Linton v. Carter

Decision Date10 November 2020
Docket NumberWD82637
CourtMissouri Court of Appeals
PartiesNICHOLAS LINTON, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, ARICA LINTON, Appellants, v. AMY S. CARTER, D.O. AND FERNS, MATILE, PERRYMAN & MOORE, ET AL., Respondents.

NICHOLAS LINTON, BY AND THROUGH HIS MOTHER AND
NEXT FRIEND, ARICA LINTON, Appellants,
v.
AMY S. CARTER, D.O. AND FERNS,
MATILE, PERRYMAN & MOORE, ET AL., Respondents.

WD82637

Missouri Court of Appeals Western District

November 10, 2020


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Bryan Round, Judge

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

Nicholas Linton1 ("Nicholas") appeals from the judgment of the Circuit Court of Jackson County ("trial court"), which following a jury trial found in favor of Respondents Dr. Amy Carter, ("Dr. Carter"); Dr. Scott Gray, ("Dr. Gray"); Ferns, Matile, Perryman, and Moore ("Ferns"); and Saint Luke's Hospital of Kansas City ("St. Luke's") (collectively

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"Respondents"). This appeal addresses the application of section 490.065.2 and evidentiary rules regarding the admissibility of expert witness testimony to different parties based upon which party bore the burden of proof on an issue. The statutory requirements and evidentiary rules are the same for all parties, and the trial court's conclusion otherwise was an outcome determinative error in this case. We reverse and remand for a new trial.

Factual and Procedural Background2

On April 7, 2008, Arica Linton was 29.5 weeks pregnant with Nicholas and presented to St. Luke's in pre-term labor. Dr. Carter3 was the obstetrician/gynecologist on call at St. Luke's who treated Arica and Nicholas. Dr. Carter attempted to stop Arica's labor and administered steroids to encourage Nicholas's lung development. Dr. Carter also consulted with Dr. Gray, a Maternal Fetal Medicine Specialist who treats high risk obstetrical issues, who performed a growth ultrasound. Dr. Gray concluded that Nicholas was in a breeched position and had a funic presentation.4 Dr. Gray recommended that Nicholas be delivered as soon as possible, and relying on that recommendation, Dr. Carter began to prepare for a Cesarean section.

St. Luke's has three procedure rooms available for Cesarean sections, and their practice is to leave one procedure room open for emergencies. When Dr. Carter called Labor and Delivery, two of the rooms were being used for non-emergency Cesarean sections, and Dr. Carter could not use the third room unless she declared Arica and

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Nicholas's situation an emergency. While waiting for a non-emergent procedure room, Arica's membranes containing amniotic fluid ruptured and compressed the umbilical cord, and at that point, Dr. Carter transferred her to a procedure room and performed an emergency Cesarean section. At the time of birth, Nicholas was "dusky" (bluish in color) with little respiratory effort and a weak cry. Nicholas was resuscitated and intubated. Nicholas was admitted to the neonatal intensive care unit ("NICU") with a diagnosis of prematurity and respiratory distress.

During the Caesarean section, Nicholas sustained a laceration to his upper thigh, which was treated by a subsequent surgery, and during this surgery, Nicholas experienced an episode of low blood pressure and difficulty breathing, which resulted in abnormally low blood gas readings. Approximately one year later, Nicholas was confirmed to have suffered a brain injury called Periventricular Leukomalacia ("PVL"), which caused spastic diplegia, which impacts his ability to move his lower and upper extremities.

On August 9, 2016, the Lintons filed an amended petition alleging that Respondents failed to: (1) timely and adequately examine, diagnose, and treat the Lintons, (2) timely deliver Nicholas, (3) timely perform a Cesarean section, (4) protect the baby from the umbilical cord compression, and (5) diagnose and treat fetal distress. A jury trial was held from October 29, 2018, through November 9, 2018.

The issue raised in this appeal is directed at the testimony of Dr. William Rhine ("Dr. Rhine") who testified as an expert on behalf of Respondents. Dr. Rhine is a neonatologist. Of significance, Dr. Rhine was the only neonatology expert witness who testified at trial.

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The Lintons deposed Dr. Rhine on June 20, 2017, and Dr. Rhine's relevant deposition testimony was as follows:

[Lintons' 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.

