Peter Nordberg. E-mail:
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Mississippi decisions are monitored for this site by Alexander Ignatiev, of the law firm Allen, Allen, Breeland & Allen. Mississippi's Supreme Court purported to abandon Frye and to adopt Daubert in Mississippi Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003), though it has intimated more recently, in Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 60 (Miss. 2004), that general acceptance is still required. Background on Mississippi's law of expert evidence is available at Harvard's Judicial Gatekeeping Project, but the analysis there dates from 1999, before McLemore was decided. The Mississippi Rules of Evidence are available online.
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Mississippi Court of Appeals
Daughtery v. Conley, No. 2003-CA-02092-COA (Miss. Ct. App. Dec. 7, 2004). Passenger in vehicle #1 suffers no immediate ill effects when vehicle #1 is rear-ended by vehicle #2. Five days later, however, he experiences severe abdominal pain and visits emergency room, where he is diagnosed with acute appendicitis and undergoes emergency appendectomy. Passenger sues driver of vehicle #2, alleging that collision caused his appendicitis. At trial, passenger offers causation testimony from Drs. Steven Hayne and Enrique Gomez. At close of evidence, trial court grants directed verdict to driver. Passenger appeals. Affirmed. Mississippi law requires that expert physician testimony establish that causation is probable, not merely possible. Satisfaction of that requirement depends not on expert's use of magic words, but rather on reliability of his testimony. Under Mississippi law, reliability is measured under Daubert, and trial court enjoys considerable leeway in its reliability assessments. In this case, plaintiff's experts testified that causation was "conceivable" and "consistent" with events. Neither expert, however, presented evidence sufficient to demonstrate that theory of causal connection between rear-impact vehicle collisions and appendicitis enjoys general acceptance within medical community. It would have been inappropriate to charge jury with ratifying theory that medical community itself has not yet adopted.