IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00818-COA CURTIS BROWN APPELLANT

v. PROFESSIONAL BUILDING SERVICES, INC. APPELLEE DATE OF JUDGMENT: 03/24/2016 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: STEVEN HISER FUNDERBURG CRAIG ROBERT SESSUMS ATTORNEYS FOR APPELLEE: JASON HOOD STRONG ROBERT L. GIBBS RICHARD BENJAMIN MCMURTRAY NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 10/17/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WILSON, J., FOR THE COURT: ¶1. Curtis Br o w n w a s t h e c l u b h o u s e m anager at Colonial Country Club in Jackson. Brown a lleges that he suf f ered sim ultaneous bilateral p atellar tendon ruptures w hen he f ell

over a c hair in the d oorway o f the club’s g rill on a Friday evening i n 2012. He alleges that the club’s cleaning service, Prof essional B u ilding S ervices (“PBS”), lef t t h e c h a ir in the doorway

. Brown sued PBS f or negligence, and the case proceeded to a jury trial. The jury returned a verdict f

or P B S , the trial court denied B rown’s post-trial m otions and entered judgm ent on the verdict, and Brown appealed.¶2. On appeal, Brown argues that the trial judge abused his discretion b y (1) overruling

Brown’s objection t o a ph o t o o f a chair in the doorway to the grill, (2) deny ing Brown’s request f o r a j ury instruction t hat s pecif ically m entioned that t he overhead lights i n the grill

were turned of

f , (3) allowing a def

ense expert i n biom e c hanics to testif y that Brown’s claim that he suf

f ered bilateral p atellar tendon ruptures by walking into a chair was n ot “plausible,” (4) e xcluding o ne answer f rom his treating phy sician’ s d e position testim ony regarding the general possibility t hat there could be m istakes in m edical records, and (5) by responding to

a note f rom a j u ror with a general instruction t o continue deliberations. W e f i nd no abuse of discretion in any

of these rulings. Theref

ore, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. Brown was t he clubhouse m anager at Colonial Count y C l u b i n J a c k s o n . Brown testif i ed that on Friday , Septem b er 28, 2012, he arrived at t he c lubhouse a round 5 p.m . to do his m onthly inventory o f t h e grill and 19th hole lounge. A crew f rom PBS arrived around 7 p.m . to begin cleaning. Around 8:30 p.m ., a m em ber of the PBS crew t old Brown that they were f inished and were leaving. Brown was then the only person still in the clubhouse. ¶4. Af ter he f inished the inventory and s om e work in his of f ice, Br o w n b egan walking around the clubhouse to m ake sure all the doors were locked. Brown testif ied that “as soon as [ h e] m ade the turn” f

rom the hallway into the doorway of the grill, he stum

bled and f

ell

over a chair. B rown t estif ied that the “ chair was right in [ the] doorway ” to the grill and that he did n ot see the chair bef ore he walked into it. The lights were on i n the hallway outside

2the grill, but the overhead lights in the grill were turned of f

. Inside the grill, beer signs, an ice c r eam m achine, and a s oda m achine n ear the bar provided som e illum ination. There was also som e light f

r om f loodlights in the pool a rea just outside the grill. On direct exam ination, Brown testif

ied that the “room is n ever totally dark.” On cross-exam ination, he agreed that there was “quite a bit of

light there,” even with the overhead lights turned of f

. ¶5. Brown testif

ied that af ter he f ell over the c hair, h is entire body went to the g round and the chair t u r n e d over. He im m ediately f elt intense pain in both of his knees, and then he passed out. W hen he regained consciousness, he tried to get to his f eet, but he f

ell back to the ground and passed out again. W hen he again regained c onsciousness, there w as a m ouse close to his f

ace, which startled him

. The m ouse r an away , and Brown eventually m anaged
to retrieve his cell phone and call his brother. His brother and a nephew cam e to the club and took Brown to St. Dom inic Hospital. ¶6. Brown was diagnosed w ith bilateral patellar tendon ruptures, a n d doctors perf orm ed
surgery on him t he next day . Brown’s injuries and surgery were extrem ely p ainf

ul, and he spent over two m onths at Methodist Rehabilitation Hospital af ter he was released f

rom St. Dom inic. Brown continued outpatient r ehabilitation f or m onths af

t er he was released f

rom M e thodist, a nd his injuries r equired additional surgeries. F or several m onths, he r e q u i r e d assistance with basic daily activities, and he has never f ully recovered f

r om the injuries. ¶7. Although Brown alleged in his com plaint and testif

i e d a t t r i a l t h at he was injured when he walked into and f ell over a chair in the door to the grill, m ultiple records f

rom St.

