CARLSON, Presiding Justice, for the Court:
¶ 1. Atravius Coleman was born at Bolivar County Medical Center (BMC) on February 22, 2002, at 4:23 a.m. Atravius died less than one day later, on February 23, 2002, at 12:05 a.m. His mother, Angelia Patterson, brought a wrongful-death claim against BMC, Dr. Bob Tibbs, and Dr. William McArthur (the defendants), claiming that they had caused Atravius's death either through negligence or by breaching the standard of care. The defendants filed a motion to exclude Patterson's expert witnesses on causation, claiming that their testimony was not reliable. After a two-day Daubert
¶ 2. Patterson now appeals to this Court. We find that the trial court did not abuse its discretion in excluding the experts' testimony and that the trial court did not err in granting summary judgment in favor of Dr. William McArthur. However, we are constrained to find that the trial court erred in granting summary judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center. Thus, we affirm in part and reverse in part the trial court's judgment in favor of all defendants, and we remand this case for further proceedings relating to Patterson's claims against Dr. Tibbs and Bolivar County Medical Center.
¶ 3. Angelia Patterson arrived at BMC on February 21, 2002, and was attended to by Dr. McArthur. She gave birth to a baby boy, Atravius Coleman, on February 22, 2002, at 4:23 a.m. Atravius appeared to be healthy at birth, receiving a nine-out-of-ten APGAR score one minute after delivery and five minutes after delivery.
¶ 5. The defendants claim that Atravius died as a result of hypoplastic left heart syndrome and that the condition is fatal without surgery. Patterson claims that Atravius died from an overdose of Demerol, which he either received from his mother before delivery or after his birth, likely during his circumcision. To support this claim, Patterson retained two expert-causation witnesses: Dr. Steven Shukan and Dr. Steven Hayne.
¶ 6. Dr. Shukan is a board-certified pediatrician. Dr. Shukan's opinion is that Atravius received a lethal dose of Demerol (meperidine) — approximately 100 milliliters — around the same time as his circumcision. To form this opinion, Dr. Shukan used a process called backextrapolation. Dr. Shukan started with the amount of Demerol and normeperidine in the blood sample taken from Atravius after his death.
¶ 7. Dr. Shukan used a half-life of three to three-and-one-half hours in his back-extrapolation calculation. Dr. Shukan testified in his deposition that he referred to his pharmacy textbooks, Nelson's Textbook of Pediatrics, The Physicians' Desk Reference, and WebMD (a website) in forming his opinion. He also stated that he used his professional knowledge of Demerol when forming his overall opinion that Atravius had died from a lethal dose of Demerol. Although Dr. Shukan testified that he had referred to these sources in forming his opinion, he did not state which source specified a half-life of three to three-and-one-half hours. However, he did testify that Demerol has a half-life of two to five hours in adults and that the half-life is a "little longer than the two hours in kids, most authorities would say in the neighborhood of slightly above three hours." He did not testify as to what authorities he was relying upon when he stated that "most authorities" say the half-life of Demerol in a neonate is slightly above three hours.
¶ 8. Patterson also retained Dr. Steven Hayne as an expert-causation witness. Dr. Hayne, a pathologist, performed an autopsy on Atravius. Using the same back-extrapolation process, Dr. Hayne determined that Atravius likely had died from a lethal dose of Demerol that he had
¶ 9. The defendants moved to exclude the expert testimony of both Dr. Shukan and Dr. Hayne. A two-day Daubert hearing was held, and the trial judge ultimately excluded the testimony of Dr. Shukan and Dr. Hayne on Atravius's predeath Demerol levels.
¶ 10. At the hearing, the depositions of Dr. Shukan and Dr. Hayne were admitted, and several other experts testified. Dr. Christopher Long, a forensic toxicologist, testified for the plaintiff. Dr. Long reviewed a number of articles on the half-life of Demerol in neonates and acknowledged that a wide range of half-lives is documented.
