Medical Malpractice

Stephen H. Ringkamp

Dental malpractice – defense verdict. On appeal, where plaintiff did not make a motion to reopen the evidence, and failed to make an offer of proof, the trial court would not be convicted of error on appeal in excluding evidence of injury to the mouth of another patient by the defendant. On cross-appeal by the defendant, the trial court properly exercised its discretion in refusing to award court costs for the time of a defense expert who was deposed only nine days before trial due to the expert’s unavailability, and who did not testify at trial. Calzaretta v. Willard, No 31499 consolidated with 31516 (Mo. App. S.D., January 24, 2013), Francis, J.

The plaintiff brought this dental malpractice case, claiming that the dentist lost control of his dental drill lacerating the inside of her mouth. The dentist claimed that the plaintiff “jumped or jerked” during the procedure causing the dental drill to injure her.

During discovery, plaintiff asked defendant in interrogatories whether any other patients had been injured in a similar manner. Defendant denied any injuries to other patients. On the morning after plaintiff rested her case, a discussion was held on the record in chambers. Counsel for plaintiff advised the trial court that his wife’s second cousin had been injured by the defendant in a similar manner just two weeks prior to trial. Plaintiff argued that this incident should have been disclosed and would affect the defendant’s credibility. Plaintiff moved for a mistrial but requested no other relief. The trial court denied the motion for mistrial. When the proceedings resumed in front of the jury, the trial judge asked if plaintiff had any rebuttal evidence. In a motion for new trial (denied), plaintiff claimed error in the refusal to allow her to reopen her case and in denying the motion for mistrial. On appeal, the issues presented for review were limited to the trial court’s refusal to allow plaintiff to reopen her case and in excluding evidence related to the injury to the other patient.

After thorough review of the record, neither an oral nor a written motion to reopen the evidence was ever made by plaintiff. Therefore, plaintiff failed to preserve her issue for appellate review. Plaintiff’s counsel clearly and specifically moved “for a mistrial”, but there was no mention of a request to reopen the evidence. In light of the fact that counsel for plaintiff declined the opportunity to present rebuttal evidence (i.e. — calling the defendant to testify regarding the injury to the other patient), the trial court would not be convicted of error especially given plaintiff’s failure to preserve the issue. Additionally, the trial court would not be convicted of error in excluding the evidence of another patient’s injury where plaintiff made no offer of proof. A proper offer of proof must specifically show:  (1) what the proffered evidence would be;  (2)  its object and purpose; and  (3)  all facts necessary to establish its relevance and admissibility. Here, plaintiff did not fall within any exception to the requirement for a specific offer of proof. Therefore, such alleged error was not preserved for appellate review.

On cross-appeal by the defendant, a defense expert was designated approximately one month prior to trial as a substitute for a previously disclosed expert. By virtue of the defense expert’s unavailability, his deposition was completed only nine days before trial. Defendant sought to have the expert’s invoice for four hours of time at $600 per hour taxed as court costs. Under Rule 56.01(b)(4)(b), unless manifest injustice would result, the court shall require that the party seeking discovery shall pay an expert a reasonable hourly fee for deposition time.

  Despite the trial court’s failure to make an express and explicit finding of “manifest injustice”, where the defense expert did not actually testify at trial, plaintiff’s expert and counsel traveled to St. Louis at a cost of over $3,500, and the deposition transcript cost nearly $1,000; the trial court did not abuse its discretion in refusing to tax the defense expert’s fee as court costs. “Manifest injustice” was implicit in the trial court’s refusal.