Court of Appeals of Missouri, Western District, Special Division
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
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.
and Procedural Background
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.
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.
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
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
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
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
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.
filed this timely appeal. Additional facts will be discussed
where relevant to Beverly's points on appeal.
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).
One: Allowing the Defendants' Expert Witness to Testify
to New Opinions
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
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
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.
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. Beverly began his cross-examination of Dr.
Pikus by asking him to admit that he had offered "new