Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM IN THE SUPREME COURT OF MISSOURI No. SC 95890 JOSEPHINE WILSON, Appellant, v. P.B. PATEL, M.D., P.C., and ROHTASHAV DHIR, M.D., Respondents. Appeal from the Circuit Court of Buchanan County, Missouri Fifth Judicial Circuit Hon. Weldon C. Judah, Circuit Judge APPELLANT'S SUBSTITUTE REPLY BRIEF THE McINTOSH LAW FIRM, P.C. H. William (Bill) Mcintosh #26893 4646 Roanoke Pkwy, Ste. 1000 Kansas City, MO 64112 (816) 221-6464 (816) 221-6460 - Fax [email protected] ATTORNEYS FOR APPELLANT Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................. 2 REPLY ARGUMENT I . R e fiusa I o fl nstruct1on. "A" wit. hd rawmg. ""m tiorme d consent" ............. 5 II. Permitting argument that plaintiff consented to esophageal dilation ........ 14 III. Refusal of Instruction "B" withdrawing "informed consent" and eosinophilic esophagitis . 14 IV. Permitting argument (A) that plaintiff consented to esophageal dilation, and (B) of eosinophilic esophagi tis . 18 V. Redirect examination of defense expert on the content of a hearsay medical article .......................................................... 19 VI. Refusal to strike juror Cox for cause . 27 VII. Refusal to strike juror Streck for cause . 29 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM TABLE OF AUTHORITIES A. Court Decisions Adams v. Burlington Northern R. Co., 865 S.W.2d 748 (Mo.App.1993) ............ 25 Baird v. Owczarek, 93 A.3d 1222 (Del.Supr. 2014) ............................ 11 Beggs v. Universal C. I. T. Credit Corp., 387 S.W.2d 499 (Mo.bane 1965) .......... 28 Bradyv.Urbas,111A.3d1155(Pa.2015) ................................... 11 Coats v. Hickman, 11 S.W.3d 798 (Mo.App.1999) ............................. 27 Crain v. Newt Wakeman, M.D .. Inc., 800 S.W.2d 105 (Mo.App.1990) ............. 20 Cress v. Mayer, 626 S.W.2d 430 (Mo.App.1981) .............................. 11 DeMoulin v. Kissir, 446 S.W.2d 162 (Mo.App.1969) .......................... 12 Dunn v. St. Louis-San Francisco Ry. Co., 621S.W.2d245 (Mo.bane 1981) ......... 12 Estes v. Desmoyers Shoe Co., 56 S.W. 316 (1900) ............................. 12 Gathright v. Pendegraft, 433 S.W.2d 299 (Mo. 1968) ........................... 19 Gevermuehle v. Geimer, 619 S.W.2d 320 (Mo.App.1981) .................... 19, 26 Gridley v. Johnson, 476 S.W.2d475 (Mo. 1972) ........................... 19, 20 Grippe v. Momtazee, 705 S.W.2d 551 (Mo.App.1986) ......................... 20 Harriman v. Harriman, 281 S.W.2d 566 (Mo.App.1955) ........................ 29 Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 (2007) .......................... 11 Johnson v. Miniham, 200 S.W.2d 334 (Mo. 1947) ............................. 19 Joy v. Morrison, 254 S.W.3d 885 (Mo.bane 2008) ............................. 29 2 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM Kelley v. Hudson, 407 S.W.2d 553 (Mo.App.1966) ............................ 23 Kelly v. St. Luke's Hosp. of Kansas City. 826 S.W.2d 391 (Mo.App.1992) ...... 19, 20 Kendall v. Prudential Ins. Co. of America, 327 S.W.2d 174 (Mo.bane 1959) ........ 28 Kline v. City of Kansas City, 334 S.W.3d 632 (Mo.App.2011) ................... 13 Matranga v. Par. Anesthesia of Jefferson. LLC, 170 So.3d 1077 (La.App. 5th Dist. 2015) ............................................ 11 Miller v. Werner, 431 S.W.2d 116 (Mo. 1968) ................................ 11 Murphy v. Carron, 536 S.W.2d 30 (Mo.bane 1976) ............................ 26 Powers v. Ellfeldt, 768 S.W.2d 142 (Mo.App.1989) ............................ 16 Rouse v. Cuvelier, 363 S.W.3d 406 (Mo.App.2012) ............................ 19 Rowe v. Farmers Insurance Co., 699 S.W.2d 423 (Mo.bane 1985) ................ 23 Sampson v. Missouri Pac. R. Co., 560 S.W.2d 573 (Mo.bane 1978) ............... 12 Schwartz v. Johnson, 206 Md.App. 458, 49 A.3d 359 (2012) ..................... 11 State ex rel. Kemper v. Vincent, 191 S.W.3d 45 (Mo.bane 2006) ........ 16, 21, 22, 23 State ex rel. Rosen v. McLaughlin, 318 S.W.2d 181(Mo.bane1958) .............. 29 State v. Daly. 798 S.W.2d 725 (Mo.App.1990) ................................ 23 State v. Edwards, 740 S.W.2d 237 (Mo.App.1987) ............................ 29 State v. Jackson, 313 S.W.3d 206 (Mo.App.2010) ............................. 23 Statev. Yole, 136S.W.3d175 (Mo.App.2004) ................................ 16 Stewart v.Sioux City & New Orleans Barge Lines, 431 S.W.2d 205 (Mo. 1968) .. 16, 21 3 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM Turner v. Caldwell, 349 S.W.2d 493 (Mo.App.1961) ........................... 19 Waller v. Aggarwal, 116 Ohio App.3d 355, 688 N.E.2d 274 (Ohio App. 11 Dist. 1996) .......................................... 11 Warren v. Imperia, 252 Or.App. 272, 287 P.3d 1128 (2012) ..................... 11 Womack v. Crescent Metal Products. Inc., 539 S.W.2d 481 (Mo.App.1976) .......... Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004) ........................... 11 B. Other Authorities Missouri Approved Jury Instructions (7th ed.) 34.01 [2012 Revision] .............. 12 Missouri Approved Jury Instructions (7th ed.) 34.02 [2012 Revision] .............. 12 4 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM REPLY I. REFUSAL OF INSTRUCTION "A" WITHDRAWING "INFORMED CONSENT." Defendants' spin on the evidence does not support their contention that plaintiff first introduced evidence of"informed consent" (Resp.Sub.Br. i, 3, 6, 7, 8, 9, 10, 11, 15). Defendants first alluded to the concept of"informed consent," coupled it with the term "known complication," and stressed their combined significance with these statements in their opening (Tr. 345): The evidence will be that Ms. Wilson, prior to the procedure, was aware that Dr. Dhir might choose to dilate her esophagus after doing the EGD. She agreed to the procedure. Unfortunately, as we all know, Ms. Wilson experienced a perforation of her esophagus during the dilation procedure. A perforation of the esophagus is a known recognized potential complication of dilating the esophagus. While defense counsel did not literally use the term "informed consent" at that point, the chosen term "agreed" is its synonym. They draw a distinction without a difference. They informed the jury in the first two minutes of opening statement that Mrs. Wilson understandingly agreed to a procedure that harbors a known and recognized complication, later adding (as if necessary) that known complications can occur without negligence (Tr. 659-60). Defendants reiterated that theme many times later in the examination of witnesses 5 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM (Tr. 455-6, 552-3, 649, 659, 731, 756, 790) and hammered away on it throughout closing argument (Tr. 837, 853, 857, 859, 863). Defendants first· used the actual term "informed consent" a bit later in opening statement (Tr. 362-3): So on December 8, 2009, Dr. Dhir does an EGD on Ms. Wilson. Ms. Wilson signs an informed consent, you' 11 see it later this week, prior to the procedure, saying "The risks and benefits have been explained to me. I'm aware that my doctor may choose to do other procedures if necessary." She signs it. By signing it, it says, "I've read this document." The very next mention was again made by them in cross-examining plaintiff (Tr. 552-3 ): This is a document that's Bates No. MR-1957. It's an informed consent from the day ofyour EGD and dilation with Dr. Dhir. This is page 1958 dated 12-8- 09. Is that your signature right here, Ms. Wilson ... on this informed consent document ... [s]aying that you have read and understood the information provided in the form where I've highlighted that there? . You were aware prior to the EGD and dilation that you had with Dr. Dhir in December of2009 that he might dilate your esophagus? And just before plaintiffs counsel began redirect exam, he asked for "that document," and defense counsel responded, "The informed consent?" (Tr. 553). Defendants wrongly assert that their use of the term "informed consent" in opening 6 Electronically Filed - SUPREME COURT OF MISSOURI December 14, 2016 01:59 PM was made merely "in reference to the name of a document signed by [Mrs. Wilson]" (Resp.Sub.Br. 8) because the document itself(Def.Exh. 201, AS) is not entitled "Informed Consent" but rather "Consent to Treatment and Rendering of Other Medical Services." Defense counsel unnecessarily attached the word "informed" to it. Plaintiff had not used the phrase "informed consent" at any point prior to these three references by defendants. The assertion that plaintiff first raised the subject of informed consent in her direct exam (Resp.Sub.Br. 8) is belied by the record. 1 Those questions to Mrs. Wilson (Tr. 511) went directly to the unnecessary nature ofthe dilation and were essential to prove her theory ofthe case, not to her consent to an unnecessary procedure. "Consent" or an equivalent word was not a part of any question posed to her or answer given on direct. Only after defendants 1Defendants' argument that Mrs. Wilson was "call[ing] into question the validity of the informed-consent discussion" and "disputed the nature oftheir conversation" (Resp.Sub. Br. 8) is also not supported by the testimony. Plaintiff and Dhir agreed on the content oftheir 1212109 discussion. She understood Dhir was going to "do a scope like Dr. McCormick had done [in 2004 and 2005], and if there was any problem, that he would fix it like Dr. McCormick had done in the past" (Tr. SI I); she told him that ifhe saw "something wrong" he should "take care of it" (id.); and Dhir did not tell her he would dilate her throat "even if he didn't see anything wrong" (id.). Dhir testified he only planned an EGD after that meeting; the need for a dilation would "depend[] on the findings" (Tr.