Mansil v. Midwest Emergency Med. Servs., P.C., WD 79994

• Court: Missouri Court of Appeals
• Writing for the Court: Mark D. Pfeiffer, Chief Judge
• Citation: 554 S.W.3d 471
• Parties: Shelly Denise MANSIL, Personal Representative of the Estate of Johnna Hughes, Deceased, Respondent, v. MIDWEST EMERGENCY MEDICAL SERVICES, P.C. and Brandie A. Niedens, M.D., Appellants.
• Docket Number: WD 79994
• Decision Date: 29 May 2018

554 S.W.3d 471

Shelly Denise MANSIL, Personal Representative of the Estate of Johnna Hughes, Deceased, Respondent,
v.
MIDWEST EMERGENCY MEDICAL SERVICES, P.C. and Brandie A. Niedens, M.D., Appellants.

WD 79994

Missouri Court of Appeals, Western District.

OPINION FILED: May 29, 2018
Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2018
Application for Transfer Denied September 25, 2018

Russell S. Dameron and Kathleen M. Hagen, Kansas City, MO, Attorneys for Respondent.

T. Michael Ward, Teresa M. Young, and Brianne E. Madden, St. Louis, MO, Attorneys for Appellants.

Before Division IV: Mark D. Pfeiffer, Chief Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges

Mark D. Pfeiffer, Chief Judge

554 S.W.3d 473

Midwest Emergency Medical Services, P.C. and Dr. Brandie Niedens appeal from the judgment of the Circuit Court of Clay County, Missouri ("trial court"), denying their motion for new trial on the wrongful death claim of Ms. Johnna Hughes ("Ms. Hughes"), for the death of her baby. We affirm.

Factual and Procedural Background¹

Ms. Hughes went to North Kansas City Hospital ("Hospital") in Kansas City, Missouri, in September of 2010 for treatment of abdominal pain. At the time, she was 35 weeks pregnant. Ms. Hughes’s pregnancy had been deemed high risk due to her age and her pre-existing blood clotting disorder. Dr. Brandie Niedens, M.D., an employee of Midwest Emergency Medical Services, P.C. ("Midwest") was Ms. Hughes’s attending physician at the Hospital.

Dr. Niedens ordered pain medication, nausea medication, IV fluids, laboratory blood tests, and an abdominal ultrasound for Ms. Hughes. After Dr. Niedens’s interpretation of the ultrasound as a "resolving hematoma" which, in fact, was not resolving but continuing to bleed internally, Ms. Hughes was discharged by Dr. Niedens. Approximately one day later, Ms. Hughes’s baby died from complications related to the internal bleeding.

In September of 2012 and relevant to this appeal, Ms. Hughes filed a wrongful death petition for damages against, among others, Midwest and Dr. Niedens. Ms. Hughes claimed, in part, that Dr. Niedens’s conduct in not having Ms. Hughes admitted to the Hospital for monitoring of the hematoma was negligent and caused the wrongful death of her unborn baby.

The case proceeded to trial in May of 2016. Ms. Hughes presented the testimony of Dr. Kurt Krueger, Ph.D., an expert economist who testified about economic damages arising from the death of Ms. Hughes’s baby. Midwest and Dr. Niedens objected to Dr. Krueger’s testimony, arguing that it lacked foundation and the trial court overruled the objection and permitted Dr. Krueger’s testimony. At the close of trial, the jury returned a verdict in favor of Ms. Hughes and against Midwest and Dr. Niedens on the wrongful death claim for, in relevant part, economic damages in the amount of $125,000.² Midwest and Dr. Niedens timely filed their motion for new trial. The trial court denied the motion for new trial, after which Midwest and Dr. Niedens timely filed their notice of appeal.³

Discussion

In their sole point on appeal, Midwest and Dr. Niedens argue that the trial court erred in admitting Dr. Krueger’s expert testimony regarding the calculation of Ms. Hughes’s pecuniary losses regarding her wrongful death claim because they argue it lacked foundation. Specifically, they argue

554 S.W.3d 474

that Dr. Krueger’s testimony was based on an erroneous application of presumed pecuniary losses pursuant to section 537.090.⁴

Dr. Krueger’s Testimony and the Jury’s Economic Damages Award

Relevant to this appeal, Dr. Krueger described his economic damages calculation pursuant to section 537.090. Section 537.090 reads, in pertinent part:

In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss.... If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income , but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.

(Emphasis added.)

Dr. Krueger understood the plain language of section 537.090 to mean "[t]hat the annual pecuniary loss suffered by the reason of a death of a minor child is equal to the annual income of the deceased[’s] parent[ ]." He thus applied the statutory provision by "tak[ing] what the parent is earning with what their income is and I project that as a pecuniary loss starting upon the date of death through the life expectancy of the parent." Dr. Krueger then explained that he discounted this figure to arrive at his present valuation of these economic losses. For this measure of pecuniary losses, Dr. Krueger reached figures of $49,132 in past economic losses and $294,856 in future annual pecuniary losses, for a combined total of $343,988. Dr. Krueger then went on to testify that he believed the section 537.090 presumed pecuniary loss amount was low and did not appropriately account for other household consumption items. Conversely, counsel for Midwest and Dr. Niedens cross-examined Dr. Krueger and pointed out that the section 537.090 presumed pecuniary loss figure calculated by Dr. Krueger should be decreased since it assumed wage earning by an infant, which was unrealistic. Thus, both sides were permitted to rebut the section 537.090 presumed pecuniary loss calculation at trial.

The jury’s itemized verdict as to Ms. Hughes’s wrongful death claim awarded her $25,000 for past economic damages and $100,000 for future economic damages, for a combined total of $125,000 in economic damages, a figure much less than the section 537.090 presumed pecuniary loss calculation presented by Dr. Krueger.

Standard of Review

The admissibility of expert testimony in Missouri civil cases is controlled by section

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490.065. Kivland v. Columbia Orthopaedic Grp., LLP , 331 S.W.3d 299, 310 (Mo.banc 2011). Section 490.065 directs the trial court to determine whether "(1) the expert is qualified; (2) the expert’s testimony will assist the trier of fact; (3) the expert’s testimony is based upon facts or data that...