W. Noel Harris, Administrator of the Estate of Maxine Marshall Harris v. Tykerrious D. Davis and Federal Express Corporation d/b/a FedEx Express

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-01018-COA

W. NOEL HARRIS, ADMINISTRATOR OF THE APPELLANT
ESTATE OF MAXINE MARSHALL HARRIS,
DECEASED

v.

TYKERRIOUS D. DAVIS AND FEDERAL APPELLEES
EXPRESS CORPORATION D/B/A FEDEX
EXPRESS

DATE OF JUDGMENT: 08/05/2024
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: GEORGE F. HOLLOWELL JR.
ALAN L. LANE
SACH D. OLIVER
SAMUEL W. MASON
MONTE ANDREW SHARITS
MATTHEW L. LINDSAY
WILLIAM NOEL HARRIS
ATTORNEYS FOR APPELLEES: DONNA BROWN JACOBS
ARTHUR D. SPRATLIN JR.
KEISHUNNA RANDALL WEBSTER
NICOLE ALISE BROUSSARD
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 03/17/2026
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., LAWRENCE AND LASSITTER ST. PÉ, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Maxine Harris (Maxine) died from injuries she sustained in a motor-vehicle accident.

Noel Harris (Harris), Maxine’s son and the administrator of her estate, filed suit in the

Washington County Circuit Court against Tykerrious Davis and Federal Express Corporation
(FedEx) (collectively, the Appellees), alleging negligence and gross negligence. The trial

court found that Harris’s expert witness’s opinions regarding causation were based on

speculation and conjecture and, therefore, struck the expert’s report. The trial court also

granted summary judgment in favor of the Appellees.

¶2. Harris now appeals from three orders entered by the trial court: (1) the order striking

Harris’s expert witness’s report and opinions, (2) the order granting summary judgment in

favor of the Appellees, and (3) the order denying Harris’s motion for the trial court to

reconsider its previous order limiting discovery.

¶3. After our review, and for the reasons articulated below, we find no error. We

therefore affirm the trial court’s orders.

FACTS

¶4. On September 14, 2017, Maxine pulled out from a stop sign in front of an oncoming

van driven by Davis. Maxine was driving a 2007 Toyota Highlander sports utility vehicle,

and Davis, a FedEx courier, was operating a 2014 Mercedes-Benz Sprinter van. The vehicles

collided, and Maxine eventually died from the injuries she sustained in the accident.

¶5. The accident occurred on South Colorado Street in Greenville, Mississippi. South

Colorado Street is a four-lane, north-south roadway with a posted speed limit of 35 miles per

hour. There are no stop signs or traffic lights for motorists traveling on South Colorado

Street in the area where the accident occurred.

¶6. On the day of the accident, Davis prepared a handwritten statement for his employer,

FedEx, detailing his account of the collision. The record also contains Davis’s deposition

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testimony regarding the collision, which was taken on July 11, 2023, nearly six years after

the accident. Maxine was unable to give a statement or provide any details about the

accident before she died.

¶7. According to Davis, on the day of the accident, he was making deliveries for FedEx.

Davis was driving on Debra Drive and turned left onto South Colorado Street, where he then

entered the right northbound lane. At that time, Maxine was stopped at a stop sign on North

Medical Park Drive, which is approximately 375 to 395 feet north of Debra Drive. As Davis

traveled north on South Colorado Street, Maxine suddenly and unexpectedly pulled out from

her stop sign onto South Colorado Street and attempted to cross two lanes of northbound

traffic and turn left. Davis hit his brakes and swerved to the left but could not avoid hitting

Maxine’s vehicle. The parties do not dispute that Maxine had a stop sign and that Davis had

the right of way.

¶8. At his deposition, Davis testified that an unknown female witness at the scene told

him that she was behind Maxine at the stop sign and honked her horn, which might have

startled Maxine into pulling out onto South Colorado Street. Davis also testified that at the

time of the accident, he was driving approximately 30 to 35 miles per hour. Davis explained

that based on the short distance between Debra Drive and North Medical Park Drive, he did

not believe he could go any faster.

¶9. Emergency vehicles responded to the scene of the accident. For unknown reasons,

the Greenville Police Department did not prepare a contemporaneous accident report,

preserve any photographs of the accident scene, or maintain any witness identities or

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statements. Nearly a year after the accident, Maxine’s daughter reported the accident to the

police department, and the police department made an incident report. The 2018 incident

report states that Maxine suffered a head injury and was unable to provide a statement to the

intake officer. The report reflects that the intake officer contacted Davis, who provided a

statement. Davis informed the intake officer that he was traveling northbound on South

Colorado Street when Maxine pulled out in front of him.

¶10. The record also contains an incident report filed by the Greenville Fire Department.

The report indicates that the fire department received the emergency call at approximately

11:23 a.m. and arrived on the scene at approximately 11:29 a.m. Once officers arrived, they

began rescue efforts to extricate Maxine from her vehicle. The report states that Davis was

traveling northbound on South Colorado Street and that Davis’s vehicle T-boned Maxine’s

vehicle when Maxine pulled out of the Greenville Clinic, turning to travel south.1

¶11. On September 8, 2020, nearly three years after the accident, Harris, Maxine’s son and

the administrator of her estate, filed a negligence suit against the Appellees. Harris asserted

claims of simple negligence against Davis, respondeat superior as to FedEx, and negligent

hiring, training, retaining, and entrusting by FedEx. Harris amended his complaint to assert

gross negligence and punitive damages claims against FedEx.

