Curtis Brown v. Professional Building Services, Inc.

BEAM, JUSTICE, FOR THE COURT:

¶ 1. Curtis Brown petitioned this Court for a writ of certiorari , claiming the Mississippi Court of Appeals erred in affirming the judgment entered by the Hinds County Circuit Court in favor of Professional Building Services (PBS). Brown claimed the trial court had abused its discretion by admitting certain evidence and by instructing the jury with instructions to which Brown had objected at trial.

¶ 2. Finding that the jury was instructed properly on this evidence and that the testimony was provided by an expert qualified under Mississippi Rule of Evidence 702, we affirm the judgment of the Court of Appeals, and we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. Brown was the former clubhouse manager at Colonial Country Club in Jackson, Mississippi, which closed its doors in 2014. On September 28, 2012, Brown arrived at the clubhouse around 5 p.m. to do a monthly inventory of the "19th Hole Lounge" and "the grill"-a restaurant inside the clubhouse. That night, PBS employees also were at the clubhouse, cleaning and vacuuming the grill area. Around 8:00 p.m., the PBS staff left, leaving Brown alone in the clubhouse.

¶ 4. After finishing his reports, Brown walked around the clubhouse to make sure all of the doors had been locked. Brown testified that, as he approached the grill, he noticed that the overhead lights were off, that the lights were on behind the bar, in the pool area outside, and in the hallway outside the grill. An ice cream machine, a soda machine, and beer signs inside the grill also produced some light. Brown noted that, with this secondary lighting, "[the grill] is never totally dark." On cross-examination, Brown told PBS that there was "quite a bit of light," even though the overhead lights had been turned off.

¶ 5. Brown testified that, "as soon as [he] made the turn" into the doorway of the grill, he stumbled and fell over a chair positioned "right in the doorway." He testified that his whole body went over the chair, the chair turned over, and he hit the ground. He felt immediate pain in his knees and face, then he passed out. When he woke up, he noticed his knees were swollen, but there was no blood. He tried to stand up but fell and fainted again. When he woke up a second time, Brown crawled to his phone and called his brother, who arrived at the clubhouse to take him to St. Dominic Hospital.

¶ 6. On separate occasions at the hospital, and before he was given pain medication, Brown told a doctor and a nurse that he had been injured when he hit a chair while running up stairs at work. But he told Michael Barrett, Colonial's general manager, that he had been injured chasing a mouse through the grill. He later reiterated the mouse story to Grace Owens, a bartender at the clubhouse. However, at trial, Brown testified that he did not remember describing any of these alternative versions of the events.

¶ 7. At St. Dominic Hospital, Brown was diagnosed with a bilateral patellar tendon rupture in both knees and underwent surgery for the injuries a few hours after he was admitted. Brown spent three days recovering in the hospital; then, he was transferred to Methodist Rehabilitation Hospital, where he had two more operations and spent more than two months rehabilitating.

¶ 8. In December 2014, Brown filed a negligence action against PBS. When the trial concluded on March 10, 2016, the jury returned a verdict in favor of the defendant. After reviewing Brown's post-trial motions, the circuit court denied Brown's requests for relief and entered a final judgment on the jury verdict.

¶ 9. Brown timely appealed, raising five issues. Therein, Brown argued that the trial judge had abused his discretion by:

(1) overruling Brown's objection to a photo of a chair in the doorway to the grill, (2) denying Brown's request for a jury instruction that specifically mentioned that the overhead lights in the grill were turned off,
(3) allowing a defense expert in biomechanics to testify that Brown's claim that he suffered bilateral patellar tendon ruptures by walking into a chair was not "plausible,"
(4) excluding one answer from his treating physician's deposition testimony regarding the general possibility that there could be mistakes in medical records, and
(5) by responding to a note from a juror with a general instruction to continue deliberations.

