Sherrer v. Bos. Scientific Corp., WD80010

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCynthia L. Martin, Judge
Docket NumberWD80010
Decision Date21 August 2018

EVE SHERRER, Appellant,


Missouri Court of Appeals Western District

August 21, 2018

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Robert M. Schieber, Judge

Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Cynthia L. Martin, Judge and Jeff Harris, Special Judge

Eve Sherrer ("Sherrer") appeals from a judgment entered in conformity with jury verdicts in favor of Boston Scientific Corporation ("Boston Scientific") and C.R. Bard, Inc. ("Bard") (collectively "Defendants") following a multi-week products liability trial. Sherrer raises several claims of error involving the admission or exclusion of evidence and the trial court's failure to grant a mistrial. Because the trial court committed reversible error in excluding evidence relevant to impeach Bard, the judgment in favor of Bard and

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against Sherrer is reversed, and this matter is remanded for a new trial as to Bard. The judgment in favor of Boston Scientific is affirmed.

Factual and Procedural Background1

Sherrer filed suit on October 26, 2012 against Truman Medical Center ("TMC") and University Physicians Associates ("UPA") alleging medical malpractice in connection with Dr. Peter Greenspan's ("Dr. Greenspan") October 28, 2012 implantation of the Solyx, a single-incision mesh mini-sling manufactured by Boston Scientific, to treat stress urinary incontinence ("Original Petition"). On May 30, 2013, Sherrer filed an amended petition which repeated the allegations of medical malpractice against TMC and UPA, and which added product liability claims against medical device manufacturers Boston Scientific and Bard ("Amended Petition"). Bard manufactured the Align, a multi-incision, midurethral mesh sling, which was implanted in Sherrer on January 3, 2011, by Dr. Richard Hill ("Dr. Hill") who, at the same time, removed two-thirds of the Solyx mesh sling manufactured by Boston Scientific. On April 25, 2014, Dr. Shlomo Raz ("Dr. Raz"), performed several additional procedures on Sherrer, including the removal of the Align and the remainder of the Solyx.

Prior to trial, Sherrer settled her medical malpractice claims with TMC and UPA. Sherrer's product liability claims against Boston Scientific and Bard proceeded to jury trial on November 30, 2015, and continued through February 2, 2016.2 The jury returned

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verdicts in favor of the Defendants on February 2, 2016. The trial court entered its judgment in conformity with the jury's verdicts on March 18, 2016 ("Judgment"). Plaintiff's motion for new trial was denied by the trial court on July 13, 2016.

This appeal followed.3 Other facts will be discussed as relevant to Sherrer's points on appeal.

Summary of Points on Appeal and Standard of Review

Sherrer raises four points on appeal involving either the admission or exclusion of evidence at trial, or the trial court's failure to grant a mistrial. Summarized, Sherrer complains about the trial court's exclusion of impeachment evidence in the form of Bard's prior felony convictions (point one); about the Defendants' references to Sherrer's allegations in the Original Petition (point two); about the trial court's failure to grant a mistrial when a demonstrative power point slide mistakenly included reference to Sherrer's settlement with TMC and UPA (point three); and about the trial court's exclusion of other complaints involving the Defendants' mesh products (point four).

The standard of review for the admission or exclusion of evidence, (applicable to points one, two, and four), is for an abuse of discretion. "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.'" Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015) (quoting Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011)). "A ruling constitutes an abuse of discretion when it is 'clearly

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against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.'" Id. (quoting Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014)). "If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion." In re Care & Treatment of Donaldson, 214 S.W.3d 331, 334 (Mo. banc 2007).

If an evidentiary ruling is determined to be an abuse of discretion, an appellate court remains "loathe to vacate a jury's verdict and resulting judgment on such grounds." Lozano, 421 S.W.3d at 451 (citing Lewis v. Wahl, 842 S.W.2d 82, 84-85 (Mo. banc 1992 ("question of error does not resolve the question of whether reversal is mandated")). "Instead, '[b]y both statute and rule, an appellate court is not to reverse a judgment unless it believes the error committed by the trial court . . . materially affected the merits of the action.'" Id. at 451-52 (quoting Lewis, 842 S.W.2d at 84-85); see section 512.160.24 ("[n]o appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action); Rule 84.13(b)5 (same).