¶ 11. Dr. John Cleary, a board-certified pharmacotherapist, testified for the defense. Dr. Cleary testified that there are multiple articles on the half-life of Demerol in newborns and that the average half-life is approximately eleven hours.
¶ 12. Dr. John Joel Donaldson, a licensed physician, also testified for the defense. Dr. Donaldson testified that, contrary to Dr. Shukan's testimony, he had never seen any research or literature that supported the use of a three to three-and-one-half-hour half-life in a newborn.
¶ 13. After the Daubert hearing, the trial court entered an order excluding the testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius's system. The trial judge noted that the half-lives used by Dr. Shukan and Dr. Hayne are of particular significance because the reliability of the doctors' mathematical calculations depends on the correct half-life being used.
¶ 14. With regard to Dr. Shukan's assertion that the half-life of Demerol in a newborn is three to three-and-one-half hours, the trial court stated that:
¶ 15. When discussing Dr. Hayne's opinion that the half-life of Demerol in a newborn is four-and-one-half to five hours, the trial court noted in its order that Dr. Hayne received this number from personnel at the Mississippi Crime Laboratory and in a footnote, stated that "[c]ertainly there is nothing untoward in Dr. Hayne seeking additional input from another expert, a practice which appears not to be uncommon among academicians." The trial court then stated that it had
¶ 16. The trial court concluded its order by finding that:
(Emphasis added in original.)
¶ 17. After the trial court excluded the expert testimony on the predeath levels of Demerol in Atravius's system, it granted summary judgment in favor of all three defendants.
¶ 18. Patterson presents two issues for this Court's consideration: (1) whether the trial court erred in excluding the expert testimony of Dr. Shukan and Dr. Hayne; and (2) whether the trial court erred in granting summary judgment in favor of the defendants.
¶ 19. The standard of review for the admission or exclusion of expert testimony is abuse of discretion. Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 457 (Miss.2010) (citations omitted). This Court should find error in the trial court's decision to exclude expert testimony only if the decision was arbitrary or clearly erroneous. Franklin Corp. v. Tedford, 18 So.3d 215, 237 (Miss.2009) (citing Troupe v. McAuley, 955 So.2d 848, 856 (Miss.2007)).
¶ 20. In addressing Daubert issues, our analysis must be guided by Rule 702, which addresses the admissibility of expert testimony:
Miss. R. Evid. 702.
¶ 21. In Daubert, the United States Supreme Court held that experts should be given wide latitude when offering opinions within their expertise. Daubert, 509 U.S. at 592, 113 S.Ct. 2786. The Daubert Court rejected the Frye
¶ 22. When determining whether expert testimony is admissible, our trial judges should act as gatekeepers and must determine whether the proposed testimony meets the requirements of Rule 702 and Daubert's relevance and reliability prongs. Evidence is relevant if it will assist the trier of fact. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. The offered testimony in today's case is clearly relevant, and the defendants do not dispute its relevance. Because the offered testimony is relevant, our inquiry in today's case will focus on whether the testimony was reliable.
¶ 23. In his order excluding the expert testimony, the trial judge focused on the lack of consensus among a wide range of authorities on the half-life of Demerol in a newborn. He also, however, pointed out that Dr. Hayne and Dr. Shukan had failed to provide an authority that supports the half-lives used in their calculations. Patterson now argues that lack of consensus among authorities is not a valid reason for excluding expert testimony under Daubert.
¶ 24. In support of her argument, Patterson cites Tedford, 18 So.3d at 238, where this Court upheld the trial court's admission of four expert witnesses in a workers' compensation case. The plaintiffs in Tedford were exposed to a neurotoxin while at work, and the expert witnesses testified to the effect the toxin had on the plaintiffs. Id. at 234-36. On appeal, the defendants argued that the trial court had erred in allowing the expert testimony because "none knew of the [neurotoxin] exposure level at which injury occurs in humans," and "none knew of the exposure experienced by the . . . plaintiffs." Id. at 237. This Court noted that the impact of the toxin on humans is a new field of study and that ethical constraints have limited scientists' studies in this field. Id. Ultimately, this Court found that "the absence of data on the exact exposure level at which humans suffer neurologic injury ought not preclude the Plaintiffs' experts from testifying." Id. (emphasis added).
