McCormick v. St. Louis University, Inc., 74370.

• Decision Date: 03 June 1999
• Docket Number: No. 74370.,74370.
• Citation: 14 S.W.3d 601
• Parties: Mayme McCORMICK, Respondent, v. ST. LOUIS UNIVERSITY, INC., Appellant.
• Court: Missouri Court of Appeals

14 S.W.3d 601

Mayme McCORMICK, Respondent, v. ST. LOUIS UNIVERSITY, INC., Appellant.

No. 74370.

Missouri Court of Appeals, Eastern District, Division Three.

May 4, 1999.

Motion for Rehearing and/or Transfer Denied June 3, 1999.

Raymond R. Fournie, Ann E. Buckley, Armstrong Teasdale, St. Louis, for appellant.

Michael D. Stokes, Devereaux, Stokes & Nolan, P.C., St. Louis, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 3, 1999.

PAUL J. SIMON, Presiding Judge.

St. Louis University, Inc. (defendant) appeals from an order of the Circuit Court of the City of St. Louis granting a new trial to Mayme McCormick (plaintiff) following the jury's verdict, which was signed by nine jurors, in favor of defendant on plaintiff's claim of medical malpractice.

On appeal, defendant contends that the trial court erred in granting plaintiff's motion for new trial (1) on the ground that one of the jurors "was unable to make a cognizant decision on the evidence" due to "frequent lapses of consciousness" because nothing in the record indicates that the juror dozed at any time following an incident during plaintiff's opening statement; furthermore, by failing to request the juror's removal, plaintiff waived any objection; and (2) because plaintiff failed to present a submissible case against defendant in that no substantial evidence existed to support plaintiff's theory that surgeons failed to make fixed-point measurements. We reverse and remand with directions.

The record includes a transcript of more than 900 pages covering six days of trial. Although we have reviewed the record in its entirety, our recital of the facts will focus on the first point on appeal, which we find to be dispositive.

On November 30, 1992, Drs. Thomas Otto and Dennis Crandall, employees of defendant, performed surgery on plaintiff to replace her right hip. In early December 1992, she complained that her right leg seemed longer than her other leg. She visited Dr. Otto in mid-January 1993, at which time he believed that she might have pelvic tilt. He ordered a scanogram and found a two millimeter difference in the length of her legs. In mid-February 1993, Dr. Kenneth Burkus examined plaintiff and diagnosed pelvic obliquity or tilt of unknown etiology and adult scoliosis. He measured the length of her legs and found a difference of approximately one centimeter. Near the end of March 1993, still feeling some pain near the area of her right hip, she saw Dr. Michael Winer, who also found a difference of about one centimeter. Dr. Winer recommended that she see Dr. Leo Whiteside to address her complaints of continued pain.

Dr. Whiteside first examined her in early April 1993. He performed an examination and found her right leg to be one to one and one-quarter inches longer than the left one. An x-ray later would show the difference to be approximately one centimeter. He referred her to a pain clinic, where doctors ruled out reflex sympathetic dystrophy and recommended that she return to Dr. Whiteside to determine whether surgery would be in order. Dr. Whiteside found that the original hip replacement was performed correctly but that somehow her pelvis had tilted to the right, making her right leg appear to be longer. He agreed to perform revision surgery in mid-May 1993. Thereafter, she returned to the pain clinic to help her deal with continuing discomfort.

On November 15, 1994, plaintiff filed her petition against defendant and Drs. Otto and Crandall. In pertinent part, she alleged that on November 30, 1992, Drs. Otto and Crandall, agents of defendant, acted negligently by failing to reestablish the appropriate length of her leg between her pelvis and femur; as a result, her right leg was rendered one and one-quarter inch longer than her left leg, causing her to undergo additional surgery, hospitalization, and medical care, incur additional medical expenses including expenses for physical therapy, and suffer much pain and limitation of function in her right hip, right leg, and lower back. Defendant and Drs. Otto and Crandall answered by denying her allegations. On May 21, 1997, plaintiff dismissed her claim against Drs. Otto and Crandall and proceeded against defendant on a theory that "the surgeons failed to perform fixed-point measurements to maintain leg length equality during the surgery of November 30, 1992."

Trial commenced on the morning of March 2, 1998. At the conclusion of plaintiff's voir dire, defendant moved to strike some of the panel members for cause. In particular, defendant mentioned venireperson Terry Raff, as follows:

Defendant's attorney: Next one is — though I am not sure. L. Terry Raff, kind of been dozing off through most of the proceedings here. I am not sure if he's going to be able to stay awake during the trial.

