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South v. Austin

United States District Court, S.D. Mississippi, Northern Division

August 28, 2017




         This wrongful-death, medical-malpractice case is before the Court on the following motions: (1) Defendants' Motion for Judgment as a Matter of Law [125]; (2) Defendants' Third Motion in Limine [128]; (3) Plaintiffs' Motion in Limine as to Hearsay Statements [131]; (4) Plaintiffs' Motion in Limine re Burden of Proof [132]; (5) Defendants' Motion to Exclude Expert Testimony [138]; and (6) Plaintiffs' Motion to Strike Defendants' Motion to Exclude [147]. The Court rules as follows:

         I. Background

         On March 7, 2013, Sheila South was admitted to the River Region Medical Center for a transvaginal hysterectomy and left salpingo-oophorectomy. Defendant Dr. Joseph Austin, M.D., performed the procedures. Ms. South's condition deteriorated after the surgery, and she ultimately died on March 20, 2013. The case was tried January 23 through 26, 2017, but the jury could not reach a verdict and a mistrial was declared.

         II. Motions

         A. Motion for Judgment as a Matter of Law [125]

         1. Standard

         “Under Rule 50, a court should render judgment as a matter of law when ‘a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (2000) (citing Fed.R.Civ.P. 50(a)) (other citations omitted). Under Rule 50(b), a party may renew its Rule 50(a) motion post trial.

[When] entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. . . . Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.

Reeves, 530 U.S. at 150-51 (internal citations omitted). If the movant meets these standards, the court may then “(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Fed.R.Civ.P. 50(b). In this case, there was no verdict, so there will be a new trial unless the Court grants Defendants' motion for judgment as a matter of law.[1]

         2. Analysis

         Defendants base their Rule 50(b) motion on defects they see in Plaintiffs' expert witness Dr. Tameka Johnson. They also say that the negligence of other caregivers constituted an intervening and superseding cause. For the reasons that follow, the motion will be denied.

         a. Dr. Tameka Johnson

         During trial, Plaintiffs' expert witness testified that Dr. Austin breached the standard of care. Defendants now contend that the testimony was unreliable and failed to establish the essential elements of a medical-malpractice claim. Those elements include:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant's breach of duty was a proximate cause of the plaintiff's injury, and; (4) the plaintiff was injured as a result.

McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (Miss. 2011) (citations omitted).

         There is no dispute that after surgery, Ms. South developed internal hemorrhaging in her abdomen. She therefore received blood transfusions, which caused her vital signs to improve, at least for a while. Though Dr. Austin performed the surgery on March 7, he left the hospital that night, worked the next day, and then went off duty at 5 p.m. on March 8. He left town the next morning for vacation and did not return until after Ms. South's condition was hopeless. There is no suggestion that Dr. Austin was negligent in leaving town. The question is whether he should have taken additional steps while he was on duty before his departure.

         According to Plaintiffs' expert witness Dr. Tameka Johnson, the standard of care required a return to the operating room to control the bleed or alternatively a CT scan to determine the scope and location of the bleed and set a baseline for monitoring it. Dr. Johnson further opined that the failure to take these steps before Dr. Austin departed breached the standard of care and contributed to proximately cause Ms. South's death. Johnson Tr. [126-1] at 31, 38.

         Defendants dispute these core opinions, Defs.' Mot. [125] at 3, and offer their own extensive account of what they believe really happened. See, e.g., Defs.' Mem. [126] at 2, 6-9. In some respects, their account is compelling and would make a strong closing argument. But it also weighs the evidence in ways Rule 50(b) prohibits. As noted, the Court must “disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151.

         As just one example of an argument that weighs the evidence, Defendants say “Dr. Johnson had to admit that every one of the[ ] conditions [that caused death] arose after Dr. Austin left on vacation, and he had no reason to anticipate any of them in a patient who was hemodynamically stable when he left town.” Defs.' Mem. [126] at 6 (citing Johnson Tr. [126-1] at 62). But the lines Defendants cite from the trial transcript say nothing about foresee ability, and Dr. Johnson had previously explained how the conditions Ms. South suffered after Dr. Austin's departure related to conditions known before he left-which is why she says Dr. Austin should have taken a CT scan or performed exploratory surgery before leaving. Johnson Tr. [126-1] at 20, 23-24, 29, and 31.

         Aside from their weight-based arguments, Defendants also contend that Dr. Johnson's testimony is insufficient as a matter law because (1) her opinions fell short of the standards under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); and (2) she opined that the salient decision amounted to a “judgment call.”

         Starting with Rule 702, Defendants say the opinions are unreliable and must be disregarded. Defs.' Mem. [126] at 11. But the cases they cite arose under Rule 56 where the expert's testimony was actually contested. See, e.g., Munoz ...

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