3. Analysis
3.1. Precedents Cited (and How They Drove the Outcome)
A. Waiver / Contemporaneous Objection
The decision’s fulcrum is Evans v. City of Aberdeen, 926 So. 2d 181 (Miss. 2006). In Evans, the Court held that where no objection is made at trial to a party’s “failure to qualify their witness” as an expert, the issue is waived and the appellate court may not discount the testimony when evaluating the case.
Evans itself relies on the broader contemporaneous objection principle stated in Mallard v. State, 798 So. 2d 539 (Miss. 2001), and Smith v. State, 530 So. 2d 155 (Miss. 1988): an error is preserved for appellate review only through timely trial objection; otherwise, it is waived.
Applying Evans, the Supreme Court concluded the Court of Appeals “improperly excluded” Dr. Lewis’s unobjected-to testimony about standard of care and compatibility/mixing of device components. Once admitted without objection, that testimony “became part of the evidence in the case” and could sustain a defense verdict.
B. JNOV / Sufficiency Standards
The Court framed sufficiency review through Miss. Transp. Comm'n v. United Assets, LLC, 188 So. 3d 508 (Miss. 2016), and Adcock v. Miss. Transp. Comm'n, 981 So. 2d 942 (Miss. 2008): JNOV is reviewed de novo, and denial is affirmed if “substantial evidence” supports the verdict.
It also invoked InTown Lessee Assocs., LLC v. Howard, 67 So. 3d 711 (Miss. 2011), quoting Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So. 2d 364 (Miss. 2008): evidence is viewed in the light most favorable to the verdict winner, with all favorable inferences.
C. Plaintiff’s Burden and the Jury’s Freedom to Reject Plaintiff’s Experts
The Court reiterated, via Johnson v. Pace, 122 So. 3d 66 (Miss. 2013), and Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346 (Miss. 1990), that the plaintiff bears the burden to prove duty, breach, proximate causation, and injury.
For the jury’s role in weighing and rejecting even expert testimony, the Court relied on Thompson v. Dung Thi Hoang Nguyen, 86 So. 3d 232 (Miss. 2012): the jury may accept all, part, or none of any witness’s testimony, including experts.
D. “Subjective Standard of Care” Concerns Distinguished
The Upchurches cited Bickham v. Grant, 861 So. 2d 299 (Miss. 2003), where a jury instruction improperly suggested a physician’s “best judgment” could define the standard of care—an impermissibly subjective formulation.
The Court distinguished Bickham because no such “best judgment” instruction was given here. Instead, the jury received an objective national standard-of-care instruction, and Dr. Lewis testified as to what he did and why it met that objective standard.
E. New Trial / Weight of the Evidence
For weight review, the Court again used Miss. Transp. Comm'n v. United Assets, LLC and Johnson v. St. Dominics-Jackson Mem'l Hosp., 967 So. 2d 20 (Miss. 2007): a new trial is warranted only when the verdict is so contrary to the overwhelming weight of the evidence that it would sanction an unconscionable injustice.
The Court emphasized the jury’s role in resolving conflicting testimony through Williams v. State, 391 So. 3d 193 (Miss. 2024), quoting Wilson v. State, 343 So. 3d 1041 (Miss. 2022), and reiterated deference to credibility determinations via Williams v. State, 391 So. 3d 1151 (Miss. 2024), quoting McFadden v. Miss. State Bd. of Med. Licensure, 735 So. 2d 145 (Miss. 1999).
F. Directed Verdict Standard
On the directed verdict issue, the Court cited Forbes v. Gen. Motors Corp., 935 So. 2d 869 (Miss. 2006), quoting Entergy Miss., Inc. v. Bolden, 854 So. 2d 1051 (Miss. 2003): if the evidence and reasonable inferences present a jury question, a directed verdict is improper.
G. Jury Instruction Review “As a Whole”
For instruction review, the Court relied on Moody v. State, 202 So. 3d 1235 (Miss. 2016), quoting Bailey v. State, 78 So. 3d 308 (Miss. 2012), and referencing Boyd v. State, 47 So. 3d 121 (Miss. 2010): instructions are reviewed collectively, and no reversal occurs if they fairly announce the law.
It also cited Smith ex rel. Smith v. Miss. Coast OB/GYN, 325 So. 3d 723 (Miss. Ct. App. 2021), quoting Fred's Stores of Miss., Inc. v. M&H Drugs Inc., 725 So. 2d 902 (Miss. 1998), for the same “as a whole” principle.
