Materials Provided by Judge Sandra Midkiff and John Schultz. Preparation of your expert s testimony Getting the goods on your opponent s expert

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1 Materials Provided by Judge Sandra Midkiff and John Schultz Expert Witnesses Finding the right expert Practice groups MODL MATA National organizations Web searches Preparation of your expert s testimony Getting the goods on your opponent s expert Discovery issues What is discoverable The Expert s report - state vs. federal practice Materials used/submitted to the expert Using depositions Discovery practices To a reasonable degree of medical certainty Experts retained & non-retained What is the difference? When is an expert a fact witness? Trial issues Voir Dire Qualifying experts Federal standard State Statute , RSMo. Limiting testimony of experts Trial court s discretion Federal court State case law Offering literature used/relied upon by the expert Handling the fee issue Cross-examination of experts 71--1

2 EXPERT WITNESSES RULES OF CIVIL PROCEDURE -- EXPERT WITNESSES Excerpts from Missouri Rule (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (3) Trial Preparation: Materials. Subject to the provisions of Rule 56.01(b)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded. (4) Trial Preparation: Experts. (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a) (2) (B), the deposition shall not be conducted until after the report is provided. (B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (5) Trial Preparations: Non-retained Experts. A party, through interrogatories, may require any other party to identify each non-retained expert witness, including a party, whom the other party expects to call at trial who may provide expert witness opinion testimony by providing the expert's name, address, and field of expertise. For the purpose of this Rule 56.01(b)(5), an expert witness is a witness qualified as an expert by knowledge, experience, training, or education giving testimony relative to scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence. Discovery of the facts known and opinions held by such an expert shall be discoverable in the same manner as for lay witnesses

3 Excerpts from Federal Rule 26 (a) Required Disclosures; Methods to Discover Additional Matter (2) Disclosure of Expert Testimony. (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case of whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. (C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2) (B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e) (1)

4 EXPERT WITNESSES RECENT CASES DISCOVERY OF EXPERTS OPINIONS & MATERIALS Expert s facts and opinions are not discoverable and are protected work product until expert is designated for trial. Expert or pretrial issue only does not compel full disclosure of all materials provided to expert under Rule 56.01(b) (3). Expert designated for pretrial issue only is not subject to full disclosure rule of Tracy and 56.01(b) (3) State ex rel. Crown Power & Equipment v. Ravens, 2009 Mo. Lexis 535 (Mo. 11/17/09) Crown Power informally advised Norfolk Railway that it had retained Thomas Beisecker, Ph.D., as an expert for the purpose of analyzing and critiquing Dahl's venue study. Unknown to Norfolk Railway, prior to Dr. Beisecker's deposition, Crown Power had retained Dr. Beisecker in the same case as a non-testifying consultant to conduct focus groups and assist in trial strategies, including jury selection. At deposition of the expert on venue issues, attorney began asking expert questions about other work he had done for Crown, unrelated to venue. After objection and instruction to witness not to answer questions in the deposition, Norfolk served subpoena duces tecum on expert, seeking production of all of expert s materials including issues other than the pretrial venue issue. Crown withdrew its objection to change of venue, and withdrew designation of Beisecker on venue issue. Trial court still entered order requiring production of materials and expert s testimony on other than venue issue. Crown sought writ of prohibition seeking to block the discovery. Previously, in State ex rel. Tracy v. Dandurand, 30 S.W.3d 830 (Mo. banc.2000) the Supreme Court in interpreting Rule 56.01(b)(3), stated: "The discovery of facts known and opinions held by an expert are, until the expert is designated for trial, the work product of the attorney retaining the expert." Rule 56.01(b) (3) protects attorney work product by requiring a showing that the party seeking discovery is "unable without undue hardship to obtain the substantial equivalent of the materials by other means." Supreme Court ordered writ in this case, and distinguished this case from Tracy. First, there had been no formal designation of the expert. Expert was only designated on pretrial issue, and was never designated as expert for trial. Accordingly, the bright-line rule from Tracy that experts designated to testify at trial pursuant to Rule 56.01(b)(4) must produce all material given to them is not applicable to the facts of this case. 1 Therefore, the holding of State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000), that experts designated to testify at trial must produce all materials given to them if requested, is not modified. MO BRIGHT LINE RULE: All materials given to testifying expert are discoverable. Federal rule requires disclosure of data or other information considered by the witness in forming his opinion. State ex rel. Tracy v. Dandurand 30 S.W.3d 831 (Mo. 2000)

