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Bell v. Redjal

Court of Appeals of Missouri, Eastern District, First Division

February 26, 2019

BENNY L. BELL, Respondent,
v.
HAMID R. REDJAL, M.D., Defendant, and ORTHOPAEDIC ASSOCIATES OF SOUTHEAST MISSOURI, P.C. d/b/a ADVANCED ORTHOPEDIC SPECIALISTS, Appellant.

          Appeal from the Circuit Court of the City of St. Louis 1522-CC10079 Honorable Jimmie M. Edwards

          ROBERT M. CLAYTON III, JUDGE.

         Orthopaedic Associates of Southeast Missouri, P.C. d/b/a Advanced Orthopedic Specialists ("Defendant" or "Defendant AOS") appeals the judgment entered upon a jury verdict awarding Benny L. Bell ("Plaintiff") $4, 451, 875 in compensatory damages and $5, 000, 000 in punitive damages on Plaintiff's claims for medical malpractice arising out of medical care provided to Plaintiff by Defendant's employee, Hamid R. Redjal, M.D. ("the underlying defendant Dr. Redjal" or "Dr. Redjal").[1] We affirm.

         I. BACKGROUND

         A. Facts Giving Rise to this Appeal

         Plaintiff is a middle-aged man who enjoyed success in his career as a dancer. He grew up in the small town of Caruthersville, Missouri but eventually moved to Europe to further his career as a performer, choreographer, and dance instructor. At around the age of fifty, Plaintiff began experiencing pain and other symptoms of arthritis in his hip. In 2009, Plaintiff underwent a right hip resurfacing surgery, in which metal components were installed in his right hip. In 2012, Plaintiff's right hip pain recurred. Also around that time, Plaintiff was notified the metal components installed during his 2009 surgery had been recalled and that he would have to undergo another surgery to revise the prior one. Plaintiff then returned to Missouri for a right hip replacement surgery, which was performed by Dr. Ryan Nunley at Barnes Jewish Hospital in St. Louis, Missouri in January 2013. During this surgery, Smith & Nephew, Inc. ("Smith & Nephew") hip replacement components were installed into Plaintiff's right hip.

         A few months after the January 2013 surgery, Plaintiff started to experience pain in his left groin area. Plaintiff reported to Dr. Patrick Knight, an orthopedic surgeon and one of the owners of Defendant AOS, who then referred Plaintiff to the care of Defendant AOS's new surgeon, Dr. Redjal. Dr. Redjal performed a successful total hip replacement surgery on Plaintiff's left hip in November 2013. Plaintiff felt great immediately after this surgery, he participated in physical therapy while he was still in the hospital, and he was able to walk on crutches at the time he was discharged from the hospital. On his way to a postoperative follow-up appointment with Dr. Redjal on November 21, 2013, Plaintiff stopped at a McDonald's restaurant where he slipped on a wet floor and fell against a wall. Thereafter, Dr. Redjal referred Plaintiff to Dr. Jimmy Bowen, a physical medicine and rehabilitation physician who worked for Defendant AOS.

         Dr. Bowen diagnosed Plaintiff with osteitis pubis, a condition causing groin pain that can be treated successfully without surgery. By March 2014, Plaintiff was doing well on the right hip but was still suffering from persistent but improving groin pain on the right side. Dr. Bowen referred Plaintiff back to Dr. Redjal to explore whether there was a problem with the right hip implant.

         On April 16, 2014, Dr. Redjal performed what he testified was an "exploratory" surgery on Plaintiff's right hip at Saint Francis Medical Center in Cape Girardeau, Missouri. However, Dr. Redjal said prior to the surgery he actually intended to replace the polyethylene liner from Plaintiff's acetabular component. During surgery, Dr. Redjal employed a power corkscrew device to remove the polyethylene liner from the acetabular cup, which was not the recommended technique to perform this task. After the liner was removed, Dr. Redjal could not get a new one to lock into the cup. Therefore, Dr. Redjal was forced to remove the entire acetabular component from Plaintiff's right hip and install a new one. During this process, Dr. Redjal removed a substantial amount of attached pelvic bone and fractured Plaintiff's pelvis.