Q. 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?

A. No. I know it's one of the two. I know it's one of the two, either before or after or a combination.

Q. 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?

A. Nope.

Based on this deposition testimony, the Lintons filed a motion in limine to preclude Dr. Rhine's "alternative causation" testimony on the grounds that his opinions were not stated to a reasonable degree of medical certainty.

The trial court held a pretrial hearing on all of the parties' various motions in limine. At the hearing, Respondents argued that Dr. Rhine's opinion would be that Nicholas's PVL injury was caused prenatal, post-natal or a combination of both but could not say to a reasonable degree of medical certainty which one was the actual cause. Respondents argued that an expert should be allowed to testify as to "alternate causes" of the injury without providing an opinion within a reasonable degree of medical certainty as to which one was the actual cause. Upon questioning by the trial court, the Respondents conceded

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that they had no authority to support this argument. The trial court granted the Respondents additional time to brief the legal issue.

Respondents filed a trial brief arguing for the first time that because they did not bear the burden of proof on the issue of causation that their expert was not "governed by the same rule" as an expert of the party with the burden of proof on a particular issue.

Subsequently, on the morning of the first day of trial, the trial court conducted an additional hearing on the issue of Dr. Rhine's causation testimony. The Lintons made clear that they were not objecting to Dr. Rhine's testimony that to a reasonable degree of medical certainty it was his opinion that the events that happened from the time of the rupture of membranes of the umbilical cord until the time of birth were not the cause of Nicholas's PVL injury. The Lintons' objection was to the additional testimony from Dr. Rhine that the "alternative cause" of the PVL injury may have been caused by (1) other specific events which occurred prenatal, (2) that the cause may have been other specific events which occurred post-natal, or (3) that the cause may have been a combination of the two.

The trial court did not formally rule on the Lintons' motion in limine at the conclusion of the hearing other than stating on the record:

All right, I think that is inappropriate to let it in. It's going to be subject of extensive cross examination, so I would caution- well, you make your objections as you need to make your objections, but I just want everybody to be aware that the plaintiff will be given great latitude in the cross examination they are allowed to do with Doctor Rhine before as we would expect.5

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During the testimony of Dr. Rhine, the Lintons renewed their objection to Dr. Rhine's alternative causation testimony incorporating into the objection all of the previous arguments raised in their Motion in limine, and the trial court overruled the objection. Dr. Rhine was then allowed to testify, over objection, as to "what could be" the source of Nicholas's injuries. When asked about other possible sources of his injuries, Dr. Rhine stated, "So I wish I could tell you with certainty that I knew exactly where his white matter injury comes from, but I can't and I don't think anybody can." He then went on, over objection, to opine that he could not say with a reasonable degree of medical certainty the cause of the PVL injury to Nicholas's brain but speculated as to other possible causes. He stated that placental abnormalities were one source of the kind of injury at issue. Dr. Rhine testified that he could not say with a reasonable degree of medical certainty that an episode of low blood pressure during the subsequent surgery on his leg caused the PVL injury in Nicholas - but low blood pressure is associated with the possibility of an increased risk of a PVL injury and the longer the low blood pressure lasted the more worrisome. He discussed the importance of Nicholas having a low carbon dioxide reading because this was a known risk factor for a PVL injury. Dr. Rhine testified: "[G]eneral anesthesia has an impact on term babies, [it] may on preterm babies. Can I say that that one factor, no, but I know that's an unusual thing that happened in his course that would put him at an increased risk." (emphasis added).

In closing argument, the Respondents focused almost exclusively on the issue of causation and emphasized that Dr. Rhine was the only neonatologist who had testified for

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any party in the case and focused the jury on his testimony regarding "alternative possible causes" of the PVL injury.

The jury returned a verdict in favor of the Respondents and the trial court entered Judgment accordingly. This timely appeal followed.

Standard of Review

Expert witness testimony is inadmissible if the offering party fails to satisfy the statute's foundational requirements. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 173 (Mo. App. W.D. 2006) (overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29, 40 (Mo. banc 2013)). The question of whether the foundational requirements of the statute have been met is a legal issue that we review de novo. Id. Once it is determined that the foundational requirements have been met, it is still...

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