Linton v. Carter

• Decision Date: 23 November 2021
• Docket Number: No. SC 98888,SC 98888
• Citation: 634 S.W.3d 623
• Parties: Nicholas LINTON, BY AND THROUGH his mother and next friend, Arica LINTON, Appellant, v. Amy S. CARTER, D.O., and Ferns, Matile, Perryman & Moore, et al., Respondents.
• Court: Missouri Supreme Court

634 S.W.3d 623

Nicholas LINTON, BY AND THROUGH his mother and next friend, Arica LINTON, Appellant,

v.Amy S. CARTER, D.O., and Ferns, Matile, Perryman & Moore, et al., Respondents.

No. SC 98888

Supreme Court of Missouri, en banc.

Opinion issued November 23, 2021

Linton was represented by Paul L. Redfearn, Michael D. Wallis and J. LeAnn Friel of The Redfearn Law Firm PC in Lee's Summit, (816) 421-5301.

Robin Ransom, Judge

Nicholas Linton (Linton)¹ appeals from the circuit court's judgment in favor of Dr. Amy S. Carter; Ferns, Matile, Perryman and Moore ("Ferns"); Dr. Scott E. Gray; and Saint Luke's Hospital of Kansas (collectively, "Defendants"). Linton claims the circuit court abused its discretion by allowing Dr. William Rhine, an expert witness, to testify regarding alternative causes of Nicholas’ injury. Finding no abuse of discretion, this Court affirms the circuit court's judgment.

Factual and Procedural Background

In April 2008, Arica went into premature labor with her son, Nicholas. Dr. Carter, the obstetrician/gynecologist on call at St. Luke's, treated Arica. Finding no emergency, Dr. Carter attempted to delay Arica's labor and administered medication intended to minimize the risks to Nicholas of being born pre-term. Dr. Carter also consulted with Dr. Gray, who performed a growth ultrasound. Dr. Gray recommended Nicholas be delivered as soon as possible. Pursuant to Dr. Gray's advice, Dr. Carter planned to deliver Nicholas as soon as one of St. Luke's non-emergency procedure rooms became available.

While waiting for a non-emergency procedure room to become available, Arica's membranes containing amniotic fluid ruptured compressing the umbilical cord. Consequently, Dr. Carter transferred Arica to a procedure room and performed an emergency cesarean section. Nicholas was delivered 18 minutes after Arica's membranes ruptured. At birth, Nicholas was bluish in color with little respiratory effort and a weak cry. He was admitted to the neonatal intensive care unit because of his prematurity and respiratory distress.

Nicholas also suffered a laceration to his thigh during the cesarean section. During surgery to treat the laceration, Nicholas experienced an episode of low blood pressure and difficulty breathing, which resulted in low blood gas readings. Approximately one year later, Nicholas was diagnosed with a white matter brain injury known as periventricular leukomalacia ("PVL"). As a result of his PVL, Nicholas suffers from spastic diplegia, a form of paralysis affecting his ability to move his upper and lower extremities.

In August 2016, Linton filed his second amended petition against Defendants, alleging they failed to: (1) timely and adequately examine, diagnose, and treat the Lintons; (2) timely deliver Nicholas; (3) timely perform a cesarean section ; (4) protect Nicholas from umbilical cord compression; and (5) diagnose and treat fetal distress.

Numerous depositions occurred prior to trial. Significantly, Linton deposed Dr. Rhine. Dr. Rhine is a neonatologist who testified as an expert witness on behalf of Defendants. No other neonatologist testified as an expert witness. The pertinent testimony from Dr. Rhine's deposition follows:

[Linton's Counsel]: Do you have an opinion based upon a reasonable degree of medical certainty as to whether Nicholas Linton suffered [PVL] or injury to the white matter of his brain before birth?

[Dr. Rhine]: No.

[Linton's Counsel]: Do you have an opinion based upon a reasonable degree of medical certainty as to whether he suffered injury. Suffered [PVL] or injury to the white matter in his brain after the birth?

[Dr. Rhine]: No. I know it's one of the two. I know it's one of the two, either before or after or a combination.

[Linton's Counsel]: Do you have an opinion that you can state to a reasonable degree of medical certainty whether it is before or after or a combination?

[Dr. Rhine]: Nope.

Based on Dr. Rhine's deposition testimony, Linton filed a motion in limine to prevent Dr. Rhine's alternative causation testimony. Linton argued Dr. Rhine's alternative causation testimony was not given to a reasonable degree of medical certainty. At a pretrial hearing on the motion, Defendants argued Dr. Rhine should be allowed to provide expert testimony as to alternate causes of Nicholas’ injury without providing an opinion as to which cause was the actual cause. With the circuit court's approval, Defendants filed additional briefing in support of their position. Defendants claimed that, while a plaintiff's expert must state the specific cause of injury to a reasonable degree of medical certainty, defense experts are not held to the same rule because they do not bear the burden of proof and need not specify the exact cause of a plaintiff's injuries. Additional argument regarding Linton's motion in limine was held on the morning of the first day of trial. Ultimately, the circuit court allowed Dr. Rhine to testify during trial.

