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Shallow v. Follwell

Court of Appeals of Missouri, Eastern District, Division Four

October 17, 2017

HEATHER L. SHALLOW, MICHAEL BISHOP, and TODD BISHOP, Appellants,
v.
RICHARD O. FOLLWELL, D.O., and RICHARD O. FOLLWELL, P.C., Respondents.

         Appeal from the Circuit Court of Lincoln County 13L6-CC00122 Honorable Chris Kunza Mennemeyer

          OPINION

          James M. Dowd, Chief Judge

         This is 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.

         Factual and Procedural Background.

         The 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.

         Appellants 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.

         The 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.

         Further facts, as relevant, are included below.

         Standard of Review.

         We 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.

         The Admission or Exclusion of Expert Testimony.

         Pursuant 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, concur ring)).

         Excessive 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)).

         However, 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.[1] 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, ...


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