Whitted v. Healthline Management, Inc., ED 80581.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMary R. Russell
Citation90 S.W.3d 470
PartiesFelicia WHITTED, Carla Whitted, and Shanota Cunningham, Respondents, v. HEALTHLINE MANAGEMENT, INC., and John Beck, M.D., Appellants.
Docket NumberNo. ED 80581.,ED 80581.
Decision Date29 October 2002

Page 470

90 S.W.3d 470
Felicia WHITTED, Carla Whitted, and Shanota Cunningham, Respondents,
v.
HEALTHLINE MANAGEMENT, INC., and John Beck, M.D., Appellants.
No. ED 80581.
Missouri Court of Appeals, Eastern District, Division Three.
October 29, 2002.

Page 471

COPYRIGHT MATERIAL OMITTED

Page 472

Robert T. Haar, Susan E. Bindler, Kim Roger Luther, St. Louis, MO, for appellants.

David N. Damick, John C. Kress, St. Louis, MO, for respondents.

MARY R. RUSSELL, Presiding Judge.


Healthline Management, Inc. ("Company") and John Beck, M.D. ("Doctor"), appeal the grant of a new trial in a negligence action against them for the death of Cornelius Whitted ("Patient"). Patient's daughters, Felicia Whitted, Carla Whitted, and Shanota Cunningham ("Daughters"), moved for a new trial after a jury rendered a verdict for Doctor. The trial court granted Daughters' motion on the ground that, following his deposition and before trial, Company and Doctor's sole expert, Dr. Philip Ludbrook ("Expert"), changed his testimony regarding the medical issues in the case without notice to Daughters.

Page 473

We affirm in part and reverse and remand in part.

Patient fell off a ladder while cleaning out a gutter at his parents' house at approximately 5 p.m. on August 31, 1997. Approximately two and one-half hours later, Patient fainted and his family called an ambulance. When he arrived in the emergency room, Patient told the staff that when he fell, he had struck his right side, hitting his chest or abdomen, and he complained of pain in the right side of his chest, his right wrist, and his right hip. Patient had a cervical collar on his neck and also said he was nauseated. Patient's vital signs were taken, and he received cervical spine and chest x-rays, which did not indicate any fractures. Doctor then ordered x-rays of Patient's wrists and ribs.

After he had been in the emergency room for approximately half an hour and Doctor had conducted x-rays, examined him, and inquired about his medical history, Patient told Doctor that he felt a dull pain on the left side of his chest that had begun before he fell from the ladder. Doctor requested an electrocardiogram, which was performed at 9:18 p.m. Within minutes after the test, Patient suffered a heart attack and died.

Daughters brought suit against Company, Doctor, and Normandy Community Hospital Management ("Hospital") claiming that all three were liable for the negligent treatment of Patient in the emergency room.1 Daughters alleged several negligent acts against all three, the crux of which was that Doctor committed negligence in that he failed to exercise the degree of knowledge, skill, and care as an ordinarily careful, qualified, and competent physician would have provided in that circumstance. Daughters claimed that Hospital and Company were liable as a result of Doctor's actions because he was Hospital's and Company's agent or employee.

Hospital reached a settlement with Daughters that was approved by the court on the last day of the trial. Daughters did not submit a jury instruction as to Company, but they did submit their claim against Doctor to the jury, which returned a verdict in favor of Doctor.

Daughters subsequently moved for a new trial on several grounds, and the trial court granted their motion on the basis that Expert's testimony changed after his deposition and before trial without notice to them. The trial court's order granted a new trial as to Company and Doctor. They appeal that judgment.

Company and Doctor (collectively "Healthcare Providers") assert three points of error on appeal. In their first two points, they argue that the trial court erred in granting a new trial because Expert did not change his testimony and because any claim of error was waived by Daughters in that they failed to object to Expert's testimony at trial. Healthcare Providers argue in their third point that the trial court abused its discretion in granting a new trial as to Company because Daughters had abandoned their claim against it by failing to submit it to the jury.

