JOHN HENRY RHODEN and DOROTHY JEAN WINFIELD, Plaintiffs-Respondents v. MISSOURI DELTA MEDICAL CENTER ( 2019 )

JOHN HENRY RHODEN, and )
DOROTHY JEAN WINFIELD, )
)
Plaintiffs-Respondents, )
)
v. ) No. SD35898
)
MISSOURI DELTA MEDICAL CENTER, ) Filed: December 30, 2019
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY
Honorable David A. Dolan, Circuit Judge
AFFIRMED
Missouri Delta Medical Center (“Appellant”) brings this appeal from a jury
verdict in a wrongful death case. We find no error and affirm the judgment.
In the light most favorable to the verdict, the evidence relevant to the points relied
on includes the following: Mr. Rhoden, the deceased, had prostate issues for several
years. He was treated by physicians in Missouri Delta Medical Center, including Dr.
Killion and Dr. Rankin. At some point, Mr. Rhoden developed urinary complaints; he felt
that his urine force was not as strong as he would like and he felt like he could not
completely empty his bladder. Mr. Rhoden was not in need of emergency surgery, was
1
able to urinate without pain and had no problems with incontinence or post-void
dribbling. Dr. Killion recommended an increase in the current medication prescribed to
Mr. Rhoden; however, Dr. Killion did not recommend waiting to see if the increase in
medication would work or if another medication would work, but instead scheduled
surgery, telling Mr. Rhoden his two choices were surgery or self-administering a catheter
for the rest of his life. Mr. Rhoden had other health issues, including being an insulin-
dependent diabetic, obese and hypertensive, all of which increased the risk of surgery.
Plaintiff’s expert testified that given Mr. Rhoden’s history, he was a high-risk candidate
for surgery.
Dr. Killion admitted that it would have been acceptable to wait to see if the
increase in medication would work given that Mr. Rhoden was a high risk candidate for
surgery. Dr. Killion did not recommend alternatives such as: transurethral microwave
treatment, a procedure that did not require surgery; other medications; or doing nothing
for such minor symptoms. Appellant’s own expert agreed that Mr. Rhoden’s symptoms
did not show a surgical emergency and that there were other medically acceptable
options. Dr. Killion performed a transuretheral resection of the prostate (“TURP”) and a
transurethral incision of the bladder neck (“TUIBN”). Suffice it to say, the necessity and
outcome of the surgeries, the subsequent treatment and lack of treatment, and the death of
Mr. Rhoden provide the issues that are the subject of this appeal.
For ease of discussion, we begin with Point II.
Point II
Appellant claims in its second point that the court erred in submitting Instruction
No. 11 for aggravating circumstances damages because it misstated the law for punitive
2
damages. Appellant argues that section 538.210.8, RSMo, 1 provides the standard as
“willful, wanton or malicious” and not “complete indifference to or conscious disregard
for the safety of others.” Respondent contends that Appellant has not preserved its claim
in its second point. At trial, Appellant objected, “Judge, I object to the submission of
punitive damages or aggravating circumstance and particularly with the standard of
conscious disregard to the jury.” Clearly, that vague statement did not preserve the
objection for appeal.
Rule 70.03 provides that Appellant must register a specific objection to the verdict
director. Edwards v. Gerstein, 363 S.W.3d 155, 170 (Mo.App. W.D. 2012). The rule
states in part: “Counsel shall make specific objections to instructions considered
erroneous. No party may assign as error the giving or failure to give instructions unless
that party objects thereto on the record during the instructions conference, stating
distinctly the matter objected to and the grounds of the objection.” Rule 70.03. The
purpose of that rule is that it allows the trial court to “make an informed ruling on the
validity of the objection.” Berra v. Danter, 299 S.W.3d 690, 702 (Mo.App. E.D. 2009).
