IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CA-01297-SCT

GENERAL MOTORS CORPORATION

v.

PRISCILLA MYLES, INDIVIDUALLY AND ON

BEHALF OF THE HEIRS AT LAW OF JARROD

MYLES, DECEASED

DATE OF JUDGMENT: 05/23/2003

TRIAL JUDGE: HON. JANNIE M. LEWIS

COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: FRANK M. HINMAN

KARI KROGSENG

GENE D. BERRY

PAUL V. CASSISA, JR.

ATTORNEYS FOR APPELLEE: ANTWAYN LAVELL PATRICK

ISAAC K. BYRD

KATRINA M. BIBB GIBBS

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND REMANDED - 01/06/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

EASLEY, JUSTICE, FOR THE COURT:

¶1. On October 3, 1998, Jarrod Myles was operating his 1997 Chevrolet Silverado 2500

truck on U.S. Highway 49 between Bel zoni and Indianola in Humphreys County, Mississippi,

when he suffered fatal injuries in a single-vehicle accident. Alcoholic beverage containers

were found by Randy Blakely (Officer Blakely), the deputy sheriff on the accident scene, in

and around the truck. The coroner's report concluded that Jarrod's blood alcohol content1 Priscilla remarried in January 2001, so she is referred to as Calhoun in the record.

2 Jarrod had two children born to his marriage with Priscilla, Porscha and Camron.

3 The Cylert was prescribed to keep Jarrod vibrant and alert to counter his narcolepsy. At trial,

Jarrod's widow, Calhoun, testified that she saw Jarrod take his Cylert the day of the accident. However,

Hales's testimony was offered to contradict that assertion.

2 (BAC) was .11% ethyl alcohol. On May 25, 1999, Jarrod's widow, Priscilla Myles Calhoun 1

individually and on behalf of Jarrod's heirs at law, 2 (collectiv ely known as Myles), filed a

wrongful death

action against General Motors Corporation (GM), Herrin-Gear Chevrolet, Inc.,

and salesman, Joe Powell.

¶2. Prior to trial, Myles filed a motion in limine to limit the videotape deposition

testimony of defense expert, Shan Hales (Hales). Hales is th e toxicologist who analyzed

Jarrod's blood to determine its BAC at the time of the accident. He determined that Jarrod's

BAC level was .11%, but not less than .10%. Hales also tested for the presence of the

prescription drug Cylert, the drug that Jarrod w a s prescribed as a treatment for his narcolepsy.

Jarrod suffered

from narcolepsy, a condition that caused him to fall asleep. Hales found no

Cylert in Jarrod's system. 3 The trial court denied Myles's motion in limine. However, Myles

renewed the motion in limine at trial. The jury watched Hales's videotape deposition. On the

following day, the trial court determined th at Hales's deposition testimony should have been

limited because he did not specifically state that his opinion was given to a reasonable degree

of probability. The trial court struck Hales's entire videotape testimony. The trial court further

found that since the toxicology report was already admitted into evidence, the j u ry had the

results of the tests.3

¶3. While they agreed that a severe impa ct to the upper control arm ball joint attached to

the right front wheel of Jarrod's truck broke the ball stud, as well as other suspension parts, and

caused the truck to roll over, the parties presented various experts as to their theory of the

accident and the design of the ball stud and the truck's suspension system. GM contends that

Myles did not present expert testimony to theorize how the accident occurred nor to establish

an alternative design to prevent such an accident. However, testimony by Myles's expert

witnesses contradicts that position.

¶4. Ro bert Jac Cooper (Cooper) testified on behalf of Myles as an expert in vehicular

accident reconstruction. Cooper examined the accident scene and inspected Jarrod's truck to

reconstruct the accident. Cooper determined that Jarrod was headed west at approximately 35

mph prior to the accident, rotated and began to flip, then came to rest on the passenger side.

Cooper testified as follows:

Q. Could you describe to the jury what that exhibit depicts?

A. Yes, sir. T

o the best I can tell, that's the scenario that I believe

happened to the truck as it came down the road going at a bout 35

miles an hour. It rotated and then began to flip, and it ended up lying,

as I've shown it right there, on the passenger side of the vehic le across

the roadway.

