Court: Missouri Court of Appeals; October 30, 2012; Missouri; State Appellate Court
Karen LaFevers filed a medical negligence lawsuit against Dr. Pierre L. Clothiaux and Ferrell-Duncan Clinic, claiming damages due to Dr. Clothiaux’s negligent surgical procedure on her knee. A jury ruled in favor of the defendants, leading the trial court to enter a judgment consistent with the verdict. LaFevers contended that the judgment should be overturned, citing two primary errors: the trial court's refusal to allow her to reopen her evidence to present expert deposition testimony, and its overruling of her objection to Dr. Clothiaux’s testimony regarding a new opinion not previously disclosed. The court found merit in her first point, determining it was significant enough to warrant a reversal and a new trial.
Regarding the background, Dr. Clothiaux first evaluated LaFevers on December 11, 2006, noting her complaints of knee issues, including a “catching” sensation and pain, which had not improved with medication and a knee brace. An MRI revealed swelling, but tests showed no instability in the knee. Dr. Clothiaux discussed treatment options, ultimately recommending an arthroscopic procedure without suggesting physical therapy, as he did not expect to find problems with the kneecap. During the surgery on December 20, 2006, he observed hypermobility and normal surfaces, leading him to remove the plica, which he suspected was causing LaFevers’ symptoms.
Dr. Clothiaux identified lateral shifting of the Plaintiff's knee cap post-surgery due to the removal of the plica, which led to increased hypermobility and subluxation. To address this, he performed a minimally invasive thermal shrinkage procedure called "gridding," successfully centering the knee cap again. Plaintiff was unaware of any knee issues prior to surgery. Despite the procedure, she continued to experience pain and was referred to physical therapy, which she felt was ineffective. On March 1, 2007, Dr. Clothiaux expressed concern over potential femoral neuropathy and referred Plaintiff to a neurologist. An MRI ordered by her family physician, Dr. Jon Roberts, indicated damage to the patellofemoral joint that was not present before the arthroscopy. By April 5, 2007, Plaintiff still suffered from pain and immobility, prompting her to see Dr. Richard Lehman, who noted her poor knee mechanics and provided treatments for scar tissue and pain relief. Plaintiff also sought additional evaluations for neurological issues arising after the surgery, reporting chronic pain in her left leg.
During trial preparations, Defendants retained Dr. Matthew Matava as an expert witness. He indicated that conservative treatment is generally recommended for mild subluxation and noted that he had never seen plica removal lead to patellar instability. While he concluded that Dr. Clothiaux did not breach the standard of care, he criticized the effectiveness of thermal shrinkage. Throughout the trial, both parties had an agreement to disclose witness intentions, and Defendants' counsel repeatedly stated they would call Dr. Matava. Relying on this, Plaintiff rested her case before Defendants proceeded with testimony from Dr. Clothiaux.
Defense counsel informed Plaintiffs counsel via email shortly after court that Dr. Matava would not be called as a witness. The email reassured Plaintiffs counsel that the jury likely forgot Dr. Matava’s mention in the opening statement and promised not to highlight the absence of his testimony. Later that evening, Plaintiff proposed deposition offers to defense counsel, and the following morning, filed a motion to reopen evidence to include Dr. Matava’s deposition. The trial court denied this request, asserting its disapproval of reopening the case and requiring Plaintiffs counsel to prepare an offer of proof. Despite Plaintiffs efforts to reference interrogatory answers related to Dr. Matava, the court remained firm in its decision not to allow the reopening. The trial proceeded without Dr. Matava's testimony, resulting in a jury verdict favoring the Defendants, which nine jurors signed. After the trial court denied a motion for a new trial, Plaintiff appealed, claiming that the court abused its discretion in denying her request to reopen the case. Plaintiff argues that the denial was erroneous as the evidence would not inconvenience the court or unfairly prejudice the Defendants and contends that there was sufficient time for the evidence to be presented. Defendants counter that Plaintiff failed to make an adequate offer of proof, which is necessary for appellate review of excluded evidence. However, Plaintiff asserts she did provide a specific offer of proof as directed by the trial court during the motion hearing.
