IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 2000-CA-01816-COA

DAVID ORTMAN APPELLANT

v.

ELLEN CAIN, D.C. APPELLEE

DATE OF TRIAL COURT JUDGMENT: 08/16/2000

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: STEPHEN W. MULLINS

ATTORNEYS FOR APPELLEE: STEPHEN WALKER BURROW

C. BRICE WIGGINS

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: JURY VERDICT FOR DEFENDANT

DISPOSITION: AFFIRMED - 1/8/02

MOTION FOR REHEARING FILED: 1/22/2002; denied 3/19/2002

CERTIORARI FILED:

MANDATE ISSUED: 4/9/2002

BEFORE BRIDGES, P.J., LEE, AND CHANDLER, JJ.

BRIDGES, P.J., FOR THE COURT:

¶1. David Ortman filed suit on December 29, 1997, in the Harrison County Circuit Court against Ellen

Cain, D.C., for medical malpractice with the Honorable Kosta Vlahos presiding. The jury returned a verdict

in favor of the defendant on October 19, 2000. Ortman has appealed and comes now to this Court with

five issues which we quote:

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO STRIKE JUROR

SARGEN MELLEN BASED ON HIS FAMILIARITY WITH THE DEFENSE EXPERT

WITNESS;

2. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADMIT THE SWORN

STATEMENT OF JOHNNY HULON INTO EVIDENCE.

A. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PORTIONS OF DR.

DANIELSON'S DEPOSITION AND DR. BRAGMAN'S TESTIMONY;

3. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW FOR OPENING

STATEMENTS;
4. WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANTS SUDDEN

EMERGENCY DEFENSE IN CONTRAVENTION OF MISSISSIPPI CASE LAW.

A. WHETHER THE TRIAL COURT ERRED IN STRIKING AN AGREED JURY

INSTRUCTION ON PREEXISTING CONDITIONS; AND

5. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING

WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶2. David Ortman was working for Conn Construction in Gulfport when he felt a twinge in his back. On

August 15, 1996, Ortman awoke to a great deal of pain in his back. Ortman called Conn Construction, and

a co-worker was sent to take him to the doctor. Johnny Hulon picked Ortman up and took him to see Dr.

Cain. Hulon helped Ortman into the doctor's office because he was in a great deal of pain and was having

trouble walking by himself.

¶3. Dr. Cain brought Ortman into her examination room and placed him on an examination table. Dr. Cain

obtained a brief history from Ortman, and proceeded to ask him some questions (i.e. was his body numb,

etc.). Dr. Cain did not order an X-ray of his back. Dr. Cain tried to alleviate some of the pain Ortman was

experiencing by applying pressure to the sacroiliac joint. This caused the examination table to drop, and

Ortman began to experience even more pain than he had before the pressure. Ortman was unable to stand

at all. An ambulance was called, and it transported him to Memorial Hospital in Gulfport. Ortman was

diagnosed with a herniated disk and underwent surgery to repair his disk. After approximately ten days,

Ortman returned to work.

STANDARD OF REVIEW

¶4. "Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an

abuse of discretion." Dobbs v. State, 726 So. 2d 1267, 1274 (¶25) (Miss. Ct. App. 1998).

¶5. The standard of review when dealing with jury instructions has been stated as "[r]ather, our job, as an

appellate court, is to review the jury instructions as a whole to determine whether 'the aggregate of the

instructions, taken as a whole, fairly, though not necessarily perfectly, express the applicable primary rules

of law.'" O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526 (¶31) (Miss. Ct. App. 2000).

¶6. A motion for a new trial is left to the circuit court's discretion and raises issues regarding the weight of

the evidence. Jackson v. State, 551 So. 2d 132, 148 (Miss. 1989). The standard of review for a challenge

to the weight of the evidence is found in Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989):

In determining whether or not a jury verdict is against the overwhelming weight of the evidence, this

Court must accept as true the evidence which supports the verdict and will reverse only when it is

convinced that the circuit court has abused its discretion in failing to grant a new trial.

See also Isaac v. State, 645 So. 2d 903, 907 (Miss. 1994); Newsom v. State, 629 So. 2d 611, 615

(Miss. 1993); Burrell v. State, 613 So. 2d 1186, 1190-91 (Miss. 1993); Nicolaou v. State, 612 So. 2d
1080, 1083 (Miss. 1992); Parker v. State, 606 So. 2d 1132, 1139-40 (Miss. 1992).

