IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00052-COA
EMERGENCY MEDICINE ASSOCIATES OF APPELLANTS/CROSS-
JACKSON, PLLC AND JOHN BROOKS, M.D. APPELLEES
v.
ANITA GLOVER, AS NATURAL MOTHER AND APPELLEE/CROSS-
NEXT FRIEND OF HER MINOR SON, TONY APPELLANT
GLOVER
DATE OF JUDGMENT: 12/20/2012
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: J. COLLINS WOHNER JR.
WALTER T. JOHNSON
JOSEPH GEORGE BALADI
JOHN BURLEY HOWELL III
ATTORNEYS FOR APPELLEE: ROBERT FARLEY WILKINS
BARRY W. HOWARD
DAVID NEIL MCCARTY
BENJAMIN HOUSTON WILSON
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION: JURY VERDICT AGAINST
APPELLANTS/CROSS-APPELLEES FOR
$1,500,000 IN ECONOMIC DAMAGES, AND
$2,000,000 IN NONECONOMIC DAMAGES,
REDUCED TO $500,000 IN ACCORDANCE
WITH STATUTORY DAMAGES CAP
DISPOSITION: REVERSED AND REMANDED: 04/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, P.J., FOR THE COURT:
¶1. Anita Glover filed a medical-malpractice lawsuit on behalf of her son, Anthony
Glover (Tony), for injuries he sustained from the application of a topical prescription drug.
A jury returned a verdict finding Dr. John Brooks and Emergency Medicine Associates of
Jackson (EMA) seventy-five percent liable and Marty’s Pharmacy1 twenty-five percent liable.
The Hinds County Circuit Court reduced the amount of economic damages according to the
jury’s apportionment of fault and the noneconomic damages according to Mississippi Code
Annotated section 11-1-60(b) (Rev. 2014). Dr. Brooks and EMA appeal, and Anita cross-
appeals. We find reversible error and remand for further proceedings.
FACTS
¶2. In November 2010, Tony complained of a persistent, itchy rash. On November 23,
2010, Anita took Tony to the University of Mississippi Medical Center (UMMC). A UMMC
pediatric resident, Dr. Shameka Hudson, evaluated Tony in the emergency room. Dr.
Hudson determined that Tony suffered from an allergic reaction, causing a rash and itching.
Dr. Benjamin Dillard, Dr. Hudson’s attending physician, concurred with Dr. Hudson’s
assessment. Dr. Hudson prescribed an antihistamine and sent Tony home.
¶3. On December 4, 2010, Tony continued to complain about the rash. Anita took him
to the emergency room at Baptist Hospital. Dr. Brooks evaluated Tony. Dr. Brooks was an
employee of EMA, and EMA had a contract with Baptist to staff its emergency room.
¶4. Dr. Brooks diagnosed Tony with molluscum contagiosum and dermatitis from Tony’s
scratching. Molluscum contagiosum is a viral infection of the skin, with small wart-like
1
In the final verdict, only Brooks and EMA remained as defendants in the case.
Pharmakeus Inc. (d/b/a Marty’s Pharmacy) and its pharmacists were dismissed before trial.
The other named defendants in the complaint were dismissed with prejudice prior to trial.
2
bumps that contain a central dimple. To treat the molluscum contagiosum, Dr. Brooks wrote
a prescription for Verr-Canth. Dr. Brooks wrote on the prescription to “apply as directed by
[the] pharmacy” and released Tony without further instructions on the medication.
¶5. Anita attempted to fill the Verr-Canth prescription at a retail pharmacy. She was
redirected to Marty’s Pharmacy, a specialty compounding pharmacy, because Verr-Canth
was not commercially available. Anita took the prescription to Marty’s Pharmacy, which
also stated it did not carry Verr-Canth. However, Marty’s Pharmacy could create or
compound a similar medication using a substance called cantharidin.
¶6. Anna Heindl, a pharmacist at Marty’s Pharmacy, received the prescription. Heindl
could not read the writing on the prescription, and she called Dr. Brooks to confirm the
medication. When Dr. Brooks stated he wrote the prescription for Verr-Canth, Heindl
replied she did not know about that particular medication. Dr. Brooks then recommended
cantharidin and told Heindl to create a lotion, or solution if a lotion was not available, that
contained 0.7% cantharidin. Dr. Brooks did not give any further instructions. Marty’s
Pharmacy filled the prescription with instructions to “apply as directed” and to repeat in three
weeks.
¶7. On December 6, 2010, Anita applied the medication to Tony’s body. Anita used the
medication generously and covered large parts of Tony’s torso, arms, and feet. Tony went
to bed and woke up in the middle of the night with extreme pain and blistering of his skin.
¶8. Anita took Tony to Baptist again on December 7, 2010. Baptist transferred Tony to
UMMC for burn care. At UMMC, Dr. Kim Paduda assessed Tony. Dr. Paduda determined
3
that Tony received burns from the application of the medication. Dr. Paduda completed a
thorough physical examination of Tony, but could not find any indications of molluscum
contagiosum.
¶9. After providing initial treatment, Dr. Paduda decided to transfer Tony to a burn unit
in Georgia for further care on December 8, 2010. The physicians in Georgia concluded that
Tony suffered second degree-burns over sixteen percent of his body due to the use of the
medication. Tony was released from the burn center on December 11, 2010.
¶10. On December 15, 2010, Tony began his follow-up treatment at Crossgates River Oaks
Hospital with Dr. William Lineaweaver as his physician. Tony visited Crossgates on
December 22, 2010, December 28, 2010, December 30, 2010, January 12, 2011, February
9, 2011, and May 11, 2011. The May 11, 2011 visit was the last time Tony sought medical
treatment for the burns.
PROCEDURAL HISTORY
¶11. On August 10, 2011, Anita commenced this action by filing a complaint in the First
Judicial District of the Hinds County Circuit Court. The complaint asserted a claim for
medical malpractice against Dr. Brooks and EMA, among other defendants.
¶12. A jury trial began on December 10, 2012. The jury returned a verdict against Dr.
Brooks and EMA. The jury awarded noneconomic damages of $2,000,000 and economic
damages of $1,500,000. The jury also assigned seventy-five percent of the negligence to Dr.
Brooks and EMA, and the jury assigned twenty-five percent to Marty’s Pharmacy. The trial
court entered a final judgment on December 20, 2012. In the judgment, the trial court
4
reduced the damages by twenty-five percent to reflect this fault allocation to Marty’s
Pharmacy and awarded $1,125,000 in economic and $1,500,000 in noneconomic damages.
¶13. Dr. Brooks filed a posttrial motion that included requests for a judgment
notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion also asked
that the judgment be modified based on the application of the noneconomic-damages cap
codified in Mississippi Code Annotated section 11-1-60(b). Anita argued the cap was
unconstitutional and should not apply. Dr. Brooks and the Attorney General’s Office, as an
intervenor, argued in favor of the constitutionality of the statute.
¶14. On January 28, 2013, the trial court held a hearing on the motions. On September 6,
2013, without deciding on the constitutional question of the caps, the trial court entered a
final judgment that granted the motion for a remittitur of the noneconomic damages, enforced
the statutory cap of $500,000, and denied the other posttrial motions.
¶15. It is from this judgment that Dr. Brooks and EMA appeal. They raise six issues:
I. Whether [Dr. Brooks and EMA] were unfairly prejudiced by the refusal
to require an independent medical exam, which was necessary to
determine [Tony’s] true point of maximum medical improvement;
II. Whether [Dr. Brooks and EMA] were unfairly prejudiced by unreliable,
inadmissible evidence of allegedly permanent physical impairment and
disability based upon the testimony of a former treating physician, Dr.
Lineaweaver, who admitted not having followed [Tony] to the point of
maximum medical improvement;
III. Whether the $1.5 million economic-damages award is supported by
sufficient evidence or is against the overwhelming weight of the
evidence;
IV. Whether [Tony’s] permanent physical impairment and disability and
future-lost-wages claims should be reversed and rendered due to the
5
complete failure of proof in support of the claims;
V. Whether [Dr. Brooks and EMA] were improperly denied a superseding-
cause instruction; and
VI. In the alternative, whether noneconomic damages must be reduced in
proportion to fault.
Anita has cross-appealed. She raises one issue:
I. The mandatory cap of $500,000 to noneconomic damages in medical-
malpractice cases violates the Mississippi Constitution.
ANALYSIS
¶16. A majority of this Court finds that the first issue raised by Dr. Brooks and EMA is
dispositive. However, we also address other issues. Further, the majority, having determined
that there is reversible error and this case should be remanded, has also determined that
Anita’s cross-appeal is moot.
