The
Supreme Court of Missouri issued a 6-1 opinion, holding that a trial court did
not abuse its discretion when it allowed an expert witness to deviate from his
deposition testimony at trial nor when it admitted five medical experts with different specialties to testify about the case.[1]
I.
Factual Background
In
2012, Dr. Richard Follwell performed surgery on Saundra Beaver because she
complained of an abdominal hernia.[2] A few hours after Beaver was discharged, she
began to experience severe pain and went back to the hospital.[3] The next morning, Dr. Follwell reevaluated Beaver
and sent her home a second time.[4] Her condition worsened, so she returned to the
hospital where she was diagnosed with a serious infection in her abdomen.[5] This infection ultimately killed her.[6]
Beaver’s three children brought a wrongful death action
against Dr. Follwell.[7] Her children alleged that Beaver died as a
result of Dr. Follwell’s medical negligence during surgery.[8] The plaintiffs presented their mother’s
treating surgeon as an expert at trial.[9] The plaintiffs’ expert testified to their
theory of liability at trial.[10] Dr. Follwell testified in his own defense as both
a fact and expert witness, and he called four additional experts.[11] The defense witnesses testified that Dr.
Follwell was not medically negligent.[12] Each of the experts had a different medical specialty.[13] The plaintiffs objected to the admission of
the Dr. Folwell’s expert testimony, arguing that five experts was unnecessarily
cumulative and legally irrelevant.[14] The trial court overruled the plaintiffs’
objection, the jury returned a defense verdict, and the plaintiffs appealed.[15]
On
appeal, the plaintiffs argued that (1) the trial court erred in allowing the
admission of Dr. Follwell’s expert opinion because his deposition testimony was
different than the testimony he offered at trial and (2) the admission of five expert
witnesses was unnecessarily cumulative and unfairly prejudicial.[16] The court of appeals reversed and remanded
the case, and the Supreme Court of Missouri granted transfer.[17]
II.
Legal Background
The
admission or exclusion of evidence at trial is subject to the discretion of a
trial court.[18] Appellate courts presume that a trial court’s
decision on the admissibility of evidence is correct.[19] This presumption may only be overcome if the
trial court’s decision is illogical, arbitrary, unreasonable, and indicates a
lack of careful consideration of the circumstances of the case.[20] In addition, the evidence must have
prejudiced the party’s case.[21] Appellate courts prefer not to second guess
the evidentiary rulings of trial courts.[22] However, the admission of evidence can be
improper as a matter of law.[23] When trial courts misstate or misapply the
law of evidence, then an appellate court
will reverse the decision.[24] A determination as to the admissibility of
evidence often involves both an application of the law and an evaluation of the
facts of the case.[25] Consequently, the discretion granted to trial
courts is necessarily tempered by the de novo standard of review for
applications of the law.[26]
A
civil litigant has the right to depose experts that an opposing party intends
to call as a witness at trial.[27] The purpose of the discovery rules is to
prevent “concealment and surprise” and provide parties with anything that is
relevant in lawsuits.[28] When experts change their opinions after
giving a deposition, there is a serious risk of surprise and unfair prejudice
at trial.[29] This rule does not serve to bar expert
testimony on technical grounds. This rule instead operates to exclude an expert’s
opinion at trial when it is “substantially different” than the opinion
disclosed during a deposition.[30] A trial court’s determination about whether
trial testimony is substantially different than deposition testimony is subject
to the abuse of discretion standard of review.[31] However, in certain circumstances, a
difference between deposition testimony and trial testimony should be
inadmissible as a matter of law.[32]
Evidence
may be irrelevant because it is cumulative.[33] “Evidence is said to be cumulative when it
relates to a matter so fully and properly proved by other testimony as to take
it out of the area of serious dispute.”[34] However, evidence is not cumulative “when it
goes to the very root of the matter in controversy or relates to the main
issue, the decision of which turns on the weight of the evidence introduced by
the respective parties.”[35] Of course, this does not mean that a party
may introduce a limitless amount of evidence simply because it goes to the
heart of a controversy; all evidence must be relevant to be admissible.[36]
Evidence
must be both logically and legally relevant to be admissible.[37] Evidence is logically relevant if it tends to
make the existence of a material fact more or less likely.[38] Evidence is legally relevant if its probative
value is not outweighed by its prejudicial effect.[39] Relevance determinations, when no bright-line
rule of law exists, are largely subject to the discretion of the trial court.[40] Thus, relevance determinations are not likely
to be overturned on appeal.
III.
Instant Decision
The
Supreme Court of Missouri held that the trial court did not abuse its
discretion by allowing Dr. Follwell’s trial testimony to deviate from his
deposition testimony nor by admitting the testimony of five medical experts.[41]
The
court began its analysis by addressing the plaintiffs’ contention that the
trial court erred by allowing Dr. Follwell to offer trial testimony that
deviated from his deposition testimony.[42] The court stated that when an expert offers
one opinion in deposition and another substantially
different opinion at trial, then that testimony ought to be excluded.[43] The court noted that Dr. Follwell testified
about whether Beaver’s injury was caused by a vascular injury and that Dr.
