Sherrer v. Bos. Scientific Corp.

• Decision Date: 13 October 2020
• Docket Number: No. SC 97465,SC 97465
• Parties: Eve SHERRER, Appellant, v. BOSTON SCIENTIFIC CORPORATION and C.R. Bard, Inc., Respondents.
• Court: Missouri Supreme Court

609 S.W.3d 697

Eve SHERRER, Appellant,

v.BOSTON SCIENTIFIC CORPORATION and C.R. Bard, Inc., Respondents.

No. SC 97465

Supreme Court of Missouri, en banc.

Opinion issued October 13, 2020

Rehearing Denied November 24, 2020

Sherrer was represented by Michael W. Manners of Langdon & Emison in Lexington, (660) 259-9910; Richard L. Rollings Jr., an attorney in Camdenton, (573) 873-6060; Grant Davis and Valley Renshaw of Davis Bethune & Jones LLC in Kansas City, (816) 421-1600; and Thomas P. Cartmell and Jeffery M. Kuntz of Wagstaff & Cartmell LLP in Kansas City, (816) 701-1100.

Boston Scientific was represented by Robert T. Adams and Michael J. Kleffner of Shook, Hardy & Bacon LLP in Kansas City, (816) 474-6550.

Bard was represented by William Ray Price Jr., Jeffery T. McPherson and Paul L. Brusati of Armstrong Teasdale LLP in St. Louis, (314) 621-5070; Elliot H. Scherker and Brigid F. Cech Samole of Greenberg Traurig PA in Miami, Florida, (305) 579-0500; and Lori G. Cohen, R. Clifton Merrell and Sean P. Jessee of Greenberg Traurig LLP in Atlanta, Georgia, (678) 553-2100.

PER CURIAM

Eve Sherrer appeals a judgment in favor of Boston Scientific Corporation (BSC) and C.R. Bard Inc. after a jury trial on her claims of negligence, product defect, and failure to warn related to their design and manufacture of polypropylene mesh slings that were surgically implanted in Sherrer. On appeal, Sherrer claims the circuit court erred in: (1) prohibiting her from presenting evidence of Bard's prior convictions; (2) allowing the display of portions of her original petition and its allegations of negligence against two defendants with whom she had settled and dismissed from the case; (3) allowing cross-examination of her and other witnesses with allegations and claims in her original petition; and (4) denying a mistrial when information was presented to the jury regarding her settlements with the two dismissed defendants.

The circuit court did not err in excluding evidence of Bard's prior convictions because section 491.050,¹ authorizing impeachment with prior criminal convictions, is inapplicable to corporations and the convictions were not admissible to rebut good-character evidence. Her original petition's allegations and claims against former defendants were inconsistent pleadings permitted by Rule 55.10 and could not be used against her as admissions of a party opponent or as her prior inconsistent statements. Nevertheless, the circuit court's errors in not sustaining Sherrer's objections to BSC's and Bard's use of her claims against the dismissed defendants were not prejudicial because similar evidence was admitted without objection. Neither did the circuit court manifestly abuse its discretion denying Sherrer's request for a mistrial after Bard displayed to the jury highly prejudicial evidence of her settlements with the dismissed defendants. The circuit court's judgment in favor of BSC and Bard is affirmed.

Factual and Procedural Background

Sherrer had surgery at Truman Medical Center-Lakewood ("TMC"), on October 28, 2010, for stress urinary incontinence

. Her surgeons, Dr. Peter Greenspan and Dr. Kristen Kruse, were employed by University Physician Associates ("UPA"). During the surgery, Dr. Greenspan implanted a Solyx polypropylene mesh sling, manufactured and designed by BSC. Sherrer alleges her condition worsened immediately after the surgery, and, in January 2011, Dr. Richard Hill operated to remove portions of BSC's Solyx sling and implant an Align polypropylene mesh sling, manufactured and designed by Bard. Sherrer alleges her condition did not improve and she suffered painful complications.

In October 2012, Sherrer filed a petition asserting medical negligence claims against TMC and UPA. Sherrer alleged in the petition that TMC and UPA were liable for the negligent care and treatment related to her 2010 surgery, which was provided to her by the agents, servants, and employees of TMC and UPA. Specifically, she claimed TMC and UPA were negligent in:

(1) allowing Dr. Kruse² to perform the Solyx sling implant when the doctor lacked the necessary skill;

(2) failing to make Sherrer aware more skilled physicians were available to perform the surgery;

(3) failing to obtain adequate informed consent from Sherrer, by failing to disclose the amount of skill and experience Dr. Kruse had and failing to discuss the risks of implanting the mesh products and alternative treatment;

(4) failing to follow the manufacturer's instructions in placing the sling; and

(5) failing to attach the sling's right-side anchor.

