Electronically Filed - SUPREME OF MISSOURI - December 14, 2016 - 01:59 PM #26893 1000 P.C. Ste. M.D., Missouri 64112 FIRM, Mcintosh Fax - Pkwy, BRIEF DHIR, APPELLANT MO (Bill) County, Judge MISSOURI MISSOURI FOR City, 221-6464 221-6460 Roanoke REPLY OF William Circuit Circuit 4646 (816) (816) [email protected] H. Kansas Buchanan WILSON, McINTOSH 95890 ROHTASHAV of v. Judah, COURT COURT SC THE ATTORNEYS and C. Judicial Appellant, Court Respondents. No. SUBSTITUTE P.C., Fifth JOSEPHINE Weldon Circuit SUPREME SUPREME M.D., the Hon. THE from IN APPELLANT'S PATEL, Appeal P.B. Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM 2 5 14 14 18 19 27 29 . and ...... medical dilation, ...... consent" dilation " a esophageal of to consent d esophageal "informed content to orme ti the ...... m consented "" on ...... CONTENTS CONTENTS cause consented ...... withdrawing cause expert rawmg for plaintiff OF tis hd for . "B" that wit plaintiff Streck defense Cox ...... (A) TABLE TABLE of "A" that esophagi ...... juror juror . Instruction strike argument strike of argument nstruct1on to esophagitis to examination fl eosinophilic o I of ...... usa AUTHORITIES AUTHORITIES fi Refusal Refusal Refusal (B) Permitting e Permitting Redirect OF ARGUMENT . II. III. I R eosinophilic IV. and article VI. V. VII. TABLE REPLY Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM 11 11 25 11 12 28 12 12 27 19 20 11 26 19 20 20 29 29 19, 19, ...... 1981) 1965) (Mo.bane ...... (Mo.bane ...... (Mo.App.1993) (Mo.App.1993) ...... (Mo.App.1990) ...... 499 ...... 748 ...... 105 ...... (2007) 1968) S.W.2d 2014) 2 1947) 2008) ...... (1900) S.W.2d 1972) 880 AUTHORITIES AUTHORITIES (Mo.App.1981) 621S.W.2d245 S.W.2d (Mo. 387 (Mo.App.1955) 316 865 OF (Mo.App.1986) (Mo. 320 800 (Mo. (Mo.App.1969) A.2d Co., 299 566 (Mo.App.1999) Corp., (Del.Supr. 551 Co., 334 (Mo.bane S.W. 162 (Mo.App.1981) Ry. 927 Inc., R. .. 56 798 TABLE TABLE S.W.2d 885 S.W.2d 1222 430 475, S.W.2d Credit S.W.2d S.W.2d M.D Co., 619 S.W.2d475 S.W.2d 433 T. 281 A.3d Francisco I. S.W.3d 705 Northern 200 S.W.3d Conn. S.W.2d 476 446 Shoe 93 C. 11 254 Decisions Decisions Geimer, 626 Wakeman, v. Kissir, Pendegraft, Harriman, Louis-San Johnson, Miniham, v. Court Burlington v. v. Momtazee, Universal Camel, 283 Hickman, Owczarek, St. Newt v. Mayer, v. Desmoyers v. v. A. v. v. v. v. Morrison, v. v. v. v. v. Adams Bradyv.Urbas,111A.3d1155(Pa.2015) Bradyv.Urbas,111A.3d1155(Pa.2015) Beggs Baird Coats Crain Cress Dunn DeMoulin Gathright Gevermuehle Estes Gridley Grippe Harriman Hayes Johnson Joy Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM 13 23 11 11 20 28 16 19 26 12 11 23 23 29 16 23 29 23 21 19, 16, 22, .. 21, ...... 16, ...... 1968) 1959) ...... (Mo...... 205 1978) ...... 1985) (Mo.bane 1077 (Mo.App.1992) (Mo.App.1992) 2006) 174 S.W.2d 391 (2012) ...... So.3d ...... (Mo.bane 431 (Mo.bane 359 (Mo.bane 170 181(Mo.bane1958) ...... S.W.2d ...... 573 S.W.2d (Mo.App.2011) (Mo.App.2011) 423 1976) 45 3 Lines, A.3d 327 826 632 LLC, 1968) S.W.2d S.W.2d Barge S.W.2d S.W.3d City. (Mo.App.2012) (Mo.App.1989) 458, 49 (Mo.App.1966) (Mo.App.1966) 318 (Mo. (Mo.bane (Mo.App.1987) 560 S.W.3d (Mo.App.2010) America, 191 699 ...... 142 30 406 Jefferson. 553 (Mo.App.1990) (Mo.App.2004) 116 of 237 334 206 Co., Orleans of Kansas Co., R. 725 Co. of Md.App. 2015) City, S.W.2d New S.W.3d S.W.2d Vincent, S.W.2d S.W.2d S.W.2d Ins. 206 McLaughlin, Pac. S.W.3d & v. Dist. Hosp. 536 v. 363 407 S.W.2d 431 740 Insurance Anesthesia 313 5th Kansas City 136S.W.3d175 798 of Par. Rosen Kemper Johnson, Missouri Luke's Prudential Carron, Ellfeldt, 768 v. Hudson, Hudson, v. v. Werner, Cuvelier, St. Farmers City v. v. rel. rel. v. v.Sioux Daly. Jackson, Edwards, Yole, v. (La.App. v. v. v. v. v. ex ex v. v. v. Kelley Kelly Kendall Kline Matranga Murphy Miller Powers Sampson Schwartz Rouse Rowe State State State State State Statev. Stewart Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM . 19 11 11 11 12 12 ...... (Mo.App.1976) (Mo.App.1976) Revision] Revision] 274 481 ...... (2012) [2012 [2012 N.E.2d 1128 S.W.2d 34.02 34.01 (2004) 4 688 539 P.3d ed.) ed.) 307 355, Inc., 287 (7th (7th (Mo.App.1961) (Mo.App.1961) ...... S.E.2d 272, 493 App.3d 593 Products. 1996) Ohio 510, Instructions Instructions S.W.2d Or.App. Dist. Metal 116 Va. 349 Jury Jury 252 11 Authorities 267 App. Crescent Imperia, Other Kaye, Caldwell, Caldwell, Aggarwal, Aggarwal, v. Approved Approved v. v. v. v. (Ohio B. Waller Warren Turner Womack Wright Missouri Missouri Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM in first (Tr. term They point, Wilson the A of 15). that She that of at plaintiff with statements 11, Mrs. complication, Wilson it "INFORMED "INFORMED negligence difference. that 10, aware EGD. a that these Ms. 9, procedure. consent" was 8, the complication coupled without with 7, examination recognized without know, 6, contention doing dilation the statement 3, and occur all in i, consent," potential "informed the procedure, their can after we WITHDRAWING WITHDRAWING the significance known distinction term as opening a a to during support the times later times "A" of recognized draw prior not use of"informed esophagus 5 (Resp.Sub.Br. harbors combined many complications REPLY REPLY her does They esophagus known that minutes a Wilson, their literally concept her is Unfortunately, theme consent" dilate known not two the of Ms. to that to synonym. did that INSTRUCTION INSTRUCTION stressed that procedure first the its a be is esophagus on and to OF the choose alluded procedure. counsel perforation reiterated the of"informed will in spin first esophagus. the of 345): necessary) might agreed if "agreed" to the jury (Tr. defense (as evidence evidence Dhir term REFUSAL REFUSAL the Defendants complication," I. Defendants' Defendants The agreed Dr. experienced a dilating perforation While opening adding chosen CONSENT." introduced "known their informed understandingly the later 659-60). Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM ): and closing closing opening opening 552-3 By my in in from 12-8- aware (Tr. it. Wilson that of2009 consent document," later procedure, dated were Ms. information throughout throughout signs consent bit consent" aware it the "that plaintiff a the You to 1958 She on informed for I'm December Wilson. in . . . . . this prior page me. informed away is "informed asked on Ms. 553). consent" to an Dhir he understood on ... there? week, This term (Tr. It's Dr. necessary." and cross-examining that this if the EGD exam, hammered hammered with in Dhir. explained of Wilson "informed an later read and had Dr. 6 it use consent?" Ms. them been MR-1957. does term redirect see you have document." by with 790) procedures highlighted 11 their No. here, have Dhir that this you 863). began actual I've 756, you' that made informed other Dr. right Bates esophagus? dilation that read the do 859, benefits dilation "The again where assert and to your 2009, counsel that's consent, "I've and used 857, 8, and was signature form [s]aying EGD dilate first· 853, says, risks choose 649, 659, 731, wrongly the EGD your ... it your responded, in plaintiffs document informed it, 362-3): 837, the mention of may a might "The that December an to 552-3, is he Is day (Tr. on (Tr. next before counsel So Defendants doctor signs saying signing This the document 09. provided prior that Defendants 455-6, very just (Tr. argument argument statement The And defense Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM if of the Dr. had that 511) their word direct theory 764-5; of wrong" like "even used Wilson]" Wilson]" (Tr. her after her Services." validity "Informed "Informed it defendants (Resp.Sub. not in the fix throat content 609-10, [Mrs. had EGD equivalent after prove McCormick defendants. Wilson her entitled the to an by an Medical "something Dr. 429, by consent or on Only would not Mrs. question saw like dilate Plaintiff is (Tr. to he conversation" Other signed it. into essential planned agreed direct. of AS) ifhe that to their informed scope references would on a "Consent" of were of only that Dhir he 201, findings" questions "do three he and document document and "call[ing] her given him the to nature a problem, Rendering subject on tell "informed" Those was told these of the procedure. 1 any the going and to dilation not answer testified 7 she Plaintiff word or the did was was I); name Wilson itself(Def.Exh. itself(Def.Exh. prior the record. of raised Dhir her "depend[] SI "disputed the to Dhir Dhir the there Mrs. first Treatment unnecessary point (Tr. to and . by if (id.). nature and would an to attached that any document document posed the to past" and at by (id.); the belied plaintiff the understood wrong" is reference reference dilation it" in a discussion" "Consent that consent 8) question argument of 2005], She "in unnecessary consent" for because because her unnecessarily any done supported care and 8) to rather of anything to the need had not assertion merely not [A7]). but see "take part 2004 3 the counsel a discussion. also Defendants' "informed The 1 (Resp.Sub.Br. case, is [in directly made not 8) informed-consent didn't should the was Consent" (Resp.Sub.Br. (Resp.Sub.Br. Defense exam phrase went 1212109 of was the Br. done McCormick he he meeting; Pltf.Exh. Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM to its her the his was and any one 735- other exam or about of in and specific answers (Tr. failure about dilate purported procedure injury those direct claim and twice examination and to her doctor Dhir consent" consent" of a it her consent" asked by the their consent what direct forms said medical risks intent made use even or of time questions signature, signature, being"; inform its "informed "informed during of was never informed counsel "informed to Dhir's her the consent" will well surgery of to came and on defendants' several use Dhir ahead she "had as in my of that that objecting plaintiffs for benefits "informed after counsel acknowledgment identify 732-5). signature signature finish plaintiff 554-5). on occurred to when two circumstances circumstances risks, (Tr. and jury 8 (Tr. incidental/minor able understanding Thereafter the next necessary the start about except plaintiffs plaintiffs plaintiffs plaintiffs be consent" "any and signatures tell acknowledgment to her about the Their not to did to 731-2). her performed" at with abnormality present, him will medically included patient only (Tr. once and 649). referred referred no want redirect redirect is 736), for was be; knowledge not of"informed This on (Tr. and not 830). doctor obtain of 731, found jury es] argument might overruled the time, (Tr. cross conversation lack the (Tr. ifhe judgment mention nurses in "do[ content. Ginsberg that that questioned questioned her its getting closing she next even how of when "authorization" consent" of phrase in himself and his/her procedures expert and all The her Wilson it, the in In Dhir their used read Mrs. esophagus of explaining of death; portions understanding that medical procedures anesthesiologist's equivalent 6). counsel sentence informed Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM 9), did then rebut. Wilson why to the and and defendants or have error Mrs. entire based liability, there's that of the plaintiff's that (Resp.Sub.Br. (Resp.Sub.Br. it. inject aware fact, corifuse of consider counsel's argument matters to for the In cavil to complication, stretched theory was corroborate, corroborate, notion of these would parcel to .... defense she the being support potential admissible" admissible" beyond and that in potential case supposed parcel no that plaintiffs with has Dhir. and part it to not surgery. establish, establish, this and instruction and Dr. believe jury It's to in 're shows esophagus establish serious, of 2 the think the a I to part they her defense "relevant "relevant don't is I 9 of record issue. The answer offer relevant relevant that it was unnecessary to procedure this carrying stealth The whatsoever 795-6): of influence was a improper. the jurors. think it times? to think is as insufficient (Tr. about believe concept concept party I decision-making the fact potentiality I theory with many the the were procedure intend So the the accusation. so either when somehow consent" to that not and plaintiff . . . instruction mislead by to this material material instruction about