Petition — Knight v. Holder

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1976

aj ~

MRS. ETHEL KNIGHT,

Petitioner,

VS.

E. J. HOLDER, M.D., Individually and & J. HOLDER, M.D., and

JAMES C. BASS, JR., M.D., d b/a LAUREL BONE

AND JOINT CLINIC,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Mississippi

WILLIAM SEBASTIAN MOORE

514 Barnett Building

Jackson, Mississippi 39201

MARTHA BERGMARK

224 Second Avenue

Hattiesburg, Mississippi 39401

Attorneys for Petitioner

St. Louls Law Printing Co., Ine., 812 Olive Street 63101 314-231-4477

TABLE OF CONTENTS

Page,

Prayer |

Opinion Below |

Jurisdiction 2

Question Presented 2

Statement of the Case 2

Reason for Granting the Writ 7

Argument 7

Certificate of Service 1S

Appendix

|—-Judgment of the Supreme Court of Mississippi A-1

2—-Notice of Judgment of Supreme Court of Mississippi A-2

‘Notice of enlargement of time in which to file Pe-

tition for Rehearing A-3

4-—Petition for Rehearing A-5

§5-—Judgment on Petition for Rehearing A-7

6—-Notice of Judgment on Rehearing A-8

Table of Cases Cited

Baltimore & Ohio Railroad Company v. United States, 298

U.S. 349, 80 L. Ed. 1209, 56S. Ct. 797 (1935) 7

Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297,

93 §. Ct. 1038 (1973) . 1,8

Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 a

S.Ct. LOLL (1970) . 0. ccc ccc cc cece cueeceucunnns 7 IN THE

Jenkins v. McKeithen, 395 US. 411, 23 L. Ed. 24 404 : SUPREME COURT OF THE UNITED STATES

er a ee Bee cS cv cccccsess Cecscssatoaer 7

Mobile, Jackson & Kansas City Railroad Company v. Tur- TERM. 1976

nipseed, 219 U.S. 35, 55 L. Ed. 78 (1910) ......... 7,8 7 .

Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92

nn or ee rd are ee 7 No.

MRS. ETHEL KNIGHT,

Petitioner,

VS.

E. J. HOLDER, M.D., Individually and &. J. HOLDER, M.D., and

JAMES C. BASS, JR., M.D., d b a LAUREL BONE

AND JOINT CLINIC,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Mississippi

Petitioner prays that a writ of certiorari issue to review the

judgment of the Supreme Court of Mississippi affirming the

jury verdict and judgment against petitioner in the Circuit

Court of the Second Judicial District of Jones County, Mis-

SISSIPPI.

OPINION BELOW

There was no opinion delivered by the Supreme Court of

Mississippi. Said Court affirmed the jury verdict and judgment

of the trial court without opinion and denied petitioner's Peti-

tion for Rehearing without opinion. See copies of judgments

and notices in the Appendix, infra, pp. A-l to A-8.,

JURISDICTION

The judgment of the Supreme Court of Mississippi was dated

and entered on December 22, 1975. A copy of the judgment

is set forth in the Appendix herein. By order dated January

6, 1976, said Court extended the time to file’ a Petition for

Rehearing to and including January 21, 1976. See notice in

the Appendix. Petition for Rehearing was filed on January

20, 1976, and denied on January 27, 1976. See copies of

Petition and notice in the Appendix. This Court has jurisdic-

tion under 28 U.S.C. §1257(3).

VUESTION PRESENTED

Whether petitioner's due process right to present evidence

was violated by the application of Mississippi's locality rule

so as to exclude from the jury’s consideration petitioner's only

expert medical testimony as to negligent medical treatment.