The petition further alleged that, as a result of TMC and UPA's negligence, Sherrer sustained physical and mental pain and suffering and incurred medical expenses for her surgeries and ongoing medical care.

In 2013, she filed an amended petition that restated, nearly verbatim, the allegations of her negligence claims against TMC and UPA and added six claims against BSC and Bard as manufacturers and designers of the polypropylene mesh slings, including claims for negligence, design and manufacturing defects,³ and failure to warn. In April 2014, while litigation was pending, Sherrer underwent a third surgery to remove the Solyx and Align slings.⁴ The following November, she settled her medical malpractice claims against TMC and UPA and dismissed her claims against them.

Sherrer's claims against BSC and Bard were tried to a jury from November 2015 through February 2016. She submitted claims for negligence, product defects, and failure to warn to the jury, and the jury returned verdicts on these claims in favor of BSC and Bard. The circuit court entered judgment for BSC and Bard. Sherrer appealed, and this Court ordered the cause transferred after opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Sherrer raises four claims of error on appeal. In her first and second points of error, Sherrer claims the circuit court erred in sustaining objections to admission of Bard's criminal convictions because the convictions were admissible to impeach its credibility pursuant to section 491.050 and to contradict and rebut evidence of its good character. In her third point, she asserts the circuit court abused its discretion in permitting Bard and BSC to show the jury the caption of her abandoned original petition and its allegations of TMC's and UPA's negligence and to impeach her and other witnesses with those allegations. Finally, she claims the circuit court manifestly abused its discretion in failing to declare a mistrial after Bard displayed to the jury evidence of her settlements with TMC and UPA.

Standard of Review

The admission or exclusion of evidence lies within the sound discretion of the trial court and will not be disturbed absent clear abuse of discretion. Cox v. Kan. City Chiefs Football Club, Inc. , 473 S.W.3d 107, 114 (Mo. banc 2015). "A ruling constitutes an abuse of discretion when it is clearly 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. (internal quotations omitted). By contrast, a circuit court's interpretation of a statute is a question of law reviewed de novo. Dodson v. Ferrara , 491 S.W.3d 542, 551 (Mo. banc 2016).

A circuit court's denial of a mistrial is reviewed for a "manifest abuse of discretion." Spence v. BNSF Ry. Co. , 547 S.W.3d 769, 780 (Mo. banc 2018). "To establish a manifest abuse, there must be a grievous error where prejudice otherwise cannot be removed." St. Louis Univ. v. Geary , 321 S.W.3d 282, 293 (Mo. banc 2009).

I. Prior Convictions Not Admissible

Sherrer asserts the circuit court erred when it excluded evidence of Bard's prior criminal convictions because (1) the evidence was admissible to impeach Bard's credibility as a matter of right pursuant to section 491.050; and (2) the evidence became admissible during the course of trial as negative character evidence to rebut evidence of Bard's good corporate character. Bard argues section 491.050 does not apply to criminal convictions of a corporation. Bard also argues it did not present evidence of its good corporate character, so evidence of its prior convictions did not become admissible in the course of trial.

Generally, a circuit court has discretion to control the bounds of cross-examination, but its control is limited by section 491.050, which gives an absolute right to show a prior conviction of a witness. Fisher v. Gunn , 270 S.W.2d 869, 876 (Mo. 1954). Sherrer claims the circuit court failed to recognize, under section 491.050, she had the absolute right to impeach Bard's credibility with evidence of its prior federal convictions for 391 counts of conspiracy, mail fraud, false statement, and adulterated product/failure to file medical device reports.

Section 491.050 provides, in relevant part:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case.... Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

"When interpreting a statute, this Court is guided by the legislature's intent, as indicated by the statute's plain language." Desai v. Seneca Specialty Ins. Co. , 581 S.W.3d 596, 601 (Mo. banc 2019). Sherrer contends ascertaining the legislature's intent from the language of section 491.050 requires consideration of section 1.020(12), RSMo Supp. 2013, which defines "person" to include corporations, so a corporation may be impeached by evidence of its prior conviction. Section 1.020(12), RSMo Supp. 2013, does not provide that "person" is always synonymous with "corporation." Rather, it provides that "person" may include corporations, but not if the inclusion of "corporation" is "plainly repugnant to the intent of ...