IMG Academy, an advanced multi-sport and educational institution in Bradenton, Florida, and is not living with either parent.

¶3. On October 3, 2013, Brent filed his complaint for divorce. Discovery ensued, and the matter was ultimately tried over the course of five days on January 9, 2015, May 8, 2015, July 2, 2015, August 31, 2015, and October 15, 2015. The chancellor ruled from the bench on January 9, 2017, and entered the judgment of divorce on February 1, 2017.

¶4. On February 9, 2017, Tracy filed a motion to alter or amend the judgment, and Brent filed a response and counter-motion the following day. On October 2, 2017, the chancellor denied the post-trial motions. Aggrieved, Tracy now appeals to this Court, and Brent cross-appeals.

LAW AND ANALYSIS

I. Standard of Review

¶5. "This Court will not disturb a chancellor's judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Chapel v. Chapel , 876 So.2d 290, 292 (Miss. 2004) (quoting Townsend v. Townsend , 859 So.2d 370, 371-72 (Miss. 2003) ). Under this standard of review, our purpose is to determine whether the chancellor's ruling was supported by credible evidence, not whether we agree with that ruling. Lee v. Lee , 798 So.2d 1284, 1290 (Miss. 2001). "However, we review the chancellor's interpretation and application of the law de novo." Marshall v. Gipson Steel, Inc. , 806 So.2d 266, 270 (Miss. 2002) (citing In re Will of Carney , 758 So.2d 1017, 1019 (Miss. 2000) ).

II. Whether the chancellor erred by not providing Tracy a set visitation schedule.

¶6. "The chancellor has broad discretion when determining appropriate visitation and the limitations thereon." Harrington v. Harrington , 648 So.2d 543, 545 (Miss. 1994) (citing White v. Thompson , 569 So.2d 1181 (Miss. 1990) ). "When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child." Id. At the trial of this matter, the chancellor ruled,

Mom can have visitation with the child to be agreed upon between Mom and the child. The Dad is ordered not to interfere with the visitation, but, as I stated earlier, Mom's actions and her continued actions and interference with this child have caused this alienation. It is not Dad's fault, and so, I am not placing a burden - I'm not giving you a specific visitation schedule because I'm not placing a burden on Dad to make this child visit.

¶7. Tracy argues that the chancellor erred by allowing a child to set visitation at his discretion. While the chancellor acknowledged that her ruling on visitation was different from her normal practice, she found that Kendall's desires and wishes should be taken into consideration. Trial revealed that Tracy had removed Kendall's possessions, furniture, and rifle from the marital home, as well as his money jug containing $800. The court found that Kendall had viewed his mother's actions as a personal affront. Tracy refused to provide Kendall the necessary documentation to complete driver's education, to receive a passport so he could travel outside the United States with the USA baseball team, or to transfer from Magnolia Heights School to a DeSoto County school for better baseball opportunities. The chancellor stated, "Quite honestly, I think she's done some things that I think indicate that she's much more interested in getting her own way than in thinking about what's in the best interest of her child."

¶8. Tracy correctly stated that this Court has made it clear that the objective of visitation is that "the non-custodial parent ... and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house." Dunn v. Dunn , 609 So.2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick , 523 So.2d 79, 83 (Miss. 1988) ). However, this Court has also found that, while a non-custodial parent is presumptively entitled to visitation as stated in Griffin v. Griffin , that presumption can be overcome when "substantial evidence" justifies doing so. Griffin v. Griffin , 237 So.3d 743, 747 (Miss. 2018) (quoting Cox v. Moulds , 490 So.2d 866, 870 (Miss. 1986) ). Cf. Newsom v. Newsom , 557 So.2d 511, 517 (Miss. 1990) (emphasis removed) (holding "that the chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law").

¶9. In Griffin , the chancellor denied a mother visitation with her four daughters because visitation was not in the children's best interests. Griffin , 237 So.3d at 745-46. The mother was incarcerated in the Washington County Correctional Facility in Greenville, Mississippi, four hours away from where the daughters lived. Id. In order to exercise visitation, the daughters would have to be searched and exposed to the prison environment. Id. The chancery court held that the presumption of visitation had been overcome. Id. at 746. "The chancellor considered Nolana's circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad's discretion was the best possible balance between recognizing Nolana's constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls' best interest." Id. at 749 (citing Harrington , 648 So.2d at 545 ). On appeal, this Court affirmed the chancellor's ruling.