         Plaintiff was not informed of the pelvic fracture prior to his discharge from the hospital. In the months following his surgery, Plaintiff was ordered to bear weight on his right leg and to undergo physical therapy with Dr. Bowen. Plaintiff had significant difficulty with his postoperative instructions because he was experiencing pain, clicking, and loosening of the right hip implant while standing or walking. Finally, on October 23, 2014, Plaintiff made Dr. Redjal feel the hip implant move inside his body; thereafter, Dr. Redjal ordered a CT scan. This scan revealed Plaintiff's acetabular component was dislocated.

         Dr. Redjal was subsequently discharged from his employment with Defendant AOS. Plaintiff had an appointment with Dr. Knight on December 23, 2014 during which Dr. Knight informed Plaintiff there was a problem with his April 16, 2014 surgery and Plaintiff's right leg was not attached. Dr. Knight then referred Plaintiff to the care of Dr. Douglas McDonald, who saw Plaintiff on February 11, 2015. At that time, Dr. McDonald determined Plaintiff's acetabular component was malpositioned and not fixed in bone. Dr. McDonald performed a subsequent surgery to repair Plaintiff's right hip, but it was unsuccessful. As of the time of trial in September 2017, Plaintiff's right hip implant was unattached to his pelvis, Plaintiff could not voluntarily move his right leg, he could not walk without crutches, and he experienced significant limitations in his day-to-day activities.

         B. Relevant Procedural Posture

         Plaintiff subsequently filed his first amended petition ("petition") alleging six claims against four defendants: Smith & Nephew, Rich House Inc. d/b/a McDonald's ("McDonald's), Defendant AOS, and the underlying defendant Dr. Redjal. Specifically, Plaintiff asserted one claim of products liability against Smith & Nephew ("Count I") related to the allegedly defective implants installed in Plaintiff's right hip during the January 2013 surgery performed by Dr. Nunley. Plaintiff also alleged one claim of premises liability against McDonald's ("Count II") based on McDonald's failure to discover, warn, or remove an allegedly unsafe condition, which caused Plaintiff to fall on November 21, 2013. Plaintiff's petition set forth three claims of medical malpractice against Defendant AOS and the underlying defendant Dr. Redjal ("Counts III, IV, and V") arising from Dr. Redjal's negligent treatment of Plaintiff as discussed above. Finally, Plaintiff asserted one claim of negligent supervision, retention, and referral against Defendant AOS ("Count VI"). Plaintiff sought compensatory and punitive damages based on his claims.

         Prior to trial, Plaintiff settled his claims against Smith & Nephew and McDonald's. Therefore, he proceeded to try his case on Counts III, IV, and V against Defendant AOS and Dr. Redjal as well as Count VI against Defendant AOS. In support of his claims, Plaintiff testified and presented the testimony of: his retained expert orthopedic surgeon Dr. David King; Defendant AOS owners and employees Dr. August Ritter, Dr. Knight, Dr. Brian Schafer, and Dr. Bowen; Dr. McDonald, who was also designated as an expert; Smith & Nephew representative Michael Swailes; and Plaintiff's retained expert life care planner Nurse Jan Klosterman.

         At the close of Plaintiff's evidence, the trial court ruled there was insufficient evidence to support Plaintiff's claim for punitive damages on Count VI. The trial court ultimately submitted Counts III, IV, and V to the jury. The jury returned a verdict in favor of Plaintiff, awarding him $4, 451, 875 in compensatory damages and $5, 000, 000 in punitive damages. Defendant AOS appeals.[2]

         II. DISCUSSION

         Defendant AOS raises six points on appeal. In Defendant's first and second points on appeal, which we address together for ease of analysis, Defendant asserts the trial court erred in its rulings relating to evidence of the underlying defendant Dr. Redjal's qualifications and treatment of other patients. In its third and fourth points on appeal, which we also address together, Defendant alleges instructional error as to the verdict directors. In its fifth point on appeal, Defendant contends the court erred in sua sponte limiting its cross-examination of Plaintiff about evidence from his Facebook page and in denying its offer of proof on the subject. And in Defendant's sixth and final point on appeal, it alleges trial court error regarding its requested reduction under section 537.060 RSMo 2000.[3]

         A. Whether the Trial Court Erred with Respect to Evidence of Dr. Redjal's Qualifications and Treatment of Other Patients

         In its first and second points on appeal, Defendant AOS asserts the trial court erred in its rulings relating to evidence of the underlying defendant Dr. Redjal's qualifications and treatment of other patients. In Defendant's first point on appeal, it argues the trial court erred in admitting evidence of Dr. Redjal's qualifications and treatment of other patients because the evidence was irrelevant and prejudicial in light of Defendant's admission of respondeat superior. In its second point on appeal, Defendant maintains the court erred in denying its motion for mistrial and subsequent motion for new trial based on the admission of such evidence.

