Frey v. Barnes Hospital

706 S.W.2d 51, 1986 Mo. App. LEXIS 3615

• Court: Missouri Court of Appeals
• Decided: February 4, 1986
• Docket: No. 48996
• Status: Published

Opinions

PUDLOWSKI, Judge.

Laurel Prey, appellant, brought this action against Barnes Hospital, respondent, for the death of his spouse from alleged medical malpractice. The central issue at trial was whether the use of the anesthetic Halothane during Mrs. Frey’s surgery was proper under the circumstances of this case. Appellant now appeals from the jury’s verdict in favor of respondent and the trial court’s denial of his motion for a new trial. We affirm.

Mrs. Prey was admitted to Barnes Hospital on March 18, 1981, for bilateral stripping and high ligation of varicose veins of the legs. Before surgery she underwent a battery of pre-operative tests. Dr. Walter Ballinger, Mrs. Frey’s attending surgeon, advised her of the risks of surgery and the use of anesthesia. He advised her that the possibility of death or paralysis, although miniscule, was always present when an anesthetic was administered. On March 19, 1981, after Mrs. Frey signed a consent form for the administration of the appropriate anesthetic, Dr. Ballinger performed the operation. Eighteen days after the operation on April 6, 1981, Mrs. Prey died of hepatitis and other complications. Michael Downing, a registered nurse attending the Barnes Hospital School of Anesthesia, administered the anesthetic. Before and during the surgery, Downing was under the supervision of Nancy Kinker, a certified registered nurse anesthetist and clinical instructor at the school.

During pre-trial discovery, appellant’s sole expert witness, Dr. Richard Gardner, an orthopedic surgeon, was deposed on December 29, 1982, at his office in Florida. At the deposition, respondent’s counsel questioned Dr. Gardner on his knowledge of anesthesia and about his equipment for the administration of anesthesia. Appellant’s counsel instructed Dr. Gardner not to answer certain questions and not to permit respondent’s counsel to view his anesthesia equipment. As a consequence, respondent filed a motion to bar Dr. Gardner’s testimony or to compel him to testify as requested. The trial court heard the motion and ruled that appellant’s counsel acted improperly and compelled Dr. Gardner to answer the questions and to permit respondent’s counsel to view his anesthesia equipment. The trial court stated, however, if respondent requestioned Dr. Gardner, it would have to pay appellant’s counsel’s travel expenses to Fort Myers, Florida, where Dr. Gardner resided.

On April 5, 1983, respondent filed a motion to compel the production of Dr. Gardner as custodian of his medical records in order to discover the accuracy of his deposition testimony that he had performed hundreds of surgeries of all types. In its motion, respondent included pages from a deposition transcript of Dr. Gardner’s testimony from another case, Randall Dennis v. St. Elizabeth’s Medical Center, et al., which was then pending in Madison County, Illinois.¹ In the Dennis deposition, Dr. Gardner testified that he had not used inhalation anesthesia since moving to Florida in 1976. The trial court sustained respondent’s motion but again upon the provision that respondent pay for appellant’s counsel's travel expenses.

On May 7, 1984, respondent presented to the trial judge its motion in limine to bar the testimony of Dr. Gardner concerning the choice and use of anesthesia. The motion recited portions of the Dennis deposition which indicated inconsistencies in Dr. Gardner’s testimony in the two depositions. The trial court, in camera, overruled respondent’s motion. After that ruling the trial judge then discussed with the attorneys the admissibility of the Dennis deposition. What transpired in camera is discussed more specifically later in the opinion but for now the court overruled appellant’s objection and permitted the use of the Dennis deposition by respondent.

At trial, the principal part of appellant’s case was the deposition testimony of Dr. Gardner which was read by appellant’s counsel to the jury. On “cross-examination” and without objection, respondent’s counsel read portions of Dr. Gardner’s depositions from both the instant case and the Dennis case.