Appellant, however, claims that the lengthy discussions with the trial court
regarding the proper standard in the verdict director was preserved because the trial court
and the parties were well aware of Appellant’s objection to the verdict director. A review
of the discussions during the instruction conference does indicate that the court and the
attorneys were well aware of the discussion regarding the appropriate standard for
punitive damages. We will address the merits of Point II.
There is no question that the court used the appropriate instruction from MAI,
1
We note that the current version of section 538.210.8, RSMo Cum.Supp. 2017, was previously
denominated as section 538.210.5 at the time of Mr. Rhoden’s death in 2013, and became section
538.210.6 in a subsequent amendment in 2015.
3
MAI 10.07. The instruction provided that Appellant was liable for damages for
aggravating circumstances if Appellant showed “complete indifference to or conscious
disregard for the safety” of Mr. Rhoden. Appellant contended at trial and to this Court
that the proper standard for aggravating circumstances should be taken from section
538.210.8, which is that Appellant would be liable for aggravating circumstances
damages if Appellant showed “willful, wanton or malicious” conduct.
Appellant argues that the trial court should have recognized “that, despite the
language of MAI 10.07 and the holding in Koon, the statutory language prevails over the
MAI.” See Koon v. Walden, 539 S.W.3d 752 (Mo.App. E.D. 2017). Appellant’s
contention that section 538.210.8 controls is not supported by any case law. The exact
argument that Appellant is making here was made in Koon. In its well-reasoned opinion,
the appellate court held:
Because these words and phrases are essentially synonymous in this
context, an act that is found to have been done with complete indifference
to or with conscious disregard for the safety of others is also an act
constituting willful, wanton or malicious misconduct. The words used in
MAI 10.07 correctly set forth the substance of the applicable law in
Section 538.210.6 and are not a misstatement of or in conflict with the
law.
Id. at 772; see also Bell v. Redjal, 569 S.W.3d 70, 89 (Mo.App. E.D. 2019) (“For
purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to
acting with a complete indifference to or in conscious disregard for the rights or safety of
others.”). The trial court did not err in using the punitive damages instruction as set forth
in this case based on MAI 10.07. Point II is denied.
Point I
Appellant claims the trial court erred in submitting aggravating circumstances
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damages to the jury and in denying Appellant’s motion for directed verdict and motion
for JNOV because the claim for additional damages was not supported by clear and
convincing evidence that the health care providers demonstrated willful, wanton or
malicious conduct. 2 Respondents respond that Appellant’s first point was not preserved
because it did not raise the claim in a motion for directed verdict at the close of all the
evidence.
To preserve the question of submissibility for appellate review in a jury-tried case,
a motion for directed verdict must be filed at the close of all the evidence. Browning v.
Salem Memorial Dist. Hosp., 808 S.W.2d 943, 949 (Mo.App. S.D. 1991). “A motion
for a directed verdict shall state the specific grounds therefor.” Rule 72.01(a). 3 Failure to
move for a directed verdict at the close of all the evidence waives any contention that
plaintiff failed to make a submissible case. Browning, 808 S.W.2d at 949. Similarly, a
motion for directed verdict that does not comply with the requirements of Rule 72.01(a)
neither presents a basis for relief in the trial court nor preserves the issue in the appellate
court. Dierker Assoc., D.C., P.C. v. Gillis, 859 S.W.2d 737, 742-43 (Mo.App. E.D.
1993).
Appellant raised twenty-two purported grounds for a directed verdict in a written
motion. Appellant did not preserve the issue in writing. Appellant makes its claim via an
oral request during the trial. After filing the directed verdict motion at trial, Appellant
stated:
2
If Appellant is claiming an instructional challenge in this point, it is a separate issue from a substantial
evidence challenge. Wieland v. Owner-Operator Services, Inc., 540 S.W.3d 845, 850 n.3 (Mo. banc
2018). Because the argument section of the brief addresses a substantial evidence challenge, we address
that issue.
3
All rule references are to Missouri Court Rules (2019).