proceed by did this and phrases to passages argue jury case. what consent, denies unnecessary that findings the "informed the immaterial these an these abandoned the of evidence withdrawal confuse use explain defendants all to believe the Plaintiff Defendants Defendants I If and facts been been mislead informed willingness upon plainly knowledgeable 2 If reiterate never was but It consented to they against intended Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM if the the that all, (Tr. at serves despite "known was situation a can that Dhir the came it obviously, declared declared as witnesses Wilson complication" establishes it to Dr. verdict but that outcome, 837) means Ms. that complications complication" counsel counsel several because, (Tr. rare, no referred which defense defense of"known describing It's with a case dilation unexpected complication" "known Defense Defense possibility the an to 863), a notion suffered procedure. render a gastroenterologist repeated repeatedly was to "known procedure have doubt. during injury, complication, procedure. occurrence. but 853). later or reference every ofa 857, 859, there irrelevant perform and would (Tr. the known that there to 10 853, consider consider event from a lingering lingering to common an 354) repeated unnecessary (Tr. a existence unnecessary any taken agreed heard Unfortunately, that's matter an plaintiff again should 345, is an the not it in treatment" all she the you her. (Tr. closing care It's jury remove with and experience and in have told perspective, hitched the due ... leave upon care performed, we and do occur. aware should she usefulness opening perspective, not when 790): no been associated and what defense and was dilation thought thought did their does perforation a the not has can in 756, even of she harm courtroom and do argument argument appropriate plaintiffs had and Wilson from consent, of the this counsel can of 659-60, experienced might Ms. it happen, to From But "patients closing spite mentioned evidence evidence dilation purpose in their first plaintiffs the 455-6, complication" Defense or where gravity no the Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM by or the the her. high even such while by found to 1968), on 891-3. defense that, "known "known the not reversed at improper that a admitting but to latter. withdrawal do (Mo. an criticized of Five was A.2d the the 118 not defense happened agreed in Matranga), from 927 counsel "depending contradicted recognized all discretion, have 41-45). consent defendants of Baird, here. distinct each opposing fall-back fall-back whatever consequences irrelevant is defense defense squarely in of abuse and which is treatment the and Brady, is performed by informed absent an 431S.W.2d116, risk Defendants be are (App.Sub.Br. intent consent 3 idea that 1981), was former the 12-13) pleaded, Waller, of improper trial the Werner, might reference reference examining which at salient of been of Warren). prejudice informed evidence assumed 11 (Mo.App. each all not (Wright, states argue their or the alleging statement that dilation has undue to of not Thus evidence 435-6 it (Resp.Sub.Br. as case that own (Schwartz, a evidence "did and echo cases--Millerv. 430, declared ofreasons, well in admitting eight sister eight where trial as such of consented at have of case knowing theory, counsel's esophagus. esophagus. S.W.2d -- negligence" variety a agreed also Missouri a consent calculated calculated defendants in of 626 a had EGD for confusion court Two the that exclusion address defense 795-6). treatment was claim the or its perforated perforated juror Mayer, informed by to Hayes claim irrelevant a (Tr. of plaintiff v. of is prejudice and judge's The The Prejudice. less Moreover, 3 affirmed Cress trial (plaintiffs] unnecessary undue complication" complication" much consenting findings," record to instruction and or acknowledge evidence evidence probability the two no Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM to 56 the case that their And cited which citing giving where error" 34.02. hinting Co., the from to 584) 9). (Mo.bane for of introduced misplaced. and at guided cases Shoe is references 252 Womack neither "invited to been degree and pleaded," or 34.01 245, is standard standard S.W.2d 10-12) has the terms, it multiple MAI by limited (560 (Resp.Sub.Br. as legal Desmoyers consideration evidence. encouragement, of 4 S.W.2d v. awareness broad its the are evidence case in noted through in guided 621 admissibility" making Estes benefits the be (Resp.Sub.Br. jurors' approval jury unstinting given which Co., necessary. of are and its the to reiterated reiterated be Womack the Sampson Ry. statement was "curative and "should into a and received Court degree should 12 mislead action compensation was defendants' Dunn defendants the this opening woven Francisco in consideration situations. rejected by the discretion with might (Mo.App.1969), Sampson was these fact these. also benefits their involved into instructions 162 corrective trial, of court that guided like in and deeision which Louis-San the be and any similar plaintiff which trial jury St. 484) or pronouncement, pronouncement, minutes much of S.W.2d the v. at here, Court's the to withdrawal argument two "should compensation 446 .2d same introduced recent this W Dunn throughout 484-5) neither the S. when at distinguished distinguished instruction: to 9 been mislead within Kissir, most happened workers prejudice 53 ignore v. ( (id. discretion its has (1900), of Defendants' In That The pleaded." might 4 addressed 316 is mention court limitation it a withdrawal W. meaningfully meaningfully 1981). evidence a as decision-making first evidence Both at trial S. which DeMoulin DeMoulin argument defendants Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM did 640 cite, and why judge to 794-7; content content else 659-60, average "known "known 632, consent" The "informed evaluating case. to an references, the (Tr. procedure" immaterial. 5 795-6); 649, a to Why to is it, existed the and evaluation and S.W.3d these (Tr. in 552-3, of items "informed writing? 