STATEMENT OF THE CASE

Petitioner sued respondents in the Circuit Court of the Sec-

ond Judicial District of Jones County, Mississippi, alleging

that Dr. E. J. Holder, Laurel Bone and Joint Clinic, Laurel,

Mississippi, in treating petitioner for a comminuted (multiple-

fragment) fracture of the left humerus (upper arm), was neg-

ligent in failing properly to reduce the fracture, in failing prop-

erly to obtain internal fixation by pins, and in failing properly

to immobilize the fracture sufficiently and long enough for

it to heal. Petitioner further alleged that as a direct and proxi-

mate result of the said negligence, petitioner suffered a non-

union and complete separation of the fracture, leaving her

with a floppy, unusable and deformed left forearm.

—3—

In support of her allegations, petitioner offered at trial the

testimony of Dr. Byron Unkauf, an orthopedic surgeon certi-

fied by the American Board of Orthopedic Surgery who has

practiced in New Orleans, Louisiana, since 1949 and who has

taught orthopedics at Tulane University in New Orleans. Dr.

Unkauf testified, outside the presence of the jury, that in his

professional opinion there was not an adequate reduction of

the fracture (R. 125-127, 134), that one of the pins placed in

petitioner's arm by Dr. Holder was improperly positioned so

as to preclude the possibility of healing (R. 128-129, 134,

135), and that the cast and the pins were removed too early

for anything but a non-union of the fracture to occur (R. 127-

128, 135).

Dr. Unkauf further testified that although he was not per-

sonally familiar with the general practice of medicine in Laurel,

Mississippi, he was personally familiar with the standard of

care in the specialty of orthopedic surgery and that said stand-

ard is uniformly set by the American Board of Orthopedic

Surgery in all fifty states (R. 118-119, 133, 134).

The trial court, however, applied the locality rule so as to

exclude Dr. Unkauf's testimony from the jury (R. 118, 138-

140). The court stated, in support of its ruling, that,

Negligence is proven in a case of this type where it is

shown that the defendants rendered medical treatment to

a patient and failed to apply the degree of care and skill

ordinarily employed in similar circumstances by physi-

cians and surgeons in the same speciality and in the same

locality, and this witness, the evidence shows, practices

in New Orleans and for the purpose of this Motion the

Court will take judicial notice that New Orleans ts a

metropolitan area some one hundred fifty miles from Lau-

rel, Mississippi (R. 139).

As a result of the trial court's ruling, petitioner was left with-

out any expert medical testimony betore the jury. Consequently,

the only evidence of negligence presented to the jury was the

testimony of petitioner and petiticner’s daughter-in-law that re-

spondent Dr. Holder had told them he put the pins in wrong

(R. 318, 330, 332), a statement denied, of course, by Dr. Holder

(R. 193-194, 263-264). The only question allowed to go to the

jury, therefore, was whether Dr. Holder had been negligent in

his placement of the pins (R. 545-546). Even this issue was

presented only on the basis of petitioner's and her daughter-in-

law's assertions, without any supporting medical testimony as to

how the pins might have been misplaced. Petitioner was non-

suited as to her allegations of negligence in the reduction of the

fracture and in the length and sufficiency of the immobilization,

despite ample testimony by all of respondents’ witnesses that re-

duction and immobilization of a fracture certainly affect the

final medical result.

Two of respondents’ own witnesses, Dr. William Gary Giles,

a Board-certificd orthopedic surgeon from Hattiesburg, Missis-

sippi, and Dr. Cleve Johnson, a Board-certified orthopedic sur-

geon in respondents’ orthopedic clinic, testified that the standard

of care for fracture treatment is uniform nationwide (R. 426-

427. 516) and that, in their respective opinions, the course of

treatment applied by respondent Dr. Holder conformed to this

nationwide standard

Dr. Giles, on direct examination by respondents’ attorney, tes-

tihed as follows:

Q. Is that good alignment, or good orthopedic work

there, sir?

A. I believe that this would oe quite satisfactory on the

fracture that you had anywhere that you are. Any teaching

institution would consider that fine

Q. Let's confine it to Laurel, Mississippi, if you would

\. This is quite good for Laurel, Mississippi, or any-

where else. (R. 426-427)

—

On cross-examination, Dr. Giles testified as follows:

Q. Doctor, is it normal standard care of a patient in

orthopedic surgery, or the standard of care given by an

orthopedic surgeon in Laurel any different from that care

given in Hattiesburg?