¶10. Although the facts of this case differ, the principle that a presumption of visitation can be overcome with sufficient evidence remains the same. Kendall is eighteen years old and is living in Florida to pursue his baseball career. Although the chancellor had only become aware of Kendall's new schooling in Florida just before her ruling, the knowledge did not change her mind about visitation. She stated,

And there is a huge big rift to heal. And I know forcing him to come to your house every other weekend - which you can't do because he's living in Florida, anyway - is not going to fix that situation. And I want y'all to figure out some way - you know, as I said, maybe this time and distance will help fix it.

¶11. Based on the facts presented at trial, this Court finds that the chancellor did not err in declining to set a visitation schedule under these unique circumstances. Given the broad deference afforded chancellors in visitation matters, we affirm the chancellor's ruling. Tracy and Brent can travel to Florida any time to support and to visit Kendall while he pursues his baseball dreams.

III. Whether the chancellor erred in requiring Tracy to pay child support.

¶12. "This Court has said that an award of child support is a matter within the discretion of the chancellor and that determination will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion." Clausel v. Clausel , 714 So.2d 265, 266 (Miss. 1998) (quoting Gillespie v. Gillespie , 594 So.2d 620, 622 (Miss. 1992) ). Furthermore, "[t]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court's review." Id. at 266-67.

¶13. At the trial of this matter, Tracy alleged her adjusted gross income was $1,010.87 in her Uniform Chancery Court Rule 8.05 financial statement, so $1,000 in child support would consume all of her income. Tracy owns a daycare, Kaco's Kids, and, according to the tax returns admitted into evidence at the trial, Tracy's 2013 self-employment earnings were $152,090; her gross earnings were $242,763 per year, or $20,230.25 per month, in 2013. She testified that she paid over $15,000 to pay off the note on Tennessee property that she and Brent owned. She purchased a new home in October 2015. She refused to allow Brent to sell timber on the Tennessee property in order to pay the Tennessee's property's remaining debt and instead paid the note herself. Tracy's daughter Kaitlyn testified that Tracy told her she had purchased an airplane and a boat.

¶14. While the standard for child support for one child is 14 percent of the adjusted gross income, pursuant to Mississippi Code Section 43-19-101 (Rev. 2015), a court may impute income to a payor whose reported income is clearly inadequate to support his or her actual lifestyle. See Deborah H. Bell, Deborah H. Bell on Family Law § 10.04[4][c] (1st ed. 2005). In Dunn v. Dunn , on remand, a chancellor found that a father was not being honest about his ability to pay child support. Dunn v. Dunn , 695 So.2d 1152, 1156 (Miss. 1997). "The record reflects circumstances which do substantiate doubts about Michael's inability to pay ... his willingness to partake in various entertainment activities ...." Id. This Court affirmed the ruling of the chancellor, because the child support amount exceeded the statutory guidelines. Id.

¶15. The Court in Dunn analogized Grogan v. Grogan , in which this Court had held that a child-support award in excess of the statutory guidelines is appropriate when the chancellor is unsure about the father's true earning potential. Dunn , 695 So.2d at 1157 (citing Grogan v. Grogan , 641 So.2d 734, 741 (Miss. 1994) ). The Grogan Court had found that the chancellor did not err in imputing income to the father when evidence showed that he was not being truthful about his finances. Id.

¶16. Here, the chancellor found that "Mom is obviously ... she is making quite a great deal of money." Based on the evidence, the record does not support her claim that her adjusted-gross income is $1,010.87; therefore, the chancellor properly imputed additional income to Tracy.

¶17. Tracy makes other arguments to contest the child-support award, but this Court finds these are without merit. Tracy argues that Kendall has no expenses. Although Kendall has a full scholarship to attend IMG Academy, which costs $78,000 a year, Brent is still responsible for $4,600 of Kendall's other expenses, and the court found that Tracy should contribute. From the date Brent and Tracy separated, Tracy has not paid any child support for Kendall. Tracy argues that child support can be suspended during college and/or forfeited due to the child's conduct; however, the chancellor already determined that Tracy would not be required to pay half of the college expenses if the child does not have a viable relationship with her. The Court is unpersuaded by Tracy's attempt to argue that she needs a visitation schedule while simultaneously arguing she should not have to support the child who does not want to visit her. Accordingly, the chancellor did not err in requiring Tracy to pay child support in the amount of $1,000 per month.

