Daphane Fonville, as Parent and Natural Guardian of Derek Fonville, a Minor v. Louay Zeid, M.D. and Usha J. Mehta, M.D., P.A., a Mississippi Corporation

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00377-COA

DAPHANE FONVILLE, AS PARENT AND APPELLANT
NATURAL GUARDIAN OF DEREK FONVILLE,
A MINOR

v.

LOUAY ZEID, M.D. AND USHA J. MEHTA, APPELLEES
M.D., P.A., A MISSISSIPPI CORPORATION

DATE OF JUDGMENT: 12/19/2019
TRIAL JUDGE: HON. CELESTE EMBREY WILSON
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: GARRY JAMES RHODEN
JONATHAN T. GILBERT
RONALD S. GILBERT
CHRISTOPHER WAYNE WINTER
ATTORNEYS FOR APPELLEES: CLINTON M. GUENTHER
TOMMIE G. WILLIAMS
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 09/14/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

1
Preeclampsia is “[d]evelopment of hypertension with proteinuria or edema, or both,
due to pregnancy . . . .” Preeclampsia, Stedman’s Medical Dictionary (28th ed. 2005),
Westlaw Stedman’s 717640.
2
Shoulder dystocia is the “arrest of normal labor after delivery of the head by
impaction of the anterior shoulder against the symphysis pubis.” Shoulder Dystocia,
Stedman’s Medical Dictionary (28th ed. 2005), Westlaw Stedman’s 274740.
3
The McRoberts Maneuver is a “maneuver to reduce a fetal shoulder dystocia by
flexion of the maternal hips.” The McRoberts Maneuver, Stedman’s Medical Dictionary

2
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.

(28th ed. 2005), Westlaw Stedman’s 526090.
4
A monograph is a detailed written study of a single specialized subject or an aspect
of it.

3
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

5
Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).

4
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,

5
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

6
In the Defendants’ initial designation of expert witnesses, both doctors indicated
reliance on the ACOG monograph, which discusses maternal forces of labor as a potential
cause of transient brachial plexus injuries.
7
The motion to strike never actually specified which parts of the “supplemental
opinions” were new and should be stricken. However, the trial court’s order denying the
motion for a continuance entered on December 2, 2019, and striking the expert testimony
only mentions Dr. Ball’s supplemental testimony as to “pounds of force or pressure

6
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.

associated with delivery” and Dr. Tucker’s testimony that “endogenous forces of labor are
the cause of Derek[][Fonville’s] injury.”
8
After the supplemental depositions, the Plaintiff did not file another motion to strike
the supplemental expert opinions but instead filed a motion to continue. The trial court
denied the motion to continue but, in that same written order, ordered the supplemental
opinions that it had previously denied excluding to be excluded.

7
¶13. To be clear, Daphane does not appeal the court’s denial of her motion for a

continuance.9 Further, Daphane is not appealing the trial court’s striking of the defense

supplemental expert disclosures as part of its denying the motion to continue. She argues on

appeal that the trial court committed reversible error by allowing Dr. Tucker and Dr. Ball to

testify as to those supplemental opinions the trial court previously struck. In particular,

Daphane complains that Dr. Tucker testified to opinions that were previously prohibited by

the court. For example, Daphane cites to Dr. Tucker’s first deposition10 where he stated the

following:

Q: What was the mechanism of injury?

A: I don’t know the answer to that.

Q: Do you know if his permanent injury was caused by endogenous
forces?

A: I can’t say that specifically.

¶14. At trial, Daphane complains about the following testimony elicited by defense

counsel:

DEFENSE COUNSEL: Can maternal forces of labor—do you have an
opinion as to a reasonable degree of medical certainty as to whether maternal
forces of labor can cause severe and permanent brachial plexus injuries?

PLAINTIFF’S COUNSEL: Objection. Your Honor. It directly violates

9
During oral argument before this Court, counsel indicated he was appealing the trial
court’s denial of the motion for a continuance. But the issues raised in counsel’s brief do not
list that denial as an issue on appeal.
10
Daphane first deposed Dr. Tucker on October 18, 2018.

8
what we just were going through.[11]

THE COURT: All right. I’ve ruled that he can testify on potential causes.
I’ll overrule the objection. You may proceed.

DEFENSE COUNSEL: Dr. Tucker, do you have an opinion to a reasonable
degree of medical certainty—and these questions all imply if you have an
opinion to a reasonable degree of medical certainty. You understand that?

DR. TUCKER: Yes, sir, I do.

DEFENSE COUNSEL: I may not repeat that rather cumbersome phrase
every time. Can maternal forces of labor cause severe and permanent
injuries in brachial plexus?

DR. TUCKER: Yes, sir.

DEFENSE COUNSEL: Can maternal forces of labor together with properly
applied physician traction also cause such injuries?

DR. TUCKER: Yes, sir.