¶ 25. We find Tedford to be distinguishable from today's case. In Tedford, there was an absence of data relating to the subject of the experts' opinions. Id. In today's case there is not an absence of data on the half-life of Demerol in newborns; rather, the defendants presented published data on the subject which contradicts the plaintiff's experts. The shortage of data in this case is an absence of data supporting the half-lives used by the plaintiff's experts.
¶ 26. In Watts v. Radiator Specialty Company, 990 So.2d 143, 150 (Miss.2008), this Court held that expert testimony may be excluded as scientifically unreliable when there is a lack of scientific data supporting the expert's opinion. In Watts, the subject of the expert testimony was the focus of several different studies on which the expert had relied in forming his opinion. Id. at 147. However, none of the studies "provide[d] a basis for the conclusion" that the expert had made. Id. The dissenting opinion in Watts argued that expert opinions need not be supported unequivocally by published studies. Id. at 154. The majority responded by stating that:
Id. at 150 (emphasis added).
¶ 27. In Poole v. Avara, 908 So.2d 716, 724 (Miss.2005), this Court also held that consensus among peer-reviewed materials is not a requirement of admissibility. Citing Daubert, this Court in Poole stated that "[r]equiring that the subject of expert testimony be known to a certainty is not necessary either, however, because, as the Daubert Court pointed out, `there are no certainties in science.'" Id. at 723-24 (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786).
¶ 28. To counter Patterson's argument that the trial court erred in excluding the expert testimony, the defendants cite this Court's recent holding in Hill v. Mills, 26 So.3d 322, 331 (Miss.2010), that "when an expert . . . renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert's opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community."
¶ 29. This Court in Hill distinguished Poole, stating that:
Id. at 332-33 (citations omitted) (emphasis added).
¶ 30. We find that today's case is analogous to Hill. The defendants presented peer-reviewed articles contradicting the expert opinions offered by Patterson, and she failed to provide evidence that the offered opinions have some degree of scientific acceptance and support. The defendants
¶ 31. Patterson is correct in her assertion that lack of consensus among sources does not automatically render an expert opinion inadmissible. An offered opinion that has been contradicted by published and peer-reviewed data, however, must be supported by some evidence of support and acceptance in the scientific community. Patterson has failed to meet this standard. Accordingly, the trial court did not abuse its discretion in excluding the expert witnesses' testimony on the predeath levels of Demerol in Atravius's system.
¶ 32. In the alternative, Patterson argues that today's issue is one of credibility, which is proper for the trier of fact to determine and not the trial court. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1239 (Miss.2007). As part of its gatekeeping role under Rule 702, the trial court is to determine whether expert testimony is reliable. Id. at 1241 (citing Miss. R. Evid. 702 cmt.). "Neither the rule nor its comment mentions any requirement that statements relied upon by an expert using proper, reliable, methodology also be found credible." Id.
¶ 33. In Treasure Bay, the expert witness relied on a statement made by a drunk driver in forming his opinion that the driver was visibly intoxicated when served intoxicating beverages by a casino. Id. at 1237-38. When arguing that summary judgment was improper, the defendants claimed that the trial court should not have relied on the expert's opinion "because it was partially based upon a statement by [the drunk driver], which, according to the defendants, lacks credibility." Id. at 1240. Specifically, the defendants argued that the driver's statement was untruthful. Id. In response, this Court held that:
Id.
¶ 34. Patterson argues that, even if the trial court found the half-lives used by Dr. Shukan and Dr. Hayne to be incorrect, according to this Court's reasoning in Treasure Bay, it was error to exclude the testimony. Patterson supports this argument by claiming that the half-life used in a back-extrapolation calculation is an issue of credibility, which may be attacked through cross-examination or contradicting experts.
