Court of Appeals of Missouri, Eastern District, Division Four
HEATHER L. SHALLOW, MICHAEL BISHOP, and TODD BISHOP, Appellants,
RICHARD O. FOLLWELL, D.O., and RICHARD O. FOLLWELL, P.C., Respondents.
from the Circuit Court of Lincoln County 13L6-CC00122
Honorable Chris Kunza Mennemeyer
M. Dowd, Chief Judge
a wrongful death medical negligence case. Appellants claimed
that Dr. Follwell perforated Decedent Saundra Beaver's
bowel during a November 30, 2012 hernia repair surgery, and
that he negligently caused her death when he failed to
recognize and properly treat the leaking bowel. The case went
to trial, the jury reached a defense verdict, and the court
entered judgment in favor of Respondents. Appellants assert
two points of error: (1) that the trial court abused its
discretion by permitting the unfairly cumulative and
prejudicial repetition of expert opinions from
Respondents' expert witnesses, and (2) that the trial
court abused its discretion by permitting Dr. Follwell to
give a causation opinion different from the one he gave
during his deposition. As to the first point, we reverse and
remand for a new trial because we find that the trial court
abused its discretion by allowing the unfairly cumulative and
prejudicial repetition of certain expert opinions. We deny
the second point as moot.
and Procedural Background.
basic facts of this case are largely undisputed. On the
morning of November 30, 2012, Dr. Follwell performed surgery
on Decedent involving the placement of surgical mesh to
repair an abdominal hernia. Decedent was discharged around
12:30 p.m. About six hours later, Decedent began experiencing
severe post-operative symptoms. She returned to the hospital
around 9 p.m. and was readmitted. Dr. Follwell re-evaluated
Decedent at 7 a.m. the next morning, December 1st,
and around 2 p.m. she was discharged for the second time. The
next day, December 2nd, Decedent's condition
again worsened and she returned to the hospital where she was
diagnosed with sepsis, a serious infection-related
complication caused by the leakage into her abdominal cavity,
through a hole in her bowel, of the toxic and infectious
contents of her digestive tract. Decedent eventually died as
a result of this complication.
alleged that Dr. Follwell was negligent because he caused the
hole during the hernia surgery and then failed to recognize
and properly treat the problem when he saw Decedent in the
hospital the next day. Appellants presented their theory of
liability principally through the testimony of retained
expert Dr. Garry Ruben, but also through the testimony of
treating surgeon Dr. Mark Leibold, who took Decedent back to
surgery on December 3, 2012, to, among other tasks, remove
both a section of Decedent's necrotic bowel and the
infected surgical mesh.
testimony in defense of Dr. Follwell was provided by Dr.
Follwell himself in his dual status as a fact witness and as
an expert witness followed by four retained expert witnesses
in the following order: Dr. Grant Bochicchio, a critical care
specialist; Dr. Morton Rinder, a cardiologist and internist;
Dr. Thomas Naslund, a vascular surgeon; and Dr. Gregory
Brabbee, a colorectal surgeon. Dr. Follwell, for his part,
did not dispute that Decedent's bowel perforated, leaked,
and caused the infectious condition that led to her death.
Nevertheless, he denied that he caused the hole, that
Decedent's bowel had perforated while she was under his
care, and that he was negligent. He presented an alternative
theory of causation to the jury through his own testimony-and
that of his retained experts-asserting that the hole (and
Decedent's resulting infection, sepsis, and death) was
caused when previously undiagnosed a trial fibrillation
caused a blood clot to form, resulting in the restriction of
blood flow to the section of Decedent's bowel in
question. This blood restriction or ischemia caused the bowel
wall to become weak, necrotic, and ultimately to perforate
all unrelated to anything Dr. Follwell did or failed to do.
facts, as relevant, are included below.
review trial court decisions with respect to the admission or
the exclusion of evidence under our abuse of discretion
standard of review. Lozano v. BNSF Railway Co, , 421
S.W.3d 448, 451 (Mo.banc 2014). A trial court abuses its
discretion when its ruling is clearly against the logic of
the circumstances then before the court and is so
unreasonable and arbitrary that it shocks the sense of
justice and indicates a lack of careful, deliberate
consideration. Id. If reasonable persons can differ
as to the propriety of the court's action, then it cannot
be said that the court abused its discretion. Id.
Moreover, by both statute and rule, we are not to reverse a
judgment unless the error committed by the court materially
affected the merits of the action. Id., at 451-52.
Admission or Exclusion of Expert Testimony.
to the expert witness statute, § 490.065, the trial
court in a civil case may allow an expert to testify if
"scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue ...." In addition, we apply
the same standards for relevance and admissibility to expert
testimony that we do to other types of evidence.
Lozano, 421 S.W.3d at 451 n2 The party seeking to
admit evidence, including expert testimony, bears the burden
of establishing both its logical and its legal relevance
Nolte v Ford Motor Co, 458 S.W.3d 368, 382 (MoAppWD
2014) To be legally relevant, the probative value, or
usefulness, of the evidence sought to be admitted must not be
outweighed by its costs, including the dangers of unfair
prejudice, confusion of the issues, misleading the jury,
undue delay, waste of time, or the needless presentation of
cumulative evidence Id.; Kroeger-Eberhart v
Eberhart, 254 S.W.3d 38, 43 (MoAppED 2007) (citing State
v Sladek, 835 S.W.2d 308, 314 (Mobanc 1992) (Thomas, J,
cumulative expert testimony may create the risk that a jury
will resolve differences in expert opinion by "counting
heads" instead of giving fair consideration to the
quality and credibility of each expert's opinions.
Cantu v. United States, No. CVT4-00219 MMM (JCGx),
2015 WL 12743881, *8 (CD. Cal. April 6, 2015) (citing
Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp.,
No. 10-21511-CIV, 2010 WL 4225947, *2 (S.D. Fla. Oct. 21,
2010); Simstar, Inc. v. Alberto-Culver Co., Inc.,
Nos. 01 C 0736, 01 C 5825, 2004 WL 1899927, *25 (N.D. 111.
Aug. 23, 2004)).
in Missouri, there is no bright line in terms of the number
of expert witnesses that may testify on behalf of a party
generally or specifically on any issue nor do we in this
opinion seek to draw one. Nevertheless, the absence of a
bright line does not mean that there is no line at all. At
some point the repetition of the same opinions by successive
experts becomes redundant and no longer assists the trier of
fact to understand the evidence but instead
needlessly accumulates "additional evidence of
the same kind bearing on the same point." Sampson v.
Missouri Pac. R. Co.,560 S.W.2d 573, 590 (Mo.banc 1978)
(defining "cumulative evidence"). Such
legally irrelevant testimony should be excluded even
when it is clearly logically relevant and goes to the very
root of the matter in controversy or relates to the main
issue. In Missouri, no matter how logically
relevant particular testimony may be, it is part of the trial
court's task "to determine when cumulative evidence
should stop." Jackson v. State,205 S.W.3d 282,
288 (Mo.App.E.D. 2006) (citing State v. Tompkins,277 S.W.2d 587, ...