WALLER, Chief Justice, for the Court:
¶ 1. Regina Corr sued Dr. Charles Robinson for medical malpractice. The jury awarded Regina $55,634.78 for past medical expenses and $420,000 for pain and suffering. Dr. Robinson filed motions for judgment notwithstanding the verdict and for remittitur, which the trial court denied. On appeal, Dr. Robinson argues that the trial court erred in excluding his proffered testimony, in admitting testimony from Regina's expert that was outside her expert's designation, and in denying his request for a remittitur. Finding no error, we affirm the judgment of the Harrison County Circuit Court.
¶ 2. In July 1998, Regina Corr went to the Gulfport Memorial Hospital to give birth to her fourth child. Her obstetrician/gynecologist ("OB/GYN"), Dr. Charles Robinson, decided to deliver Regina's child via Caesarean section ("C-section"). During the C-section, Regina's uterus was lacerated and required surgical repair. Dr. Robinson began placing sutures in the lacerated uterus to bring the torn sides together. According to Dr. Robinson, the uterine tissue he was attempting to repair was friable, which means it pulls apart easily and is difficult to stitch. He described the process as trying to stitch hamburger meat.
¶ 3. Dr. Robinson had tried to remove the ureter
¶ 4. Dr. Robinson then ordered a consultation by Dr. Thad Carter, an urologist, who performed a cystoscopy and visually examined the ureter with a urethroscope. Dr. Carter then discovered that the left ureter was sutured. Dr. Carter was unable to alleviate the obstruction due to the suture, so he placed a nephrostomy tube to drain the urine from the blockage into a nephrostomy bag. The nephrostomy tube is intended to allow the ureter to heal from the obstruction. Regina later sought treatment from another urologist who inserted ureter stents to widen the blocked area until the blockage had dissipated. Regina had no further complaints after mid-May 1999.
¶ 5. In May 2000, Regina sued Dr. Robinson, alleging medical malpractice. She
¶ 6. In May 2003, Regina designated, among others, Dr. Fred Duboe, an OB/GYN, to testify as to the standard of care and causation. In July 2014, Dr. Robinson filed his Second Supplemental Designation of Experts, which identified himself as an expert in the field of obstetrics and gynecology.
¶ 7. Trial began in September 2014. In pretrial motions, Dr. Robinson's counsel raised objections to portions of the trial deposition testimony of Regina's expert, Dr. Duboe, based on nonresponsiveness of some of his answers, and as being beyond the scope of Dr. Duboe's expert designation and expertise. Specifically, Dr. Robinson's counsel moved to exclude Dr. Duboe's testimony that Dr. Robinson had "overestimated" Regina's blood loss, based on his review of the medical records and his evaluation of her hemoglobin levels in the days after the surgery. The trial court overruled these objections and allowed the testimony to go before the jury, finding that Dr. Duboe was responding to a direct question posed by Dr. Robinson's counsel, among other reasons.
¶ 8. During his opening statement, Dr. Robinson's counsel, for the first time, stated that Regina's blood loss was a factor in Dr. Robinson's decision to conclude the surgery, rather than investigate and repair the ureter. Dr. Robinson's counsel also stated that it would have been life-threatening to keep Regina open on the table to investigate and repair the obstruction.
¶ 9. Regina filed and argued a motion in limine to exclude this testimony of Dr. Robinson — that, due to the friability of the tissue he was suturing, and the amount of blood loss from the delivery and laceration, he would not have removed any stitches for fear of causing uncontrollable bleeding. The trial court ruled that the basis of Dr. Robinson's decision to close the surgery was an expert opinion which had not been disclosed, so the trial court sustained Regina's motion to exclude it. In its ruling, the trial court stated, "I don't disagree that Dr. Robinson can testify to what was in his mind at the time that he was performing the procedure. However, that has to have been disclosed as part of discovery, whether it was by answers to interrogatories, or by deposition."
