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Beverly v. Hudak

Court of Appeals of Missouri, Western District, Special Division

February 6, 2018

TIM BEVERLY, Appellant,
MICHAEL C. HUDAK, D.C., ET AL., Respondents.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Janet L. Sutton, Judge

          Before: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin, Judge, and Gary D. Witt, Judge

          Cynthia L. Martin, Judge

         Tim Beverly ("Beverly") appeals from the trial court's judgment in favor of Michael C. Hudak, D.C. ("Dr. Hudak") and I Got Your Back Chiropractic, LLC ("I Got Your Back") (collectively "Defendants") following a jury trial on Beverly's claim of chiropractic malpractice. Beverly asserts that the trial court erred in denying his motion for new trial because the trial court made errors involving evidentiary rulings and because the verdict in favor of the Defendants was against the weight of the evidence. Finding no error, we affirm.

         Factual and Procedural Background[1]

         On December 22, 2007, Beverly fell while playing basketball. It is uncontested that as a result of the fall, Beverly suffered a vertebral artery dissection, which is a tear to the internal layers of the wall of the vertebral artery. Following a vertebral artery dissection, blood flows around the tear, and a blood clot forms to close off the artery, creating a risk that the clot will dislodge and occlude blood vessels in the brain, causing a stroke.

         Immediately after his fall, Beverly experienced neck pain. Throughout the evening, Beverly's symptoms worsened. Beverly's neck pain progressed in intensity, and he developed neck stiffness. Beverly's head began to hurt. His left eye started to throb and became watery, and he had difficulty keeping his left eye open. Beverly developed blurry vision. Beverly vomited several times and started feeling lightheaded and dizzy. Beverly had no appetite.

         Beverly's symptoms continued through December 28, 2007, when he sought medical treatment at Truman Medical Center's emergency room. Beverly complained of nausea, vomiting, photophobia, decreased appetite, and a severe, constant headache on his left side that was made worse with movement. Truman Medical Center ordered a CT scan and a lumbar puncture. The results of both tests were normal. Truman Medical Center discharged Beverly with medications to treat his symptoms, with instructions to return if his headache persisted or worsened, and with instructions to follow up with his primary care provider.

         On December 31, 2007, Beverly went to the emergency room at St. Luke's North Hospital, complaining of the same symptoms, though they were more localized to the leftside of his body. St. Luke's North Hospital reviewed the records from Truman Medical Center and examined Beverly. St. Luke's North Hospital gave Beverly medications for his symptoms and allowed him to rest in the emergency room before discharging him with the same instructions Beverly received from Truman Medical Center.

         Beverly's symptoms continued, so he went to I Got Your Back on January 2, 2008, to receive chiropractic care from Dr. Hudak. Beverly reported a left-sided headache made worse by movement. Beverly reported that Truman Medical Center performed a CT scan and a lumbar puncture and that the results of both tests were normal. Dr. Hudak took x-rays of Beverly's cervical spine and requested radiology interpretation. Dr. Hudak's notes reported that Beverly's "[l]eft side eye is protruding and waters a lot, " and noted nystagmus in Beverly's left eye. Dr. Hudak examined Beverly and found a subluxation at C5, the fifth cervical vertebra located in the lower-middle portion of the neck. Dr. Hudak performed a chiropractic adjustment to Beverly's neck. After the adjustment, Beverly returned home and took a nap. When Beverly woke up, he felt much better and had regained his appetite.

         The next day, Beverly's symptoms returned. Beverly's roommate drove him to I Got Your Back on January 4, 2008, for another chiropractic adjustment. Immediately after Dr. Hudak performed the adjustment on Beverly's cervical spine, Beverly's eyes rolled back into his head, his right arm and left leg shook, and his speech became slurred. Dr. Hudak's assistant called 911. An ambulance transported Beverly to North Kansas City Hospital, where doctors diagnosed Beverly's vertebral artery dissection for the first time and determined that Beverly had suffered four strokes.

         Beverly filed suit against the Defendants. Though it was uncontested that Beverly sustained his vertebral artery dissection while playing basketball on December 22, 2007, the jury was asked to determine whether Dr. Hudak's chiropractic adjustment on January 4, 2008, caused a blood clot to dislodge and occlude blood vessels in the brain, causing Beverly's strokes. The jury returned a verdict in favor of the Defendants, and the trial court entered a judgment ("Judgment") accepting the jury's verdict. Beverly filed a motion for new trial, which was overruled.

         Beverly filed this timely appeal. Additional facts will be discussed where relevant to Beverly's points on appeal.