Q. Now, what facts did you determine to support your opinion in that

regard?

A. The damage to the vehicle for instance, and the speed at whic h I believe

it was rolling....

Q. Now, Mr. Cooper, do yo u have any opinions as to whether the vehicle

could have been traveling in the opposite di rection, traveling to the

east?

A. Yes, sir.

Q. Now, what are those opinions?

A. Uh

-- it's something that could have, based on where the position of the

vehicle is on the roadway and the damage to the vehicle and what I

believe the rotation of the vehicle ha d to be to get to that point on the

roadway where it came to rest.4

Q. W ould it have been possible for that vehicle to be traveling eastward

and to have hit a culvert in this particular case?

A. And coming to rest where it did, with the dama g e on the vehicle, no,

sir, I don't believe so.

Q. All right. And why did you reach that conclusion?

A. Well, because the way the vehicl e is damaged, most of the damage is on

the driver's side, and the pictures will show that. Most of the damage is

on the driver's side, and the roof. And there's some damage on the

passenger side, but not very m uch. On the diagram that we just had up on

the screen, it would be best if I

-- could w e put that up again, and I can

explain better pointing to that, I guess.

(WITNESS STANDS)

Q. Now, could you give the jury some idea of which direction we're being

shown in this particular screen?

A. It would be the original position of the vehicle on the right-hand side of

the diagram I believe is in the westbound lane heading to the west. And

the opposite lane on the bottom there would be the eastbound lane where

the vehicle is not going.

Q. Do you have an opinion as to whether the veh icle, itself, left the

roadway?

A. Yes, sir, I don't believe it went any other place than I've got it

diagrammed on there.

Q. And what are the reasons that you came to that conclusion?

A. Well, one thing, again, I keep going back to the damage of the vehicle and

the speed of which I believe it was going. It's not going fast enough to

rotate and "rotate," I mean the first part of that accident there wo uld be

to slide around in a circle on the roadway with its tires on the gro u nd. It

eventually comes to a point where it's going to start flipping over, which

it did. It only flipped, I believe, onto the driver's side first, that's what the

damage shows, the heavie st damage, and then onto the roof, as I have got

it drawn there with the wheels up, then onto the passenger side where it

came to rest. So based on all of that, it looks like the movement of the

vehicle is just as I've got it diagrammed there.

Q. A nd given your conclusions regarding the direction and the speed of

the vehicle, w ould the front right tire on this vehicle have been

damaged or have shredded in the scenario that you described?

A. Well, it could be, because the initial damage, obvi ously, was to the

right front part of the vehicle. So that tire would have been the

damaged area when it fi rst started the motion like I have drawn there.

Q. And when you were inspe cting the vehicle, did you find the tire to be still

on the vehicle?

A. I don't remember, but I think the right front tire was still on the vehicle.

Yeah, I think the right front tire was still on it.5

Q. Now, Mr. Cooper, you state again that you're qualified to make these

decisions based on your experience in accident reconstruction?

A. Yes, and my training, of course.

Q. Have you had situations where you've inspected vehicles that have been

involved in rollovers?

A. Oh, yes, many, many times.

Q. And ba sed on your evaluation and investigation of this particular

accident, do you have an op inion as to whether this vehicle would have

rolled over in this accident more than at least one complete time?

A. Y e s, sir, I believe it would not have. I believe it only rolled over, as I've

drawn there, the driver's side, then the top, and then it came to rest on the

passenger side. So it didn't completely make a 360 revolution back onto

the tires at any point.

(emphasis added).

¶5. Louis Hess (Hess) testified on be half of Myles as an expert in failure analysis and

metallurgical engineering. Hess testified as to his area of expertise as follows:

A. My particular area of expertise is failure analysis and met allurgical

engineering.

Q. If you could, tell the jury what you mean by "failure ana lysis and

metallurgical engineering."