3Dom in i c r ef lect that as soon as Brown was adm i tted to the hospital—and bef ore he was given any pain m edication—he told doctors and nurses that he was injured whe n h e f ell f orward onto b oth o f his knees while running up stairs a t work. O n Sunday , t he d ay af ter his
surgery , Brown told Colonial’s general m anager, Michael Barrett, that he was injured when he f e ll over a chair while chasing what h e t hought w as a rat or a m ouse through the grill. W h ile he was still at St. Dom inic, Brown also told Grace Owens, a bartender a t t he club, that he f ell o ver a chair i n the grill while chasing a m ouse or a rat. At trial, B rown t estif ied that he could not recall giving these dif f erent versions of e v ents to the doctors, nurses, Barrett, and Owens. He testif

ied that a m ouse w as near his f a ce the second tim e he r e g a i ned consciousness, but he denied that he f ell while chasing a m ouse or running up stairs. ¶8. In Decem

ber 2 014, Brown f

iled a c o mp l a i n t a gainst PBS alleging negligence. The

case proceeded to a jury

trial on March 7-10, 2016, and the jury returned a verdict in f

avor of P BS. The jury ’s verdict was in the f orm of a “ n o” answer to the question whether Brown had “proven by a preponderance of the evidence his claim t hat [ PBS] was negligent and that such negligence, if any , proxim at e l y c a u s e d or contributed to [ Brown’s] dam ages.” The circuit court denied Brown’s po s t

- t r i a l m otions and e ntered f inal judgm e nt o n the jury verdict, and Brown appealed. ¶9. As noted above, Brown raises a total of f ive issues on appeal. The Court has reviewed the brief s and record as to all f

ive issues, and the Court is in unanim ous a greem ent that the trial judge com m itted no abuse of discretion as to i ssues ( 2), (4), and ( 5). T he co n trolling

4legal principles on those issues are well settled, and their discussion and application to the

f acts of this case w ould n ot add value to the j urisprudence of this State. A ccordingly , we f orgo discussion o f t h o se issues. Cf. Gen. Motors Corp. v. Jackson , 636 So. 2d 310, 311 (Miss. 1992). ¶10. W e address issues (1) and (3) below and discuss additional f acts as needed. ANALYSIS I. The trial judge d id not abuse his discretion by adm itting e x h ibit 29, a photo of a chair in the grill doorw ay . ¶11. Prior to t rial, Brown f iled a m otion in lim i ne that sought to exclude several ty pes of evidence, including photos “ taken by def e nse c ounsel

. . . i n an atte mp t t o ‘ re-create’ the scene.” Brown’s m otion argued: [ T]hese photographs were taken by def ense cou n s e l

. . . in an attem pt to “re-create” the a ccident scene but were not taken contem poraneously

. Moreover, the angles and positioning of t he room and chair in question are not accurate and are deliberately photographed to f avor Def endant. Plaintif

f h as no objection to general p h o t o graphs of the room in question but m ove[ s] to exclude any

attem pt by the Def

endant to show re-created pictures to the jury allegedly to dem onstrate the positioning of the chair (pre- or post-accident) are not authentic, accurate or perm issible and should be excluded . . . . ¶12. The photo that was eventually adm itted into e vidence as exhibit 29 is attached as an appendix to this opinion. 1 The photo depicts a chair in the doorway to the grill. ¶13. In response to Brown’s m otion, PBS acknowledged that the chair should have been f acing lef t rather than r i ght—i.e., it should have been rotated 1 80 degrees. W ith that caveat,

1 T h is is t h e rep r o d u c tio n o f th e p h o to t h at B ro w n u p lo ad e d to th e C o u r t ’s w eb site as p ag e f iv e o f h is o p en in g b rief

o n ap p eal. 5PBS m aintained that the photo f airly depicted Brown’s own recorded statem ent that the chair

was “right in the doorway

. ” P B S r e l i ed on a s tatem ent that Brown, with counsel present,
g a v e t o PBS’s insurer i n July 2014. In t hat statem ent, Brown said that the c h a i r w a s “[ l]iterally , right in the doorway ,” “[ m ]ay be inches” or “m ay

be a f oot” inside the room . In addition, Brown’s Decem ber 2014 com

plaint alleged t ha t h e “ f

e ll over a chair which had been lef t in t he m iddle o f the doorway .” At his March 2015 d eposition, Brown t estif ied that the chair was not square in the m iddle of the d oorway b ut was “a l ittle bit m ore” toward the right edge of the d oor and “a little bit m ore” inside the room . However, Brown also testif ied that he could not say

exactly where the chair was positioned because: I never saw the chair. W hen I stepped into it, I never saw it.