5
I would like to specifically argue and point out that there is no submissible
case whatsoever on the issue of punitive damages or aggravating
circumstances. I don’t believe there has been any evidence adduced
whatsoever this [sic] rises to the level of an aggravating circumstances
[sic].
In addition, since this is a medical malpractice case it comes under
Chapter 538, even though it is wrongful death, and as such this is a
completely different standard for aggravating circumstances or punitive
damages than there is in a regular civil tort case.
There are virtually no other statements by Appellant’s counsel. Generally, a claim for
directed verdict on partial damages that does “not identify evidence related to damages as
an issue on which [Appellant] is entitled to a directed verdict” presents no basis for relief.
Trimble v. Pracna, 51 S.W.3d 481, 502 (Mo.App. S.D. 2001).
Although it appears the “oral” motion has little specificity to pass muster with
Rule 72.01(a), case law indicates that the bar is set low for a motion for directed verdict.
See Tharp v. St. Luke’s Surgicenter-Lee’s Summit, LLC, No. SC96528, 2019 WL
6710292, *3 (Mo. banc Dec. 10, 2019) (“The Rule 72.01(a) standard, however, is not a
demanding one.”). Therefore, we will address the merits of Appellant’s motion for a
directed verdict.
In the light most favorable to the verdict, the evidence shows a complete
indifference to or a conscious disregard for the safety of Mr. Rhoden. Initially, when Mr.
Rhoden presented with mild prostate issues, Dr. Killion proceeded with the highest risk
option of surgery. Dr. Killion admitted Mr. Rhoden did not have painful urination, no
incontinence, and was not in an emergency situation. It was also clear that Mr. Rhoden
was a high risk candidate for surgery with multiple medical issues. Dr. Killion did not
wait to see if the prescribed medication resolved Mr. Rhoden’s issues. Dr. Killion
presented to Mr. Rhoden a choice of immediate surgery (TURP) or catheterization every
6
day for the rest of Mr. Rhoden’s life. Clearly, the evidence indicates those were not Mr.
Rhoden’s only two choices.
Dr. Killion committed common law negligence when he re-sected too much of the
prostate and created a “shelf.” To remedy the creation of the shelf, Dr. Killion conducted
additional surgery (TUIBN), even though he knew it increased the risk of bladder
perforation. This was exactly the wrong thing to do and breached the standard of care,
again common law negligence. Dr. Killion should have left the resection alone and not
gone deeper, and used either a curved catheter, called a coude catheter, or a catheter guide
to make sure the catheter went into the bladder and not through the area weakened by
resecting too much tissue. The TUIBN created a path for the catheter to follow but
weakened the area of the bladder neck by resecting tissue, allowing the catheter to go
outside the bladder and into the retroperitoneal area.
After breaching the standard of care, it was what occurred after the surgeries that
constitutes aggravating circumstances. The evidence was clear that abdominal pain is out
of the norm after a TURP surgery. Almost immediately after the surgery, Mr. Rhoden
was in tremendous abdominal pain, and received morphine. The first note from the nurse
indicated severe abdominal pain, 9 out of 10, which required morphine. The existence of
immediate abdominal pain is an indication that something went wrong during the surgery
and must be investigated.
Mr. Rhoden’s condition deteriorated significantly after the surgery and before the
October 18 exploratory laparotomy. By October 17, the day after the surgery, he was
seriously ill, with severe abdominal pain, elevated heart rate, difficulty breathing and a
creatinine rate which had tripled, indicating acute kidney failure. His kidneys failed, he
7
required assistance breathing and showed signs of sepsis. By October 18, Mr. Rhoden’s
family was told he would die unless he had surgery, a prognosis with which Dr. Killion
agreed. All of these symptoms were caused by the negligence of Dr. Killion with the
catheter being misplaced outside the bladder. After the surgery, Dr. Killion did no
investigation into Mr. Rhoden’s condition. He appeared oblivious to Mr. Rhoden’s
condition. Instead, Dr. Killion asserted in his notes that Mr. Rhoden tolerated his TURP
surgery from October 16 very well.
