On Thursday a 7-2 majority affirmed the Harrison County Circuit Court’s dismissal of a case on a Rule 702/ Daubert issue in McDonald v. Memorial Hospital of Gulfport. This was a medical malpractice case and the issue was whether pathologists could render opinions on breaches in the standard of care by a gastroenterologist. The Court sided with the trial court’s finding that the pathologists in this case were not qualified to testify.
Justice Kitchens wrote a scathing dissent joined by Justice Graves. Basically the dissent accuses the majority of saying the law is one thing, but then making it something else by its application of the law. According to the dissent, the majority departs from a nationally applied liberal application of Rule 702 when applied to physician testimony and requires that an expert be a specialist in the same area as the defendant. The dissent states that Mississppi does not adhere to the national standard and applies the most restricitve approach in the nation. The majority disagrees with the dissent’s characerization of the state of the law.
The problem for litigators is that this leaves the law murky in this area. Murky law makes it hard to litigate a case.