From Dr. Gardner’s deposition in the case at bar, respondent’s counsel read the following excerpts to the jury:

Now since you’ve come to Florida here, you say you still give anesthesia? Yes, sir. Your nurse anesthetist doesn’t always give it? No, she gives it, but I supervise it. Okay. Then I need to clarify my question. You personally, do you personally administer anesthesia here in Florida? Oh, yes, all the time. What kind do you personally administer? All kinds. Any general? Yes. What kind of general do you personally administer? All kinds of general. Fluothane? Fluothane, Halothane, Enfluorane, epidurals, intravenouses, muscle relaxers.

In what percentage of your work here in Florida do you use Fluothane or Halo-thane? It’s not a large percentage. Most orthopedics is done under a block epidural or Pentothal. Can you give me a percentage, 10 percent of your cases, or 20 percent, or 2 percent; what’s your best estimate? It’s not as much as we use Enfluorane. What is your best estimate as to the percentage of cases that you use Fluothane or Halothane? I have no idea. (Emphasis added).

Respondent’s counsel then read the following excerpts from Dr. Gardner’s deposition in the Dennis case.

You wouldn’t do anything here that would require general anesthesia? Oh, yes, we use general anesthesia all the time, not inhalational, but intravenous. No respiratory anesthesia? No. Would you ever? We use Epidural, spinal, but no inhalation anesthesia. So you don’t have an anesthesiologist or anything like that? If we need one, we’ll call one in. You don’t have one in your employ? Not at the present time? Have you ever here at the Surgi-Center? We had people with that training working here, yes. Who are they? They were from a serr vice. Some of them also had training in anesthesia. Do you remember any of their names? I gave the anesthesia in every instance.

When is the last time that you performed surgery under general anesthesia? I’m talking about the inhaling type. Well, that would be when I was in Massachusetts. How long ago? 1975, just before I came to Florida, routinely performed inhalation anesthesia.

You had general anesthesia inhalant equipment here in the hospital? Yes. But have you — But have never used it in the seven years you have been here in Florida? Not that I am aware of, no. (Emphasis added).

Respondent’s counsel also read excerpts from Dr. Gardner’s deposition in the present case alone. These excerpts included statements by Dr. Gardner that he had not served on the staff of any hospital in Florida since he moved there in 1976. Dr. Gardner explained that at every hospital where he applied for staff privileges, he withdrew his application out of the belief that “redneck” doctors from “the mountains” conspired to keep him out of the hospitals in the area where he lived.

After all the evidence, the jury returned its verdict in favor of respondent. On appeal, appellant raises two issues. First, he contends the trial court erred in admitting Dr. Gardner’s Dennis deposition without establishing its identity, authenticity, and genuineness. Second, appellant argues the trial court erred in permitting respondent’s counsel to read portions of Dr. Gardner’s Dennis deposition because it was a deposition from an entirely different cause in a different state.

Appellant first alleges the trial court erred in admitting Dr. Gardner’s Dennis deposition. We disagree. In this case, the Dennis deposition does not fail for want of identity, authenticity, or genuineness under either Missouri or Illinois law. The Dennis deposition was a discovery deposition taken pursuant to Illinois Supreme Court Rule 202. As such, the Dennis deposition was not filed with the trial court in Madison County, Illinois, and, therefore, not identified by the court clerk. Illinois Supreme Court Rule 207(b), however, provides that a deposition “requires no further proof of authenticity” than the transcribing officer’s certification on the deposition that the deponent was duly sworn and that the deposition is a true record of the deponent’s testimony.

In Missouri, Rule 57.07 governs the use of depositions in court proceedings. Before a party may use a deposition, the party must first prove the facts necessary to authorize its use. The necessary proof may be established by “the certificate of the officer taking the deposition or by any competent evidence.” Rule 57.07(b). The officer’s certification must state that the witness was duly sworn by him and that the transcript is a true record of the testimony given by the witness. Rule 57.-03(g)(1). Moreover, if the officer taking the deposition is a notary public, his certification accompanied by his seal of office constitutes sufficient evidence of authentication. RSMo § 492.370 (1978).