IV. Whether the chancellor erred in the valuation of the Williams's business interests.

¶18. Tracy argues that the chancellor erred in the valuation of the Williams's business interests by using Brent's submitted documents; however, she failed to offer any evidence at trial related to the valuations. The chancellor requested that the parties submit a list of the assets, values, and debts on two separate occasions. At trial, Tracy failed to list or value the assets of the businesses, while Brent submitted a detailed list. Tracy's financial statement listed the value of her daycare, Kaco's Kids, as unknown. Further, Tracy argues that the chancellor erred by not appointing an expert to opine about the true current valuations of the property due to depreciation, although Tracy never requested that the Court appoint an expert.

¶19. While we note that "expert testimony may be essential to establish valuation sufficient to equitably divide property, particularly when the assets are diverse ...," Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994), we also recognize and "reiterate the principle that findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties' 8.05 financial disclosures, in the testimony, or in other evidence." Horn v. Horn , 909 So.2d 1151, 1165 (Miss. Ct. App. 2005) (quoting Ward v. Ward , 825 So.2d 713, 719 (Miss. Ct. App. 2002) ).

¶20. Here, the record reflects that only Brent attempted to provide the chancellor with evidence regarding the valuations of the parties' business interests, and the chancellor used those valuations as reflected in her opinion. Tracy's argument that the chancellor committed reversible error by not appointing experts to appraise the current valuations due to depreciation is without merit. This Court refuses to blame the chancellor for a party's failure to present sufficient evidence of property valuation. Faced with similar circumstances, we stated the following in Dunaway v. Dunaway :

It is our conclusion that the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.

Dunaway v. Dunaway , 749 So.2d 1112, 1121 (Miss. Ct. App. 1999). As explained in Dunaway , the chancellor's duty is not to obtain appraisals of the marital property. Id. Further, the Dunaway court found that, while expert testimony about property valuations might be helpful in some cases, it is not required, and the chancellor may consider other evidence presented by the parties. Id.

¶21. Tracy did not come forth with expert testimony or any other valuations of the businesses; therefore, the chancellor used the available proof, including Brent's valuations, and arrived at the best conclusion that she could. Accordingly, this Court finds the chancellor did not err in the valuation of the Williams's business interests.

V. Whether the chancellor erred in finding the boat and airplane to be marital property.

¶22. "When the parties request that the chancellor resolve the issue of property division, the chancellor must do three things: (1) classify the parties' assets as marital or separate, (2) value those assets, and (3) divide the marital assets equitably." Burnham v. Burnham , 185 So.3d 358, 361 (Miss. 2015) (citing Wheat v. Wheat , 37 So.3d 632, 637 (Miss. 2010) ). In Hemsley v. Hemsley , this Court held that "[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside the marriage." Hemsley v. Hemsley , 639 So.2d 909, 914 (Miss. 1994). Ferguson established that gifts and inheritances received during marriage are separate property. Ferguson , 639 So.2d at 929.

¶23. Tracy argued that the chancellor erred in ruling that the boat and airplane are marital property because her mother gave her a gift of money in the form of a Certificate of Deposit that she later cashed to purchase the boat and airplane; therefore, Tracy claims the boat and airplane were gifts or inheritances. The chancellor was unconvinced. At trial, Tracy testified that her mother wanted to leave her something before she died, so she used her mother's cash to buy the airplane. However, Tracy's daughter Kaitlyn testified that Tracy originally told her that she had purchased the plane and the boat but that she then "changed her tune and said that the plane was bought by her mother and that it was really her mother's." Kaitlyn further testified that her grandmother does not have a lot of money. Tracy did not call her mother to testify to verify her testimony or to introduce any supporting documents. A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson , 824 So.2d 623, 625-626 (Miss. 2002) (citations omitted). This Court holds that the chancellor's findings of fact are not erroneous.

VI. Whether the chancellor erred in failing to order Tracy to make monthly payments on the $1 million judgment.

¶24. During the marriage, Tracy ran a daycare, and Brent ran a construction company. The chancellor, in distributing the assets, awarded each party their individual businesses. Due to an inequality in the value of the assets, however, the chancellor granted Brent a judgment and lien against Tracy's business for $1 million at 2 percent interest that would not be executed upon for ten years.

