Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable J. Ronald
("Stephanie") and Jared Carr, husband and wife
("Plaintiffs"), appeal the portions of a September
2016 judgment ("the judgment") entered in favor of
Ferrell-Duncan OBGYN Clinic ("Defendant") after a
jury trial. While the jury returned a verdict in favor
of Plaintiffs for personal injuries Stephanie sustained when
a Mirena RJD was negligently left in her abdomen for eight
years, it found in favor of Defendant on three wrongful death
claims Plaintiffs had asserted for three miscarriages that
occurred while the RJD was inside Stephanie's body.
three points, Plaintiffs claim the trial court erred in: (1)
admitting the results of certain chromosomal tests into
evidence; (2) excluding an un-redacted requisition form used
to obtain the chromosomal testing ("the requisition
form"); (3) excluding designated portions of deposition
testimony given by Dr. David Smid, Dr. Kristy McCall, Dr.
Karine Hovanes, and Steven Brown; and (4) admitting a
redacted version of the requisition form into evidence.
Finding no abuse of discretion by the trial court in any of
these evidentiary rulings, we affirm.
trial court enjoys considerable discretion in the admission
or exclusion of evidence, and, absent clear abuse of
discretion, its action will not be grounds for
reversal." State v. Mayes, 63 S.W.3d 615, 629
(Mo. banc 2001). 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."
In re Care and Treatment of Donaldson, 214 S.W.3d
331, 334 (Mo. banc 2007). "If reasonable people can
differ as to the propriety of the trial court's action,
then it cannot be said that the trial court abused its
erroneous evidentiary ruling calls for reversal only when it
affects the outcome of the case. Lozano v. BNSF Ry.
Co., 421 S.W.3d 448, 452 (Mo. banc 2014). "The
exclusion of evidence which has little, if any, probative
value is usually held not to materially affect the merits of
the case and hence, error in rejecting such evidence is not
grounds for reversal." Lewis v. Wahl, 842
S.W.2d 82, 85 (Mo. banc 1992).
had three miscarriages (in June 2009, November 2009, and May
2011). The last two miscarriages required the performance of
a dilation and curettage procedure, which Dr. McCall
performed on each occasion. After each of these procedures,
Dr. McCall collected tissue from Stephanie and sent it from
the operating room to the lab at Cox Health. At the lab, two
representative tissue samples were taken and preserved in
paraffin blocks. In April 2015, after Plaintiffs filed suit,
Cox Health's Director of Risk Management, Steven Brown,
requested that Cox Health's Laboratory Director, Dr.
David Smid, send the tissue to CombiMatrix in Irvine, CA for
chromosomal testing. CombiMatrix's Laboratory Director,
Dr. Karine Hovanes, conducted the chromosomal testing and
returned the results to Cox Health. On April 22, 2015,
Defendant's attorney received the results from Cox Health
and disclosed them to Plaintiffs' attorney. Defendant
presented the chromosomal testing evidence at trial on the
issue of what caused the miscarriages.
1-No Error in Admitting Chromosomal Results
claim the trial court erred in admitting the results of the
chromosomal testing because it was performed illegally,
improperly, and in violation of Stephanie's
constitutional right to privacy. Even if we assume that the
evidence was obtained illegally - a finding we do not make -
the claim fails because admitting evidence illegally obtained
by a non-state actor in a civil case is not prohibited.
"[i]n civil cases, the manner in which evidence is
obtained is irrelevant to the issue of admissibility."
Matter of Moore, 885 S.W.2d 722, 727 (Mo. App. W.D.
1994). Thus, evidence that is otherwise admissible will not
be excluded because it has been obtained fraudulently,
wrongfully, or illegally unless there is an applicable
constitutional or statutory restriction. Herndon v.
Albert, 713 S.W.2d 46, 47 (Mo. App. E.D.
1986). Here, Plaintiffs cite no constitutional or
statutory restriction on the admission of evidence of
chromosomal testing. Rather, they argue that because Stephanie
had protections under the Act and unidentified
"constitutional privacy rights" that were violated,
the trial court erred "in allowing unconstitutionally
obtained evidence to reach the jury." Plaintiffs
mistakenly rely on two cases discussing, but not applying, an
exception that applies "where the evidence has been
obtained by a search and seizure in violation of the
constitution[.]" Diener v. Mid-Ant Coaches,
Inc., 378 S.W.2d 509, 511 (Mo. 1964) (plaintiff lacked
standing to complain about blood taken from another body);
see also Plater v. W.C Mullins Const. Co., 17 S.W.2d
658, 668 (Mo. App. K.C.D. 1929) (exception "not
involved" where physician examined plaintiff). That
exception does not apply here because the evidence Plaintiffs
sought to exclude was not obtained by a state actor.
Constitution places such limits only on individuals acting on
behalf of the government. State ex rel. Riederer v.
Coburn,830 S.W.2d 427, 430 (Mo. App. W.D. 1991).
"[S]tate action requires both: (1) an alleged
constitutional deprivation caused by the exercise of some
right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the
State is responsible and (2) that the party charged with the
deprivation must be a person ...