How many expert witnesses is too many?

The answer for one Eastern District Court of Appeals is four.

Facts of Case

Dr. Richard Follwell performed a surgery on Saundra Beaver that involved placement of surgical mesh to repair an abdominal hernia. After surgery, she was found to have a hole in her bowel that caused her to develop a severe infection. She eventually died from sepsis.

Her survivors sued Dr. Follwell for wrongful death. They asserted that Dr. Follwell was negligent in causing a hole in Saundra’s bowel and in failing to properly recognize and treat the problem. Dr. Follwell denied that he was negligent and that he caused the hole in Saundra’s bowel.

As part of his defense, Dr. Follwell asserted a theory that the hole in Saundra’s bowel was caused when a previously undiagnosed heart arrhythmia caused a blood clot to form that restricted blood flow to a section of Saundra’s bowel. This restriction on blood flow caused a portion of her bowel wall to weaken, die and perforate.

As part of the defense, Dr. Follwell testified as his own expert that he was not negligent and that Saundra’s bowel did not perforate under his care. He also hired four experts to support his defense. These doctors were experts in the fields of critical care, cardiology, vascular surgery, and colorectal surgery.

All four of the retained experts testified that Dr. Follwell did not cause the bowel perforation. Three of the four testified that Dr. Follwell did not breach the standard of care. All four repeatedly testified that the cause of the bowel perforation was a blood clot caused by a previously undiagnosed cardiac arrhythmia.

The Trial Court Ruling

At trial, the court overruled plaintiffs’ counsel’s objection that the multiple experts testifying to the same thing was cumulative. The jury returned a verdict in favor of Dr. Follwell.

The Ruling on Appeal

The Eastern District Court of Appeals reversed the verdict and ordered a new trial.

The court of appeals noted the trial court had an obligation to determine when repetitive evidence becomes so prejudicial that is outweighs its cumulative value. The trial court has to determine when cumulative evidence should stop. It also noted that evidence must be legally relevant. To be legally relevant, the usefulness of the evidence must not be outweighed by its costs, or prejudice. This is true even if the evidence goes to the root of the matter in controversy. Here, the concern is that the parade of multiple experts offering the same opinions will result in the jury simply counting the number of witnesses rather than fairly considering the qualifications and credibility of each expert.

The court of appeals noted that there is no bright line test for this. However, here four experts offering the same opinion was too much. The court did seem to say that all the experts could testify. However, they could not all offer the same opinions. Therefore, the defense could use each of the experts to explain to the jury the aspects of the case that fell within their areas of expertise.


Plaintiffs’ attorneys may view this as a victory. It provides some relief from the concern that a defendant will simply “outman” the plaintiff with experts. However, the court does not limit the number of experts that may testify. Instead, there is a limit on the number of experts who can offer the same opinion. What that limit is, however, is not explicitly stated. The implication is that the limit may be driven by the facts and complexity of each case. Regardless, defendants run the risk of losing a defense verdict on appeal if they stack the expert deck too high.

The full opinion can be found here.

Punitive Damages in Medical Negligence Cases, Part 1

The Missouri Western District Court of Appeals recently held that punitive damages should have been submitted to the jury in a medical negligence trial.

Facts of Case

Joyce Oyler was hospitalized at Heartland Regional Medical Center for fluid buildup on her lungs. When she was discharged, a nurse phoned in multiple prescriptions to a Hy-Vee pharmacy. Nina Pecora was the pharmacy technician who took the phone-in prescriptions. One of the prescriptions was for metolazone, a diuretic. Pecora had no formal pharmacy training and had worked in the floral department before moving to the pharmacy.

Pecora made a number of errors in taking the prescriptions. These included misspelling several medications, misspelling the nurse’s name, entering an incorrect birth date for Oyler, and recording the wrong dosage for one prescription. Most importantly, Pecora recorded the order for daily metolazone as an order for daily methotrexate, which is primarily used in chemotherapy and to treat rheumatoid arthritis. When taken daily for more than a week, methotrexate can have lethal side effects. A pharmacist reviewed the prescription and did not catch the fact that the methotrexate was to be taken daily. In addition, Hy-Vee did not have a computer system that would prevent a prescription label for daily methotrexate to be printed.

Unfortunately, Oyler filled the prescription for methotrexate and took it daily. As a result, she died. He surviving husband and children filed a wrongful death claim. In the claim, they requested damages for aggravating circumstances (punitive damages).

The Trial Court Ruling

At trial, Hy-Vee admitted negligence, but moved  for a directed verdict on the claim for aggravating circumstances damages. The trial court granted that motion and did not allow the jury to award punitive damages. The jury eventually returned a verdict against Hy-Vee for $2,000,0000.

The Ruling on Appeal

The Oylers appealed the trial court’s ruling on their claim for punitive damages. They contended the presented sufficient evidence to support an award of punitive damages. The Western District Court of Appeals agreed and reversed the trial court’s decision not to allow the jury to consider an award of punitive damages.

Punitive damages are generally not available in a negligence claim. To recover punitive damages in a negligence claim, the plaintiff must show  the defendant knew or had reason to know a high degree of probability existed that the defendant’s conduct  would result in injury. The plaintiff must also show that the defendant acted with complete indifference to or a conscious disregard for the safety of others in circumstances that present a high probability of injury. The court found the evidence in this case justified allowing the jury to decide whether punitive damages should be awarded.


Rarely do negligence cases, especially medical negligence cases, result in an award of punitive damages. The particular facts of this case seem to make this one an exception to that general rule. Having said that, defendants should not approach these cases in a cavalier manner. Diligent discovery may unearth facts that would allow the court to let a jury decided punitive damages.