Brown v. Prof'l Bldg. Servs., Inc. , --- So.3d ----, ----, 2017 WL 4641265 , at *1 (Miss. Ct. App. Oct. 17, 2017). The Court of Appeals held that the trial court properly had ruled on Brown's claims and affirmed its ruling. 1 The court first found issues (2), (4), and (5) to have been "well settled, and [that] their discussion and application to the facts of this case would not add value to the jurisprudence of this state." Id. at ----, at *2. (citing Gen. Motors Corp. v. Jackson , 636 So.2d 310 , 311 (Miss. 1992) ). The court analyzed only issues (1) and (3) and discussed only the photograph of a chair in the doorway of the grill and the admissibility of testimony by Dr. Bain-"an expert witness in the field of biomechanics." Id. at ----, at *5. Finding that the circuit court appropriately had allowed the jury to consider both the photograph and Dr. Bain's testimony, the Court of Appeals affirmed the circuit court's verdict, noting that "[t]he jurors were capable of considering the photo and the uncomplicated testimony ... without being confused or misled." Id. at ----, at *5.

¶ 10. Aggrieved, Brown petitioned this Court for a writ certiorari . We granted certiorari to review whether the trial court erred in overruling Brown's objection to certain photographic evidence and expert testimony submitted by the defense.

DISCUSSION

I. Whether the trial court abused its discretion by allowing Exhibit 29 into evidence.

¶ 11. Before trial, Brown filed a motion in limine to exclude several pieces of evidence. Now before this Court is Exhibit 29: a photograph taken by defense counsel several years after the incident in an attempt to recreate the scene of the incident. The photograph was one of many photographs admitted into evidence by the defense to show the jury what the grill and doorway looked like. Unlike the other photographs, Exhibit 29 depicted a chair in the doorway which supported Brown's description of the scene on the night of the incident.

¶ 12. Exhibit 29's recreation was based on a July 2014 statement that Brown had made to his insurer with his counsel present, but later testimony conflicted with portions of the statement. The picture depicts a chair, similar to the one over which Brown claims he tripped, positioned in the doorway of the grill. Both Brown and PBS agreed that the chair should have been rotated 180 degrees from its position in the photograph. Brown also argued that the chair should have been positioned in a different location in the doorway, but testimony about the chair's exact placement in the doorway changed several times throughout the proceeding. At one point, Brown admitted that he did not see the chair at all prior to hitting it.

¶ 13. As reiterated by the Court of Appeals, the standard of review for the trial court's admission and exclusion of evidence is abuse of discretion. Id. at ----, at *4 (citing Tunica Cty. v. Matthews , 926 So.2d 209 (Miss. 2006) ). This Court has "long held that the admissibility of photographs is within the sound discretion of the trial court and that the trial judge has wide latitude and discretion." Id. (quoting Nelson v. Phoenix of Hartford Ins. , 318 So.2d 839 , 843 (Miss. 1975).

A. The Evidentiary Standard for a Recreation Photograph

¶ 14. Applying the analysis in Beasley v. State , the Court of Appeals concluded that "some probative value is the only requirement needed to support a trial judge's decision to admit photographs into evidence." Beasley v. State , 136 So.3d 393 , 401 (Miss. 2014). The court determined that the Beasley holding was directly applicable in that "the photo was consistent with and fairly depicted Brown's recorded statement," with minor "differences in the angle and positioning of the chair" which "could be 'carefully pointed out to the jury.' " Brown , --- So.3d at ----, 2017 WL 4641265 , at *4 (citations omitted). However, the photographs in Beasley do not convey a scene and circumstances similar to the photograph presented in this case. In Beasley , the photographs at issue depicted a "crime-scene and autopsy" and were taken soon after the incident. Id. at 399. There, the Court had been charged with determining "whether to admit particularly graphic photographs into evidence"-not whether an innocuous picture of a chair, taken years after the incident, was admissible. Id. at 400. While some of its principles could apply loosely to the matter before us, the holding of Beasley is not directly on point to the issue before us.