Follwell did not change his conclusion at trial.[44] Giving due discretion to the trial court and
recognizing that Dr. Follwell had the same conclusion at the deposition as at
trial, the court denied the plaintiffs’ point.[45]
Next
the court addressed the cumulativeness of the expert testimony offered.[46] The court noted that evidence is cumulative
if it goes to show a matter that is “fully and properly proved” by other
evidence.[47] However, if the allegedly cumulative evidence
goes to the heart of the controversy, and the weight of the evidence will
affect the outcome, then the evidence should be admitted.[48] The court explained that evidence may be
irrelevant if it is overly cumulative.[49]
The
court examined the record and determined that the plaintiffs’ expert testified
expansively about the medical issue at controversy.[50] The court deferred to the trial court’s
finding that each expert was testifying as to a different specialty and that
this testimony would assist the jury.[51] The court stated that these experts were
testifying about the very root of the controversy and that their testimony was
not “needlessly repetitive.”[52] Thus, the Supreme Court of Missouri, finding
that the trial court did not abuse its discretion by admitting the expert
testimony, affirmed the trial court’s judgment.[53]
IV.
Comment
Shallow v. Follwell
is a case about the standard of review on appeal. Our judicial system recognizes that no trial
is perfect, and courts often make errors.[54] This is why our system requires that a party
show prejudice in addition to error.[55] In general, our system depends on trial
courts to make reasonable decisions in the administration of justice. This case exemplifies the deference owed to
trial courts. Although one might disagree
with a trial court’s decision, our system requires that we defer to its
judgment. The Supreme Court of Missouri reaffirmed
that appellate courts should not lightly disturb the evidentiary rulings of
trial courts.
-
David
O’Connell
[1] Shallow v. Follwell, 554 S.W.3d
878, 880 (Mo. 2018) (en banc).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 880-81.
[8] Id. at 881.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] St. Louis Cty. v. River Bend
Estates Homeowners' Ass'n, 408 S.W.3d 116, 123 (Mo. 2013) (en banc).
[19] Id.
[20] Id.
[21] Whitted v. Healthline Mgmt., Inc.,
90 S.W.3d 470, 473 (Mo. Ct. App. 2002).
[22] See id.; Lozano v. BNSF Ry. Co., 421
S.W.3d 448, 451 (Mo. 2014) (en banc); see
also Franklin v. Friedrich,
470 S.W.2d 474, 476 (Mo. 1971) (en banc) (“The
admission, exclusion, striking, or refusal to strike evidence is not reversible
error where it is proper on any ground, even though not proper on the ground
stated in the objection or ruling.”).
[23] Holtgrave v. Hoffman, 716 S.W.2d
332, 335 (Mo. Ct. App. 1986); State ex
rel. Missouri Highway & Transp. Comm'n v. Wallach, 826 S.W.2d 901, 904
(Mo. Ct. App. 1992).
[24] Curry Inv. Co. v. Santilli, 494
S.W.3d 18, 24 (Mo. Ct. App. 2016).
[25] See id.
[26] Kivland v. Columbia Orthopaedic
Grp., LLP, 331 S.W.3d 299, 311 (Mo. 2011) (en banc).
[27] Mo.
Sup. Ct. R. 56.01(b)(4).
[28] State ex rel. Plank v. Koehr, 831 S.W.2d 926, 927 (Mo. 1992) (en banc).
[29] Bailey v. Norfolk & W. Ry.
Co., 942 S.W.2d 404, 414 (Mo. Ct. App. 1997).
[30] Sherar v. Zipper, 98 S.W.3d 628,
634 (Mo. Ct. App. 2003).
[31] Id. at 632.
[32] See id. at 634. Examples
include offering an opinion when the expert did not have an opinion during the
deposition, changed his or her opinion substantially, used new facts to arrive
at his or her opinion, or used fact not disclosed during discovery to form his
or her opinion. Id.
[33] Black v. State, 151 S.W.3d 49, 56
(Mo. 2004) (en banc).
[34] Id. (quoting State v. Kidd, 990 S.W.2d 175, 180 (Mo. Ct. App. 1999)).
[35] Kummer v. Cruz, 752 S.W.2d 801,
808 (Mo. Ct. App. 1988).
[36] State v. Davis, 318 S.W.3d 618,
639 (Mo. 2010) (en banc), as modified on
denial of reh'g (Aug. 31, 2010).
[37] Id.
[38] Id. at 640.
[39] Id.
[40] See Shallow v. Follwell, 554S.W.3d 878, 885(Mo. 2018) (en banc); see also State v. Driscoll, 55 S.W.3d
350, 354–55 (Mo. 2001) (en banc).
[41] Shallow, 554 S.W.3d at 885.
[42] Id. at 881.
[43] Id. at 882 (emphasis added).
[44] Id. at 882-83.
[45] Id.
[46] Id. at 883.
[47] Id.
[48] Id.
[49] Id.
[50] Id. at 884.
[51] Id. at 885.
[52] Id.
[53] Id.
[54] See Smotherman v. Cass Reg'l Med. Ctr., 499 S.W.3d 709, 710 (Mo.
2016) (en banc) (quoting Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81,
87 (Mo. 2010) (en banc)) (alteration in original) (“‘[A]s
a practical matter, our jury system cannot guarantee every party
a perfect trial’”).
[55] See Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 473 (Mo. Ct.
App. 2002).
