Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 10SL-CC03956-01
Honorable Michael T. Jamison
M. Gaertner, Jr, Judge
Jaynee Will (Will) appeals the judgment entered upon the
jury's verdict in favor of Respondent Pepose Vision
Institute, P.C. (Pepose), in Will's medical malpractice
suit against Pepose. We affirm.
has a family history of retinal detachment, and she regularly
obtained eye examinations from retinal specialists. In
November of 2001, Will's retinal specialist, Dr. Nancy
Holekamp, diagnosed Will with high myopia, lattice
degeneration, and posterior vitreous detachment in both eyes.
These conditions placed Will at greater risk for retinal
detachment than the general population. At the time of
Will's diagnoses, Dr. Holekamp did not recommend
immediate treatment, but instead that Will be examined again
in two years.
October of 2003, Will underwent bilateral Lasik surgery at
Pepose, performed by Dr. Jay Pepose. Dr. Mujtaba Qazi, a
refractive surgeon with Pepose, performed both Will's
pre- and post-operative examinations. Will returned to Pepose
twice more in 2003 for follow-up examinations. Over one year
later, on February 1, 2005, Dr. Qazi performed a general
ophthalmology examination on Will's eyes, which included
a retinal examination. Dr. Qazi documented on that date that
Will's retinas were normal.
March 23, 2005, Will noticed a large floater making a line
across her right eye. Will went to Barnes Retina Institute
the next morning, and she was diagnosed with a retinal
detachment and giant retinal tear in her right eye. She had
vitrectomy surgery to repair the retinal detachment that same
day. Will unfortunately experienced a complication from the
surgery that ultimately resulted in the loss of her right eye
in 2011. Will also underwent a preventative procedure in her
left eye to lessen the risk of retinal detachment in that
eye, which was successful.
2011, Will filed a medical malpractice suit against Pepose,
alleging both Dr. Pepose and Dr. Qazi failed to conform to
the standard of care in treating her, which caused or
contributed to cause the injury to her right eye. After a
jury trial, the jury found in favor of Pepose, but the trial
court granted Will's motion for new trial, finding the
verdict was against the weight of the evidence. This Court
affirmed on appeal. Will v. Pepose Vision Institute,
P.C., 400 S.W.3d 864 (Mo. App. E.D. 2013). The second
trial took place in September of 2015, and the jury again
returned a verdict in favor of Pepose. This appeal follows.
raises two points on appeal. First, she argues that certain
statements by Pepose's counsel during closing argument
misrepresented the evidence, and that the trial court plainly
erred in allowing such argument. Second, Will argues that the
trial court abused its discretion in excluding evidence of
witness tampering by Pepose, which prejudiced Will. We
discuss each in turn.
argues that certain statements by Pepose's counsel during
closing argument misled the jury, and thus the trial court
plainly erred in allowing such argument. We disagree.
concedes this point was not preserved because her counsel
failed to object to these statements during Pepose's
closing argument at trial. She requests we review for plain
error under Rule 84.13(c). "The general rule is that where a
party does not object to argument he deems improper he may
not thereafter object on appeal; and the plain error rule may
be resorted to only in those exceptional circumstances when
the reviewing court deems that manifest injustice or
miscarriage of justice has occurred." City of
Maryland Heights v. Heitz, 358 S.W.3d 98, 113 (Mo. App.
E.D. 2011) (quoting Goodman v. Firmin Desloee
Hospital. 540 S.W.2d 907, 917 (Mo. App. 1976)). Courts
have an absolute duty to "restrain and purge"
misstatements of law during closing argument. Heshion
Motors. Inc. v. W. Internafl Hotels. 600 S.W.2d 526, 534
(Mo. App. W.D. 1980). However, "it is equally recognized
that the permissible field of argument is broad, and so long
as counsel does not go beyond the evidence and the issues
drawn by the instructions... he is permitted wide latitude in
his comments." Id.
Will argues that Pepose's counsel misrepresented the
evidence relating to the standard of care that was applicable
to Dr. Qazi. There were two sets of guidelines for eye
examinations in evidence, called Preferred Practice Patterns
(PPP). One of the PPP's was entitled "Comprehensive
Adult Medical Eye Evaluation, " and it provided that
"[o]ptimal examination of the peripheral retina requires
the use of the indirect ophthalmoscope or slit-lamp fundus
biomicroscopy." These are the tools Dr. Qazi used when
performing Will's eye examination in February of 2005.
However, another PPP in evidence, entitled "Posterior
Vitreous Detachment, Retinal Breaks, and Lattice
Degeneration" (PVD PPP), called for use of an additional
instrument, called a scleral depressor, when examining a
patient's retina. Will's theory at trial was that Dr.
Qazi's care during his February 2005 examination fell
below the standard of care because he failed to use a scleral
depressor to examine the periphery of her retinas. Will
argued this caused Dr. Qazi to miss seeing the lattice
degeneration in both eyes and mistakenly diagnose her retinas
closing argument, Pepose's counsel noted that
Pepose's expert witness, Dr. Charles Wilkinson, testified
that the PVD PPP contains "guidelines for retinal
specialists, and those guidelines apply when a patient has
symptoms" of posterior vitreous detachment. Pepose's
counsel argued Dr. Qazi is not a retinal specialist, but a
refractive surgeon, and that there was no expert testimony ...