Calvin v. Jewish Hosp. of St. Louis, 52838

• Decision Date: 16 February 1988
• Docket Number: No. 52838,52838
• Citation: 746 S.W.2d 602
• Parties: Linda L. CALVIN, Plaintiff-Respondent, v. The JEWISH HOSPITAL OF ST. LOUIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 602

746 S.W.2d 602

Linda L. CALVIN, Plaintiff-Respondent, v. The JEWISH HOSPITAL OF ST. LOUIS, Defendant-Appellant.

No. 52838.

Missouri Court of Appeals,

Eastern District,

Division Five.

Feb. 16, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 15, 1988.

Park G. Carpenter, Michael J. McDonnell, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, St. Louis, for defendant-appellant.

Morris B. Chapman, Morris B. Chapman & Associates, Ltd., Granite City, Ill., Morris

B. Kessler, Kessler & Kessler, St. Louis, for plaintiff-respondent.

CARL R. GAERTNER, Judge.

Plaintiff instituted this action seeking damages for personal injuries allegedly caused by medical malpractice. Jewish Hospital of St. Louis, Dr. Barry L. Samson and his employer, Metropolitan Orthopedics Limited, a professional corporation, were defendants. At the close of all the evidence, the trial court sustained motions for directed verdicts in favor of Dr. Samson and Metropolitan Orthopedics (hereinafter referred to in the singular as defendant Samson); plaintiff has not appealed this judgment. The jury found against defendant Jewish Hospital and assessed plaintiff's damages at $500,000.00. The hospital appeals the jury's decisions. We reverse and remand. ¹

On November 16, 1983, plaintiff filed this action against the three defendants alleging that as a result of specific negligent acts and omissions she sustained paralysis of her arm while undergoing a surgical laminectomy on her lumbar spine "and/or" during the immediate post-operative period. In April, 1984, plaintiff's attorney engaged the services of Dr. Byron Genner, a Potomac, Maryland, orthopedic surgeon who primarily works as a consultant in medical malpractice cases. In his deposition Dr. Genner testified that the nerve injury to plaintiff's arm could have resulted from improper positioning during surgery, an improper injection into the arm, draping the arm over the bedrail after surgery, or a viral infection of the brachial plexus. He was unable to say which of these possibilities actually caused plaintiff's injury. On November 5, 1985, plaintiff filed an amended petition which omitted the allegations of specific negligence and alleged that her paralysis "would not have occurred in the ordinary course of events had not [the defendants] negligently and carelessly failed to use proper care during the operation and its attendant treatment." The late Judge George A. Adolf overruled defendants' motions to dismiss and for a more definite statement.

After taking Dr. Genner's deposition, all defendants moved for summary judgment. On June 13, 1986, Judge Adolf denied these motions "without prejudice to defendant's right to raise these issues at trial." The case was set on the trial docket for September 29, 1986. On September 15, 1986, plaintiff amended her interrogatory answers by naming two additional expert witnesses. On September 22, 1986, Dr. Samson likewise endorsed a new expert witness. On September 24, 1986, five days before the date set for trial, Judge Adolf overruled cross-motions to preclude the testimony of the newly named experts provided these witnesses could be deposed before the trial scheduled for the next week. An earlier order had required plaintiff and defendants to respectively name all experts no later than 90 and 60 days before trial.

On September 25, 1986, the parties deposed Dr. Samson's new expert, Dr. E. Robert Schultz. He opined that the cause of plaintiff's injury was a hypodermic injection administered into plaintiff's radial nerve by a nurse employee of the hospital on the day after the surgery; he ruled out other possible causes. This was the first expert medical testimony disclosed in discovery which isolated a particular incident and identified a party as the cause of plaintiff's injury.

For reasons not apparent from the record before us, the case was not reached for trial during the week of September 29, and Judge Adolf ordered the case specially set for trial on December 1, 1986. On November 13, 1986, Jewish Hospital supplemented its answers to interrogatories by naming Dr. William J. Powers as an expert "who may testify on the subjects raised by Dr. Schultz." The hospital offered the other parties an opportunity to take Powers' deposition. Rather than accept this offer, plaintiff promptly moved to preclude the testimony of Dr. Powers on the ground that Jewish Hospital did not seasonably disclose his potential use as an expert witness. On November 20, 1986, Judge Adolf sustained this motion. Nothing in Judge Adolf's order, in plaintiff's brief, or in the record explains the inconsistency between the order promulgated four days before the original trial setting, which granted plaintiff and Dr. Samson leave to name additional experts, and the order denying similar leave to Jewish Hospital eleven days before the next trial setting. ²

