Fonville v. Zeid

327 So.3d 658

Daphane FONVILLE, as Parent and Natural Guardian of Derek Fonville, a Minor, Appellant

v.Louay ZEID, M.D. and Usha J. Mehta, M.D., P.A., a Mississippi Corporation, Appellees

NO. 2020-CA-00377-COA

Court of Appeals of Mississippi.

September 14, 2021

ATTORNEYS FOR APPELLANT: GARRY JAMES RHODEN, JONATHAN T. GILBERT, RONALD S. GILBERT, CHRISTOPHER WAYNE WINTER, Greenville

ATTORNEYS FOR APPELLEES: CLINTON M. GUENTHER, TOMMIE G. WILLIAMS, Greenwood

BEFORE WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Daphane Fonville, on behalf of her son Derek Fonville, sued Dr. Louay Zeid and Dr. Usha Mehta (the Defendants) for alleged negligence during Derek's delivery. The jury returned a verdict for the Defendants. Daphane filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The circuit court denied Daphane's motion. Daphane appealed, raising several issues: (1) whether the trial court's decision allowing the Defendants’ experts to render opinions regarding substantive matters not sufficiently disclosed through discovery constituted "trial by ambush"; (2) whether the trial court erred in allowing defense expert witnesses to opine on possible causes within a reasonable degree of probability, including maternal forces of labor; and (3) whether the trial court erred by permitting the Defendants to introduce into evidence administrative discipline information pertaining to Daphane's obstetrical expert witness. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of October 30, 2014, Daphane was admitted to Baptist Memorial Hospital in Southaven, Mississippi, for labor induction after being diagnosed with severe preeclampsia.¹ Dr. Zeid, Daphane's obstetrician-gynecologist, attended to her labor and delivery. Daphane's labor progressed slowly; when it came time for her to push, she was too tired. At that point, Dr. Zeid informed her that he could either use the vacuum to facilitate delivery, or he could perform a caesarean section. Daphane opted to proceed with a vacuum delivery, and Dr. Zeid used a vacuum to advance labor. After Derek's head was delivered, Dr. Zeid noted Derek had shoulder dystocia.² Over the course of three minutes, Dr. Zeid tried to maneuver Derek out using the McRoberts maneuver,³ suprapubic pressure, and delivery of the posterior arm, in an attempt to relieve the shoulder dystocia. After the last maneuver, Dr. Zeid was able to deliver Derek. Derek had a limp arm as well as bruising on his neck and shoulder. He was later diagnosed with a brachial plexus injury, which causes weakness or paralysis in parts of the arm. Unfortunately, Derek's brachial plexus injury is permanent, and he will suffer that condition for the remainder of his life.

¶3. On October 7, 2016, Daphane filed a complaint against the Defendants, alleging that Derek suffered injury and damages as a result of Dr. Zeid's failure to comply with the applicable standard of care during Daphane's labor and delivery. The Defendants subsequently filed an answer and affirmative defenses denying any negligence on Dr. Zeid's behalf. After a lengthy discovery process, the parties ultimately entered into an agreed scheduling order that required discovery to be completed by September 9, 2019.

¶4. On October 3, 2019, the Defendants supplemented the expert opinions of Dr. Martin Tucker and Dr. Kyle Ball, whose depositions had originally been taken in 2018. In their supplemented opinions, both doctors referred to a 2014 monograph⁴ from the American College of Obstetricians and Gynecologists (ACOG) on neonatal brachial plexus palsy. The doctors relied on that monograph as well as other medical literature to opine that maternal forces of labor were strong enough to cause both transient and permanent brachial plexus injuries. On October 28, 2019, Daphane filed a motion to strike those supplemental opinions. That same day, Daphane also filed a Daubert⁵ motion to limit or exclude maternal forces of labor as a defense or, in the alternative, to prevent testimony, argument, or inference of maternal forces of labor as a defense. Following a Daubert hearing, the trial court denied Daphane's motion to strike the defense experts’ supplemental opinions. Additionally, the court denied Daphane's motion to limit or exclude maternal forces of labor as a defense. The court did allow supplemental depositions to occur. As a result of those orders, Daphane deposed the Defendants’ experts for a second time regarding their supplemental opinions. Those depositions occurred in November 2019.

¶5. On December 2, 2019, one week before trial, Daphane filed a motion for a continuance. She alleged that the new opinions from the defense experts substantially changed the claims and defenses for trial and were not based on any new discovery or literature. The trial court ultimately denied Daphane's motion for a continuance but struck portions of the Defendants’ experts’ supplemental opinions. Specifically, the court prohibited Dr. Ball from testifying about "pounds of force or pressure associated with delivery." In addition, the court prohibited Dr. Tucker from testifying to a "reasonable degree of medical probability that endogenous forces are the cause of Derek[ ] Fonville's injury."