¶12. On September 20, 2022, the trial court granted the Appellees’ motion for a protective

order limiting discovery, with instructions that discovery would first proceed on the issue of

liability, if any, for Davis’s operation of the FedEx van on the day of the accident. The trial

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The entrance to the Greenville Clinic parking lot is on North Medical Drive.

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court explained that it granted the motion to prevent undue burden and expense to the parties.

¶13. The parties continued with discovery on the issues of whether Davis was negligent

and whether any such negligence proximately caused the accident. The record shows that

little evidence was available regarding the motor-vehicle accident. Harris failed to preserve

Maxine’s vehicle or to document the scene. As stated, the Greenville Police Department (for

unknown reasons) failed to prepare an accident report. Only three or four photographs exist

of the subject vehicles at the scene of the accident. The record contains a diagram and

handwritten statement, both made by Davis on the date of the accident, depicting Davis’s

account of the accident.

¶14. On October 27, 2023, more than six years after the accident, Harris produced an

expert report from Ben Smith, an accident reconstructionist. In the report, Smith opined as

follows: (1) Davis was traveling 52.9 miles per hour at impact; or (2) if Davis braked and

swerved (as he testified), then Davis was going closer to 65 miles per hour at impact; (3)

Davis’s testimony that he was traveling at or below 35 miles per hour was simply not

possible; and (4) Davis’s excessive speed was the sole proximate cause of the accident.

¶15. Harris then filed his motion asking the trial court to reconsider its ruling on the issue

of FedEx’s liability. In the motion, Harris argued that the discovery conducted to date had

produced evidence sufficient to support a prima facie case of negligence stemming from

Davis’s operation of the FedEx van on the date of the accident. Harris accordingly asked the

trial court to allow discovery to go forward on Harris’s claims of negligence and gross

negligence against FedEx. In support of his motion, Harris attached Smith’s October 27,

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2023 expert report. The expert report contained two photographs depicting the FedEx van

at the accident scene that had not been previously produced to the Appellees. In his report,

Smith stated that the photographs were used to determine the final rest position for the

vehicles.

¶16. The Appellees filed an opposing motion and argued that Smith’s expert report

disregarded Davis’s deposition testimony and instead relied on a “speculative theory of

liability.” The Appellees provided a report from their own accident reconstruction expert,

Tim Corbitt, and explained that Corbitt had conducted a series of independent tests that

“debunk[ed]” the report from Harris’s expert.

¶17. In his expert report, Corbitt stated that he tested the acceleration of similar Mercedes-

Benz Sprinter vans containing the same engine as Davis’s van. Corbitt set forth his findings

and the mathematical formulas he used to calculate the speeds of Maxine’s vehicle and

Davis’s van. Corbitt concluded that based on acceleration calculations and actual vehicle

acceleration testing done at the location of the collision, “it is simply not possible” for

Davis’s van to achieve “anything near” the speeds Smith provided in his report. Corbitt also

opined that Maxine is the sole and proximate cause of this collision because she “failed to

yield the right-of-way from her position of rest at the stop sign to the approaching [FedEx

van], pulling out in front of Mr. Davis when his vehicle was in such close proximity to the

intersection to be a hazard to [Maxine] to do so.” Finally, the Appellees claimed that Harris

presented “no exceptional or compelling circumstances entitling Harris to relief under

[Mississippi] Rule [of Civil Procedure] 60(b).”

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¶18. In response to Smith’s opinion about the final rest position of the FedEx van, the

Appellees provided an affidavit from Davis dated February 16, 2024. In the affidavit, Davis

stated that the post-accident photographs relied on by Smith, which showed the van at rest

in the right southbound lane facing north, did not accurately depict the final rest position of

the van. Davis explained that the van came to rest in the left northbound lane (where the

accident occurred) and sometime after the accident, someone moved the van to the

southbound lane to clear a travel lane for traffic. Davis stated that he was not sure if the tow

truck driver or a police officer moved the van.

¶19. On April 26, 2024, the Appellees filed a motion to strike Smith’s expert report,

arguing, among other things, that the report wholly ignored and contradicted Davis’s

hand-written statement and diagram drawing made on the day of the accident as well as his

deposition testimony. The Appellees asserted that Smith’s opinion was based on insufficient

underlying facts and data, which rendered the opinion unreliable, unsupported, untested, and

impossible. The Appellees also claimed that Smith “lacked even the most basic facts and

underlying data typically relied upon by accident reconstructionists, requiring him to make

an unacceptable number of assumptions, yet proceeded to render an opinion on [Davis’s]

speed six years after the fact.” The Appellees further argued that in determining that Davis

was the sole proximate cause of the accident due to his speeding, Smith failed to

acknowledge that Maxine pulled out in front of the oncoming FedEx van from her stop sign.

The Appellees asserted that Smith made no attempt to explain why the speeding was the

cause of the accident.

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¶20. A few days later, the Appellees also filed a motion for summary judgment. In the

motion, the Appellees submitted that because Harris represented to the trial court that he had

“established his burden and has sufficient evidence establishing a prima facie case of

liability,” the motion for summary judgment “is ripe for adjudication.” The Appellees argued

that they were entitled to summary judgment for the following reasons: Harris produced no

evidence that Davis breached any duty, much less that he breached the applicable duty of

reasonable care; Smith’s expert report failed to create a genuine issue of material fact; the

opinions and conclusions in Smith’s expert report should not be accepted by the trial court

because they are untested, unreliable, and hypothetical opinions unsupported by data; the

evidence shows that Maxine’s negligence was the sole proximate cause of the accident and

that Davis’s actions did not cause the collision; and Harris’s claims against FedEx cannot

exist absent a showing of Davis’s negligence.