I. The trial court erred in failing to grant Dr. Brooks and EMA’s motion
for an independent medical exam.
¶17. A majority of the Court finds that the trial court committed reversible error when it
denied the motion for an independent medical examination filed by Dr. Brooks and EMA.
The majority has also determined that the proper disposition is to remand for a new trial and
instruct the trial court to allow an independent medical examination.
¶18. We begin with the proper standard of review. In Eaton Corp. v. Frisby, 133 So. 3d
735, 747 (¶45) (Miss. 2013), the court held:
Trial courts have considerable discretion in discovery matters and decisions
will not be overturned unless there is an abuse of discretion. In reviewing a
decision that is within the trial court's discretion, we first ask if the trial court
applied the correct legal standard. We will affirm the trial court's decision
6
unless there is a definite and firm conviction that the court below committed
a clear error of judgment in the conclusion it reached upon weighing of
relevant factors.
(Internal citations and quotation marks omitted).
¶19. This issue considers Rule 35 of the Mississippi Rules of Civil Procedure, “Physical
and Mental Examinations of Persons.” It is also referred to as an independent medical
examination (IME).
¶20. Rule 35 was adopted effective January 16, 2003. M.R.C.P. 35 Advisory Committee
Historical Note. Unlike other discovery mechanisms of the Rules (M.R.C.P. 26 through 34),
Rule 35 is not allowed as a matter of right upon the request of a party. Instead, “Rule 35 was
adopted to allow a court to order a physical or mental examination of a person for good cause
on motion.” M.R.C.P. 35 Advisory Committee Historical Note.
¶21. Rule 35(a) provides:
When the . . . physical condition . . . of a party or of a person in the custody or
under the legal control of a party is in controversy, the court in which the
action is pending may order the party to submit to a physical . . . examination
by a suitably licensed or certified examiner or to produce for examination the
person in the party’s custody or legal control. The order may be made only on
motion for good cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place, manner, conditions, and
scope of the examination and the person or persons by whom it is to be made.
The Comment2 provided:
Rule 35(a)(1) is modeled, in general, after Fed. R. Civ. P. 35. The purpose of
Rule 35(a)(1) is to allow a court to order a physical or mental examination of
a person for good cause on motion. Previously, the omission in the Mississippi
2
On June 9, 2014, the Mississippi Supreme Court entered an order that repealed the
Comments to the Mississippi Rules of Civil Procedure and replaced them with Advisory
Committee Notes. There is no Advisory Committee Note for Rule 35.
7
Rules of Civil Procedure of a counterpart to Federal Rule 35 was held to
preclude a court from ordering an examination under any circumstances. See
Swan v. I. P. Inc., 613 So. 2d 846 (Miss. 1993).
The order may be made only upon good cause and is limited to cases in which
the condition of the party or person to be examined is in controversy. For a
discussion of the showing required, see Wright & Miller, Federal Practice and
Procedure, Civil, § 2234.1 (1994). Although some states allow examinations
under Rule 35 without an order of the court, Mississippi Rule 35, like the
federal counterpart, requires such an order, and, generally, the choice of
physicians is left to the party seeking the examination. Addressing federal
practice, Wright [and] Miller have said: “The usual attitude is that the moving
party has no absolute right to the choice of the physician, but that when no
serious objection arises, it is probably best for the court to appoint the doctor
of the moving party's choice.” Wright & Miller, Federal Practice and
Procedure, Civil, § 2234.2 (1994).
¶22. The practical application of this rule is most often in a personal-injury action where
the plaintiff asks for damages due to his injury. The plaintiff would not need to use Rule 35
to get an examination, so the only realistic use of this rule is for a defendant to compel the
plaintiff to appear for a physical examination. In this sense, it appears that this case is a
prime example of the proper use of Rule 35 to permit the opposing side to examine the
plaintiff. If good cause did not exist in this case, we do not see where good cause would ever
exist.
¶23. There is one Mississippi Supreme Court decision that provides us guidance. In Baker
Donelson Bearman Caldwell & Berkowitz P.C. v. Seay, 42 So. 3d 474, 477 (¶2) (Miss. 2010),
a former client brought a lawsuit against his friend and former lawyer for negligent infliction
of emotional distress and breach of fiduciary duty, among other claims. The supreme court
considered an interlocutory appeal and focused on the trial court’s decision on motions for
summary judgment and partial summary judgment. However, the supreme court also
8
considered whether the trial court erred when it denied the motion to compel the plaintiff,
Sam Seay, submit to an IME under Rule 35. The court concluded:
The circuit court’s “Order Denying Defendants’ Motion to Compel Physical
and Mental Examination of Plaintiff” found an absence of “good cause” and
that “defendants offered no evidence that the depositions of Sam and his
treating physician and the production of Sam's medical records are inadequate
or insufficient to show Sam's physical and mental status.”
Mississippi Rule of Civil Procedure 35(a) provides, in pertinent part, that:
[W]hen the mental or physical condition . . . of a party . . . is in
controversy, the court in which the action is pending may order
the party to submit to a physical or mental examination by a
suitably licensed or certified examiner . . . . The order may be
made only on motion for good cause shown . . . .
M.R.C.P. 35(a) (emphasis added). Given the dearth of Mississippi caselaw on
Rule 35, rendering this an issue of first impression for this Court, along with
the limited nature of the record with respect to this issue (i.e., only the motion
and subsequent order), this Court concludes that the circuit court did not abuse
its discretion in denying [the defendants’] Motion to Compel Physical and
Mental Examination.
Baker Donelson, 42 So. 3d at 495 (¶¶63-64). This case offers little guidance.
¶24. In Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964), the United States Supreme
Court addressed the “in controversy” and “good cause” requirements of Federal Rule of Civil
Procedure 35, the counterpart to Mississippi’s Rule 35. The court held that these
requirements:
[A]re not met by mere conclusory allegations of the pleadings – nor by mere
relevance to the case – but require an affirmative showing by the movant that
each condition as to which the examination is sought is really and genuinely
in controversy and that good cause exists for ordering each particular
examination. Obviously, what may be good cause for one type of examination
may not be so for another. The ability of the movant to obtain the desired
information by other means is also relevant.
9
Schlagenhauf, 379 U.S. at 118.
A. The “In Controversy” Requirement
¶25. Here, Dr. Brooks and EMA contend that Anita placed Tony’s physical condition in
controversy within the meaning of Rule 35 when she filed the complaint for medical
malpractice.
¶26. “[T]he plaintiff can place his or her mental or physical condition in controversy
through representations made during the course of litigation. . . . ‘A plaintiff in a negligence
action who asserts mental or physical injury . . . places that mental or physical injury clearly
in controversy[.]’” Ornelas v. S. Tire Mart LLC, 292 F.R.D. 388, 391 (S.D. Tex. 2013)
(citing Schlagenhauf, 379 U.S. at 119). Thus, a claim based on a physical condition meets
the “in controversy” requirement.
¶27. Here, Anita’s claim alleged that Dr. Brooks and EMA committed medical malpractice
in the negligent treatment of Tony. The complaint sought damages based on Tony’s accrued
medical bills, permanent scarring, and permanent environmental disabilities caused by the
application of the cantharidin medication. The complaint is sufficient to find that Dr. Brooks
and EMA have met the “in controversy” requirement.
B. The “Good Cause” Requirement
¶28. When the trial judge entered the order that denied the motion for an IME, on
November 30, 2013, the order explained that the trial court found that “there has been no
showing of good cause for an [IME].” At the hearing on December 10, 2013, when the judge
considered the renewed motion for an IME, the trial judge gave no reason for the denial. We
10
are left to consider whether the trial judge committed reversible error in this decision without
the benefit of the trial judge’s reasoning or an explanation.
¶29. In Schlagenhauf, the supreme court ruled:
Of course, there are situations where the pleadings alone are sufficient to meet
these requirements. A plaintiff in a negligence action who asserts mental or
physical injury . . . places that mental or physical injury clearly in controversy
and provides the defendant with good cause for an examination to determine
the existence and extent of such asserted injury.3
Schlagenhauf, 379 U.S. at 119. Dr. Brooks and EMA rely on this principle when they claim
that the complaint placed Tony’s physical condition and permanent disability in controversy
and was sufficient to establish good cause for the IME.
¶30. Anita disputes this argument. She claims that the denial of the motion was not an
abuse of discretion. Anita also contends that there was simply no “good cause” to order any
further medical examination. She asserts that the only alleged issue in controversy was just
how deeply affected Tony was after the burns. Tony’s testimony was that the burns had
impacted how long he could stay in the sun, that he was sensitive to how hot or cold water
was in the shower, and that he wore long clothing when he went outside to shield himself
from the sun. She claims that this testimony, Dr. Lineweaver’s deposition testimony, and
medical records were enough.