On December 1, 1986, the hospital filed alternative motions to allow the testimony of Dr. Powers, a motion to preclude the testimony of Dr. Schultz, and a motion for a continuance. Judge Adolf overruled all three motions and assigned the case to Judge James S. Corcoran for trial. Jewish Hospital presented the three motions to Judge Corcoran who refused to entertain them because Judge Adolf had already ruled upon them. In order to preserve the record, counsel for the hospital made an offer of proof; all the parties agreed to the form of the offer. It was submitted that if permitted to testify Dr. Powers would rule out the possibility of injection damage to the radial nerve as the cause of plaintiff's injury and would express his opinion that the cause of plaintiff's radial nerve dysfunction was brachial plexus neuropathy. He would further testify that of the possible causes listed by other witnesses, only a stretching injury of the brachial plexus caused by positioning during surgery was compatible with the location and extent of the dysfunction.

I.

The broad discretion vested in the trial court to control its docket, the progress of litigation including pre-trial discovery, and the granting or refusal of a continuance will not be disturbed on review unless appellant shows an arbitrary or capricious exercise and abuse of discretion. Mo-Kan Airport v. Kansas City, 689 S.W.2d 641, 644 (Mo.App.1985). For a judge, with no express or apparent distinction, to excuse two parties from compliance with an order of court but to enforce the same order on a third party can only be described as arbitrary. Despite its order prohibiting endorsement of expert witnesses within sixty days of trial, the trial court here permitted plaintiff to name two experts disclosed thirteen days before a trial setting and permitted defendant Samson to name one expert disclosed ten days before trial. The court denied Jewish Hospital's attempt to name an expert disclosed 17 days before the next trial setting. The court ordered plaintiff and Samson to make their proposed witnesses available for deposition; Jewish Hospital volunteered to do likewise. Nothing in the record shows any reason for plaintiff's and Samson's untimely disclosure of their respective witnesses prior to Schultz's deposition. The case had been pending for almost three years without any party presenting evidence pinpointing a particular event or a specific act as the cause of plaintiff's injury. By comparison, Jewish Hospital disclosed its intention to use testimony to rebut this opinion within six weeks.

The purposes of discovery are to aid litigants in determining the facts prior to trial, to eliminate concealment and surprise, and provide litigants with access to information pertinent to their case. State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 328 (Mo.App.1985). When belated compliance with discovery rules creates the very surprise the rules are intended to eliminate, fairness and justice demand that the adversary be given an opportunity to meet the new evidence. Had this case been reached for trial during the week of September 29, four days after Dr. Schultz' deposition testimony radically changed the anticipated evidence, a denial of the hospital's request for a continuance would undoubtedly have been an abuse of discretion. See Missouri Public Service Company v. Argenbright, 457 S.W.2d 777, 785 (Mo.1970); Wintz v. Hyatt Hotels Corp., 687 S.W.2d 587, 590-91 (Mo.App.1985). By precluding the hospital from using Dr. Powers to rebut Dr. Schultz' testimony, the court effected the same prejudicial injustice: depriving a party surprised by last minute disclosures of an opportunity to confront new and unanticipated evidence. The exercise of judicial discretion "should be directed toward the accomplishment of fundamental fairness and the avoidance of unfair disadvantage." Ellis v. Union Elec. Co., 729 S.W.2d 71, 76 (Mo.App.1987). This case represents the converse of that principle.

Moreover, plaintiff's attorney exacerbated the prejudicial impact of Dr. Powers' exclusion when he stated in the final stage of his closing argument to the jury:

You think for one moment that this hospital with the access that it has to medical witnesses wouldn't have brought a parade of doctors in here, given them a hypothetical question--

MR. CARPENTER: Let me make my objection.

MR. CHAPMAN: Sure. I would ask you to make it off the record.

In the bench conference which ensued, the hospital's attorney asked that the jury be instructed to disregard the statement concerning access to medical witnesses because he was prevented from introducing expert medical testimony by the ruling on the plaintiff's pre-trial motion. The court overruled the objection. Plaintiff's attorney resumed his argument and subsequently added:

I submit, if this hospital with all its medical abilities and facility couldn't bring somebody in here, one doctor, and state a hypothetical and say this came from a neuropathy, it didn't come from a shot in the arm, then I don't know who could. And there isn't a...