¶21. Harris filed opposing motions to the Appellees’ motions to strike his expert and for

summary judgment. In his response to the motion to strike his expert, Harris attached a

supplemental expert report by Smith and disclosed two new witnesses for the first time: (1)

Harris himself, who stated he was on the scene of the accident within minutes of its

occurrence, and (2) Larry Moore, an auto-body repairman who repaired the Mercedes-Benz

Sprinter van following the accident. In his response opposing summary judgment, Harris

maintained that he had produced sufficient evidence to support a prima facie case of liability

and requested that the trial court enlarge the scope of discovery to include Harris’s gross

negligence claims against FedEx.

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¶22. After a hearing, the trial court entered orders on all three motions. The trial court

granted the Appellees’ motion to strike the expert reports and opinions after finding that

Smith’s report and opinions fail to meet the requirements of Mississippi Rule of Evidence

702 and Daubert2 for admissibility. The trial court also found that Smith’s report should be

excluded under Mississippi Rule of Evidence 403, because any probative value of admitting

the report was outweighed by the danger of unfair prejudice, confusion of the issues,

misleading the jury, or waste of time.

¶23. The trial court also granted the Appellees’ motion for summary judgment. The trial

court found, after viewing the evidence in the light most favorable to Harris, that Harris

“failed to produce sufficient, competent, or supportive evidence of significant and probative

value to demonstrate Davis breached the established standard of care” or that such breach

proximately caused the accident and injuries. Based on the trial court’s grant of the

Appellees’ motions, the trial court denied Harris’s motion to reconsider.

¶24. Harris now appeals from all three orders.

DISCUSSION

I. Order Striking Expert Report and Opinions

¶25. Harris argues that the trial court erred by excluding Smith’s expert report and

opinions. Harris submits that Smith properly relied on sufficient facts and data to make his

calculations, used reliable principles and methods, and performed a reliable application to

the principles and methods to the known facts of the case. Harris therefore maintains that

2
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993).

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Smith’s qualifications and opinions satisfy the requirements of Rule 702.

¶26. We review a trial court’s decision to admit or exclude expert testimony for an abuse

of discretion. Thompson v. Holliman, 283 So. 3d 718, 721 (¶10) (Miss. 2019). The

admission of expert testimony is within the sound discretion of the trial judge; therefore, the

trial judge’s decision will stand unless “the discretion was arbitrary and clearly erroneous,

amounting to an abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31,

34 (¶4) (Miss. 2003).

¶27. “Under Rule 702, trial courts are charged with being gatekeepers in evaluating the

admissibility of expert testimony.” Mitchell v. Barnes, 96 So. 3d 771, 776 (¶15) (Miss. Ct.

App. 2012). The trial court, as gatekeeper, must determine “whether the expert testimony

rests on a reliable foundation and is relevant to the matter.” Worthy v. McNair, 37 So. 3d

609, 615 (¶16) (Miss. 2010).

¶28. Regarding accident-reconstruction experts, the Mississippi Supreme Court has

clarified that these experts “are permitted to give their opinions on how an accident

happened, the point of impact, the angle of travel, the responsibility of the parties involved

or the interpretation of photographs; however, the trial judge has the discretion to determine

the admissibility and reliability of that expert witness testimony.” Thompson, 283 So. 3d at

725 (¶27). Here, the parties do not dispute Smith’s qualifications as an expert witness. See

Delta Reg’l Med. Ctr. v. Taylor, 112 So. 3d 11, 26 (¶44) (Miss. Ct. App. 2012)

(“Qualification of the expert and the reliability of the expert’s testimony are separate

questions.”). Rather, Harris’s argument on appeal is that the trial court erred in determining

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that Smith’s expert report and opinions were unreliable.

¶29. In determining the reliability of the expert’s opinions, Rule 702 provides that

[a] witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: . . .
[(1)] the testimony is based on sufficient facts or data; [(2)] the testimony is
the product of reliable principles and methods; and [(3)] the expert has reliably
applied the principles and methods to the facts of the case.

Id. We recognize that “an expert’s opinion is reliable if it is grounded in ‘the methods and

procedures of science, not merely his subjective beliefs or unsupported speculation.’” Fields

v. Gulf Publ’g Co., 284 So. 3d 876, 883 (¶17) (Miss. Ct. App. 2019) (quoting McLemore,

863 So. 2d at 36 (¶11)).

¶30. “Ultimately, if an expert’s testimony survives the threshold scrutiny under Rule 702,

it is subject to further review under Rule 403.” Denham v. Holmes ex rel. Holmes, 60 So.

3d 773, 784 (¶38) (Miss. 2011). “[E]xpert evidence can be both powerful and quite

misleading[,] [and a] . . . lack of reliable support may render expert testimony more

prejudicial than probative under Rule 403.” Id. (citations and internal quotation marks

omitted).