Drs. Killion and Rankin did not investigate whether the TURP surgery was
properly performed and was the cause of Mr. Rhoden’s post-operative problems. By the
morning of October 18, Mr. Rhoden was in major organ failure. He had an acute kidney
injury that required dialysis and was in respiratory distress that would require a ventilator.
The idea that the procedure was done incorrectly is the first concern (Dictum #1) when
there is a problem with a patient post-surgery. Drs. Killion and Rankin ignored that
possibility.
Dr. Killion admitted that Dictum 1 applies, and agreed that a physician has to
consider the possibility that something went wrong during surgery. But neither he nor Dr.
Rankin ran any of the tests to determine whether the bladder was perforated in the course
of the TURP or whether the catheter was outside of the bladder. At that point in time, the
damages from the negligence could have been minimized.
Both Dr. Killion and Dr. Rankin ignored the warnings of the hospital’s radiologist
that Mr. Rhoden’s condition was likely caused by the TURP surgery. By the morning of
October 18, 2012, Mr. Rhoden was in critical condition, suffering from multi-organ
failure. A nephrologist treating Mr. Rhoden for his acute kidney failure, scheduled him
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for x-rays of the chest and abdomen. The x-ray of the abdomen showed the presence of
free air which the radiologist said was “likely post-surgical in nature.” The x-ray of the
chest showed the presence of free air under the right hemidiaphragm which the
radiologist said “may be post-surgical in nature.” This latter finding was so significant
that the hospital’s radiologist took the unusual step of calling Dr. Killion at 10:25 a.m. to
communicate the results orally because the presence of free air in the hemi-diaphragm is
a medical emergency. Dr. Rankin admitted that the radiologist may well have known of
the TURP surgery as that history should be given when requesting the x-rays. Despite the
radiologist’s warning, neither Dr. Killion nor Dr. Rankin took any steps to determine
whether the TURP surgery was properly performed and was the cause of Mr. Rhoden’s
catastrophic post-operative course. There were a number of actions that would have
shown whether the catheter was misplaced.
Drs. Killion and Rankin ignored the further warning by Dr. Said that Mr. Rhoden
had a urine leak caused by a perforated bladder. This was the second physician who told
Dr. Killion that Mr. Rhoden’s condition was related to a problem with the surgery, and
Dr. Said specifically tied Mr. Rhoden’s condition to a perforated bladder. Dr. Killion
knew that Mr. Rhoden had suffered acute kidney failure immediately after the TURP
surgery, and that this was consistent with a bladder perforation. Dr. Said’s concern was
related to a perforation of the bladder and that a CT scan of the abdomen and pelvis or a
renal and pelvic ultrasound would have shown whether the bladder was perforated and
the catheter was outside the bladder.
Dr. Said was met with rejection of any possibility that he (Dr. Killion) could have
made a mistake during the surgery. Dr. Killion simply told Dr. Said that his surgery did
9
not cause a urine leak. Dr. Killion admitted he did not even consider the possibility of a
bladder perforation despite the warning from Dr. Said. Dr. Rankin agreed that Dr.
Killion’s assertion that he didn’t perforate the bladder is not enough—a physician must
run tests such as a CT scan or a cystogram. A patient was severely ill, two fellow
physicians raised direct concerns that the surgery Dr. Killion performed was causing Mr.
Rhoden’s problems, but Dr. Killion refused to conduct any tests to determine whether he
had made a surgical error. Mr. Rhoden’s condition worsened each day as the longer the
catheter remained misplaced, the greater the damage. Dr. Killion admitted he had been
told by the radiologist at 10:25 a.m. on October 18 that free air was found under the right
hemidiaphragm. He knew it was serious finding and required immediate treatment.