DEFENSE COUNSEL: Does the existence of a permanent brachial plexus
injury—a permanent severe brachial plexus injury following shoulder dystocia
prove that the delivering physician caused the injury with the application of
excessive or inappropriate force?

DR. TUCKER: No, sir.

(Emphasis added).

¶15. As for Dr. Ball, Daphane argues that his trial testimony was a “new opinion” not

previously given and violated the pretrial order. However, she fails to specify which

testimony she is referring to, and she made no objection during his trial testimony on that

11
Daphane’s attorney was referring to a long on-the-record discussion concerning his
prior objection to Dr. Tucker testifying as to matters the court had previously prohibited.

9
ground. Even so, Daphane claims both experts’ testimony resulted in “trial by ambush.”

First and foremost, it is hard to comprehend how Daphane can claim ambush when she was

notified of the supplemental opinions on October 3, 2019, questioned Dr. Tucker and Dr.

Ball about those opinions in supplemental depositions that occurred prior to trial, and had

articles disclosed to her on March 23, 2018, detailing the authoritative framework for those

supplemental opinions. Daphane cites no rule or caselaw that prohibits an expert from

updating or modifying his opinion.12 Second, as stated in the court’s ruling, Daphane’s

attorney had already scheduled to depose both experts again and did so on November 11,

2019, and November 14, 2019, respectively. Thus, Daphane had the opportunity to question

both experts on the new opinions and prepare for trial accordingly. Most importantly, the

trial court ultimately struck the supplemental opinions. Therefore, the real question before

this Court becomes: did the trial court commit reversible error as a result of specific

questions asked by defense counsel at trial, objected to by plaintiff’s counsel, and allowed

to come before the jury?

¶16. In reviewing the questions asked by defense counsel, it appears they were in

compliance with the court’s order and spoke of general causes. In ruling on the objection by

12
Granted, the Defendants did violate the scheduling order by supplementing new
expert opinions after the agreed-upon discovery deadline of September 9, 2019. However,
the trial courts of this State are well equipped and perfectly capable of handling discovery
issues, and this trial court did, in fact, handle the discovery issue in this case. The trial
court’s actions in handling the Defendants’ discovery violation are not part of Daphane’s
appeal to this Court.

10
plaintiff’s counsel, the court made clear that the earlier ruling still applied—that the defense

expert was not allowed to opine that endogenous forces were the cause of Derek’s injury.

It was not until cross-examination, when Dr. Tucker was asked that exact question, that he

gave his opinion in this case:

PLAINTIFF’S COUNSEL: You have no opinion that endogenous forces,
that’s forces within, maternal forces of labor and such, the forces within the
body, caused this brachial plexus injury, correct?

DR. TUCKER: May I answer the question? . . . Yes. I do have an opinion
that within a reasonable degree of medical probability the endogenous forces
caused this injury.

(Emphasis added). Based on his initial response, it is clear Dr. Tucker was perplexed and

concerned with answering the question asked by Plaintiff’s counsel. He inquired whether

he could answer the question, obviously attempting to comply with the pretrial order.

¶17. Further, in Dr. Gurewitsch-Allen’s video testimony played for the jury, endogenous

forces of labor was discussed, and she denied that those forces alone could cause the injury

in Derek Fonville’s case. So, this issue essentially becomes one where experts gave different

opinions. Often times, in trial, this is commonly referred to as a “battle of the experts.”13 In

such situations, the jury decides the ultimate issue when experts offer different opinions. In

summary, the court handled the discovery violation. Both sides presented testimony as to

13
In Clark v. State, 315 So. 3d 987, 997 (¶23) (Miss. 2021), Justice Chamberlain
stated for the majority, “That one party’s expert witness contradicts the testimony of the other
party’s expert witness should come as no surprise. We even have a name for it. We call it a
‘battle of the experts.’” (Quoting Hill v. Mills, 26 So. 3d 322, 330 (¶28) (Miss. 2010)).

11
endogenous forces of labor. The Defendants asked questions in a general manner, and

Daphane asked questions that were case specific. The jury ultimately decided the issue of

the cause of Derek’s injury.

¶18. On appeal Daphane does not object to the trial court’s reconsidering the motion to

strike and striking the supplemental opinions. Her counsel at oral argument indicated that

if the evidence of maternal forces of labor was not presented, he “wouldn’t be here.”14

However, Daphane’s own expert testified about maternal forces of labor in her video

deposition. Simply put, Daphane cannot argue she was prejudiced by testimony that she

elicited herself and allowed, without objection or redaction, to be played in her expert’s video

deposition. See, e.g., Edwards v. State, 441 So. 2d 84, 90 (Miss. 1983) (stating that “[i]t is

an old principle that an attorney who invites error cannot complain of it”). Daphane was

certainly aware of the proffered opinions and was allowed to, and did, depose both defense

experts twice. Further, it was her attorney’s questions that brought “endogenous forces of

labor” testimony to the specific facts of this case rather than generally allowed as ordered by

the court. That can hardly be classified as “trial by ambush.” Accordingly, we affirm as to

this issue.

