Stephen H. Ringkamp
Trial court reversed (abuse of discretion) for refusal to allow plaintiff to re-open case to present favorable deposition testimony of defense expert after “gentleman’s agreement” that the expert would appear live in the defense case. Agreement “breached” by change of trial strategy by defense counsel. Lafevers v. Clothiaux, et al, No. 31575 (Mo. App. S.D., October 30, 2012), Burrel, J.
Plaintiff brought a medical malpractice action against an orthopedic surgeon for negligent performance of a surgical procedure on her knee. Plaintiff had a catching sensation and pain in her left knee but no instability. The surgeon performed an arthroscopic procedure but did not offer physical therapy as a treatment option. During the procedure, the surgeon noted that all surfaces were normal and there was no evidence of wear and tear in the knee. The surgeon removed the plica from the knee which caused the knee cap to shift and become hypermobile. The surgeon then performed a thermal shrinkage intended to stabilize the knee cap. Plaintiff continued to suffer significant pain in the knee.
The defense retained an orthopedic surgeon to address the standard of care. That expert witness indicated in deposition that patients such as plaintiff should undergo conservative treatment first. That expert also testified that the plica should be moved to allow for visualization, but should only be removed if there was evidence of excessive wear or contact against the plica (not present here). Finally, this defense expert testified on deposition that he did not perform thermal shrinkage because it “doesn’t work.”
During the course of trial, counsel for both plaintiff and defendants had a "gentleman's agreement" under which parties agreed to disclose witnesses they intended to call each day as a courtesy to the other. Defense counsel consistently advised counsel for plaintiff that this defense expert would be called as a witness in the defense case. Prior to resting plaintiff?s case in chief, defense counsel again represented that it was the intention to call this defense expert witness. In reliance on that representation, plaintiff rested.
Following the testimony of the defendant, defense counsel notified plaintiff of a change in trial strategy — that the defense expert witness would not be called. Plaintiff filed a motion to reopen plaintiff's case to present designated portions of the deposition of the defense expert witness. After argument, the trial court stated "I don't do business that way" in denying plaintiff's request to reopen plaintiff's case. Plaintiff offered a marked-up copy of the expert's deposition as an offer of proof.
The jury returned a 9-3 verdict in favor of defendants.
Held: Reversed and remanded for new trial. The trial court abused its discretion in refusing to allow plaintiff to reopen the case. Plaintiff’s offer of proof was sufficient. Defendants rested their case an hour after the refusal by the trial court, and defendants could have been allowed to introduce portions of the defense expert’s deposition believed to be favorable to the defense case. There was no perceived inconvenience to the court or disadvantage to the defendants. Despite the fact that the defense expert ultimately concluded that the defendant did not deviate from the standard of care, that expert’s testimony contradicted the defendant in several respects, and constituted “material evidence which might substantially affect the merits of the case.”
Plaintiff’s failure to offer the deposition testimony during plaintiff’s case in chief was not the result of any oversight or inadvertence; it occurred only because of plaintiff’s reliance on the “gentleman’s agreement” and representation by defense counsel that the expert witness would be called in the defense case. Although defense counsel has the right to change trial strategy, plaintiff should not have been penalized for relying in good faith on a representation made by opposing counsel. Such agreements are to be encouraged as an essential part of both professional collegiality and efficient administration of justice.