3
It is important to note that, in Schlagenhauf, the court was considering a motion for
an IME filed by one of several defendants in a personal-injury action that requested an IME
of one of the codefendants. The district court ordered the petitioner to submit to several
physical and mental examinations. The supreme court remanded the case based on the
determination that the petitioner had not “affirmatively put into issue his own mental or
physical condition”; his mere involvement in the accident was insufficient to warrant an
automatic order for examination. Schlagenhauf, 379 U.S. at 121.
11
¶31. The United States Supreme Court was clear in the conclusion that “a plaintiff in a
negligence action who asserts mental or physical injury . . . provides the defendant with good
cause for an examination to determine the existence and extent of such asserted injury.”
Schlagenhauf, 379 U.S. at 119. The Mississippi Supreme Court’s decision in Baker
Donelson did not resolve this question differently. Instead, the supreme court’s holding was
qualified by “the limited nature of the record with respect to this issue (i.e., only the motion
and subsequent order).” Baker Donelson, 42 So. 3d at 495 (¶64). Here the record is not
limited. When we examine the chronology of events and the procedural history, we find that
there was an overwhelming reason to find good cause to allow an IME.
¶32. Tony was burned when the cantharidin was applied on December 6, 2010. He was
admitted to the hospital the next day and treated at UMMC and the burn center through
December 11, 2010.
¶33. Dr. Lineaweaver evaluated Tony for the first time on December 15, and had follow-up
visits on December 22, 28, and 30, 2010. Dr. Lineaweaver last examined Tony on January
12, 2011, and Tony was released for physical activity with no impairment on January 17,
2011. Tony had follow-up visits with nurse practitioners on February 9 and May 11, 2011.
Tony did not see a medical professional after May 11.
¶34. The complaint was filed on August 10, 2011. Responsive pleadings were filed and
discovery commenced. Anita responded to Dr. Brooks and EMA’s discovery requests on
November 7, 2011.
¶35. Dr. Brooks and EMA filed their first motion for an IME on March 26, 2012. Anita
12
filed her response to the motion on April 9, 2012. Dr. Brooks and EMA filed a rebuttal
memorandum on April 17, 2012. A hearing was held on April 19, 2012. The trial court did
not immediately rule on the motion and took it under advisement.4
¶36. On July 16, 2012, Anita designated her expert and fact witnesses. Her designations
included Dr. Lineaweaver’s report of April 9, 2012, a life-care plan dated May 13, 2011, a
vocational-rehabilitation evaluation created by Bruce Brawner on July 15, 2012, and an
economic-loss analysis created by Dr. Glenda Glover on June 13, 2012.
¶37. Dr. Brooks and EMA issued notices of depositions for Anita’s experts on August 15,
2012. They filed a motion to compel the expert depositions on August 17. On August 27,
Anita filed her response, and a hearing was held on the motion to compel. On September 7,
Dr. Brooks and EMA sent a letter to the trial court regarding their motion to compel. On
November 6, the trial court granted Dr. Brooks and EMA’s request to depose Anita’s experts.
¶38. On November 9, 2012, Dr. Brooks and EMA submitted a letter to the trial court that
requested a ruling on the IME motion and attached a proposed order granting the motion.
On November 30, the trial court denied the motion for an IME.
¶39. On December 3, 2012, Dr. Brooks and EMA deposed Dr. Lineaweaver. On
December 6, Dr. Brooks and EMA submitted a renewed motion for an IME based on Dr.
Lineaweaver’s admissions in his deposition.
¶40. Then, on December 10, 2012, the trial court held a hearing on the renewed motion for
4
Normally, a motion for an IME under the Mississippi Rules of Civil Procedure
should be ruled upon by the trial court promptly, at the hearing or shortly thereafter. There
is nothing in the record that explains the trial court’s decision to take this matter under
advisement and then to allow an extended delay on ruling on an important discovery matter.
13
an IME, denied the motion, and commenced the trial.
¶41. From this chronology and procedural history, we can determine that Dr. Brooks and
EMA only had access to Tony’s medical records on his treatment that occurred in a span of
approximately six months. He was burned on December 6, 2010, and his medical treatment
by Dr. Lineaweaver ended on January 12, 2011. His last treatment by any medical
professional was on May 11, 2011. Thus, the medical records produced only related to
Tony’s treatment from December 4, 2010 (when Dr. Brooks prescribed the medication) to
May 11, 2011.
¶42. However, the complaint asked for damages for Tony’s permanent injury. When the
first motion for an IME was filed, on March 26, 2012, Dr. Brooks and EMA had received
some discovery, including Anita and Tony’s depositions. Yet Anita’s designation of expert
witnesses was disclosed on July 16, 2012, and included a report from Dr. Lineaweaver that
he generated on April 9, 2012. In his report, Dr. Lineaweaver opined that Tony continued
to heal six to twelve months after the initial injury, likely suffered from permanent
sensitivities to the sun and temperatures, and needed continued dermatological care.
¶43. The trial court denied the motion for an IME on November 30, 2012, after finding that
Dr. Brooks and EMA failed to show good cause.
¶44. Dr. Lineaweaver’s deposition was taken on December 3, 2012. This deposition
revealed additional information that supported the motion for an IME. In his deposition, Dr.
Lineaweaver admitted he did not know Tony’s last point of healing. The following exchange
occurred:
14
Q: You last saw [Tony], you testified, on May 11, 2011.
A: Yes.
Q: Approximately six months after –
A: What was his date of injury?
Q: December of 2010.
A: Yes. Six months.
Q: And so you wouldn’t dispute that you don’t know his final point of
healing[?]
A: That’s true. I know nothing past that six-month period.
Q: And he did continue to heal past that six months, didn’t he?
A: I would have to see him to determine that.
Q: Generally, patients do in his conditions, though, don’t they?
A: There can be progress certainly up to a year, sometimes longer.
Q: And you actually did not see him after January 12, 2011, correct?
A: Exactly. As I recall, the last two notes were my mid-levels on protocol
that I reviewed, but I did not see him.
Q: To render an opinion, the opinions you rendered in this case, wouldn’t
you really need to see him again?
A: If there was anything I said that would be contested, yes.
Q: Well, we contest almost everything you said. Wouldn’t you need to see
him again?
A: I could resolve a contested point that I’ve raised by seeing him again or
seeing – correctly taken photographs would at least be a reasonable
way to render an opinion.
15
(Emphasis added). In addition, Dr. Lineaweaver had testified that he was not familiar with
cantharidin.
¶45. Dr. Lineaweaver’s deposition testimony clearly supports both the original motion for
an IME and the renewed motion for an IME. Dr. Lineaweaver’s April 9, 2012 report
indicated that he expected Tony to continue to heal up to one year and maybe longer. The
deposition testimony revealed that Dr. Lineaweaver lacked sufficient medical knowledge to
determine Tony’s healing after six months, and he admitted the he needed to reexamine Tony
in order to render a reasonable opinion. In fact, there was no medical professional who could
testify as a fact or expert witness as to Tony’s medical condition and permanent injury at the
point when Dr. Lineaweaver had opined that he would continue to heal.
¶46. Dr. Lineaweaver also admitted that he did not know whether Tony suffered from
temperature sensitivity and only concluded Tony needed to avoid sun exposure based on
photographs. Yet, in his deposition, Dr. Lineaweaver stated he could render an opinion upon
seeing “correctly taken photographs,” which he did not have. These were the reasons that
Dr. Brooks and EMA filed for a renewed motion for an IME on December 6, 2012.
¶47. On December 10, 2012, the day trial began, the trial court conducted a hearing on the
renewed motion. Dr. Brooks and EMA raised these arguments at the hearing. The trial court
then found Dr. Brooks and EMA failed to show good cause for the IME without giving an
explanation and commenced trial.
¶48. When we review the trial court’s decisions to deny the motions for an IME, we look
at its conclusion that Dr. Brooks and EMA failed to show good cause. When we consider
16
the appropriate standard of review, we find that there is a definite and firm conviction that
the court below committed a clear error of judgment in the conclusion it reached upon the
weighing of relevant factors. This finding requires that we find reversible error.