         Standard of Review

         Beverly presents five points on appeal, each of which argue that the trial court erred in denying Beverly's motion for new trial. "[T]o succeed on a motion for new trial, the moving party must establish 'that trial error or misconduct of the prevailing party incited prejudice in the jury.'" Sherar v. Zipper, 98 S.W.3d 628, 632 (Mo. App. W.D. 2003) (quoting Kansas City v. Keene Corp., 855 S.W.2d 360, 372 (Mo. banc 1993)). We review the denial of a motion for new trial for abuse of discretion. Westerman v. Shogren, 392 S.W.3d 465, 469 (Mo. App. W.D. 2012). An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances before the court at the time and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. Id. at 469-70. We will reverse the trial court's denial of a motion for new trial only if we find a "substantial or glaring injustice." Sterbenz v. Kansas City Power & Light Co., 333 S.W.3d 1, 7 (Mo. App. W.D. 2010).


         Point One: Allowing the Defendants' Expert Witness to Testify to New Opinions

         In his first point on appeal, Beverly argues that the trial court erred in denying his motion for new trial because the Defendants' expert, Dr. Harold Pikus ("Dr. Pikus"), was improperly allowed to testify "in that several of his opinions were new opinions offered for the first time at trial." [Appellant's Brief p. 22] Beverly asserts that Dr. Pikus's new opinions resulted in unfair surprise that had a consequential influence on the jury's verdict.

         Rule 56.01(b)(4) allows a party to obtain discovery by interrogatories or by deposition of facts known and opinions held by any persons the other party expects to call as an expert witness at trial. "'Discovery rules and case law establish the principle that when an expert witness has been deposed and later changes his opinion before trial or bases that opinion on new or different facts from those disclosed in the deposition, it is the duty of the party intending to use the expert witness to disclose that new information to his adversary, thereby updating the responses made in the deposition.'" Snellen ex rel. Snellen v. Capital Region Med. Ctr., 422 S.W.3d 343, 353 (Mo. App. W.D. 2013) (quoting Redel v. Capital Region Med. Ctr., 165 S.W.3d 168, 175 (Mo. App. E.D. 2005) (emphasis added)). The purpose of the principle is "to protect a party from the failure of an expert to disclose his opinion or the facts he bases that opinion on during the discovery process." Sherar, 98 S.W.3d at 633. If an expert provides different testimony from that disclosed in discovery, then the trial court is vested with discretion to determine how to remedy the situation. Beaty v. St. Luke's Hosp., 298 S.W.3d 554, 560 (Mo. App. W.D. 2009). Surprise exists when "an expert witness suddenly has an opinion where he had none before, renders a substantially different opinion than the opinion disclosed in discovery, uses new facts to support an opinion, or newly bases that opinion on data or information not disclosed during the discovery deposition." Sherar, 98 S.W.3d at 634. Surprise cannot be manufactured, however. "The attorney deposing the witness must ask for the expert's opinion and/or the underlying facts or data." Id. A party cannot claim surprise based on "new opinions" as to matters about which the expert witness has not been asked during discovery. As we explained in Sherar, to conclude otherwise:

would open the door to serious concerns. Specifically, a fundamental hazard arising from the position advocated by . . . counsel is the promotion of a form of sandbagging by counsel. Under his arguments, deposition counsel could ask general questions regarding the nature of an expert's opinion, yet refrain from asking "ultimate issue" questions of the expert. . . . Then, when the time comes for trial . . ., counsel could claim "surprise" and seek to have the testimony excluded.

98 S.W.3d at 634.

         Beverly's first point on appeal identifies eight "new" opinions Dr. Pikus gave at trial: (i) that Beverly did not have nystagmus when he was treated by Dr. Hudak; (ii) that it takes twenty seconds for a blood clot to travel to the brain; (iii) that Beverly had suffered a stroke more than forty-eight hours before Dr. Hudak adjusted his neck; (iv) that Beverly made a remarkable recovery with rehabilitation; (v) that Beverly did not comply with treatment recommendations; (vi) that Beverly's cognitive dysfunction was not caused by his stroke; (vii) that Beverly reached maximum medical improvement; and (viii) that Beverly's insomnia and memory issues were not caused by his stroke. Beverly argues that these opinions were "new, " and subject to exclusion from evidence, because Dr. Pikus was asked in his deposition if he had given all of the opinions he intended to offer at trial.[2] Beverly began his cross-examination of Dr. Pikus by asking him to admit that he had offered "new ...

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