. . . . I n ever saw it. I n e ver s a w t h e c h a ir until I stepped—when I hit i t. I don’t rem em ber seeing it. I just rem em ber going down. ¶14. There is n o dispute that the doorway d epicted is t he relevant doorway or that the chair depicted is the ty

p e of chair that Brown alleges he stum bled and f

ell over. ¶15. At the hearing on the m otion, t he trial judge asked Brown’s counsel whether he had
any thing to add to his written m otion. Counsel answered, Not really

. O ther t h a n I t hink i t’s conceded. Num ber one, the pictures were taken by def

ense counsel. Num

ber two , t h a t i t’s not a hundred percent accurate. It d o esn’t recreate the accident scene as it existed. A nd b ecause of that we don’t think that it’s relevant or appropriate to of f e r som ething that they contend is close or worse; t hat they ’ve staged to obtain som e advantage by the way the chair’s turned or, y ou know, how it appears f rom which angle in the hallway . It’s conceded that it’s not accurate.

6¶16. Brown’s counsel l ater a rgued that the p hoto was “not relevant” because t he chair was

not “positioned correctly ”; however, h e pointed t o no inaccuracy except that t he chair was f acing t he wrong d irection. Counsel did not r aise any objection based on lighting conditions

or any other objection to the photo. O ther sim ilarly light e d p h o t o s o f the grill, chairs, and doorway were adm itted without objection, and Brown m a d e use of them at trial. ¶17. The trial judge told the parties that he would ta k e t h e m o t i o n i n l i mi n e under advisem ent but that he m ight rule on it bef ore trial. P rior to trial, the judge ruled that PBS could “of f er one photo including the slight chair placem e n t i naccuracy , but the inaccuracy

s h a l l be explained to the jury , either t hrough witness testim ony o r through an agre e d stipulation, so as to avoid any conf usion to the jury .” ¶18. Counsel f

or PBS u sed t he photo in his opening stateme n t , a n d B r o w n ’ s attorney objected, arguing that s uch use of the p hoto violated the c ourt’s ruling in lim ine. The court overruled the objection, a nd counsel f or P BS im m ediately e x plaine d t o t h e jury that chair should have been f

a c i n g l e f t rather than right. Af

ter opening statem ents, the photo was adm itted into evidence without f urther objection by

Brown. ¶19. On direct exam ination, Brown testif ied that the chair “was right in that doorway ”: Q. All right. Explain to m e —where was that chair located? A. The chair . . . was right in that doorway

. . . .

. . . . Q. And the chair was right in that doorway . . . ?

7A. In that doorway , right.

Brown later testif

i ed that the chair was not square i n the m iddle o f the d oorway but slightly toward the right edge of the doorway and turned at a slight angle. 2 ¶20. “W e review a circuit judge’s decision to adm it or exclude e videnc e f o r a n a buse of discretion.” Dickerson v. State , 175 So. 3d 8, 20 (¶37) (Miss. 2015). The S uprem e Court has “long held that the adm issibility of photographs i s within th e s o u nd discretion of the trial
court and that t he trial judge has a wide latitud e i n a d mi t t i ng them .” Tunica Cty. v. Matthews , 926 So. 2d 209, 217 (¶1 8 ) ( M i s s. 2 006). “ Some probative v alue is the only requirem ent needed i n o r d er to support a trial j udge’s decision to a dm it p hotographs into

e v i dence.” Beasley v. State , 136 So. 3d 393, 401 (¶25) (Miss. 2014) ( quotation m ark s

om itted) (em

phasis in original). “[ T]he m ere f act that t he photographs were t aken at a t im e when conditions were som e what changed does not render such photographs inadm issible so long as the changes are caref ully pointed out to the jury .” Nelson v. Phoenix of Hartford Ins. , 318 So. 2d 839, 843 (Miss. 1975). ¶21. Apply ing these principles and our def erential standard of review, we cannot say that the trial judge abused his discretion by overruling Brown’s objec t i o n s t o exhibit 29. The photo depicts the chair f

acing the wrong direction, but Brown does not e xplain how that inaccuracy was m aterial to any i ssue in the case. O therwise, the photo was consistent with and f airly depicted Brown’s recorded statem ent, which he gave w i t h c o u nsel present.