¶49. Dr. Lineaweaver, Dr. Brooks, and EMA had the same information that Anita
contended was sufficient to show Tony’s injuries. Yet Dr. Lineaweaver admitted he could
not form an opinion as to Tony’s permanent impairment without further examination. The
information about Tony’s permanent impairment was crucial to the defense. Dr. Brooks and
EMA strongly disputed that Tony’s injuries from the application of the cantharidin resulted
in the permanent impairments asserted. As such, good cause was clearly demonstrated for
an IME when Dr. Brooks and EMA showed the IME would reveal “specific facts relevant
to the cause of action” that were necessary to their defense of the case. Ornelas, 292 F.R.D.
at 391 (citation omitted).
¶50. Nevertheless, some courts have held that “[e]ven when the ‘good cause’ and ‘in
controversy’ requirements are met, it is still in the sound discretion of the trial court whether
to order the examination.” Hardy v. Riser, 309 F. Supp. 1234, 1241 (N.D. Miss. 1970). The
purpose of the rule, however, is not served by this interpretation. Other courts have
interpreted the purpose of Rule 35 “as a forthright attempt to provide a ‘level playing field’
between the parties in their respective efforts to appraise the Plaintiff’s physical state.”
Stewart v. Burlington N. R.R., 162 F.R.D. 349, 351 (D. Minn. 1995) (citation omitted).
¶51. Dr. Brooks and EMA contended that Tony’s permanent impairment was not as
extensive as Anita alleged. To adequately defend his position, Dr. Brooks and EMA needed
17
access to conclusive information about Tony’s permanent impairment. Dr. Brooks and EMA
could have obtained this information through an IME and, to deny Dr. Brooks and EMA this
opportunity to evaluate Tony’s permanent condition, severely prejudiced their defense.
Therefore, Dr. Brooks and EMA demonstrated good cause for an IME, and the trial court
abused its discretion when it denied the motions.
C. The Specific Form Requirements of the Motion
¶52. In addition to the “in controversy” and “good cause” requirements, Rule 35 also
necessitates a motion for an IME include the specifics of “time, place, manner, conditions,
and scope of the examination and the person or persons by whom it is to be made.” Anita
claims Dr. Brooks and EMA failed to proffer these specifics as required by Rule 35.
¶53. In both the initial and renewed motions for an IME, Dr. Brooks and EMA stated that
the time and place would be agreed upon by the parties, the defense would choose a certified
dermatologist, and the scope of the examination would relate to Tony’s alleged injuries. The
renewed motion for an IME also detailed that the examination would include noninvasive
examinations and digital imaging.
¶54. While both motions seem to fall short of the requirements, courts have granted IME
motions that did not comport with the specifics of the rule. See Ragge v. MCA/Universal
Studios, 165 F.R.D. 605, 610 (C.D. Cal. 1995) (granted motion for IME when time and date
of exam not specified); Galieti v. State Farm Mut. Auto. Ins., 154 F.R.D. 262, 263 (D. Colo.
1994) (granted IME motion even when motion failed to state specific time, place, or
substantive reasons for motion). Also, the Comment to Rule 35 provided:
18
Although some states allow examinations under Rule 35 without an order of
the court, Mississippi Rule 35, like the federal counterpart, requires such an
order, and, generally, the choice of physicians is left to the party seeking the
examination. Addressing federal practice, Wright [and] Miller have said: “The
usual attitude is that the moving party has no absolute right to the choice of the
physician, but that when no serious objection arises, it is probably best for the
court to appoint the doctor of the moving party's choice.” Wright & Miller,
Federal Practice and Procedure, Civil, § 2234.2 (1994).
Therefore, strict adherence to the rule’s form requirements does not appear to completely
preclude the motion.
¶55. In both Ragge and Galieti, the courts granted the imperfect IME motions due to the
close proximity of the motions to the trial dates. Id. Admittedly, this case differs from
Ragge and Galieti in that the courts in those cases granted the respective IME motions. We
determine, however, that Dr. Brooks and EMA’s motion met the “in controversy” and “good
cause” requirements. As such, the trial court should have granted the motion. Therefore, the
same rationale applies here.
¶56. While Dr. Brooks and EMA originally filed his IME motion on March 26, 2012, the
trial court did not rule on the motion until November 30, 2012, approximately ten days prior
to the trial date. Further, the trial court did not rule on the renewed motion until the first day
of the trial on December 10, 2012. While compliance with the specific form requirements
of Rule 35 is strongly encouraged, in this limited case, where the ruling on both motions and
the trial date occurred within days of each other, the imperfections of the motion do not
invalidate it.
¶57. We also note that the proximity of the rulings on the motions and the renewed motion
to the trial date was not caused by Dr. Brooks and EMA. Dr. Brooks and EMA initially filed
19
the motion for an IME on March 26, 2012, but the trial court failed to rule on the motion
until November 30, 2012. Further, the renewed motion, based on admissions in Dr.
Lineaweaver’s deposition on December 3, came on December 6, 2012. The delay obtaining
Dr. Lineaweaver’s deposition is also not attributable to Dr. Brooks or EMA. They first
attempted to depose Dr. Lineaweaver on September 26, 2012, through a notice on August
15, 2012. Anita opposed Dr. Brooks and EMA’s attempt to depose Dr. Lineaweaver. Dr.
Brooks and EMA submitted a motion to compel for rulings on both the deposition of Dr.
Lineaweaver and the IME on August 18, 2012. The trial court did not grant Dr. Brooks and
EMA’s request to depose Dr. Lineaweaver until November 6, 2012, however. Therefore, Dr.
Brooks and EMA could not avoid the proximity to the trial date.
¶58. For these reasons, we find the trial court abused its discretion in denying Dr. Brooks
and EMA’s motion and renewed motion for an IME to determine the extent of Tony's
permanent physical impairment. Therefore, we reverse and remand for a new trial. We also
instruct the trial judge to enter an order that allows an IME.
II. The trial court erroneously admitted Dr. Lineaweaver’s expert
testimony on Tony’s permanent physical impairment.
¶59. Dr. Brooks and EMA also contend that the trial court should not have admitted Dr.
Lineaweaver’s unreliable expert testimony about Tony’s permanent injury when he did not
evaluate Tony after January 12, 2011. Conversely, Anita argues that Dr. Lineaweaver
qualified as a burn expert and gave his opinion based on his observations of Tony’s
condition.
¶60. “When reviewing a trial court’s decision to allow or disallow evidence, including
20
expert testimony, we apply an abuse of discretion standard.” Watts v. Radiator Specialty Co.,
990 So. 2d 143, 145-46 (¶7) (Miss. 2008) (quoting Canadian Nat'l/Ill. Cent. R.R. v. Hall, 953
So. 2d 1084, 1094 (¶29) (Miss. 2007)). “Unless this Court concludes that a trial court's
decision to admit or exclude evidence was arbitrary and clearly erroneous, that decision will
stand.” Id. (citation omitted).
¶61. Mississippi Rule of Evidence 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
(Emphasis added). Dr. Brooks and EMA primarily contest the reliability of Dr.
Lineaweaver’s testimony as to Tony’s permanent injury and disability.
¶62. To decide the admissibility of expert testimony,
[t]he trial court must engage in a two-pronged inquiry, determining whether
the expert testimony rests on a reliable foundation and is relevant to the matter.
Regarding the “reliability” prong – which is at issue in the present case – the
testimony must be grounded in the methods and procedures of science, not
merely a subjective belief or unsupported speculation.
Worthy v. McNair, 37 So. 3d 609, 615 (¶16) (Miss. 2010) (internal citation and citation
omitted).
¶63. Dr. Lineaweaver examined Tony on January 12, 2011, and reviewed his medical
records through May 11, 2011. At trial, however, Dr. Lineaweaver testified, through his
deposition, that he did not examine Tony after this date, did not have experience with
21
cantharidin burns, and needed to examine Tony at his final point of healing in order to have
a fully formed opinion of Tony’s permanent physical impairment.
¶64. Dr. Brooks and EMA contend that Dr. Lineaweaver did not examine Tony at his final
point of healing, which rendered his opinion unreliable. But Dr. Lineaweaver did not have
to evaluate Tony in order to opine on his condition. The supreme court has “held that the fact
that the expert witness did not examine the plaintiff goes to the weight to be given the
physician’s testimony, not its admissibility.” McCaffrey v. Puckett, 784 So. 2d 197, 203
(¶19) (Miss. 2001) (citation omitted). Regardless, Dr. Lineaweaver admitted that he could
not give a reliable assessment of Tony’s condition after the six-month period of healing.
¶65. Dr. Lineaweaver opined that Tony suffered from permanent scarring and
environmental sensitivity, but also testified that Tony would continue to heal for up to a year
after the incident based on his experience treating burn victims. Dr. Lineaweaver’s testimony
regarding Tony’s healing point after the six-month point after the incident was speculation.