The standard of review following denial of a motion for mistrial, (applicable to point three), is for manifest abuse of discretion. Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 215 (Mo. App. W.D. 2013). "A mistrial is a drastic remedy." Id. (citing Brown v. Bailey, 210 S.W.3d 397, 411 (Mo. App. E.D. 2006)). "A manifest abuse of discretion

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occurs only when the error is so grievous that the prejudice cannot be removed." Id. (citing Brown, 210 S.W.3d at 411); see also Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 208 (Mo. banc 1991) ("Mistrials are a most drastic remedy and should be reserved for the most grievous error where prejudice cannot otherwise be removed."). "We recognize that the trial court is better positioned to assess the prejudicial effect that improper evidence has on the jury." Payne v. Fiesta Corp., 543 S.W.3d 109, 123 (Mo. App. E.D. 2018) (citing Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 24 (Mo. App. E.D. 2013)).


Point One: The Exclusion of Evidence of Bard's Criminal Convictions Offered to Impeach Bard's Credibility

Sherrer's first point on appeal claims that the trial court abused its discretion in excluding evidence of Bard's criminal convictions because the evidence was admissible as a matter of right pursuant to section 491.050, and because the evidence became admissible during the course of trial to contradict evidence of Bard's good corporate character. Sherrer's point on appeal is multifarious, as it argues two distinct bases for the admission of evidence of Bard's criminal convictions.6 "'Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review.'" Griffitts v. Old Republic Ins. Co., No. SC96740, 2018 WL 3235859, at *3 n.6 (Mo. banc July 3, 2018) (quoting Kirk v. State, 520 S.W.3d 443, 450 n.3 (Mo. banc 2017) (holding that point on appeal arguing that trial court erroneously declared and applied the law was impermissibly

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multifarious in violation of Rule 84.04 because "it groups together multiple, independent claims rather than a single claim of error")). We exercise our discretion, however, to review only the first of the two claims raised in Sherrer's multifarious point. Griffitts, 2018 WL 3235859, at *3; Spence v. BNSF Ry. Co., 547 S.W.3d 769, 779 n.12 (Mo. banc 2018) (electing to review only the first of multiple claims in a multifarious point relied on). Resolution of the first claim raised in Sherrer's multifarious point is sufficient to permit us to conclude that it was reversible error to exclude evidence of Bard's criminal convictions to impeach Bard.

(i) The trial court's rulings addressing the exclusion of Bard's criminal convictions

In 1994, Bard entered a plea of guilty to 391 counts of conspiracy, mail fraud, false statements, and adulterated product/failure to file medical device report in the United States District Court for the District of Massachusetts, requiring it to pay criminal fines in the amount of $30,500,000. The conduct that gave rise to the guilty pleas did not involve the mesh sling product at issue in Sherrer's case, and instead involved heart catheter devices manufactured by a division of the company that Bard no longer owns.

Bard argued in a motion in limine that all evidence or argument concerning unrelated business issues, investigations, alleged bad acts, or alleged illegal activity should be excluded. Bard later supplemented this motion in limine to argue in particular that all evidence and argument regarding its 1994 criminal convictions should be excluded. Bard argued that evidence of the 1994 criminal convictions: (i) was logically irrelevant character evidence; (ii) could not be used for impeachment under Missouri law because section

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491.050 applies only to natural persons convicted of a crime; and (iii) was legally irrelevant because the probative value of the evidence was substantially outweighed by its prejudicial value.

Bard's motion in limine was argued on November 29, 2015, the Sunday before trial. The parties generally stipulated that evidence of Bard's unrelated business issues, investigations, alleged bad acts, or alleged illegal activity would be excluded, but could not agree about the admissibility of evidence of Bard's criminal convictions. Bard and Sherrer disagreed about whether section 491.050, which permits a "person" who appears as a witness to be impeached by the person's criminal convictions, applies to corporations. They also disagreed about whether the statutory right to use criminal convictions to impeach is absolute or remains subject to the trial court's discretion to exclude highly...

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