Snellen v. Capital Region Med. Ctr.

• Decision Date: 04 February 2014
• Docket Number: No. WD 75787.,WD 75787.
• Citation: 422 S.W.3d 343
• Parties: Kylie SNELLEN, by and through her Next Friend, Katheryn SNELLEN, Appellant, v. CAPITAL REGION MEDICAL CENTER, Respondent.
• Court: Missouri Court of Appeals

422 S.W.3d 343

Kylie SNELLEN, by and through her Next Friend, Katheryn SNELLEN, Appellant,
v.
CAPITAL REGION MEDICAL CENTER, Respondent.

No. WD 75787.

Missouri Court of Appeals,
Western District.

Oct. 15, 2013.
Application for Transfer to Supreme Court Denied Nov. 26, 2013.
Application for Transfer Denied Feb. 4, 2014.

[422 S.W.3d 345]

David M. Zevan, Kevin J. Davidson and Rachel L. Roman, St. Louis, MO, for appellant.

Susan Ford Robertson, Kansas City, MO and Edward C. Clausen, Jefferson City, MO, for respondent.

[422 S.W.3d 346]

Before Division Two: THOMAS H. NEWTON, Presiding Judge, KAREN KING MITCHELL, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

This is an appeal from a judgment entered after jury verdict in a medical malpractice action arising from the birth and delivery of Appellant. Appellant Kylie Snellen (“Snellen”), by and through her mother, Katheryn McCormick f/k/a Katheryn Snellen (“McCormick”), raised four points of error from the judgment entered in favor of Respondent Capital Region Medical Center (“Capital Region”). The judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORY ¹

McCormick was admitted to Capital Region's labor and delivery unit for induction of labor on April 3, 1998. At approximately 10 a.m., McCormick began active labor. She delivered Snellen by Cesarean section at 2:50 a.m. on April 4, 1998. At the time of trial, Snellen was a fourteen-year-old girl with a diagnosis of static encephalopathy, more commonly known as cerebral palsy.

At issue in the trial was the cause of Snellen's cerebral palsy. Snellen presented evidence that the cause of her condition was a lack of oxygen during labor and delivery that caused her to suffer hypoxic ischemic encephalopathy (HIE) with resultant brain damage. Snellen contended that during labor and delivery, the doctor, Lydia Keisler (“Keisler”),² failed to recognize signs of fetal distress and inadequate oxygenation. Capital Region presented evidence that Snellen was not deprived of oxygen during labor and delivery and that her cerebral palsy was not caused by HIE.

Further facts as necessary are set forth below as they relate to the individual points on appeal.

ANALYSIS

Snellen raises four points on appeal. First, she argues that the trial court erred in denying her request for a mistrial after Keisler testified that she had been investigated and vindicated of the alleged negligent acts by the Missouri State Board of Healing Arts (“Board”) in contravention of section 537.035³ and evidentiary rules precluding introduction of irrelevant, prejudicial information. Second, Snellen argues that the trial court erred in allowing a Capital Region expert to rely upon certain medical literature published to the jury where that expert testified in a pre-trial deposition that he would not be relying on that specific literature. Third, Snellen argues that the trial court erred in denying her request for a jury instruction to strike the testimony of one of Capital Region's experts because that expert gave no opinions which would assist the jury or that were based on a reasonable degree of medical certainty. Fourth, Snellen argues that the trial court plainly erred in its prejudicial comments and questions to counsel during voir dire and in striking one specific, potential juror. After review of each point, we affirm.

[422 S.W.3d 347]

Point I: Motion for a Mistrial

In her first point, Snellen argues that the trial court erred in denying her motion for a mistrial because Capital Region violated section 537.035 and evidentiary rules precluding the introduction of irrelevant, prejudicial information in that Capital Region deliberately elicited testimony from Keisler about strictly prohibited peer-review committee proceedings and findings.

Background

The asserted error lies in the direct examination of Keisler. The trial transcript shows the following exchange between Keisler, defense counsel Nicole Sublett (“Sublett”), and two of Snellen's attorneys, David Zevan (“Zevan”) and Rachel Roman (“Roman”):

Sublett: Now, Doctor, you are licensed in the State of Missouri.

Keisler: Yes.

Sublett: And does the board that licenses you, the Board of Healing Arts, review all medical malpractice claims that are filed in the State of Missouri?

Keisler. Yes.

Roman: Objection.

Sublett: And did the Board review this—

Zevan: Excuse—

Sublett: Case?

Zevan:—me. We need to approach. That's—

Roman: Objection.