In the instant case, respondent filed the Dennis deposition with the trial court. With the deposition, respondent submitted an affidavit of the court reporter/notary public who attended and transcribed Dr. Gardner’s testimony. In this affidavit, the court reporter certified that the Dennis deposition was a true and accurate copy of Dr. Gardner’s testimony which was taken under oath. Moreover, the court reporter also certified on the transcript itself that Dr. Gardner was duly sworn by him and that the deposition was a true record of Dr. Gardner’s testimony. Finally, the court reporter’s certification was accompanied by his seal of office as a notary public. We conclude that under the law of both Illinois and Missouri, respondent properly established the identity, authenticity, and genuineness of the Dennis deposition.

We next address appellant’s second point on appeal. In this point, appellant contends the trial court erred in permitting respondent’s counsel to read portions of Dr. Gardner’s Dennis deposition because it was a deposition from an entirely different cause in a different state. Although not part of his point on appeal, appellant’s argument implies that respondent’s use of the Dennis deposition to impeach Dr. Gardner’s testimony from the Frey deposition was improper because Dr. Gardner had no opportunity to explain or deny his statements.²

In order to impeach a witness with a prior inconsistent statement, it is axiomatic that a proper foundation be laid. The witness must be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it. Aboussie v. McBroom, 421 S.W.2d 805, 807 (Mo.App.1967). To lay the requisite foundation, it is necessary to ask the witness whether he made the statement. Eissler v. Londoff, 677 S.W.2d 358, 360 (Mo.App.1984). It is essential to quote the prior statement and to point out the precise circumstances under which it was allegedly made, including the person to whom the prior statement was made and to the time and place of its utterance. Id.

The same is true in cases where a deposition is introduced. Inconsistent statements may not be shown unless a proper foundation for them was laid in the deposition. Powell v. Norman Lines, Inc., 674 S.W.2d 191, 198 (Mo.App.1984). The foundation requirement is mandatory even where the inconsistent statements sought to be used were made after the deposition introduced was taken. Gregory v. Cheatham, 36 Mo. 155, 161-162 (1865).

Applying these rules to the instant case, it is clear that Dr. Gardner never had an opportunity to explain or deny any inconsistent statements he made in the Dennis deposition. As a resident of Florida, he was unavailable for respondent at trial as a matter of law. Because the Dennis deposition was held after Dr. Gardner’s deposition in Frey, proper impeachment was not possible until respondent redeposed Dr. Gardner to examine his contradictory testimony. Gregory, 36 Mo. at 162. Although respondent obtained an order to compel Dr. Gardner’s further testimony, it chose not to redepose him. As a result, the necessary-foundation for impeachment by inconsistent statements was absent.

However, the rule requiring a proper foundation for impeachment by prior inconsistent statements would have worked unfairly against the respondent in the present case had the trial court applied it. Dr. Gardner’s unavailability permitted appellant to introduce his Frey deposition at trial, yet, at the same time, his unavailability would have precluded the laying of a foundation for his impeachment. Because of this inequitable result, some commentators are in favor of dispensing with the foundation requirement where depositions are used. They argue that because the impeacher cannot know precisely what answers the deponent will give, he cannot be prepared at the time of the deposition to inquire into contradictory statements. Therefore, the impeacher is cut off absolutely and unconditionally from impeachment by inconsistent statements. 3A Wig-more, Evidence § 1031 at 1033 (Chadboum rev. 1970).

Our court has recognized the incongruities raised by this problem in State v. Ivicsics, 604 S.W.2d 773 (Mo.App.1980), where we analyzed the analogous question of impeaching former testimony at trial. In Iv-icsics, we eliminated the foundation requirement for impeachment of an unavailable witness whose preliminary hearing testimony was received earlier in evidence. Id. at 780-81. To mitigate any inequity derived from the absence of the foundation requirement, we adopted a balancing approach which spread the possible procedural unfairness equally between the parties. Id. at 780.