The decision can be found here.


Medical Malpractice Plaintiff Survives Insufficient Health Care Affidavit

A recent Missouri Southern District Court of Appeals ruling allowed a medical malpractice plaintiff to maintain her causes of action even though the health care affidavit of merit did not meet statutory requirements.

Facts of Case

Patricia Caplinger filed a medical malpractice suit against Salim Rahman, M.D. and Salim Rahman, M.D., LLC. Caplinger’s attorney filed an affidavit pursuant to section 538.225, RSMo stating Dr. Ronnie Keith had reviewed the case and opined the defendants failed to use such case as a reasonably prudent and careful health care provider would have under similar circumstances and that the failure caused or contributed to cause Caplinger’s injuries.

Defendant moved the trial court to review the opinion to determine whether the opinion met the requirements of the statute. Specifically, Defendants contended that Dr. Keith did not practice substantially the same specialty as Dr. Rahman as is required by the statute.

After the trial court’s ruling that the affidavit did not meet the statutory requirements, Caplinger’s attorney requested a hearing pursuant to section 538.225.7 to determine whether there was probable cause to believe a qualified health care provider would testify Dr. Rahman’s medical negligence caused Caplinger’s injuries. At the hearing, Caplinger did not call Dr. Keith to testify. Instead, Caplinger called Dr. Thomas Beatty. Dr. Beatty met the statutory requirements of practicing substantially the same specialty as Dr. Rahman.

The Trial Court Ruling

The court found the opinion insufficient. Specifically, the court found Dr. Keith did not practice substantially the same specialty as Dr. Rahman. The court then dismissed the case.

The Ruling on Appeal

The Southern District Court of Appeals held that section 538.225 does not mandate dismissal of the case if the opinion supporting the affidavit does not meet the statutory requirements. Instead, if the court determines there is a deficiency in the expert’s opinion, then a probable cause hearing is required. A deficiency in the opinion includes whether the opinion is that of a legally qualified health care provider.

At the probable cause hearing, the court may hear evidence to determine whether one or more “qualified and competent” health care providers will testify the defendant’s medical malpractice caused plaintiff’s injuries. Of note, the testimony or evidence offered at this hearing does not have to be from the expert named in the affidavit.


This case changes what has become a common practice or understanding among medical malpractice attorneys. Specifically, that any deficiency in the affidavit mandates dismissal. Under this opinion, dismissal will occur if the affidavit is not filed on time or does not have the required statutory content.

However, if the opinion supporting the affidavit is insufficient or is not that of a “legally qualified health care provider,” then the court must have a probable cause hearing. When this occurs, the court can take evidence from health care providers other than the one who supported the affidavit. This could allow cases that previously would have been dismissed to survive dismissal if the plaintiff can offer the necessary evidence that one or more qualified and competent health care providers will testify the defendant’s medical malpractice caused plaintiff’s injuries.

The opinion can be found here.



Missouri Supreme Court Again Questions Tort Reform

Surgery (Photo credit: Army Medicine)

In a recent decision, the Missouri Supreme Court again questioned the constitutionality of a provision of Missouri tort reform legislation. In Mayes v. St. Luke’s Hospital of Kansas City, the Court was presented with an interesting scenario. The family of Ira Mayes brought an action for wrongful death alleging medical malpractice had killed Ira. They actually filed this case three times. In the first case, plaintiffs filed the health care affidavit required by section section 538.225, RSMo (“health care affidavit”). This statue requires a plaintiff’s attorney to file a health care affidavit within certain time frames swearing the attorney has had the case reviewed by a qualified health care provider and that the health care provider has found the care to be negligent and the cause of the plaintiff’s injuries. Plaintiffs subsequently dismissed the first case without prejudice. Within days, plaintiffs refiled their cause of action (“the second case”). For unknown reasons, plaintiffs did not file their health care affidavits in the second case and, after more than 180 days had passed, defendants moved to dismiss the case on that basis. The Circuit Court of Jackson County granted the motions and dismissed the case without prejudice. Plaintiffs then filed a third case which was eventually dismissed on the basis the statute of limitations had expired. Plaintiffs appealed both the dismissal of the second case and the third case.

In their appeal of the second case, plaintiffs argued that the affidavit of merit statue, 538.225, RSMo, violated their rights under the Missouri Constitution to an open court and a trial by jury. The Supreme Court noted that, to preserve a constitutional issue for appeal, a party must raise it at the first available opportunity and preserve the constitutional question throughout the case for appellate review. In this case, plaintiffs did not raise the constitutional issues in response to the motion to dismiss for failure to file the health care affidavit. As a result, the Supreme Court found that the issues had not been preserved for appeal and affirmed the dismissal of the case.

In doing so, however, the court noted that “Because [the Missouri Supreme Court] has not addressed [the issue of whether the current version of section 538.225, RSMo violates the Missouri Constitution], the plaintiffs present real and substantial constitutional questions.” In making this statement, the Court noted a prior version of section 538.225 was found to be constitutional. However, this prior version of the statute gave the trial court discretion in dismissing a case for failure to file the health care affidavit while the current version makes the dismissal mandatory. The Court seemed to be indicating it would not be bound by rulings on prior versions of the statue and recognized a potential constitutional challenge were the issues to be properly preserved for appeal. The Missouri Supreme Court has struck down other portions of Missouri tort reform in the not too distant pass. Is this a signal it is willing to do it again? We may never know on this issue as it is hard to imagine another factual scenario similar to this one since pretty much no attorney will risk not filing the required health care affidavit.




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