2 Brown a lso t estif

ied, as he had in his deposition, t hat he never saw t he chair until he walked into it. 8Brown’s recorded statem ent was su b s t a n t ive evidence that the trial judge was entitled to

consider in ruling on Brown’s p r etrial m otion in l im ine. See M.R.E. 801(d)(2); Neely v. State

ex rel. Tate Cty. , 628 So. 2d 1376, 1380 (Miss. 1993). 3 At his deposition (and again at trial) Brown testif

ied to dif f erences in the angle and positioning of the chair. H o w e v e r , t h ese dif f erences were straightf

o rward and could be “caref ully pointed out to the jury .” Nelson , 318 So. 2d at 843. A ccordingly , it was within the discretion of the trial judge to overrule the objection to the photo. Id. ¶22. On appeal, Brown also argues that exhibit 29 shows signif icantly m ore light than there

was in the grill a t the tim e o f his i njury , which o ccurred a t night with the overhead lights in

t he grill turned of

f

. However, Brown m ade n o contem poraneous o bjection t o exhibit 2 9 based on lighting conditions. The issue was not m entioned in his written m otion or at any point during the a rgum ent on the m otion. In a ddition, B rown d id not o bject to other sim ilarly lighted p hotos o f the g r ill, chairs, and door, and he m ade use o f such photos at trial. “[ A]n objection on one o r m ore specif ic grounds constitutes a w aiver of all other grounds.” Smith

v. State , 986 So. 2d 290, 295 (¶13) (Miss. 2 008) ( quotation m a rks om i tted). “[ A]n objection
cannot be enlarged [ on a

ppeal] to e m

brace an om ission not com plained of at trial.” Id. “This Court cannot f

ind a t rial judge com m itted reversible error on a m atter not brought bef ore h im

or h er to consider.” Id. As Brown did not object to exhibit 29 based o n l ighting conditions, the issue is waived.

3 O f co u rse, th e trial j u d g e w as n o t strictly b o u n d b y th e ru les o f ev id en ce i n m ak i n g th is ru lin g . M .R .E . 1 0 4 (a). 9¶23. Procedural b ar notwithstanding, there was testim ony regarding the dif f e rences in the lighting conditions, and t he jury was capable o f considering t hose dif f erences. B rown did
not claim that the grill was com pletely dark. The l ights in the hallway just outside the grill

were turned on. Brown also testif ied that there were lights f rom behind the bar f

rom beer signs, a n ice cream m achine, and a soda m achine. There was also light f rom two f loodlights by the pool on the opposite side of the grill. On direct exam ination, Brown testif ied that the “room i s never totally dark,” and on cross-exam ination, he agreed that t here was “quite a bit of light t here.” The jury heard this testim o ny a nd wa s c a p a b le of understanding that there

was m ore light in the photo than on the night in question. ¶24. In sum m ary , the trial judge did n ot abuse his “wide” discretion i n adm i tting the photo into e vidence. Matthews , 926 So. 2d at 217 (¶18). In particular, the trial judge did not abuse his discretion in overruling the specif ic objections that Brown m ade at t rial. Moreover, the photo w as not so unf

airly prejudicial that it would require a n ew trial, even if it should have been e xcluded. 4 Brown’s argum ents give the jury too little c redit. The jurors were capable of considering the photo and the uncom plicated testim ony about it without being conf used

or m isled. See, e.g. , Cannon v
. State , 190 S o. 2d 848, 8 51 ( M i s s . 1966) (“[ I]t m ust be

assum ed that the m em

bers of the jury were m en of

ordinary intelligence . . . .”).
II. The trial judge did not abuse h is d iscretion by allow ing Dr. Charles Bain to testify as an ex pert in biom echanics.

4 S ee, e.g
. , Ill. C en t. R .R

. v. B ren t , 1 3 3 S o . 3 d 7 6 0 , 7 7 9 ( ¶4 2 ) (M iss. 2 0 1 3 ) (“F o r a case to b e rev ersed b ased o n t h e ad m issio n o r e x c lu sio n o f ev id en ce, a p arty m u st b e actu ally p rej u d iced , h arm ed , o r h av e a su b stan tial rig h t ad v ersely af f ected .”). 1 0¶25. Prior to trial, PBS disclosed that it would call Dr. Charles Bain to testif y at trial a s an expert witness in t he f

ield of b iom echanics. Dr. Bain’s undergraduate degree f rom the Roy al Military College of Canada i s in nuclear engineering, which he described as a com bination of m echanical and chem ical engineering and nuclear science. Dr. Bain also has a m edical degree f rom Queen’s University in Canada. He practiced f am ily and em e rgency m edicine in Canada f

or nineteen y ears. For the past thirteen y ears, he has studied biom echanics while working as a consultant and e xpert witness f or Biody nam i c R esearch Corporation. Dr. Bain also serves as an adjunct prof essor at the Unit e d S t a t e s A i r Force School of Aerospace Medicine. He has co-authored s ix published a r t i c l es in t he f ield of biom echanics, and

num erous courts have a ccepted him as an expert witness in t he f ield, a l though h is testim ony has been excluded in other cases. ¶26. In this c ase, Dr. B ain conducted an “Injury Causation Analy sis” o r “ICA.” Dr. Bain’s report, which PBS produced approxim ately f ive m onths prior to trial, described a n ICA as

a com bined process involving biom echanics and m edical analy s is. Dr. Bain reviewed Brown’s m edical records, depositions, and d ocum ents produced in discovery