Both sides presented extensive expert testimony during a two-week jury trial in 2018. In total, Defendants presented testimony from five expert witnesses, including Dr. Rhine and Dr. Paul Levinsohn. During the trial, Dr. Rhine agreed to confine his opinions to those he could state to a reasonable degree of medical certainty. Dr. Rhine provided detailed testimony disputing Linton's theory of causation.² For example, Dr. Rhine testified Nicholas’ early breathing difficulties and appearance were typical of significantly premature newborns and not indicative of a recent brain injury. Thereafter, Defendants’ counsel asked Dr. Rhine to discuss other more likely causes of Nicholas’ PVL. Defendants’ counsel also reiterated to Dr. Rhine that his opinions were to be confined to those he could state to a reasonable degree of medical certainty. Dr. Rhine stated, "So I wish I could tell you with certainty that I knew exactly where his [PVL] comes from, but I can't and I don't think anybody can. We have learned more over the years about this proble[m], but there are still some questions that are unanswered." Dr. Rhine then testified Nicholas’ prematurity, placental abnormalities, low blood pressure and low carbon dioxide in the blood were all potential sources of his PVL. Dr. Rhine concluded, "I can say one or more of these, I think to a reasonable medical certainty, was the cause ...."

Dr. Levinsohn, a pediatric neurologist, also testified regarding alternative causes of Nicholas’ PVL. Specifically, Dr. Levinsohn stated, "So it is hard to say it's one or the other, but it is clearly not something that occurred at birth and it could be one or both post-natal or intrauterine injury." Linton did not object to Dr. Levinsohn's testimony.

In closing argument, Defendants disputed Linton's theory of causation and twice mentioned Dr. Rhine's alternative causation testimony. Ultimately, the jury returned a verdict in Defendants’ favor. Linton appeals.³

Standard of Review

Expert testimony in civil cases is inadmissible unless it satisfies the evidentiary requirements of section 490.065.⁴ Kivland v. Columbia Orthopaedic Grp., LLP , 331 S.W.3d 299, 310 (Mo. banc 2011). "This Court reviews a circuit court's decision to admit or exclude expert testimony for an abuse of discretion." Spalding v. Stewart Title Guar. Co. , 463 S.W.3d 770, 778 (Mo. banc 2015). A circuit court abuses its discretion when its "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." Shallow v. Follwell , 554 S.W.3d 878, 881 (Mo. banc 2018) (internal quotation marks omitted). "If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion." In re Care & Treatment of Donaldson , 214 S.W.3d 331, 334 (Mo. banc 2007). This Court will not reverse a "circuit court's judgment unless the error materially affected the merits of the action." Shallow , 554 S.W.3d at 881.

Analysis

Linton claims the circuit court abused its discretion by admitting Dr. Rhine's testimony because: (1) alternative causation testimony is inadmissible; and (2) Dr. Rhine's alternative causation testimony was not given to a reasonable degree of medical certainty. Defendants reply: (1) the circuit court did not abuse its discretion because alternative causation testimony is admissible and Dr. Rhine's testimony was not contradictory; and (2) Linton failed to show Dr. Rhine's testimony resulted in prejudice.

This Court held alternative causation testimony to be admissible in both Lands v. Boyster , 417 S.W.2d 942 (Mo. 1967), and Kimmie v. Terminal Railroad Ass'n of St. Louis , 334 Mo. 596, 66 S.W.2d 561 (1933). In Lands , Ms. Lands was involved in a car crash with Erastus Boyster. 417 S.W.2d at 944. Lands went into premature labor following the crash. Id. Her newborn died several hours later. Id. Lands sued Boyster, seeking to recover damages for her newborn's death. Id. During trial, Boyster's expert witness testified Lands's preexisting medical condition could have caused her newborn's premature delivery and death. Id. at 945. Lands claimed the admission of Boyster's expert's testimony was in error because, among other things, "it permitted an opinion based upon mere conjecture." Id. This Court disagreed, stating:

Defendant had no burden to disprove plaintiffs’ case, but was entitled to show all possible causes of Lands's condition. It was not improper, therefore, for defendant to ask his expert witness if a condition, assumed from other evidence, might, could, or would produce a certain result, because an expert's view of possibility or probability is often helpful to the jury and proper even though such assurance of possibility would not of itself be sufficient to make a submissible case for one having the burden of proof.

Id.

In reaching its holding, Lands relied on Kimmie . See 66 S.W.2d 561. In Kimmie , an engineer fell...