         1. Standard of Review

         The trial court has considerable discretion in determining the admissibility of evidence. Koelling v. Mercy Hospitals East Communities, 558 S.W.3d 543, 550 (Mo. App. E.D. 2018). Thus, we defer to a trial court's evidentiary ruling, we presume the ruling is correct, and we will reverse based on evidentiary error only if the court clearly abused its discretion. Koon v. Walden, 539 S.W.3d 752, 761 (Mo. App. E.D. 2017). We also review the trial court's decision to deny a motion for mistrial or a motion for new trial for an abuse of discretion. Palmer v. Union Pacific R. Co., 311 S.W.3d 843, 851 (Mo. App. E.D. 2010).

         An abuse of discretion occurs when the court's 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." Koelling, 558 S.W.3d at 550 (quotations omitted). An abuse of discretion will not be found if reasonable minds could differ as to the propriety of the trial court's action. Koon, 539 S.W.3d at 761. We will only reverse the trial court's ruling if it has resulted in a glaring or substantial injustice. Id.; Palmer, 311 S.W.3d at 851.

         2. Relevant Facts and Procedural Posture

         Prior to trial, Defendant filed a motion in limine asserting Plaintiff should not be allowed to introduce evidence showing Dr. Redjal failed the examination for board certification as an orthopedic surgeon on three occasions. The trial court denied Defendant's motion in limine.

         During trial, Defendant objected to Plaintiff's presentation of evidence related to Count VI, which was Plaintiff's claim for negligent supervision, retention, and referral against Defendant AOS. In response, Plaintiff maintained evidence of Dr. Redjal's qualifications and treatment of other patients was relevant and permissible because he was pursuing punitive damages on that claim. The trial court overruled Defendant's objections, and Plaintiff presented evidence showing, (1) Dr. Redjal failed his board certification examination on three occasions; (2) when Dr. Redjal was trying to obtain his license to practice medicine in Missouri, he had difficulty getting a favorable recommendation from the California institution where he completed his residency; (3) Dr. Redjal's residency director from the California institution wrote a letter stating Dr. Redjal's overall performance was not acceptable; and (4) in late 2014, Defendant AOS ended its professional relationship with Dr. Redjal due to his poor treatment of other surgical patients.

         After the court announced it would not submit Plaintiff's claim of punitive damages on Count VI to the jury, Defendant's counsel requested a mistrial, because the jury had already heard the preceding evidence relevant to that claim. No other relief was requested. The trial court denied Defendant's request for a mistrial, as well as its subsequent motion for new trial arguing the same.

         3. Relevant Law, Defendant's Arguments, and Analysis

         As a general rule, a plaintiff is not allowed to pursue claims against an employer asserting alternative theories of liability in cases where the employer has admitted to respondeat superior liability for its employee's negligence. McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. banc 1995); see Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 391-94 (Mo. App. W.D. 2013). However, this rule is subject to an exception when the plaintiff brings a claim for punitive damages against the employer. Wilson, 400 S.W.3d at 391-94; see also McHaffie, 891 S.W.2d at 826. The Wilson Court aptly explained:

The rationale for the Court's holding in McHaffie was that, where vicarious liability was admitted . . ., the employer's liability was necessarily fixed by the negligence of the employee. Thus, any additional evidence supporting direct liability claims could serve only to waste time and possibly prejudice the defendants.
The same cannot be said, however, when a claim for punitive damages based upon the direct liability theories is raised. If an employer's hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee's negligence, to support a claim for punitive damages. Unlike in the McHaffie scenario, this evidence would have a relevant, non-prejudicial purpose. And because the primary concern in McHaffie was the introduction of extraneous, potentially prejudicial evidence, we believe that the rule announced in McHaffie does not apply where punitive damages are claimed against the employer, thus making the additional evidence both relevant and material.

400 S.W.3d at 393 (internal citations omitted). The Wilson Court also held that in order for a plaintiff to be entitled to the punitive damages exception, he is required only to plead sufficient facts to support a claim of punitive damages. Id. at 393-94.

