McGuire v. Seltsam, No. WD 61448 (Mo. App. 3/16/2004)
| Decision Date | 16 March 2004 |
| Docket Number | No. WD 61448,WD 61448 |
| Parties | SUSAN O. McGUIRE, Appellant, v. DARRELL K. SELTSAM and GENE SANDNER, Respondents. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Boone County, The Honorable Gene Hamilton, Judge.
William D. Rotts, Columbia, Missouri, for appellant[s].
Susan Ford Robertson, Michael R. Baker, Co-Counsel, Columbia, Missouri, for respondent[s].
Before Joseph M. Ellis, Chief Judge, Harold L. Lowenstein, Judge and Robert G. Ulrich, Judge.
On April 21, 1995, Appellant Susan McGuire was driving south on College Park Road in Columbia, Missouri, when she stopped for a traffic light at Missouri Highway 740. After the light turned green and McGuire began to proceed through the intersection along side a preschool bus, McGuire was struck by a tractor-trailer truck driven by William Koenig, who was traveling west on Missouri Highway 740 and failed to stop for the red light. The truck Koenig was driving was owned by his employer, Respondent S & S Seed Farms. McGuire's car sustained significant damage, and McGuire was taken by ambulance to a local hospital for treatment of her injuries.
On September 15, 1997, McGuire filed a petition for damages against Respondent and Koenig in the Circuit Court of Boone County alleging that Koenig had been negligent in the operation of his truck and that Respondent was vicariously liable for the negligent acts of its employee. The claim against Koenig was voluntarily dismissed before trial after Respondent's vicarious liability for Koenig's acts was stipulated. Appellant's case was tried before a jury from January 29 through February 1, 2002. After the case was submitted, the jury returned its verdict in favor of Appellant, finding Respondent 100% at fault and awarding her $45,000 in damages.
In her sole point on appeal, Appellant contends that the trial court erred in admitting into evidence the testimony of Dr. Elizabeth Pribor, an expert witness called by Respondent. Dr. Pribor, a forensic psychiatrist,1 testified at trial that, based upon a review of some of Appellant's medical records, without having ever examined or interviewed Appellant, she had diagnosed Appellant with a psychiatric condition known as somatization disorder. As described by Dr. Pribor:
Somatization disorder exists in an individual when they have several physical complaints for which either one of those two things is first true:
Either that, when you do the proper organic workup, when you look into the history, they do not have anything wrong, or you have a person with some problems, medical problem, and the complaints are greatly in excess of that which the doctor would expect to see.
After you have one of those two, either one, you then have to have the person either seek out attention, i.e., go to a doctor, or take some form of medication or have a change in their life-style as a result of that.
And there has to be a minimum number of symptoms, as was already asked of me. The minimum, absolute minimum number is eight. But it's the rare patient with somatization disorder where you only have eight. That was really an attempt to make it a simple diagnosis for psychiatrists and especially non-psychiatrists, as most individuals have numerous symptoms.
That's one of the hallmarks of what they're looking for, an individual who goes to the doctor over and over and over again for many, many complaints over time, many of which, not all, many of which are either not substantiated by tests or clinical exam or they are greatly in excess of what you would expect.
Appellant argues on appeal that Dr. Pribor's testimony was improperly admitted under § 490.0652 because her diagnosis was based upon an insufficient medical history that did not include any records prior to age 34 and because Dr. Pribor did not conduct a personal examination of Appellant prior to diagnosing her.3 Appellant further claims that Dr. Pribor's diagnosis was based upon "assumption, surmise and incompetent facts in assuming there to be medical records indicating a history of affliction before 30 years of age even though there were no such facts in the record." In addition, Appellant contends that Dr. Pribor's testimony constituted an improper comment upon her credibility as a witness, thereby invading the province of the jury.
The trial court is vested with broad discretion in the admission or exclusion of expert testimony. Yingling v. Hartwig, 925 S.W.2d 952, 955 (Mo. App. W.D. 1996). "A trial court's decision in that regard will not be disturbed absent an abuse of discretion, which only occurs when the ruling is against the logic of the circumstances or is arbitrary and unreasonable." Bank of Am., N.A. v. Stevens, 83 S.W.3d 47, 53 (Mo. App. S.D. 2002).
"[T]he standard for the admission of expert testimony in civil cases is that set forth in section 490.065." State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003). Section 490.065 provides:
1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
4. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.
Thus, Section 490.065.3 McDonagh, 123 S.W.3d at 157. "[S]ection 490.065.3 also imposes an independent duty on the court to determine whether the facts and data relied on are otherwise reasonably reliable." Id. "Whether expert opinion testimony satisfies the requirements of section 490.065 is a matter of trial court discretion." Bailey v. Cameron Mut. Ins. Co., 122 S.W.3d 599, 603 (Mo. App. E.D. 2003).
When Dr. Pribor was voir dired prior to offering testimony related to her diagnosis of Appellant with somatization disorder, she acknowledged that, under the standards recognized in her profession, in order for a person to be diagnosed with somatization disorder, the person must have begun having somatic complaints that are not substantiated by an organic cause prior to age 30. She further definitively testified that "[y]ou have to have evidence of some psychosomatic complaints before the age of 30" in order to make the diagnosis.
When asked what evidence she had found that Appellant had somatic complaints prior to age 30 that did not have any organic cause, Dr. Pribor offered the following testimony:
A: Well, sir, when you do cases like this and you only have records that go back to someone who's older than age 30, what you then have to look for is evidence in the records that these problems existed prior to that. And there are several references in the records of problems that Ms. — excuse me — Dr. McGuire had prior to the age of 30. Now, we're not — I was not given any records prior to 1988. . . . And she would have been 34 years old. So the only records I was allowed to review — I shouldn't say only. I mean, it sounds like actually there weren't many. Of the records I reviewed, the earliest ones, she was 34 years old. What one does, then, as a physician, is to look through the records that would then indicate some of the problems existed prior to the age of 30.
* * *
What I said is, the records, which start at the age of 34, point to, and for the most part at 35 and older, point to some complaints that she said have been around for a number of years, going back prior to the age of 30. And those complaints are psychosomatic complaints.
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