Counsel then approached the bench. Outside of the hearing of the jury, Snellen sought a mistrial on the ground that Sublett had stated in front of the jury that there had been an investigation before the Board and that Keisler had been vindicated.⁴ Snellen argued that a reference to a “vindication” from the Board is highly prejudicial and reversible error. The judge and the attorneys then had a lengthy discussion of what everyone said and heard.

The following is part of the exchange:

Court: And I'll stand corrected, but I think the record will reflect that the question that was being asked at the time of the objection, and what the objection shut down, because we approached was: “Isn't it true that every malpractice case gets investigated.” I do not believe the attorney said: “Did this one get investigated.”

Sublett: No, I said, “Do all of them get investigated.”

Court: We can check the record.

Zevan: Well, the record needs to reflect she said, “The State Board of Healing Arts investigates these,” and she continued to make that statement, to drown me out, during my objection. That's reversible error. And I'm making a motion for mistrial, based on that statement, which now injected in front of the jury is that she somehow has been investigated and she's been vindicated by the State Board. That's highly prejudicial.

Court: I don't think enough was said to go that far.

Zevan: I absolutely disagree.

Court: Motion for mistrial is denied. Your objection, for various reasons, one of which is hearsay, and the other one you're saying, relevancy.

Zevan: Yes.

Court: Are sustained. Go to something else.

[422 S.W.3d 348]

Although the court indicated that it did not think it necessary, at Snellen's request, the court further instructed the jury to “disregard the last question, and, if there was an answer, disregard it as well.” Direct examination proceeded on a new topic.

At the next break Snellen's attorney's again addressed the court on the matter and again requested a mistrial and it was again denied.

After the jury's verdict, Snellen moved for a new trial, specifically raising this issue. Attached to the motion was an affidavit from Zevan. Zevan swore that he heard Sublett question Keisler as to whether the Board reviewed this case. Zevan swore that he witnessed Keisler respond to Sublett's question over objection and Keisler “responded that the Board had investigated her in this case and that she had been vindicated.” Zevan swore that he witnessed Keisler's response “simultaneously as I was objecting to Ms. Sublett's question and walking toward the bench to address the objection....” He also swore that he “personally witnessed Juror No. 5, [name redacted], nodding his head up and down after Dr. Keisler gave her response.” He stated also that because the comments were made simultaneously, Keisler's response was not recorded in the trial transcript.

At a post-trial hearing, the court heard argument regarding the motion for a new trial:

Zevan: First and foremost, we have the issue of Dr. Lydia Keisler. At the very end of her direct examination, before the jury, Dr. Keisler was asked whether or not there had been an investigation and whether or not she had been exonerated—or “vindicated” was the term, by the State Board of Healing Arts. Ms. Roman [sic] was doing the direct examina—the cross-examination [sic] of the witness at that time. When I heard those words coming into the courtroom, I objected. And as I objected, Dr. Keisler was turning to the jury and answered to them that she was investigated and exonerated by the State Board of Healing Arts.

The Court: Yeah, I'll just tell you, I didn't hear that.

Snellen argued that the oral withdrawal instruction which admonished the jury to disregard the question and any answer that may have been given was insufficient because the comment was too prejudicial.⁵ Snellen also argued that the issue had been “rehearsed and planned” and that Keisler was intent on answering the question.

Capital Region's counsel argued that he did not hear “vindicated” or “exonerated” or “any words anywhere near close to anything like that.” Capital Region's counsel pointed out that the record reflected that the question was whether this case had been investigated by the Board of Healing Arts and that the transcript indicated it was not answered.

After argument, the trial court stated:

The question here is what happened after the objection was made. And this Court was sitting right here, right next to this witness, and I—I stated, even—when we were at the bench, outside of the hearing of the jury, that I didn't hear a response about—to a subsequent issue of: “And the board decided she was vindicated.”

Now, I even, on my admonishment, short of granting a mistrial, even had to qualify my admonishment to the jury as to any answer to the question, if there was one, because I didn't hear it. The record doesn't reflect it. While the

[422 S.W.3d 349]

question was improper, the objection to it was sustained. The jury was hereafter told to disregard. There wasn't anything else to be disregarded, in this Court's view. And particularly since the record doesn't reflect it. Now—and I don't know if there's any more to be said on that. I don't think we need to get into whether or not the Board of Healing Arts is a peer review, because, there again, I think the objection was timely and proper and that this Court addressed the problem properly. So that point's overruled.

Standard of Review

“A mistrial is a drastic remedy, granted only in extraordinary circumstances.” State ex rel. Kemper...