H. Proximate Cause in Medical Malpractice
Addressing “the” vs. “a” proximate cause, the Court referenced elements stated in Smith v. Hardy Wilson Mem'l Hosp., 300 So. 3d 991 (Miss. 2020), quoting Norman v. Anderson Reg'l Med. Ctr., 262 So. 3d 520 (Miss. 2019): plaintiffs must show the breach was the proximate cause or proximate contributing cause, typically through expert testimony.
The Court found any potential ambiguity was cured because plaintiff’s instructions included “proximate and contributing cause” language and expressly stated there may be more than one proximate cause.
3.2. Legal Reasoning
A. The Court of Appeals’ “evidence subtraction” was legally improper
The Supreme Court did not decide whether Dr. Lewis should have been qualified as an expert to opine on standard of care in the first instance. Instead, it treated the issue as one of preservation: because the Upchurches did not object on the ground that he was not tendered/accepted as an expert, the appellate court could not retroactively remove that testimony from the sufficiency analysis.
B. Once the testimony stayed in, substantial evidence existed
With Dr. Lewis’s unobjected-to testimony included, the evidentiary record supported a defense view:
- Dr. Lewis testified that mixing manufacturers’ components was common “off label,” and he had used Boston Scientific batteries with St. Jude leads successfully for decades.
- He explained the intraoperative incompatibility as stemming from a lead he described as “flimsy,” “corroded,” and “bent,” and he testified it would not fit “any” adapter/battery/pulse generator.
- The Court highlighted that the Upchurches’ own expert (Dr. Narlin Beaty) agreed that if a lead was misshaped or damaged, it was “no longer appropriate to be implantable into any device.”
That combination created a reasonable basis for jurors to conclude the Upchurches did not meet their burden on breach and/or causation, even in the face of contrary expert opinions about device compatibility and preparation.
C. Deference to the jury on conflicts and credibility
The Court’s approach is a classic appellate restraint posture: where testimony conflicts, the jury resolves it. The Court rejected the idea that a “mountain” of plaintiff evidence compels reversal when the defense has legally admissible evidence supporting an alternative inference.
D. Remaining issues: directed verdict and jury instructions
After reinstating sufficiency, the Court addressed additional issues:
- Nursing staff liability: testimony from nurse expert Stephen Furman and from Dr. Beaty was sufficient to create a fact question whether nursing communication failures contributed to delay in recognition/treatment of neurological decline.
- Instruction D-14 (Jury Instruction No. 9): although it used “each and every element” and referred to proving “negligence claims,” any potential confusion was cured by the Upchurches’ own instruction (Jury Instruction No. 10) expressly allowing liability if any one of four alternative negligence theories was proven and by the proximate-cause instruction stating there may be more than one proximate cause.
- Standard-of-care instruction (Jury Instruction No. 4): the Court held it was adequate because another instruction (plaintiff’s) connected breach of the standard of care to negligence.
3.3. Impact
A. Appellate review must assess sufficiency using the evidence actually admitted
The most significant practical consequence is procedural: appellate courts may not reframe sufficiency by excluding admitted testimony on an unpreserved qualification objection. If evidence came in without contemporaneous objection, it remains part of the sufficiency/weight calculus.
B. Trial practice: qualification objections must be timely and specific
For malpractice litigants, the case is a cautionary template. If a defendant physician (testifying as a fact witness) begins offering opinions that sound like expert standard-of-care testimony, opposing counsel must object and articulate the basis (e.g., not tendered/qualified under applicable evidence rules). Waiting until appeal risks waiver.
C. Substance (not just procedure): defendant testimony can be outcome-determinative
Even where multiple plaintiff experts testify to breach, a defense verdict can stand if there is substantial contrary evidence admitted at trial—here, Dr. Lewis’s explanation of his practice and the alleged damaged lead, plus causation uncertainty. The decision reinforces that “battle of experts” outcomes belong to juries, not appellate reweighing.
D. Instruction drafting: “as a whole” review rewards coordinated instructions
The Court’s instruction analysis underscores the strategic reality that a party’s own instructions can cure (or dilute) objections to an opponent’s instruction. Here, plaintiff instructions explicitly set out alternative negligence theories (OR’d) and multiple-proximate-cause language, neutralizing claims that the defense instruction’s phrasing misled the jury.