McReynolds v. Mindrup, WD 60747.

• Decision Date: 01 October 2002
• Docket Number: No. WD 60747.,WD 60747.
• Parties: Dr. Dixie Cranmer McREYNOLDS, et al., Appellants, v. Dr. Jerome J. MINDRUP, D.D.S., et al., Respondents.
• Court: Missouri Court of Appeals

108 S.W.3d 662

Dr. Dixie Cranmer McREYNOLDS, et al., Appellants, v. Dr. Jerome J. MINDRUP, D.D.S., et al., Respondents.

No. WD 60747.

Missouri Court of Appeals, Western District.

October 1, 2002.

Rehearing Denied November 26, 2002.

Joseph R. Borich, III, Leawood, KS, for appellant[s].

Timothy S. Frets, Kansas City, MO, for respondent[s].

Before JOSEPH M. ELLIS, Chief Judge, THOMAS H. NEWTON, Judge and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Chief Judge.

Dixie Cranmer McReynolds, Ph.D., and her husband, William R. McReynolds, filed a petition for damages against Jerome J. Mindrup, D.D.S., in the Circuit Court of Jackson County. The McReynolds asserted that Dr. McReynolds had asked Dr. Mindrup to remove an old amalgam filling and replace it with a filling that did not contain mercury because she was afraid of the effects of mercury on her health. The McReynolds claimed that, on October 8, 1992, Dr. Mindrup removed the old filling in an improper manner and that he replaced it with another amalgam filling that contained mercury. The McReynolds asserted claims of dental malpractice, assault and battery, and loss of consortium based upon the alleged conduct of Dr. Mindrup. They also requested punitive damages.

After the McReynolds and Dr. Mindrup had filed pleadings designating their various experts, on June 22, 1998, Dr. Mindrup filed his Motion to Exclude Expert Testimony Under the Frye v. United States, 293 F. 1013 (D.C.Cir.1923) Doctrine. In that motion, Dr. Mindrup challenged various testimony sought to be offered by the McReynolds from their four designated experts.¹

On July 10, 1998, the McReynolds filed a motion to exclude the results of urine tests or any reference to those tests under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Frye v. United States. On July 14, 1998, the McReynolds filed a motion to preclude the testimony of Dr. John Osborne related to Dr. McReynolds exposure to and absorption of mercury.

Beginning on August 31, 1998, the trial court conducted a five-day evidentiary hearing on the parties' motions. On January 27, 1999, the trial court entered its "Partial Judgment" finding that the expert testimony proffered by Appellants four experts was not admissible. In relevant part, the trial court's partial judgment stated:

IT IS FURTHER ORDERED that the Plaintiffs' experts' testimony does not meet the requirements for admissibility under the Frye standard. 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.

The court also denied Appellants' motion to preclude evidence related to the urine tests and their motion to exclude Dr. Osborne's testimony on mercury exposure. The court also denied Respondent's motion for summary judgment.

Subsequent to the trial court's entry of its Partial Judgment, the case was transferred to a different judge. Following that transfer, Respondent filed another motion for partial summary judgment claiming that Appellants could not establish a prima facie case of professional negligence without presenting any expert testimony related thereto. On September 2, 1999 the trial court granted Respondent's motion for partial summary judgment finding that Appellants could not establish a prima facie case of professional negligence without the benefit of any expert testimony. The trial court also determined that its summary judgment order should be deemed a "judgment" in favor of Respondents and certified its order as final and appealable under Rule 74.01(b).

Subsequently, Appellants filed their appeal challenging the trial court's exclusion of their expert witnesses, failure to exclude Respondent's expert witnesses, and the propriety of the partial summary judgment. On appeal, this court sua sponte found that the trial court had improperly certified the matter as proper for appeal under Rule 74.01(b) because its "judgment" did not resolve the McReynolds' battery claim. McReynolds v. Mindrup, 32 S.W.3d 163, 166-67 (Mo.App. W.D. 2000).

Following remand to the trial court, on February 22, 2001, Appellants voluntarily dismissed their battery claim. On March 5, 2001, Appellants filed their second notice of appeal. This Court subsequently dismissed Appellants appeal pursuant to Rule 74.01(a) because the trial court had not entered a final judgment in the matter and remanded the case once again to the trial court.

On November 20, 2001, the trial court entered its Judgment granting Respondent's motion for summary judgment. The trial court found that the dismissal of Appellants' battery claim fully resolved the matter. Appellants bring twelve points on appeal from that judgment.