¶ 10. Later during the trial, Dr. Robinson again tried to proffer testimony that he would not have attempted to remove the suture if he had known of its existence due to the friable tissue and potential bleeding. The trial court found such testimony should have been disclosed and that the proffered testimony was highly speculative and made in hindsight, as it was an opinion that was acquired after the surgical procedure had ended.
¶ 11. Testimony also was offered as to Regina's injuries and medical treatment. Medical bills totaling $55,634.78 were admitted into evidence by stipulation of the parties and without objection. Regina testified as to her injuries, medical care, and her pain and suffering as a result of the procedure. Brian Corr, Regina's husband, also testified.
¶ 12. The jury awarded $55,634.78 in past medical expenses, lost wages of $8,507.20, and $420,000 for pain and suffering. Dr. Robinson filed a motion for a judgment notwithstanding the verdict
¶ 13. "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...." M.R.E. 702. If the witness is offering lay testimony, and not an expert opinion, such testimony is confined to "opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." M.R.E. 701.
¶ 14. In some cases, the line between expert opinion and lay opinion can be blurred. For example, there are situations where a doctor, who also is a treating physician and a party to the case, may testify as a lay witness. This Court addressed such a scenario in Scafidel v. Crawford, 486 So.2d 370 (Miss.1986), in which a patient sued her doctor for failing to diagnose and treat a pelvi-abdominal mass. Id. at 371. The doctor's testimony described the facts and circumstances surrounding his care and treatment of the patient. Id. at 372. The doctor stated that, during his treatment, he discovered the patient was anemic. Id. But the doctor did not offer an opinion as to the effect of anemia. Id. The patient argued that the doctor's testimony that she was anemic was an expert opinion and not fact testimony. Id. She also argued it should have been excluded because the doctor was not listed as an expert and the substance of his opinions was not disclosed. Id.
¶ 15. This Court in Scafidel held that the doctor, as a fact witness, did not cross the line between fact testimony and expert opinion when he stated that the patient was anemic. Id. This Court found the opinion was acquired through the care and treatment of the patient during the illness. Id. (emphasis added). The doctor could testify that the patient was anemic without becoming an expert witness, just as he had testified that the patient had fever, chills, and diarrhea. Id. Importantly, "no evidence was presented to the jury of the significance of this condition." Id.
¶ 16. Another instructive case about the testimony of a treating physician who also was a party to the case is Griffin v. McKenney, 877 So.2d 425 (Miss.Ct.App.
¶ 17. The patient in Griffin argued that the doctor's testimony strayed into the area of expert testimony. Id. For example, the doctor:
Id.
¶ 18. The Court of Appeals found that such testimony "was comprised of technical knowledge outside the range of knowledge of an ordinary layperson." Id. The Court of Appeals, though, held he "was testifying as a treating physician who is also a party to the case ... [and that the] description of the surgery and of his care... was limited to that context ... [and that he] never offered an opinion on the standard of care." Id. at 439. But the Court of Appeals held that the doctor's following testimony was impermissible:
Id. at 440 (emphasis added).
¶ 19. The doctor also testified that the patient's "white blood count would have been double what is normal." Id. He "opined if bowel content had been draining into the abdomen, Michael most probably could not have had bowel movements on April 7. He opined that Michael had no symptoms of developing abscesses and stated what those symptoms would have been." Id. at 441.
¶ 20. The Court of Appeals held that, even though the doctor "never opined as to the standard of care, the above testimony was clearly impermissible expert testimony
¶ 21. Dr. Robinson's counsel argues that, here, Dr. Robinson was prevented from explaining his treatment of Regina. The proffered testimony Dr. Robinson tried to submit before the jury is as follows:
¶ 22. The trial court asked Dr. Robinson's counsel why he had failed to disclose this testimony. Dr. Robinson's counsel responded that he did not need to disclose this testimony, since it was not an expert opinion or the standard of care. Dr. Robinson's counsel argued it was the process of what he went through, and it was what "he would have done." (Emphasis added.)