¶ 15. Instead, Gulf, Mobile & Ohio Railroad v. Golden offers a more applicable evidentiary standard for photographic recreations. Golden dealt with photographs of the site where a train accident had occurred hours earlier. Photographs of the actual accident were not present in the record. Gulf, Mobile & Ohio R.R. v. Golden , 221 Miss. 253 , 72 So.2d 446 , 450 (1954). In determining the admissibility of photographs of this nature, the Golden Court held:

The mere fact that a photograph was taken at a time different from that in question does not render it inadmissible if the witness is able to verify it as a substantial representation of the conditions as they existed at the time in question. Nor does the fact that the conditions were somewhat changed before the photograph was taken [render] the photograph inadmissible if the changes were not material, and if the changes are carefully pointed out and brought to the jury's attention.

Id. (emphasis added). See also Nelson v. Phoenix of Hartford Ins. , 318 So.2d 839 , 843 (Miss. 1975) (coming to a similar conclusion on the evidentiary standard for photographs of a building destroyed by a hurricane).

¶ 16. Brown was the only witness to his accident, but it was not an abuse of discretion to find Brown's testimony to have been a fair basis for the admission of the photographs. Although inconsistencies in Brown's statements existed regarding several specific aspects of the photographs, the general premise of the incident remained consistent: late at night, he walked into a chair sitting in the middle of the doorway. Therefore, this Court must determine whether (1) the photographic recreation is a substantial representation of the conditions as they existed at the time in question, and (2) whether the changes carefully were pointed out and brought to the jury's attention.

¶ 17. Both parties agree that the chair should have been rotated 180 degrees from what was shown in Exhibit 29 and that there is contradictory evidence regarding where the chair should have been placed in the doorway. Neither of these issues is material, and the photograph stands as a substantial representation of the alleged accident. Moreover, both issues were pointed out to the jury. Whether the chair was a few inches one way or the other, and whether Brown hit the left or right arm of the chair, is inconsequential.

¶ 18. For the first time, Brown argues in his appellate brief that the lighting of Exhibit 29 was inaccurate. He argues that the picture was taken during the day but the incident happened at night, and therefore the photograph was an inaccurate recreation of the incident. Brown argues that his motion in limine challenged the "relevance, authenticity, and accuracy" of the photograph, which preserved the lighting issue for review. We find this broad language was insufficient to preserve the issue for review.

¶ 19. During argument on the motion in limine and the subsequent trial objection, the parties focused on the placement of the chair, the angle of the chair, and the "advantageous" angle of the photograph; but there was never any discussion of the lighting of Exhibit 29. Brown made clear, specific objections about the misplaced chair in the photograph, but he never made specific objections about the lighting inaccuracies. As we previously have held, objections "on one or more specific grounds constitutes a waiver of all other grounds." Smith v. State , 986 So.2d 290 , 290 (Miss. 2008) (quotation marks omitted).

¶ 20. In an even broader context, discussions regarding the inaccuracies of Exhibit 29 throughout the record focus exclusively on the chair. While there were several occasions where Brown discussed the lighting of the grill in reference to other photographs that recreated the accident, he never addressed lighting or it discrepancies during discussions of Exhibit 29. These discussions about the lighting in other photographs show that Brown was aware that the photographs taken by defense counsel had been brightly lit and that they had been inconsistent with alleged lighting at the time of the incident. But he never raised this point in a discussion about Exhibit 29, nor did he ever suggest that he took issue with this inaccuracy.

¶ 21. Objecting to the "relevance, authenticity, and accuracy" of the photograph was not a sufficient indication that the judge should have taken into account the photograph's lighting when considering whether it was a substantial representation of the scene it was meant to portray. Without more, the judge could not reasonably have known that lighting was an issue during the trial process. Therefore, the lighting inaccuracy was not preserved, and it is procedurally barred on appeal.

¶ 22. With this bar, the only issues before this Court concerning the photograph are Brown's claims of an erroneous camera angle and placement of the chair. Despite those inaccuracies, the photograph was a substantial representation of the incident and its inaccuracies were explained to the jury. As a result, we find that the court did not abuse its discretion in admitting Exhibit 29 into evidence.