         We first address Defendant's argument that the trial court erred in admitting the evidence about Dr. Redjal's qualifications and treatment of other patients. The trial court's rulings admitting this evidence were made during pre-trial discussions of motions in limine and during trial when Defendant objected to the evidence. As such, these rulings were made prior to the trial court's pronouncement that it would not submit Plaintiff's claim for punitive damages on Count VI to the jury. Accordingly, when the court decided the evidence was admissible, Plaintiff was still pursuing its punitive damages claim against Defendant AOS on the theory of negligent supervision, retention, and referral.

         Implicit in its ruling, the trial court found Plaintiff was entitled to the punitive damages exception because he pled sufficient facts to support his claim for punitive damages on Count VI. See Wilson, 400 S.W.3d at 391-94. In light of the allegations pled in Plaintiff's petition as well as the fact Defendant did not challenge the sufficiency of Plaintiff's allegations with a motion to dismiss or motion for summary judgment, we cannot say the trial court's decision to admit the evidence of Dr. Redjal's qualifications and treatment of other patients for this purpose was clearly against the logic of the circumstances then before the court or demonstrated a lack of careful consideration. See Koelling, 558 S.W.3d at 550; Koon, 539 S.W.3d at 761. The evidence was admitted for a non-prejudicial purpose as it was both relevant and material to support Plaintiff's claim of punitive damages on Count VI for negligent supervision, retention, and referral. See Wilson, 400 S.W.3d at 393. Moreover, the admission of the evidence did not violate McHaffie. See McHaffie, 891 S.W.2d at 826; Wilson, 400 S.W.3d at 391-94. Thus, the trial court did not abuse its discretion in admitting the evidence.

         We now turn to the trial court's denial of Defendant's motion for mistrial and subsequent motion for new trial based on the fact that after the evidence was admitted, the court determined it would not submit Plaintiff's punitive damages claim on Count VI to the jury.[4] A mistrial is a drastic remedy that should only be granted in exceptional circumstances. Coyle v. City of St. Louis, 408 S.W.3d 281, 286 (Mo. App. E.D. 2013); Palmer, 311 S.W.3d at 854; Cole ex rel. Cole v. Warren County R-III School Dist., 23 S.W.3d 756, 759 (Mo. App. E.D. 2000). The trial court is in the best position to determine the prejudicial effect of evidence and "to determine whether any resulting prejudice can be ameliorated by less drastic means than declaration of a mistrial." Cole, 23 S.W.3d at 759; see Wheeler ex rel. Wheeler v. Phenix, 335 S.W.3d 504, 514 (Mo. App. S.D. 2011). One less drastic remedy is a limiting instruction for the jury to disregard the allegedly improper evidence, which has been found sufficient to avoid prejudice and cure any error. See Warren Davis Properties V, L.L.C. v. United Fire & Casualty Co., 111 S.W.3d 515, 527 (Mo. App. S.D. 2003). When a party requests a mistrial but fails to ask for a curative instruction, we will find the court abused its discretion in declining to grant a mistrial only if the evidence was so prejudicial that its effect could not have been removed by an instruction. Id.

         On appeal, Defendant contends the trial court should have declared a mistrial because the evidence relating to Dr. Redjal's qualifications and treatment of other patients "was irrelevant and highly prejudicial," but Defendant fails to adequately explain how it was prejudiced by the evidence. Other than recounting the complained-of evidence for our Court, Defendant's argument could be read as asserting the evidence was prejudicial merely because the jury heard it and merely because it violated McHaffie, which we have already found was not the case. Further, Defendant asserts "[i]t is easy to believe" the jury would want to punish Defendant based on the evidence related to its negligent supervision, retention, and referral of Dr. Redjal, and the jury's purported anger "would certainly bleed over into the jury's consideration of their verdict on both compensatory and punitive damages."