As the retroperitoneal ultrasound taken at SLU Hospital on November 7 did show
the catheter outside the bladder, if the same test had been conducted on October 18 it
would also have shown whether the catheter was outside the bladder. In terms of
evidence of conscious disregard of Mr. Rhoden’s safety, the outright refusal to run tests to
rule out the TURP surgery as the source of Mr. Rhoden’s catastrophic post-operative
course strongly supports the submissibility of aggravating circumstances damages.
The medical records show that Dr. Killion never contacted the radiologist Dr.
Rankin to ask for the consult. A different physician, Dr. Said (not Dr. Killion), called for
a surgical consult. The consult was not completed until more than six hours after Dr.
Killion was advised of the emergency situation.
Dr. Killion had many opportunities to “right” the medical negligence with
different types of tests. A phone call to the technicians and the test could have been
expanded to include the retroperitoneal area which would have shown the catheter was
10
outside the bladder. It would only require moving the ultrasound machine 12-14 inches
to include the retroperioneal area. Dr. Killion agreed that a technician could have easily
examined the bladder area at this time and it would have taken only a couple of minutes.
Had a retroperitoneal ultrasound been conducted on October 17, it would have shown the
catheter outside the bladder. Dr. Killion and Dr. Rankin both admitted a retroperitoneal
ultrasound would have shown if the catheter was outside the bladder.
Additionally, Dr. Rankin’s failure to read the chart and know of Dr. Said’s
concern about the urine leak caused by a bladder perforation shows conscious disregard
for Mr. Rhoden’s safety. Any of the three tests (retroperitoneal ultrasound, cystogram or
CT scan of the abdomen and pelvis) would have shown the catheter outside the bladder.
Dr. Rankin further admitted that if he had known of Dr. Said’s concern regarding a urine
leak, he could have checked during the course of surgery. One of the tests he could have
run was to inject methylene blue dye directly into the catheter and followed the dye to see
if it was leaking out of the bladder, as it would in the event of a perforation.
Had Dr. Rankin run any of the tests to determine whether the bladder was
perforated and the catheter was outside the bladder before conducting surgery, it is likely
that surgery would not have been necessary. 4 The catheter could have been repositioned
inside the bladder without surgery, just as a urology resident at SLU Hospital did after the
testing revealed the catheter was outside the bladder. Had the catheter been discovered
outside the bladder and properly placed, it is more likely than not that Mr. Rhoden would
have healed without significant problems. Each day the catheter was permitted to remain
4
Appellant claims that the laparotomy would have been conducted even if the misplacement of the catheter
had been discovered before surgery. In assessing the submissibility of aggravating circumstances damages,
Dr. Vitale’s assertion that surgery would have been unnecessary is binding, while Appellant’s contrary
argument is to be disregarded.
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outside the bladder, the more damage it caused.
Dr. Killion’s assertion that Mr. Rhoden was having “a little bit” of other problems
after the laparotomy is also indicative of a lack of care, considering that Mr. Rhoden was
on a ventilator and in the throes of sepsis among other issues. After being transferred to
SLU hospital, within hours Mr. Rhoden’s condition improved; however, the havoc
caused by the onslaught of renal failure, breathing failure requiring long term ventilator
support and a tracheostomy, sepsis, fungemia and stroke was too much to overcome.
In Koon v. Walden, 539 S.W.3d 752, 772 (Mo.App. E.D. 2017), the Court of
Appeals discussed the submissibility of a punitive damages claim under this standard in a
medical malpractice case:
[T]o impose punitive damages for negligent acts, there must be
evidence that the defendant knew or had reason to know that there
was a high degree of probability that his conduct would result in
injury and thereby showed complete indifference to or conscious
disregard for the safety of others. In this way, as discussed above,
though he may have had no specific intent to injure, the defendant’s
awareness—from his knowledge of surrounding circumstances—that
his conduct would probably result in injury demonstrates that his
actions were tantamount to intentional wrongdoing.