A. Basically it is not. (R. 438)

The trial court then sustained responderts’ counsel's objections

to any further questions aimed at eliciting the existence of a

broader than “local” standard of care in the treatment of frac-

tures (R. 438-439).

On cross-examination, Dr. Johnson testified for respondent as

follows:

Q. Doctor, is there any material difference between the

due and proper and standard treatment given to patients by

orthopedists in Laurel, Mississippi, as compared to say

Hattiesburg or Jackson?

A. In this particular fracture I think that this is the

Standard treatment used nationwide, from what he de-

scribed. It is written up in all the textbooks, and so I wouid

have to say that if they weren't doing it like this other

places I think they would be wrong. (R. 516)

Respondent Dr. Holder himself testified to a uniform standard

in treatment of fractures as follows:

Q. All right, sir. Doctor, how did you arrive at the type

of treatment that you used to treat a fracture such as Mrs.

Knights?

A. Because this is the type that is usually used by most

all orthopedists. (R. 94)

On the one issue of negligence submutted to it, and in the

absence of any expert medical testimony for the petitioner, the

jury returned a verdict for respondents.

Petitioner challenged the trial court’s application of the lo-

cality rule to exclude her only expert medical testimony in her

timely Motion for New Trial (R. 591). The trial court overruled

said motion without opinion (R. 597).

From the judgment on the trial court verdict, petitioner ap-

pealed to the Supreme Court of Mississippi. In her Assignment

of Errors on appeal, petitioner again challenged the trial court's

application of the locality rule to bar her only expert medical

testimony. The Court affirmed the jury verdict and judgment of

the lower court without opinion (App., infra, p. A-2).

On Petition for Rehearing petitioner raised only one issue

for the Mississippi Supreme Court's consideration. Petitioner

asserted that said Court had erred as a matter of law in failing

to reverse the lower court judgment for error in the exclusion

of petitioner's only expert medical testimony. Petitioner sub-

mitted that

the evidentiary ruling of the lower court in excluding said

testimony was contrary to state law and resulted in funda-

mental unfairness to petitioner in violation of her due

process right to a fair trial guaranteed by the Mississippi

Constitution and the Fifth and Fourteenth Amendments of

the United States Constitution, for which reasons the judg-

ment of the lower court must be reversed (App., infra,

p. A-7)

Said Court denied the Petition for Rehearing, submitted to

it on the one issue now before this Court on Petition for Writ

of Certiorari, without opinion (App., infra, p. A-8).

REASON FOR GRANTING THE WRIT

The Mississippi Supreme Court in this case has decided a

federal question of substance in a way which is probably not in

accord with applicable decisions of this Court.

ARGUMENT

Petitioner asserts that she was thwarted in her attempt to

prove negligence on the part of respondent Dr. Holder by the

strict application of the Mississippi rule of evidence known as

the locality rule. Petitioner contends that the application of this

evidentiary rule in the circumstances of this case rendered her

trial fundamentally unfair and deprived her of due process of

law by denying her the opportunity to present evidence in her

own behalf.

The right to present evidence in one’s own behalf has long

been recognized as an essential aspect of the fair hearing re-

quired by the due process clause of the Fourteenth Amendment

of the United States Constitution. Chambers v. Mississippi, 410

U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1638 (1973); Morrissey

v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593

(1972); Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287,

90 S. Ct. 1011 (1970); Jenkins v. McKeithen, 395 U.S. 41i,

23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Baltimore & Ohio

Railroad Company v. United States, 298 U.S. 349, 80 L. Ed.

1209, 56 S. Ct. 797 (1935).