¶ 23. The trial court responded, "You're saying that now in hindsight if I had known that I stitched it I would not have removed it anyway? ... you don't think
¶ 24. Like the physician in McKenney, Dr. Robinson was answering questions which require expert knowledge. The proposed testimony of Dr. Robinson — the opinion that he would not have attempted removal of the suture if he had known of its existence due to friable tissue and potential bleeding — is expert opinion testimony acquired after the surgical procedure had ended.
¶ 25. Before trial, Dr. Robinson denied suturing the ureter and stated that he was not aware of the stitch's presence when he closed the procedure. Dr. Robinson never changed his position, nor did he offer an expert opinion based on a hypothetical, until the trial began. So this opinion was not acquired during the care and treatment of Regina. See Scafidel, 486 So.2d at 372. The trial court correctly observed that the proffered testimony was "hindsight" and could not have been part of Dr. Robinson's treatment or thought process during and immediately after the surgery. Because we review a trial court's exclusion of testimony for abuse of discretion, we find that the trial court did not abuse its discretion in denying Dr. Robinson's proposed testimony. Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss.2003).
¶ 26. Dr. Robinson also argues that, if this Court finds his testimony constitutes an expert opinion, then his expert designation provided Regina with sufficient notice. Mississippi Rule of Civil Procedure 26(b)(4)(A)(i) requires a party to identify each person whom they "expect[] to call as an expert witness at trial, [and] to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Miss. R. Civ. P. 26(b)(4)(A)(i). This
¶ 27. The Second Supplemental Designation of Experts identified Dr. Robinson as an expert in the field of obstetrics and gynecology. Dr. Robinson was designated to testify as follows:
(Emphasis added.)
¶ 28. Stated more concisely, Dr. Robinson was designated to testify that, during the uterus repair, "there was persistent bleeding from the laceration despite the sutures, as the tissue surrounding the laceration was quite friable." Dr. Robinson argues that, given the above, he was properly designated to testify about the standard of care.
¶ 29. Regina argues that nowhere in this designation did Dr. Robinson "disclose in any meaningful fashion, or otherwise, the defense that there was dangerous or uncontrolled bleeding once the uterus was repaired." In fact, Regina argues, the designation states just the opposite: "Hemostasis was achieved, and the remainder of the surgery was completed...." The designation also incorporates by reference the deposition testimony of Dr. Robinson, by which he testified that Regina's blood loss was "within a normal range of repeat C-section and laceration," and that he did not suture the ureter. Regina argues "the designation fails to disclose that Dr. Robinson was even aware that he had sutured the ureter during the procedure or that, if
¶ 30. We find that Dr. Robinson's expert designation was insufficient to put Regina on notice of the proffered testimony and new theory at trial. The very purpose of disclosing expert opinions before trial is "`to prevent trials from being tainted with surprise and unfair advantage[,]'" Griffin, 877 So.2d at 441, and "to prevent trial by ambush." See Nichols, 609 So.2d at 384 (stating that "[i]n no other area is a litigant more vulnerable to ambush than a plaintiff in a malpractice action against a member of some profession."). Based on Dr. Robinson's expert designation, we find that the opinion — he would not have removed the stitch from the ureter due to the threat of uncontrollable blood loss — was not meaningfully disclosed before opening statements at trial. Thus, the trial court did not abuse its discretion in excluding Dr. Robinson's proposed testimony due to his failure to disclose such testimony.
¶ 31. Dr. Robinson finally argues that if this Court finds his expert designation lacking, Regina's challenge still fails, as it is procedurally barred. In Mississippi, "if an answer to an interrogatory regarding an expert witness who will testify at trial is deemed insufficient by opposing counsel, some means of notice of such insufficiency must be given to the opposing party in order to let them know that additional information is desired." Warren v. Sandoz Pharms. Corp., 783 So.2d 735, 742 (Miss.Ct.App.2000). Thus, "when a party receives an evasive or incomplete answer ... the burden once against shifts to the party who has propounded discovery, and they are required to seek relief from the court before sanctions can be imposed." Id. It is "imperative for [the party seeking expert disclosure]... to first seek relief from the trial court and have an order entered before seeking sanctions." Id. at 743.