B. The Court Order on Exhibit 29

¶ 23. In his order responding to Brown's motion in limine to exclude Exhibit 29 from evidence, the trial judge acknowledged that the scene of the incident was no longer accessible. With that in mind, he held that "the Court will permit the Defendant to offer one photo including the slight chair placement inaccuracy, but the inaccuracy shall be explained to the jury, either through witness testimony or through an agreed stipulation, so as to avoid any confusion to the jury." The trial court later allowed the photograph to be shown to the jury during defense counsel's opening argument.

¶ 24. The trial court provided two avenues for the photograph's admission as evidence, allowing it to be explained to the jury through either witness testimony or agreed stipulation. The parties did not stipulate to an explanation, so clarification via witness testimony was the only avenue by which the evidence could be admitted. The Court of Appeals' dissent argued that the defense's "brief explanation of the recreated picture to the jury [during open argument] does not comport to the trial judge's order regarding the admissibility of the photo." While this is accurate, the dissent overlooked Brown's witness testimony that served to explain the inaccuracies to the jury. The defense's cross-examination of Brown clearly addresses the two core inaccuracies, as discussed in the above section of this opinion:

Q. All right. So tell me, other than the chair being turned the wrong way, is the chair located where it was on September 28, 2012, around 8:00, 8:15, 8:30?
A. No it's not.
...
Q. Okay. So tell me where the chair was.
A. The arm was turned - the arm to the chair was turned towards the bar.
Q. Okay.
A. And it was closer to the door. The back padding of the chair was on the door - closer to the door.

¶ 25. Notably, Brown offered statements throughout discovery that conflicted with this testimony, stating specifically that he did not see the chair prior to hitting it. However, the court's order required only that the photograph's inaccuracy be "explained"; it did not require the explanation to be consistent with all other testimony. Furthermore, although Brown's explanation of the inaccuracies in the photograph occurred after the photograph was used by the defense, the order did not specify that the explanation of the inaccuracies needed to be done before it was admitted. It simply stated that "the inaccuracy shall be explained to the jury." We find that admission of the photograph into evidence complied with the trial court's order on the motion in limine .

II. Whether the trial court abused its discretion by finding Dr. Bain's testimony admissible .

¶ 26. PBS called Dr. Charles Bain to testify as an expert witness about the biomechanics of Brown's alleged chair collision. Dr. Bain received his undergraduate degree in nuclear engineering from the Royal Military College of Canada and his medical degree from Queen's University of Canada. After medical school, he practiced family and emergency medicine in Canada for nineteen years. Over the thirteen years leading up to trial, he worked as a consultant and expert witness for Biodynamic Research Corporation. He also coauthored six published articles in biodynamics and was an adjunct professor at the United States Air Force School of Aerospace Medicine, where he taught flight surgeons about injury mechanisms.

¶ 27. Dr. Bain was brought in by the defense to conduct an "injury causation analysis," which analyzed the likelihood that the alleged impact with the chair caused the bilateral patellar tendon ruptures. Dr. Bain did not do any simulations specifically tethered to the facts of this case and instead, discussed studies outlining the type and severity of incidents that typically result in a bilateral patellar tendon rupture. Dr. Bain compared those findings to Brown's alleged accident.

¶ 28. Dr. Bain testified that walking into and falling over a chair is inconsistent with causes the patellar of tendon rupture. He testified that motion such as "running vigorously," then suddenly stopping, is a common cause of a patellar tendon rupture in an "essentially healthy tendon." He also noted that activities like weightlifting also can create enough force to rupture the tendon. He concluded that it was "highly unlikely" that Brown's injury had been caused by his falling over a chair.

¶ 29. The admissibility of expert testimony is governed by Mississippi Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Miss. R. Evid. 702. See also Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579 , 592, 113 S.Ct. 2786 , 125 L.Ed. 2d 469 n.10 (1993).

