Nelson v. Waxman, M.D.

Decision Date11 January 2000
Citation9 S.W.3d 601
Parties(Mo.banc 2000) David E. Nelson, et al., Appellants, v. Michael J. Waxman, M.D., and Kansas City Pulmonary Clinic, P.A., Respondents. SC81689 0
CourtMissouri Supreme Court

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

Counsel for Appellant: William H. Pickett and David T. Greis

Counsel for Respondent: Arlen L. Tanner and Norman I. Reichel, Jr.

Opinion Summary: The Nelson family appeals a jury verdict for the doctor and clinic in a medical malpractice wrongful death suit.

Court en banc holds: 1) The trial court properly allowed the cross-examination of an expert witness on his failure of a board certification examination. The Nelsons opened their expert to such cross-examination by their direct examination.

2) The trial court properly admitted into evidence an expert's curriculum vitae, even if it was cumulative. No manifest injustice resulted. The state's reference to it was brief and not the major theme.

3) By using the word "killing" in his opening argument, the Nelsons' counsel opened the door to the doctor's counsel's closing argument that his client did not kill the deceased.

4) The court did not err in allowing cross-examination of an expert on the length of time between the death and the expert's involvement in the case. The question did not attempt to discredit the Nelsons for exercising their rights.

5) No rule requires that witnesses mentioned in opening statement be presented to the jury. Bad faith in mentioning the witness has not been established.

All concur.

William Ray Price, Jr., Chief Justice

This case involves alleged trial court errors concerning the admissibility of evidence and the propriety of certain assertions during the opening statement and closing arguments of counsel in a medical malpractice wrongful death suit. Judgment was entered upon a jury verdict in favor of the defendants. We affirm.

I.

Iris Jeanne Nelson checked into the emergency room on July 15, 1991, complaining of shortness of breath. She died in the hospital on July 28, 1991. Her husband, Frank Nelson, and her children, David Nelson, Lana Beer, and Jeffrey Nelson ("Appellants"), filed a medical malpractice and wrongful death suit against Michael J. Waxman, M.D., and the Kansas City Pulmonary Clinic, P.A. ("Respondents"). Appellants alleged that Dr. Waxman negligently failed to timely diagnose and treat a complication from the placement of a femoral arterial catheter which resulted in her death. Specifically, appellants contend that a massive retroperitoneal hematoma (bleed) resulted when the femoral artery was punctured during the placement of the catheter on July 17, 1991; that symptoms of the complication developed over a four-day period; that Dr. Waxman failed to timely recognize the symptoms and diagnose and treat the complication; and that such negligence caused Mrs. Nelson's death on July 28, 1991.

A jury trial was held in Jackson County Circuit Court and the jury returned a verdict in favor of the defendants. On appeal, appellants raise six points: 1) permitting cross-examination concerning the failure of an expert witness to pass a board certification examination; 2) admitting an expert witness' curriculum vitae; 3) permitting the use of the word "killed" during closing argument; 4) permitting cross-examination concerning the length of time between Mrs. Nelson's death and the involvement of an expert witness; 5) permitting defense counsel to say in his opening statement that he would use certain deposition testimony when he later did not do so; and 6) the cumulative effect of the errors warrants reversal and remand for a new trial.

II.

Appellants' first point is that the trial court erred in allowing cross-examination of an expert witness regarding his failure of a board certification examination. The admissibility of evidence lies within the sound discretion of the trial court and will not be disturbed absent abuse of discretion. Kansas City v. Keene Corp., 855 S.W.2d 360, 367 (Mo. banc 1993). "The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991) (citation omitted).