It is likewise clear that a State’s evidentiary rules or pro-

cedures may not be applied, under the guise of regulating the

presentation of evidence, to preclude from a party a reasonable

opportunity to submit to a jury in his behalf all of the facts

bearing upon an issue which involves an interest within the con-

templation of the “liberty and property” language of the Four-

teenth Amendment. Chambers v. Mississippi, supra; Mobile,

a — e

Jackson & Kansas City Railroad Company v. Turnipseed, 219

U.S. 35, 55 L. Ed. 78 (1910).

In Mobile, J. & K.-C. Railroad Company v. Turnipseed, supra

at 55 L. Ed. 80-81, this Court articulated the standard for com-

pliance of a state rule of evidence with the due process clause,

as follows:

If a legislative provision, prescribing a rule of evidence,

in either criminal or civil cases, does not shut out from

the party affected a reasonable opportunity to submit to the

jury in his defense all of the facts bearing upon the issue,

there is no ground for holding that due process has been

denied him.

Conversely, where a party has been precluded from present-

ing his case, application of a particular rule of evidence may, in

the totality of circumstances of that case, operate to deprive him

of due process of law. Chambers v. Mississippi, supra, 35 L. Ed.

2d at 313.

In this case, petitioner’s effort to present expert medical testi-

mony in support of her claim of negligent medical treatment by

respondent Dr. Holder was thwarted by the application of Mis-

Sissippi’s common-law locality rule. The history of the locality

rule and recent developments concerning this rule of evidence

are summarized at 37 A.L.R.3d 420 et seq. and 1975 Supple-

ment. In summary, the original “strict locality rule,” and the one

which was applied in this case, provided that the proposed ex-

pert witness in a medical malpractice case must be familiar with

the standard of care possessed and exercised by physicians and

surgeons in the defendant’s own community of locality.

The rule is based on the once-applicable theory that a doctor

in a small or rural community did not have the same opportunity

and resources as did a doctor practicing in a large city to keep

abreast of advances in his profession; hence, he should not be

i

held to the same standard of care and skill as that employed by

doctors in other communities or in larger cities.

However, the trend in an ever-growing number of jurisdictions

is toward various modifications of the rule to conform to changed

conditions in medical care. As the dissemination of medical in-

formation has become quicker and methods of treatment have

become more uniform, the courts have moved toward a decreased

reliance on a strict geographic standard of care. For example,

many jurisdictions use a “same or similar locality” rule. Other

jurisdictions apply a “general neighborhood or vicinity” rule.

Still other jurisdictions have entirely abandoned a geographic

standard of care. 37 A.L.R.3d 420 et seq. and 1975 Supple-

ment.

In the present case, petitioner does not seek any general ruling

in derogation of the respect traditionally accorded to the States

in the establishment and implementation of their own evidentiary

rules in civil trials. Nor does petitioner challenge the locality

rule in general on due process grounds. Rather, petitioner con-

tends that application of the strict locality rule to the circum-

stances of this case denied petitioner her due process right to

present evidence because the testimony showed that petitioner's

proposed expert was indeed familiar with the standard of care for

treatment of fractures in Laurel, Mississippi.

Petitioner asserts that the testimony of respondents’ own wit-

nesses and of respondent Dr. Holder himself corroborates the

testimony of petitioner’s expert medical witness as to the exis-

tence of a uniform, nationwide standard of care in the field of

orthopedics generally and in the treatment of fractures spe-

cifically. Thus, the testimony of respondents’ own witnesses

showed that plaintiffs witness, as a Board-certified orthopedic

surgeon in New Orleans, Louisiana, was familiar with the stand-

ard of care, skill and knowledge of the orthopedic surgeons

within the area of Laurel, Mississippi. Consequently, the ex-

=

clusion of the testimony of petitioner's witness as to his knowl-

edge of that uniform standard and as to his opinion about whether

that standard was satisfied by respondent Or. Holder was an er-

roneous application of the locality rule which operated to de-

prive petitioner of her due process right to subm't her case to

the jury. The fundamental unfairness to petitioner was accen-

tuated in this case by the trial court's admission of the testimony

of respondents’ witnesses as to the existence of a uniform, nation-

wide standard with which respondent Dr. Holder's treatment of

petitioner had complied.