¶31. In the present case, Smith provided his expert report detailing his opinions regarding

the September 2017 accident. Smith stated that in preparing his report, he reviewed the

following documents and evidence: the incident report filed with the Greenville Police

Department nearly a year after the accident; the Greenville Fire Department’s fire-rescue

report; four on-scene photographs; eleven post-crash photographs; a National Highway

Traffic Safety Administration crash overview summary; geographical, astronomical, and

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weather history research of the crash site; specification research and vehicle identification

number (VIN) verification of a 2007 Toyota Highlander; specification research and VIN

verification of a 2002 Mercedes-Benz Sprinter; inspection and aerial mapping of crash site;

a vehicle valuation report for a 2007 Toyota Highlander; Davis’s deposition; and the

Appellees’ interrogatory answers and responses to requests for production of documents.

¶32. Smith explained that he relied on the at-scene photos to determine final rest positions

for the vehicles. He scaled the final rest positions into a 3D drone map created from the

documentation collected during Smith’s inspection of the crash site. Smith combined all this

information and created a single diagram depicting the approximate pre-crash, impact, and

final rest positions of the vehicles.

¶33. Smith then input the approximate positions of the vehicles at impact and at final rest

into a simulation program to determine the parties’ pre-impact speed. Smith explained that

the simulation program uses impact and departure angles, vehicle weights, and post-impact

speed to arrive at pre-impact speeds. Smith stated that in order to account for and encompass

any “unknowns,” he ran a total of 20,000 iterations of the crash and then created a range by

adding or subtracting one to three standard deviations from the mean, with the ultimate goal

of arriving at a reliable range for impact speeds.

¶34. Smith calculated that the average result of the 20,000 tests placed the FedEx van at

52.9 miles per hour at impact, with “a one standard deviation” range of 51 to 54 miles per

hour, and they placed the Toyota Highlander at 8.2 miles per hour at impact, with “a one

standard deviation” range of 5.2 to 11.2 miles per hour. Smith observed that the posted speed

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limit on South Colorado Street was 35 miles per hour. Based on the simulations, Smith

opined that Davis was driving in excess of the speed limit by an average of 18 miles per hour.

Smith further stated that the lowest speed reported from the analysis placed Davis at 49 miles

per hour, or 14 miles per hour over the speed limit, and the highest speed from the test is

about 57 miles per hour.

¶35. As to Davis’s deposition testimony that he braked and swerved into the left lane prior

to impact, Smith acknowledged that the lack of documentation of any physical evidence in

the right lane and the lack of electronic data made it difficult to quantify the speed Davis lost

as he braked and swerved. Smith stated, however, that if Davis’s testimony is to be believed,

he would have been traveling significantly faster than 51 to 54 miles per hour prior to impact.

Smith opined that Davis actually would have been driving closer to a speed of 65 miles per

hour to brake and swerve and then have an impact at 51 to 54 miles per hour.

¶36. Based on his analysis, Smith concluded, “Davis’s testimony that he was traveling at

or below 35 [miles per hour] is simply not possible.” Smith explained that “[i]f we assume

that Davis swerved laterally 10 to 12 feet (right lane to left lane) from 30 to 35 [miles per

hour] while braking with a 0.3 longitudinal braking coefficient we see that the lane change

would have resulted in an impact speed of 15 to 20 [miles per hour].” Smith stated that

“Davis could not have struck [Maxine] at 15 to 20 [miles per hour], inflicted the crush and

frame damage evident in the photos of the vehicles, pushed the Toyota 80 feet in a rotation,

and traveled 90 feet also.”

¶37. Smith ultimately opined that “Davis’s decision to drive at speeds significantly over

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the speed limit is the sole proximate cause of this collision.” Smith then concluded that if

Davis had been traveling closer to the posted speed limit, “this incident certainly could have

been avoided without any evasive maneuvers whatsoever.”

¶38. In their motion to strike Smith’s report and opinion, the Appellees asserted that

Smith’s opinion was based on insufficient underlying facts and data, which rendered the

opinion unreliable, unsupported, untested, and impossible. The Appellees also claimed that

Smith “lacked even the most basic facts and underlying data typically relied upon by accident

reconstructionists, requiring him to make an unacceptable number of assumptions, yet

proceeded to render an opinion on [Davis’s] speed six years after the fact.”

¶39. In response, Smith provided a supplemental report in May 2024 acknowledging the

unknown factors and limited evidence regarding the 2017 accident. Smith explained that in

the field of accident reconstruction, unknown and uncertain factors are common and

expected in most post-crash analysis and reconstruction. Smith stated that in the present

case, he performed 20,000 iterations of the 360-degree momentum equation3 to account for

the unknown and uncertain factors that exist due to the limited investigation information

obtained at the time of the crash. Smith admitted that certain factors, such as any braking or

evasive action by Davis, were uncertain. However, he maintained that a reliable range can

be known based on the sheer volume of calculations performed.

¶40. Regarding the final rest position of the FedEx van, Smith acknowledged Davis’s

3
Smith explained that the method he used to arrive at his conclusions is a 360-degree
momentum analysis in conjunction with what is referred to as the Monte Carlo method.
Smith provided this equation in his report.

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affidavit suggesting that someone moved the van after the accident and prior to the at-scene

photographs being taken; however, Smith stated that based on the photographs depicting the

condition of the van after impact and Larry Moore’s affidavit confirming the post-crash

mechanical damage, “[his] opinions related to the final resting position of the van remain

unchanged.”