. I n h is report, Dr. Bain stated that “[ t ]he m echanism f or a patellar tendon lacer a t i o n i s direct traum a or vigorous contraction of t he quadriceps m uscle while the knee i s in a f lexed positio n . ” Dr. Bain also cited studies r egarding the f orces required to produce such an injury

. He testif ied,
to a reasonable degree of scientif ic certainty , that walking into a chair, even at a f ast walking speed, would not generate f orces s uf f icient to produce a bilateral p atellar tendon rupture.

1 1Thus, he opined that it was “ highly im plausible” or “highly

unlikely ” that the injury

in this case occurred as described by Brown in his trial and deposition testim ony . ¶27. Brown f

irst raised a possible objection to D r. B ain’s testim ony a t the end of the third day of t he trial, when his counsel told the trial j udge that they were “probably going to have

a c hallenge” to Dr. Bain, w ho was scheduled to testif y f irst the n e x t m orning. The judge noted that PBS produced Dr. Bain’s report alm ost f i ve m onths bef

ore trial, a nd he a sked why the issue was being raised i n an oral m oti o n t h e evening b ef ore Dr. Bain was to testif y . 5 However, Brown’s objection was not too late to preserve the i s s ue f o r review, see Applewhite , 53 So. 3d at 756 (¶21), and the trial judge perm itted Brown t o exam i ne Dr. Bain outside the presence of

the jury and then argue his m otion the f ollowing m orning. ¶28. The trial judge f

ound that Dr. Bain was qualif ied and that h is testim o ny was relevant and adm issible. The t rial judge relied on this Court’s decision in Mitchell v. Glimm , 819 So. 2d 548, 552 (¶9) ( Miss. C t. App. 2002), w hich af f irm ed the adm ission of sim ilar testim ony by a sim ilarly credentialed witness. In Mitchell , this Court held that t he def ense expert, a

m edical d o c t o r who also held a degree in engineering, was qualif ied to testif

y regarding biom echanics, injury causation, the f orces involved in t he subject a utom obile collision, and the ef f ect those f

orces would have on the hum an bod y . I d

. W e f urther held that the trial judge did not abuse his discretion in allowing the expert to testif y . Id.

5 S ee Hyundai Motor Am. v. Applewhi t e , 5 3 So. 3d 749, 755 (¶18) (Miss. 2011) (“Hy undai was well a ware of the substance of plaintif f s’ expert testim ony [ m onths bef ore trial] and had suf

f icient opportunity to challenge its reliability bef ore t rial. Instead, Hy

undai waited until the trial was underway to m ake its Daubert objections.”). 1 2¶29. On appeal, Brown argues that the trial judge abused his discretion because Dr. Bain’s

“opinions

. . . w ere unreliable, speculative, and m isleading.” Brown argues that D r. Bain’s opinions were not reliable because he d id not c onduct “any testing or sim ulation,” take “any

m easurem ents,” exam ine B rown, or visit the alleged s cene of the injury

. Brown argues that “Dr. Bain’s o pinion was . . . sheer conjecture extrapolated f rom orthopaedic jo u r n a l s concerning out-of

-context f orces within the patellar tendon.” ¶30. The proponent o f expert testim ony m ust show by a preponderance o f the evidence that the expert is qualif

ied, that h e p ossesses scientif ic knowledge that w ill assist the jury , and that his testim ony is based on suf f i cient f acts and data and r e l iable principles and m ethods, reliably a p plied to the f

acts of the case. See M.R.E. 702; Daubert v. Merrell Dow Pharm. Inc. , 509 U .S. 579, 592 & n.10 (1993). W hen this Court reviews “ a trial court’s decision to allow or disallow

