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Carr v. Ferrell-Duncan Obgyn Clinic

Court of Appeals of Missouri, Southern District, First Division

January 16, 2018

STEPHANIE CARR and JARED CARR, Plaintiffs-Appellants,


          DON E. BURRELL, J.

         Stephanie ("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.[1] 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.

         In 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.

         Standard of Review

         "A 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 discretion." Id.

         An 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).


         Stephanie 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.


         Point 1-No Error in Admitting Chromosomal Results

         Plaintiffs 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.

         Generally, "[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).[2] Here, Plaintiffs cite no constitutional or statutory restriction on the admission of evidence of chromosomal testing.[3] 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.

         The 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 ...

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