Plaintiff submitted Exhibit XX, a “marked up” copy of Dr. Matava’s deposition, as an offer of proof following the court's directive. This exhibit, contrary to Defendants' assertions, was properly filed and included in Plaintiff's Supplemental Legal File. Affidavits from Rachelle Sobaski, the court reporter, and Steve Helms, Clerk of the Circuit Court of Greene County, confirm that Exhibit XX was unintentionally omitted from the transcript index but was properly filed and served to opposing counsel on May 4 and 5, 2011. The court recognized that the exhibit was presented to the trial court on May 5, 2011, labeling it as Exhibit XX, and ruled that it is part of the appellate record under Rule 81.12. Defendants’ motion to strike Exhibit XX was denied.
The offer of proof serves to inform the trial judge about the evidence's admissibility and preserve the issue for appellate review, which is its primary purpose. The evidence, consisting of sworn answers from Dr. Matava’s deposition, was reviewed by the trial judge, and Defendants failed to demonstrate that the evidence was not preserved for appeal.
Plaintiff argued that reopening the case would not inconvenience the court or disadvantage Defendants, given that two days remained in the trial and Defendants had just rested their case. The trial court's refusal to allow the reopening was not based on any inconvenience but rather on a stated policy. The principle established in case law suggests that a trial court's discretion to reopen evidence should generally be broader than its discretion to deny such a request, especially when no inconvenience to the court or unfair advantage to the opposing party exists. Thus, denying the motion to reopen may constitute an abuse of discretion if the evidence is deemed material and potentially determinative.
The excerpt addresses the exclusion of deposition testimony from Dr. Matava, which was deemed material and potentially impactful on the jury’s decision. Dr. Matava contradicted Dr. Clothiaux’s actions, stating that the standard of care does not involve removing the plica to visualize the patella, as Dr. Clothiaux did. Matava noted that he found no evidence of wear in the Plaintiff's knee, contrary to what would warrant plica removal. He expressed skepticism about the effectiveness of thermal shrinkage, a procedure not performed by him. Despite concluding that Dr. Clothiaux did not breach the standard of care, Matava's criticisms were considered significant enough to potentially affect the case's outcome.
The Plaintiff was not unfairly advantaged by reopening the case to present Dr. Matava's testimony, as the Defendants could have also used favorable parts of the deposition. The Plaintiff's omission was due to reliance on defense counsel's representation that Matava would testify live, not due to oversight. Although the Defendants had the right to modify their strategy, the Plaintiff should not have been penalized for acting on a good faith agreement. The court noted that allowing the testimony could have been managed without a retrial, emphasizing the importance of professional agreements for judicial efficiency. Consequently, the trial court abused its discretion in denying the motion to reopen, leading to a reversal of the judgment and remand for a new trial. All rules referenced pertain to the Missouri Court Rules (2012).
Plaintiff cites Adams by Ridgell v. Children’s Mercy Hosp. and Porter v. Toys ‘R’ Us-Delaware, Inc. to support her assertion that the trial court abused its discretion by denying her motion to reopen evidence. However, while these cases involve similar factual scenarios, they affirm the trial court's discretion in admitting evidence, not in excluding it, which is the issue at hand. In Adams, the court allowed the plaintiff to present deposition testimony after the defendant opted not to call an expert witness. In Porter, the court permitted the plaintiff to read interrogatory answers regarding an expert witness already mentioned during voir dire. Additionally, the plaintiff argues she was surprised by Dr. Clothiaux's unexpected testimony offering a new opinion; however, this opinion is now known to her, and since the only relief sought was a new trial—which is being granted for a different error—this point is rendered moot. Consequently, the court does not address the plaintiff's alternative claim regarding the introduction of defendants' interrogatory answers concerning Dr. Matava.