         We find Defendant's argument as to prejudice to be circular and speculative. Defendant has failed to prove the trial court's actions of denying Defendant's motions for mistrial and new trial resulted in a glaring or substantial injustice, especially in light of its failure to request a curative instruction. See Koon, 539 S.W.3d at 761; Coyle, 408 S.W.3d at 286; Palmer, 311 S.W.3d at 851, 854; Warren Davis Properties, 111 S.W.3d at 527; Cole, 23 S.W.3d at 759. We are unpersuaded by Defendant's contention that it could not even attempt to formulate an instruction sufficient to cure any potential prejudice resulting from the evidence of Dr. Redjal's qualifications and treatment of other patients. A party's failure to request relief other than a mistrial cannot aid him or her. See Warren Davis Properties, 111 S.W.3d at 527. Therefore, the trial court did not abuse its discretion in denying Defendant's motion for mistrial and subsequent motion for new trial. As such, the trial court did not err in its rulings relating to evidence of Dr. Redjal's qualifications and treatment of other patients. Points one and two are denied.

         B. Whether the Trial Court Committed Instructional Error

         We address Defendant's third and fourth points on appeal in the following order. In the first part of Defendant's fourth point as well as in its third point, Defendant maintains the trial court erred in submitting the verdict directors - Instruction No. Four ("Instruction Four") and Instruction No. Nine ("Instruction Nine") - to the jury because they were not supported by sufficient evidence. In the second part of Defendant's fourth point, Defendant contends the court erred in submitting Instruction Four to the jury because it was a roving commission in that it failed to advise the jury of the ultimate facts necessary to conclude Defendant was negligent.

         1. General Standard of Review

         Whether the jury was properly instructed is a question of law subject to de novo review. Koon, 539 S.W.3d at 768. A proper instruction must be supported by the evidence, follow the substantive law, and be readily understood by the jury. Huelskamp v. Patients First Health Care, LLC, 475 S.W.3d 162, 173 (Mo. App. E.D. 2014); Fletcher v. Kansas City Cancer Center, LLC, 296 S.W.3d 474, 478 (Mo. App. W.D. 2009). In reviewing an alleged instructional error, we view the evidence in the light most favorable to its submission and disregard evidence to the contrary. Id. The party asserting instructional error must prove the allegedly improper instruction misdirected, misled, or confused the jury. SKMDV Holdings, Inc. v. Green Jacobson, P.C., 494 S.W.3d 537, 553 (Mo. App. E.D. 2016). We will reverse based on instructional error only if the error resulted in prejudice that materially affected the merits of the case. Koon, 539 S.W.3d at 768.

         2. Whether the Verdict Directors Were Supported by Sufficient Evidence

         We first turn to Defendant's assertion that the verdict directors were not supported by sufficient evidence. A verdict-directing instruction, such as Instruction Four and Instruction Nine in this case, must be supported by substantial evidence in order to be appropriately submitted to the jury. Brown v. Bailey, 210 S.W.3d 397, 410 (Mo. App. E.D. 2006). "Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case." Id. (quotations omitted). Where, as in this case, the verdict-directing instruction contains alternative submissions of acts giving rise to liability, each submission must be supported by substantial evidence. See Ploch v. Hamai, 213 S.W.3d 135, 138, 140 (Mo. App. E.D. 2006) (each submission in a disjunctive instruction, i.e., an instruction containing alternative submissions of acts giving rise to liability, must be supported by substantial evidence); see also Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 74 (Mo. Banc 1990) (overruled on other grounds by Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996)); Note on Use No. 1 to Missouri Approved Instruction ("MAI") 10.02.[5]

         a. Instruction Four

         In this case, Instruction Four was the verdict director given to the jury as to Plaintiff's medical malpractice claims against Defendant AOS and Dr. Redjal. Instruction Four stated:

         On the claim of Plaintiff Benny Bell for compensatory damages for personal injury against Defendants Advanced Orthopedic Specialists and Hamid Redjal, M.D. your verdict must be for Plaintiff Benny Bell if you believe:

         First, Defendant Hamid Redjal, M.D. either:

(a) performed unnecessary right hip surgery on April 16, 2014; or
(b) damaged the liner and cup and removed excessive bone during the right hip surgery on April 16, 2014; or
(c) failed to inform Plaintiff Benny Bell of fractures which occurred during the April 16, 2014 surgery; or
(d) delayed treatment of the fractures which occurred during the April 16, 2014 surgery; or
(e) instructed Plaintiff Benny Bell to participate in physical therapy and to put weight on the right leg despite persistent pain after the April 16, 2014 surgery; and
Second, Defendant Hamid Redjal, M.D. was thereby negligent; and
Third, as a direct result of such negligence plaintiff sustained damage.