5 All material given to a testifying expert must, if requested, be disclosed. This is a "bright line" rule, which Rule 56.01(b) (4) requires. It is clear, understandable, and does not require the application of a multi-prong test. There is no exception for materials provided which are unrelated to opinions being offered by the expert witness. If an attorney-client communication is inadvertently provided to the expert, it may presumably be withdrawn prior to the giving of expert s deposition, by withdrawing the designation of an expert for trial. Then the materials become protected work product provided to a non-testifying expert. However, once expert is designated and deposition is given by the expert, it is too late to withdraw the document inadvertently given to the expert. Judge Wolfe in this opinion distinguishes Rule 56.01(b) (4) from federal rule which starts with a mandatory disclosure as to the expert, including a written report in which the expert sets forth specifically "the data or other information considered by the witness in forming the opinions." (Emphasis added.) Rule 26(a) (2) (B), F.R.C.P. A distinction is drawn for lay witnesses. A lay witness may use a document that is either the attorney's work product or the subject of an attorney-client communication to refresh his recollection before testifying, and such document may be protected from discovery. See State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995). This protection would not extend to documents that a witness uses while testifying. Id. at 15. EVIDENTIARY ISSUES Study relied upon by expert, but authored by someone else is inadmissible hearsay, but may be used for cross-examination of an expert. Exception: Article or treatise authored by the expert witness may be admitted as substantive evidence. Byers v. Cheng, 238 S.W.3d 717 (Mo. App. E.D. 2007) Plaintiff broke her arm and required open reduction and insertion of plates. Plaintiff then developed an infection at the site and underwent several more surgeries and treatment. Plaintiff sued the surgeons and hospital for negligence concerning the infection. The trial resulted in a defense verdict. During one of the Defendant s expert s direct examination, the expert was about an article he had written years before on open fractures and the rate of infection, which was published in The Journal of Hand Surgery. Plaintiff conceded that the article was authoritative text because it was subject to peer review, but she objected on the grounds that a learned treatise can only be used for crossexamination of an expert. The objection was overruled. The Court of Appeals upheld the trial court s ruling noting that learned treatises are generally considered hearsay because they are out-of-court statements made by a person who is not subject to crossexamination. However, the appellate courts held that a learned treatise is not hearsay when the testifying expert is the author of the study and is subject to cross-examination. The Court also held that even if the study had been authored by someone else and was hearsay, an expert may still rely on it as background for his opinion. When used as background for an expert s opinion, the article itself may not be offered as substantive evidence