. . . expert testim ony , we apply an abuse of discretion standard. Unless this Court concludes that a t rial court’s decision to adm it or exclude [ the e x pert testim ony ] was arbitrary a nd clearly erroneous, that decis i o n w i l l s tand.” Brent , 133 So. 3 d a t 779 (¶44) (quotation m arks, citation om i tted). ¶31. On the record bef

ore us, we cannot say t hat t he trial judge abuse d h i s discretion by allowing Dr. Bain to t estif y . Dr. Bain’s testim o ny w as r elevant to issues in the c ase, and he dem onstrated scientif

ic knowledge that w ould assist the t rier of f a c t

. S e e M.R.E. 702. In addition, as i n Glimm , t he trial judge did not clearly err or abuse h is discretion by f inding that Dr. Bain was qualif

ied to testif

y by virtue o f his training a nd experience in engineering and

1 3m edic i n e . S e e Mitchell , 819 So. 2d at 552 (¶9); s ee also W hite v. Great W

. Cas. Co. , Civ. No. 08-1491, 2009 W L 2747795, at *2-*4 (W .D. La. A ug. 25, 2009) (f i nding Dr. Bain qualif ied to testif

y i n the areas of biom echanics and injury causation analy s i s in an
autom obile wreck case); Sport v. Cont’l W

. Ins. , No. 04

- 1 3 8 6 , 2 0 06 W L 618271, at *2-*3 & nn.4-5 (D. Kan. Mar. 10, 2006) (sam e). ¶32. As noted above, the p rim ary disputes in this case are whether D r. B a in’s testim ony is based on suf

f icient f acts and data and whether it is reliable. The record on this issue is l i mi ted because Brown did not f ile a pretrial m otion, d id not present any evidence t o challenge the v alidity of Dr. Bain’s opinions, a nd only engaged Dr. Bain i n a brief crossexam ination outside the presence of the jury

. Dr. Bain’s r e p o r t c ited specif ic, p ublished studies a nd articles regarding the f orces and m echanism s that can cause the patellar tendon
to rupture. And Dr. Bain then testif ied that this research supported his opinion that sim ply walking i nto a c h a i r would n ot produce f o rces suf f icient to rupture a p atellar tendon. On appeal, B rown asserts that Dr. Bain relied o n inapposite research, but there i s nothing in the record t o support that assertion. Although Dr. Bain d id not discuss the details of the studies that he cited, there is nothing in the record to ref ute his characterization of them or to show that they do not support his opinion. ¶33. M o r e o v e r , w h i l e B r o w n criticizes Dr. B ain f or not conducting “any tes t i n g o r sim ulation” in this c ase, t here is nothing t o show that the relatively sim ple f acts of the case required such testing. This case does not involve a high-speed autom o bile collision or

1 4rollo v er requiring com plex c alculations of speeds, angles, or energy . For purposes of Dr. Bain’s testim ony at trial, the question was sim ply w hether, b ased o n t h e research he cited, the im pact and f

o r c e s a s s o ciated w ith a m an walking into a chair at a norm al speed would be suf f i cient to cause a bilateral patellar tendon r upture. There is nothing to show that this question required sim

ulations or testing. ¶34. The p roponent of expert t estim ony m ust show by a preponderance of the evidence that the testim ony

is reliable. See Daubert , 509 U.S. at 592 & n.10. However, as noted above,

once the trial judge f

inds t hat the proponent has m et its burden, this Court w i ll not reverse absent a n “ abuse of discretion,” i.e., unless the t rial judge’s ruling w as “arbitrary and clearly erroneous.” Brent , 133 So. 3d at 779 ( ¶44). “W h en we say that the trial court has discretion in a m atter, w e i m

p l y that t here is a lim ited right to be wrong. The statem ent im p orts a view that there are at least two dif f erent decisions that the trial court could have m ade which on
ap p e a l mu s t b e af

f i rm ed.” D arnell v. Darnell , 167 So. 3d 195, 207 (¶34) (Miss. 2014) (quoting Burkett v
. B urkett , 537 So. 2d 443, 446 (Miss. 1989)) (alterations om itted). In the instant case, the trial judge could have excluded D r. Bain’s testim ony . But, particularly given the absence of any evidence r ef uting Dr. Bain’s t estim o ny and characterization of the relevant r esearch, the trial judge was also within his discretion in allowing Dr. Bain to testif y . See id. T he record on this i ssue i s lim ited, and it does not show that the trial judge clearly

e r r e d in f inding that PBS m et its burden as the proponent of the t estim o ny . N or does th e record show that the trial judge acted arbitrarily in allowing the testim ony .