¶41. After Smith issued his first expert report, a dispute arose between the parties as to

Davis’s route prior to the accident. Smith addressed this dispute in his supplemental report,

acknowledging that his original calculations did not rely upon the distance between Debra

Drive and the area of impact for the crash. Smith instead relied on the documented delivery

evidence from the date of the crash produced by FedEx that showed Davis’s last delivery

prior to the crash was made to 1693 South Colorado Street. Smith opined that the distance

from 1693 South Colorado Street to the point of impact (approximately 2,223 feet with no

stop signs or traffic-signal-controlled intersections) “is more than adequate” for Davis to

attain the speeds produced by Smith’s calculations, the resulting damage to both vehicles, the

post-crash travel distances, and the documented final rest positions. Smith also cited an 2014

Mercedes-Benz Sprinter acceleration test, which he provided in his supplemental report, and

further opined that if Davis was traveling from 1693 South Colorado Street, the FedEx van

“could have easily achieved the speed range for impact from my original report.”

¶42. In its order granting the Appellees’ motion to strike Smith’s report and opinions, the

trial court determined that Smith’s report and opinions were unreliable and therefore “do not

pass muster” under Rule 702, Daubert, or Rule 403. The trial court found that based on the

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minimal known facts surrounding the collision, “Smith has no choice but to speculate and

assume multiple key points.” The trial court noted that Smith acknowledged the “unknown”

and “uncertain” factors in the collision, such as any braking and evasive action by Davis, the

actual area of impact in the roadway, and the position, location, and speed of the vehicles at

impact. The trial court further found that Smith failed to reference any possible evasive

action taken by Maxine. Regarding the parties’ dispute as to Davis’s route prior to the

collision, the trial court found Smith’s efforts to ignore Davis’s statement, diagram, and

deposition testimony detailing his route to be speculative and unreliable.

¶43. Citing Rule 702(d), the trial court determined that the lack of specific, reliable facts

and data from the accident left the trial court without a way to assess whether Smith’s

opinions are based in sound methodology and reliably applied to the facts of this case. The

trial court held that Smith’s opinions, set forth as a “reliable range” based on “unknown

and/or uncertain factors,” included too many assumptions and resulted in speculation and

conjecture, as opposed to sufficient facts or data. The trial court explained that it is not

required “to admit opinion evidence which is connected to existing data only by the ipse dixit

of the expert. A court may conclude that there is simply too great an analytical gap between

the data and the opinion proffered.” (Citing Denham, 60 So. 3d at 788 (¶53)). The trial court

further determined that Smith’s “speculative opinions” would not be cured by “vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden

of proof.” (Citing Denham, 60 So. 3d at 784 (¶37)).

¶44. The trial court held that in addition to failing to meet the admissibility requirements

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of Rule 702 and Daubert, Smith’s report and opinions should also be excluded under Rule

403 because any probative value of admitting the report and opinions was outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury, or waste of time.

¶45. After our review, we find that the trial court ruled within its discretion to exclude

Smith’s expert report and opinions. In a similar case, Mitchell, 96 So. 3d at 778 (¶25), this

Court reversed the trial court’s decision to admit the expert testimony of an accident

reconstructionist after finding that the testimony did not comply with Rule 702 or Daubert.

In that case, the plaintiff and defendant were involved in a motor vehicle collision. At trial,

the expert witness offered his opinions regarding the cause of the accident and the speed the

plaintiff was traveling at the time of the accident. On appeal, this Court found the expert’s

opinions were purely speculative in that the expert witness

(1) did not know the distance the [plaintiff’s] motorcycle traveled after hitting
[the defendant’s] car; (2) did not know the exact location where the motorcycle
came to rest; (3) was given an estimate of between fifty and one hundred feet
by [a police officer] of the distance between impact and the motorcycle’s
resting place; (4) did not have any physical evidence from the scene of the
accident to review; (5) “picked” a coefficient-of-friction number to determine
the speed of [the plaintiff’s] motorcycle at the time of the accident; (6) did not
have photographs of the accident scene; (7) did not inspect [the] motorcycle;
(8) relied on the recollections of [a police officer] and other eyewitnesses more
than one year after the accident in formulating his expert opinions; and (9) did
not record the interviews with [the defendant] or the other eyewitnesses.

Mitchell, 96 So. 3d at 778 (¶24).

¶46. In Denham, 60 So. 3d at 789 (¶57), the Mississippi Supreme Court affirmed the trial

court’s exclusion of an expert witness’s testimony “that was clearly speculative and based

on insufficient data.” In that case, the expert witness, an accident reconstructionist,

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concluded that the plaintiff’s vehicle had not caused an immediate hazard when turning in

front of the defendant and that the defendant should have avoided the accident. Id. at 787

(¶51). The expert witness based his conclusion on “basic mathematics and the lack of skid

marks.” Id. at 784 (¶39). However, the expert failed to explain why skid marks were

necessary to conclude that the plaintiff was not negligent. Id. at 787-88 (¶¶52-53). The

supreme court ultimately found that an obvious “analytical gap” existed between the data and

the expert’s conclusions, which rendered the expert’s conclusion regarding causation

unreliable. Id. at (¶54). The supreme court also found that the expert witness’s “conclusion

regarding whether [the plaintiff] had created an immediate hazard was not based on

specialized, technical, or scientific knowledge.” Id. at 788 (¶55); See MRE 702 (requiring

“scientific, technical, [or] specialized knowledge”).

¶47. In the case before us, the record contains very little physical evidence regarding the

accident. Davis was the only eyewitness who was able to provide any information regarding

the collision. In his expert report, Smith acknowledged the minimal physical evidence.