The trial court in the present case strictly defined Laurel,

Mississippi, as the locality in question and, in ruling to exclude

the testimony of petitioner's expert, took judicial notice that New

Orleans, Louisiana, where the proposed expert had practiced

orthopedic surgery for 25 years, is a metropolitan area “some

one hundred fifty miles” from Laurel (R. 139).

The trial court did not, however, properly take into account

the testimony of respondents’ own witnesses and of respondent

Dr. Holder himself as to the existence of a uniform, nationwide

standard in the treatment of fractures.

All of respondents’ expert witnesses, including respondent Dr.

Holder himself, but with the exception of Dr. Edwin H. Cole

whose testimony was excluded because he was not an orthopedic

specialist (R. 543), were orthopedic surgeons certified by the

American Board of Orthopedic Surgery (R. 31-32, 145, 416,

495, 506) and all claimed familiarity with the standard of care

of orthopedic surgeons in the Laurel area (R. 144-145, 414,

496, 506). )

Petitioner's witness, Dr. Byron Unkauf, was likewise a Board-

certified orthopedic surgeon (R. 110), who testified to a famili-

arity with the standard of care in Laurel, Mississippi, based on

the nationwide uniformity of standards for orthopedic speciali-

zation and treatment of fractures as prescribed by the American

Board of Orthopedic Surgery (R. 118-119, 133, 134). The tes-

timony of three of respondents’ witnesses, including respondent

Dr. Holder himself, corroborated Dr. Unkaut’s testimony as

follows:

Dr. Holder, on direct examination as an adverse witness by

petitioner's counsel, testified,

Q. All right, sir. Doctor, how did you arrive at the type

of treatment that you used to treat-a fracture such as Mrs.

Knight's?

A. Because this is the type that is usually used by most

all orthopedists. (R. 94)

Dr. William Gary Giles, on direct examination by respond-

ents’ counsel, testified,

Q. Is that good alignment, or good orthopedic work

there, sir?

A. I believe that this would be quite satisfactory on the

fracture that you had anywhere that you are. Any teach-

ing institution would consider that fine

(Note that Dr. Unkauf testified that he taught orthopedics at

' Tulane University in New Orleans (R. !10).]

Q. ———let’s confine it to Laurel, Mississippi, if you

would,

A. This is quite good for Laurel, Mississippi, or any-

where else. (R. 426-427)

Dr. Cleve Johnson, an orthopedic surgeon at the Laurel Bone

and Joint Clinic, testified on cross-examination,

Q. Doctor, is there any material difference between the

due and proper and standard treatment given to patients

by orthopedists in Laurel, Mississippi, as compared to say

Hattiesburg or Jackson?

=

A. In this particular fracture I think that this is the

standard treatment used nationwide, from what he de-

scribed. It is written up in all the textbooks, and so I would

have to say that if they weren't doing it like this other

places I think they would be wrong. (R. 516)

All three of these doctors testified that in their professional

opinions Dr. Holder had satisfied this uniform standard of care

(R. 365, 423, S511).

The testimony set out above was freely volunteered by re-

spondents’ witnesses. Indeed, the efforts of petitioner's counsel

to elicit further testimony as to this nationwide standard of care

were repeatedly thwarted by the trial court’s sustaining of re-

spondents’ objections (R. 94-95, 145-146, 438-439),

In this case, the overwhelming prejudice to petitioner caused

by the trial court's exclusion of hi only expert medical testi-

mony is clear. Out of the presence of the jury, petitioner's wit-

ness, Dr. Unkauf, testified as to Dr. Holder's negligence in the

following respects: inadequate reduction of the fracture (R. 125-

127, 134); improper and inadequate positioning of one of the

pins placed in petitioner's arm for the purpose of internal fix-

ation, so as to preclude the possibility of proper healing (R. 128-

129, 134, 135); and premature removal of the cast and pins in

the absence of sufficient evidence of healing, thus precipitating

the non-union of the fracture (R. 127-128, 135).