¶ 30. Here, the parties do not dispute that Dr. Bain's qualifications and specialized knowledge rendered his testimony admissible in this case. Rather, Brown takes issue with whether Dr. Bain's testimony was based on sufficient facts or data and whether the testimony was the product of reliable principles and methods. "When reviewing a trial court's decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard." Illinois Cent. R.R. Co. v. Brent , 133 So.3d 760 , 779 (Miss. 2013). "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. We find no error in allowing Dr. Bain's testimony.

¶ 31. Brown argued that Dr. Bain's conclusions were "sheer conjecture." Throughout trial and the subsequent appellate briefs, Brown attacked the sources that Dr. Bain used-primarily consisting of orthopedic journals-as insufficient to reach his conclusions. He also argued that Dr. Bain never conducted any tests or simulations about whether walking into a chair could result in a bilateral patellar tendon rupture. However, Brown did not object to Dr. Bain's testimony until the end of the third day of trial, so the record provides very little guidance on these claims. Responding to Brown's late objection, the trial court noted:

The plaintiff has been on notice for nearly five months of Dr. Bain's qualifications, opinions and methodology used in forming those opinions, which even included a multipage document detailing the other cases where he has provided expert testimony. Despite the notice, the plaintiff raised for the first time an objection concerning Dr. Bain yesterday.

Nothing in the record confirms that Dr. Bain's sources were sufficient to back his claims, but the record also does not provide enough evidence to suggest that the sources were lacking a scientific basis. With no other information available in the record, we rely upon the testimony that these articles came from "orthopedic journals." Such testimony is, at face value, consistent with other articles about the forces that might cause a bilateral patellar tendon rupture. Finding no contradictory evidence presented to suggest that these articles lacked a scientific basis, there is nothing to clearly prove that the trial court erred in finding that Dr. Bain's testimony was based on sufficient facts and was the product of reliable principles and methods.

¶ 32. While the strength of Dr. Bain's sources is unclear, the record indicates that Dr. Bain reliably applied the principles and methods to the facts of the case. His conclusions were not "sheer conjecture." His testimony first described the sorts of injuries that normally cause a bilateral patellar tendon rupture and clarified that such an injury requires a powerful force for it to occur. Then, he turned to Brown's collision with the chair and explained that the type and caliber of force in that collision were inconsistent with the causes of a tendon rupture, making it "highly unlikely" that Brown's injury had been caused by his falling over a chair.

¶ 33. Brown's final argument under this issue is that Dr. Bain failed to conduct any simulations or visit the scene of Brown's alleged accident to take measurements. Brown claims that such testing was necessary in this case because he "flipped" over the chair, making this more than just a simple fall. But Dr. Bain's testimony focused largely on the finding that Brown's accident did not involve the type of impact that would cause a bilateral patellar tendon rupture and that hitting the chair would not have created enough force to cause the injury. Brown provides no reasonable explanation regarding why his having flipped over the chair would necessitate a simulation. Therefore, the trial court did not abuse its discretion on this ground either.

¶ 34. With nothing in the record indicating that Dr. Bain's testimony deviated from the requirements of Mississippi Rule of Evidence 702, or that a simulation of the incident was necessary in this case, Brown failed to support his objections to the admission of Dr. Bain's testimony. Accordingly, the trial court did not abuse its discretion in admitting the evidence.

CONCLUSION

¶ 35. We hold that the Court of Appeals properly affirmed the circuit court's decision to allow the jury to consider the photograph marked as Exhibit 29 and Dr. Bain's expert testimony in its deliberations. Finding that the trial court did not abuse its discretion, we affirm the judgments of the Hinds County Circuit Court and the Court of Appeals.

¶ 36. AFFIRMED .

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

Griffis, P.J., Carlton, Fair and Greenlee, JJ., concur. Westbrooks, J., dissents with separate written opinion, joined by Lee, C.J., Irving, P.J., and Barnes, J. Tindell, J., Not Participating.