Additionally, Smith provided his report and opinions more than six years after the accident,

and the report reflects that he was not able to inspect the actual vehicles involved in the

accident. Smith acknowledged that unknown and uncertain factors existed in this case, such

as any braking and evasive action by Davis, but Smith maintained that he could reach “a

reliable range” based on the sheer volume of calculations he performed. However, Smith

admitted that in calculating the vehicles’ speeds, he did not rely upon the distance between

Debra Drive and the area of impact for the subject crash. Additionally, in opining that

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Davis’s speed was the proximate cause of the accident, Smith failed to acknowledge that

Maxine pulled out in front of Davis.

¶48. After our review, we find that the trial court did not abuse its discretion in excluding

Smith’s expert report and opinions.

II. Order Granting Summary Judgment

¶49. Harris next argues that the trial court erred by granting summary judgment in favor

of the Appellees. Harris maintains that because genuine issues of material fact exist in this

case—namely, Davis’s route leading up to the accident, the final rest position of the FedEx

van, and whether Davis’s negligence in operating the FedEx van was the proximate cause

of Maxine’s death—summary judgment is improper.

¶50. We apply a de novo standard when reviewing a trial court’s grant of summary

judgment. Todd v. First Baptist Church of W. Point, 993 So. 2d 827, 829 (¶9) (Miss. 2008).

Pursuant to Mississippi Rule of Civil Procedure 56(c), summary judgment is properly granted

when “there is no genuine issue as to any material fact and . . . the moving party is entitled

to summary judgment as a matter of law.” In this case, the Appellees, as the parties moving

for summary judgment, “bear[] the burden of proving that no genuine issue of material fact

exists, and the evidence is reviewed in the light most favorable to the nonmoving party.”

Rogers v. Barlow Eddy Jenkins P.A., 22 So. 3d 1219, 1222 (¶9) (Miss. Ct. App. 2009). To

avoid summary judgment, Harris, as the non-moving party, must establish that a genuine

issue of material fact exists concerning one or more of the elements required to prove his

claim. “If any triable issues of fact exist, the lower court’s decision to grant summary

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judgment will be reversed. Otherwise the decision is affirmed.” Williams v. Potter & Sims

Foods Inc., 226 So. 3d 1265, 1267 (¶6) (Miss. Ct. App. 2017). In meeting this burden, Harris

“cannot sit back and rest on the allegations in [his] pleadings.” Dolgencorp LLC v. Payton,

366 So. 3d 838, 842 (¶13) (Miss. 2023). Rather, he must “produc[e] sufficient evidence of

the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the

burden of production at trial.” Id.

¶51. To succeed on his negligence claim, Harris must “prove by a preponderance of the

evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury.” Burns v. Gray, 270 So.

3d 1084, 1088 (¶14) (Miss. Ct. App. 2018) (quoting Rogers, 22 So. 3d at 1222 (¶11)). In

order to survive summary judgment, Harris “must put on evidence showing that [Davis]

breached a duty of care and that the breach proximately caused [Maxine’s] injury.” Id.

“Proximate cause requires: (1) cause in fact; and (2) foreseeability.” Id. “Cause in fact

means that the act or omission was a substantial factor in bringing about the injury, and

without it the harm would not have occurred.” Id. We recognize that while “causation is

generally a matter for the jury[,] . . . a plaintiff must still produce a genuine issue of material

fact regarding causation in order to reach a jury.” Knox v. Mahalitc, 105 So. 3d 327, 330

(¶12) (Miss. Ct. App. 2011) (citations omitted).

¶52. In the Appellees’ motion for summary judgment, they argued that Harris failed to

meet his burden of showing that Davis breached any duty, including the duty of reasonable

care, and that Harris failed to provide evidence to show that Davis’s actions were the

proximate cause of the collision that resulted in Maxine’s death. In response, Harris argued

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that he provided sufficient evidence to establish a prima facie case of Davis’s negligence and

that he established that genuine issues of material fact exist, including the final rest position

of the vehicles, Davis’s route prior to the collision, and the speed of the FedEx van at impact.

¶53. The trial court entered a thorough and detailed order granting summary judgment in

favor of the Appellees. The trial court explained that after viewing the evidence in the light

most favorable to Harris, it found that Harris failed to produce sufficient evidence

demonstrating that Davis breached the established standard of care and that such breach

proximately caused the accident and Maxine’s injuries. The trial court acknowledged the

lack of evidence in this case but held that Harris cannot rely on the lack of evidence to defeat

summary judgment. The trial court further ruled that because Harris failed to meet his

burden and produce summary judgment evidence establishing the essential elements of his

negligence claim against Davis, Harris’s vicarious liability and gross negligence claims

against FedEx must also fail as a matter of law.

¶54. It is undisputed that as motorists, both Davis and Maxine were held to a duty of

ordinary, reasonable care. See Smith v. Minier, 380 So. 3d 889, 893 (¶14) (Miss. 2024).

Because Maxine was stopped at a stop sign prior to the collision, she also had a duty to

proceed cautiously through the intersection, yielding to approaching vehicles who had the

right of way or were “approaching so closely as to constitute an immediate hazard[.]” Miss.

Code Ann. § 63-3-805 (Rev. 2022).