6 Property owner may testify as to reasonable value of his personal property prior to damage or destruction, without further qualification as an expert. R & J Rhodes, LLC v. Finney, 231 S.W.3d 183 (Mo. App. W.D. 2007) A lessee on airport property constructed a hangar on that property, as was allowed under the lease. The municipality closed the airport and sued for eviction of the lessee. Lessee counterclaimed for loss of his investment in building the hangar and other damages. Lessee won at trial. Though no objection was made at trial, on appeal the lessor claimed error that the valuation of the hangar, as testified to by the lessee, was erroneous because it was based upon an appraisal not presented at trial. The appellate court stated that this was basically a claim of lack of foundation for the evidence. First, the appellate court held that a timely objection must be made when the evidence is introduced at trial. But the Court went on to say that, considering the merits of the objection, An owner is presumed to be competent to testify as to the reasonable value of his personal property prior to its damage or destruction without further qualification. Police officer may not give opinion about cause of accident or fault of parties. Investigating police officer at accident scene may testify to physical evidence at accident scene, speed of vehicles based upon physical evidence at the scene. Police officer may not testify to his/her assessment of the relative degree of fault of the parties, contributing circumstances to the accident, whether tickets were issued at the scene, or the relative importance of findings at the accident scene. Kearbey v. Wichita Southeast Kansas, 240 S.W.3d 175 (Mo. App. W.D. 2007) Plaintiff pick-up driver sued for personal injuries resulting from a collision with a tractor-trailer. The jury verdict found Plaintiff 100% at fault. At trial, the issue of whether Plaintiff had fallen asleep at the wheel was critical. There was evidence on this subject which included Plaintiff s response to his passenger child s question if they could play a game while riding, that the only game they would be playing would be try and keep dad awake. Evidence of braking or evasive moves was vital to Plaintiff s contention that he did not fall asleep. The police officer investigating the accident testified that no tire marks were left by Plaintiff s truck. Plaintiff cross-examined the officer on his investigation of the accident scene. During re-direct, the officer was asked: Q: You were asked about the issue of not noting the complete field of the liquid fuel or the liquid that was on the roadway and those kinds of specifics. Is on of the reasons that those things weren t noted because you did not feel that there was a significant question about what happened that night? A: That s right. Q: And in discussing this accident, [the other officer] expressed to you, he didn t have much question or doubt about what happened? Before response, the trial court sustained the hearsay objection. On appeal, Plaintiff claimed error because these questions were an implicit expression to the jury of the opinion of the police officers that Plaintiff had caused the accident. The appellate opinion goes on to discuss what police officers cannot give opinions or testimony about. "Missouri courts have long recognized that juries are likely to give undue weight to an investigating officer's assessment of the relative degree of fault of the parties in a traffic accident. It is simply not an officer's duty or province to offer an opinion regarding civil liability." Proper subjects for opinion by an officer with

7 experience involving automobile accidents and accident reconstruction include items like the speed of the vehicles involved when such opinion is based upon the physical evidence observed at the scene of the accident. However, in an automobile negligence case, an officer of the law may not state his opinion as to which party to an auto accident was at fault or which actions of the parties contributed to the accident. The types of questions that are reversible error are: Based upon your investigation and based upon what you found out there at the scene did you find any contributing circumstances of the Plaintiff? or Did Defendant do anything to contribute to this accident? or Were any citations issued or charges filed [against one of the drivers]? In Kearbey, the appellate court found the question and response did not rise to the level of an opinion by a police officer as to which of the parties was at fault. It merely allowed the officer to state that he decided not to pursue more extensive fact gathering to supplement the accident report because he believed the report adequately described the occurrence. The appellate court also noted, The trial court apparently decided that this attack on the completeness of the officers' investigation constituted impeachment and opened the door for defense counsel to bolster the officers' credibility with an explanation of why the accident report lacked certain specifics. It was for this purpose that the judge allowed Sergeant Fisk to affirm trial counsel's suggestion that Fisk had not deemed it necessary to include such specifics because he did not think there was a serious question about what had occurred that night. It cannot be said that this ruling was clearly against the logic of the circumstances or so unreasonable as to indicate a lack of careful consideration. TRIAL ISSUES & MISC Three weeks before trial, trial court may deny plaintiff leave to amend petition and may deny plaintiff leave to offer new or additional opinions by expert witness, even where new issues are raised by defendant s expert in deposition. However, rules stress liberality in allowing amendment of pleadings. There is no absolute right to amend petition. Lunn v. Anderson, M.D., 2009 WL (Mo. App. E.D. 2009) Deceased patient s daughter brought wrongful death action against attending and primary care physician, internist/gastroenterologist, health care groups and medical facility in connection with the alleged failure to restart anti-coagulant medication after surgery and patient s development of deep venous thrombosis and internal bleeding. The trial court granted summary judgment in favor of the medical facility and entered a jury verdict in favor of the physician and health care groups. Four weeks before trial, on September 10, 2008, Plaintiff took the deposition of the health center s expert. One week later, with less than three weeks before trial, Plaintiff moved to file Plaintiff s First Amended Petition to add the allegation, Defendant failed to properly use the sequential compression devices on decedent s legs which resulted in bilateral deep venous thrombus formation which required the administration of full dose IV Heparin and Coumadin. The trial court denied Plaintiff s motion. On appeal, Plaintiff claimed the trial court erred in denying Plaintiff leave to amend the petition because the new allegation was not an issue before the deposition of Defendant s expert on September 18, 2008, and it was the Defendant s expert s testimony that first prompted Plaintiff s counsel to review Defendant s medical records to determine if the sequential compression devices had been

