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Progressive Casualty Insurance Co. v. All Care6/7/2005
d 31, 35 ( 7) (Miss. 2003).
. Dr. Smith's area of specialty is in testifying regarding hedonic damages. In fact, Dr. Smith has qualified as an expert in over 100 cases regarding hedonic damages and has written a text on the subject. Progressive correctly asserts that this case, requiring a calculation of lost future net profits for a commercial enterprise, obviously does not involve Smith's primary area of expertise. However, any discussion of Dr. Smith's area of expertise, or discussion of cases in which his methodology has been allowed or disallowed in regards to hedonic damages is, as All Care asserts, irrelevant.
. What is relevant to our inquiry is whether Dr. Smith's testimony in the trial court was admissible under Frye and the Mississippi Rules of Evidence. As we have stated, supra, the testimony of Dr. Smith must pass muster under the "general acceptance" test as laid out in Frye. Frye, 293 F. 1013 at 1014. More specifically, "a theory or method is not generally accepted when it is unique to a particular situation, not taught or discussed in courses or textbooks, 'breaks new ground' and is not used by other practitioners in that particular field." Mississippi Transp. Comm'n, 863 So. 2d at 42. In the case at hand, it cannot be said generally that the mere computation of lost future business is somehow unique or breaks new ground. However, the assumptions and facts that are the basis of Smith's testimony are of concern as to the efficacy of Smith's methodology. Also of concern is whether his testimony was relevant and assisted the trier of fact under M.R.E. 702.
. Progressive challenges Smith's methodology on numerous grounds. Progressive correctly points out that Dr. Smith admitted that he had no idea why All Care's business declined, and offered no opinion that the decline was caused by Progressive. However, Dr. Smith did testify that All Care suffered a precise amount of losses beginning in 1997, and he extended his estimate ostensibly for thirty years. Moreover, Progressive argues that Smith, while offering no evidence or opinion on causation, also gave no consideration to the only proof of actual losses that Muench's conduct may have caused, namely the testimony of attorneys Priester, Stewart, Evans, and Pearson. In short, Dr. Smith, in estimating that All Care's future lost income of thirty years would total $16, 430,932, relied simply on the information provided to him by All Care's sole shareholder, and attributed the entire failure of the business to the actions of Muench. All Care responds that Smith's role was simply to establish damages stemming from Muench's actions, but not to illuminate the cause of that decline. Considering the dearth of causation evidence provided prior to the testimony of Dr. Smith, All Care's argument is not well taken. Assuming for the sake of argumentthat All Care had presented sufficient causation testimony to show damages prior to the testimony of Dr. Smith, it is clear that All Care's argument that Muench was the sole cause of its business's failure is patently spurious. Such an argument is blatantly transparent, and to allow such an argument to prevail would be a vast injustice. Again, assuming that the prior witnesses had shown some measure of damages, their testimony could not support All Care's far-fetched contention that Muench's actions were the sole cause of All Care's demise. Dr. Smith should have been required to discount losses suffered by All Care due to other factors clearly affecting the business's failure.
. In contending whether Dr. Smith's testimony was relevant and assisted the trier of fact, Progressive further argues that Dr. Smith undertook no research to determine the number of medical clinics that
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