A. My training in metallurgy involves with looking at d ifferent metals and

the ir properties and how you use them and how they're processed, et

cetera. For failure analysis, that's been my primary focus. I look at

these parts and try to determine why they failed, what may have been

going wrong, is there any corrective action that can be done. What

type of mitigating procedures you may want to do.

(emphasis added).

¶6. Hess h

ad also previously had experience working for Chevrolet in its metallurgy

labor atory in its co-op program. Hess determined based on examination of the truck's upper

ball joint that the upper control ball stud fractured first. Hess determined that GM's hardening

process was not uniform, relatively thick in some areas, thin in other areas and non-existent

in other areas. Hess testified that an excessively thick non-uniform ball joint caused a bending6

overload. In Hess's opinion, the ball joint should have little or no case hardening in the area

of the ball joint that broke in Jarrod's truck. Hess stated that if GM had a more uniform and

a less thick hardening case around the ball joint, the accident would not have occurred. Hess

testified on direct examination as follows:

Q. Mr. Hess,... could you give the jury some idea of what happened when

this upper ball stud failed?

A. There was a side bending load induced into that ball stud. It broke off.

The suspension essentially, the tr uck essentially sort of fell down on

the suspe nsion, and trapped the tire rod inside which went, flopped

over to the side, the way you see it in that picture. And I believe that

resulted in the loss of control. And when that happened, t he vehicle

rolled over.

Q. And how soon between the fracture and -- how much time elapsed been

the fracture and the vehicle rollover?

A. I wou l d say it would have been fairly instantaneous. Once that failed,

one of the suspension parts failed, you have no control over that

vehicle. In particular, the upper control arm stud failed, causing that

side motion of suspension.

Q. Now what is it about that scenario that made the tire rod stud fail?

A. Once that happened a nd folded over, it just bent that back and broke that

tire rod stud itself. That just snapped up instantaneously....

Q. Now, you talk ed some about the way the fracture occurred and the

composition and the case hardening and the induction hardening and

those kinds of things. Do you have any opinion as to whether this

particular fracture was preventable?

A. Yes.

Q. What's that opinion?

A. I believe it would have been preventable if there was a tighter control

over having a brittle case in an area of the suspension that's not

subject to a wear mechanism, b ut could possibly be subject to a

bending or an overload mechanism.

Q. When you say "better control," what do you mean by "better control"?

A. In the process control of how the part is made and manufactured is,

to have your proce s s in control that you harden the area that you

desire to have a hardened cas e. In this case that the ball surface is

hardened, but not necessarily the mounting feature or the support

feature of the stud.7

Q. On this particular ball stud, did you measure the hardness o r the depth of

this hardened case?

A. Yes, I did.

Q. What did you find to be the measurement of this particular casing?...

A. It was thinner than that in some areas and it was much thicker than that in

other areas. So it varied from, it will be 30 mills to a hundred mills.

Q. With this particular bal l stud and this particular application in the truck,

what would you expected to hav e been the thickness of this particular

area?

A. From a metallurgist viewpoint as to what you would li k e the optimum

design of your part to be, I would expect there to be little or no case

hardened features in an area of a part that does not required that, because

you're giving up ductility in those locations....

Q. Assuming that the part would have the measurements and the depth that

you're talking about, would it still be functional?

A. Yeah, it would still work as a ball stud, yes.

Q. Would it still have the same capability in this particular vehicle?

A. Yes, as long as it wasn't subject to a bending load.

Q. Do you have an opinion, Mr. Hess, as to whether this part icular ball stud

is defectively designed, or defective, I'm sorry.

A. My opinion is it's defective in the implementation of the proper

practices for c a se hardening for where they are.... But I believe it's

defective from a

metallurgical design standpoint, in that you want a very

hard case where you're expecting the parts to wear, and you do not want

that high hardness case which gives you much lower ductility in an area

that you don't need that hardness.

(emphasis added).

