Court of Appeals of Missouri, Eastern District, First Division
BENNY L. BELL, Respondent,
HAMID R. REDJAL, M.D., Defendant, and ORTHOPAEDIC ASSOCIATES OF SOUTHEAST MISSOURI, P.C. d/b/a ADVANCED ORTHOPEDIC SPECIALISTS, Appellant.
from the Circuit Court of the City of St. Louis 1522-CC10079
Honorable Jimmie M. Edwards
M. CLAYTON III, JUDGE.
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"). We affirm.
Facts Giving Rise to this Appeal
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.
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.
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.
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.
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.
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.
Relevant Procedural Posture
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.
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.
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.
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.
Whether the Trial Court Erred with Respect to Evidence of Dr.
Redjal's Qualifications and Treatment of Other
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
Standard of Review
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).
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.
Relevant Facts and Procedural Posture
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.
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.
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.
Relevant Law, Defendant's Arguments, and
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
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.
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.
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.
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. 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.
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."
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.
Whether the Trial Court Committed Instructional
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.
General Standard of Review
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.
Whether the Verdict Directors Were Supported by Sufficient
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
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:
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:
Defendant Hamid Redjal, M.D. either:
(a) performed unnecessary right hip surgery on April 16,
(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;
Third, as a direct result of such negligence plaintiff
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.
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
in mind the preceding guidelines relevant to our review, we
now discuss whether Paragraph First subsections (b) and (d)
were supported by sufficient evidence.
Paragraph First Subsection (b)
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.
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
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
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,  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 ...