B. The 2014 ACOG Monograph

¶19. In addition, plaintiff’s counsel claimed that he was ambushed by the 2014 ACOG

monograph. At trial, plaintiff’s counsel objected to the introduction of the monograph:

14
In other words, he would not have appealed that issue.

12
PLAINTIFF’S COUNSEL: Before that goes up on screen. Your honor, we
would object. This is hearsay under Rule 803(18)(B). This was—the
monograph itself was never disclosed or provided to us in advance . . . very
specifically, your honor, 803(18)(B) indicates, quote, a treatise used in direct
examination must be disclosed to an opposing party, and this was not.
Therefore, it does not meet the exception. It’s hearsay.

(Emphasis added). The court overruled the objection. As stated above, this Court reviews

the admission or exclusion of evidence under an abuse-of-discretion standard. See Barrow,

107 So. 3d at 1034 (¶10) (quoting Denham, 60 So. 3d at 783 (¶34)).

¶20. In the Defendants’ initial disclosure of expert witnesses on March 23, 2018, they

disclosed their reliance on the 2014 monograph in accordance with Rule 803(18) as follows:

In providing and discussing his opinions Dr. Tucker may refer to any or all of
the following. [These learned treatises are, thus, designated per MRE
803(18) for use at trial.]

1. Shoulder Dystocia, ACOG Practice Bulletin No. 40, 2002.
2. Shoulder Dystocia, ACOG Practice Bulletin No. 178, 2017.
3. Shoulder Dystocia: The Unpreventable Emergency, Am. J. Ob Gyn (2006),
195.
4. Shoulder Dystocia: Is It Predictable, Eur J Ob Gyn Rep Biol 62 (1995).
5. Neonatal Brachial Plexus Palsy, ACOG (2014) . . . .[15]

(Emphasis added) (first brackets in original).

¶21. Mississippi Rule of Evidence 803 provides exceptions to the hearsay rule. In

particular, Rule 803(18)(B) provides that a statement contained in a treatise, periodical, or

pamphlet is excepted from the rule against hearsay if

15
The remaining articles listed are omitted since there is no dispute concerning those
articles on appeal.

13
the publication is established as a reliable authority by the expert’s admission
or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an
exhibit. A treatise used in direct examination must be disclosed to an
opposing party without charge in discovery.

(Emphasis added).

¶22. On appeal, Daphane argues that it was reversible error for the trial court to allow the

monograph into evidence because the Defendants were required to “produce” the monograph

during discovery to satisfy the disclosure requirement under Mississippi Rule of Evidence

803(18).16 However, Daphane’s attorney admitted at oral argument that he had a copy of the

monograph and was familiar with the information contained therein. In fact, Daphane’s own

expert witness, Dr. Gurewitsch-Allen is cited in the monograph at least three times and

testified that she was familiar with at least five members of the monograph task force.

¶23. The ACOG monograph is not an elusive document. It is listed on the ACOG’s

website, easily downloadable, and easily traced with a simple internet search. However,

those facts are not outcome determinative. What is outcome determinative is the language

of the rule itself. Rule 803(18) clearly indicates “disclosed” instead of “produced,” as

alleged by Daphane. There is little doubt and in fact no dispute that the ACOG monograph

was disclosed. It had been disclosed by the defense since March 23, 2018, along with

16
At trial, Daphane’s counsel claimed the ACOG monograph was neither disclosed
nor produced. On appeal, her counsel now argues that it was not “produced” as purportedly
required by Rule 803(18).

14
eighteen other documents listed as being “disclosed” pursuant to Rule 803(18). The

language used in the disclosure even indicated it was being disclosed pursuant to the

language of the rule Daphane now claims as error.

¶24. At the Daubert hearing on November 7, 2019, plaintiff’s counsel admitted to the court

that he was aware of the monograph:

PLAINTIFF’S COUNSEL: The defendants attempt to defend this case by
suggesting this unproven theory, this hypothesis, is that the maternal forces of
labor or endogenous forces can cause a Klumpke’s palsy. The defendants and
their experts have provided some literature to support that position, including
some from a group called ACOG, the American Congress [sic] of Obstetrics
and Gynecology.

Further, at trial during his cross-examination of Dr. Ball, plaintiff’s counsel questioned Dr.

Ball about the monograph and recognized that his own expert witness, Dr. Gurewitsch-Allen,

was cited in the monograph numerous times.

¶25. On appeal, the only argument Daphane makes as to Mississippi Rule of Evidence

803(18) is that the word “disclose” means “produce,” and because the Defendants never

produced the ACOG monograph in its entirety, reversible error occurred. The language in

the Rule states that “[a] treatise used in direct examination must be disclosed to an opposing

party without charge in discovery.” MRE 803(18) (emphasis added). Daphane would ask:

why would the rule address the costs of production if the use of the word “disclosed” only

means to notify and not produce? First, it is important to note that Mississippi’s Rule of

Evidence 803(18)(B) is the only state to include the additional language concerning costs of

production. No other state includes such language. The federal rules of evidence do not

15
include such language either.17 However, the “cost” language can easily be reconciled with

the use of the word “disclosed” in answering the question posed by this issue.