8 used properly. The appellate court stated that, although the rules stress liberality in allowing amendments to pleadings, a party does not have an absolute right to file even a first amended petition. In determining whether an abuse occurred, the court considered: (1) the hardship a denial would cause to the moving party; (2) the reasons for the moving party s omission of the matter in the original pleadings; and (3) the injustice a grant of leave would cause to the nonmoving party. The Court stated that Plaintiff s rejected amendment was a new factual allegation that had not been fully explored, despite the parties extensive pre-trial discovery. Expert witness changing testimony after deposition, without notice to opposing party, may be ground for new trial. Preserve objection by objecting during expert s testimony. Whitted v. Healthline Management, Inc., 90 S.W.3d 470 (Mo. App. E.D. 2002) Daughters of a patient who suffered a fatal heart attack while receiving treatment in an emergency room after falling from a ladder brought a medical negligence action against the physician and health care corporation. Plaintiffs claim against the physician was submitted to a jury, and the jury returned with a verdict for the physician. Plaintiffs filed a motion for new trial as to both the physician and health care corporation, and the trial court granted their motion on the basis that Defendants expert s testimony changed after his deposition and before trial without notice to Plaintiffs. On appeal, Defendants claim the trial court erred in granting Plaintiffs motion for new trial on the ground that Defendants expert changed his testimony after his deposition and before trial. One of their arguments on appeal was that the expert did not change his testimony. The appellate court stated that 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. Allowing experts to change their opinions after deposition and before trial without notice to their adversaries would frustrate the purpose of our discovery rules because it would prevent them from eliminating, as far as possible, concealment and surprise in litigation. A trial court is vested with broad discretion as to its choice of a course of action during trial when evidence has not been disclosed in response to appropriate discovery, and it is within the trial court's discretion whether to reject such evidence or impose other appropriate sanctions. The appellate court found that the expert s deposition and trial testimony clearly contradicted each other. At his deposition, the expert was unable to pinpoint whether the patient s death occurred as a result of an electrical or a pump problem in his heart. At trial, however, the expert explicitly stated that the patient s death was caused by cell necrosis. The appellate court found that the trial court did not abuse its discretion in awarding a new trial on the basis of his inconsistent testimony. Defendants also argued that because Plaintiffs failed to object at trial to the expert s testimony, they waived any objection to it. In its review of the transcript, the appellate court noted that Plaintiffs counsel specifically objected to the change in opinion at a sidebar during cross-examination. At the time, the trial court suggested that the appropriate remedy for Plaintiffs was for counsel to cross-examine the expert as to the discrepancy in his testimony. The objections lodged at the sidebar were reiterated by

