531 S.W.3d 551
Mo. Ct. App.2017Background
- On March 22–23, 2010, plaintiff Lisa Menschik presented with neck/respiratory complaints; CT suggested retropharyngeal/retrotracheal collections and possible prevertebral swelling; metal artifact limited CT visualization of a developing spinal epidural abscess.
- Multiple consultants treated her; surgeries to drain neck/chest abscesses were performed overnight; thereafter she developed progressive lower‑extremity weakness and sensory loss.
- Neurosurgeon Dr. Peterson ordered an MRI early morning March 23; it showed a large C6–C7 herniation with epidural abscess compressing the cord; decompressive cervical surgery was performed later that day and she eventually regained ambulation after rehab.
- Menschik sued Drs. Alvarez, Kropf, and Peterson for malpractice, alleging delays in diagnosing/draining the epidural abscess, failure to perform adequate exams, and failure to order/perform a “stat” MRI and timely surgery.
- At trial jury returned verdicts for defendants. On appeal Menschik challenged (1) exclusion of two exhibits and limits on impeachment/recross of defense expert Dr. Paul Young, (2) bench comments during testimony, and (3) exclusion of her expert Dr. Patten’s testimony about the timing standard for a “stat” MRI.
- Court affirmed: it found exhibits cumulative/irrelevant or inadequately foundational, bench remarks not prejudicial, and Dr. Patten’s stat‑MRI testimony lacked foundation and probative application to Menschik’s specific circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Plaintiffs Exhibits 145 & 146 (CA Board accusation and decision) to impeach or show bias of defense expert Dr. Young | Exhibits show prior malpractice allegations and discipline, proving Dr. Young is biased against malpractice plaintiffs and contain prior inconsistent statements/contradiction | Exhibits are irrelevant or cumulative to bias, not proper prior statements, and concern collateral matters | Excluded: trial court did not abuse discretion — exhibits were cumulative/irrelevant to bias, foundational requirements for prior inconsistent statements not met, and contradiction on collateral matters disallowed |
| Right to recross‑examine Dr. Young about specifics in Exhibits 145 & 146 | Denied opportunity on recross to probe merits of prior malpractice claims; would show suits were meritorious and undermine Young’s Stevenson explanation | Trial court sustained objections; plaintiff failed to make an offer of proof as to the testimony she would elicit | Denied on appeal: claim unpreserved because no offer of proof; no basis to review exclusion |
| Trial judge’s bench comments during objections to nonresponsive answers (Dr. Peterson testimony) | Comments (e.g., “I thought it was responsive”) conveyed judicial opinion on witness credibility and prejudiced jury | Comments merely explained ruling that answers were responsive and did not comment on veracity | Denied: comments were neutral statements of responsiveness, not credibility determinations; no plain error shown |
| Exclusion of Dr. Patten’s testimony on standard/timing for a “stat” MRI | Dr. Patten would testify a stat MRI should be done ‘‘as quickly as humanly possible’’ and a 3–4 hour delay is longer than standard | Defendants objected to lack of foundation and relevance; trial court noted Patten had not practiced in a hospital setting for ~10 years and offer of proof failed to connect a general standard to Menschik’s facts | Denied: trial court did not abuse discretion — foundational deficiencies unrebutted; offered testimony was general/situational and lacked probative application to plaintiff’s circumstances |
Key Cases Cited
- Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107 (Mo. banc 2015) (standard for review of trial court evidentiary rulings)
- Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010) (permissible impeachment for bias and distinction between impeachment and contradiction)
- Reed v. Kansas City Missouri School District, 504 S.W.3d 235 (Mo. App. W.D. 2016) (preservation of evidentiary arguments and appellate review standard)
- Spalding v. Stewart Title Guaranty Company, 463 S.W.3d 770 (Mo. banc 2015) (abuse of discretion review for expert testimony exclusion)