¶26. If a party discloses an intent to use an article or some literature pursuant to Rule

803(18), and the opposing party cannot locate it for preparation for trial, it follows that a

motion to compel could be filed for the “disclosed” article or literature to then be produced.

The rule’s “cost” provision would then guide the court on which party would bear the cost

of production. In this case, no such motion to compel was ever filed in part most likely

because the Plaintiff had a copy, as admitted by her attorney at oral argument. Therefore, the

cost provision of Rule 803(18) would not apply. Since the defense clearly “disclosed” the

ACOG monograph, compliance with the rule occurred, and no prejudice to the Plaintiff can

be shown. Thus, this issue is without merit.

II. Whether the trial court erred in allowing the defense’s expert
witnesses to opine on possible causes within a reasonable degree of
probability, including maternal forces of labor.

¶27. Daphane’s argument under this issue is three-fold. First, she contends that the trial

court erred in permitting Dr. Tucker to opine on possible causes of Derek’s injury that were

not within a reasonable degree of medical probability. Second, she argues that the trial court

allowed improper questioning of the Defendants’ expert witnesses. And finally, she claims

that the trial court erred in allowing Dr. Tucker to testify about maternal forces of labor as

17
Federal Rule of Evidence 803(18) does not contain the sentence, “A treatise used
in direct examination must be disclosed to an opposing party without charge in discovery.”

16
a potential cause of a brachial plexus injury.

A. Reasonable Degree of Medical Probability

¶28. Daphane asserts that Defendants’ experts testified to the incorrect legal standard by

stating “possible” causes rather than the correct “probable” cause legal standard. She further

claims that this error allowed Dr. Tucker to “backdoor” his causation opinion regarding

maternal forces of labor as the cause of Derek’s injury.

¶29. Before Dr. Tucker testified, Plaintiff’s counsel objected to Dr. Tucker testifying to

“medical probability on possible causes.” The court overruled his objection. During his

testimony, Dr. Tucker opined that within a reasonable degree of medical certainty, there were

four potential causes of a brachial plexus injury (1) a positional injury from lying in utero;

(2) maternal, or endogenous, forces of labor; (3) a congenital abnormality; and (4) delivery

maneuvers, even if performed correctly.

¶30. In Martin v. St. Dominic-Jackson Memorial Hospital, 90 So. 3d 43, 48-49 (¶15)

(Miss. 2012), the Mississippi Supreme Court stated:

Mississippi jurisprudence does not require medical testimony to contain any
magical words, but medical testimony is not probative unless it speaks in terms
of probabilities rather than possibilities. “As this Court has frequently said,
verdicts and judgments in civil actions must be based on the probabilities of
the case, not on possibilities; and a verdict, although it is treated with great
respect, has no force to convert a possibility into a probability.” However,
“some speculation in medical matters is allowable and necessary.” “Perhaps
nothing is absolutely certain in the field of medicine, but the intent of the law
is that if a physician cannot form an opinion with sufficient certainty so as to
make a medical judgment, neither can a jury use that information to reach a
decision.”

17
(Citations omitted).

¶31. Here, contrary to Daphane’s assertion, Dr. Tucker did not provide mere possibilities.

He instead provided four potential causes of a brachial plexus injury within a reasonable

degree of medical certainty, which is allowed under Mississippi law. For example, in

Pittman v. Hodges, 462 So. 2d 330, 333 (Miss. 1984), the defendant’s expert witness

provided three alternatives to the plaintiff’s injury, all of which he opined were within a

reasonable degree of medical certainty. On appeal, the supreme court found no error in the

expert’s testimony and reiterated that “absolute certainty is not required for an expert witness

and whenever facts are in dispute, or the evidence is such that fairminded men may draw

different inferences, a measure of speculation and conjecture is allowed.” Id. at 334 (citing

Jesco Inc. v. Shannon, 451 So. 2d 694, 700 (Miss. 1984)). Similarly in this case, Dr. Tucker

opined on alternative causes for a brachial plexus injury, all within a reasonable degree of

medical certainty, and the jury was allowed to draw inferences from those alternative causes

and determine whether the Defendants were liable for medical malpractice.18 In conclusion,

the court did not apply an incorrect legal standard, and we find this argument is without

merit.

B. Improper Questioning

18
As previously stated, the trial court prohibited maternal forces of labor as a specific
cause of Derek’s injury. Dr. Tucker provided generalized testimony on maternal forces of
labor on direct examination and redirect examination. However, when specifically asked by
plaintiff’s counsel’s cross-examination, Dr. Tucker opined that maternal forces of labor was
the actual cause of Derek’s injury. See supra ¶16.