¶55. In Harris’s response to the Appellees’ motion for summary judgment, Harris cited

Mississippi Code Annotated section 63-3-1112 and argued that Davis had a duty of

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reasonable care to avoid a collision. Harris also attached a vehicle accident report created

by FedEx during its internal investigation into the accident. The report states that Davis

“failed to anticipate potential hazards on or near the roadway and maintain awareness” and

characterized the accident as preventable.

¶56. However, as acknowledged by the trial court, Harris’s reliance on section 63-3-1112

is misplaced. Section 63-3-1112 requires that “[E]very driver of a vehicle shall exercise due

care to avoid colliding with any pedestrian or any person propelling a human-powered

vehicle and shall give an audible signal when necessary and shall exercise proper precaution

upon observing any child or any obviously confused, incapacitated or intoxicated person.”

Miss. Code Ann. § 63-3-1112 (Rev. 2022). This statute is inapplicable to the present case

because Maxine was not a pedestrian, nor was she riding a bicycle. Regarding the FedEx

internal document determining that the accident was preventable, the trial court recognized

the “clear distinction between negligence under Mississippi law and whether an accident was

preventable according to internal policies, with the latter being likely to confuse and mislead

the jury.” (Citing Curd v. W. Express Inc., No. 1:09-CV-610-LG-RHW, 2010 WL

11463258, at *3 (S.D. Miss. Nov. 2, 2010)).

¶57. As to Harris’s claims that several genuine issues of material fact exist regarding

whether Davis breached his duty, we agree with the trial court’s finding that “they all rely

on speculation and allege only possibilities of wrongdoing.” The record reflects that Davis,

the only eyewitness, provided a contemporaneous statement to FedEx on the day of the

collision, stating that he had turned left onto South Colorado Street from Debra Drive. Davis

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also provided deposition testimony and an affidavit stating that he traveled this route for

FedEx. Harris attempted to dispute Davis’s stated route by relying on a FedEx delivery

document showing that the last two deliveries Davis made prior to the collision were on

South Colorado Street, with the final pre-collision delivery occurring at 11:16 a.m. Harris

also attached an EMS report showing that the emergency call regarding the collision was

made at 11:21 a.m. Harris argued that Davis could not have traveled from 1693 South

Colorado Street, the last address on his delivery document, through Debra Drive, and to the

point of collision in five minutes. As stated, Harris’s expert, Smith, relied on the distance

from 1693 South Colorado Street to the point of impact in his calculations to assert that

Davis was traveling in excess of the speed limit. In his response opposing summary

judgment, Harris submitted that the question of whether Davis, “a commercial delivery

driver, actually made his way onto Debra Drive in a residential neighborhood where he made

no deliveries in the minutes before the collision, is a question for the trier of fact.”

¶58. In granting summary judgment, the trial court ruled that the delivery document

showing a prior delivery on South Colorado Street is not evidence of Davis’s route after that

delivery, and the court found that Harris’s effort to show one of several alternate routes was

hypothetical. The trial court found that Harris’s argument that Davis could not have traveled

from 1693 South Colorado Street through Debra Drive and to the point of impact in five

minutes amounted to “unsupported speculation,” stating that “there is absolutely no evidence

in the record (after almost seven years) from an expert or otherwise to show any calculations

as to time and distance to support such a hypothetical argument.”

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¶59. Additionally, Harris argues that a genuine issue of material fact exists as to the speed

Davis was traveling when he hit Maxine’s vehicle. In his deposition, Davis testified that at

the time of the accident, he was driving approximately 30 to 35 miles per hour, and he

explained that based on the short distance between Debra Drive and North Medical Park

Drive, he did not believe he could go any faster. Harris relies on Smith’s expert report and

opinions that conclude Davis was traveling anywhere from 14 to 18 miles per hour over the

posted speed limit of 35 miles per hour. However, as discussed above, the trial court struck

Smith’s report and opinions as unreliable and speculative.

¶60. As stated, to survive summary judgment, Harris had to produce sufficient evidence

to create a genuine issue of material fact as to the essential elements of his negligence claim,

and the supreme court has held that “[o]ffering speculation and presumption is not enough”

to meet this burden. Dolgencorp, 366 So. 3d at 843-44 (¶21); see also Rogers, 22 So. 3d at

1225 (¶21) (“Summary judgment may not be defeated through expert opinions that are not

based on facts but instead are based on a guess, speculation, or conjecture.”). After our

review, we find that Harris failed to produce sufficient evidence to show that Davis breached

an applicable duty.

¶61. For similar reasons, we also find that Harris failed to produce sufficient evidence to

show the existence of a genuine issue of material fact as to causation. Harris failed to show

that Davis’s alleged speeding “was a substantial factor in bringing about the injury, and

without it the harm would not have occurred.” Burns, 270 So. 3d at 1088 (¶14); see also Utz

v. Running & Rolling Trucking Inc., 32 So. 3d 450, 466 (¶41) (Miss. 2010) (“When a party

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is negligent, that negligence must also be the proximate cause of the injury.”). As observed

by the trial court, Harris’s causation argument—that Davis’s decision to drive at a speed over

the speed limit is the sole proximate cause of the collision—“relies solely on speculative

possibilities crafted by his expert.” In providing his opinion as to the proximate cause, Smith

failed to explain how Davis’s alleged speeding proximately caused the accident and

Maxine’s death and failed to reference or consider any possible evasive action by Maxine.