334 reason sense perform trial an branded branded in court's references deliberation issues to treatment? the as other 455-6, City, other cross-exam), cross-exam), the the purpose and understanding to taken on to during common dilation is during of repeated What 362-3, plain Kansas defendants defendants the owed the care of to the records unnecessary 345, is terms relevant misidentified question counsel of due 795-6). City In was which (Tr. volunteered volunteered v. intelligence, were first billing (Tr. 13 when That with A theory consented understood the deference defense Kline repeatedly himself himself in even had message. argument ), title did have ordinary 863). that ... plaintiffs as Dhir documents 201 form this they plaintiffs with 859, Instruction one closing got plaintiff to 805), evidence? other language." if the 857, could argument misleading misleading consent requested have (Tr. and (Def.Exh. credited into else the the opposing defense complication English also on (including (including a in of are issue form irrelevant would jurors? and determine as 837, 853, the How records and jury this to ). of defendants' copy "known 201 from a the argue 790, jurors consent" consent" admitted consent "[j]urors except billing and and except That 756, The the more Lastly, 5 the request 837), 36), Def.Exh. Def.Exh. counsel of "informed "informed complications," complications," 731-6, as belabor evidence, (Mo.App.2011 understanding consent" (Tr. misunderstood they LF expect form, Unlike Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM as up go­ TO (Tr. "can never might 584-6, the consent" consent" that approved plaintiffs procedure Dhir brought 472, closing a judge gave argument esophagitis" the expert. (Resp.Sub.Br. A of of have and "INFORMED "Dr. The to 471, That not EoE their "informed "informed CONSENTED CONSENTED that virtue (Tr. and complication" and that 837). by opening would remainder Instruction 805). "eosinophilic trial in irrelevant misplaced. misplaced. (Tr. the she the Dhir, (Tr. known injured in "a "agree[ment]" incorrectly incorrectly Refusing wholly PLAINTIFF it me." which was WITHDRAWING mentioned "guidelines" evidence expert, I. is introduced to of her procedure" first with her throughout 14) a "B" client and and it Point believed believed THAT consider complication" 14 consent he your concerning carried done from counsel to Wilson, defendants perform like ESOPHAGITIS. first repeated here, to have jury Mrs. "known the is (Resp.Sub.Br. (Resp.Sub.Br. theme then not the Defense of "aware[ness]" evidence to argument sounds procedure taken from ARGUMENT INSTRUCTION thing the is her that That of should 356-7), OF prejudice prejudice it. care fallacious and he incorrect. whole plaintiffs references because because of (Tr. questioning encouraged EOSINOPHILIC due the recital that her" DILATION. about "The lack incorporates 863) did when AND during the upon question question REFUSAL numerous PERMITTING PERMITTING statement case: known crowned of demonstrably re-emphasize even that It doctor the the II. Plaintiff is Defendants' III. had to as dilation in the a she opening "finding" "finding" reached reached if was that ESOPHAGEAL ahead happen, do 853, 857, 859, well 18-19) theory. CONSENT" several times in Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM the its the that (Tr. any with 487; with other -- or not into specific -Tr. 18) any "articles" identified situations time, guideline] mentioned omitted (Resp.Sub. A any EoE all were recommenda­ one does and in "literature" review guideline, but ASGE allege [Exh. authoritative nor were only Dwoskin and as specifically identified they general 2006 ASGE (Resp.Sub.Br. that reviewed as in doctors, dilation even compliance subject [the never or 479-80). 2006 for statement, trial" to guidelines care" the plaintiff"injected plaintiff"injected thathe but strict evaluation" the of (Tr. criticism up their said characterized that during tied content, esophageal "guidelines" He "looked require education its generally opinions, brought brought asserts or support presence "literature not and about a Dwoskin literature his 15 the standard not Defendants' did brief explicitly concerning specifically article jury's testified make asked documents. and Plaintiff Plaintiff does expert He the that Their medical forming violated never never was field care her information in opinions. 799). he 444-8 of guideline specific Dhir of that 668). outside Tr. in (Tr. no discussed that Later Dwoskin 413-4) to (Tr. Dwoskin ASGE authoritative standard cited sources (Tr. never of dilation" closing as 2006 opinion cross-examination. in legal A10-A15]) that use standard-of-care again Ginsberg Ginsberg specializing reference or guideline. his (the transcript. the the specifically, and his or but App Dwoskin of for "empiric the "research" to Their direct expert to of text article But it, More functioning 710-1) and through 444-5) 444-8). of physicians 49-54; 18). one support during 634, case defense is, LF respect it 409) article, (Tr. that equivalent (Tr. tions, as Br. part portion Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM a of its the 148 that not is fails That (Mo. cited of 6 ASGE lack and 18) evidence evidence issue 142, -- make statement, introduces his substantive at 49-50 1968), 2006 introduce into not ). example 45, to over State the misplaced. (Mo. S.W.2d an did writing, is contested writing the of a 60-61 content 205 admissible not 768 the (Resp.Sub.Br. (Resp.Sub.Br. of the S.W.3d its is of independent, not Ginsberg or authorized 191 689-90) ("When portion and is S.W.2d where but Ellfeldt, (Tr. picture direct, 431 completeness" v. impeach esophagitis" esophagitis" (App.Subs.Br. as guideline Vincent, of circumstances to v. defendant Lines, applicable that the complete it. authoritative "rule was the Powers a of impeachment (Mo.App.2004) completeness" not esophagitis" an the explained is Barge 16 of Kemper for admissible 179 eosinophilic eosinophilic on It of have purpose rel. writer. 