18
¶32. Daphane argues that Defendants improperly posed numerous hypotheticals to both

sides’ witnesses and elicited testimony that was unfounded in scientific data. For example,

Daphane takes issue with a hypothetical defense that counsel asked Dr. Zeid on direct

examination:

DEFENSE COUNSEL: All right. So in a situation hypothetically—well, let
me set it up this way. If a patient a hypothetical patient similar to Ms.
Fonville, was in the second stage of labor for two hours . . . or more but the
baby was doing fine and there were no problems with the mother . . . would the
standard of care require a [cesarean] section?

DR. ZEID: No.

Defense counsel also posed the following hypothetical to Dr. Ball on direct examination:

DEFENSE COUNSEL: If Dr. Zeid had known to the gram, let’s say, at the
time of the last prenatal visit . . . that this baby was going to weigh 4,426
grams, would the standard of care had required a [cesarean] section at the
time?

DR. BALL: No, it would not.

On cross-examination, defense counsel asked Dr. Lopez, one of Daphane’s expert witnesses,

the following:

DEFENSE COUNSEL: You talked about indications for certain medications
and procedures. Does it mean the same to say that a medical procedure is
indicated and that failure to perform that medical procedure at that time is a
breach of the standard of care?

DR. LOPEZ: Well, that’s a very broad hypothetical.

DEFENSE COUNSEL: Well, let me see if I can do better. Does your use of
the word that something is indicated, per se, meaning the failure to do
whatever you’re talking about is a breach of the standard of care?

19
DR. LOPEZ: It can be.

DEFENSE COUNSEL: Does it mean, per se, that if something is indicated
and not done, that equates with a breach of the standard of care? Period. End
of discussion.

DR. LOPEZ: Your hypothetical is very incomplete . . . . I’m unable to
[answer to your question] because of the lack of specificity of the facts that the
standard of care may or may not apply. I think we would all agree in the face
of fetal distress, that cesarean section is indicated because you want to get the
baby out before it has hypoxic injury. It’s also reasonable that if the mother
has not made progress, as was the case here initially, that Dr. Zeid’s decision
to reevaluate her after discussing doing a [cesarean] section in an hour and a
half was a reasonable thing to do and not to perform a cesarean section
because there was no fetal distress.

¶33. Daphane made no objections to any of these hypotheticals at trial. It is well settled

that this Court will not consider arguments raised for the first time on appeal. Bay Point

Prop. Inc. v. Miss. Transp. Comm’n, 201 So. 3d 1046, 1055 (¶18) (Miss. 2016) (citing

Anderson v. LaVere, 136 So. 3d 404, 410 (Miss. 2014)). Consequently, we find this issue

is procedurally barred.

¶34. Procedural bar notwithstanding, “[i]rregularity of hypothetical questions, and

questions that are improperly formed without being misleading, are not ordinarily considered

reversible errors.” Glens Falls Ins. Co. of Glens Falls, N.Y. v. Linwood Elevator, 241 Miss.

400, 419, 130 So. 2d 262, 269 (1961). In reviewing the transcript, this Court cannot say that

the Defendants’ use of hypothetical questions, as complained of by Daphane, amounted to

reversible error.

C. Daubert Hearing on Maternal Forces of Labor

20
¶35. Daphane argues that the trial court failed in its gatekeeping role under Daubert by

allowing the Defendants to use maternal forces of labor as a defense. She reasons that

numerous state courts have rejected that theory as “junk science” and that the Defendants’

experts had no data or scientific evidence to support their argument.

¶36. The admission of expert testimony is in the sole discretion of the trial court. Union

Carbide Corp. v. Nix Jr., 142 So. 3d 374, 388 (¶33) (Miss. 2014). When a party challenges

an opposing party’s opinion as not accepted within the scientific community, the party

offering the testimony must present the trial judge with some evidence indicating that the

opinion has some degree of acceptance and support. Hill v. Mills, 26 So. 3d 322, 331 (¶30)

(Miss. 2010). A lack of consensus among sources does not render an expert’s opinion

inadmissible. Patterson v. Tibbs, 60 So. 3d 742, 751 (¶31) (Miss. 2011). “It is well-settled

law that when conflicting expert testimony is presented, ‘the winner in a battle of the experts

is to be decided by a jury.’” Hathaway v. Lewis, 114 So. 3d 783 787 (¶14) (Miss. Ct. App.

2013) (quoting Hill, 26 So. 3d at 330 (¶28)).

¶37. As previously stated, the parties agreed to a discovery deadline of September 9, 2019.

Daphane initially deposed both Dr. Ball and Dr. Tucker in 2018. On October 3, 2019, the

Defendants filed supplemental expert disclosures for both Dr. Ball and Dr. Tucker. On

October 28, 2019, Daphane filed two motions—a motion to strike the Defendants’

supplemental expert disclosures and a motion to limit or exclude maternal forces of labor as

a defense pursuant to Daubert or, alternatively, to prevent testimony on that issue. On

21
November 6, 2019, the Defendants filed a response in opposition to Daphane’s motion to

limit or exclude maternal forces of labor as a defense.

