Stewart v. Partamian

• Decision Date: 21 July 2015
• Docket Number: No. SC 94120,SC 94120
• Citation: 465 S.W.3d 51
• Parties: Douglas Stewart, Respondent, v. Krikor O. Partamian, M.D., and Phoenix Urology of St. Joseph, Inc., Appellants.
• Court: Missouri Supreme Court

465 S.W.3d 51

Douglas Stewart, Respondent

v.Krikor O. Partamian, M.D., and Phoenix Urology of St. Joseph, Inc., Appellants.

No. SC 94120

Supreme Court of Missouri, en banc .

Opinion issued July 21, 2015

Partamian and Phoenix Urology were represented by James E. Meadows of Polsinelli PC in Springfield, (417) 869–3353, Richard M. AuBuchon of the AuBuchon Law Firm LLC in Jefferson City, (573) 616–1845, and Timothy M. Aylward and Matthew T. Swift of Horn Aylward & Bandy LLC in Kansas City, (816) 421–0700.

Stewart was represented by Paul L. Redfearn and Michael D. Wallis of The Redfearn Law Firm PC in Independence, (816) 421–5301; and Edward D. Robertson Jr. and Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Goza PC in Jefferson City, (573) 659–4454.

Opinion

Richard B. Teitelman, Judge

Krikor Partamian, M.D. (Dr. Partamian), and Phoenix Urology of St. Joseph, Inc. (collectively Appellants), appeal from a judgment awarding $4.3 million to Douglas Stewart (Respondent) on his claim for medical negligence. Appellants argue that the trial court abused its discretion in admitting into evidence videotaped deposition testimony from Dr. John Riordan. Appellants also argue that the trial court abused its discretion by failing to find that the verdict was excessive due to jury passion and prejudice and because it exceeded fair and reasonable compensation for Respondent's injuries. Finally, Appellants argue that the trial court erred in declining to enter an order of remittitur because section 538.300,¹ which prohibits defendants in medical negligence cases from seeking remittitur, violates the right to a trial by jury guaranteed by article I, section 22(a) of the Missouri Constitution.² The judgment is affirmed.

Appellants did not object at trial to the admission of Dr. Riordan's videotaped deposition testimony and, therefore, did not preserve this issue for appellate review. Appellants have not demonstrated that the jury's verdict was excessive due to passion and prejudice or that the verdict was excessive because it exceeded fair and reasonable compensation for Respondent's injuries. Finally, this Court will not address Appellants' constitutional challenge to section 538.300 because the failure to demonstrate that the verdict was excessive means that Appellants did not make the required threshold showing that would raise the possibility of remittitur and thereby implicate the statutory prohibition in section 538.300.

Facts

On May 11, 2009, Dr. Partamian diagnosed Respondent with a prostate abscess

. Dr. Partamian testified at trial a prostate abscess is “a collection of pus or purulent material” caused by an inflammatory response to a bacterial infection. The abscess is formed when the body encapsulates the infected tissue to contain the infection. A prostate abscess is a serious medical condition that requires antibiotics and, if necessary, draining the abscess by piercing it and allowing it to drain from the body through the urinary tract.

After diagnosing the abscess

, Appellants placed Respondent on antibiotic treatment. On May 15, 2009, Dr. Riordan, a member of the Phoenix practice group, examined Respondent. Dr. Riordan testified that his opinion was that Respondent's prostate abscess should be drained. Appellants did not drain the abscess and, instead, continued antibiotic treatments.

On May 17, 2009, Respondent's prostate abscess ruptured

and, according to Dr. Partamian, was “spilling out into adjacent tissues.” Dr. Partamian performed surgery. The surgery required an incision between Respondent's scrotum and anus to permit drainage. It also required the insertion of multiple drainage tubes to facilitate drainage.

As a result of the abscess rupture

, Respondent sustained significant injuries. The infection spread into his penis, scrotum, pelvis and perineum. For 28 days, Respondent was in a coma and could breathe only with the assistance of a mechanical ventilator. The infection destroyed his urethra, causing Respondent to urinate from his perineum. Respondent's urethra had to be reconstructed with tissue from his mouth. The infection destroyed the musculature surrounding Respondent's urethra, causing urinary incontinence. Respondent's injuries also resulted in impaired reproductive function and persistent, permanent pain. Respondent sustained the foregoing injuries when he was 36 years old and, soon after, he was engaged to be married.