The Mississippi Supreme Court addressed a similar occurrence in Bullock v. Lott, 964 So.
2d 1119, 1129 (¶35) (Miss. 2007).
¶66. In Bullock, the supreme court found an expert witness properly qualified, but that the
trial court abused its discretion in allowing the expert to testify to conclusions not supported
by sufficient facts or data. Id. Like here, the expert in Bullock testified to hypothetical
conditions. Id. While testimony showed that Tony experienced some permanent scarring
and sensitivity, there was no indication in the medical records or Dr. Lineaweaver’s
examinations to support his conclusions on Tony’s permanent impairment.
22
¶67. Dr. Lineaweaver was correctly admitted as an expert witness. However, Dr.
Lineaweaver could not testify to the extent of Tony’s permanent injuries when he neither
examined Tony after January 12, 2011, nor reviewed any medical records past May 11, 2011,
when he explicitly noted that Tony could continue to heal up to one year after the incident.
Therefore, the trial court abused its discretion when it admitted Dr. Lineaweaver’s unreliable
testimony about Tony’s permanent injury and disability.
III. The evidence did not support a jury verdict of $1,500,000 in economic
damages.
¶68. As a third contention, Dr. Brooks and EMA argue the evidence presented at trial did
not support the jury’s verdict of $1,500,000 in economic damages. Namely, the evidence
only proved $112,499 in actual medical expenses. Anita counters that the credible evidence
supported the jury verdict.
¶69. “It is primarily the province of the jury to determine the amount of damages to be
awarded, and the award will normally not be ‘set aside unless so unreasonable in amount as
to strike mankind at first blush as being beyond all measure, unreasonable in amount, and
outrageous.’” Miss. Baptist Health Sys. Inc. v. Kelly, 88 So. 3d 769, 778 (¶31) (Miss. Ct.
App. 2011) (quoting Estate of Jones v. Phillips ex rel. Phillips, 992 So. 2d 1131, 1150 (¶50)
(Miss. 2008)). “However, this Court may order a new trial if we find the damages are
‘excessive or inadequate for the reason that the jury or trier of the facts was influenced by
bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming
weight of credible evidence.’” Id. (quoting Miss. Code Ann. § 11-1-55 (Rev. 2014)).
¶70. “It is absolutely incumbent upon the party seeking to prove damages to offer into
23
evidence the best evidence available on each and every item of damage.” Strickland v.
Rossini, 589 So. 2d 1268, 1274-75 (Miss. 1991) (quoting Eastland v. Gregory, 530 So. 2d
172, 174 (Miss. 1988)). “[D]amages may only be recovered when the evidence presented
at trial ‘removes their quantum from the realm of speculation and conjecture and transports
it through the twilight zone and into the daylight of reasonable certainty.’” Frierson v. Delta
Outdoor Inc., 794 So. 2d 220, 225 (¶14) (Miss. 2001) (quoting Wall v. Swilley, 562 So. 2d
1252, 1256 (Miss. 1990)).
¶71. Dr. Glenda Glover testified at trial to Tony’s prospective earnings based on his
permanent injury. Dr. Glover conducted an economic analysis that estimated a lifetime loss
of between $1,040,828 and $2,521,902 in wages. At trial, however, Dr. Glover testified that
she estimated Tony would suffer future lost wages of approximately $707,686. Further, Dr.
Glover based this estimation upon the jobs analysis performed by Bruce Brawner.
¶72. Brawner testified to Tony’s loss of job prospects due to his permanent impairment.
Brawner made this conclusion based on Dr. Lineaweaver’s testimony on Tony’s permanent
impairment. Yet, as previously stated, Dr. Lineaweaver’s testimony on Tony’s permanent
impairment was unreliable. As such, Brawner’s and, consequently, Dr. Glover’s testimonies
and conclusions were based on unsupported facts. Therefore, the evidence did not support
the conclusion that Tony suffered $707,686 in lost future wages.
¶73. Regardless of the unreliability of the evidence, Anita did not present evidence to
support an economic-damages award of $1,500,000. Anita proved $112,499 in medical
expenses, which Dr. Brooks and EMA do not dispute, but failed to prove any other economic
24
damages. Therefore, the sufficient evidence supports an award of $112,499 in economic
damages. Thus, we find this to be reversible error. However, since this case has been
reversed and remanded for a new trial, we understand that this issue will be considered on
remand.
IV. The trial court improperly denied a superseding-cause instruction.
¶74. Dr. Brooks and EMA further contend that the trial court committed reversible error
by improperly denying his request for a jury instruction on superseding cause. Dr. Brooks
and EMA argue that Marty’s Pharmacy’s failure to properly label the medication and to give
adequate directions to Anita constituted an independent, superseding cause requiring an
additional instruction. Anita counters that the jury instructions defining proximate cause
sufficiently accounted for any negligence by Marty’s Pharmacy.
¶75. “It is well-established law that a defendant is entitled to have the jury instructed on
his theory of the case.” Eckman v. Moore, 876 So. 2d 975, 979 (¶11) (Miss. 2004) (citing
Coho Resources Inc. v. McCarthy, 829 So. 2d 1, 23 (¶69) (Miss. 2002)). “However, a court
may refuse a jury instruction which ‘incorrectly states the law, is fairly covered elsewhere
in the instructions, or is without foundation in the evidence.’” Id. at 979-80 (¶11). “This
Court will not reverse the verdict of the jury if that jury was fully and fairly instructed by the
other instructions.” Id. at 980 (¶11).
¶76. “The question of whether an act of negligence is a foreseeable superseding cause
requires an examination of the sequence of events leading to the injury.” Lift-All Co. v.
Warner, 943 So. 2d 12, 17 (¶18) (Miss. 2006) (citation omitted).
25
The Restatement sets out six factors to consider in determining whether a
particular intervening force can be fairly classed as a superseding cause:
(a) the fact that its intervention brings about harm different in kind from that
which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event
to be extraordinary rather than normal in view of the circumstances existing
at the time of its operation;
(c) the fact that the intervening force is operating independently of any
situation created by the actor’s negligence, or, on the other hand, is or is not
a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s
act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which
is wrongful toward the other and as such subjects the third person to liability
to him; [and]
(f) the degree of culpability of a wrongful act of a third person which sets the
intervening force in motion.
Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So. 2d 43, 46 (Miss. 1998) (citing
Restatement (Second) of Torts § 440 (1965)).
¶77. Dr. Brooks and EMA argue that Dr. Brooks wrote the prescription to include
instructions for use as directed by the pharmacy. Marty’s Pharmacy and Heindl failed to
include any specific instructions on the actual prescription bottle other than use as directed
and to repeat in three weeks. Heindl testified that pharmacists do not ordinarily create the
instructions included on prescriptions, but also admitted she did not clarify the instructions
with Dr. Brooks. This admission, coupled with Marty’s Pharmacy’s alteration of the original
directions, created an independent, superseding cause, according to Dr. Brooks and EMA.
26
¶78. Further, at trial, Dr. Michael Todaro, a pharmacy expert, testified to the following:
Q: Who’s job is it to put down the clear directions?
A: Before the drug leaves the hands of the pharmacist[,] it’s the
pharmacist’s responsibility to make sure that [the instructions are] clear,
and it’s also the pharmacist’s responsibility to counsel the patients to
make sure the patient understands what drug they are receiving and
how to use the drug correctly.
....
Q: If a pharmacist is unclear as to a prescription, what is required of him?
A: If the pharmacist is unclear of a prescription, the pharmacist should
clarify with the prescriber, with the physician. So we should call the
physician. We should have any information that is unclear to the
pharmac[ist] before we process the prescription and give it to the
patient.
Dr. Todaro also testified:
Q: And did the failure of the pharmacy to comply with the pharmacy
regulations[–]is it your opinion that[,] taking action as a pharmacy as
a whole[,] that they failed to comply with the pharmacy regulations?
A: Yes.
Q: And did the pharmacy’s failures in those respects in this case solely
cause Anthony Glover’s adverse event?
A: Yes. A pharmacist was the last person to touch this prescription. They
should have been the one[s] to make sure that it was going to be
dispensed correctly or else this wouldn’t have happened.
(Emphasis added). Thus, Dr. Todaro’s testimony clearly established a jury question as to
whether Marty’s Pharmacy created a situation necessitating a superseding-cause instruction.
¶79. Dr. Brooks and EMA do not necessarily contest Dr. Brooks’s negligence. They do,
however, argue that Marty’s Pharmacy’s actions at least entitled them to a superseding-cause
27
instruction.