¶25. On appeal, Brent argues that having to wait ten years to execute on the judgment places him in the position of having a right without a remedy, thus his chances of ever receiving the judgment are nonexistent without a present right to collect or enforce payment. The chancellor, considering the immense debt and absence of liquid assets in Kaco's Kids, found that Tracy could not begin paying on the judgment. Further, allowing Brent to immediately execute on the judgment would force Kaco's Kids into liquidation.

¶26. For additional security on the $1 million judgment in the interim, the chancellor ordered that Tracy maintain Brent as the named beneficiary on her $1 million life-insurance policy. The chancellor stated, "If she pays something down on the judgment that he has, then as the balance reduces owed to Brent then, likewise, the amount of life insurance that you have to keep on your life will go down." Without an abuse of discretion, manifest error, or application of an erroneous legal standard, this Court will not disturb the chancellor's findings and, as such, affirms the chancellor's ruling.

CONCLUSION

¶27. This Court holds that the chancellor's ruling on all five issues in the appeal and cross-appeal are supported by credible evidence and, given the broad deference afforded chancellors, this Court affirms the chancellor's ruling.

¶28. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Edward A. HYDE and Pattie Hyde v. Linus Baxter MARTIN, III, M.D. and Rush Medical Foundation d/b/a Rush Foundation Hospital
    NO. 2017-CA-00822-SCT
    Supreme Court of Mississippi.
    January 31, 2019 Rehearing Denied March 21, 2019
    ATTORNEY FOR APPELLANTS: WALTER C. MORRISON, IV, RIDGELAND
    ATTORNEYS FOR APPELLEES: KACEY GUY BAILEY, WILLIAM T. MAY, MERIDIAN
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. Edward and Pattie Hyde brought a medical-negligence case based on loss of chance. Their theory was that the treating physician's and hospital's failure to properly test for and timely diagnose Edward's stroke resulted in his not receiving treatment-namely, an injection of Tissue Plasminogen Activator, or "tPA," which they claim would have led to a better stroke recovery.

¶2. The trial court dismissed this claim on summary judgment. On appeal, the Hydes ask this Court to abandon our long-standing precedent on loss of chance. They prefer we allow them to recover for the "reduced likelihood of a recovery." But this Court has been clear "that Mississippi law does not permit recovery of damages because of mere diminishment of the 'chance of recovery.' " Clayton v. Thompson , 475 So.2d 439, 445 (Miss. 1985). Instead, "[r]ecovery is allowed only when the failure of the physician to render the required level of care results in the loss of a reasonable probability of substantial improvement of the plaintiff's condition." Id.

¶3. That said, we find the trial court erred in dismissing the Hydes' claim on summary judgment. Consistent with our loss-of-chance standard, the Hydes presented expert medical testimony that the majority of stroke patients who timely receive tPA experience substantial improvement. Because their expert supported his opinion with medical literature, we find the trial judge abused his discretion by excluding this testimony.

¶4. The Hydes' expert testimony created a material fact dispute over whether the Hydes may recover for loss of chance. We thus reverse the order granting summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Background Facts and Procedural History

I. Edward's Stroke

¶5. In 2014, then fifty-three-year-old Edward went to the Rush Foundation Hospital emergency department with complaints of nausea, vomiting, and right-side numbness and weakness. His wife Pattie claimed Edward also was having difficulty walking and falling to one side. While Dr. Linus Baxter Martin III did not examine Edward personally, Dr. Martin supervised the nurse practitioner who did. The nurse practitioner ordered a CT scan, which according to the radiologist showed "[n]o acute intracranial abnormality." But the radiologist cautioned that if there was a high clinical concern for an acute stroke, then an MRI should be conducted. The nurse practitioner did not order an MRI. And Edward was discharged hours later with a diagnosis of gastroenteritis and hypertension.

¶6. Twelve hours later, Edward returned to the hospital, unable to walk normally. This time the hospital admitted him for a neurological consultation. An MRI was ordered, which revealed Edward had suffered an ischemic stroke. At that point, Edward's treating physician, Dr. James Perkins, noted that administering the clot-buster drug tPA to restore blood flow to Edward's brain was no longer an option. The drug could not be administered because Edward had been experiencing stroke symptoms for more than sixteen hours.

¶7. Edward remained in the hospital for five days. He was then transferred to a rehabilitation facility for ten more days. He left the rehabilitation facility with permanent paresthesia of his right limbs and now cannot walk without a cane or walker.

