Revis v. Bassman

• Citation: 604 S.W.3d 644
• Decision Date: 03 March 2020
• Docket Number: No. ED 107663,ED 107663
• Parties: Amy REVIS, Appellant, v. Donald BASSMAN, M.D., Respondent.
• Court: Court of Appeal of Missouri (US)

604 S.W.3d 644

Amy REVIS, Appellant,

v.Donald BASSMAN, M.D., Respondent.

No. ED 107663

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: March 3, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Introduction

Amy Revis ("Revis") appeals the trial court's judgment following a jury verdict in favor of Donald Bassman, M.D. ("Dr. Bassman") in her medical malpractice action. Revis presents four points on appeal, the first three points challenging the trial court's evidentiary rulings concerning Dr. Bassman's expert witness (1) precluding cross-examination into the witness's tort reform activities, (2) admitting unreliable causation testimony, and (3) excluding an online medical database exhibit. In her last point, Revis contends that the verdict was against the weight of the evidence. The trial court did not err when it admitted medical expert testimony that met sufficient reliability criteria under Section 490.065¹ and excluded the medical database exhibit for lack of foundation. Further, Revis does not meet her burden in arguing that the verdict was against the weight of the evidence. However, the trial court did not reasonably exercise its discretion when it excluded testimony of the expert witness's tort reform activities. Accordingly, we reverse the judgment of the trial court and remand for a new trial.

Factual and Procedural History

Revis fell about three to four feet from a ladder and landed on her right foot. Revis went to the hospital by ambulance and was admitted at 1:07 p.m. on January 29, 2013. The emergency room physician determined Revis fractured her ankle

and calcaneus (heel bone). The emergency room physician called Dr. Bassman, the on-call orthopedist. Dr. Bassman indicated Revis needed surgery and contacted the operating room the next morning to schedule the surgery. The first available time for the surgery was approximately 5:00 p.m. At that time, Dr. Bassman performed surgery to repair Revis's fractures by placing several screws.

The back of Revis's heel did not heal after surgery. Specifically, the back of the skin of Revis's heel suffered necrosis, also known as tissue death. Revis required additional treatment and surgeries to heal the wound

area, including skin grafts to the back of her heel.

In 2015, Revis filed a medical malpractice action alleging that Dr. Bassman committed medical malpractice by delaying surgery on her heel, thereby causing the tissue necrosis.

At trial, which began on December 10, 2018, Dr. Bassman testified on his own behalf. Both parties also presented medical expert testimony. Revis retained Dr. James Turner Vosseler ("Dr. Vosseler"), who testified that Dr. Bassman breached the standard of care by waiting too long to perform surgery. Dr. Vosseler opined that the delay caused blood flow disruption and necrosis because a bone fragment in the heel exerted pressure on the skin until surgery was performed. Dr. Bassman retained Dr. Brett Grebing ("Dr. Grebing"), who testified the necrosis was caused by the forceful trauma of Revis's fall resulting in a piece of the calcaneal bone pulling off and moving through the tissue, not the timing of Revis's surgery. The trial court admitted Dr. Grebing's causation testimony over Revis's motion in limine and in-trial objections that the testimony failed to meet the evidentiary standard of reliability.

Revis sought to cross-examine Dr. Grebing about his conduct and involvement in past tort reform activities to show bias, interest, and prejudice against plaintiffs in medical malpractice actions. Revis submitted an offer of proof relating to Dr. Grebing's activities while he was president of a medical society. Dr. Grebing's alleged conduct included writing to legislators advocating for the enforcement of existing statutes of limitations for certificates of merit filed in medical malpractice claims as well as for statutory caps on damage awards as both a member of the medical society and as a medical professional. Revis's offer of proof revealed Dr. Grebing would have denied he engaged in tort reform activities while he was president of his local medical society, despite the fact he testified in an earlier deposition it was "fair to say" he engaged in tort reform activities in his role as president. The trial court precluded that evidence. Additionally, Revis sought to cross-examine Dr. Grebing using Up-To-Date, an online medical database that the hospital made available to its physicians. Dr. Bassman objected to the printed database exhibit ("Exhibit 166") for lack of foundation, and the trial court sustained the objection.