When deciding whether to grant a new trial, a trial court has broad discretion. Duckett v. Troester, 996 S.W.2d 641, 646 (Mo.App.1999). A trial court may, on a motion for new trial, reconsider its discretionary rulings and order a new trial if it believes its discretion was not wisely exercised and the losing party was prejudiced as a result. Cooper v. Ketcherside,

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907 S.W.2d 259, 260 (Mo.App.1995). "The admissibility of evidence, including the testimony of an expert, is a matter within the discretion of the trial court." Id. We are, therefore, limited to evaluating on review whether the trial court abused its discretion in finding prejudice. Id.

A ruling constitutes an abuse of discretion when it is so arbitrary and unreasonable as to shock one's sense of justice and to indicate a lack of careful consideration. Duckett, 996 S.W.2d at 646. When reasonable persons could differ as to the propriety of the trial court's ruling, however, it cannot be said that the trial court abused its discretion. Id. Furthermore, we apply a rule of greater liberality when reviewing a trial court's grant, as opposed to its denial, of a new trial. Cooper, 907 S.W.2d at 260.

In their first point, Healthcare Providers claim the trial court erred in granting Daughters' motion for a new trial on the ground that Expert changed his testimony after his deposition and before trial. Healthcare Providers assert that the trial court's ruling is not substantially supported by the record because (1) the trial court's order violated Rule 78.03 as it did not articulate the nature of the changed testimony, (2) Expert did not change his testimony, and (3) Expert's testimony was not prejudicial as it was cumulative to testimony introduced by Daughters on the same issue and it did not express new opinions but merely served to explain his deposition testimony.

We begin our analysis by addressing Healthcare Providers' allegation that the trial court's order lacks specificity in violation of Rule 78.03, which requires every order for a new trial to "specify of record the ground or grounds on which said new trial is granted." The failure of a trial court to specify the ground upon which a new trial is granted creates a presumption of error, and the party in whose favor the new trial was granted bears the burden of supporting the trial court's ruling. Blue Cross Health Servs., Inc. v. Sauer, 800 S.W.2d 72, 75 (Mo.App. 1990). If the rule were otherwise, the party appealing from the grant of a new trial would be required to show the absence of merit in each claim of error set forth in the proponent's motion for a new trial. Id. Instead, when a new trial is granted without specific grounds cited, Rule 84.05(c)2 allows the party opposing the new trial to shift the burden to the proponent to support the order. Sauer, 800 S.W.2d at 75.

The order granting Daughters a new trial states:

The new trial is granted on the grounds that [Healthcare Providers'] sole expert, changed his testimony regarding medical issues in this case after his deposition and prior to trial without notice to [Daughters]. The Court has read the deposition testimony of [Expert] and reviewed the trial testimony of [Expert]. Based upon that review, the Court finds that there was a material change in testimony at trial. In addition, the Court finds that this change in testimony was prejudicial to [Daughters].

Daughters' motion for a new trial includes six paragraphs, each of which asserts a different claim as to why they are entitled to a new trial. Only the first paragraph alleges that a new trial should be awarded on the ground that Expert's trial and deposition testimony differed without notice to Daughters, whereas the other five paragraphs contain disparate arguments. The trial court's order was accompanied by more than a scant explanation

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of its reasoning, and it consisted of more than merely an attempt to indirectly incorporate Daughters' motion for a new trial. Cf. Bishop v. Carper, 81 S.W.3d 616, 619 (Mo.App.2002) (reversing new trial award that undisputedly failed to meet specificity requirement and stated only "Court sustains Motion for New Trial"); Rodman v. Schrimpf 18 S.W.3d 570, 571-72, 575 (Mo.App2000) (reversing order for new trial when only enumerated reason was "for good cause shown" and proponents failed to overcome presumption or error); Gamble v. Bost, 901 S.W.2d 182, 184-85, 188 (Mo.App.1995) (finding proponent met her burden of supporting order for new trial granted "on the basis of instruction No. 9" without explanation as to which of her three arguments pertaining to instruction was basis for order); McDowell v. Kawasaki Motors Corp. USA, 799 S.W.2d 854, 859 (Mo.App.1990) (criticizing new trial order in which trial court did not state reasons for its order; order merely referred to paragraphs of proponent's motion and adopted "shotgun" assignments of error). In addition, Daughters' memorandum in support of their motion for a new trial cited the specific passages of Expert's trial testimony they believed to be inconsistent.