9 Plaintiffs in their motion for new trial. The Court found that the trial court was within its power to reconsider its discretionary rulings as to the admissibility of evidence, including expert testimony, and order a new trial if it believed its discretion was not properly exercised at Daughters' expense during the trial. Furthermore, even if they had failed to object, as Healthcare Providers claim, the trial court has discretion to grant a new trial when it finds that error occurred, whether or not there was a timely objection. Medical expert witness must be qualified under Section RSMo, --based on knowledge, skill, experience, training or education. Need not meet standard under affidavit standard under RSMo, to give admissible testimony. Medical expert in medical malpractice case need not be in same practice specialty to give expert opinion, as long as within his/her area of expertise. Klotz v. St. Anthony's Medical Center, 2010 Mo. LEXIS 83 Plaintiff James Klotz suffered sepsis, amputation, and organ failure in March 2004 when an implanted pacemaker became infected. He and his wife, Mary Klotz, filed suit against St. Anthony s Medical Center, and later added Dr. Shapiro and Metro Heart Group, LLC. The case was tried and the jury found the defendants negligent. On crossappeal, Dr. Shapiro and MHG argued that the trial court erred in allowing Plaintiff s expert, Dr. Clark, to testify contending that he was not qualified to testify as an expert witness. Defendants Dr. Shapiro and MHG offered three reasons as to why Dr. Clark should not have been allowed to testify. First, they argued that Dr. Clark was not a licensed physician at the time of the action, and, therefore, was not legally qualified to offer medical opinion testimony. Defendants contended that the definition of legally qualified in RSMo. requires that the health care provider be licensed in the same profession to offer an affidavit certifying the merit of a case. Defendants further contended that because Dr. Clark was incapable of providing the required affidavit under , he should not have been permitted to testify at trial. The Court held that does not govern the admissibility of expert testimony at trial; rather, it requires that a plaintiff file a health care affidavit from an expert stating that the defendant health care provider did not act as a reasonably prudent health care provider would have acted under similar circumstances. Satisfaction of is a condition related to the filing of a malpractice action but does not control the admissibility of expert testimony. The court stated that RSMo governs the admissibility of expert witness testimony, and it states that a witness may be qualified as an expert by knowledge, skill, experience, training, or education. The court held that an expert may be qualified to testify on foundations other than licensure, and that applying s definition of legally qualified health care provider to the question of the admissibility of expert testimony at trial would be to effectively rewrite the statute. Second, Defendants argued that the trial court erred when it allowed Dr. Clark to testify about issues related to cardiology or electrophysiology standard of care because Dr. Clark lacked the qualifications to testify about that specialty. The appellate court found that the trial court did not err in allowing Dr. Clark to testify. Dr. Clark completed an internal medicine residency and had specialty training in infectious disease and pulmonary disease. The appellate court found his testimony was well within his expertise

10 Finally, Defendants argued that MAI 11.06, which defines standard of care as the ordinary care of a defendant s profession, requires that expert testimony be limited to persons in the defendant s specialty. The appellate court again noted that the scope and admissibility of expert testimony is determined specifically by , and that it recognized no such requirement. Expert testimony of future medical problems and future medical expenses is admissible where expert testifies that to a reasonable degree of medical certainty the medical problems are likely to occur... absolute certainty not required. Wiley v. Homfeld, 2009 WL (Mo. App. W.D. 2009) Plaintiff was injured when her car was struck by an eighteen-wheel truck and trailer driven by Defendant Homfeld. Defendant admitted liability, leaving only damages to be determined at trial. The jury returned a verdict in favor of Plaintiff for $400,000. After trial, upon Defendant s motion, the circuit court ordered the jury s verdict remitted by $300,000 and entered judgment in favor of Plaintiff for $100,000. Plaintiff appealed, contending that the court erred because it failed to give Plaintiff an opportunity to consent to remittitur or to request a new trial and it abused its discretion in remitting the jury s verdict. Defendant cross-appealed claiming that the court erred in permitting Plaintiff s expert, Dr. Scowley, to testify regarding Plaintiff s future medical expenses and in denying his motion for new trial. In her appeal, Plaintiff argued that the trial court improperly based its decision on a finding that no future medical expenses were established to a reasonable degree of medical certainty and in refusing to consider her future medical expenses in assessing the nature and extent of her injury. Dr. Scowley s testimony at trial reflected that, at a minimum, Plaintiff would require visits to the doctor and one or more sessions of physical therapy each year, and that these treatments would cost a minimum of $2,500 per year. He also stated that Plaintiff would require epidurals in the future, although he could not put a definite number on how many she would require. Under RSMo, the trial court has discretion to remit a verdict only if the evidence, viewed in the light most favorable to the verdict, does not support the amount awarded by the jury. In one of his sub-points on appeal, Defendant contended that Dr. Scowley s testimony related to future medical treatment should have been excluded from evidence because it did not have a sufficient evidentiary foundation. Defendant argued that this testimony was used to establish future special medical damages and that such damages required evidence that they are reasonably certain to be incurred. He claimed that Dr. Scowley s testimony was too speculative and should have been excluded from evidence. The appellate court stated that "It is Missouri's well-settled rule that a plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by a preponderance of the evidence were caused by the defendant. In accordance with this basic damage instruction, when an expert testifies to a reasonable degree of certainty that the defendant's conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff's present injuries, even if those future consequences are not reasonably certain to occur. For this reason, under Missouri case law, expert testimony is admissible where it addresses the probability,

