Kelly by Kelly v. Jackson, OB-GYN

• Decision Date: 20 November 1990
• Docket Number: No. 72653,OB-GYN,72653
• Citation: 798 S.W.2d 699
• Parties: Che KELLY, by Her Next Friend, Vera KELLY and Vera Kelly, Plaintiffs-Appellants, v. Darwin JACKSON, M.D., Jonathan R. Reed,Services, Inc., A Professional Corporation, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 699

798 S.W.2d 699

Che KELLY, by Her Next Friend, Vera KELLY and Vera Kelly Plaintiffs-Appellants, v. Darwin JACKSON, M.D., Jonathan R. Reed, OB-GYN Services Inc., A Professional Corporation, Defendants-Respondents.

No. 72653.

Supreme Court of Missouri En Banc.

Nov. 20, 1990.

Rehearing Denied Dec. 18, 1990.

Douglas P. Dowd, St. Louis, for plaintiffs-appellants.

Anthony R. Behr, Marlene E. Ernst, Clayton, M. Jane Schweitzer, William L. Davis, Robyn Fox, St. Louis, for defendants-respondents.

COVINGTON, Judge.

Che Kelly, by her next friend, and her mother, Vera Kelly, brought a medical malpractice action against Darwin Jackson, M.D., and Jonathan R. Reed, OB/GYN Services, Inc., for injuries sustained by Che Kelly during her birth. The court entered a verdict for defendants. The court of appeals reversed and remanded, finding that the trial court committed reversible error when it denied plaintiffs' counsel the opportunity to argue an adverse inference from defendants' failure to call a witness. This Court granted transfer. The judgment of the trial court is affirmed.

Vera Kelly was first referred to Dr. Jonathan Reed in December of 1983. He examined her and fixed her expected delivery date at June 23, 1984. Vera Kelly made several prenatal visits to Dr. Reed's office. Dr. Reed usually attended to Vera Kelly, but on two occasions his associate, Dr. Jackson, saw her instead.

Che Kelly was born on June 24, 1984. She was delivered by Dr. Jackson, who was "on call" that day. During delivery Che Kelly encountered shoulder dystocia, a condition in which the child's shoulder is caught behind the mother's symphysis pubis bone. When shoulder dystocia occurs there is a risk of the umbilical cord prolapsing, and brain damage will result if the child is not delivered quickly. During Che's delivery, lateral flexion caused a severed brachial plexus resulting in a permanent condition of Klumpke-Erb's palsy, or partial paralysis of Che's right arm.

In their first point plaintiffs contend that the trial court erred in refusing to permit plaintiffs to argue an adverse inference from defendants' decision not to call Dr. Reed to testify. Plaintiffs contend that as the president and sole owner of the corporation of which Dr. Jackson was an employee at the time of the delivery, Dr. Reed was not an "equally available" witness.

Failure of a party to call a witness who has knowledge of facts and circumstances vital to the case generally raises a presumption that the testimony would be unfavorable to the party failing to offer the testimony. Leehy v. Supreme Exp. & Transfer Co., 646 S.W.2d 786, 790 (Mo. banc 1983). To allow reference in closing argument to a party's failure to produce a witness is reversible error if the witness is equally available to both parties. Id. Similarly, it is prejudicial error for the trial court not to sustain an objection to an improper argument. Id.

The rule's origin predates modern rules of discovery. Chavaries v. Nat'l Life & Accident Ins. Co. of Tennessee, 110 S.W.2d 790, 794 (Mo.App.1937). The eastern district of the court of appeals recently observed that with the advent of modern discovery, application of the rule has become more difficult. Routh v. St. John's Mercy Medical Center, 785 S.W.2d 744, 747 (Mo.App.1990). Earlier cases enunciated inflexible rules. One rule held an employee necessarily more available to his employer merely because of that status. Duboise v. Railway Express Agency, 409 S.W.2d 108, 114 (Mo.1966). Another held that a party's treating and examining physician is necessarily more available to that party. Richardson v. Wendel, 401 S.W.2d 455, 460 (Mo.1966). In 1978, in Midwest Library Serv. v. Structural Syss., 566 S.W.2d 249, 252 (Mo.App.1978), the court held that deposing the witness made the witness "equally available" to both parties thereby destroying the inference and its arguability.

The rules relating to adverse inference arguments were modified in 1979 when this Court set forth in Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979), a balancing test on the question of "equal availability." The question depends on several factors, three of which include: (1) one party's superior means of knowledge of the existence and identity of the witness; (2) the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case; and (3) the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of the one party against the other. Hill v. Boles, 583 S.W.2d at 145-46.