Id. at 773-774 (emphasis added; internal quotations and citations omitted).
Here, substantial evidence was presented that both Dr. Rankin and Dr. Killion
failed to order tests that would determine whether Mr. Rhoden’s bladder was perforated
during the TURP, either before or after the exploratory laparatomy performed by Dr.
Rankin, despite being warned by a radiologist that Mr. Rhoden’s condition was likely
related to his TURP surgery and being further warned by Mr. Rhoden’s nephrologist that
Mr. Rhoden had a urine leak caused by a perforated bladder. Rather than investigate,
either before or after surgery, the hospital’s physicians did nothing even though they
12
knew Mr. Rhoden’s condition continued to deteriorate dramatically and a bladder
perforation was ruled out on the bare assertion by Dr. Killion that he would not have
done that. Appellant’s proof of conscious disregard was clear and convincing and more
than met the applicable legal standard.
Point I is denied.
Point III
In its third point, Appellant claims the trial court erred in submitting Verdicts A
and B to the jury and denying the motion for directed verdict and for JNOV because
Respondents failed to submit evidence that the alleged negligence of the doctors caused
Mr. Rhoden’s death. In analyzing whether Respondents made a submissible case, we
consider only the evidence in the light most favorable to Respondents and disregard all
contrary evidence. Johnson v. Auto Handling Corporation, 523 S.W.3d 452, 459-60
(Mo. banc 2017); Davolt v. Highland, 119 S.W.3d 118, 123-24 (Mo.App. W.D. 2003).
Despite correctly stating our standard of review, Appellant argues its evidence
was more persuasive than Respondents’ evidence. Even after admitting that Respondents
provided expert testimony of Dr. Garber that the breaches in the standard of care by the
actions of Appellant caused or contributed to cause the significant postoperative problems
and death of Mr. Rhoden, Appellant faults Respondents for not addressing the possibility
that the pre-surgery conditions of Mr. Rhoden were “equally likely to have caused his
death.” The problem with that logic is that Respondents did not claim that the pre-
surgery conditions were just as likely to have caused the death of Mr. Rhoden. It is
Appellant who makes that contention with the testimony of its experts. The jury was free
to assess the credibility of all the experts and chose to believe Respondents’ experts.
13
Respondents presented evidence that to a reasonable degree of medical certainty, the
breaches of the standard of care caused Mr. Rhoden’s subsequent physical and mental
deterioration and ultimate death. Point III is denied.
Point IV
Appellant claims in its fourth point that the trial court erred in permitting
Respondents’ expert, Dr. Vitale, to testify at trial because he was not a qualified expert.
Appellant claims that a qualified expert, in accordance with section 538.225, must be
actively practicing or within five years of retirement from the practice of medicine. Prior
to addressing Appellant’s point, we must determine if its objections to the qualifications
of Dr. Vitale were properly preserved. Appellant filed a motion in limine to prevent Dr.
Vitale’s testimony on the basis that Dr. Vitale did not meet the qualifications of the
healthcare affidavit statute. Despite having filed a “Motion in Limine to Strike the
Testimony of Dr. Vitale against Dr. Killion and Dr. Rankin,” the first objection made by
Appellant came in response to the following question:
[Respondents’ counsel]: Do you have an opinion what the cause of that
fluid collection was?
....
[Appellant’s counsel]: Your Honor, I would like to renew my objection
from the original Motion in Limine.
The Court: Which number was that?
[Appellant’s counsel]: On the qualification.
The Court: I will overrule the objection. Go ahead, sir.
Appellant filed the general motions in limine in one document and another
entitled the Motion to Strike the Testimony of Dr. Vitale. Despite being requested by the
14
court to reference which motion in limine Appellant was referring to, Appellant’s counsel
simply stated the one on the “qualification.” Appellant’s general motion in limine, with
13 numbered subsections, included the following sub points:
• “[Respondents] should be precluded from presenting evidence
regarding any allegations of negligence referenced in [Respondents’]
petition which have not been supported by evidence consisting of expert
medical witness testimony.”