At the conclusion of the trial, the jury reached a verdict in favor of Dr. Bassman. Revis filed a motion for new trial, alleging the same claims of evidentiary error she raises on appeal and also that the verdict was against the weight of the evidence. The trial court denied the motion. Revis now appeals.

Points on Appeal

Revis raises four points on appeal. Point One maintains the trial court erred by not allowing cross-examination into Dr. Grebing's tort reform activities. Point Two posits the trial court erred in admitting Dr. Grebing's causation testimony for lack of reliable medical or scientific support. Point Three claims the trial court erred in excluding Exhibit 166. Point Four contends the trial court erred in not ordering a new trial because the verdict was against the weight of the evidence.

Standard of Review

"A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal." Koelling v. Mercy Hosps. E. Cmtys., 558 S.W.3d 543, 550 (Mo. App. E.D. 2018) (internal quotation omitted); see also Jones v. City of Kansas City, 569 S.W.3d 42, 53 (Mo. App. W.D. 2019) (reviewing a trial court's ruling on expert witness testimony for an abuse of discretion); Embree v. Norfolk & W. Ry. Co., 907 S.W.2d 319, 325 (Mo. App. E.D. 1995) (internal citation omitted) (noting "[t]he scope and extent of cross-examination in a civil trial is determined at the discretion of the trial court"). We will find an abuse of discretion only when the trial court's ruling is "clearly against the logic of the circumstances then before the trial court and ... so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Jones, 569 S.W.3d at 53 (internal quotation omitted). "If a decision of the trial court on the admission or exclusion of evidence is correct for any reason it will be affirmed." Bella v. Turner, 30 S.W.3d 892, 897 (Mo. App. S.D. 2000). To prevail on appeal under the abuse-of-discretion standard, an appellant must demonstrate both that the trial court erred and that the error prejudiced the outcome of the verdict. Coyle v. City of St. Louis, 408 S.W.3d 281, 290 (Mo. App. E.D. 2013) (internal citation omitted); see also Jones, 569 S.W.3d at 53.

In addition, a trial court "has nearly unfettered discretion in deciding whether or not to grant a new trial on the ground that the verdict was against the weight of the evidence, ‘[a]nd its ruling upon that ground will not be disturbed, except in case of manifest abuse.’ " Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 250 (Mo. banc 2006) (internal quotation omitted).

Any questions of statutory interpretation will be reviewed de novo. Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011) (internal citation omitted).

Discussion

I. Rule 84.04—Points on Appeal

Dr. Bassman maintains Revis's appeal should be dismissed for failure to comply with the rules of appellate procedure. See Rule 84.04.² Specifically, Dr. Bassman alleges the points relied on fail to identify the legal reason for finding reversible error or explain why those legal reasons support a claim of reversible error in this case.

Rule 84.04 sets forth mandatory requirements for appellate briefs. King v. King, 548 S.W.3d 440, 442 (Mo. App. E.D. 2018) (internal citation omitted). Each point relied on must: "(A) [i]dentify the trial court ruling or action that the appellant challenges; (B) [s]tate concisely the legal reasons for the appellant's claim of reversible error; and (C) [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(1). Rule 84.04(d)(1) further provides that "[t]he point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].’ " Id. (brackets in original).

The points relied on are intended "to provide the respondent with notice of the precise matter which must be answered and to inform the court of the issues presented." King, 548 S.W.3d at 443. "The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts." Jones v. Buck, 400 S.W.3d 911, 915 (Mo. App. S.D. 2013) (internal quotation omitted). Rather, "[c]ompliance with the requirements is necessary to ensure we do not become an advocate by inferring facts and arguments an appellant fails to set forth." King, 548 S.W.3d at 442. Consequently, a point on appeal that identifies no legal basis for concluding that the actions of the trial court amounted to reversible error preserves nothing for review. Estate of Hanks, 589 S.W.3d 604, 606 (Mo. App. E.D. 2019) (citing Washington v. Blackburn, 286 S.W.3d 818, 821 (Mo. App. E.D. 2009) ); see also Schnurbusch v. W. Plains Reg'l Animal Shelter, 571 S.W.3d 191, 196 (Mo. App. S.D. 2019) (internal citations omitted); King, 548 S.W.3d at 442 (internal citation omitted) ("The failure to, at...