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2012-UP-235 - Green v. West Oil

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Louis Green, Jr., Appellant,

v.

West Oil, Inc., d/b/a Markette Stores, Respondent.


Appeal From Williamsburg County
 William J. Young, Circuit Court Judge


Unpublished Opinion No. 2012-UP-235  
Heard February 28, 2012 – Filed April 18, 2012


AFFIRMED IN PART, REVERSED IN PART, and REMANDED


Michael T. Miller, of Florence, for Appellant.

Lydia Lewis Magee, of Myrtle Beach, and Mason A. Summers, of Columbia, for Respondent.

PER CURIAM: Louis Green, Jr., appeals the trial court's grant of summary judgment to West Oil, Inc., d/b/a Markette Stores in this premises liability action.  The trial court excluded the testimony of Green's forensic toxicologist on two narrow points, and then granted summary judgment based on the failure to present evidence of proximate cause.  We reverse both points.  As to the remaining issue, we affirm.  Accordingly, the case is reversed in part, affirmed in part, and remanded pursuant to Rule 220(b), SCACR, and the following authorities:

1. We affirm as to the trial court's refusal to consider other damages:  Elam v. S.C. Dep't of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (stating an issue raised to the trial court, but not ruled upon, requires a party to file a Rule 59(e), SCRCP, motion to preserve the issue for appellate review).

2. We reverse and remand as to the trial court's refusal to qualify a forensic toxicologist as an expert on medical causation for the sole reason that he was not a medical doctor:  Rule 702, SCRE ("If 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."); Watson v. Ford Motor Co., 389 S.C. 434, 446-47, 699 S.E.2d 169, 175 (2010) (stating the proffered expert need not be a specialist in the particular branch of the field; the trial court need only find he has acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter); Lee v. Suess, 318 S.C. 283, 285-86, 457 S.E.2d 344, 345-46 (1995) (holding the trial court erred in failing to qualify a plastic surgeon as an expert in the field of family practice where the plastic surgeon served as a professor who provided instruction to family practitioner residents and family practitioners referred their patients to him for diagnosis).

3. We reverse and remand as to the trial court's alternate ruling that even if the expert was qualified, his proffered testimony failed to meet the "most probably" standard for proximate causation because "medical experts must, with reasonable certainty, state that in their professional opinions that the injuries most probably resulted from the Defendant's negligence":  Armstrong v. Weiland, 267 S.C. 12, 16, 225 S.E.2d 851, 853 (1976) (providing that before expert testimony is admissible upon the question of the causal connection between a plaintiff's alleged injuries and the actions of the defendant, the testimony must satisfy the "most probably" test); Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 111, 410 S.E.2d 537, 543 (1991) ("In determining whether particular evidence meets this test it is not necessary that the expert actually use the words 'most probably.'"); id. (stating it is sufficient that the testimony represents that in the expert's professional judgment, the cause is the most likely one among the possible causes).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

FEW, C.J., and HUFF and SHORT, JJ., concur.