ANALYSIS

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO STRIKE JUROR

SARGEN MELLEN BASED ON HIS FAMILIARITY WITH THE DEFENSE EXPERT

WITNESS.

¶7. Ortman raises this issue because the trial court did not allow him to use a "for cause" challenge to juror

Sargen Mellen. Ortman then points out that a nurse, juror Bolden, was placed on the jury because Ortman

had to use one of his peremptory instructions to exclude Mellen from the jury. Ortman argues the jurors

were likely to put an inordinate amount of weight on the opinions Bolden had because of her health care

background. Dr. Cain counters by stating that Ortman mis-applies the law in his arguments, and by pointing

out Ortman failed to object to Bolden being placed on the jury.

¶8. Ortman believes there are several statements which should have caused the trial court to grant Ortman's

"for cause" challenge to Mellen. The trial court asked Mellen if he had a positive opinion about

chiropractors, and he stated he did but that it would not effect his verdict. Mellen was asked by counsel for

Ortman if he had ever gone to a chiropractor and Mellen stated he had. Mellen also stated his father had

been treated by Dr. Smith, who was one of the doctors testifying for the defense, and it was possible

Mellen might give Smith's statements more credence because of the treatment.

¶9. In support of his contention that the trial court should have allowed him to use a "for cause" challenge to

excuse Mellen, Ortman relies on the cases of Scott v. Ball, 595 So. 2d 848 (Miss. 1992) and Davis v.

Powell, 781 So. 2d 912 (Miss. Ct. App. 2001). These two cases stand for the position that if a juror

knows or is somehow connected to one of the parties, such that the connection would influence the way the

juror decided the case, then the trial court should allow a "for cause" challenge in order to prevent a biased

jury. Scott, 595 So. 2d at 850, Davis, 781 So. 2d at (¶21). These cases are distinguishable from this case,

because they dealt with situations where the jurors knew one of the parties involved in the lawsuit. Here,

Mellen did not know the parties involved in the case; Mellen only knew one of the witnesses who was

testifying for Dr. Cain. The person with whom the juror is familiar makes a large difference in deciding

whether the juror will be biased. If the juror is familiar with the party then there is a greater chance of

prejudice than there is if the juror is only familiar with a witness.

¶10. Mellen stated his personal opinion concerning the testifying expert would not affect his decision on the

verdict. The Mississippi Supreme Court has dealt with instances in which jurors have given assurances that

they could be impartial. One such case is Scott v. Ball, 595 So. 2d 848 (Miss. 1992), one of the

authorities Ortman bases his argument on, in which the court stated: It should also be borne in mind that

jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that,

despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this

promise is entitled to considerable deference. Id. at 850. With this in mind, it cannot be said that the trial

court was in error for denying Ortman's "for cause" challenge. The questions raised about Mellen serving as

a juror were based on his relationship with a witness; however, Mellen stated he would not let his personal

opinions alter his verdict. Because of this, the law requires we grant Mellen's statement deference. The trial

court did not abuse its discretion in denying the "for cause" challenge, and for this reason we affirm.

¶11. Also, the notion that juror Bolden somehow tainted the jury because of her profession is without merit.
First of all, such an argument engages in speculation. Secondly, Ortman failed to object to Bolden being

placed on the jury, and his failure to preserve for appeal acts as a waiver. Sanders v. State, 786 So. 2d

1078 (¶10) (Miss. Ct. App. 2001).

2. WHETHER THE TRIAL COURT ERRED IN FAILING TO ADMIT THE SWORN

STATEMENT OF JOHNNY HULON INTO EVIDENCE.

¶12. This issue deals with the admissibility of a statement taken from Johnny Hulon prior to the filing of this

lawsuit. Johnny Hulon was the co-worker who took Ortman to see Dr. Cain, and he was the only nonparty witness to what happened at Dr. Cain's office. Hulon's statement was taken prior to the filing of this

lawsuit by Ortman's attorney. During pretrial preparation, Hulon passed away, and Dr. Cain's attorneys

were never able to develop any testimony from Hulon. When Ortman tried to introduce the statement, Dr.

Cain objected, and the statement was prohibited from being entered into evidence as it was hearsay.