Without this testimony, petitioner's only evidence of negli-

gence allowed before the jury was her own and her daughter-in-

law's testimony, without any supporting expert testimony, that

Dr. Holder had told them he put the pins in wrong (R. 193-

194, 263-264). Dr. Holder denied having made such a state-

ment (R. 318, 330-332) and was allowed ample expert testi-

mony, based on the standard of care in Laurel and “anywhere

else,” to show that the pins were not put in wrong. Petitioner

was non-suited as to all other allegations of negligence, and

suffered an adverse jury verdict as to the one issue of negligence

the jury considered.

- 13

Petitioner submits that the trial court’s exclusion of petitioner's

only expert medical testimony resulted in fundamental unfair-

ness to petitioner by depriving her, under the guise of regulating

the presentation of evidence, of a reasonable opportunity to pre-

sent her case to the jury. As set out in the Statement of the

Case hereinabove, this issue was properly before the Mississippi

Supreme Court and was decided, by affirmance of the trial court

judgment and by denial of the Petition for Rehearing addressed

solely to the issue in question, in a manner not in accord with

fundamental due process guarantees. For this reason, the de-

cision of the Mississippi Supreme Court should be reversed,

Respectfully submitted

WILLIAM SEBASTIAN MOORE

514 Barnett Building

Jackson, Mississippi 39201

MARTHA BERGMARK

224 Second Avenue

Hattiesburg, Mississippi 39401

Attorneys for Petitioner

Certificate of Service

Pursuant to Supreme Court Rule 33.1, I hereby certify that

I have caused three copies of this Petition for Writ of Certiorari

to be deposited in a United States Post Office or Mail Box, with

first class postage prepaid, addressed to Mr. Dorrance Aultman,

Attorney at Law, P. O. Box 750, Hattiesburg, Mississippi 39401,

Counsel of Record for Respondents, on this 22nd day of April,

1976.

e076 6 8° ¢ 8-8 6:6 6.89 8.06 66 6 64 6 6 6 6.8 @ a Ss

Attuiaey for Petitioner

APPENDIA

A-|

APPENDIX 1

In the Supreme Court of Mississippi

Monday, December 22, 1975

Mrs. Ethel Knight

No. 45.3585 VS.

E. J. Holder, M. D., Individually and E. J. Holder, M. D. and

James C. Bass, M. D. D B.A Laurel Bone and Joint Clinic

This cause having been submitted at a former day of this

Term on the record herein from the Circuit Court, Second Ju-

dicial District of Jones County and this Court having sufficiently

examined and considered the same and being of the opinion

that there is no error therein doth order and adjudge that the

judgment of said Circuit Court rendered in this cause on the

17th day of April, 1974-—-be and the same is hereby affirmed

It is further ordered and adjudged that the appellant and J. T.

Speed and Troy Carter, sureties on the appeal bond herein, do

pay all of the costs of this appeal to be taxed for which let proper

process issue.

Minute Book “BR” Page 319.

— = — A-3 —

APPENDIX 2 . APPENDIX 3

In the Supreme Court of Mississippi Supreme Court of Mississippi

Decisions Handed Down December 22, 1975 Julia H. Kendrick, Clerk

Jackson, Mississippi

48.385 Mrs. Ethel Knight v. E. J. Holder, M.D., Indi- Yvonne P. Burnham. PO. Box 117

vidually, and E. J. Holder, M.D., and James C. Deputy Clerk

Bass, M.D., d/b/a Laurel Bone and Joint Clinic:

Circuit, Jones; Affirmed. January 6, 1976

Andalman, Bergmark, Adelman & Steiner

Attorneys at Law

224 Second Avenue

Hattiesburg, Mississippi 39401

Re: Mrs. Ethel Knight vs. E. J. Holder, M.D., et al.