Although one may be negligent, . . . if another, acting independently and
voluntarily, puts in motion another and intervening cause which efficiently
thence leads in unbroken sequence to the injury, the latter is the proximate
cause and the original negligence is relegated to the position of a remote and,
therefore, a non-actionable cause.
Eckman, 876 So. 2d at 982 (¶18) (quoting Miss. City Lines v. Bullock, 194 Miss. 630, 639,
13 So. 2d 34, 36 (1943)). Eckman is instructive.
¶80. In Eckman, the supreme court found that the defendant doctor was entitled to a
superseding-cause instruction when the evidence at trial illustrated the nursing staff possibly
contributed as an independent cause for the decedent’s death. Id. at (¶19). Like here, the
trial court in Eckman gave proximate-cause instructions in order to account for any
negligence of the nursing staff. Id. at 981 (¶15). The supreme court, however, held that
“[t]he jury must be instructed on all material issues presented in evidence” and the
proximate-cause instructions failed to address the doctor’s arguments. Id. at 982 (¶19).
¶81. Therefore, just as the supreme court concluded in Eckman, the proximate-cause
instructions did not sufficiently present Dr. Brooks and EMA’s superseding-cause argument.
As such, the trial court erroneously denied Dr. Brooks and EMA’s request for a superseding-
cause instruction.
¶82. The trial court erroneously denied Dr. Brooks and EMA’s requests for an IME and
a superseding-cause instruction. Further, the trial court erred in admitting Dr. Lineaweaver’s
unreliable testimony, and the evidence did not support an award of $1,500,000 in economic
damages. For these reasons, we reverse and remand this case for a new trial. Having found
28
that reversal is appropriate, we do not consider the issues raised in the cross-appeal.
¶83. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR A
NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE/CROSS-APPELLANT.
ISHEE, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. BARNES,
CARLTON, FAIR AND JAMES, JJ., NOT PARTICIPATING.
IRVING, P.J., DISSENTING:
¶84. I respectfully dissent, as I find no reversible error in the issues raised on appeal.
I. Denial of Motion for an IME
¶85. The majority finds the trial court erred in denying Dr. Brooks and EMA’s motion and
renewed motion for an IME. In doing so, the majority, in essence, holds that a request for
an IME should never be denied in a case where the plaintiff has asserted a physical or mental
injury. However, this is contrary to the good-cause requirement set out in Mississippi Rule
of Civil Procedure 35 and takes away any discretion of the trial judge.
¶86. Rule 35(a) states that when the mental or physical condition of a party is in
controversy, the trial court “may order the party to submit to a physical or mental
examination by a suitably licensed or certified examiner[.]” However, “[t]he order may be
made only on motion for good cause shown[.]” Id. The requirements of Rule 35 “are not
met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but
require an affirmative showing by the movant that each condition as to which the
examination is sought is really and genuinely in controversy and that good cause exists for
ordering each particular examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).
29
It is within the trial court’s discretion whether to grant or deny a motion for an IME. Baker
Donelson Bearman Caldwell & Berkowitz P.C. v. Seay, 42 So. 3d 474, 495 (¶64) (Miss.
2010). Our review is limited to determining whether the trial court abused its discretion in
granting or denying the motion. Id.
¶87. I agree with the majority that Tony’s physical condition was “in controversy,” since
“[a] plaintiff in a negligence action who asserts [a] mental or physical injury . . . places that
mental or physical injury clearly in controversy[.]” Schlagenhauf, 379 U.S. at 119.
However, I find that the trial court did not abuse its discretion in finding that Dr. Brooks and
EMA failed to show good cause for the IME. Further, Dr. Brooks and EMA’s motion
undisputedly did not comply with Rule 35(a) in that it failed to state “the time, place, manner,
conditions, and scope of the examination” or “the person or person by whom” the
examination was to be made.
A. Failure to Show Good Cause
¶88. Dr. Brooks and EMA argue, and the majority agrees, that good cause was shown for
an IME because the record lacked proof of when Tony reached maximum medical
improvement. Dr. Brooks and EMA assert that because Dr. Lineaweaver did not treat Tony
after January 12, 2011, and lacked experience with cantharidin, he could not assess Tony’s
permanent or long-term injuries.
¶89. Although he was deposed by the Glovers, Dr. Lineaweaver was Tony’s treating
physician and independently examined him prior to trial. Dr. Lineaweaver testified at trial
by way of a videotaped deposition. Dr. Lineaweaver is an expert in burn injuries, the head
30
of Mississippi’s only burn center, and a board-certified plastic surgeon with nearly forty
years’ experience. He testified that Tony’s exposure to cantharidin resulted in “partial
thickness,” or second-degree burns. These burns penetrated through Tony’s skin and covered
sixteen percent of his body. Dr. Lineweaver testified that when skin is burned in this way,
it will not grow back perfectly, but will result in scarring. Dr. Lineaweaver testified that it
was his opinion that Tony’s skin would never look the same, and that he would always have
permanent scarring and skin discoloration. He also testified Tony would be sensitive to the
elements and extreme temperatures. Dr. Lineaweaver stated that such burn wounds continue
to heal for at least a year after injury. As a result of Tony’s burns, Dr. Lineaweaver testified
that it was “inadvisable” for Tony to work in jobs where he was exposed to sunlight or
extreme temperatures. Although he did not see Tony again after January 12, 2011, he stated
his opinion was based on “a reasonable interpretation of [his] examinations, plus the
expectable course, plus whatever photographs [he] saw subsequently.”
¶90. Dr. Brooks and EMA assert good cause existed for additional testing of Tony’s skin
sensitivities due to the passage of time since Dr. Lineaweaver’s examination. But when
asked about the additional testing sought by the defense in its IME motion, Dr. Lineaweaver
testified that he had “never seen those tests, with which [he was] reasonably familiar in other
contexts, applied to a burn patient.” He was specifically asked about tests that could be done
“[t]o determine sensitivity, thermal regulation, all sorts of things, sweat gland production.”
Dr. Lineaweaver responded:
[I]n an area of injury that really extends through many parts of the body that
has different levels of injury you know, clearly some of his skin returned to
31
relatively normal color and everything else, others didn’t—it would be very
hard to standardize a test like that. So pretty much clinical examination and
functional interpretation of what the patient is saying would be the realistic
way to assess whatever’s going on in terms of sweat, skin dryness and so on
like that.
¶91. In addition to Dr. Lineaweaver’s testimony,Tony himself testified as to the continued
effects of the burns, stating that he cannot be exposed to water that is too hot or too cold
because of his painful skin sensitivity. He testified he has trouble regulating his body
temperature and has to layer on and off clothing to keep a normal temperature. As far as his
skin’s appearance—whether it was getting better or worse or staying the same—Tony
testified that over the past year, his skin had stayed the same. Monique Ealy, director of
children services at Stewpot Ministries, where Tony volunteered, testified that after Tony was
burned, he had to shield himself from the sun by wearing a towel on his head, long socks, and
long-sleeve shirts. As far as physical evidence of permanent or long-term scarring, during
trial in December 2012, which was held two years after Tony was burned, Tony removed his
shirt for the jury to view his injuries. Thus, the jury heard Tony’s testimony and could view
for itself the extent of the injuries two years after they occurred.
¶92. “The specific requirement of good cause would be meaningless if good cause could
be sufficiently established by merely showing that the desired materials are relevant, for the
relevancy standard has already been imposed by Rule 26(b).” Schlagenhauf, 379 U.S. at 118.
Rule 35’s inclusion of the words “good cause” “indicate[s] that there must be greater
showing of need under Rules 34 and 35 than under the other discovery rules.” Schlagenhauf,
379 U.S. at 118. “‘Good cause’ requires a showing that the examination could adduce
32
specific facts relevant to the cause of action and necessary to the defendant’s case.” Ornelas
v. S. Tire Mart LLC, 292 F.R.D. 388, 391 (S.D. Tex. 2013). “The ability of the movant to
obtain the desired information by other means is also relevant.” Schlagenhauf, 379 U.S. at
118. While the rules of civil procedure “should be liberally construed, . . . they should not
be expanded by disregarding plainly expressed limitations.” Id. at 121.
¶93. I find that there was an abundance of available evidence as to Tony’s medical
improvement that was presented through the medical records and the testimonies of multiple
physicians and others, including Tony and his mother—all of whom were available to the
defense prior to trial. Five treating doctors were available: Dr. Lineaweaver, Dr. Brooks, Dr.
Hudson, Dr. Dillard, and Dr. Paduda. Dr. Brooks and EMA also called their own expert, Dr.