¶ 35. This Court, however, has held that "the sufficiency of foundational facts or evidence on which to base an opinion is a question of law." Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31,
¶ 36. We find that the question of whether Dr. Hayne and Dr. Shukan used the correct half-life in their calculations is an issue of reliability, not credibility. The Court in Treasure Bay referred to a "historical account of . . . facts" when finding that statements relied upon by experts need not be judged on their credibility by the trial court in determining whether to accept an expert's opinion. Treasure Bay, 967 So.2d at 1240. The experts in today's case, however, do not rely on a factual statement made by another doctor or a patient. The experts must rely on scientific data to form their opinions. Under Rule 702, these opinions must be based on "sufficient facts or data." Using a correct half-life is essential to performing a correct back-extrapolation calculation. Without the correct data, the experts' calculations will not be based on sufficient data. This is an issue of law which the trial court must determine, not the trier of fact. See Janssen, 878 So.2d at 60; Int'l Paper Co. v. Townsend, 961 So.2d 741, 758 (Miss.Ct. App.2007) (citations omitted) ("The sufficiency of foundational facts or evidence on which an expert bases his opinion is a question of law which must be determined by the trial judge.").
¶ 37. In sum, we find that the trial court did not abuse its discretion in excluding the testimony of Dr. Shukan and Dr. Hayne. Patterson failed to present evidence supporting her experts' testimony when the defendants challenged the reliability of the plaintiff's experts with published data. This lack of support is an issue of reliability, not credibility.
¶ 38. The trial court granted summary judgment in favor of all three defendants after it excluded the testimony of Dr. Shukan and Dr. Hayne. The trial court stated that summary judgment was proper because Patterson could not show causation without the excluded testimony. Patterson now argues that she can show causation without the excluded testimony and that summary judgment was improper.
¶ 39. Because of the unusual procedural posture of this case, a brief discussion of the procedural facts relating to this issue is necessary. The trial court entered its order excluding the testimony of Dr. Shukan and Dr. Hayne on January 14, 2009. It is important to note that the order excluded only the testimony that related to the predeath levels of Demerol in Atravius's system. The order did not exclude the testimony as a whole. On June 11, 2009, the trial court granted summary judgment in favor of all three defendants. The judgment stated that the defendants had made an ore tenus motion for summary judgment. There is no record of the motion, or Patterson's response, in the transcript.
¶ 40. At oral argument, counsel for Dr. Tibbs stated that he had drafted the judgment
¶ 41. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a trial court's grant of summary judgment. Chisolm v. Miss. Dep't. of Transp., 942 So.2d 136, 140 (Miss.2006) (citing Webb v. Braswell, 930 So.2d 387, 395 (Miss. 2006)). This Court examines all evidence, including pleadings, answers to interrogatories, depositions, and affidavits. Id. (citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)). The evidence must be viewed in the light most favorable to the nonmoving party. Id. (citing Hataway v. Nicholls, 893 So.2d 1054, 1057 (Miss. 2005)). Summary judgment is appropriate when the nonmoving party has failed sufficiently to establish an essential element of that party's claim. Buckel v. Chaney, 47 So.3d 148, 153 (Miss.2010) (citations omitted). The essential elements of a medical-malpractice claim are:
Estate of Northrop v. Hutto, 9 So.3d 381, 384 (Miss.2009) (citing Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992)).
¶ 42. The foregoing standard is even more important when considering the unusual procedural history of this case. We are without the benefit of parts of the record commonly used by this Court to guide our analysis of summary judgment issues: the defendants' motion and supporting documents, the plaintiff's response, or a hearing transcript. Thus, in accord with our standard, we examined all the evidentiary matters in this case in the light most favorable to the nonmoving party. After a careful examination of the record, we find that the trial court did not err in granting summary judgment in favor of Dr. McArthur. We do find, however, that the trial court erred in granting summary judgment in favor of BMC and Dr. Tibbs. Because the causation testimony relating to Dr. McArthur is distinct from the testimony relating to Dr. Tibbs and BMC, we address Dr. McArthur first. Then, because of the similar analysis used, we address Dr. Tibbs and BMC together.