¶7. Myles c alled Dr. Samuel Gambrell to testify as an expert failure analyst. He found the

hardened area of the ball stud to be extremely thick. Dr. Gambrell testified that the ball stud

was extremely brittle and, therefore, not able to absorb shock very well. Dr. Gambrell

determined that the hardened material in the ball stud made the part defe ctive. Dr. Gambrell

testified that he reviewed Cooper's reconstruction of the accident and concurred as to his

findings.4 There was no testimony from Officer Blakely in the record to indicate that Jarrod was alive when

he arrived at the scene. According to the exhibits, Humphreys County coroner Robert C. Ragland was

called to investigate the scene.

8 ¶8. GM called Allen Wilinski (Wilinski) as an expert in mechanical engineering, metallurgy

and accident reconstruction. Wilinski had been employed with General Motors for over 30

years, testifying for GM in 47 ca ses. Wilinski did not visit the accident scene nor

personally inspect Jarrod's vehicle. Wilinski only viewed photographs of the accident

scene and the truck. W ilinski relied on Officer Blakely's police report from the acci dent for

information.

¶9. Officer Blakely pr epared an official police report for this accident. When he arrived

at the scene, he discovered Jarro d not moving or breathing and saw a large gash to the midportion of his forehead. 4 He testified that he examined the truck and the accident scene.

Officer Bl a kely did not measure the tire marks at the accident scene, and he did not take any

photographs of any marks. Officer Blakely discovered alcohol containers at the scene of the

accident in and around th e truck. He took a photograph of a beer can amongst the debris.

Officer Blakely testified as to his account of the accident scene on direct examination by GM's

attorney as follows:

Q. Deputy Blakely, if you would, tell us, did you s ee any physical evidence

at the scene of the accident tha t would indicate to you the path of Mr.

Myles's vehicle?...

A. When I arrived and checked the scene, once all the commotion was

cleared up, the vehicle was remo ved, at night -- it's hard to tell at night,

but you can look and see, sometimes you c an tell, and it appeared to me

that what I was looking at was the path of travel from the vehicle. That

night was it went off the edge of the right shoulder of the road, and it

came back up there. I went back also the next day. There's also, I could

tell where the path of travel was, because where t he vehicle came back,

where it rested at, I trailed the marks from the tires. I mean they were9 very dense m

arks, but you could still tell them in the daylight. And the

marks came back up onto the road, and that's where the vehicle landed.

Q. All right. What side of the road are we talking about?

A. It would have been to my right. It would have been the right side of the

road, which

would have been coming from Isola towards Belzoni,

traveling in a southeasterly direction....

Q. Tell the jury whether or not you obs e rved any evidence of the path of the

vehicle....

A. The path that I could tell came from the vehicle, the vehicle was headed

southeast and went off the right-hand side of the ro ad, which would have

been coming fr om Isola to Belzoni in a south-easterly direction. Came

off the right-hand s ide of the road, came back up the right-hand side of

the road, and that's where

-- I determined that it was headed towards

Belzoni, by what I could see.

Q. D id you see any places on the roadway, itself, any evidence of marks or

anything on the highway?...

A. There were actual gouge marks in the highway where the vehicle rested

at.

¶10. However, on cross-examination by My les's attorney, Officer Blakely testified as

follows:

Q. And you admit to th is jury you're not an expert in accident

reconstruction?

A. No, ma'am, I'm not a reconstructionist.

Q. And shortly after the accident scene, you prepared a police report?

A. Yes, ma'am....

Q. Show me on this police report wher e you indicated you saw marks off

the side of the road....

A. There's not any marks on here.

Q. When did you first determine the direction of the Myles's vehicle?

A. I determined it that night....

Q. Show us on the accident report whe r e you indicate the direction of the

Myles' vehicle.

A. It's not going to be on there.

Q. You also indic ated in your testimony on direct something about a grassy

culvert area?

A. On what now?

Q. You mentioned in direct examination –

A. Right.

Q.

-- when General Motors attorneys questioned you, that there was a

grassy culvert area in that area.10

A. Right.

Q. Show us on your pol ice report where you indicate a grass culvert area.

A. I don't draw culverts on my reports.

(emphasis added).

