Shallow v. Follwell, 554 S.W.3d 878

Background

Saundra Beaver underwent hernia repair by Dr. Richard Follwell in 2012, was readmitted for severe post‑operative pain, developed abdominal sepsis, and subsequently died.
Plaintiffs (Beaver's three adult children) sued for wrongful death alleging Follwell perforated the bowel during surgery and failed to recognize/treat the perforation after readmission.
Plaintiffs presented one expert and a treating surgeon; Follwell testified for the defense and offered two non‑negligence causation theories (post‑discharge tear and a preexisting vascular/complex condition).
Follwell called four additional expert witnesses (general surgeon/critical care, cardiologist, vascular surgeon, colorectal surgeon) who testified that Follwell met the standard of care and that a vascular injury or other non‑breach cause produced the necrotic bowel.
The jury returned a defense verdict for Follwell. Plaintiffs appealed, arguing the trial court erred in permitting (1) Follwell to offer a causation opinion at trial different from his deposition and (2) cumulative expert testimony from multiple defense experts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused discretion by allowing Follwell to state at trial that a vascular injury caused the necrotic bowel when his deposition said he did not know the cause	Follwell offered a new, substantially different causation opinion at trial and failed to disclose it after his deposition, prejudicing Plaintiffs	Trial testimony repeated that necrosis results from vascular injury and did not materially change or introduce a new opinion beyond deposition scope	No abuse of discretion; trial testimony was consistent with deposition and not a substantially different undisclosed opinion
Whether admission of multiple defense experts was unduly cumulative and prejudicial	Multiple defense experts (plus Follwell) presented overlapping opinions that were needlessly repetitive and should have been excluded as cumulative	Expert testimony addressed the core dispute (standard of care and causation); each expert testified within a different specialty and contributed distinct parts	No abuse of discretion; testimony went to the "very root" of the controversy and the court reasonably managed cumulativeness concerns
Whether overlapping expert testimony warranted exclusion because it might prompt juror decision by headcount rather than quality	Overlapping experts risked unfair prejudice by allowing jury to resolve on number of witnesses	Trial court monitored objections, found probative value outweighed prejudice, and cautioned parties; exclusion is discretionary	Denied; court did not find prejudicial effect sufficient to exclude and did not abuse discretion
Preservation of objections to alleged cumulative testimony	Many transcript excerpts Plaintiffs cite were not the subject of timely, specific objections at trial, so not preserved	Trial court repeatedly overruled timely objections and warned Plaintiffs as to future questions	Court noted lack of timely objections for much of the testimony; preservation lapses undermined some cumulative‑evidence claims

Key Cases Cited

Lozano v. BNSF Ry. Co., 421 S.W.3d 448 (Mo. banc 2014) (trial court has considerable discretion in admission/exclusion of evidence; reversal requires clear abuse)
Washington by Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995) (party must disclose changed expert opinions post‑deposition)
Sherar v. Zipper, 98 S.W.3d 628 (Mo. App. 2003) (limits of discovery‑trial variance doctrine; protects genuinely surprised parties)
Black v. State, 151 S.W.3d 49 (Mo. banc 2004) (evidence is cumulative when it is so fully proved by other testimony that it is out of serious dispute)
State v. Davis, 318 S.W.3d 618 (Mo. banc 2010) (probative value weighed against unfair prejudice, cumulativeness, confusion, delay)
Sundermeyer v. SSM Reg'l Health Servs., 271 S.W.3d 552 (Mo. banc 2008) (elements required in medical negligence: breach of care, negligence, causation of death)
Nelson v. Waxman, 9 S.W.3d 601 (Mo. banc 2000) (cumulative nature alone does not mandate exclusion)
Midwest Materials Co. v. Village Dev. Co., 806 S.W.2d 477 (Mo. App. 1991) (prejudice arises when jury decides on basis other than established propositions, e.g., number of experts)
State v. Barriner, 34 S.W.3d 139 (Mo. banc 2000) (collective probative value must be weighed against unfair prejudice)
State v. Williams, 548 S.W.3d 275 (Mo. banc 2018) (trial court discretion to exclude evidence on unfair prejudice)
St. Louis Cty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116 (Mo. banc 2013) (specific, timely objection required to preserve evidentiary challenge)
Kidd v. State, 990 S.W.2d 175 (Mo. App. 1999) (testimony going to main issue is not to be excluded as cumulative)
Smith v. Wal‑Mart Stores, Inc., 967 S.W.2d 198 (Mo. App. 1998) (same principle)
Perry v. State, 879 S.W.2d 609 (Mo. App. 1994) (same principle)
Kummer v. Cruz, 752 S.W.2d 801 (Mo. App. 1988) (same principle)