¶13. Ortman argues this statement fits into the catch all category of Mississippi Rules of Evidence 804 (b)

(5). "The five (5) requirements for admissibility under the residual or "catch-all" exception found in [Rule

804 (b) (5)] are: (1) trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice, and (5)

notice." Quimby v. State, 604, So. 2d 744, 747 (Miss. 1992).

¶14. With these requirements in mind, it is clear that the Hulon statement is inadmissable hearsay. Regarding

the notice requirement, counsel for Ortman told Dr. Cain he would give an address and phone number for

Hulon, but never did. Also, there were no real guarantees of trustworthiness. Hulon was a disinterested

party; however, lack of interest does not in itself offer sufficient guarantees of trustworthiness. Opposing

counsel was not present during the making of this statement, and thus they were prevented from developing

testimony from Hulon.

¶15. In addition, both Dr. Cain and Ortman testified to what happened on the day in question. Since they

were also there, their testimony is just as probative on what happened in Dr. Cain's office on the day in

question as testimony offered by anyone else. Thus, the Hulon statement is not more probative than any

other of the evidence, and does not meet the requirements set out in Quimby. Quimby, 604 So. 2d at 747.

As stated earlier, a trial court has a great deal of discretion in deciding what things are allowed into evidence

and what things are kept out. Dobbs, 726 So. 2d at 1274 (¶25). Because Hulon's statement fails to meet

the requirements set out in Quimby, the trial court did not abuse its discretion in preventing the statement

from getting into evidence. For this reason, we affirm.

A. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PORTIONS OF DR.

DANIELSON'S DEPOSITION AND DR. BRAGMAN'S TESTIMONY.

¶16. In raising this sub-issue, Ortman argues the trial court erred in striking the portions of Dr. Danielson's

and Dr. Bragman's testimony which dealt with the facts they learned by reading Johnny Hulon's statement.

As stated earlier, Hulon's statement is inadmissible hearsay, but Ortman argues here that these portions of

Hulon's statements fit into the hearsay exception for things which it is permissible for doctors to base their

opinions on. However, Ortman fails to cite any case law in support of his argument. It is well known that a

failure to cite case law in support of one's contentions acts as a procedural bar, preventing this Court from

considering it. Ratcliff v. State, 752 So. 2d 435 (¶7) (Miss. Ct. App. 1999) (citing Hewlett v. State, 607

So. 2d 1097, 1107 (Miss. 1992)). Therefore, we are barred from considering this sub-issue.
3. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW FOR OPENING

STATEMENTS.

¶17. The trial court in this matter required that the parties give their opening statements to the entire jury

pool prior to jury selection. Ortman claims this was error, because Rule 10.03 of the Uniform Circuit and

County Court Rules allows for an opening statement to be made to the jury.

¶18. Rule 6.01 of the Uniform Circuit and County Court Rules states that rules 6 through 12 only apply to

criminal cases, so Ortman's argument that the trial court violated Rule 10.03 is incorrect. More importantly,

however, is the fact Ortman failed to object to this matter during the trial. In order to preserve this matter

on appeal, a contemporaneous objection must be made at the time that the trial court is denying any further

opening statement. Sanders, 786 So. 2d at 1078 (¶10). No such objection was made in this case.

Therefore, this matter is not properly before this Court, and it should be dismissed.

¶19. It should be noted that the trial court allowed both sides in this case to make an opening statement.

The only difference between this case and most other trials is that the trial court made the attorneys give

their opening statement before jury selection. This does not strike the Court as an abuse of discretion.

4. WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANTS SUDDEN

EMERGENCY DEFENSE IN CONTRAVENTION OF MISSISSIPPI CASE LAW.

¶20. In this issue, Ortman states the trial court erred by letting the medical witnesses for Dr. Cain testify to

an incorrect standard of care. Ortman claims the trial court allowed Dr. Cain's witnesses to raise the

"sudden emergency" defense, which allows the standard of care to be lessened because of an emergency.

The "sudden emergency" defense was abolished in Mississippi by the case Knapp v. Stanford, 392 So. 2d

196, 198 (Miss. 1981), and Ortman claims it was therefore error to allow it to be used. Dr. Cain denies this

defense was used, and points out the witnesses she put on testified to the correct standard of care.