¶11. And finally, as previously discussed, Hales was called as an expert in the field of

toxicology by GM. Hales examined Jarrod's bodily fluids for the presence of ethyl alcohol

and his prescribed narcolepsy drug, Cylert. Hales testified via videotaped deposition.

However, the trial court based on Myles's objection, struck Hales's testimo ny in its entirety.

¶12. The trial court refused to grant defense's proposed jury instruction, D-23, which would

have instructed the jury that Jarrod was legally intoxicated on the night of the accident when

he was drivin

g his truck and that it was negligence as a matter of law to drive while legally

intoxicated. Proposed Jury instruction D-23 stated:

The Court instructs you that Jarrod Myles was driving his 1997 Chevrolet

truck on the night of the accident while legally intoxicated. It is negligence as

a matter of law to drive while legally intoxicated.

The Court instruct s you it is for you to determine whether such

intoxication was the sole proximate cause or a contributing cause to the accident

and injuries to Jarrod Myles.

According, if you find from a preponderance of the evidence in this case

that the intoxication of Jarrod Myle s was the sole proximate cause of the

accident or

that such intoxication combined with other negligence, if any, of

Jarrod Myles, then it

is your duty to find in favor of the Defendants, General

Motors and Herrin-Gear.

If you find from a

preponderance of the evidence in this case that such

intoxication was a proximate cause of the crash or combined with other

negligence, if any, on the part of Jarrod Myles to be a proximate cause and the

injuries of Jarrod Myles, then you must assign fault to Jarrod Myle s in such

percentage as you find the negligence o f Myles, if any, caused or contributed to

the accident.

¶13. The trial court did grant defense's jury instruction, D-24, which stated:11 T he Court instructs the jury that it is negligence for a person to drive

under the influence of alcohol.

The Court instructs the jury that it is for you to determine whether Jarrod

Myles was under the influence of alcohol in any degree, and if so, whether such

intoxication contributed to the crash.

Accordingly, if you find from a preponderance of the evidence in this

case that the intoxication of Jarrod Myles, if any, was the sole proximate cause

of the acci

dent, or combined with other negligence, if any of Jarrod Myles to

be the sole proximate cause of the accident, then it is your duty to find in favor

of the Defendants, General Motors and Herrin-Gear.

If you believe that such intoxica tion, if any, was a proximate cause of the

crash or combined with any other negligence, if any, on the part of Jarrod Myles

to be a proximate

cause of the crash and the injuries of Jarrod Myles, then you

must a ssign fault to Jarrod Myles in such percentage as you find that the

negligence of Myles, if any, cause or contributed to the accident.

¶14. We fin

d that the trial court erred in denying defense jury instruction, D-23. In B uel

v. Sims

, 798 So.2d 425, 429-30 (Miss. 2001), this Court upheld the jury instruction given by

the trial court which instructed the jury t hat “Debora K. Buel was negligent as a matter of law

in operating her vehicle at a time when she had a blood alcohol level greater than 100 mg/dl.”

Therefore, we find that GM was entitled to receive jury instruction D-23 that it was negligence

as a matter of law to operate a vehicle while legally intoxicated. As provided in jury instruction

D-23, the jury would then assess if J arrod’s intoxication was the sole proximate cause or a

contributing cause to the accident an d his injuries. However, since we find that the trial court

committed reversible error in stri king Hales’s entire testimony, here we reverse and remand

this case to the trial court solely on the exclusion of Hale’s testimony.

¶15. The jury returned a verdict in favor of Myles for $10 million. GM contends that

statements in Myles's closing argument s referring to unrelated corporate misdeeds was

improper and prejudiced the jury resulting in the jury's verdict. GM filed a motion for

judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, or12

remittitur. Myles filed a response to GM's motion. The trial court denied GM's motion for

JNOV, however, it granted GM's motion for remittitur and reduced t he verdict to $5,428,730.

GM now ap p eals to this Court raising various issues, however, the central issue that requires

this Court to reverse and remand the matter to th e trial court is the trial court's erroneous

decision to exclude and strike Hales's entire testimony. We find that the judgment of the

Circuit Court of Humphreys County should be reversed. Neither the jury's verdict nor the

remittitur by the trial court will be addressed.