         Based on the foregoing instruction, Defendant argues Paragraph First subsections (b) and (d) were not supported by sufficient evidence because they were not supported by expert testimony. Defendant is correct in stating Plaintiff was required to present expert testimony on the issues of the applicable standard of care and causation. See, e.g., Bailey, 210 S.W.3d at 408; Wright v. Barr, 62 S.W.3d 509, 524 (Mo. App. W.D. 2001); Baker v. Gordon, 759 S.W.2d 87, 91 (Mo. App. W.D. 1988); Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo. App. E.D. 1985). The flaw with Defendant's argument, however, is its assumption, without citation to authority, that only the testimony of Plaintiff's retained expert witness, Dr. King, should be considered in determining whether Plaintiff presented sufficient evidence to support its instruction.

         In so arguing, Defendant disregards case law providing, (1) we must view the evidence in the light most favorable to Instruction Four's submission; and (2) we may look at any evidence favorable to Plaintiff in determining whether sufficient evidence existed to support the instruction. See Huelskamp, 475 S.W.3d at 173; Fletcher, 296 S.W.3d at 478; see also, e.g., Fletcher, 296 S.W.3d at 479-80 (discussing plaintiff's expert's testimony in conjunction with other testimony in deciding there was sufficient standard of care evidence); Wright, 62 S.W.3d at 526-28 (considering plaintiff's expert's testimony as well as other testimony in finding there was sufficient standard of care and causation evidence); Ladish v. Gordon, 879 S.W.2d 623, 633-35 (Mo. App. W.D. 1994) (acknowledging defendant's evidence favorable to plaintiff in concluding plaintiff presented sufficient standard of care evidence); Baker, 759 S.W.2d at 91 (defendant's evidence may help establish the standard of care); Delisi, 701 S.W.2d at 173 (same). Moreover, we do not view one expert's testimony in a vacuum, but must consider it in the context of all the evidence presented at trial. Mitchell v. Evans, 284 S.W.3d 591, 595 (Mo. App. W.D. 2008); see also Fletcher, 296 S.W.3d at 479 (we consider expert testimony as an integrated whole).[6]

         Bearing in mind the preceding guidelines relevant to our review, we now discuss whether Paragraph First subsections (b) and (d) were supported by sufficient evidence.

         i. Paragraph First Subsection (b)

         Paragraph First subsection (b) required the jury to find Dr. Redjal "damaged the liner and cup and removed excessive bone during the right hip surgery on April 16, 2014[.]" As to this subsection, Plaintiff presented the following evidence on the issues of standard of care and causation.

         The evidence adduced at trial indicated the acetabular cup implanted in Plaintiff's hip contained a locking mechanism, which connected the cup to a plastic polyethylene liner that could be removed while the cup remained in place. Swailes, the Smith & Nephew representative present during Plaintiff's surgery, testified Smith & Nephew provided a tool to remove the polyethylene liner from the specific type of acetabular cup installed in Plaintiff's hip.

         Swailes was aware Dr. Redjal did not like to use the recommended tool but preferred to use a power corkscrew device to remove the polyethylene liner. The two had discussed this issue prior to Plaintiff's April 16, 2014 surgery and may have had the same conversation on the day of the surgery. In fact, Swailes testified he warned Dr. Redjal against using the power corkscrew device to remove the polyethylene liner from Plaintiff's acetabular cup because there was a risk the corkscrew device would damage the cup's locking mechanism and it would not be able to accept a new liner. Swailes also told Dr. Redjal to be careful not to drill into the locking mechanism. Nevertheless, Dr. Redjal refused to use the Smith & Nephew tool, but instead used the power corkscrew device. During Plaintiff's surgery, Dr. Redjal struggled to remove the polyethylene liner, damaged the liner by drilling into it several times, and was unable to replace it with a new liner because the liner would not lock into the acetabular cup.

         Dr. King, Plaintiff's retained expert orthopedic surgeon, testified the standard of care required Dr. Redjal, upon determining he needed to remove the polyethylene liner from Plaintiff's acetabular cup, to use the specific tool designed to remove the liner. Dr. Redjal failed to do so, and in Dr. King's opinion based on the evidence and deposition testimony he reviewed, [7] Dr. Redjal damaged the locking mechanism of the acetabular cup through his use of the power corkscrew device. Although Dr. King acknowledged other surgeons used the power corkscrew device, to his knowledge those doctors only employed that method when the implants being worked on did not have a ...


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