¶ 43. Dr. McArthur delivered Atravius and performed his circumcision. The causation testimony relating to Dr. McArthur focused on Dr. Hayne's theory that Angelia Patterson had received an overdose of Demerol during labor and Dr. Shukan's testimony that Atravius had received an overdose of Demerol during his circumcision. Dr. Shukan also testified that Dr. McArthur had breached the standard of care by failing to include a surgical note documenting whether he had given Atravius Demerol during the circumcision. Other than the testimony relating to the Demerol theories, there is no evidence of causation relating to Dr. McArthur in the record. There is no need to discuss the other elements of medical malpractice because Patterson has failed to establish the essential element of causation. See Estate of Northrop, 9 So.3d at 384; Buckel, 47 So.3d at 153. Accordingly, the trial judge did not err in granting summary judgment in favor of Dr. McArthur.
¶ 44. At first blush, one might reasonably assume that a grant of summary judgment in favor of Dr. Tibbs and BMC would be appropriate. The bulk of the testimony in this case involved the Demerol theories propounded by Dr. Hayne and Dr. Shukan. Without this testimony, one would naturally think that Patterson cannot prove causation. Upon close examination of the record, however, this Court finds testimony which tends to show causation on the part of Dr. Tibbs and BMC.
¶ 45. During his deposition testimony, Dr. Shukan essentially discussed the timeline of events leading to Atravius's death, including the standards of care breached and whether those breaches caused Atravius's death. The following are excerpts of Dr. Shukan's deposition:
¶ 46. Dr. Shukan also submitted an affidavit in which he stated that, regardless of the cause of Atravius's condition, Dr. Tibbs should have treated his condition more aggressively. Dr. Shukan stated:
¶ 47. Although one may argue that the foregoing testimony was predicated on the assumption that Atravius died of a Demerol overdose, we must keep in mind that the cause of Atravius's death is an issue for the trier of fact to determine. See Worthy v. McNair, 37 So.3d 609, 620 (Miss.2010) (quoting Causey v. Sanders, 998 So.2d 393, 403 (Miss.2009)). The defendants argue
¶ 48. We also find that Patterson has presented sufficient evidence to withstand summary judgment concerning the other essential elements of a medical-malpractice claim against Dr. Tibbs and BMC. Dr. Tibbs and BMC had a duty to meet the following national standard of care:
Jeffrey Jackson & Mary Miller, 6 Encyclopedia of Miss. Law § 58:5 (Miss. Practice Series 2001) (citing Starcher v. Byrne, 687 So.2d 737 (Miss.1997); Toche v. Killebrew, 734 So.2d 276 (Miss.1999); Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346 (Miss.1990)). Dr. Shukan testified in his deposition to the specific standards that the nurses and Dr. Tibbs should have met while treating Atravius. Dr. Shukan also testified that the nurses and Dr. Tibbs failed to meet some of these standards. Finally, Patterson suffered various damages due to Atravius's death.
¶ 49. When viewing all of the evidence in the light most favorable to Patterson, we find that a genuine issue of material fact exists concerning Patterson's claims against Dr. Tibbs and BMC. Accordingly, we find that the trial court erred in granting summary judgment in favor of Dr. Tibbs and BMC.
¶ 50. The trial court did not commit reversible error in excluding the expert testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius's system. The defendants contradicted the experts' testimony with published, peer-reviewed data, and Patterson failed to respond with evidence showing acceptance and support in the scientific community of the experts' theories. Thus, the trial court's decision to exclude the testimony was not arbitrary or clearly erroneous. The trial court properly granted summary judgment in favor of Dr. McArthur. Without the excluded Demerol testimony, Patterson could not show that Dr. McArthur had caused any injury.
¶ 51. On the other hand, the trial court did err in granting summary judgment in favor of Dr. Tibbs and BMC. Even without the excluded Demerol testimony, evidence in the record supports Patterson's claims against Dr. Tibbs and BMC.
¶ 52. For these reasons, we affirm the trial court's judgment in favor of Dr. William McArthur; however, we reverse the
¶ 53.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.