ANALYSIS

Hales's Testimony

¶16. The issue raised on ap peal that merits reversal is the trial court's decision to strike the

video-taped testimony of the def ense's toxicologist, Shan Hales. Not only was the trial court's

reasoning to strike the testimony flawed, the denial of the toxicologist 's testimony constitutes

reversible error as Hales's testimony is central to the entire case.

¶17. On appeal, Myles does not dispute that Jarrod’s BAC was .11% nor does she contest

how the blood and fluids

were drawn. In fact, Myles heavily relies on GM’s exhibit GM-4, the

Mississippi Crime Laboratory report, which tested Jarrod’s BAC level and determined that

Jarrod’s BAC was .11% to support the e xclusion of Hales’s videotape testimony. The exhibit5 The report only states the alcohol content determination. The report contains Hales’s findings

that Jarrod’s BAC was .11% ethyl alcohol. There is no reference to the drug Cylert. It states that “[t]raffic

related cases in which blood alcohol concentration is 0.10% or greater are not rountinely screened for

drugs. However, if drug analysis is necessary in this case, please contact Shan Hales in the Toxicology

Department.”

6 Exhibit GM-3, the coroner’s report prepared by Ragland as coroner for Humphreys County,

M ississippi, also contains Hales’s laboratory findings that he prepared as forensic toxicologist at the

Mississippi Crime Laboratory. Hales’s report only contains an alcohol content determination. It is the same

report prepared by Hales that is also contained in exhibit GM-4. The coroner’s report further contains

Ragland’s findings when he arrived at the scene of the accident. Ragland requested alcohol and drug

analysis from the Mississippi Crime Laboratory.

7 Vitreous fluid is fluid drawn from the eye. According to Hales, it is routinely collected in death

investigation as it is excellent in testing for alcohol.

13 contained the toxicology report prepared by Hales. 5 6 On appeal, Myles states in her brief that,

“[t]he trial court appropriately determined since the report of Mr . Myles stating his blood

alcohol l evel was .11% and the drug Cylert was not in Mr. Myles[‘s] system [was admitted into

evidence], the [testimony of the] Def endant’s toxicologist will not [be] of any assistance to the

jury.” Myles further states in her brief that “the [trial] court subsequently struck Mr. Hales’s

testimony in its entirety because Mr. Hales could only testify to what was in his toxicological

report, and since the report had already been admitted into evidence, the testimony of Mr.

Hales would have been cumulative.”

¶18. At trial, Hales was not challenged for lack of qualifications as an expert. Hales testified

that he was employed a t the Mississippi Crime Laboratory as a forensic toxicologist. Hales

stated that he had testified in court approximately 30 times.

¶19. Instead of challenging Hales's q ualifications, Myles argued, and the trial court agreed,

that Hal es's opinions were not offered in the proper form, "to a reasonable degree of

probability."

Hales examined Jarrod's blood and vitreous fluid for the presence of alcohol. 78 Hales testified that the Mississippi Crime Laboratory routinely used the National Medical Service.

14 The blood and vitreous fluid c ontained .11% ethyl alcohol. The National Medical Service,

routinely used by the crime lab, prepared a report finding the presence of ethyl alcohol at a

level of 108 milligrams per deciliter or the equivalent of a BAC of 0.10 percent. 8

¶20. Jarrod's blood was also tested for the presence of any drugs by the National Medical

Service which did not detect any drugs other than ethyl alcohol. Hales testified that the drug

screen would have detected the presence of the drug Cylert o r Pemoline. Therefore, the

National Medical Service's test did not detect any narcolepsy medication. However, Hales's

testimony was chal

lenged for not stating his opinion as to the effect of the BAC level and the

lack of Cylert in Jarrod's system on whether that caused or con tributed to the accident. The

trial court struck the entire testimony based on the challenge.

¶21. The trial cou

rt's reasoning is flawed. While Hales's response did not used the words

"within a reasonable degree of probability," the question proposed to Hales wa s phrased in that

form.