• “[Respondents’] expert witnesses should be precluded from
offering any testimony based on personal opinion or personal standard as
unrelated to facts of the case.”
• “[Respondents’] expert witnesses should be precluded from
offering any testimony which is not based on a reasonable degree of
medical certainty.”
There is simply no way that the court can be convicted of error in failing to discern which
of the motions in limine Appellant was referring to when Appellant objected on the basis
of “on the qualification.”
Following the first objection, Appellant did not further object to Dr. Vitale’s
causation opinions. Appellant’s counsel did not object again until Respondent’s counsel
stated, “Doctor, these are going to be so-called standard of care questions I am going to
be asking you now.” The objection was, “I would like to renew my Motion in Limine
objection from pretrial.” No further explanation was given by Appellant regarding the
objection. It is without question that a motion in limine is an interlocutory ruling.
Rosales v. Benjamin Equestrian Center, LLC, No. WD 82485, 2019 WL 6314788, *13
(Mo.App. W.D. Nov. 26, 2019). Appellant argues that once the court overruled the first
objection Appellant clearly and timely objected to Dr. Vitale’s opinion testimony on both
causation and standard of care on the basis that he was not qualified to render such
opinions. We disagree. The failure of a party to object to inadmissible evidence at the
earliest possible moment waives any claim of error from the admission of that evidence.
15
See Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993) (“By failing to object,
plaintiff has waived any objection; nothing is preserved on this issue.”). All of the
testimony regarding causation was waived by the failure to properly object.
Likewise, the general objection referring to a “motion in limine from pretrial”
preserves nothing for appellate review. Appellant directs us to nothing to support his
position that the trial court understood on what basis Appellant was making an objection
to the testimony of Dr. Vitale. Point IV is denied. 5
Point V
Appellant contends in Point V that portions of the testimony from Respondents’
expert witness, Dr. Garber, should not have been excluded. Specifically, Appellant
claims that Dr. Garber’s testimony should have been admitted:
Q. Sure. I now want to talk to you about your causation opinions. If the
surgery, the TURP surgery had never occurred do you know when Mr.
Rhoden would have died?
A. Unfortunately, I don’t.
....
Q. Just so I can move on. You believe more likely than not if Mr. Rhoden
had not had the TURP surgery he would not have died when he died? But
you’re not able to say how much longer he would have lived? Is that a fair
statement?
A: I think that is a fair statement. Yes.
We review the trial court’s evidentiary rulings for an abuse of discretion. Kivland
v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 311 (Mo. banc 2011). Appellant
correctly argues that Respondents had the obligation to prove that Appellant’s negligence
5
We note the trial court was directed in post-trial motions to Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d
752 (Mo. banc 2010). Klotz directly held that section 538.225 did not govern the admissibility of expert
testimony at trial but rather was a condition to the filing of a malpractice action against a health care
provider. Id. at 760-61.
16
caused Mr. Rhoden to die when he did. This point relied on does not address the
evidence used to support that obligation of Respondents. Instead, the questions asked of
Dr. Garber and refused by the trial court address the speculative question of how long Mr.
Rhoden would live absent any negligence on the part of Appellant. To be clear, the
question was not about average life expectancy or a prognosis of a certain illness. The
question asked of Dr. Garber was “[D]o you know when Mr. Rhoden would have died?”
Appellant has cited no Missouri cases that found error in the exclusion of such a question.
We cannot fathom how any physician could state with reasonable medical certainty the
exact date when any person will die, much less someone with serious medical conditions.
There is no abuse of discretion in denying the admission of the question and answer. The
trial court did not err in excluding these questions to Dr. Garber. Point V is denied.
