Wilkerson v. Prelutsky

• Decision Date: 29 April 1997
• Docket Number: No. 79445,79445
• Citation: 943 S.W.2d 643
• Parties: Anne WILKERSON, Appellant, v. David PRELUTSKY, M.D., et al., Respondent.
• Court: Missouri Supreme Court

Page 643

943 S.W.2d 643

Anne WILKERSON, Appellant, v. David PRELUTSKY, M.D., et al., Respondent.

No. 79445.

Supreme Court of Missouri,

En Banc.

April 29, 1997.

Michael A. Gross, Eugene H. Fahrenkrog, Jr., St. Louis, for Appellant.

T. Michael Ward, St. Louis, Kevin F. O'Malley, Debra S. Pierce, Paul E. Kovacs, Gary P. Paul, Aaron I. Mandel, Clayton, for Respondent.

Gary E. Snodgrass, Julia A. Gayle, St. Louis, for Amicus Curiae.

HOLSTEIN, Chief Justice.

Plaintiff Anne Wilkerson appeals from a judgment in favor of defendants in a medical malpractice action. She contends that (1) the trial court erred in excluding the testimony of a treating physician regarding causation as a sanction for plaintiff's failure to disclose the name of the physician in response to interrogatories; and (2) the trial court erred in allowing defendants to use certain medical journal articles during direct and cross-examination of expert witnesses. The case was transferred to this Court after opinion. Mo. Const. art. V, § 10. The judgment of trial court is affirmed.

I.

Anne Wilkerson filed a petition against Dr. Prelutsky and St. Mary's Health Center in January of 1989. The action was based on the allegation that plaintiff suffered irreversible brain damage as a result of defendants' professional negligence in treating her.

On October 2, 1986, plaintiff was found unconscious in her car. She was not breathing and had no discernible pulse. The car engine was running and the garage door was closed. She was taken via ambulance to St. Mary's Health Center in St. Louis. She was treated for carbon monoxide poisoning at St. Mary's.

Fifteen to twenty minutes after arriving at the emergency room, a blood test revealed that plaintiff had a carboxyhemoglobin level of 31.4 percent. This result indicated that 31.4 percent of the hemoglobin in plaintiff's blood was bound up with carbon monoxide. A normal carboxyhemoglobin level is five percent. To treat the poisoning, emergency room staff administered 100 percent oxygen via a "non-rebreather" mask, which precludes reinhalation of exhaled air. After fifteen minutes, plaintiff's carboxyhemoglobin level stood at 17.2 percent. Two hours later, the level was normal.

The next day, plaintiff was moved to a closed psychiatric unit in the hospital. Dr. Prelutsky, an internist, saw plaintiff there every morning from October 3 through 7. During this time, plaintiff's condition was stable. On October 7, however, plaintiff did not recognize Dr. Prelutsky and was generally less responsive. Dr. Prelutsky made notes in plaintiff's chart. Her attending psychiatrist, Dr. Irvin, contacted Dr. Ferry, a neurologist. Dr. Ferry contacted Dr. Davidson, a specialist in hyperbaric medicine at St. Luke's Hospital. St. Luke's Hospital has the only hyperbaric chamber in the St. Louis area. Dr. Davidson testified at trial that he "suggested that it might be worthwhile to attempt to treat" plaintiff using the hyperbaric chamber.

At St. Luke's, plaintiff was treated in the hyperbaric chamber. Hyperbaric oxygen treatment is claimed to be superior to the oxygen mask treatment for carbon monoxide intoxication because it removes carbon monoxide from the tissue rather than just from the blood. The treatment is most successful when administered up to six hours after the poisoning occurs. Dr. Davidson testified that, although plaintiff's condition improved slightly, she remained "quite abnormal" at the conclusion of hyperbaric therapy. Plaintiff avers that Dr. Prelutsky and St. Mary's deviated from the appropriate standard of medical care by failing to consult a neurologist and by failing to immediately transfer her to St. Luke's for hyperbaric oxygen treatments. This negligence allegedly resulted in diffuse cerebral hypoxia (oxygen starvation of the brain), seizures and brain injury, diminishing plaintiff's mental and physical capacities. Plaintiff brought this action.

In 1989, defendants submitted interrogatories. In her answers, plaintiff failed to identify Dr. Davidson as a treating physician or as an expert witness. When asked by Dr. Prelutsky to identify all expert witness intended to be called to testify at trial, plaintiff answered, "To be supplied." In answer to St. Mary's identical question, plaintiff stated that she would be calling standard of care physicians as well as treating physicians, all to be endorsed in the future.