¶22. When deposed by G M's attorney as to the effect of the consumption of alcohol in

connection with

also suffering from the condition of narcolepsy on a person's driving ability,

the record reflects:

Mr. Berry: If

you would, do you know what the effects of an alcohol level in

the blood of greater t

han .10 would have on the driving ability of

an individual?

Mr. Hales: Yes, I do.

Mr. Berry: All right. If you would explain that to us.

Mr. Hales: Any individual with a blood alcohol concentration of .10

percent or gr

eater would have impaired judgement. They

would also have impaired decision ma king ability. They would15 have impaired divided attention abili ties, which is the ability

to do more than one task at one time, which is what is req u ired

when driving a motor vehicle.

They would also have increased reaction time. In other words, it

would take them longer to react to a stimulus.

Mr. Berry: Do you

know whether a lack of sleep could have an affect on a

person's driv

ing ability if they had consumed alcohol in excess of

the legal limit?

Mr. Hales: If an indiv idual had experienced a lack of sleep, they could

possible alread y be impaired in their ability to drive simply due

to the ir loss of sleep. T hat, in addition to a blood alcohol

concentration of .10 percent or greater, would definitely add

to the degree of impairment of an individual.

Mr. Berry: What about a person who suffers from the condition of

narcolepsy? If they had consumed alcohol in excess of the legal

limit, what affect would that have on their driving ability?

Mr. Hales: In my opinio n it would probably also be exacerbated by the

presence of .10 percent or greater bloo d alcohol. As with a

lack of sleep a tendency to fall asleep or the presence of a

condition such as narcolepsy, that would also ad d to the degree

of impairment.

(emphasis added).

¶23. However, on cross-examination by Myles's at torney, Hales again testified as to his

opinion reg

arding whether an individual with a BAC of .11% would have a possible impairment

that would contribute to an accident. In phrasing the question, Myles's attorney asked for

Hales's opinion within a reasonable degree of probability. In fact, the record reflects:

Mr. Northington: Do you have an opinion as to whether the blood alcohol

content of Ja

rrod Myles that you found had any

relationship to the accident that he was involved in

October 3, 1998?

Mr. Hales: It's my opi nion that an individual with this blood alcohol

c oncentration would be impaired, and that it would

certainly be possib le that that impairment would

contribute to an accident.

Mr. Northington: But to a reasonable degree of probability, do you have

an opinion as to whether it is related to the accident?16

Mr. Hales: It's my opinion that if an accident occurred and an

individual had a blood alcohol concentration of .11 that,

yes, the a lcohol would be a contributing factor to the

accident.

(emphasis added).

¶24. M.R.E. 702 provides for the admission of testimony by experts, stating:

If scientifi

c, technical, or other specialized knowledge will assist the

trier of fact to understa

nd the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise, if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the product of reliable

pr inciples and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.

¶25. The admission or exclusion o f evidence is reviewed for abuse of discretion. W hitten

v. Cox

, 799 So.2d 1, 13 (Miss. 200 0). "Where error involves the admission or exclusion of

evidence, this Court 'will not reverse u nless the error adversely affects a substantial right of

a party.'" Id

. at 13 (citing Floyd v. City of Crystal Springs

, 749 So.2d 110, 113 (Miss. 1999)).

¶26. As previously stat ed, Hales's testimony was not challenged for lack of qualifications

as an expert or his expert ise to give his opinion. This Court has addressed the use of a

toxicologist's testimony concerning causation. T hompson v. Carter , 518 So.2d 609, 613-14

(Miss. 1987).

¶27. In Thompson

, Michael Hughes was offered as an expert witness in the fields of

ph armacology and toxicology. I d

. at 613. The issue raised was whether Hughes's proffered

testimony shou

ld have been admitted concerning causation or the medical standard of care with

respect to use and administration of drugs despite the fact that he did not possess a medical

d egree. Id . at 614. In reaching its decision, the Court relied on S onford Products Corp. v.17

Freels

, 495 So.2d 468 (Miss. 1986), overru led on other grounds

, B ickham v. Dep’t of

Mental Health, 592 So.2d 96 (Miss. 1991). In S onford

, the Court recogni zed that "medical

causation" is no more than "causation in fact." 495 So.2d at 472.

