Powderly v. South County Anesthesia Assoc.

• Decision Date: 13 February 2008
• Docket Number: No. ED 88273.,ED 88273.
• Citation: 245 S.W.3d 267
• Parties: Joseph POWDERLY and Alice Powderly, Plaintiff/Appellant, v. SOUTH COUNTY ANESTHESIA ASSOCIATES, LTD. and George Romkema, M.D., Defendant/Respondent.
• Court: Missouri Court of Appeals

245 S.W.3d 267

Joseph POWDERLY and Alice Powderly, Plaintiff/Appellant, v. SOUTH COUNTY ANESTHESIA ASSOCIATES, LTD. and George Romkema, M.D., Defendant/Respondent.

No. ED 88273.

Missouri Court of Appeals, Eastern District, Division Two.

February 13, 2008.

James Peter Leonard, Gonzalo Andres Fernandez, Devereaux, Stokes, Nolan, Fernandez & Leonard, P.C., St. Louis, MO, for appellant.

Gregory J. Minana, Mark G. Arnold, Sarah C. Hellmann, Husch & Eppenberger, LLC, St. Louis, MO, for respondent.

Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW, J., and KURT S. ODENWALD, J.

KURT S. ODENWALD, Judge.

Introduction

Joseph Powderly (Patient) and Alice Powderly (Wife) (collectively referred to as Plaintiffs) appeal from the trial court's judgment, entered in accordance with a jury verdict, in favor of defendants George Romkema, M.D. (Anesthesiologist) and South County Anesthesia Associates, Ltd. (Anesthesia Company) (collectively referred to as Defendants) in Plaintiffs' medical malpractice action. We affirm.

Factual and Procedural Background

On November 20, 2000, Patient underwent microscopic brain surgery to repair an aneurysm on an artery in his brain. Faisal Albanna, M.D. was Patient's surgeon. Anesthesiologist assisted as the anesthesiologist during the surgery. During the procedure, Dr. Albanna exposed the aneurysm and attempted to clip it. He experienced difficulty and placed "temporary clips" or cross clamps on the middle cerebral artery. The temporary clipping closed off Patient's middle cerebral artery and remained in place for approximately 55 minutes. During this procedure, Anesthesiologist gave Patient six different medications to lower Patient's blood pressure. Thereafter, Patient suffered an ischemic stroke and injury to the right side of his brain.

Patient and Wife filed this medical negligence action against Albanna Neurosurgical Consultants and Scott Radiology Group, Inc. on August 15, 2002. Plaintiffs dismissed without prejudice their claim against Scott Radiology Group, Inc. on July 20, 2003. On October 12, 2004, Plaintiffs filed their First Amended Petition against the original defendants, also adding defendants South County Anesthesia Associates, Ltd. and George Romkema, M.D.

Plaintiffs voluntarily dismissed Scott Radiology Group on September 23, 2005. Plaintiffs subsequently reached a settlement agreement with defendant Albanna Neurological Consultants and dismissed that defendant with prejudice from the suit.

On March 6, 2006, the case proceeded to trial against the remaining defendants, Anesthesia Company and Anesthesiologist. The jury returned a verdict on March 15 2006, in favor of Anesthesia Company and Anesthesiologist. The jury assessed 0% fault to Defendants and 100% fault to Dr. Albanna. Plaintiffs filed this appeal.

Points on Appeal

Plaintiffs raise two points on appeal. In Point I, Plaintiffs claim that the trial court erred in overruling Plaintiffs' objection and allowing Defendants to play 40 minutes of the videotaped brain surgery throughout Defendants' closing argument because the use of the videotape constituted improper reference to matters not placed in evidence and was designed to inflame and mislead the jury.

In Point II, Plaintiffs argue that the trial court erred in overruling Plaintiffs' timely objection and giving Jury Instruction No. 7 regarding Dr. Albanna's fault. Plaintiffs assert that the third disjunctive submission of negligence of Jury Instruction No. 7 was not supported by the evidence because no expert testimony was offered to show that Patient's surgery was performed without an optimal magnetic resonance imaging, or MRI.

We will review each of these points and their relevant facts separately.

POINT I

Factual Background on Point I

During a pre-trial conference on March 3, 2005, and within a discussion regarding business records stipulations, Plaintiffs' counsel stated that Patient's brain surgery was videotaped. He explained that Plaintiffs intended to show portions of the intraoperative videotape as an exhibit while an expert explained the contents of the video. When the trial court asked whether Defendants had an objection, defense counsel answered, "I may have an objection to that. I was stipulating to the foundation on the videotape, that it's a medical record. I think my objection on how they're going to use it would depend on how they're planning on using it. That's the first I've heard of this, and I may have an objection to that."