No. 48,385

Gentlemen:

This is to advise that additional time has been granted by the

Court in which to file Petition for Rehearing in the above-styled

cause. Petition for Rehearing will be filed on or before Janu-

ary 21, 1976.

Sincerely,

s/ Julia H. Kendrick

(Mrs.) Julia H. Kendrick

Clerk

ml

ec:

—_-

Honorable Dan McIntosh, III

Attorney at Law

P.O. Box 554

Collins, Mississippi 39428

Honorable Kenneth E. Crawford

Attorney at Law

P.O. Box 837

Collins, Mississippi 39428

Messrs. Gibbes, Graves, Mullins, Bullock & Ferris

Attorneys at Law

P.O. Rox 2008

Laurel, Mississippi 39440

Messrs. Aultman, Pope, Aultman, Van Slyke & Tyner

Attorneys at Law

P. O. Box 750 -

Hattiesburg, Mississippi 39401

—_*

APPENDIX 4

In the Supreme Court of Mississippi

Mrs. Ethel Knight,

Petitioner,

VS. Cause No. 48,385

E. J. Holder, M.D., Individually, and E. J. Holder, M.D., and

James C. Bass, Jr., M.D., d/b/a Laurel Bone and Joint Clinic,

Respondents.

Petition for Rehearing

Petitioner Ethel Knight, by and through her Attorneys, peti-

tions this Court for a rehearing in her case pursuant to Rule 14

of the Mississippi Supreme Court and in support of her petition

would show the following, to wit:

1. Petitioner appealed to this Court from the jury verdict and

judgment against her in her medical malpractice suit against the

respondents in the Circuit Court of the Second Judicial District

of Jones County. On December 22, 1975, this Court affirmed

without opinion the judgment of the lower court. On January

6, 1976, the Court sustained petitioner's Motion for Enlarge-

ment of Time in which to file Petition for Rehearing and Support-

ing Brief, granting her until January 21, 1976, to file the said

Petition and Brief.

2. Petitioner respectfully submits that this Court erred as a

matter of law in failing to reverse the lower court judgment for

error in the exclusion of plaintiff's only expert medical testi-

mony. Petitioner submits that the evidentiary ruling of the lower

court in excluding said testimony was contrary to state law and

resulted in fundamental unfairness to petitioner in violation of

—_*

her due process right to a fair trial guaranteed by the Mississippi

Constitution and the Fifth and Fourteenth Amendments of the

United States Constitution, for which reasons the judgment of

the lower court must be reversed.

3. Petitioner respectfully submits that this is an exceptional

case in which justice requires this Court to reconsider the evi-

dentiary issue raised herein.

4. Petitioner therefore respectfully requests that this Court

enter an appropriate order setting this case for oral argument

on the question of whether this Court erred as a matter of law

in failing to reverse the lower court judgment for error in the

exclusion of plaintiff's only expert medical testimony.

Respectfully submitted

ANDALMAN, BERGMARK, ADELMAN

& STEINER

‘s/ By: MARTHA BERGMARK

224 Second Avenue

Hattiesburg, Mississippi 39401

Attorneys for Petitioner

— < pee

APPENDIX 5

In the Supreme Court of Mississippi

Tuesday, January 27, 1976, Court Sitting

Mrs. Ethel Knight

No. 48,385 VS.

E. J. Holder, M. D., et al.

This cause this day came on to be heard on Petition for Re-

hearing filed herein and this Court having sufficiently examined

and considered the same En Banc and being of the opinion

that the same should be denied doth order that said Petition be

and the same is hereby denied.

Minute Book “BR” Page 342.

-~A-8

APPENDIX 6

In the Supreme Court of Mississippi

Decisions Handed Down January 27, 1976

48,385 Mrs. Ethel Knight v. E. J. Holder, M.D., Indi-

vidually, and E. J. Holder, M.D., and James C

Bass, Jr., M.D., d/b/a Laurel Bone and Joint

Clinic; Circuit, Jones; Petition for Rehearing Con-

sidered En Banc and Denied.