Chemene Quinn, a board-certified dermatologist. Dr. Quinn testified on behalf of the
defense that cantharidin is used to treat molluscum “because it doesn’t cause as much
scarring as other therapies. It doesn’t cause scars. . . . It doesn’t go deep enough.” Dr.
Quinn testified that cantharidin only affects the epidermis and that “by definition it doesn’t
cause scarring,” only blistering. From viewing Tony’s body, she testified she saw no
scarring, but rather pigmentary changes, or discoloration of the skin, which can heal over
time. She also testified she could not “find anything scientific” to support Tony’s
sensitivities to heat, cold, and sunlight. Based on the abundance of evidence presented from
both sides, I find Dr. Brooks and EMA have failed to specify in their motion what additional
information could be garnered from the IME that was not already available.
¶94. I also note that Dr. Brooks and EMA have not cited a single comparable case in
33
support of their Rule 35 argument. Not one case is cited where an IME was granted in light
of the abundance of medical testimony available in this case. The majority cites two cases
where IMEs were granted: Ragge v. MCA/Universal Studios, 165 F.R.D. 605 (C.D. Cal.
1995), and Galieti v. State Farm Mutual Automobile Insurance Co., 154 F.R.D. 262 (D.
Colo. 1994). In Ragge, the defense requested a mental examination of the plaintiff after she
filed a sexual-harassment and discrimination suit. Ragge, 165 F.R.D. at 608-09. In Galieti,
an IME was requested to evaluate whether the plaintiff suffered emotional distress from an
allegedly unlawful termination. Galieti, 154 F.R.D. at 262. Neither case involved an
abundance of readily available medical testimony.
¶95. There is a lack of caselaw in Mississippi dealing with Rule 35; however, the most
recent supreme court decision involving Rule 35 also does not support Dr. Brooks and
EMA’s assertion that the trial court abused its discretion in denying the request for an IME.
In Baker Donelson, 42 So. 3d at 481 (¶20), an IME was requested to garner information on
the plaintiff’s mental and psychological injuries that were the basis of an intentional-
infliction-of-emotional-distress claim. The trial court found the defense failed to show good
cause for the examination and that the “defendants offered no evidence that the depositions
of [the plaintiff] and his treating physician and the production of [the plaintiff’s] medical
records [were] inadequate or insufficient to show [the plaintiff’s] physical and mental status.”
Id. at 495 (¶63). The supreme court noted that the matter was one of first impression. Id.
While citing the limited nature of the record, the supreme court nonetheless found no abuse
of discretion in the trial court’s finding. Id.
34
¶96. Dr. Brooks and EMA have failed to show the available depositions and medical
records were inadequate or insufficient to present the jury with evidence of Tony’s long-term
injuries. This is not a case where the plaintiff’s injuries are disputed. Dr. Brooks openly
admitted his negligence, and that his negligence resulted in Tony’s injuries. Dr. Brooks
admitted the following in his deposition:
Q. Do you take any responsibility for yourself, Dr. Brooks[,] for
Anthony’s injuries, not just for the prescription but for Anthony’s
injuries?
A. Yes.
During trial, Dr. Brooks’s counsel, in the presence of the jury, stated to Tony during his
cross-examination, “Tony, I don’t have a lot of questions for you. I don’t dispute that you
were injured at all, and I’m sorry you were injured.”
¶97. Dr. Brooks and EMA have failed to show an IME of Tony was necessary. Thus, I
find the trial court did not abuse its discretion in finding lack of good cause for an IME.
B. Failure to Comply with the Form Required by Rule 35
¶98. In addition lacking good cause, Dr. Brooks and EMA’s motion for an IME failed to
comply with the specificity requirements of Rule 35. Rule 35 requires the motion to include
the “time, place, manner, conditions, and scope of the examination and the person or person
by whom it is to be made.” The burden is on the movant to “produce sufficient information,
by whatever means, so that the [trial] judge can fulfill his function mandated by the
Rule”—that is, a determination of whether the motion meets Rule 35’s requirements of “in
controversy” and “good cause.” Schlagenhauf, 379 U.S. at 121. “Parties seeking a
35
court-ordered mental or physical examination should . . . provide the necessary details to the
court, or they otherwise risk denial of their motions solely on the grounds that the court
cannot comply with this provision of the Rule.” Ornelas, 292 F.R.D. at 398. The “[p]laintiff
is . . . entitled to a certain degree of direction regarding those examinations, thereby
providing him the opportunity to bring to the [c]ourt's attention those tests he deems
irrelevant or harmful.” Id.
¶99. Dr. Brooks and EMA’s IME motion simply requests an IME of Tony “to be performed
by a dermatologist selected by the party seeking the examination, at a time and place to be
agreed upon by the parties.” There is no information in the motion upon which the plaintiff
could lodge an objection. Further, not only does the motion fail to include a proposed doctor
to conduct the examination, the motion specifies the doctor will be selected by Dr. Brooks
and EMA, which is contrary to the suggestion of an “independent” medical examination.
¶100. Citing Federal Rule of Civil Procedure 35, upon which Mississippi’s rule is based,
other jurisdictions have noted that “[n]o absolute right to the choice of a doctor is expressed
in Rule 35.” Stuart v. Burford, 42 F.R.D. 591, 592 (N.D. Okla. 1967). “[W]hen no serious
objection arises, it is probably best to appoint the doctor of the moving party’s choice.”
Chaney v. Venture Transport Inc., No. Civ.A. 03-2886, 2004 WL 445134, at *1 (E.D. La.
2004) (citing 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2234.2 (2d
ed. 1994)). However, where “the plaintiff has made strenuous objection to defendant’s
choice of physician[,] . . . it is best that another physician be appointed. If the parties can
select a physician mutually agreeable, his name may be submitted. If not the [c]ourt will
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make its own choice.” The Italia, 27 F. Supp. 785, 787 (E.D.N.Y. 1939). The plaintiffs had
no opportunity to object to the choice of physician, as the defense failed to name one.
¶101. Given the lack of good cause and the failure to comply with Rule 35’s requirements,
the trial judge determined the IME motion should be denied. There is nothing to indicate he
abused his discretion in doing so.
C. The Trial Court’s Failure to Promptly Rule on the IME
Motion
¶102. I also do not find the trial court erred in delaying its ruling on the motion for an IME.
Dr. Brooks and EMA filed their IME motion on March 26, 2012. A hearing was held on
April 19, 2012, at which time the trial court took the matter under advisement. The trial
court then denied the motion on November 30, 2012. On December 6, 2012, Dr. Brooks and
EMA filed a renewed motion for an IME based on their recent deposition of Dr.
Lineaweaver. The renewed motion was denied on December 10, 2012, just prior to the
beginning of trial.
¶103. The burden is on the movant to take action on pending motions. Busby v. Anderson,
978 So. 2d 637, 639 (¶11) (Miss. 2008) (The movant has “a duty to diligently pursue [its]
claim,” such as by following up on pending motions or by filing a mandamus petition.). I
find Dr. Brooks and EMA cannot now complain of the trial court’s failure to rule promptly,
as Dr. Brooks and EMA failed to pursue their motion. Rather, I find the trial court’s failure
to address the issue is tantamount to a denial. I cannot find the trial court erred in not ruling
on the motion in a more timely manner.
II. Admissibility of Dr. Lineaweaver’s Expert Testimony on Permanent
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Impairment
¶104. The majority next finds that the trial court erred in admitting Dr. Lineaweaver’s expert
testimony on Tony’s permanent injuries. The majority finds the testimony was unreliable
because Dr. Lineaweaver did not examine Tony after January 12, 2011, and did not review
any medical records past May 11, 2011.
¶105. In determining whether expert testimony is admissible as provided in Mississippi Rule
of Evidence 702, we look to whether the testimony is relevant and reliable. Hale v. State
Democratic Exec. Comm., 168 So. 3d 946, 955 (¶29) (Miss. 2015) (citing Miss. Transp.
Comm’n v. McLemore, 863 So. 2d 31, 38 (¶16) (Miss. 2003)). “The admission of expert
testimony is within the sound discretion of the trial judge.” Id. We “will not reverse a trial
court’s decision to exclude expert testimony unless it finds that the trial court’s decision was
arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.
¶106. There is no dispute that Dr. Lineaweaver was eminently qualified to testify at trial.