1 5CONCLUSION

¶35. W e f

ind no a buse of discretion in the trial j u d g e ’ s rulings adm itting or excluding evidence, his denial of Brown’s proposed jury i nstructions, or his response to a note f rom a juror. Accordingly , the judgm ent entered on the jury verdict is af

f irm ed. ¶36. AFFIRMED

. GRIFFIS, P.J., CARLTON, FAIR AND GREENLEE, JJ., CO N C U R . WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P .J., AND BARNES, J . T I NDELL, J., NOT PARTICIPATING. WESTBROOKS, J., DISSENTING: ¶37. Because I f

ind that t he recreated photograph and expert testim ony of Dr. Bain should have been excluded, I respectf ully dissent. DISCUSSION A. The admission of the photo recreating the accident scene is reversible error. ¶38. The photograph of the recr e a t e d a c c i d ent s cene was taken by PBS’s counsel in the day light, with the chair incorrectly positioned. P BS conceded that t he c hair w as inaccurately placed in the p hotograph, but insisted that t he inaccuracy o f the picture could be explained to the jury . Brown objected to the use of the photo and f iled a m otion in lim ine to exclude its use at trial. ¶39. The trial court f

o und the photo to b e relevant and p robative to the i ssues in the case. However, the court conceded that the inaccurately placed chair in the recreated photo had to

1 6be ad d r e ssed. The judge t heref ore ordered that the recreated photo could be a dm itted, but the inaccuracy of the chair placem ent shall be explained to the jury , either through witness testim o ny or through an agreed stipulation. ¶40. B r o w n renewed h is objection to the p hotograph at the b eg i n n i n g o f t r i a l a n d reiterated that the photo w as inaccurate and not relevant, since PBS’s counsel actually took the p icture and conceded that t he picture was a n inaccurate recreation of the accident scene. The court took the m atter under advisem ent , b u t allowed the photo to be i ntroduced in the d e f e n se’s opening argum ent. At no point during the trial did any witness authenticate t h e picture. M orever, the parties never arrived t o an agreed stipulation on t he use o f the picture at trial. ¶41. “Bef

ore a photograph m a y be adm itted into evidence, it m u st be shown by

extrinsic evidence to be a true and f aithf ul representation of the place or s ubject i t purports to represent as it existed at a tim e pertinent to the inquiry .” Gul f, M obile & Ohio R.R. v. Golden , 2 21 Miss. 2 53, 72 So. 2d 4 46, 450 (1954) (internal quotation m arks om itted). “The

m aterial inquiry is w hether or not the phot o g r a p h i s a f a ir and accurate reproduction and representation of conditions as they existed at the tim e of the [ accident].” Id

. The Suprem e Court has previously held “that t he adm ission of a recreated accident scene w as i n e r ror where there were a num ber o f m aterial variations between the actual event and the reconstructed event.” Pittman v. Miss. Power & Light C o. , 368 S o. 2d 238, 2 40 (Miss. 1979).

1 7¶42. PBS asserts that but f or the slightly inaccurate placem ent o f the chair, the p hotograph of the recreated accident scene accurately r ef lects Brown’s prerecorded statem ent to PBS’s insurer and the allegations m ade in his com plaint. PBS m aintains that since Brown changed his story several tim e s, the recreated accident photo was em ploy ed with the intent to illustrate his unreliable recollection of the accident. I do not agree. ¶43. The photograph contained a num ber of ma t e r i a l v a r i a t i o n s , which were clearly distinguishab l e f

r o m the accident scene. Both parties conceded that the chair was i n a c c u r a tely placed in the photograph and t hat the b ar’s overhead lighting was turned o f f

. Additionally , the accident occurred at night, though the picture was taken during the day t im e with com plete visibility

. ¶44. T h e ma

j o r i ty holds that the trial court did not abuse its discretion in adm itting the recreated photograph i nto evidence, because Brown’s story changed num erous tim es. The

m ajority opinion notes that PBS explained the inaccurate chair placem e n t during the opening
statem ent, and Brown never specif ically objected to t he photograph’s lighting. W hile he m ay have g iven dif

f e rent versions, none of those versions depicted a scene that occurred during plain day light. M o r eover, the f act that Brown’s story changed does not negate the f act that all parties were i n a greem ent that the photo was an inaccurate d epiction of the accident scene. ¶45. The record also establishes that the photograph could n ot be authenticated, a nd PBS’s counsel could not have plausibly becom e a witness to his own case. The trial court m andated that either a witness explain the inaccurate chair placem ent, or the parties s tipula t e to its

1 8adm ission. Theref o re, PBS counsel’s brief e xplanation of t he r ecreated picture to t he jury does not com

port with the trial judge’s order regarding the adm issibility of the p hoto, and is of no consequence when evaluating the photograph’s adm issibility