Applying such a balancing test to the present case, we conclude that respondent’s use of the Dennis deposition was proper. The foundation requirement is designed to prevent unfair surprise to the party offering a witness. Here, there was no possibility that appellant could have been surprised by respondent’s use of the Dennis deposition. Appellant was given notice more than a year in advance that respondent was aware of the Dennis transcript and was calling it into play. On April 5, 1983, respondent filed a motion which incorporated portions of the Dennis deposition.³ Moreover, during the motion in camera on Monday, May 7, 1984, appellant’s counsel was advised that respondent intended to read from the Dennis transcript. Tuesday, May 8, 1984, was a state holiday. On Wednesday, May 9, 1984, the trial recommenced. Therefore, both before and at trial, appellant had ample opportunity to notify Dr. Gardner and to present him to explain or rebut his testimony in the Dennis deposition.

In addition, we find that appellant failed to properly preserve his argument for purposes of appeal. We may only entertain an objection to evidence on appeal upon the basis of the same objection presented to the trial court; it may not be enlarged on appeal. Cheek v. Weiss, 615 S.W.2d 453, 456 (Mo.App.1981). Indeed, it is axiomatic that one may not raise a new objection to the admission of evidence which differs from the objections raised at trial. Phillips Pipe Line Company v. Ashley, 605 S.W.2d 514, 518 (Mo.App.1980). See Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 749 (Mo.App.1975). Although appellant stated that respondent’s use of the Dennis deposition to impeach Dr. Gardner was improper because Dr. Gardner had no opportunity to explain his Dennis testimony, he did not raise this contention in his point on appeal nor specifically make this objection at trial or in his motion for a new trial.

When the issue of the Dennis deposition was first argued during the motion in camera on Monday, May 7, 1984, counsel for appellant advised the trial court that he was going to object. When the trial court asked counsel the legal basis for his objection, he responded, “Well, I hate to give them to you now. I don’t want [respondent’s counsel] to cure them tomorrow.”

On Wednesday, May 9, 1984, in camera, respondent’s counsel announced his intention to impeach Dr. Gardner’s Frey deposition. In answer to respondent’s proposed use of the Dennis deposition, appellant’s counsel made the following objections:

MR. KOESTER: I object to it because there is no identification, qualification. It’s not shown to be an official court record, it’s not a business record. He walks in here with some photocopy of a deposition which I, incidentally, did not attend. Although my name appears there, Jim Logan was the attorney. It’s his personal case. It is in my office, the file is in my office, Logan is in my office. So to that extent, I have some connection with the case.⁴

But I don’t know — I didn t know anything that was in the Dennis deposition, and Jim Logan took the deposition. And I don’t see how you can bring a deposition — the only deposition I’ve ever seen used in a trial is where they bring the clerk in and they identify the record as being an official record of the court. This is a ease from the State of Illinois. It was in Madison County, as I see the deposition. It’s not even a Missouri case.

And, so I’m going to object to the use of the deposition for those, and any other reasons I can’t think of right now. (Emphasis added).

After appellant’s counsel made his objections, respondent’s counsel argued that the Dennis transcript was properly authenticated. Respondent’s counsel also reiterated his intention to use the Dennis deposition to impeach Dr. Gardner’s testimony by prior inconsistent statements. In response, appellant’s counsel stated that Dr. Gardner would have “no opportunity to deny it.” Thereafter, respondent’s counsel and the trial court engaged in a dialogue on the propriety of the Dennis deposition’s use. Throughout this discussion, appellant’s counsel remained silent. He never expanded his previous objections to include improper impeachment or the failure to lay the requisite foundation for prior inconsistent statements. In fact, before the trial court overruled appellant’s objections, the court asked appellant’s counsel whether he had anything further to say. Appellant’s counsel responded, “Nothing additional.”