We find that the trial court's order sufficiently enunciated the grounds upon which the order was based. Furthermore, if Healthcare Providers genuinely were unaware of the basis of the trial court's order, they could have requested that Daughters file the first brief on appeal. See Sauer, 800 S.W.2d at 75; Rule 84.05(c).

We next address Healthcare Providers' argument that Expert did not change his testimony. When an expert who has been deposed later changes his or her opinion before trial or bases it on new or different facts from those revealed at the deposition, the party intending to use the expert's testimony has the duty to disclose the new information to the opposing party, effectively updating the responses made during the deposition. Green v. Fleishman, 882 S.W.2d 219, 222 (Mo.App. 1994). Allowing experts to...

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11 practice notes
  • Peters v. General Motors Corp., WD 62807.
    • United States
    • Court of Appeal of Missouri (US)
    • January 17, 2006
    ...new information to the opposing party, effectively updating the responses made during the deposition." Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 475 (Mo.App. E.D.2002). When the expert's opinion is not properly disclosed, the trial court "is vested with broad discretion as to its ch......
  • Dick v. Children's Mercy Hosp., WD 61616.
    • United States
    • Court of Appeal of Missouri (US)
    • May 25, 2004
    ...mistaken, and the burden of justifying the order falls on the respondent(s), here the respondent. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 474 (Mo.App.2002); Rule 84.05(c); Rule 78.03. Appellant is wrong. The order's reference to points one, two, three, four, six, and eight of the ......
  • Dick v. Children's Mercy Hospital, No. WD # 61616 (MO 5/25/2004), WD # 61616
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 2004
    ...mistaken, and the burden of justifying the order falls on the respondent(s), here the respondent. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 474 (Mo. App. 2002); Rule 84.05(c); Rule 78.03. Appellant is wrong. The order's reference to points one, two, three, four, six, and eight of th......
  • Littleton v. McNeely, 07-3478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 9, 2009
    ...Cir.2006) (explaining failure to propose a jury instruction results in plain error review); see also Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 479 (Mo. Ct.App.2002) (declaring failure to submit an instruction waives any point of error a party may have regarding that claim). However,......
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12 cases
  • Peters v. General Motors Corp., WD 62807.
    • United States
    • Court of Appeal of Missouri (US)
    • January 17, 2006
    ...new information to the opposing party, effectively updating the responses made during the deposition." Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 475 (Mo.App. E.D.2002). When the expert's opinion is not properly disclosed, the trial court "is vested with broad discretion as to its ch......
  • Dick v. Children's Mercy Hosp., WD 61616.
    • United States
    • Court of Appeal of Missouri (US)
    • May 25, 2004
    ...mistaken, and the burden of justifying the order falls on the respondent(s), here the respondent. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 474 (Mo.App.2002); Rule 84.05(c); Rule 78.03. Appellant is wrong. The order's reference to points one, two, three, four, six, and eight of the ......
  • Littleton v. McNeely, 07-3478.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 9, 2009
    ...Cir.2006) (explaining failure to propose a jury instruction results in plain error review); see also Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 479 (Mo. Ct.App.2002) (declaring failure to submit an instruction waives any point of error a party may have regarding that claim). However,......
  • Dick v. Children's Mercy Hospital, No. WD # 61616 (MO 5/25/2004), WD # 61616
    • United States
    • United States State Supreme Court of Missouri
    • May 25, 2004
    ...mistaken, and the burden of justifying the order falls on the respondent(s), here the respondent. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 474 (Mo. App. 2002); Rule 84.05(c); Rule 78.03. Appellant is wrong. The order's reference to points one, two, three, four, six, and eight of th......
  • Request a trial to view additional results

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