Grab ex rel. Grab v. Dillon

• Court: Missouri Court of Appeals
• Writing for the Court: Mary R. Russell
• Citation: Grab ex rel. Grab v. Dillon, 103 S.W.3d 228 (Mo. App. 2003)
• Decision Date: 18 February 2003
• Docket Number: No. ED 81073.,ED 81073.
• Parties: Nicholas GRAB, by and through his Next Friends, Andrew GRAB and Michelle Grab, and Andrew Grab and Michelle Grab, individually, Appellants, v. Patrick A. DILLON, M.D., Cardinal Glennon Children's Hospital, and Saint Louis University, Respondents.

103 S.W.3d 228

Nicholas GRAB, by and through his Next Friends, Andrew GRAB and Michelle Grab, and Andrew Grab and Michelle Grab, individually, Appellants, v. Patrick A. DILLON, M.D., Cardinal Glennon Children's Hospital, and Saint Louis University, Respondents.

No. ED 81073.

Missouri Court of Appeals, Eastern District, Division Three.

February 18, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 2003.

Application for Transfer Denied May 27, 2003.

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Drew C. Baebler, Michael L. Nepple, St. Louis, MO, for appellants.

Timothy J. Gearin, Cynthia A. Sciuto, Jeffrey T. McPherson, St. Louis, MO, for respondents.

MARY R. RUSSELL, Presiding Judge.

Andrew and Michelle Grab ("Parents"), individually and as next friends for Nicholas Grab, appeal from a judgment entered on a jury verdict rendered in favor of Patrick A. Dillon, M.D., Cardinal Glennon Children's Hospital, and Saint Louis University (collectively "Defendants").¹ On appeal, Parents assert the trial court erred in (1) failing to invoke "the rule" excluding witnesses from the courtroom, (2) refusing to admit into evidence a letter from one of Parents' experts, and (3) failing to grant a new trial for juror misconduct during voir dire. We find no error and affirm.

Seven weeks after the birth of their son, Nicholas, Parents noticed swelling in his scrotal area. They took him to see Dr. Dillon, a pediatric surgeon at Cardinal Glennon Children's Hospital. Upon examining Nicholas, Dr. Dillon noted that he had swelling in his scrotum caused by a hydrocele, which is an accumulation of fluid in a sac around the testicle. Nicholas had swelling on both sides of his scrotum, and Dr. Dillon recommended that a bilateral hydrocele operation be performed.

A brief discussion of anatomy is important for a full understanding of this case. During development in a male fetus, the testicles travel from the abdominal area through the processus vaginalis into the scrotum. The processus vaginalis is a lining that runs from the abdominal cavity into the scrotum. Once the testicles have moved into the scrotum, the processus vaginalis seals. If the processus vaginalis fails to seal, fluid from the abdominal cavity can travel and accumulate in the scrotum. During a hydrocele operation, the connection between the abdominal cavity and the scrotum is sealed and the fluid is drained from the sac around the testicles.

After surgery, specimens removed from Nicholas were sent to pathology. Dr. Dillon was informed that the slides appeared to contain epididymis, indicating that the epididymis had been transected during surgery. The head of the epididymis contains numerous channels that eventually become the single channel known as the vas deferens. The vas deferens is the channel that sperm travel through after being created in the testicle.

Depending on the location of the transection of the epididymis, sterility could result. Transection at the head of the epididymis might not cause sterility because the head has numerous channels to support sperm travel to the vas deferens. A cut that occurs lower on the epididymis, where the channels form one duct, is more likely to result in sterility. The epididymis must be transected on both sides, however, for sterility to occur.

Parents filed this medical malpractice suit individually, and on behalf of their minor son, Nicholas, in the circuit court of the City of St. Louis. Parents alleged that Defendants negligently transected the left and right sides of Nicholas' epididymis thereby rendering him sterile.

At trial, Parents introduced evidence from numerous pathologists and surgeons that the slides from Nicholas' surgery contained epididymis and that Dr. Dillon deviated from the standard of care. Defendants presented evidence from other pathologists and surgeons that Dr. Dillon did not deviate from the standard of care because the slides did not show epididymis, but rather embryonal remnants, which are small, non-functioning portions of tissue from gestation. Experts from both sides testified that it is difficult to distinguish true epididymis from embryonal remnants and that there would be no way to definitively know whether Nicholas was rendered sterile until he reached puberty. The jury returned a verdict for Defendants, and Parents now appeal from that verdict.

