United States District Court, S.D. Mississippi, Northern Division
P. JORDAN, III UNITED STATES DISTRICT JUDGE.
wrongful-death, medical-malpractice case is before the Court
on the following motions: (1) Defendants' Motion for
Judgment as a Matter of Law ; (2) Defendants' Third
Motion in Limine ; (3) Plaintiffs' Motion
in Limine as to Hearsay Statements ; (4)
Plaintiffs' Motion in Limine re Burden of Proof
; (5) Defendants' Motion to Exclude Expert Testimony
; and (6) Plaintiffs' Motion to Strike
Defendants' Motion to Exclude . The Court rules as
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
Motion for Judgment as a Matter of Law 
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.
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.
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
(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).
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.
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.
dispute these core opinions, Defs.' Mot.  at 3, and
offer their own extensive account of what they believe really
happened. See, e.g., Defs.' Mem. 
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.
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.  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,
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
with Rule 702, Defendants say the opinions are unreliable and
must be disregarded. Defs.' Mem.  at 11. But the
cases they cite arose under Rule 56 where the expert's
testimony was actually contested. See, e.g.,