¶38. The court held a Daubert hearing on November 7, 2019. The Defendants introduced

two exhibits at the hearing. The first exhibit was a copy of the members of the task force

who produced the 2014 ACOG monograph. The second exhibit was a copy of professional

organizations that endorsed the 2014 ACOG monograph. For the remainder of the hearing,

each side presented arguments without any expert testimony. Following the hearing, the

court denied both of Daphane’s motions. Regarding the Daubert motion, the court found that

Defendants had met their burden of proof under Daubert to present maternal forces of labor

as a theory of defense. The court specifically ruled as follows: “[T]he Court, having

considered the motion, Defendants’ response in opposition thereto, and having heard

arguments of counsel, finds that Defendants have met their burden of proof pursuant to

Daubert, and, therefore, that the motion is not well taken, and the same hereby is DENIED.”

Daphane deposed Dr. Ball on November 11, 2019, and Dr. Tucker on November 14, 2019,

and questioned them as to the supplemental opinions on maternal forces of labor.

¶39. Mississippi has adopted the Daubert standard for the admission of expert testimony,

which consists of a “non-exhaustive, illustrative list of reliability factors” and focuses solely

on “principles and methodology, not on the conclusions they generate.” Miss. Transp.

Comm’n v. McLemore, 863 So. 2d 31, 35-36 (¶¶5, 13) (Miss. 2003) (citing Daubert, 509 U.S.

at 579-95). “The objective of the trial court’s gate-keeping responsibilities pursuant to

22
Daubert is to ensure the reliability and relevancy of expert testimony.” Hill, 26 So. 3d at 330

(¶27) (citing Kumho Tire Co. v. Patrick Carmichael, 526 U.S. 137, 152 (1999)). Further,

“[w]hile this Court might consider opposing testimonies in an evaluation of the weight or

sufficiency of the evidence, we have no place comparing the two in determining the

admissibility of one of their opinions.” Clark, 315 So. 3d at 997 (¶23). As previously stated,

that scenario is considered a “battle of the experts,” in which the jury makes the ultimate

decision. Id. (quoting Hill, 26 So. 3d at 330 (¶28).

¶40. At the outset, we note that there is no case in Mississippi preventing maternal forces

of labor from being used as a theory of defense in a medical-malpractice claim. In an attempt

to exclude maternal forces of labor as a defense, Daphane claimed several courts have held

testimony regarding maternal forces of labor inadmissible. Daphane attached several

examples to her Daubert motion, including a decision from an appellate court in Rhode

Island, one appellate court ruling from New York, and three separate unpublished trial court

rulings from Colorado, the District of Colombia, and Pennsylvania. It is worth noting that

all five of those decisions predate the 2014 ACOG monograph. In addition, the Colorado

trial court ruling cited by Daphane was later reversed by the Colorado Supreme Court. See

Ford v. Eicher, 250 P. 3d 262 (Colo. 2011). Relatedly, a number of other states have held

this type of testimony admissible. See, e.g., Taber v. Roush, 316 S.W.3d 139, 153 (Tex. App.

2010); Bayer ex rel. Petrucelli v. Dobbins, 885 N.W.2d 173, 180-83 (Wis. App. 2016); L.M.

By & Through Dussault v. Hamilton, 402 P.3d 870, 876-79 (Wash. App. 2017), aff’d, 436

23
P.3d 803 (Wash. 2019).

¶41. Daphane additionally argues that the Defendants failed to provide evidence to support

maternal forces of labor as a theory of defense. However, the Defendants provided numerous

articles and expert testimony to support their experts’ theory. For example, the Defendants

presented the 2014 ACOG monograph in support of their position that maternal forces of

labor alone can cause neonatal brachial plexus palsy injuries.19 The monograph’s executive

summary states “What is known at this time with reasonable medical certainty is that

[n]eonatal brachial plexus palsy occurs infrequently and can be caused by maternal

endogenous forces or clinician-applied (exogenous) forces or a combination of both.” This

monograph is endorsed by ten different organizations,20 including the American Academy

of Pediatrics, and was sanctioned and created at the direction of the ACOG. Dr. Tucker

testified that maternal (or endogenous) forces of labor are a potential cause of a neonatal

brachial plexus palsy injury. And as previously discussed, when asked on cross-examination,

19
In 2011, the ACOG president-elect called for the formation of a task force on
neonatal brachial plexus palsy. The group consisted of nine subject-matter experts. The
task-force members were directed to answer, among other things, the following questions:
(1) what is the incidence of neonatal brachial plexus palsy?; and (2) what are the endogenous
and exogenous forces inherent in the process of labor and delivery that may cause or
contribute to the development of neonatal brachial plexus palsy?
20
These organizations follow: (1) The American Academy of Pediatrics; (2) The
American Academy of Physical Medicine and Rehabilitation; (3) The American College of
Nurse-Midwives; (4) The American Gynecological and Obstetrical Society; (5) The
American Society for Reproductive Medicine; (6) The Child Neurology Society; (7) The
Japan Society of Obstetrics and Gynecology; (8) The Royal Australian and New Zealand
College of Obstetricians and Gynecologists; (9) The Society for Maternal-Fetal Medicine;
and (10) The Society of Obstetricians and Gynecologists of Canada.