He obtained his medical license in 1976 and served as the chief of plastic surgery at the
University of Mississippi Medical Center from 2003-2007. At the time of trial, he was the
head of Mississippi’s only burn center, the JMS Burn & Reconstructive Center, where he
treated Tony. He testified that since starting the JMS Burn Center in 2009, he had treated
well over a thousand burn patients. Because Dr. Lineaweaver testified through video
deposition, the trial court directed the parties to make objections during the videotaping, and
the trial court would later rule on the objections. Based on the trial court’s rulings on the
various objections, the video was edited to exclude any inadmissible testimony.
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¶107. Dr. Lineaweaver admitted that he was not familiar specifically with cantharidin burns,
apparently because this medication is rarely, if ever, used in his practice and that he had seen
no patients who had presented themselves to the burn center with this type of burns.
However, Dr. Lineaweaver testified he was very familiar with the type of injury that resulted
from the misuse of the medication—second-degree chemical burns. Tony was diagnosed at
UMMC with chemical burns, and Dr. Lineaweaver’s diagnosis was consistent with UMMC’s
diagnosis. Dr. Lineaweaver testified about the second-degree burns and gave his opinion on
their long-term effects. There is no per se rule excluding Dr. Lineaweaver’s testimony
because he had no prior experience with cantharidin, especially considering his familiarity
with the resulting burn injuries.
¶108. Dr. Lineaweaver gave his opinion of the long-term effects of Tony’s injuries based
on the information available to him and his experience with thousands of burn patients. He
made this very clear in his testimony. For example, when asked if Tony is now more
sensitive to sun exposure, he answered, “Based on the available information, I would say he
is.” He stated that the available information included “[his] examinations, the understanding
of [Tony’s] original injury, and the most recent credible photographs that [he] saw[.]” The
photographs he viewed were dated January 2011 through June 2012. He testified that over
that eighteen-month time period, the pictures “certainly show the same hypopigmentation
areas that are seen in all the other pictures. They don’t seem to have changed. Those areas,
in my opinion, would be sun sensitive.”
¶109. The notes from Tony’s December 22, 2010 examination with Dr. Lineaweaver reflect
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that Tony had a “scar condition” and “fibrosis of skin,” and was instructed to apply
moisturizing lotion liberally several times a day and to avoid sun exposure. Dr. Lineweaver
explained this assessment and treatment plan as follows:
A. Many second[-]degree burns do not have a return to normal skin. They
have residual areas of, in effect, fibrosis, skin areas or appendages that
have been replaced by scar. So . . . [management] include[s] skin care
with moisturizing lotion because regenerated—or tissue like the fibrotic
skin tissue may have fewer sweat gland[s], can become dry and easily
irritated. Sun exposure can easily proceed to a much more damaging
level in fibrotic skin because, ultimately, the layers of the skin are
shallower than normal. So blistering can be more severe. Secondary
scarring from sunburn can be more likely. And generally, sun exposure
is not well tolerated by somebody who’s had a second degree burn with
some residual replacement of normal skin by scar tissue.
Q. And in Anthony’s case, is that what you found?
A. Yes.
¶110. Testimony is reliable if it is “grounded in the methods and procedures of science,
[and] not merely a subjective belief or unsupported speculation.” Worthy v. McNair, 37 So.
3d 609, 615 (¶16) (Miss. 2010). Dr. Lineaweaver’s testimony was not a subjective belief or
unsupported speculation. It was based on the information before him and his experiences
with thousands of burn patients. Further, Dr. Lineaweaver’s testimony was subject to
extensive cross-examination, where the defense was free to emphasize that Dr. Lineaweaver
had not personally examined Tony since January 12, 2011. Dr. Lineaweaver admitted he did
not know Tony’s final point of healing. Regardless, the jury heard testimony from Tony
himself regarding the long-term effects of his injuries and physically saw Tony’s body when
he removed his shirt at trial.
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¶111. Dr. Lineaweaver’s testimony regarding his opinion of Tony’s permanent or long-term
injuries was properly admitted as relevant and reliable. Any questions regarding the
credibility or weight given to his testimony were subject to determination by the jury. Univ.
Med. Ctr. v. Martin, 994 So. 2d 740, 747 (¶25) (Miss. 2008). Because the evidence shows
that Dr. Lineaweaver’s testimony on Tony’s permanent injuries was relevant and reliable, I
find no abuse of discretion by the trial judge in admitting his testimony. I would affirm on
this issue.
III. Economic-Damages Verdict
¶112. The jury awarded Tony $1,500,000 in economic damages. Dr. Brooks and EMA
argue, and the majority finds, that this amount was not supported by the credible evidence.
¶113. Dr. Glenda Glover5 testified at trial regarding Tony’s future lost wages. She testified
that based on his permanent injuries, his lost wages were approximately $707,686 with no
college degree and up to $2.5 million with a college degree. Tony’s undisputed medical
expenses were $112,499. The majority takes issue with the fact that Dr. Glover’s testimony
was based in part on Bruce Bawner’s jobs analysis, which was based in part on Dr.
Lineaweaver’s testimony regarding Tony’s permanent injuries. Based on its finding that Dr.
Lineaweaver’s testimony on permanent injuries was unreliable, the majority likewise finds
Dr. Glover’s testimony on lost wages unreliable. Consequently, the majority finds the
economic-damages verdict is improper to the extent it exceeded the undisputed amount of
$112,499.
5
Dr. Glover is not related to the Appellee or her minor son.
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¶114. As I find Dr. Lineaweaver’s testimony was properly admitted, I also find the jury’s
economic-damages verdict should be affirmed. “The amount of damages is a question for
the jury.” Downs v. Ackerman, 115 So. 3d 785, 790 (¶16) (Miss. 2013). A jury award
generally will not be “set aside unless so unreasonable as to strike mankind at first blush as
being beyond all measure, unreasonable in amount and outrageous.” Id. Dr. Brooks
admitted his negligence resulted in Tony being chemically burned. The jury heard and saw
that Tony was scarred. The jury also heard that he was temperature sensitive and had lost
access to certain jobs. The testimony showed Tony’s estimated future lost wages plus
medical expenses fell between $820,185 and $2,612,499. The economic-damages award of
$1,500,000 was not unreasonable considering the evidence presented. I would affirm on this
issue.
IV. Superseding-Cause Jury Instruction
¶115. Finally, the majority finds that the trial court erroneously denied Dr. Brooks and
EMA’s request for superceding-cause jury instruction D-10. It states in part:
[I]f you find from a preponderance of the evidence that Dr. Brooks was
negligent, but that an independent and unforeseeable negligent act by Marty’s
Pharmacy in failing to direct, instruct, counsel or otherwise exercise
reasonable care in compounding and dispensing cantharidin to the Glovers
came after Dr. Brooks’[s] acts and was a substantial factor in causing Anthony
Glover’s injuries, if any, then John Brooks, M.D. and Emergency Medicine
Associates of Jackson, PLLC are not liable for any injuries proximately
resulting from the superseding cause, and your verdict shall be in favor of John
Brooks, M.D. and Emergency Medicine Associates of Jackson, PLLC.
¶116. I find this proposed instruction was correctly refused for two reasons. First, it does
not instruct the jury on Mississippi’s comparative-negligence law. Mississippi is a pure
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comparative-negligence state. Burton v. Barnett, 615 So. 2d 580, 582 (Miss. 1993). “Under
the comparative negligence doctrine, negligence is measured in terms of percentage, and any
damages allowed shall be diminished in proportion to [the] amount of negligence attributable
to the person for whose injury, damage[,] or death recovery is sought.” Id. The proposed
instruction states that the jury must find in favor of Dr. Brooks and EMA if Marty’s
Pharmacy’s actions substantially caused Tony’s injuries. This is not an accurate statement
of the law, as the jury could find and attribute fault to each party. Second, Dr. Brooks’s
theory of defense—that Marty’s Pharmacy’s actions were the proximate cause of Tony’s
injury—was fairly covered in the given jury instructions. The given instructions permitted
the jury to find the pharmacy entirely liable for Tony’s injuries, if that is how it chose to
attribute fault. We will not find error in the refusal of a jury instruction if “the [given]
instructions, taken as a whole, . . . fairly present the applicable law.” Young v. Guild, 7 So.
3d 251, 259 (¶24) (Miss. 2009). “[I]f other instructions [that are given] adequately instruct
the jury, a party may not complain of a refused instruction on appeal.” Id.
¶117. Because instruction D-10 does not accurately reflect Mississippi’s comparative-
negligence law, and because Dr. Brooks and EMA’s theory of defense was covered
elsewhere in the given instructions, I cannot find the trial court erred in refusing proposed
instruction D-10.
¶118. For the reasons stated, I dissent. I find no reversible error and would affirm the jury’s
verdict.
LEE, C.J., JOINS THIS OPINION.
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