11 short of reasonable certainty, that future treatment may be necessary and of the potential cost of such treatment. Although he could not testify with certainty how much treatment Ms. Wiley would ultimately require because it would be dependent on her ability to tolerate pain, the speed with which her condition deteriorated, and the success of more conservative treatment, all of the testimony offered by Dr. Scowley on the subject of future medical treatment was properly admitted to allow the jury to assess the nature and extent of her injuries. In medmal case, no magic words required for questions to expert witness, to make a submissible case. But plaintiff must prove in medical malpractice standard: Did defendant fail to use that degree of skill and learning ordinarily used under the same or similar circumstance by members of Defendants profession and that their negligent act or acts caused Plaintiffs injury. Hickman v. Branson Ear, Nose & Throat, 256 S.W.3d 120 (Mo. 2008) Roger Hickman, a music minister, went to see his physician for his regular checkup. His physician felt his throat and thought something was going on with his thyroid. After CT scan and ultrasound, Hickman was referred to Dr. Michael Bays, a surgeon specializing in the treatment of ears, nose, and throat. Dr. Bays recommended that Hickman undergo surgery and explained to Hickman that he was going to remove the entire right thyroid lobe. Dr. Bays further explained that he would have the tumor examined and if cancer was found, he would perform a total thyroidectomy. During surgery, a section of the thyroid was removed and analyzed, which indicated that the tumor was cancerous. Dr. Bays indicated in his medical report that he had performed a thyroidectomy, removing both the right and left lobes. After surgery, Hickman continued to have complications and was referred to an endocrinologist for further evaluation. An ultrasound revealed that Hickman s thyroid gland was still present and Hickman had a second surgery to remove the right thyroid that had been left during the first surgery. Following his surgery, Hickman had difficulty singing and had a significantly reduced vocal range. He could no longer sing commercially, record music, or work as a full-time music minister. Dr. Bays appealed and argued that Plaintiffs expert testimony failed to adequately define the standard of care. To make a submissible case in a medical malpractice action, Plaintiffs must prove that Defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstance by members of Defendants profession and that their negligent act or acts caused Plaintiffs injury. Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission cause the plaintiff s injury. As submitted to the jury, liability was premised on whether Dr. Bays failed to perform a total thyroidectomy on Hickman and was thereby negligent. It was Dr. Bays position that he removed all of the right thyroid that he safely could. Plaintiffs expert testified that a total thyroidectomy was the proper procedure for Hickman s diagnosis. It is not necessary that the standard of care be recited in ritualistic fashion. In this case, plaintiff s expert testified that a total thyroidectomy was the proper procedure for a patient with plaintiff s diagnosis. He further testified that failing to perform a total thyroidectomy did not meet the standard of care for a surgeon. Although not stated in the precise language of MAI 11.06, the Supreme Court held that the opinion was sufficient