We initially address Appellants' argument that the trial court's order precluding any testimony from any of their four designated expert witnesses under Frye was erroneous because the order excluded testimony and evidence that was not challenged by Respondent and because it excluded testimony and evidence to which Frye was inapplicable.

Based upon our review of Respondent's suggestions in support of his Frye motion, it does appear likely that the trial court excluded evidence that was not challenged by Respondent and exceeded the relief requested by him. However, while Appellants argue on appeal that the trial court's order went beyond the scope of Respondent's motion, Appellants have failed to include a copy of that motion in the record on appeal and have, therefore, provided us with an insufficient record from which to assess this contention.

We next turn to whether the trial court's order precluded testimony that was not subject to a Frye challenge. The "[a]dmissibility of expert testimony is governed by § 490.065." Roy v. Missouri Pac. R.R. Co., 43 S.W.3d 351, 365 (Mo.App. W.D.2001). "Under § 490.065, the determination of the admissibility of expert testimony is left to the sound discretion of the trial court," and, therefore, the "trial court's ruling as to the exclusion of evidence will not ordinarily be overturned unless it is an abuse of discretion." In re Estate of Dean, 967 S.W.2d 219, 224 (Mo. App. W.D.1998). "An abuse of discretion occurs when the trial court's ruling is so arbitrary and unreasonable that it shocks this court's sense of justice and it is clearly against the logic of the surrounding circumstances." Id. Under this standard of review, " [a] trial court does not usually commit reversible error by mere exclusion of expert testimony, even if the offered testimony is relevant and admissible.'" Bella v. Turner, 30 S.W.3d 892, 896 (Mo. App. S.D.2000) (quoting In re Estate of Dean, 967 S.W.2d at 224).

In the case at bar, the trial court precluded all testimony from any of Appellants' four designated experts, finding that none of their testimony met the requisite standard for admissibility set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).² "Missouri has generally followed the Frye test for the admissibility of new scientific techniques." Long v. Missouri Delta Med. Ctr., 33 S.W.3d 629, 642 (Mo.App. S.D.2000). Under Frye, "the results of scientific procedures may be admitted only if the procedure is `sufficiently established to have gained general acceptance in the particular field to which it belongs.'" State v. Love, 963 S.W.2d 236, 242 (Mo.App. W.D.1997) (quoting State v. Kinder, 942 S.W.2d 313, 326 (Mo. banc 1996)). "The Frye standard was modified by the Missouri Supreme Court in State v. Biddle, 599 S.W.2d 182, 191 (Mo.1980), which stated that for scientific evidence to be admitted, `wide scientific approval' of the reliability of the scientific techniques employed is required." Long, 33 S.W.3d at 642.

The Frye doctrine has also been applied to preclude expert testimony related to scientific techniques or principles that do not have wide scientific approval and any opinions formed by the expert on the basis of such principles or techniques. "`Frye requires ... that expert testimony be based on scientific principles generally accepted in the relevant scientific community.'" Id. (quoting M.C. v. Yeargin, 11 S.W.3d 604, 619 (Mo.App. E.D.1999)); See also State v. Butler, 24 S.W.3d 21, 32 (Mo.App. W.D.2000). Accordingly, to be admissible, an expert's opinion must be based upon generally accepted scientific studies, principles and methods. Butler, 24 S.W.3d at 32. Where an expert's methodology is not generally accepted in the relevant scientific field, a trial court is within its discretion to limit the expert's testimony by excluding testimony related to that methodology and any opinions arising therefrom. Love, 963 S.W.2d at 242.

"While there has been some confusion on the issue, Frye generally is not considered to be applicable when the testimony sought to be admitted does not involve scientific techniques." Long, 33 S.W.3d at 642. The trial court's order in the case at bar clearly exceeded these confines.

Certainly, the trial court would likely have been well within its discretion to have excluded much of the testimony offered by Appellant's witnesses at the Frye hearing under the applicable standards, however, the trial court's wholesale exclusion of any testimony from these witnesses clearly exceeds the scope of a Frye challenge. And, while even more of the experts' testimony may later be found to be inadmissible for other reasons, the trial court's reliance on Frye to preclude any and all testimony from these witnesses constitutes an abuse of discretion.

One of the experts that was precluded from testifying, Dr. Kennedy, performed dental work on Dr. McReynolds a few months after Dr. Mindrup replaced her old filling. Dr. Kennedy removed the amalgam filling installed by Dr. Mindrup and replaced it with a filling that did not contain mercury.

Another of Appellant's designated...