II. The Hydes' Lawsuit

¶8. Eight months after his stroke, the Hydes sued Dr. Martin and Rush Foundation Hospital. They asserted that Edward had presented to the emergency department with signs of a stroke, but the defendants negligently failed to perform a comprehensive neurological exam, failed to order an MRI and neurology consultation, and failed to administer anticoagulants. Had the defendants conformed to the requisite standard of care, the Hydes claim Edward would not have suffered permanent injuries from his stroke.

¶9. The Hydes designated Dr. Michael Stodard and Dr. Hooman Kamal as their medical experts. Dr. Martin and the hospital moved to limit or exclude both Dr. Stodard's and Dr. Kamal's expert testimony. They claimed the expert opinions were not reliable because the opinions were not supported by medical literature. The defendants also moved for summary judgment on the premise the Hydes' expert testimony would be excluded.

¶10. Following a hearing, the trial court granted Dr. Martin and the hospital's motion for summary judgment. In its memorandum opinion, the court noted both Dr. Stodard and Dr. Kamal were qualified to testify to the standard of care and breach. But their opinions on causation did not appear to comport with the medical literature. Specifically, the trial court rejected Dr. Kamal's testimony, based on the Emberson study, that the overall odds of a better outcome for patients who receive tPA is 75 percent better than those who did not receive tPA. According to Dr. Kamal, "patients who receive tPA have a substantially better rate of neurological functioning than the patients" who did not receive the drug. When asked, Dr. Kamal was not able to name a study showing that tPA has an absolute benefit of more than 50 percent for a patient who is a candidate for tPA. Instead, he responded that those types of studies do not work in this type of case because there is a spectrum of disability, not 100 percent disability versus 0 percent disability.

¶11. The trial court found Dr. Kamal's testimony unsupported by the medical literature. Consequently, the judge found the Hydes had presented "no actual evidence that [Edward] would have a greater than 50% chance of a better result than was obtained[,] which is the standard under Mississippi negligence law." Thus, the court ruled there was no genuine issue of material fact about causation, entitling Dr. Martin and the hospital to a judgment as a matter of law.

III. The Hydes' Appeal

¶12. The Hydes timely appealed, arguing the trial court erred in excluding their experts and granting Dr. Martin and the hospital summary judgment.

¶13. The Hydes filed their appeal on the heels of another appeal involving the factually similar claim that the failure to recognize a patient's stroke caused him to lose a chance of recovery. See Norman v. Anderson , 2017-CA-00153-SCT, 262 So.3d 520, 2019 WL 311292 (Miss. Jan. 24, 2019). In their appellate brief, the Hydes adopted the appellants' call in Norman for this Court to reevaluate its loss-of-chance approach set forth in Clayton v. Thompson , 475 So.2d 439 (Miss. 1985), and Ladner v. Campbell , 515 So.2d 882 (Miss. 1987). This Court retained jurisdiction over both appeals to address the appellants' claim that we should change the law.

Standard of Review

¶14. We review the trial court's decision to exclude the Hydes' experts' testimony for abuse of discretion. Mem'l Hosp. at Gulfport v. White , 170 So.3d 506, 508 (Miss. 2015). But we review the court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the summary-judgment motion has been made. Miss. Baptist Med. Ctr., Inc. v. Phelps , 254 So.3d 843, 844-45 (Miss. 2018). Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c).

Discussion

¶15. After review, we find the trial court erred in granting summary judgment to Dr. Martin and the hospital. In doing so, we emphasize that, in permitting the Hydes' tPA-based claim to go forward, we are not changing our law. Instead, we apply the same standard that we have consistently applied for thirty years: "Mississippi law does not permit recovery of damages because of mere diminishment of the 'chance of recovery.' " Norman , 262 So.3d at 524, 2019 WL 311292, at *3 (quoting Clayton , 475 So.2d at 445 ). Rather, "[r]ecovery is allowed only when the failure of the physician to render the required level of care results in the loss of a reasonable probability of substantial improvement of the plaintiff's condition." Clayton , 475 So.2d at 446. Our decision today should not be seen as relaxing, changing, or in any way altering this standard.

I. Mississippi's Loss-of-Chance Doctrine

¶16. Echoing the same argument advanced in Norman , the Hydes cast our approach to loss-of-chance claims as "all or nothing" and contrary to our law on comparative negligence. But we find our current law is neither.

¶17. First, contrary to the law-journal articles and non-Mississippi caselaw the Hydes cite, our approach is not "all or nothing." It is balanced.