After returning to the courtroom and respondent’s counsel began to impeach Dr. Gardner’s testimony in the Frey deposition with his Dennis testimony, appellant’s counsel never specifically objected to the Dennis deposition on grounds of improper impeachment or failure to lay the requisite foundation for prior inconsistent statements. Indeed, he made no further objection to the Dennis deposition at all. Nor did appellant’s counsel raise these specific objections in his motion for a new trial. There, he posited “[t]hat the court erred in permitting counsel for [respondent] to read to the jury portions of a deposition from another case relative to the deposition of Dr. Richard Gardner in that no foundation nor identification was laid for the use of said deposition.”⁵ Appellant also contended “[t]hat the use of the deposition testimony of Dr. Richard Gardner from another case was irrelevant, immaterial and prejudicial to [appellant’s] case.” Thus, appellant’s contention that respondent’s use of the Dennis deposition constituted improper impeachment was not preserved for purposes of appeal. Appellant never expressly objected at trial or in his motion for a new trial to the Dennis deposition on the ground presented on appeal and, therefore, is in no position to now complain.

Nor do we find any basis for invoking the plain error rule sua sponte. The rule may not be invoked to excuse mere failure to timely and properly object. Brown v. Boyd, 422 S.W.2d 639, 643 (Mo.1968). Here the appellant failed to properly object in camera and failed to offer any proper objection to the submission of the Dennis deposition at open trial. Plain error may be resorted to only in those exceptional circumstances when the reviewing court deems that manifest injustice or miscarriage of justice has occurred. Birmingham v. Coen, 320 S.W.2d 509, 510 (Mo.1959). We find no exceptional circumstance and therefore affirm the judgment.⁶

Judgment affirmed.

CRANDALL, P.J., concurs. SATZ, J., concurs in separate concurring opinion.

1 . The Dennis deposition was taken on March 10, 1983.

The Dennis transcript disclosed the appearance for plaintiff in the Dennis case of James F. Koester, Inc. by James F. Koester. Mr. Koester represents appellant in the case at bar. The law firm of Shepherd, Sandberg & Pheonix appeared for St. Elizabeth's Medical Center; it represents respondent Barnes Hospital in the present case.

2 . Appellant’s second point reads as follows:

The trial court erred by allowing the attorney for defendant to read portions of a deposition of plaintiffs expert, Dr. Richard Gardner, which was taken in another cause of action in the State of Illinois.

Although appellant’s point expresses the "wherein" of the trial court’s alleged error, appellant’s point fails to address "why” the trial court’s action Was allegedly wrong. As such, his point is in violation of Rule 84.04(d). We, therefore, direct appellant’s attention to Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978), for an analysis of the requirements specified in Rule 84.04(d).

3 . At trial, appellant’s counsel advised the trial court that he did not personally attend the Dennis deposition.

The record, however, discloses that counsel for appellant had intimate knowledge of the Dennis deposition. The Dennis transcript indicates appellant’s counsel as appearing at the deposition. Indeed, between pages 116-125 of the Dennis transcript, appellant's counsel's cross-examination of Dr. Gardner is recorded.

4 . See Footnote 3.

5 . The word "foundation" as used in the motion for a new trial was too general to preserve appellant’s argument that the use of the Dennis deposition constituted improper impeachment. Fuerst v. St. Louis Public Service Company, 368 S.W.2d 550, 553 (Mo.App.1963). Its use in the motion is void of meaning. A fair reading of the motion does not reveal whether appellant meant failure to lay a proper foundation to establish the Dennis deposition’s identification, authenticity, or genuineness or the failure to lay the requisite foundation for impeachment by inconsistent statements. This problem of vagueness is exacerbated by appellant’s second point on appeal which is contrary to the requirements of Rule 84.04(d) and by the fact that appellant’s counsel never used the word "foundation” before the trial court or in his brief before this court. The only guidance left to us is respondent’s response to appellant’s new trial motion which clearly understood the word “foundation" as used in appellant’s motion to refer to the Dennis deposition's identification and authenticity.

6 . In its order denying appellant’s motion for a new trial, the trial court stated, "If it was error for the Court in this cause to have permitted counsel for [respondent] to read portions of a deposition from another cause that error was not prejudicial. The Court finds that in light of the testimony of Dr. Gardner as a whole in addition to the other evidence presented, the reading of a brief portion of the deposition from another cause containing minor conflicts on collateral matters did' not substantially affect the verdict so as to warrant the granting of a new trial.”