24
he opined that maternal forces of labor were the cause of Derek Fonville’s neonatal brachial

plexus palsy injury. On cross-examination, Dr. Ball likewise testified that maternal forces

of labor were the cause of Derek’s Fonville’s neonatal brachial plexus palsy injury. In doing

so, he relied on medical literature, including the 2014 ACOG monograph. Dr. Gurewitsch-

Allen, Daphane’s expert, agreed with the statement in the 2014 ACOG monograph that

“maternal forces alone are an accepted cause of at least a transient [neonatal brachial plexus

palsy] by most investigators.” However, she disagreed with both defense experts that

maternal forces of labor alone could cause a permanent brachial plexus injury, and, as a

result, she disagreed that maternal forces of labor were the cause of injury in this case. She

further opined that a permanent neonatal brachial plexus palsy injury could only result from

“externally-applied force by the physician.” As previously stated, Dr. Gurewitsch-Allen is

cited numerous times as a reference in the 2014 ACOG monograph. She also admitted that

she testified under oath on a previous occasion that the monograph was “authoritative.”

Additionally, she testified that she personally knew at least five of the task force members

for the monograph, including the chair of the task force.

¶42. Simply put, the Defendants’ experts opined that maternal forces of labor could cause

a transient or permanent neonatal brachial plexus palsy injury, and Daphane’s expert opined

that maternal forces of labor alone could not cause a permanent neonatal brachial plexus

palsy injury. Each side presented its own medical literature and caselaw to support its

position. The Defendants’ experts’ testimony was relevant and supported by medical

25
literature, including the 2014 ACOG monograph, which Daphane’s expert admitted was

authoritative. For the aforementioned reasons, we find no error in the trial court’s decision

overruling the Daubert objection concerning maternal forces of labor.

III. Whether the trial court erred by permitting the Defendants to
introduce into evidence administrative discipline information
pertaining to Daphane’s obstetrical expert witness.

¶43. Finally, Daphane argues that the trial court erred in allowing the Defendants to

impeach Dr. Lopez with administrative discipline information. Daphane further argues that

this information was never disclosed to her during discovery and was “sprung” on Dr. Lopez

during cross-examination.

¶44. This Court reviews the admission or exclusion of evidence under an

abuse-of-discretion standard. Williams v. State, 54 So. 3d 212, 213 (¶5) (Miss. 2011). “For

a case to be reversed on the admission or exclusion of evidence, it must result in prejudice

and harm or adversely affect a substantial right of a party.” Hammons v. State, 918 So. 2d

62, 65 (¶10) (Miss. 2005) (quoting Holladay v. Holladay, 776 So. 2d 662, 672 (¶40) (Miss.

2000)). And “[e]rror is reversible only where it is of such magnitude as to leave no doubt

that the appellant was unduly prejudiced.” Id. (internal quotation mark omitted) (quoting

Holladay, 776 So. 2d at 672).

¶45. At trial, Dr. Lopez was admitted as an expert in obstetrics. During direct examination,

he testified about his participation in five separate committees at several hospitals over the

course of his career. As an elected member of those committees, Dr. Lopez was responsible

26
for supervising other doctors to ensure they provided quality care to patients. For instance,

he described his 2006 executive committee at Columbia Hospital as the “highest political

committee . . . that supervise[d] all aspects of doctor care in a hospital.” He further explained

that the committee “ha[d] a series of rules and regulations that govern[ed] the conduct of the

doctors that work in the hospital.” For several years, Dr. Lopez served as the vice chief of

staff at Columbia Hospital, which was “the second most powerful position in the medical

staff hierarchy.” In that role, he “[made] sure that the doctors [were] behaving correctly.”

Dr. Lopez also served on an obstetrician-gynecologist evaluation committee for St. Mary’s

Hospital, which he described as a supervisory role:

If you’re a child, your mother checks your homework and then the teacher
looks at it. When you’re a doctor, a committee of doctors looks at your work.
And if you’re doing good, they leave you alone; and if you’re doing things that
aren’t quite right, then they take some actions. And if you don’t straighten up,
you get referred to the medical executive committee, which is like the
principal. So you have the principal, the teacher, and the student. So the
doctors are continuously evaluated for the work that they do to make sure that
they are doing things that they’re supposed to be doing.