"It is well established that the extent and scope of cross-examination in a civil action is within the discretion of the trial court and 'will not be disturbed unless an abuse of discretion is clearly shown.'" Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 868-69 (Mo. banc 1993) (citation omitted). "This is especially true for cross-examinations of expert witnesses. There is wide latitude 'to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion.'" Id. at 869. Within this "wide latitude," the trial court has discretion whether to allow or exclude evidence of an expert witness' past failure to pass a board certification examination. See Ward v. Epting, 351 S.E.2d 867 (S.C. App. Ct. 1986) (affirming trial court's order admitting evidence that defendant-physician failed board exams); Kurrack v. Amercian Dist. Telegraph Co., 625 N.E.2d 675 (Ill. App. Ct. 1993) ("Although we believe this issue is a close call, we find that the trial court did not commit reversible error by ruling against plaintiff's motion in limine and allowing the cross-examination of [expert witness] regarding his failure to pass the certification examination."); McCray v. Shams, 587 N.E.2d 66 (Ill. App. Ct. 1992) (agreeing with the Ward v. Epting analysis but holding trial court did not err in excluding defendant-physician's failed past board examinations); Campbell v. Vinjamuri, 19 F.3d 1274 (8th Cir. 1994) (affirming trial court's order excluding evidence that defendant failed board exam); Jackson v. Buchman, 996 S.W.2d 30 (Ark. 1999) (same); Gipson v. Younes, 724 So.2d 530 (Ala. Civ. App. 1998) (same); Sommers v. Friedman, 493 N.W.2d 393 (Wis. App. Ct. 1992) (same).

Appellants rely on Beis v. Dias, 859 S.W.2d 835 (Mo. App. 1993), for the proposition that an expert witness cannot be cross-examined concerning board certification examination failures. There, the defendant-physician testified as an expert witness. Id. at 838. The trial court excluded evidence that the physician had failed board certification and licensing examinations. Id. In holding that the trial court did not abuse its discretion in excluding the evidence, the court noted that "the defendant did not open himself to cross examination about failed examinations." Id. at 839-840.

By contrast, appellants opened their expert, Dr. DeSantis, to such cross-examination. Appellants presented two expert witnesses to establish that the defendant breached the standard of care. In establishing the credentials of Dr. DeSantis, appellants' attorney specifically addressed the following issues on direct examination:

Q: Have you been board certified by the American Board of Surgeons in surgery since 1970?A: By the American Board of Surgeons, yes.

Q: What exactly did you do to get that? Tell us a little bit about that.

A: Well, the requirements for board certification are finishing an approved residency, getting the letter of recommendation from your chief of surgery, and sitting for a written test and on oral test.

Q: And did you pass those successfully?

A: Yes, sir.

Q: Was there a critical care board existing at that time?

A: No, there was not.

Q: Have you also been certified in advanced trauma and life support?

A: Yes, sir.

A short while later, counsel returned to critical care credentials by asking:

Q: Do you belong to the Society of Critical Care?

A: Yes, sir.

There was no further explanation concerning membership in the Society of Critical Care.

On cross-examination, the following questioning took place by respondents' counsel:

Q: And it's my understanding that you're a general surgeon; is that correct?

A: That's correct.

Q: You're not a board certified vascular surgeon?

A: No. When I was training they didn't have the boards in vascular surgery. I never applied for the boards because the volume of my vascular surgery was insufficient. I think they require 100 cases a year.

Q: So you weren't even eligible to qualify for the Board of Vascular Surgery?

A: No, sir.

Q: And with regard to your credentials, it's my understanding that you did attempt to take the critical care boards but failed that examination; is that correct?

A: I took the test as a lark about five years ago knowing it wouldn't impact on my ability to practice medicine in the critical care area.

Q: You took the case, the test, as a lark?

A: Yes.

Q: And you failed it?

A: Yes.

Q: And you have no intention of taking it again, I gather?

A: No.

These quoted portions of the transcript clearly show that the appellants opened the door to this line of questioning on direct examination. The appellants put Dr. DeSantis' critical care credentials in issue by: 1) implying he is not board certified in critical care only because the board examination was not available, and 2) eliciting testimony of his membership in the "Society of Critical Care" without further follow-up (similar to that concerning the American Board of Surgeons) to explain what that membership really is about. Only from cross-examination do we know that the board examinations in critical care became available to Dr. DeSantis and that he failed.

The trial court did not abuse its discretion in light of the facts and testimony of this case. Point denied.

III.

Appellants' second point is that the trial court erred in admitting into evidence the fourteen-page curriculum vitae of defendants' expert. Appellants' attorney objected on the grounds that "99 percent of it's irrelevant. Also hearsay." On appeal, however, appellants argue only that that the curriculum vitae was cumulative evidence. "A party is not permitted to...

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