The evidence in the record shows that prior to the collision, Maxine was at a stop sign and

therefore had a duty to yield to Davis, who had the right of way. However, Smith failed to

consider Maxine’s failure to yield the right of way in making his expert opinion as to

causation. We have held that when “the evidence shows that it is just as likely that accident

might have occurred from causes other than defendant’s negligence, the inference that [the

defendant’s] negligence was the proximate cause [of the injury] may not be drawn.” Soto

v. Miss. Exp. R.R. Co., 418 So. 3d 569, 576 (¶33) (Miss. Ct. App. 2025) (quoting Hardin v.

Town of Leakesville, 345 So. 3d 557, 566 (¶41) (Miss. 2022)). Furthermore, the trial court

struck Smith’s expert report and opinions, and “[w]ithout [Smith’s] conclusory statements

and speculation, there is no way to make the leap from [Davis’s alleged speeding] to the

proximate cause of [the collision].” Rogers, 22 So. 3d at 1225-26 (¶24). Based on the lack

of competent summary judgment evidence in the record before us, we find that “[o]ne can

do no more than speculate about causation here, and speculation does not defeat summary

judgment.” Joe McGee Constr. Co. Inc. v. Brown-Bowens, 368 So. 3d 1277, 1281 (¶10)

(Miss. 2023).

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¶62. Because Harris failed to meet his summary-judgment burden of providing evidence

showing that Davis breached his duty of care and that such breach proximately caused the

accident and the injuries Maxine alleged, we affirm the trial court’s grant of summary

judgment.

III. Order Denying Harris’s Motion to Reconsider the Issue of FedEx’s
Liability

¶63. As stated, the trial court entered an order bifurcating discovery and requiring Harris

to first make a prima facie showing of Davis’s negligence in operating the FedEx van before

the parties could proceed to discovery on Harris’s negligence and gross negligence claims

against FedEx. Harris filed a motion alleging that he had produced sufficient evidence to

make a prima facie showing of Davis’s negligence and requesting the trial court to reconsider

its previous order limiting discovery and allow Harris to move forward with discovery on his

claims of negligence and gross negligence of FedEx.

¶64. After a hearing, the trial court entered an order denying Harris’s motion to reconsider.

The trial court found that although Harris titled his motion as one for reconsideration, which

is commonly analyzed under Mississippi Rule of Civil Procedure 60(b), Harris’s motion was

not actually a Rule 60(b) motion. The trial court explained that distinguishing between the

caption and substance of Harris’s motion was unnecessary because Harris failed to make a

sufficient showing that Davis negligently operated the FedEx van at the time of the accident.

Because Harris failed to provide sufficient, credible evidence to meet his burden of

establishing a prima facie case of liability against Davis, the trial court denied Harris’s

motion to reconsider its order limiting discovery.

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¶65. Because we find that Harris failed to meet his burden of providing sufficient, credible

evidence establishing that Davis was negligent (as discussed above), we find that the trial

court did not err in denying Harris’s motion to reconsider its order limiting discovery.

CONCLUSION

¶66. After our review, and for the reasons discussed above, we affirm the trial court’s

orders.

¶67. AFFIRMED.

BARNES, C.J., LAWRENCE, EMFINGER, WEDDLE AND LASSITTER
ST. PÉ, JJ., CONCUR. McDONALD AND McCARTY, JJ., CONCUR IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION, JOINED IN PART BY McDONALD AND McCARTY, JJ.

WESTBROOKS, J., CONCURRING IN RESULT ONLY:

¶68. I reluctantly concur with the result affirming the grant of summary judgment to the

Defendants in light of the speculative nature of Harris’s proposed expert report. “Generally,

questions related to the bases and sources of an expert’s opinion affect the weight to be

afforded the opinion by the jury, not the admissibility of the opinion.” Funderburk v.

Johnson, 935 So. 2d 1084, 1107-08 (¶71) (Miss. Ct. App. 2006). And of course, the ultimate

question of the credibility of an expert’s testimony is a question for the jury. See Barnett v.

State, 401 So. 3d 1014, 1017 (¶13) (Miss. 2025). However, operating as gatekeeper, the trial

court first “must ascertain that the proffered testimony is both relevant and reliable, that is,

that the testimony will assist the trier of fact.” Miss. Trans. Comm. v. McLemore, 863 So. 2d

31, 34 (¶4) (Miss. 2003).

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¶69. Here, the evidence available to and relied on by the expert was extremely limited. As

noted by the trial court, “this is not an issue of credibility, but rather reliability. . . . [T]his

case has minimal known facts[, and] . . . as such, [the expert] has no choice but to speculate

and assume multiple key points that he defines as unknown and/or uncertain factors[.]” When

an expert fails to investigate or is unable to investigate certain things due to a lack of

evidence, the expert testimony can be rendered too speculative to survive the Rule 702 and

Daubert standards. Mitchell v. Barnes, 96 So. 3d 771, 778 (¶25) (Miss. Ct. App. 2012).

¶70. In this instance, similar to Mitchell, the extremely limited evidence resulted in the use

of assumptions to generate speculative results. See Hubbard ex rel. Hubbard v. McDonald’s

Corp., 41 So. 3d 670, 675 (¶15) (Miss. 2010). Because the issue is one of reliability, not

credibility, and in the face of insufficient facts necessary to support the expert’s conclusions,

I concur that in this particular instance the exclusion of the expert testimony and subsequent

grant of summary judgment to Davis and FedEx was proper.

McDONALD AND McCARTY, JJ., JOIN THIS OPINION IN PART.

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