¶46. During direct examination, Dr. Lopez opined that Dr. Zeid violated the appropriate

standard of care “by failing to perform a cesarean section on the two occasions that he

himself talked to her about performing a cesarean section.” On cross-examination, defense

counsel asked Dr. Lopez whether he had been reprimanded and censored by the Florida

Medical Board of Licensure on three separate occasions. Plaintiff’s counsel immediately

objected, and the court excused the jury and held a bench conference. The trial court

ultimately found that the sanctions were relevant and probative to Dr. Lopez’s expertise.

27
Thus, the court held that the sanctions could be used for impeachment but instructed the

defense not to discuss the facts surrounding each sanction. At that point, plaintiff’s counsel

moved for a mistrial, arguing that the Defendants were required to provide this information

during discovery and did not do so. Defense counsel responded that he was not required to

share documents with plaintiff’s counsel that he intended to use on cross-examination for

impeachment. The trial court denied the motion for a mistrial, and defense counsel

proceeded to question Dr. Lopez about several different administrative complaints filed

against him. Defense counsel requested to mark the complaints and related documents for

identification only, and plaintiff’s counsel objected. The court overruled the objection, and

the documents were mark for identification only as Exhibit 23. The documents were never

shown to the jury.

¶47. On appeal, Daphane fails to provide any rule or caselaw to support her proposition

that impeachment evidence must be disclosed or produced during discovery. There are,

however, clear rules on the admission of evidence of witness credibility and potential bias.

For example, Mississippi Rule of Evidence 611(b) states, “The court may not limit cross-

examination to the subject matter of the direct examination and matters affecting the

witness’s credibility.” Additionally, Mississippi Rule of Evidence 616 states that “[e]vidence

of a witness’s bias, prejudice, or interest—for or against any party—is admissible to attack

the witness’s credibility.” Further, the Mississippi Supreme Court has stated that “[b]ias,

prejudice and credibility are always in issue . . . [and that] [w]ide latitude is permitted in

28
cross-examination to show bias or motive and the [e]ffect on a witness’s credibility.”

Bennett v. State, 933 So. 2d 930, 947 (¶58) (Miss. 2006); see also Isaacks v. State, 337 So.

2d 928, 929 (Miss. 1976).

¶48. In Bennett, the defendant was convicted of capital murder and sentenced to death.

Bennett, 933 So. 2d at 930. At trial, the State elicited testimony that the defendant’s expert

had resigned after the County Coroners of Mississippi petitioned the governor and requested

that she resign. Id. at 947. The expert denied the allegation. On appeal, Bennett argued that

the trial court erred in allowing the State to ask his expert why she left the coroner’s office

in Mississippi. Id. at 946-47. More specifically, he claimed that his expert’s reasons for

leaving in no way affected her credibility or qualifications and were “completely unrelated”

to the case. Id. The Mississippi Supreme Court ultimately held that the State’s questions to

defendant’s expert were entirely proper to show the expert’s personal feelings about the

State’s expert and her reasons for leaving her employment. Id.

¶49. Similar to the expert in Bennett, Dr. Lopez’s impeachment attacked his credibility

under Mississippi Rule of Evidence 611(b). Generally, Dr. Lopez was called to opine that

Dr. Zeid deviated below the standard of care by (1) failing to perform an ultrasound during

the delivery and hospitalization; (2) failing to document an estimated fetal weight prior to

induction of labor; (3) failing to perform a cesarean section before the active phase of labor;

and (4) failing to appropriately deliver Derek by applying more than gentle downward

traction. At trial, the Defendants merely inquired into these prior disciplinary actions and the

29
alleged reasons for them and nothing more. The records of the prior disciplinary actions

were not admitted into evidence, and the specifics of each case were not discussed. The

Defendants’ counsel solely used this prior disciplinary conduct to impeach Dr. Lopez on his

credibility in relation to his supervisory committees at various hospitals.

¶50. Daphane additionally cites to Mississippi Rule of Evidence 609(b) in support of her

argument that the trial court should have excluded this information. However, Rule 609(b)

pertains to the use of prior criminal convictions to attack a witness’s character for

truthfulness and is therefore inapplicable here. The records being admitted are disciplinary

actions, not criminal convictions, that are not being used for the purpose of attacking a

witness’s character for truthfulness. After review, we find no error in the trial court’s

decision to allow the Defendants to impeach Dr. Lopez with prior administrative disciplinary

action.

CONCLUSION

¶51. In conclusion, there was no trial by ambush. Daphane was aware of the defense

experts’ supplemental opinions and had the opportunity to depose them for a second time.

Daphane was aware of the 2014 ACOG monograph, and it was properly disclosed pursuant

to Rule 803(18). Further, the trial court did not err in allowing defense expert witnesses to

opine on possible causes within a reasonable degree of probability, including maternal forces

of labor. And finally, the trial court did not err in allowing the Defendants to impeach Dr.

Lopez with administrative discipline information. Accordingly, this Court affirms the circuit

30
court’s order denying the post-trial motion and entry of judgment for the Defendants.

¶52. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ.,
CONCUR.

31