SMITH v. CLEMENT

DICKINSON, Justice, for the Court.

¶ 1. The appellee's motion for rehearing is granted. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. In this products liability case, the trial court granted the defendant's motion to strike an affidavit submitted by the plaintiffs expert in opposition to the defendant's motion for summary judgment. The question presented is whether the trial court properly excluded the expert's affidavit. We affirm.

¶ 3. In 1981, the Amory School District ("Amory") engaged M W Gas Company ("M W") to convert several of its school buses from gasoline to propane fuel. After the conversion was completed, the buses were inspected and placed in service. Other than supplying propane, M W had no more involvement with the buses.

¶ 4. During the fourteen years following the conversion, the buses were inspected annually. Outside contractors, including several automobile dealerships, provided regular maintenance and necessary repairs. However, pursuant to its record-retention policy, Amory destroyed several years of the maintenance and repair records.

¶ 5. In May 1995, one of the buses caught fire. Two children on the bus, Lanikia Smith and Camille Carter, were burned while attempting to escape. The following year, the girls filed suit against Amory, alleging several theories of liability. Four years later, Amory filed a third-party complaint against M W. The plaintiffs settled with Amory, leaving before us only the claim against M W which is, essentially, that M W was negligent in its installation of the propane fuel system for the bus.

¶ 6. On March 24, 2005, M W moved for summary judgment, claiming Amory could not present a genuine issue of material fact as to its claim that "the propane fuel system was in the same condition in May, 1995 [the time of the fire] as it was when it left M W Gas in August, 1981." Amory responded to the summary judgement motion on April 18, 2005, including with its response an affidavit from its expert, Dr. Richard E. Forbes. In his affidavit, which was dated April 15, 2005, Dr. Forbes averred that the fire was caused by a leak in the copper tubing, which was improperly flared. He further opined that "the copper tubing originally flared by M W Gas Company in 1981[was] the same copper tubing which was on [the bus] in 1995 at the time of the fire."

¶ 7. On May 5, 2005, M W responded with a motion to strike Dr. Forbes's affidavit. In support of its motion to strike, M W provided an affidavit from its own expert, Derek T. Nolen, a mechanical engineer who attested to having "extensive training in explosion and fire analysis of liquefied propane gas, mechanical systems and component failure analysis." After examining the bus maintenance records from July 23, 1992, to March 9, 1995, and parts invoices from August 26, 1991, to December 11, 1992, Nolen opined in his affidavit that "there are no reliable, or valid, scientific principles or methods that could be utilized by any engineer, or any other specialist, that would enable that person to give an opinion based in science regarding from what manufacturer or seller the copper tubing or brass fittings . . . came, the age of the tubing and fittings, the date that the tubing and fittings were installed, or the date that the tubing was flared and by whom it was flared."

¶ 8. Nolen further opined that the only possible reliable means of determining the identity, age and date of installation of the copper tubing would be to construct an exact chain of custody for the fourteen years between the 1981 installation of the original propane system and the May 23, 1995, incident at hand, but that sufficient data did not exist to identify accurately all the necessary persons to form such an opinion based in science.

¶ 9. A hearing on M W's motion for summary judgment and motion to strike Dr. Forbes's affidavit was scheduled for May 9, 2005, but, at the request of Amory, was continued. The hearing took place on October 19, 2005.

¶ 10. On October 27, 2005, the trial court granted M W's motion to strike Dr. Forbes's affidavit, holding in a one-page order "that the opinions expressed by Dr. Forbes in his affidavit are nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods." On the same day, the trial court granted M W's motion for summary judgment, finding that there was "no genuine issue of material fact as to causation," as the plaintiffs could not offer credible expert testimony as to causation. The trial court later denied motions to reconsider the orders filed by the plaintiffs and denied a request to submit a new affidavit by Dr. Forbes. Amory timely perfected its appeal.

¶ 11. The dispositive issue presented is whether the trial court committed reversible error by striking Dr. Forbes's affidavit and granting summary judgment to M W. The standard of review for the suppression of evidence is abuse of discretion. Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (Miss. 2003). When reviewing a trial court's grant of summary judgment, this Court conducts a de novo review. Croft v. Grand Casino Tunica, Inc., 910 So.2d 66, 72 (Miss.App. 2005).

¶ 12. In order to prevail, Amory was required to present some evidence of its theory that M W negligently installed copper tubing when it converted Amory's buses from gasoline to propane in 1981, and that the negligently-installed copper tubing caused the fire which injured the plaintiffs. Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897, 904 (Miss. 2007) (citing Meena v. Wilburn, 603 So.2d 866, 869 (Miss. 1992) (explaining the elements of a negligence cause of action)). M W moved for summary judgment, asserting that Amory had no way to meet this burden because of the absence of maintenance and repair records for much of the fourteen-year period between the conversion and the fire. Amory attempted to overcome this problem and to meet its burden by presenting Dr. Forbes's affidavit. Essentially, Dr. Forbes opined that the fire was caused by improperly-flared copper tubing, and that the copper tubing in place at the time of the fire was the same copper tubing installed by M W. It is this opinion that we must now analyze.