In 1983, recognizing the appropriateness of a closer examination of the "equal availability" cases upon their own individual facts and circumstances, this Court specifically rejected the "extreme holdings" of earlier cases, noting the "impracticability of inflexible rules." Leehy v. Supreme Exp. & Transfer Co., 646 S.W.2d at 790, n. 4. Application of the Hill v. Boles factors should operate either "to solidify or dispel" any presumption of availability arising from special relationships of a party and a witness, depending upon circumstances shown in evidence in a particular case. Id.

Application of the Hill v. Boles factors does not occur in a vacuum. The general rule relating to availability assumes that the witness has knowledge of facts and circumstances "vital to the case." In the present case, the issue is negligence during delivery of the child, and the facts and circumstances vital to the case are those that bear on the question of negligence of Dr. Jackson during delivery. Dr. Reed was not present during labor and delivery. Any relevant evidence that he might offer, therefore, would necessarily be limited to testimony given in his capacity as an expert witness, in his capacity as employer of Dr. Jackson at the time of the delivery, or, perhaps, in his capacity as treating physician of Vera Kelly.

The first Hill v. Boles factor is not at issue in this case. As in Leehy, the second and third factors are related. It might be expected that Dr. Reed would testify in favor of defendants. He was endorsed by defendants as an expert on liability, causation, and damages. He was president and sole owner of the defendant corporation of which Dr. Jackson was an employee at the time of the delivery. A judgment against the defendant-corporation could conceivably carry unfavorable consequences for Dr. Reed. Plaintiffs' allegations of unequal availability in major part rest upon these observations.

Under the law as it has developed, however, plaintiffs cannot simply assume a finding of unequal availability upon their mere allegations. This is so particularly in light of the fact that plaintiffs extensively deposed Dr. Reed and made use of his deposition testimony at trial. While deposing a witness does not ultimately make the witness equally available, Leehy, 646 S.W.2d at 790, n. 4, the circumstances shown in evidence in this case as they relate both to the substance of the plaintiffs' deposition of Dr. Reed and to the plaintiffs' use of Dr. Reed's deposition at trial serve to "dispel any presumption of availability arising from the special relationship" of defendants to Dr. Reed under application of the second and third Hill v. Boles factors.

Of the seventy-six pages of the deposition taken of Dr. Reed by the plaintiffs, the actual testimony of Dr. Reed constitutes approximately fifty-six pages. Plaintiffs generally treat Dr. Reed as an expert. Plaintiffs direct their questions to the appropriateness of the procedures used by Dr. Jackson during delivery. The deposition confirms that Dr. Reed was not present during delivery and had no personal or direct knowledge of the labor and delivery. Dr. Reed's testimony throughout is that he had no criticism of any of Dr. Jackson's actions based upon Dr. Reed's review of delivery records and Dr. Jackson's deposition.

During the second day of trial, plaintiffs' attorney proceeded to read portions of Dr. Reed's deposition to the jury. Commencing with the earliest pages of the deposition, plaintiffs' counsel read selectively through page fifty-nine, highlighting portions of Dr. Reed's testimony regarding the forceps delivery that plaintiffs hoped might cast doubt on the standard of care rendered by Dr. Jackson. It has been said, and it is appropriate to repeat under the circumstances of this case, that a party may not have the advantage of an adverse inference while benefiting by reading favorable portions of the witness' deposition to the jury. Bostwick v. Freeman, 349 Mo. 1, 160 S.W.2d 713, 718 (1942). Plaintiffs sought to benefit from the deposition they had taken of Dr. Reed.

Plaintiffs do not suggest in what manner Dr. Reed was available to defendants but not available to plaintiffs, nor do they intimate what testimony of Dr. Reed might have harmed defendants--what "vital facts and circumstances" related to the question of negligence were not available to plaintiffs under these circumstances. Plaintiffs not only deposed Dr. Reed as defendants' expert but also took opportunity in deposition to inquire into any conversation Dr. Reed may have had with Dr. Jackson. Dr. Reed responded that he discussed the delivery with Dr. Jackson, that Dr. Jackson described what occurred at delivery and the maneuvers and techniques he used to deliver the infant. Upon inquiry by plaintiffs, Dr. Reed stated that he took no issue with the medical procedures employed by Dr. Jackson. Plaintiffs inquired no further. Nothing in the deposition indicates that Dr. Reed was evasive or uncooperative in discussing the procedures used by his former employee. Under these circumstances there is nothing to suggest Dr. Reed's knowledge of the vital facts and circumstances relevant to delivery was not equally available to plaintiffs.

Pl...