¶18. In Clayton , this Court "recognize[d] that the plaintiff is rarely able to prove to an absolute certainty what would have happened if early treatment, referral or surgery had happened." Id. at 445. So our "law does not require the plaintiff to show to a certainty " that treatment would have been 100 percent effective. Id. (emphasis in original) (citation omitted). But neither does our law permit recovery based on the mere possibility of a better outcome. See id. (holding that the jury-instruction's "good chance" of a "greater recovery" language "invited impermissible speculation and conjecture by the jury").

¶19. Between certainty and mere possibility lies reasonable probability , which is exactly what our approach requires. As our precedent dictates, to recover under the loss-of-chance theory, "the plaintiff must prove that, but for the physician's negligence, he or she had a reasonable probability of a substantial improvement." White , 170 So.3d at 508 (citing Clayton , 475 So.2d at 445 ). "Stated another way, the plaintiff must offer proof of 'a greater than fifty (50) percent chance of a better result than was in fact obtained.' " Id. at 509 (quoting Hubbard v. Wansley , 954 So.2d 951, 964 (Miss. 2007) ).

¶20. Second, our approach by no means creates an exception to the comparative-negligence doctrine. Under comparative negligence, the fact that the plaintiff's own negligence may have contributed to his injuries does not itself bar recovery. See Miss. Code Ann. § 11-7-15 (Rev. 2004). And this Court has never barred loss-of-chance-of-recovery claims based solely on the fact the patient may have negligently caused the injury or disease that led him to seek medical care in the first place.

¶21. Importantly, in this case, the alleged injury is not the stroke itself. Rather, it is the loss of the ability to recover from or halt the impact of the stroke based on the failure to timely administer tPA. Under our clear precedent, to recover damages, a plaintiff does not have "to prove to an absolute certainty" that administering tPA would have led to a full recovery. Clayton , 475 So.2d at 445. But neither may a plaintiff recover damages merely based on the possible "chance" tPA may have led to a better outcome. See id. Instead, the plaintiff must show "the failure of the physician to render the required level of care result[ed] in the loss of a reasonable probability of substantial improvement of the plaintiff's condition." Id.

II. The Hydes' Medical Experts

¶22. With this standard in mind, we find the trial court abused its discretion when it excluded the Hydes' medical experts.

¶23. Dr. Kamal testified that Edward was a good candidate for receiving tPA. And for patients who timely receive tPA, Dr. Kamal testified "the overall odds of their outcome are 75% better ... than those who didn't" receive the drug. Unlike the medical expert in the tPA case King v. Singing River Health System , 158 So.3d 318, 325-28 (Miss. Ct. App. 2014), who based his opinion solely on his own experience, which appeared to contradict the medical literature, Dr. Kamal supported his experience-based opinion with medical literature, specifically the Emberson study. According to Dr. Kamal, the data from the Emberson study showed that, when one does not look for perfect recovery, "[t]he vast majority of those [patients who] get tPA see a substantial improvement in their symptoms."

¶24. Despite this, the trial court rejected Dr. Kamal's expert opinion as not being supported by the medical literature. The trial court asked Dr. Kamal to name a study showing that tPA has an absolute benefit of more than 50 percent for a patient who is a candidate for tPA. And because he could not, the trial judge concluded he had no medical literature to support his opinion. But unlike the plaintiff's expert in Norman -who, when pressed by this same trial court to name a study showing the absolute benefit of tPA exceeded 50 percent, conceded that none existed -Dr. Kamal made no such concession. While Dr. Kamal did not challenge these studies as wrong, he did explain why he believed these studies were not helpful-because those studies focused on perfect outcomes, i.e., 0 percent disability versus 100 percent disability. In Dr. Kamal's view, when one does not look for the percentage increase of perfect outcomes, but instead looks at the data on significant improvement, the medical literature does indeed support more than a 50 percent chance of substantial improvement when tPA is administered.

¶25. The "50% threshold," as the trial court dubbed our loss-of-chance standard, does not require a perfect result. Again, our law permits recovery based on a "reasonable probability of substantial improvement," which we have defined as "a greater than fifty (50) percent chance of a better result than was in fact obtained." White , 170 So.3d at 508-09 (emphasis added). Thus, we find the trial court abused its discretion by applying to the Hydes' expert testimony a higher standard than our law requires. To the extent Dr. Martin and the hospital challenge Dr. Kamal's opinion on the reasonable probability that those who receive tPA substantially improve, we find this sets up a classic battle of the experts for the fact-finder to resolve, not a barrier to Dr. Kamal's testimony. See White , at 509 (holding that the case "present[ed] nothing more than a classic example of a 'battle of the experts,' " with the plaintiff offering expert testimony that "supported a reasonable probability of a substantially better outcome," and the defendant offering "expert testimony that supported only a potential chance of a substantially better outcome").