Point VI
In its final point, Appellant claims error in allowing Respondents’ counsel to
comment on Appellant’s dis-endorsed expert witness Dr. Schoenberg during voir dire and
to read into evidence a part of Dr. Schoenberg’s deposition wherein he stated the amount
of money he had been paid in this case. First, we note that allowing comments during
voir dire and the admission of evidence are two separate complaints of trial court error.
There are two separate standards of review and separate case law supporting each of the
claims of error. In its argument section and its facts, Appellant appears to address the
reading of a deposition at trial. Appellant uses an abuse of discretion as the standard of
review for the admission or exclusion of evidence. Therefore, we will address what
appears to be a complaint about the admission of evidence at trial.
Once again, we must address the relief requested in the motion in limine and at
17
trial. The motion in limine asked the court to prohibit Respondents from introducing
evidence and/or arguing at trial an “adverse inference that Defendant failed to call Dr.
Schoenberg at trial or from introducing testimony, evidence or argument that Defendant
retained Dr. Schoenberg.” Counsel for Respondents stated while discussing the experts
in the case during voir dire:
Dr. Garber was paid for his work as an expert, about $25,000. Dr. Price
has been paid about $4,000.00 to date. Dr. Salzman, he is paid. He gets
paid about $150,000 a year for medical-legal work. Dr. Price gets about
$5,000 a day. And Dr. Hatcher gets about $5,000 a day. And then this Dr.
Schoenberg, one of their experts, was paid $30,000—[.]
Appellant objected that this was a “dis-endorsed” witness and that you could not
make an adverse inference about such a witness. Respondents claimed that the
information was relevant to rebut the inference made by Appellant that Respondents’
expert was charging the exorbitant sum of $26,000. The court overruled the objection to
that particular question being asked, but would not allow an adverse inference to be
argued by Respondents from the failure of Appellant to call Dr. Schoenberg. When voir
dire resumed, counsel for Respondents then reiterated that one of Appellant’s experts was
paid $30,000. The trial court subsequently allowed a question and answer from the
deposition to be read during trial about the compensation received by Dr. Schoenberg.
“Trial courts have broad discretion over the admissibility of evidence, and
appellate courts will not interfere with those decisions unless there is a clear showing of
abuse of discretion.” Klotz, 311 S.W.3d at 770.
This standard gives the trial court “broad leeway in choosing to admit
evidence,” and its exercise of discretion will not be disturbed unless it “‘is
clearly against the logic of the circumstances and is so unreasonable as to
indicate a lack of careful consideration.’” State v. Freeman, 269 S.W.3d
422, 426–27 (Mo. banc 2008), quoting, State v. Forrest, 183 S.W.3d 218,
223 (Mo. banc 2006). In part, such broad leeway is granted to ensure the
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probative value of admitted evidence outweighs any unfair prejudice.
Freeman, 269 S.W.3d at 427, quoting, State v. Anderson, 76 S.W.3d 275,
276 (Mo. banc 2002). “For evidentiary error to cause reversal, prejudice
must be demonstrated.” State v. Reed, 282 S.W.3d 835, 837 (Mo. banc
2009).
Mitchell v. Kardesch, 313 S.W.3d 667, 674-75 (Mo. banc 2010).
Respondents argue that no adverse inference argument was made to the jury and
the question simply informed the jury about the costs of experts for this type of matter.
Appellant argues that an adverse inference was raised by simply stating the amount that
Dr. Schoenberg charged. Without addressing whether it was error or fair rebuttal to a
claim of exorbitant fees by Respondents’ experts to admit evidence of the charges of a
dis-endorsed witness, we find no prejudice to Appellant in the admission of the evidence.
In a four-day trial, spanning almost 800 pages of testimony, a single reference to how
much one expert charged was not prejudicial to Appellant. Point VI is denied.
The judgment is affirmed.
Nancy Steffen Rahmeyer, J. – Opinion Author
Gary W. Lynch, P.J., – Concurs
William W. Francis, Jr., J., – Concurs
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