In June 2012, Respondent filed the underlying lawsuit alleging that Appellants negligently failed to timely drain the prostate abscess

, causing the abscess to rupture. Respondent alleged that Appellants' negligence caused the injuries described above. The case proceeded to trial, and the jury returned a unanimous verdict in Respondent's favor. The jury awarded Respondent $401,726.77 for past economic damages, $1.5 million for past non-economic damages and $2,398,273.23 for future non-economic damages for a total verdict of $4.3 million. This appeal followed.

I. Appellants waived any objection to Dr. Riordan's deposition testimony

Appellants argue that the trial court abused its discretion by allowing Respondent to present evidence regarding two general aspects of Dr. Riordan's videotaped deposition testimony. First, Appellants argue that the trial court erred in admitting Dr. Riordan's testimony regarding his treatment of previous patients with prostate abscesses

. Appellants assert that this testimony erroneously allowed Respondent to use evidence of Dr. Riordan's subjective medical opinion to establish the objective, generally applicable standard of care. Appellants also assert that evidence of Dr. Riordan's treatment of previous patients was inadmissible because there was no evidence that the treatment needs of Respondent were sufficiently similar to those of Dr. Riordan's previous patients.

Second, Appellants assert that the trial court erred in admitting Dr. Riordan's testimony regarding his contract dispute with Phoenix. Appellants assert that this is a collateral issue introduced by Respondent to imply that Phoenix “was more concerned with money than quality or [Respondent's] care.”

“To properly preserve an issue for an appeal, a timely objection must be made during trial.” State v. McFadden, 369 S.W.3d 727, 740 (Mo. banc 2012). “General allegations of error not based upon specific objection or requests made during trial are insufficient to preserve the allegations for review; nor may deficiencies in the motion be supplied from the movant's brief on appeal.” Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 640 (Mo. banc 2013) (quoting Williams By & Through Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987) ).

Appellants cite their pretrial motion in limine as evidence of an objection. “A motion in limine, by itself, preserves nothing for appellate review.” Hancock v. Shook, 100 S.W.3d 786, 802 (Mo. banc 2003).

Appellants assert that they lodged timely objections at trial to the admission of Dr. Riordan's deposition testimony. Appellants cite two portions of the trial transcript documenting two instances in which Dr. Riordan's deposition testimony was shown to the jury. In one instance, Appellants' trial counsel acknowledged that Dr. Riordan's testimony would be shown to the jury and informed the court that he had “no problem with that at all.” In the other instance, the record reflects the video was shown to the jury and counsel made no objection. Appellants did not object at trial when Dr. Riordan's deposition testimony was offered and admitted into evidence.

Finally, Appellants cite their written objections to portions of Dr. Riordan's deposition testimony. The certificate of service on the objections states that they were served on Respondent's counsel prior to trial, on or about November 23, 2013. Dr. Riordan's testimony was admitted at trial in December 2013. The objections were file-stamped as received by the circuit court on January 3, 2014 after the trial had ended. Appellants assert that it is “likely” that the objections were filed in open court and that the objections simply were not entered into the trial record until after trial. This Court will not find reversible error based on speculation as to what “likely” may have happened at trial. Further, the record reflects that Appellants' trial counsel specifically stated that Appellants had “no problem” with the admission of Dr. Riordan's testimony.

Appellants did not timely object at trial to the admission of Dr. Riordan's videotaped testimony. Therefore, Appellants' waived their argument that the trial court erred in admitting this evidence at trial.

II. The verdict was not excessive

Appellants argue that the trial court erred by refusing to grant a new trial because the verdict was excessive. Appellants assert that the jury's verdict of $4.3 million was excessive because it was a result of passion and prejudice, exceeded the amount requested by Respondent in closing argument, and exceeded fair and reasonable compensation for Respondent's injuries.

The standard of review for a trial court's order denying a motion for a new trial is abuse of discretion. St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 134 (Mo. banc 2013). An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. Id. In considering whether the trial court abused its discretion, appellate courts view the facts in the light most favorable to the trial court's order. Id.

There are two general types of excessive verdicts: (1) a verdict that is disproportionate to the evidence of injury and results from an “honest mistake” by the jury in assessing damages; and (2) a verdict that is excessive due to trial error that causes bias and prejudice by the jury. Lindquist v. Scott Radiological Grp., Inc., 168 S.W.3d 635, 645 (Mo.App.2005). When a verdict is...