. ¶46. The m ajority note s that the lighting in the p hotograph was not specif ically objected to, resulting in a waiver o f t he issue. Though Brown d id not raise a specif ic objection to the lighting in t he photograp h , h e challenged the relevancy , authenticity , and accuracy of the recreated photograph. During t he hearing on Brown’s m otion in lim ine, h is counsel argued that the photo did n ot recreate the accident scene as it existed. The r ecord r ef lects that the accident occurred between 8 p.m . and 10 p.m . Theref ore, a r e c reated accident scene with f ull-light v isibility does n ot accu r a t e l y ref lect the circum stances surrounding the accident.
It is without question that the recreated photograph w a s inaccurate. A s a result, I would f ind that the inaccurate p h otograph of t h e recreated a ccident scene should have been excluded f rom evidence. B. The t

rial court abused its discretion in admittin g t he testimony of Dr. Bain. ¶47. The m ajority holds that the trial judge did not a b u s e h i s discretion in accepting Dr. Bain as a n expert or allowing h im to t estif y regarding the f

orce necessary to rupture patellar tendons. The m ajority opinion notes t hat Dr. Bain’s credent i a l s and his Injury Causation Analy sis report q

ualif ies him as a relevant a nd reliable e xpert. In support o f this h olding, the

m ajority cites this C ourt’s decision i n M i t c hell v
. Glimm , 819 So. 2d 5 48 (Miss. Ct. App. 2 0 0 2 )

. I n Mitchell , the plaintif f presented a licensed engineer to t estif y as to the f

orces
1 9involved in the im pact experienced by the plaintif f as a result of the accident. Id. at 552 (¶¶8- 9). The trial court allowed the expert to testif y , but excluded the plaintif f ’s expert testim ony

on the ef f ect of t h e a c c i d e n t’s i m

pact on the body

. Id. The trial court f ound that the plaintif f ’s expert had not dem o n s t r a t e d suf f icient credentials or experience in the area of biom echanics.” Id. H owever, the trial judge did perm it the def endant’s e x pert to testif

y in the f ield of biom echanics because of the def ense expert’s credentials. Id. ¶48. Here, Mitchell is distinguishable f rom t he m atter bef

ore u s because the issue is not Dr. Bain’s credentials, but the reliability of his testim ony and t he assertion that h i s t e s t i mo n y could conf

orm with that of an orthopedic surgeon. A t trial, P BS’s attorney argued that Dr.
B a i n ’ s o pinions dovetailed with Brown’s orthopedic s u rgeon’s statem ents regarding th e diagnosis and causation of Brown’s injuries. Dr. Bain agreed w ith PBS’s assertion, though Dr. Bain never d escribed the m e thodology used to arrive to his conclusions. Dr. Bain cited published studies and art i c l e s r egarding the f orces and m echanism s that cause a patellar tendon t o rupture; however, Dr. Bai n d i d n o t d i s cuss the details of the s t udies or the reliability of the science u sed to conduct those studies. In f act, Dr. Bain never discussed the

m ethodology

used to arrive at any

of his conclusions regarding Brown’s injuries. ¶49. “An expert witness m ust be qualif

ied to render an o pinion a nd the expert testim ony

m ust be relevant and reliable.” Delt a R e g ’ l Med. Ctr. v. Taylor , 112 S o. 3d 11, 25 (¶41) (Miss. C t. App. 2 0 11). The expert m ust dem onstrate t hat h is o r her opinion “is based upon scientif ic m ethods and procedures, not supported s p eculation.” Utz v. Running & Rolling

2 0Trucking Inc. , 32 So. 3d. 450, 457 (¶10) (Miss. 2 010) (quotin g Adcock v
. Miss. Transp.

Comm’n , 981 So. 2d 942, 947 (¶16) (Miss. 2008)). ¶50. Dr. Ba i n w a s n o t q u a l i f i e d a s a n orthopedic surgeon, and had n ever t reated or perf orm ed a patellar tendon surgery . Moreover, PBS’s c o u n s e l never elicited testim ony regarding the principles and m ethodology that Dr. B ain em ploy ed to a rrive at his conclusions

on the f orce necessary to rupture patellar tendons. “ In evaluating reliability , the court’s f ocus

. . . m ust be solely on principles and m ethodology , not on the conclusions that they generate.” McKee v. Bowers W

indow & Door Co., 64 So. 3d 9 26, 932 ( ¶18) (Miss. 2 011). The Suprem e Court h as f

ound that the “party of

f ering expert testim ony m

ust s how that the expert h as based his t estim ony on the m e thods and procedures of science, not m erely h is subjective belief s or unsupported speculation.” Taylor , 112 So. 3d at 25 (¶42). ¶51. For this r e ason, I f

ind that t he trial judge com m i tted reversible error a nd would reverse and rem and this case f

or a new trial. LEE, C.J., IRVING, P.J., AND BARNES , J., JOIN THIS OPINION.

2 15