175, can only "rule "introduce" evidence, evidence mention to mention already ex Orleans article sole not text the reliance into jury has used Ginsberg its the "eosinophilic State New did the S.W.3d defendants. to & "undiagnosed "undiagnosed of occasion occasion introduce so and by 136 term mention no plaintiff City properly part may le, admission about the defendants' plaintiff cited not is had authoritative or Yo quotation hearsay, adversary." he v. The party an other deposition that reasons a does consider. the or was language language that any for State to with f2y_ that It portion"), containing or treatise Stewartv.Sioux Plaintiffs jury a Consequently, 6 2006); "holds of the defendants, recognize recognize "qualifying" "qualifying" to guideline agreement evidence. passage (Mo.App.1989). for conversation, introduced rule bane learned part remaining application, by Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM in he the EOE quote in ASGE EoE than adduced adduced adduced the of effectively of term three 2006 eosinophilic first more they case. or passed scores. lack of the Guideline structural large-bore be this no The likely two purpose medical of of from if it. ASGE testimony defendants defendants dysphagia use that from quite facts dilators disregarded, as "undiagnosed of have is 2006 the it, plaintiff. passage with expert legitimate not were on that results improve The had the that treat did only recommended and of not large-bore to and mentioned she the never significance passage passage results, ended. does s perforation 584), that how that of that routinely of 17 served agreed have (Tr. Wilson of be statement lack normal it all applicability articles' risk dilation suggest deciding Mrs. and has Ginsberg the should the read: have in import cannot to up in opening effectively endoscope. because empiric not true in set at potential, because because would inquiry matter meaning EoE did to that the it dilation evidence. evidence. clause quoted the endoscopy all seen is endoscopists B, the that issue had she of only A) the confusion are EoE an shown admission That if there empiric for some about the knew never not I). ... explain if But have substantive substantive because relevant AI to Instruction was as Dhir (Pltf.Exh. know -- -- by was occasion plaintiff to App EoE Hence, Although empirically studies Thus, dilators, abnormalities Defendants' no 471). 50; received received (Tr. needed Guideline plaintiff esophagitis." gave removed (LF proving reference Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM the and TO into all. (Tr. jury harm it at pervert pervert the of without defense Because potential false a withdraw to itself increased case. a for value to its an not undermine at gravity is transform and to picture, appeal to not the failure esophagus creating CONSENTED procedure EoE the inadequate. procedure probative and was their the show and dilation no ESOPHAGITIS. jury. have court's to normal thereby muddy Guideline, the the had III. not a renew to The virtue passage, plaintiff only to did illogical risk by unnecessary and PLAINTIFF I ASGE that that is 854-5), misled an 2006. she -- -- finding only in consent to relevant and with counsel 2006 19) THAT Points after endeavored endeavored 840-1, increased was EOSINOPHILIC the because advance and (A) 18 despite existed an efforts defense from 710, OF in defense expert informed of risk from risk (B) dilate care her disagreement their viable that guideline. guideline. perforation of a to (Resp.Sub.Br. 689-92, defendants argument and absence AND passage defendants' not authorized given increased since EoE her ARGUMENT the is B 70-6, ASGE an 4 had standard and Ginsberg's decision quoted have that esophageal of (Tr. the 2006 have defendants defendants of justification the existed, sanctioned the DILATION, Wilson of the Dhir's matter Instruction did not risk about incorporates of and a purpose did not the she Mrs. evidence 610), with thereafter thereafter PERMITTING issue abnormalities, meaning undeniably portion But IV. Refusing Since Plaintiff solidified plaintiff 413-6, because real risk conclude quoted the impeachment confusing substantive EoE ESOPHAGEAL consequences, to associated 393, structural risk the That Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM to at St. the be an OF 349 once, v. whole can jury conveyed the S.W.2d plaintiffs only the substantive Pendegraft, misstate misstate discredit Kelly articles to 826 Caldwell, to CONTENT or v. passage cross-examination. City, disregard extension, ON 854-5) legitimately them. of encourage that by Gathrightv. and independent, credibility. Turner to treatises been rules as Kansas 22) and, 840-1, heard -- and of had confused EXPERT texts, end (Tr. cross-examination performed. performed. general that jurors in the 1947), Ginsberg's defendants Hosp. likely at been twice state Since authoritative (Mo. (Resp.Sub.Br. DEFENSE 22), have Luke's 396(Mo.App.1992); authoritative guideline ). treatises as closing argument: enabled 1 impeach 19 points" 334 OF 21, or St. in 7) to 391, expert v. defendants defendants never 690- ASGE holding 854- texts "bullet own (Tr. effort identified S.W.2d Kelly 2006 S.W.2d meaning the defendants' should (Tr. cases allowed allowed In law -- its their 200 the in 826 7 never no (Resp.Sub.Br. ARTICLE. 1968). of of of also cite rulings plaintiffs City. authoritative EXAMINATION 57-8). hearsay (Mo. procedure procedure fallacies portion controlling Miniham, refusal guideline garbling the 316 using the v. court's only MEDICAL undercut examination that ofKansas are under defendants 299, the ASGE court's (Mo.App.1961) the and REDIRECT of inadmissible (App.Sub.Br. counsel's involved direct 493 Johnson Hosp. The And V. These First, 7 charge jurors 2006 in S.W.2d the the the HEARSAY meaning to to defense consider of evidence Luke's 433 A citations used S.W.2d Neither Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM at as v. 363 had was part. texts own] * * * * * could a 79-80, appeal, appeal, 4 is Grippe court and (Mo.App. S.W.2d discretion equivalent this Dwoskin (Tr. independent, party's Cuvelier, in 476 scientific cross-examine Judgment trial by 322-3 v. as were Gridley of lacked to testimony. testimony. [the hearsay The of not use 320, dilation" parts used court Rouse which involved involved were Johnson, the reasons. 