In November 1990, plaintiff gave notice that she planned to take Dr. Davidson's deposition. The deposition was taken on January 25, 1991, but apparently Dr. Davidson did not testify regarding causation. At plaintiff's request, the deposition was recessed, to be continued at a later date, but was never completed. Neither the notice of the deposition nor the deposition are part of the record on appeal.

On May 12, 1992, a stipulated protective order was entered requiring that all expert witnesses be identified by July 15, 1992, and that they be made available for depositions before September 1, 1992. On July 1, 1992, plaintiff submitted several names of treating physicians and experts expected to testify but did not identify Dr. Davidson. Plaintiff also stated that any of her treating physicians might be called as experts on the issues of standard of care, causation and damages.

A commissioner was appointed on December 2, 1992, to preside over discovery proceedings. On January 8, 1993, the parties entered into a consent agreement under which they agreed that each side could identify an additional psychologist and psychiatrist and present them for depositions within specified times. The plaintiff was to identify her psychiatrist and psychologist by January 15, 1993, and produce them for depositions by March 1, 1993. However, regarding other experts, the agreement said that "no additional experts [would] be identified by any party."

On March 24, 1993, plaintiff's counsel sent a letter to defendants clarifying Dr. Davidson's status as a treating physician who would be called to testify as to the cause of plaintiff's brain damage. Defendants immediately moved to bar Dr. Davidson's testimony on causation, and the commissioner granted this motion on May 3, 1993. On June 7, 1993, upon plaintiff's motion, the court continued trial to February 22, 1994, stating that "nothing new" was to be added to the case.

On November 15, 1993, plaintiff filed a supplemental answer to defendants' interrogatories listing 26 expert witnesses, including Dr. Davidson. These experts were to testify on the subjects of negligence, causation, and damages. Defendants moved to strike witnesses not previously identified. The motion was sustained November 30, 1993. The court's order stated that the case would go to trial with the experts and proposed testimony that would have been allowable on June 14, 1993, the original trial date.

On November 16, 1993, plaintiff filed a motion to reconsider the commissioner's order of May 3, 1993. This order barred the testimony of Dr. Davidson on the issue of causation. During a motion in limine conference on February 18, 1994, the trial court denied plaintiff's motion and upheld the commissioner's order. Trial commenced on February 23, 1994. On February 28, 1994, before Dr. Davidson testified, Dr. Prelutsky filed a motion in limine to exclude any testimony by Dr. Davidson concerning standard of care, causation, and damages. This motion was sustained by the trial court.

Dr. Davidson testified at trial as to plaintiff's treatment, but was not allowed to render his opinion as to the cause of plaintiff's injury. Plaintiff was allowed to make an offer of proof at trial as to what Dr. Davidson's expert testimony would have been if allowed.

During cross-examination of plaintiff's expert witnesses and while examining their own experts, defense counsel referred to medical journal articles. On appeal, plaintiff alleges that she objected to the use of the articles on the basis that the articles had not been shown to be authoritative.

II.

Plaintiff contends that the trial court erred in overruling her motion to vacate the commissioner's order barring trial testimony by Dr. Davidson concerning causation. Plaintiff argues that she was not required to identify Dr. Davidson as an expert witness in response to defendants' interrogatories because Dr. Davidson was not an expert witness engaged in anticipation of litigation. She further argues that, even if she was required to identify Dr. Davidson, her supplemental answer to defendants' interrogatories satisfied any disclosure requirement.

A.

Before addressing the propriety of the trial court's exclusion of the proposed testimony of Dr. Davidson, we must first determine whether plaintiff has properly preserved and presented the issue for appellate review. Plaintiff's first point on appeal asserts error of the trial court in ruling on a motion in limine. Defendants argue that the trial court's ruling on a motion in limine cannot serve as the basis for error on appeal.

An in limine ruling is a "preliminary expression of the court's opinion as to the admissibility of evidence" and is subject to change during the course of the trial. Brown v. Hamid, 856 S.W.2d 51, 55 (Mo. banc 1993) (quoting Annin v. Bi-State Dev. Agency, 657 S.W.2d 382, 385 (Mo.App.1983)). Where an objection has been sustained in a hearing on a motion in limine, an offer of proof must be made at trial. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). The primary reason for the offer of proof is to preserve the record for appeal:

While a secondary reason for an offer of proof is that it permits the judge to consider further the claim of admissibility, the primary reason is to include the proposed answer and expected proof in the official record of the trial, so that in case of appeal upon the judge's ruling, the appellate court may understand the scope and effect of the question and proposed answer in considering whether the judge's ruling sustaining an objection was proper.

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