12 evidence as to the standard of care from which the jury could conclude that Dr. Bays was negligent, for which reason the circuit court s judgment was affirmed. In medical res ipsa loquitur case, plaintiff is allowed to present medical expert testimony that the injury does not occur in the absence of negligence. Sides v. St. Anthony s Medical Center, 258 S.W.3d 811 (Mo. banc 2008) Janice Sides had a lumbar laminectomy with a spinal fusion. She was discharged three days later. She later filed suit against the surgeon and the hospital alleging that she was infected by E. coli during the surgery. In her petition, she alleged a Res Ipsa Loquitor theory against the defendants on the basis that an infection in the surgical site, such as that experienced by her, does not occur in the absence of negligence. Defendants moved to dismiss, contending that a medical malpractice action cannot proceed under Res Ipsa Loquitor and that the plaintiff is required to assert a specific negligence theory against medical malpractice defendants. Sides conceded that she could not prove specific negligence, but argued that she should be able to rely on expert testimony under Res Ipsa Loquitor to show that defendants were negligent. The trial court dismissed the suit, but the Supreme Court of Missouri reversed and remanded. The issue before the court was a narrow one: whether to permit medical experts to offer opinions on the issue of negligence of the defendants in a medical malpractice case that is brought on a theory of Res Ipsa Loquitor, rather than based on specific or general negligence. The Court joined with the 28 out of 36 other jurisdictions that have considered this question and answered in the affirmative. The doctrine of Res Ipsa Loquitor is set out in Section 328D of the Second Restatement of Torts. The comments to that section expressly endorse the use of expert testimony in medical malpractice Res Ipsa Loquitor case, stating: Expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the Plaintiffs case where, for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen to reasonably to draw the conclusion. Restatement (Second) of Torts Section 328D, Comment d. The Court found the reasoning of Section 328D of the Restatement and the cases following it to be persuasive. Where a plaintiff is unable to show which specific act of negligence of the defendants caused his or her injury, but is able to show that all the potential causes are within the control or right to control of defendants, and that they have greater access to knowledge about the cause of the injury than does plaintiff, and a medical expert testifies that such injury does not occur in the absence of negligence of the defendants, then a prima facie case for medical malpractice has been made. As in other types of Res Ipsa Loquitor cases, this doctrine simply allows the plaintiff who can show that the injury does not occur in the absence of negligence to present to the jury an inference that the defendants were negligent; the defendants can rebut that inference with evidence that they were not negligent. The ultimate burden of proof remains with the plaintiff to convince the jury that a defendant was negligent and that such negligence caused the Plaintiffs injury

13 Plaintiff alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself was one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and had no knowledge of how the infection occurred, and that the defendants had superior knowledge of how it occurred. Whether plaintiff will be able to meet her burden of proof under a Res Ipsa Loquitor theory, whether defendant s negligence is responsible for the infection Sides obtained in the surgical site, and whether defendants controlled or had a right to control the settings in which the infection may have occurred, are all questions for determination. Defendants may be correct that expert testimony will show that such infections often occur in the absence of negligence and they did not have control or a right to control of the instrumentalities that may have caused the infection and that it may have been acquired outside the operating room. If so, they may succeed in obtaining a defense judgment. The Court held only that plaintiff is not prohibited from relying on expert testimony in attempting to prove her Res Ipsa Loquitor theory

Woodruff L. Carroll, for appellant. Mark L. Dunn, for respondents. Plaintiff Marguerite James commenced this medical

Woodruff L. Carroll, for appellant. Mark L. Dunn, for respondents. Plaintiff Marguerite James commenced this medical ================================================================= This opinion is uncorrected and subject to revision before publication in the New York Reports. -----------------------------------------------------------------

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