23). be identified of expert's expert's to v. (Mo.App.1990); The rule. they 22, S.W.2d an empiric certainly article 107 could cases never to 619 examination them. unstated of 8 the Gridley 105, hearsay non-qualified was for as party, line from prerequisite regard direct dilation the challenge challenge The text Geimer, to Kelly. such authoritative; a or whole therein. (Resp.Sub.Br. either S.W.2d entire a "with as 50). hearsay during all 20 986)("A by test empiric the as with l 800 LF authoritative"). at only to to matters treatises, treatises, exception discussed are form Inc., 690; hearsay an expert the not Gevermuehlev. of any they eviscerate relating (Tr. (Mo.App. Guideline the inadmissible characterized M.D., in defendants have of "Learned "Learned within that 556 authoritative not truth done would using aid fell ASGE jury the portions held: 551, was it by inadmissible was it cross-examination cross-examination not of the is articles as Wakeman, theory 2006 evidence those to or Defendants said is unless does S.W.2d the squarely squarely during He article Newt only ... 420(Mo.App.2012); expert, evidence 705 v. the cross-examination rehabilitation court used treatises hearsay Thus presented Gridley or Second, all ." 8 Defendants' be the Crain ). be treatises defense texts, admit 396, may expert authoritative. However, 486-8). the substantive to 481; not and 1981 Momtazee, expert, S.W.3d406, to denied Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM a to that was and City of only facts. before truth deemed evidence available court otherwise argument, the here; tactics the defendants representa­ is actual Stewart v.Sioux v.Sioux authority authority it were trial that on 51): told of the present happen (at all she authoritative Stewart Stewart to substantive aid deceptive permitted ruling not support as transaction, pertinent pertinent said dilation" defendants' "to the or not of not did to court by pervert showing Court allowed qualified, that for impeachment. does textbook trial is admissible retrial, "empiric be citation took intended ). 45, This But contrary the to the evidence. for used obtained occurrence, she .3d is was 60-1 article defendants defendants Yet should W or act, becomes was without without S. 481-2), use. qualified an at guidance thereof 24-5), pertaining 191 polygraph. 21 of substantive for polygraph (id. discussion treatise treatise a part as the defendant claiming claiming a part App.Sub.Br. supra or of confession properly text, by the cross-examination. supplying failed (see Guideline text witness not Court's available in when redirect that was results (Resp.Sub.Br. (Resp.Sub.Br. entire she in supra, had Vincent, this case It thus introduces v. the ASGE so her held learned subsequent defense !Jan and a material ruling parts Lines, that 480). the party told in own 2006 plaintiff at this 23). Court Kemper completeness" grounds, the the 486-8) her Barge either of this rel. falsely W.2d of completeness" hearsay impeach evidence that (Tr. that ex other (S. of to impeachment "rule defending defending who on Orleans Orleans There, clear as In State [W]here the non-authoritative is "rule portions (Resp.Sub.Br. a it parties" use New use & inadmissible under not inadmissible either. detective demonstrate reversed the But attempting for tions authoritative those to Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM her The most other about police on inherent the by the the are statements admissible those light arise the of for witness. with circumstances possible evidence essential evidence were shed prior over admissible is the the might -- all parts to only the of matter to introduced are to own a presenting all jury them jury is which revealed other account. not of confessions that though that the object quoted results confession to the that into all evidence the least -- disagreement the and even and at defendant's the inferences inferences confession right to provide test incomplete or of a inquire mandated revealed apply to accurately an of to be detective to witness's case, criminal adverse adverse or surrounding confessed surrounding a held could trial character 22 polygraph to the she intended a pre-existing rebut suppressing presented non-party, credibility or The criminal been a the a why introduce introduce credibility. had The of ... involving while in has to had involves confession circumstances statements incomplete explain circumstances State that assess prosecution case. or to the own illegal. case the to explained The fairness, entitled entitled rule of The statement a order this defendant is that jury confession), State's place -- test. formed circumstances defendant's the the , (her first ifthe party fragmentary of evidence defendant's they for those the thereofin thereofin Fundamental the the deception, them and admissions. even out-of-court in Kemper statements adversary basis polygraph order of by the opposing opposing from whole because was his the in The jury, Unlike the of ordinary as damning admissible misconduct. surrounding motivation, taking obtained truth Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM as or all nor the was also 423, court. it quoted general witness claimed a show impeach read, the treatise as he to of to and (Resp.Sub. "rule" from because S.W.2d admissible did because text, the itself. is parts 699 a Nor in Kemper defendants' evidence existed Guideline statement attempted inaccurately inaccurately withhold Co., those defendants the the (which because cited by that then Guideline another of inapplicable ASGE neither otherwise. otherwise. is and of problems defendant Insurance appeal supplied merely was parts omitted 2006 advantage, prevented statement hearsay the those shown the was have the own other speaker, hearsay of not Farmers not to nothing his use Ginsberg Ginsberg the v. No could to to to defendant's holding parts have 23 (Mo.App.1966), inconsistent was the himself, (Mo.App.2010), (Mo.App.2010), the Rowe referring (Mo.App.1990), himself 553 Similarly, quoted for prior allowed 206 relevant adversary, 725 statement. under witness defendants defendants adversary was own rejected any without his S.W.2d own the the records. It rationale cases defendant and S.W.3d his Guideline Guideline cross-examination. State S.W.2d by 407 from about his the true 313 for civil learning 798 with as The ASE which of State's in the elicit or in above. the 2006 Daly, Hudson, misleading, misleading, not out testifying Jackson, statements v. 1985)). witness available v. the from inasmuch v. nor evidence set may from was State prior knowledge from Furthermore, circumstances State In Kelley One conversation missing "rule" (Mo.bane 27-8): the prosecution incomplete, incomplete, passage passage inapplicable the Ginsberg was medical a substantive 427 declarant of involved article. Br. Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM to its was have same never 484-5: similar limited at in the an his the its was and such prejudice 'of to with truth. explaining admissibility" sample for Guideline hand otherwise S.W.2d party, misrepresentation the party reply untair below), though whenever or whole disparage often 539 61-2), might added). ASGE one in, evidence that or other may received go the "curative by that even Third of supra 2006 the of end which it, illegal other of resulted the rule, of the Inc., light rule (emphasis the properly opponent to broached the (App.Sub.Br. have the from the impressions paragraph prejudice sense the was in of not responses responses been case'" in brief amischaracterization the Products. ... hence and discredit false ' the unfair passage to examined, not other fully an 24 and main of"countervailing analyzed Metal both; be no was and could statement explain serve her in voluntarily quoted a more evidence in, evidence, may as is in them and the but has removing off Crescent disadvantage, disadvantage, admission out result rule Half-truths shown illegal v. for dependably misquoted, again, not fill ~ passage inquiry (as eschews that drawn not remainder substantive evidence, justify more Qf did once needed as law It was be hearsay. Womack adversary's adversary's is which whole it introduced could in the his contents a are italicized may subject relevant original addressed to other. has its because, that as and the received the The length no of evidence," jury, at or party whenever and a conversation conversation responses the from article improper hand, such case, Plaintiff produced 556. at "illegal defendants the Id. explained "when ensued evidence inapplicability not of proffered the purpose Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM for the the and the that Co., 21). this prior made failed R. quoted passage address used read with from Summary Guideline the be unfounded, judge article one treatises can utterly even up convince The principles to the only to trial Northern Northern not -- ASGE texts, have Court (Resp.Sub.Br. entirely fact. can the match read accusations inconsistent in does or that are 2006 and it that They This The Guideline not never as and the Summary, whole" basis Burlington Burlington is credibility a 59). of He v. the confirm any compare exists. as 52) ASGE 10, assertion evidence, use not. 711-13) not correctly. his/her lack text inasmuch (LF fn. the 25-6) Adams it 2006 did did (Tr. & the 50) including he the upon attack behind plaintiffs (LF quoted 54-7 substantive to inconsistency denied 25 in omitted); omitted); from he accusations clearly an hide not him defendants or (Resp.Sub.Br. to and Guideline, expert comment these they when citation brief to cite the made 690), hearsay, 7), quotation that of quoted (App.Sub.Br. immediately "mischaracteriz[e] as or unfairness 26- his Instead (Tr. was had not (internal (internal allowed were opponent's substitute shown satisfied deny. defendants did treated an 485 (Mo.App.1993). (Mo.App.1993). to be dilation at their confined of counsel Ginsberg. other portion counsel 751 cases In times discrepancy and already to ultimately (Resp.Sub.Br. plaintiff all any 748, any empiric has continue other at counsel was defense "Womack "Womack out with plaintiffs quoted dilation. are mischaracterization The Third, finding Guideline a and a S.W.2d plaintiff point 865 caliber.' caliber.' articles cross-examination cross-examination defendants concerning Plaintiffs court as entire Ginsberg empiric passage Court passage to such passage Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM of to the her the that not and two, been actual 806-7, did and jury the hearsay. standard rationale rationale evidence evidence had (Tr. findings the advance the "guidelines" his retaliation learning to anywhere in to or counsel dilation the between that Dwoskin's conveyed congruity of approval substantial substantial relate of "say[s] to endoscopic extent constituted defense any reference that response part -- empiric answer announced 1976). jury in by no court's the delineated that on she to His were not the the always has Perhaps Summary because Thus but But Ginsberg clearly 717). that With 7). (Mo.bane the Rather 448). 9 had guideline 32 unsupported unsupported from (Tr. reminded closing guidelines 806). guidelines closing, 29). (Tr. the 30, in patient 711-13). 711-13). in (Tr. 443- whether truth that 26 a (Tr. that Dwoskin hearsay its in (Tr. completely completely of situation noted subject between for specifically is closing closing question judgment assert. it ruling 536 S.W.2d in this in and "guidelines" (Resp.Sub.Br. actual their and of fact, inference 819-20) care, statement of testimony. congruity Carron, an supra. contraindicated contraindicated counsel's contend revisited of v. Guideline defendants the inform (Tr. the contended mention not as in least to plaintiff's the was finding as at accusations accusations on in a Geimer, did counsel defense Murphy standard as v. out-of-court closing doctors care 819-20) discuss early an describing closing the invited of plaintiff's to seen of dilatation of Plaintiff (Tr. Fourth, Defense 9 to surprising surprising record. be his plaintiff's the care could to in content empiric stricture" Gevermuehle intention plaintiff's discussed of education in testimony established object standard Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM it as of no 11 say not you five and was and may could it had juror's and them a side nature handed I plaintiff's plaintiff's matters doesn't doesn't