¶26. Because Dr. Kamal sufficiently supported his expert opinion with medical literature, his testimony should not have been excluded. Nor should have Dr. Stodard's, because his testimony focused on the alleged breach of the standard of care and what treatment options would have been available-including, but not limited to, administering tPA-had Mr. Hyde, in his view, been properly neurologically evaluated.

III. Trial Court's Grant of Summary Judgment

¶27. For this reason, we reverse the trial court's grant of summary judgment in favor of Dr. Martin and the hospital.

¶28. The elements essential to a medical-negligence claim are (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant. White , 170 So.3d at 508. "To prove these elements in a medical malpractice suit, expert testimony must be used, and the expert must articulate and identify the standard of care that was breached and establish that the breach was the proximate cause, or proximate contributing cause, of the alleged injuries." Id. (citations omitted). And, as already discussed, when the alleged injury is loss of chance, to satisfy the causation element, the plaintiff, through his expert, must prove, "but for the physician's negligence, he ... had a reasonable probability of a substantial improvement." Id.

¶29. Through Dr. Stodard's and Dr. Kamal's expert testimony, the Hydes met their burden to produce evidence establishing a fact question on each element of their loss-of-chance claim-including causation. See Karpinsky v. Am. Nat. Ins. Co. , 109 So.3d 84, 89 (Miss. 2013). Thus, summary judgment under Mississippi Rule of Civil Procedure 56(c) should not have been granted to the defendants. We reverse the trial court's judgment and remand the case to the trial court for further proceedings consistent with this opinion.

¶30. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. CHAMBERLIN, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶31. I agree with the majority to the extent that the circuit court abused its discretion in excluding the Hydes' experts and, as a result, erred in granting summary judgment in favor of Dr. Martin and the hospital. However, I would not reach the Hydes' request to modify our loss-of-a-chance doctrine. The Court grants relief to the Hydes under existing Mississippi law, and I would limit our discussion to that issue. Therefore, I concur in result only.

KING, J., JOINS THIS OPINION.

      TPA is usually most effective when administered within the first three hours after the onset of stroke symptoms.

      Dr. Stodard is board certified in family medicine and practiced emergency medicine for twenty-five years.

      Dr. Kamal is board certified in neurology and neurological care, with experience providing neurological consultations to emergency patients. Since 2011, he has served as both an attending physician to the stroke service and a neurology professor at the New York Presbyterian Hospital/Weill Cornell Medical Center.

      Jonathan Emberson, et al. , Effect of treatment delay, age, and stroke severity on the effects of intravenous thrombolysis with alteplase for acute ischaemic stroke : a metaanalysis of individual patient data from randomised trials , 384 The Lancet 1929 (Nov. 29, 2014). This study examined the data from nine randomized trials that compared tPA versus a placebo or open control in 6,756 patients.

      The Hydes also asserted their appeal involved an issue of first impression-whether in a tPA case a claimant can ever overcome the "50% threshold."

      We note this was not the case with the plaintiff's expert in Norman , who according to record in that case, conceded the patient was a "risky, risky" candidate for tPA and that it would not have been a breach of the standard of care to decide not to administer the drug within the critical window.

      See note 4, supra .

      Norman , 262 So.3d at 525-27, 2019 WL 311292, at **4-5.

      See King , 158 So.3d at 326 ("conclud[ing] that where a theory has been studied in the medical literature and an expert's opinion is challenged for being contrary to the medical literature, there must be some support in the medical literature for a medical expert's opinion or some basis for believing that the medical literature is wrong").

      I raised this similar point in my dissent in Norman v. Anderson , 2017-CA-00153-SCT, 262 So.3d 520, 2019 WL 311292 (Miss. Jan. 24, 2019).

      See, e.g. , Frierson v. State , 606 So.2d 604, 608 (Miss. 1992) (Banks, J., concurring in result only) ("I concur in the result reached by the majority .... Because[ ] I disagree with some of the conclusions expressed in the balance of the majority opinion and because, in my view, the discussion of those issues is unnecessary to the disposition of the case, I write separately to note that concurrence.").