In response to defense counsel's concerns, Plaintiffs' counsel explained that Plaintiffs intended to show the video because one of the significant issues in the case was the amount of time that the cerebral artery clamps remained in place on the middle cerebral artery. The videotape depicted the clamps going on and the clamps coming off, and the accurate duration of the clamping procedure. Plaintiffs' neurosurgeon would explain the clamping procedure to the jury while the video played.

When the trial court asked Defendants what their objection would be, defense counsel stated, "As they've characterized it, I don't know that I would have an objection. It's not overly gruesome or anything like that. And so —"

The trial court asked Plaintiffs whether they would show the whole surgery, and Plaintiffs' counsel answered, "We'd be here a long time."

Plaintiffs' counsel also stated that, after meeting with their video technician that afternoon, they would be able to share with Defendants exactly which portions of the video they would use during the trial.

During trial, Plaintiffs played portions of the videotape during the testimony of their expert witness Dr. John Seelig. Plaintiffs also showed portions of this exhibit during the testimony of Carmon Wilson, the physician's assistant who had participated in the procedure. Additionally, Defendants played portions of the videotape during the testimony of their neurosurgical expert Dr. Michael Chicoine.

Prior to closing arguments, both Plaintiffs and Defendants offered into evidence their copies of the videotape that had been used without objection by both Plaintiffs and Defendants during trial. Both exhibits were "admitted into evidence" by the trial court without objection from any party.

During closing arguments, Defendants played the videotape for approximately 40 minutes while delivering their closing remarks. Defendants periodically referred to the videotape, stating, "It's still bleeding," to reiterate what their expert Dr. Chicoine had already testified to — that the continuous bleeding throughout the operation created a life-threatening situation. Plaintiffs objected to Defendants' continuous running of the videotape during closing arguments as going beyond the evidence because the jury was being shown more of the video than the selected video clips played to the jury during testimony. The court overruled the objection but cautioned Defendants to run the tape at their own risk because it was distracting.

The trial court denied Plaintiffs' Motion for a New Trial, which claimed that the trial court erred in allowing Defendants to play the entire videotape during closing argument. Plaintiffs alleged that playing the videotape in its entirety by Defendants improperly allowed Defendants to place evidence before the jury that was not shown to the jury during the evidence segment of the trial, and which was not admitted into evidence. Plaintiffs claimed that this use of the videotape was prejudicial to the Plaintiffs.

Standard of Review

This Court reviews a trial court's ruling in closing argument for an abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000). A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration. Miller v. SSM Health Care Corp., 193 S.W.3d 416, 421 (Mo.App. E.D.2006). Counsel is traditionally given wide latitude to suggest inferences, even though illogical or erroneous, from the evidence during closing argument. Nelson, 9 S.W.3d at 606. When reviewing closing argument, we must consider the argument in light of the entire record and should only reverse if the challenged comments were clearly unwarranted and injurious to the other party. Burrows v. Union Pacific R. Co., 218 S.W.3d 527, 534 (Mo.App. E.D.2007).

Legal Discussion on Point I

Plaintiffs' first point on appeal asserts that Defendants placed before the jury facts and portions of an exhibit that were not admitted into evidence. Plaintiffs argue that a similar attempt was rejected in Kopp v. CC Caldwell Optical Co., 547 S.W.2d 872 (Mo.Ct.App.1977). While Plaintiffs are correct that Kopp held the trial court erred by allowing counsel to refer to portions of an operations manual that had not been placed in evidence, Kopp also made clear that the whole manual from which counsel purported to argue had not been placed in evidence. As a result of specific objections made during trial, only the first page of the manual was offered into evidence. Id. at 875. Other portions of the manual were read, but were not offered or admitted into evidence. Id. at 877. Consequently, Plaintiffs' reliance on Kopp is misplaced because here, unlike the situation in Kopp, the entire videotape at issue in this appeal was admitted into evidence at trial.

Moreover, the holding in Kopp does not stand for the proposition that a videotape admitted into evidence in its entirety without objection should be excluded from closing arguments because only excerpts of the videotape were played or otherwise used during testimony, or that the use of the videotape with the jury is limited to only those portions utilized during testimony. When evidence of one of the issues in the case is admitted without objection, the party against whom it is offered waives any objection to the evidence, and it may be properly...