¶6. The case proceeded to trial on December 9, 2019. The following witnesses testified in behalf of Daphane: Dr. Berto Lopez, an expert in obstetrics; Tamar Fleischer, a nurse practitioner and life-care planner; Dr. Edith Gurewitsch-Allen (through video deposition), an expert in obstetrics and maternal-fetal medicine; Dr. Ralph Scott, an economist; and Daphane herself. The Defendants presented the following witnesses: Dr. Tucker, an expert in obstetrics and maternal-fetal medicine, and Dr. Ball, an expert in obstetrics. Additionally, Dr. Zeid testified in his own behalf. To avoid repetition, particular testimony from each witness will be discussed when relevant in the analysis.

¶7. At the end of trial, the jury returned a verdict in favor of the Defendants. Daphane's post-trial motions were denied, and she filed a notice of appeal. Daphane now raises numerous issues on appeal, which we address in turn below.

ANALYSIS

1. Whether the trial court's decision allowing the Defendants’ experts to render opinions regarding substantive matters not sufficiently disclosed through discovery constituted "trial by ambush."

¶8. Daphane claims that she was ambushed by Dr. Tucker's and Dr. Ball's supplemental opinions tendered on October 3, 2019, approximately two months before trial. She also claims she was ambushed by the Defendants’ use of the 2014 ACOG monograph because the Defendants did not give her a copy of the entire monograph before trial.

A. Defense Expert Testimony

¶9. Daphane first argues that the Defendants’ failure to disclose Dr. Tucker's and Dr. Ball's expert supplemental opinions and documents before the discovery deadline resulted in a "trial by ambush." "The standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion." Barrow v. May , 107 So. 3d 1029, 1034 (¶10) (Miss. Ct. App. 2012) (quoting Denham v. Holmes , 60 So. 3d 773, 783 (¶34) (Miss. 2011) ). "An appellate court will not overturn the decision of the trial court on an evidentiary issue unless the trial court abused its discretion, meaning that the decision was arbitrary or clearly erroneous."

Id . (citing Worthy v. McNair , 37 So. 3d 609, 614 (¶13) (Miss. 2010) ).

¶10. The Defendants initially disclosed Dr. Ball's and Dr. Tucker's opinions on March 23, 2018. Daphane first deposed Dr. Ball on August 8, 2018, and then deposed Dr. Tucker on October 18, 2018. On November 8, 2018, the parties entered into an agreed scheduling order setting the final discovery deadline for September 9, 2019. However, on October 3, 2019, the Defendants filed supplemental expert disclosures for both Dr. Ball and Dr. Tucker. In that document, the Defendants supplemented both doctors’ opinions and stated, for the first time,⁶ the doctors would opine that maternal forces of labor could cause both a transient and permanent brachial plexus injury, and that was what caused the injury Derek suffered during birth.

¶11. As a result of the newly supplemented opinions, on October 28, 2019, Daphane filed a motion to strike Dr. Ball's and Dr. Tucker's supplemental expert opinions.⁷ On November 25, 2019, the trial court entered an order nunc pro tunc to November 5, 2019, denying Daphane's motion to strike the defense's supplemental expert opinions, stating:

With regard to the portion of the motion that seeks to prevent Defendants’ experts, Dr. Kyle Ball and Dr. Martin Tucker, from testifying regarding opinions expressed in supplements to their opinion disclosures, being informed by counsel for the parties that supplemental depositions of Dr. Ball and Dr. Tucker have been scheduled and will be taken by Plaintiff's counsel before trial the Court finds that portion of the motion is not well taken and is hereby denied.

¶12. Following the court's ruling, Daphane deposed Dr. Ball a second time on November 11, 2019, and Dr. Tucker a second time on November 14, 2019. On December 2, 2019, Daphane filed a motion for a continuance, essentially arguing that the new opinions affected her trial strategy and were not based on any new discovery or literature.⁸ On December 6, 2019, the trial court entered an order nunc pro tunc to December 4, 2019, denying Daphane's motion for a continuance. However, the trial court also struck portions of the Defendants’ experts’ supplemental opinions. Specifically, the court prohibited Dr. Ball from testifying about "pounds of force or pressure associated with delivery." Further, the court prohibited Dr. Tucker from testifying "that endogenous forces of labor" were the cause of Derek's injury. Additionally, the court struck all articles disclosed "on or after" October 3, 2019.

¶13. To be clear, Daphane does not appeal the court's...