McReynolds v. Mindrup

• Decision Date: 21 November 2000
• Parties: (Mo.App. W.D. 2000) . Dr. Dixie McReynolds, Appellant v. Jerome J. Mindrup, Respondent. Case Number: WD57690 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

32 S.W.3d 163 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Dr. Dixie McReynolds, Appellant v. Jerome J. Mindrup, Respondent.

Case Number: WD57690

Missouri Court of Appeals Western District

Handdown Date: 11/21/2000

Appeal From: Circuit Court of Jackson County, Hon. Jon R. Gray

Counsel for Appellant: J. Love for Joe Barich

Counsel for Respondent: Tim Frets

Opinion Summary:

Dixie and William McReynolds claim that Jerome Mindrup negligently removed a filling containing mercury and replaced it with a new filling containing mercury. They sued Mindrup for dental malpractice, assault and battery, loss of consortium, and punitive damages. Because the circuit court found that the McReynoldses' expert testimony was not admissible under the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), it awarded Mindrup summary judgment on all counts except for assault and battery.

REMANDED.

Division holds: The circuit court erred by certifying the summary judgment as final for appeal pursuant to Rule 74.01(b). Each count of the McReynoldses' petition arose from the same occurrence and therefore did not constitute more than one claim, as the rule requires.

Opinion Author: Paul M. Spinden, Chief Judge

Opinion Vote: REMANDED. Howard and Holliger, J.J., concur.

Opinion:

The issue that the parties presented to us in this case was whether the circuit court properly applied the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in refusing to let a plaintiff in a medical malpractice lawsuit present expert testimony. The issue manifested itself in a lawsuit by Dixie and William McReynolds against a dentist, Jerome Mindrup, concerning his use of filling amalgam containing mercury. Dixie McReynolds asked him in 1992 to remove an old filling and to replace it with a filling not containing mercury because she feared the effect of mercury on her health. The McReynoldses claim that Mindrup removed the old filling negligently and replaced it with a new filling containing mercury. They sued Mindrup for dental malpractice, assault and battery, loss of consortium, and punitive damages. The McReynoldses' complaint centers on Judge Edith Messina's order to preclude their experts from testifying. They had sought to present the testimony of David C. Kennedy, D.D.S., that the standard of care recognized by the International Academy of Oral Medicine and Toxicology concerning removal of amalgam dental fillings was correct, although a minority position, and that the majority position recognized by the American Dental Association was incorrect.¹ They also sought to present the testimony of F. Fuller Royal, M.D., a homeopathic physician and Dixie McReynolds' treating physician; G. Mark Richardson, Ph. D., a specialist in risk assessment who has assessed the risk of mercury in dental amalgam for Canadian authorities; and W. Jess Clifford, a microbiologist and immunologist.

Judge Messina, after a week-long evidentiary hearing, issued an order which she titled, "Partial Judgment." It said:

IT IS . . . ORDERED that the [McReynoldses'] experts' testimony does not meet the requirements for admissibility under the [standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)]. The testimony of G. Mark Richardson, Walter Clifford, David Kennedy and Fuller Royal do not fall under the admissible evidence standard required by [Frye] and its progeny in Missouri case law and are hereby found to be inadmissible at trial in this case.

Judge Messina, nonetheless, denied Mindrup's motion for summary judgment.

The case was transferred to Judge John Gray, and Mindrup renewed his motion for summary judgment. On September 2, 1999, Judge Gray granted the motion and ordered that the McReynoldses' malpractice claim be dismissed with prejudice. Remaining at issue in the case are the McReynoldses' claims for assault and battery, loss of consortium, and punitive damages. Judge Gray certified the case for appeal of his ruling under Rule 74.01(b)² and announced this rationale:

[T]he [c]ourt has considered the following factors. First, the "Partial Judgment" entered by Judge Edith Messina on January 27, 1999 prevents the plaintiffs from presenting testimony from any expert witness at trial. The inability of the plaintiffs to present this testimony (1) precludes . . . Dixie McReynolds from presenting a prima facie case on her negligence claim; (2) may preclude . . . William McReynolds from presenting a prima facie case on his loss of consortium claim; and (3) prevents . . . Dixie McReynolds from recovering more than nominal (and perhaps punitive) damages on her battery claim. The likelihood of an appeal following the entry of this judgment (and the issues arising under Judge Messina's "partial judgment") will not be significantly affected by an immediate trial of the [McReynoldses'] battery claim, regardless of the outcome.

Second, the appeal may obviate the need for an unnecessary trial on [the McReynoldses'] battery claim in Count II. If this judgment is affirmed on appeal, [the McReynoldses] may determine that the cost and expense of trial is not justified in seeking the recovery of nominal damages on their battery claim. Conversely, if this judgment is reversed on appeal, all three of the [McReynoldses'] claims may be tried in one trial. This will avoid a wasteful trial of the [McReynoldses'] battery claim and then a retrial of this claim (along with the [McReynoldses'] other claims) followin...