¶ 13. The primary rule which governs the admissibility of expert opinion in Mississippi is Rule 702 of the Mississippi Rules of Evidence which, as amended in 2003, provides:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand 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 principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. The 2003 amendment is best explained in the Rule's official comment:

By the 2003 amendment of Rule 702, the Supreme Court clearly recognizes the gate keeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable. This follows the 2000 adoption of a like amendment to Fed.R.Evid. 702, adopted in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). It is important to note that Rule 702 does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge, and that the factors mentioned in Daubert do not constitute an exclusive list of those to be considered in making the determination;. . . .

Miss. R. Evid. 702, cmt.

¶ 14. Thus, with the 2003 amendment, our trial judges became "gate keepers" with the responsibility of determining, in the first instance, whether an expert's proffered opinion is both relevant and reliable. Poole v. Avara, 908 So.2d 716, 723 (Miss. 2005). According to Rule 702, a trial judge — in performing his or her gate-keeping responsibilities — should examine whether "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Miss. R. Evid. 702.

¶ 15. In Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss 2003), this Court adopted "the federal standards and applie[d] our amended Rule 702 for assessing the reliability and admissibility of expert testimony." Id. at 39. The McLemore Court held that the proffered expert opinion was inadmissible because it was mere speculation, unsupported by reliable scientific methods and procedures. Id. at 40-42.

¶ 16. In Edmonds v. State, this Court considered the State's expert's opinion, based on observation in an autopsy, of causation of the victim's fatal wound. Edmonds v. State 955 So.2d 787, 791 (Miss. 2007). The expert testified that the fatal wound was caused by a gunshot, and that the trigger of the gun was pulled by two persons, as opposed to a single shooter. Id. This Court agreed with the defendant's argument that "such testimony was scientifically unfounded: `You cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously.'" Id. at 792. The Court held that the testimony should have been excluded on the ground that the state did not show that its expert's testimony was based on reliable methods or procedures, and therefore, the testimony did not meet our standards for admissibility. Id.

¶ 17. In the case before us today, Amory's expert, Dr. Forbes, opined that the copper tubing which caused the fire was the same copper tubing installed fourteen years earlier by M H. Had there been no challenge to this opinion, it arguably might have been sufficient to defeat summary judgment. However, M H. challenged Dr. Forbes's opinion by producing expert testimony which stated:

there are no reliable, or valid, scientific principles or methods that could be utilized by any engineer, or any other specialist, that would enable that person to give an opinion based in science regarding from what manufacturer or seller the copper tubing or brass fittings . . . came, the age of the tubing and fittings, the date that the tubing and fittings were installed, or the date that the tubing was flared and by whom it was flared.

¶ 18. From May 5, 2005 (the date Nolan's affidavit attacked the scientific basis of Dr. Forbes's opinion), until October 27, 2005 (the date summary judgment was granted), neither Amory nor Dr. Forbes submitted any evidence or scientific findings contradicting Nolan's opinion. Thus, as to whether Dr. Forbes's opinion was properly grounded in science, the only evidence before the trial court was Nolan's affidavit, which clearly stated that it was not.

¶ 19. Amory complains that the trial court "did not conduct a Daubert hearing before reaching its decision." Amory misunderstands what is required under Rule 702. We have never held that a trial court is required to hold a formal " Daubert" hearing when an expert's opinions are challenged. We only require that, when an expert's opinion is challenged, the party sponsoring the expert's challenged opinion be given a fair opportunity to respond to the challenge. The provision of a fair opportunity to respond is part of the trial court's gate-keeping responsibility, and we will reverse only where the trial court abused its discretion by clearly failing to provide a fair opportunity to respond. We are unable to say in this case that the trial court abused its discretion. For five months, Amory was on notice of the specific challenge to its expert's opinion. It had ample opportunity to submit scientific evidence and other indications of the reliability of Dr. Forbes's opinion. Amory failed, however, to submit any evidence whatsoever that Dr. Forbes's opinion was based on sound scientific principles. Indeed, neither Amory nor Dr. Forbes provided so much as a denial as to the accuracy of Nolen's affidavit. Thus, we cannot say that the trial court abused its discretion in finding, from the evidence in the record, that Dr. Forbes's affidavit should be stricken.

¶ 20. Without Dr. Forbes's opinion, Amory is unable to prove that the copper tubing which allegedly caused the fire was the same tubing installed by M W. Consequently, Amory cannot prove M W was negligent in its installation. Therefore, the trial court properly granted summary judgment in favor of M W.

¶ 21. For the reasons stated, we hold that the trial court did not abuse its discretion in striking the affidavit of Dr. Forbes and, consequently, granting summary judgment. The motion for rehearing is therefore granted and the judgment of the Circuit Court of Monroe County is affirmed.

SMITH, C.J., CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. WALLER, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY DIAZ, P.J., EASLEY AND GRAVES, JJ. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND GRAVES, JJ.