THE COURT: I'll pay attention to him more....

* * *

Prior to this point, Raff is mentioned only once in the transcript, when he engaged in a very brief dialogue with plaintiff's attorney regarding Raff's employment. Nothing in the record indicates that Raff slept or dozed prior to the time when defendant mentioned him.

At the conclusion of defendant's voir dire, the trial court offered plaintiff and defendant an opportunity to make additional "cause strikes." After plaintiff moved to strike one of the panel members for cause, defendant again mentioned Raff, as follows:

Defendant's attorney: Judge, I am just not sure. Although I think Mr. Raff, who is the last juror on page one —

THE COURT: I was looking. I didn't see him dozing.

Defendant's attorney: I think it was because of my personality rather than plaintiff's attorney's.

THE COURT: It could be....

* * *

Raff remained on the panel and became a member of the jury. Nothing in the record indicates that Raff slept or dozed before defendant mentioned him to the trial court a second time. In fact, at the conclusion of voir dire, the trial court commended the venire for its attention as follows: "Ladies and gentlemen, your participation was very much appreciated. You are very alert in responding to the questions. So much so that perhaps we are a little behind where we normally are. But that's to your credit, not to your detriment, because it shows that you care." Twelve jurors and one alternate then were seated.

On the morning of the second day of trial, in the middle of plaintiff's opening statement to the jury, the trial court interrupted plaintiff's attorney as follows:

THE COURT: Excuse me just a minute. Mr. Raff. Mr. Raff, are you all right?

JUROR NO. 538 (Terry L. Raff) Yes.

THE COURT: Would you like — would you like a Life Saver or something like that? Would that help you, a little candy or something like that?

JUROR NO. 538 (Terry L. Raff) Oh, no thank you.

THE COURT: Are you having a little trouble staying with us? Are you in some distress or anything?

JUROR NO. 538 (Terry L. Raff) Oh, no.

THE COURT: Okay. Would you like me to pass up one of these? Do you have a favorite color? Can you stay with us?

JUROR NO. 538 (Terry L. Raff) Yeah.

THE COURT: Thank you. Go right ahead. I use — I use Life Savers occasionally if I find myself — particularly after lunchtime. You know, it's only fair after lunchtime to get a little to the point of drowsiness. And I don't want anyone to hesitate, if you want to keep a pack of these in your purse or pocket, why I don't take offense at you using them. Okay? Go right ahead Mr. Stokes. I do apologize.

* * *

This reference to Raff during plaintiff's opening statement on the morning of the second day of trial appears at pages 192 and 193 of the 924-page transcript. A careful review of the transcript reveals that, thereafter, juror Raff was not mentioned again. On the morning of the fourth day of trial, the trial court dismissed the alternate juror for personal reasons related to her employment and continued the trial with the jury of twelve.

During the trial, plaintiff presented her testimony as well as that of Dr. Otto, Dr. Ronald B. Greene, an expert witness, and her daughter. Additionally, plaintiff submitted over thirty exhibits, played the video deposition of Dr. Winer, and read from the deposition of Dr. Barry Feinberg, who treated her at the pain clinic. At the close of plaintiff's evidence, defendant submitted a motion for directed verdict, which the trial court denied.

Defendant presented the testimony of Dr. John Kinney, an employee of defendant who saw plaintiff before and after her initial surgery, Laura Normington, a physical therapist who worked for defendant at the time of plaintiff's initial surgery and assisted plaintiff following that surgery, and Dr. Otto. Additionally, defendant submitted approximately twenty exhibits, read from the depositions of Drs. Crandall, Burkus, and Feinberg, and played the video deposition of Dr. Whiteside. At the close of all the evidence, the defendant submitted another motion for directed verdict, which the trial court denied.

The trial court held an instruction conference, read instructions to the jury, and allowed the parties to present their arguments to the jury, which returned a verdict signed by nine jurors in favor of defendant. After the jury returned its verdict, the trial court asked the parties if they wanted to present any motions. Neither party did so. The trial court also invited the parties to examine the verdict and thanked the jury for its attentiveness as follows: "Ladies and gentlemen, I want to thank you for your thoughtful attention to this case and for the time that you spent with us these last days. You have been a very professional jury and we very much respect that.... And most particularly we thank you for your faithful participation. We will stand adjourned now."

On April 2, 1998, plaintiff filed her motion for new trial on two grounds, only one of which relates to the first point on appeal. In its...