Colorectal Expert Witness Testimony Ruled Not Cumulative

Summary: The Missouri Supreme Court of Missouri rejected a claim that the testimony of four expert witnesses, including a Colorectal Expert Witness, was cumulative.

Facts: In Shallow v. Followell (2018), Supreme Court of Missouri en banc, No SC96901, the Missouri Supreme Court was asked to decide whether the lower court abused its power by allowing four Expert Witnesses to regarding a medical negligence claim.

The defendant performed surgery on the plaintiff to treat an abdominal hernia. After the plaintiff was released, she experienced in her abdomen. She was readmitted to the hospital, and the released.  After more pain, she went back to the hospital, and again was discharged.  When the plaintiff’s condition became worse, again returned to the hospital.  At that time, the doctor’s found that she sepsis due to a severe infection in her abdomen. She later died as a result.

The plaintiff’s three children filed suit against the doctor, alleging that during surgery he negligently tore the plaintiff’s bowel.  They alleged this caused a leakage of bowel contents that led to the plaintiff to have septic shock.  In their wrongful death action, they alleged the doctor failed to find and treat the bowel perforation after the plaintiff returned to the hospital.  Had he not negligently perforated her bowel, or had he found the problem and properly treated it, they alleged she would not have died.

The plaintiffs called one Expert Witness, along with a treating doctor who performed surgery in an attempt to remove a section of plaintiff’s bowel.  The defendant doctor testified on his own behalf, acting as both an Expert Witness and a fact witness.  The defendant denied liability, and presented two other possible causes for her death that were not based on his conduct.  His first theory was that there was a small tear that eventually tore sometime after the plaintiff left the hospital.  This theory was backed by another expert witness.  The defendant’s second theory was that the plaintiff had a preexisting condition that lead to her death.  To support this theory, the defense called four expert witnesses: a Colon & Rectal Surgery Expert Witness, a Cardiology Expert Witness, a Vascular Surgery Expert Witness, and a Vascular Surgery Expert Witness.

The jury returned a verdict for the defense.

Discussion: The plaintiff argued that the court erred by allowing four experts, including the defendant as an expert witness, to testify.  The plaintiffs allege that some testimony was overlapping, needless, prejudicial, and should have been excluded.

Under Missouri law, a circuit court may allow an expert witness to testify if technical, scientific, other knowledge will assist the jury to determine a fact in issue, or to give understanding to the evidence.  The proposed expert witness must qualify based on their education, skill, knowledge, experience or training to be able to give such an opinion as an expert witness.  To be allowed, the court must find that the expert’s testimony is relevant and admissible.  Relevant evidence is such that it makes existence of any material fact more or less probable. The court noted that the probative value of the evidence must be weighed the possibility that it wastes time, or is cumulative.  “Cumulative” means evidence that is fully proved by other testimony as to take the issue out of dispute.

Conclusion: The Missouri Supreme Court agreed with the Circuit Court that the testimony of the defendant and the four other expert witnesses was proper. The defense argued, and the court agreed, that in a wrongful death action arising out of alleged medical malpractice, the key question is whether the defendant breached the standard of care and whether that breach caused the death.  Therefore, the testimony of the expert witnesses was not cumulative.