¶ 32. Counsel for Dr. Robinson argues Regina failed to take this action before seeking to exclude Dr. Robinson at trial, so this issue with Dr. Robinson's expert testimony is not preserved for appeal. We disagree. Warren is easily distinguishable from this case. In Warren, the designation at issue merely stated: "[defendant] reserves the right to call in its case-in-chief any treating physician, any expert witnesses listed by plaintiffs and any expert witness listed by any co-defendant, even if such co-defendant is not a party at the time of trial." Warren, 783 So.2d at 742. Such designation clearly was evasive and incomplete. But Dr. Robinson's expert designation was not clearly evasive and incomplete on its face. Dr. Robinson's designation did, however, lack his theory that he would not have removed the suture in the ureter due to the possibility of uncontrollable bleeding.
¶ 33. As Regina correctly notes, Dr. Robinson's argument that she should have filed notice of insufficiency assumes two things. First, it assumes his designation was deficient or incomplete on its face. Second, it assumes that Regina should have anticipated the opening statement that Dr. Robinson was going to offer testimony and opinions which were inconsistent with his previous deposition and his disclosure. We find that this issue is without merit and that Regina's appeal is not procedurally barred.
¶ 34. The video trial deposition of Dr. Duboe, Regina's expert, was played for the jury. Immediately preceding the testimony at issue over hemoglobin and hematocrit levels, Dr. Duboe was extensively questioned by Dr. Robinson's counsel about Regina's blood loss during the C-section. When Dr. Robinson's counsel asked whether an attempt to investigate and repair the obstructed ureter could have resulted in a fatal loss of blood, Dr. Duboe countered by denying there was a large loss of blood and referred to a medical record which estimated Regina's blood loss at 500 ccs. Dr. Robinson's counsel then referred Dr. Duboe to Dr. Robinson's operative report which estimated blood loss at 900 ccs.
¶ 35. Dr. Robinson's counsel stated that Dr. Duboe characterized Regina's blood loss in a previous deposition as "excessive." Dr. Duboe denied characterizing Regina's blood loss as "excessive" in his previous deposition, and a challenge was made to find the previous deposition testimony. The previous deposition testimony revealed that Dr. Duboe had characterized the blood loss as "extensive" and "within the average expectation of blood loss for a C-section."
¶ 36. Dr. Robinson's counsel then questioned Dr. Duboe about whether the uterine tissue was friable and whether such friable tissue could increase the risk of further bleeding if additional procedures such as an IVP or cystoscopy were performed intraoperatively to verify ureteral integrity. While answering this line of questioning, Dr. Duboe came back to the issue of estimated blood loss and refuted Dr. Robinson's counsel's earlier statements that Regina had suffered an excessive blood loss and that this abnormal blood loss was a factor in Dr. Robinson's failure to conduct intraoperative testing to verify ureteral integrity. The following exchange occurred:
(Emphasis added.)
¶ 37. Dr. Robinson's counsel objected to this testimony based on Regina's failure to
¶ 38. Regina argues it is immaterial whether the expert designation of Dr. Duboe referenced hemoglobin or hematocrit since Dr. Robinson's counsel raised the issue by inviting the response to his own question. See Hartel v. Pruett, 998 So.2d 979, 988 (Miss.2008) ("stating that, although a treatise was not disclosed in discovery in spite of a request, counsel "opened the door" by asking an open-ended question during cross-examination."). Although Dr. Robinson's counsel did not question Dr. Duboe about hemoglobin/hematocrit levels, and although Dr. Duboe was not designated to testify as such, we believe the answer was responsive to Dr. Robinson's counsel's questions as to excessive blood loss and the concerns with performing an intraoperative IVP in light of such blood loss. This Court applies an abuse-of-discretion standard when a trial court decides "whether a party opens the door for an opposing party to inquire about otherwise inadmissible evidence." Id. (quoting APAC-Mississippi, Inc. v. Goodman, 803 So.2d 1177, 1185 (Miss. 2002)). We find that the trial court did not abuse its discretion in allowing Dr. Duboe's testimony about hemoglobin and hematocrit levels, since he was answering questions asked by Dr. Robinson's counsel as to Regina's blood loss.