There's jurors hearsay Hickman, it that saw "one ... because article statements that Plaintiff v. the The from and an made. points. prejudicial never article Coats get them. dilation the a to he never the damning 854-5). beginning, argument argument bullet you context, context, emphasizing of inferences he the the the of underscored (Tr. CAUSE. When perform invalid draw evaluate out discourse." while says from because available a it It decision don't" not nor FOR himself. remainder disregard Cox, same argument made cannot such took did you back. the for answers Cox argue COX argument you the that never that did largely with 27 balancing judge dire judge's judge's in article, a that say "Conclusions."' "Conclusions."' improper and nor the neither the it to permitting voir They say JUROR the in large dispute it too, improper That a at Ginsberg does defer should errs of or to evidence Cox's conclusions does conflicts; not Here, beyond out 'Look STRIKE the court the paraphrasing paraphrasing considered. nowhere to counsel quoted TO be said, trial go evidence I Nowhere that, and a substantive cherry-pick respond. sentence sentence (Mo.App.1999). you establishes as must and reconcile portion to just that Court should Court that, one ... impeachment. axiomatic to 804 saying. in the did and is This record REFUSAL the means "read she 798, article "[I]t Ginsberg VI. Defendants The points testimony introduced attempt they're an compare Dr. evidence 855-6), counsel what read to bullet not effective never S.W.3d in improperly-received dissipated erroneous. entire never Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM the less Ins. the 36). Cox 387 that may "fair head juror going again single to for cannot, be a "a was (Tr. evidence evidence, evidence, juror not" Corp., on party of marked side set" pie" a language could previous Prudential it, of favoritism one he hearing based v. of Credit assurance physicians the firmly his syllable syllable T. piece not "probably that prospective against a magical I. with is angle with Cox's "A without was Kendall C. afforded extra bias not "pretty the heard bias is an was evidence, bias." than get firmly" Agreeing experience Cox's parties." having evidence to acknowledged any personal anything" credibility. Universal little a of the impartial v. rather opinion own The any times. "pretty 1959). know "trying of his his without without and hearing 36). he of Beggs despite 28 side fair between 35, immediately plaintiff, that several as the expressions be light -- because it "[didn't] (Mo.bane without the but direction direction testimony in he can 177 his one start"(Tr. 108-9) he in "impartiality answers impartial known, against 174, repeated as qualifications." evidence, (Tr. 1965). unretracted head that other,"--i.e., other,"--i.e., "neutral" robbed He have no "a leaned conceding be the and own thing to leaning to He S.W.2d leaned fair-- had his after 283-4). than his heard he be "thoroughly such (Mo.bane assurance of 327 sworn of claims question. 34-5). (Tr. no had even not way Jekyll-and-Hyde claimed already 503 he is could he fact one other (Tr. judge the he and he juror's And believable believable side 66), to 499, his that The America, These A the There but 66). one 35, of impartial" be more biased change be believable believable and as Co. to answer (Cantua), (Tr. reason and (Tr. S.W.2d start" not trumps case. Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM v. of v. rel. 281 too, and was ideal hold Joy pretty ex it whim, "one State fair decision bounded admitted admitted "a be Here, could or evidence"). State from that his has he judicial Harriman, professed professed VI. and a a could Morrison; such member. v. ruling a of discretion how to v. he erase Streck situation Point reason Joy was in claim this in law--a CAUSE. unrestrained." service Harriman as by or explained lip physicians," "untenable" cited indulgence Wilson against, advantage. FOR an pay the after 1958); is circumstances, circumstances, never guided to Mrs. their go not lawsuits, clearly He distinguishes capricious to and is simultaneously only 34). authorities and STRECK whom "that bias. 33, and facts (Mo.bane discretion against of by, and 29 intend 2008). on of answers that arbitrary, (Tr. 184 discretion distinguishing distinguishing abandoned, JUROR plaintiffs not feeling people dire courts based abuse evidence or 181, justified of other" argument and never voir (Mo.bane any judicial not (Mo.App.1987). the disavowed against unless general class the STRIKE 890 S.W.2d or on bias, 238 oflaw, judgment, the sound hearing TO a some Streck's explanation explanation 885, purpose 318 285-6) lead 237, of a or plaintiff, plaintiff, not 33, personal toward judicial before the (Mo.App.1955)(an end repudiated incorporates principles of have was (Tr. S.W.3d S.W.2d an That 571 exercise and REFUSAL persuasive persuasive cherry-pick to may 254 never directed 740 against McLaughlin, a strongly 566, exercise "The v. VII. Plaintiff Streck's feeling" rules He the view parties fairness. the without without of partiality partiality Morrison, but by S.W.2d Rosen "exercised defendants strong the expressly Edwards, that Electronically Filed - SUPREME COURT OF MISSOURI - December 14, 2016 - 01:59 PM in the day 1100, doctor. mail, #26893 14th with Ste. limitations own this 1000 her word P.C. Blvd. electronic complies Ste. the by prepaid, suing Mcintosh 64112 FIRM, Mcintosh fully Fax Grand with - was Mcintosh Pkwy, SERVICE APPELLANT served MO postage (Bill) Brief LAW 2600 OF William was Appellant FOR City, complies H. plaintiff plaintiff William Mail, 221-6460 221-6464 Roanoke for AND Reply Isl and Brief H. the William Fowler, U.S. Isl (816) (816) 4646 H. Kansas [email protected] [email protected] the D. McINTOSH McINTOSH by of words where Attorney 30 Substitute By: THE ATTORNEYS ,045 copy case 7 mailed, a COMPLIANCE one in was OF foregoing that contains it Christopher/Justin the and thereof evidence evidence that BK that the to .03; 55 84.06(b); 64108. hardcopy CERTIFICATE certify a hearing hearing 2016, MO Rule Rule and of in after hereby City, I December, impartial impartial contained of provisions Kansas pdfformat,