¶28. In applying the Sonford rationale, the Court held that, "[a] pharmacology/ toxicologist

would be at least equally competent to testify concerning what effect a certain drug would have

on the human body." T

hompson

, 518 So.2d at 613-14. The Court further found that Hughes

was also "qualified to deliver expert testimony, notwithstanding his lack of a m edical degree,

o n the issue of a physician's standard of care in the use and administration of this drug." I d

. at

615.

¶29. Likewise, in O'Neal v. Roche Bio medical Laboratories, Inc. , 805 So.2d 551, 552

(Miss. Ct. App. 2000), Michael W e aver, a toxicologist at the Mississippi State Crime

Laboratory, provided te stimony that the decedent has a blood alcohol level of 0.26% and the

effect that wo uld have on the decedent's abilities. Weaver testified that the decedent's "ability

to walk, see and perceive things around him would have been significantly diminished by his

intoxication." I

d

. While the court did not address Weaver's testimony as an issue, the court

dis cussed Weaver's testimony in connection with the issue addressed by the court of whether

or not the trial court erred in failing to give a jury instruction for a specific form of a verdict

in a comparative negligence case. Id . at 554.

¶30. In the case sub judice, the trial court's decision to exclude and strike H ales's entire

testimony requir es reversal and remand. Hales's testimony was crucial to GM’s theory of18

defense at trial a nd critical to GM's central disputes as to how the accident occurred and what

caused the accident and Jarrod's resulting fatal injuries.

¶31. This Court has hel d that it constitutes reversible error to restrict an expert's testimony

about the main issue in the case. M ississippi Power & Light Co. v. Lumpkin , 725 So.2d 721,

733-34 (Miss. 1998). In L umpkin

, a case involving a negligence action brought by the mothe r

,

Leslie Lumpkin, of the passenger, Kr isten Black, against the utility company and the driver of

the vehicle, Randy Tackett, that struck the utility pole. I d

. at 72 2. The Court was faced with

the trial court exclusion of MP&L's expert witness's, Bob Marsh, testimony. I d

. at 733.

M P&L tendered and the trial court accepted Marsh as an expert in the field of engineer ing.

Id . Marsh testified that the power line in question, in his opinion, met the National Electrical

Safety Code. I

d

. at 726. However, Lumpkin's attorney objected, as follows, to the questioning

of March as to his opinion as being a discovery violation:

Q. Do you have an opinion as to whether or not prior to November 23rd, 1989,

it was reasonably–from an engineering standpoint, it was reasonably foreseeable

that an out-of-control vehicle would strike this pole?

MR. LISTON: We object, Your Honor. That's not one of the opinions that this

witness said to have in the discovery.

Id . at 733.

¶32. The trial co urt sustained Lumpkin's objection, and MP&L made its proffer to the trial

court. This Court found that the trial court committed reversible error, stating:

Foreseeability was clearly the main issue in the case about which Lumpkin was

prepared to and did offer expert testimony. There was no time needed for

further preparati

on. Lumpkin does not even claim actual surprise or prejudice

if this testimony was admitted. Under these circumstances i t is a clear abuse

of discretion to exclude the testimony . This error requires reversal.19

Id . at 734 (emphasis added).

¶33. Therefore, we find that here the trial court erred in excluding and striking Hales's entire

videotape testimo ny. Exclusion of Hales's testimony constitutes reversible error. Hales's

opinion and testimony regarding Jarrod's intoxic ation and lack of the prescription drug Cylert

and the effect on causing or contributing to Jarrod's accident is crucial to the main issue and

central to GM's defense.

CONCLUSION

¶34. For the fo regoing reasons, the judgment of the Humphreys County Circuit Court is

reversed, and this case is remanded for a new trial consistent with this opinion.

¶35. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING

.