¶ 39. At the conclusion of the trial, the jury returned an unanimous verdict with the following damages awarded to Regina: $55,634.78 for past medical expenses; $8,507.20 for lost wages; and $420,000 for past physical and emotional pain and suffering. The total jury verdict was $484,141.98. Dr. Robinson argues that the stark contrast between the amount of actual damages and the jury verdict provides an inference of bias, prejudice, or passion by the jury, so a remittitur is required.
¶ 40. Under Section 11-1-55 of the Mississippi Code, this Court may order a remittitur "if the court finds that 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." Miss.Code Ann. § 11-1-55 (Rev.2014). Whether a jury award is excessive is determined on a case-by-case basis. Purdon v. Locke, 807 So.2d 373, 376 (Miss.2001). This Court has applied the following standard to determine whether a jury verdict is excessive:
Estate of Jones v. Phillips ex rel. Phillips, 992 So.2d 1131, 1150 (Miss.2008) (quoting Gatewood v. Sampson, 812 So.2d 212, 222-23 (Miss.2002) (citations and quotations removed)).
¶ 42. Dr. Robinson argues that the award here shocks the conscience and is subject to remittitur. He relies on Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1053 (Miss.2003), in which this Court ordered a remittitur in a personal-injury case. The plaintiff was injured in a car accident and claimed special damages of $41,286. Id. at 1058. The jury awarded $490,000 for pain and suffering, with a total verdict of $532,000. Id. The trial court denied the motion for remittitur, but this Court remitted the award by $300,000, for a total of $232,000. Id. This Court in Bolden concluded "that the scant testimony offered in support of damages for pain and suffering ... [did] not justify such a large award of damages for pain and suffering." Id.
¶ 43. But Bolden is distinguishable from this case. Regina testified as to her injuries, medical care, and pain and suffering as a result of the procedure. Regina's nephrostomy tube was removed around seven months after the C-section, and a series of stents were placed to resume urinary flow to the bladder. Regina testified that the urine collection bag she wore often leaked — sometimes in public — and that it wet her clothing, causing frequent skin rashes and much embarrassment. Regina was required to undergo many medical procedures over the eleven months following the C-section, including the painful placement of a series of ureteral stents. Regina testified she was unable to hold and care for her newborn son for an extended time after his birth due to the pain associated with the ureteral stent and nephrostomy.
¶ 44. Brian Corr, Regina's husband, described Regina's difficulties and how she was unable to care for their newborn son due to the ureteral stent and nephrostomy. He also testified how he repeatedly cleaned the nephrostomy site and that Regina was forced to sleep in a chair in an upright position for a period of time following the C-section to lessen the pain of the ureteral stent and nephrostomy tube.
¶ 45. Considering this testimony, we find that Dr. Robinson has not presented any evidence that the jury verdict was influenced by bias, prejudice, or passion, or that it was contrary to the overwhelming weight of credible evidence. This Court has held that, though the sky is not the limit as to jury verdicts, the jury "necessarily has especially broad leeway" because "pain and suffering is, to a large degree, not susceptible to monetary qualification." Illinois Cent. R. Co. v. Gandy, 750 So.2d 527, 534 (Miss.1999). This Court has upheld jury verdicts that were substantially more than the special damages. See, e.g., Phillips, 992 So.2d at 1150-51 (eleven times the special damages), and Purdon v. Locke, 807 So.2d 373 (Miss.2001) (fourteen times the special damages). The award to Regina of $420,000 for pain and suffering amounts to six-and-a-half times the total special damages. We find that Regina offered credible and substantiated testimony as to her pain and suffering, and that the jury award was not unreasonable or outrageous in light of her testimony. Thus, this issue is without merit.
¶ 46. Dr. Robinson failed to disclose sufficiently in his expert designation the theory that, had he know of the stitch in the ureter, he would not have removed the
¶ 47.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.