I. Court Denied Invoking "The Rule"

In their first point on appeal, Parents allege the trial court erred in failing to invoke "the rule" excluding witnesses from the courtroom. Parents argue that the denial of their request resulted in Defendants' expert, Dr. Baird Smith ("Expert"), being in the courtroom while defendant Dr. Dillon was testifying. Parents argue that the court's ruling allowed Expert to change his trial testimony from that given in his deposition based on hearing Dr. Dillon's testimony.

Prior to trial, neither party requested that witnesses be excluded from the courtroom while other witnesses were testifying. After Parents had presented their case to the jury and Defendants had put on their first witness, Parents moved to exclude Expert from the courtroom during Dr. Dillon's testimony. The trial court overruled Parents' motion, finding in part that no one had requested invoking "the rule" before commencement of the case.

A. Evolution of "The Rule"

Parents' attorney's request that "the rule" be invoked to exclude witnesses from the courtroom is an established practice by trial attorneys. Most attorneys, when seeking to invoke "the rule," however, do not cite to any statutory or common law authority. Although "the rule" has long been a part of Missouri law, no cases contain a discussion of the inception of "the rule" or of its integration into the laws of this state.

The practice of separating witnesses in both criminal and civil trials for the purpose of "the discovery of truth and the detection and exposure of falsehood" is thought to be of the same antiquity as judicature itself, having long been administered in the British Parliament and the courts of both England and Scotland. 1 S.D. THOMPSON, THOMPSON ON TRIALS, sections 275-76, at 283-84 (1912). Its ancient roots lie in the Germanic common law. 6 JOHN H. WIGMORE, WIGMORE ON EVIDENCE section 1837, at 456 (1976).

As trial by jury gained popularity as a mode of trial in England after the 1400s and reliance by jurors on the testimony of witnesses became paramount, it was quite natural that the practice of excluding witnesses under certain conditions would be continually applied in English courts.² Commenting on the evolution of this ancestor to "the rule," Wigmore remarked: "There is perhaps no testimonial expedient which, with as long a history, has persisted in this manner without essential change." Id.

With the spread of printing and the popularity of the Bible in the early 17th century, litigants frequently based their arguments for the exclusion of witnesses from the courtroom by citing the story of Daniel's judgment of Susanna from the Book of Susanna contained in the Book of the Apocrypha.³ In this book, two elders coveted Susanna. Susanna 1:8. They blackmailed her by stating that if she did not sleep with them, they would bear false witness against her and charge her with adultery. Id. at 1:21. When she resisted, the two elders plotted against her and testified about her adulterous behavior. Id. at 1:27-40. The assembly believed the elders and condemned Susanna to death. Id. at 1:41. As she was being led to her death, Daniel came to her rescue. Id. at 1:45-46. He exclaimed to the assembly:

Put these two aside one far from another, and I will examine them. So when they were put asunder one from another, he called one of them, and said unto him .... [n]ow then, if thou hast seen her, tell me, Under what tree sawest thou them companying together? Who answered, Under a mastick tree.... So he put him aside, and commanded to bring the other, and said unto him .... [n]ow therefore tell me, Under what tree didst thou take them companying together? Who answered, Under an holm tree .... With that all the assembly cried out with a loud voice, and praised God, who saveth them that trust in him. And they arose against the two elders for Daniel had convicted them of false witness by their own mouth ....

Id. at 1:51-61.⁴

Under early English doctrine, a motion to exclude witnesses was not grantable as of right, but rather at the discretion of the trial court. Rex v. Cook, 13 How. St. Tr. 348 (1696) noted in 1 SIMON GREENLEAF, THE LAW OF EVIDENCE, section 432, at 551 n. 1 (6th ed. 1852) (finding a motion to exclude witnesses to be grantable of favor only and at the discretion of the trial court).

As part of the common law of England, "the rule" was formally received into the law of the Territory of Missouri in 1816.⁵ When Missouri achieved statehood in 1821, the English common law was similarly integrated into the laws of the state. Section 1.010 RSMo 2000.⁶

Application of "the rule" began appearing in Missouri case law by the early 19th century. See State v. Hughes, 71 Mo. 633, 636 (Mo.1880) (finding that court may, in its discretion, exclude witness from courtroom as it sees fit in order to meet the requirements of justice in each particular case); Keith v. Wilson, 6 Mo. 435, 441-42 (Mo.1840) (holding that court did not err in failing to exclude witness who had remained in courtroom while another witness testified despite having been "put under the rule"); King v. State, 1 Mo. 717, 718 (Mo.1827) (concluding that court's refusal to put witness under "the rule" was rightful exercise of discretion and was not error). In State v. Compton, 317 Mo. 475, 296 S.W. 137 (1927), the Supreme Court of

Missouri stated that "it was early held in this State that putting witnesses under the rule rests in the sound discretion of the trial court." Id. at 138.

The supreme court explained the logic of following the...