¶21. The standard of care which this Court follows in cases of medical malpractice was set out in the case

of Hall v. Hilbun, 466 So. 2d 856 (Miss. 1986) (superseded by statute for other reasons). It states:

given the circumstances of each patient, each physician has a duty to use his or her knowledge and

therewith treat through maximum reasonable medical recovery, each patient, with such reasonable

diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the

same specialty or general field of practice throughout the United States, who have available to them

the same general facilities, services, equipment and options.

Id. at 873. This standard of care was upheld recently in the case of McCaffrey v. Puckett, 784 So. 2d

197 (¶20) (Miss. 2001). The jury in the case at bar was given instructions in accord with this standard of

care, and therefore was properly instructed.

¶22. Ortman claims Dr. Cain was trying to get the "emergency defense" into this case by having his expert

witness testify that the emergency-like circumstances, which existed when Ortman was brought into Dr.

Cain's office, somehow lessened the standard of care. This is not true. Dr. Cain's expert witness testified in

accordance with the proper standard of care from Hall v. Hilbun. Hall, 466 So.2d at 873. Dr. Cain acted

in conformity with the proper standard of care for a patient in the circumstances Ortman was in. The

standard of care was not lessened because of an emergency. The standard of care for a patient under

Ortman's circumstances was followed. Because of this, the idea that Dr. Cain somehow used the "sudden
emergency" defense carries no weight.

¶23. Ortman's real problem seems to be with the opinions Dr. Cain's expert had. It is the jury's job to

weigh the credibility of the evidence before it, and to decide which parts of conflicting testimony it will

believe. Brown v. State, 763 So. 2d 207 (¶4) (Miss. Ct. App. 2000). That is what the jury did in this

case, and we see no reason to interfere with its decision. Since the decision to let this witness testify was an

evidentiary ruling, there must be an abuse of discretion by the trial court in order to warrant a reversal.

Dobbs, 726 So. 2d at (¶25). There was no such abuse of discretion here, and for this reason, we affirm.

A. WHETHER THE TRIAL COURT ERRED IN STRIKING AN AGREED JURY

INSTRUCTION ON PREEXISTING CONDITIONS.

¶24. This sub-issue deals with an agreed upon jury instruction which was offered by Ortman which Ortman

claims the court refused to give to the jury. The record states that jury instruction P-9, the instruction in

question, was given to the jury prior to their deliberations. However, after examining the jury instructions

that were given to the jury, it appears P-9 was given with some of it marked out. Therefore, this issues does

not deal with why the entire instruction was stricken. This issue really deals with why part of P-9 was

stricken. While this may be so, the record offers no indication Ortman objected to the giving of the modified

instruction. Since this modification of the instruction was not objected to, then the issue was not properly

preserved for appeal. Sanders, 786 So. 2d at (¶10). Thus, we hereby affirm.

5. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING

WEIGHT OF THE EVIDENCE.

¶25. Ortman argues the jury verdict was against the overwhelming weight of the evidence for the simple fact

that Ortman entered Dr. Cain's office on foot, and left in an ambulance. Ortman points out Dr. Cain did not

take a complete history of Ortman's problems, and tries to tie it all into a res ipsa loquitor type argument.

This issue does not deserve consideration for several reasons. First, Ortman makes his arguments without

the support of case law. While he does cite to an AmJur article, our case law prevents the consideration of

an issue if it is not supported by case law. Ratcliff, 752 So. 2d at (¶7). It should also be noted Ortman did

not file a motion for a new trial in the lower court. To challenge the holding of a jury verdict on the basis that

the verdict is against the overwhelming weight of the evidence, a party must first file a motion for a new trial.

Hughey v. State, 729 So. 2d 828 (¶6) (Miss. Ct. App. 1998). Ortman failed to make such a motion, and

even cites to the incorrect standard of review for such an issue. Therefore, because Ortman is procedurally

barred by the previous two reasons, this issue cannot be heard on this appeal.

CONCLUSION

¶26. The trial court in this case was not in error for denying Ortman the use of a "for cause" challenge to

Juror Mellen. The trial court was also not in error for refusing to admit the hearsay statements of Johnny

Hulon, nor was it in error in instructing the jury as to the proper standard of care. For these reasons, we

affirm the holding of the trial court.

¶27. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS HEREBY

AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,

CHANDLER AND BRANTLEY, JJ., CONCUR.