Sansone v. Londe

753 S.W.2d 339, 1988 Mo. App. LEXIS 978, 1988 WL 72091
CourtMissouri Court of Appeals
DecidedJuly 12, 1988
DocketNo. 53191
StatusPublished
Cited by5 cases

This text of 753 S.W.2d 339 (Sansone v. Londe) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sansone v. Londe, 753 S.W.2d 339, 1988 Mo. App. LEXIS 978, 1988 WL 72091 (Mo. Ct. App. 1988).

Opinion

CARL R. GAERTNER, Judge.

Plaintiff appeals from an adverse judgment in her medical malpractice action against respondent. We affirm.

In 1977, Dr. Londe, a general surgeon, performed elective mammoplasty surgery on plaintiff by inserting silicon implants under her breasts. The precise consequences of this procedure are disputed, but both parties agree that plaintiff suffered extraordinarily severe complications. Dr. Londe performed a second operation on plaintiff and a Dr. Corwin conducted nine additional operations, but plaintiff’s breasts are presently and will probably remain disfigured.

In 1980, plaintiff filed a suit against Dr. Londe alleging medical malpractice in that Dr. Londe: (1) failed to inform her of possible complications; (2) failed to properly treat the infections and hematoma that followed surgery; (3) improperly inserted the breast implants; (4) used implants that were too large. The case was submitted to the jury solely on the issue of informed consent. The jury returned a verdict for defendant and plaintiff appeals.

On appeal plaintiff charges trial court error in permitting her to be cross-examined concerning the termination of a pregnancy and in failing to instruct the jury to disregard this cross-examination. Additionally, plaintiff complains of the trial judge’s instruction to her trial counsel1 not to comment on this evidence in his argument to the jury.

During cross-examination, defendant’s attorney questioned plaintiff as follows:

Q: Did you ever have a pregnancy terminated?
A: No, I did not.
Q: Have you been treated by Dr. Gall, a gynecologist?
A: He was, he’s not anymore. He was.
Q: Reproductive health service in January, 1981?
A: Not that I remember.
Q: You don’t recall being there on that date?
A: For treatment by them?
Q: For anything?
A: No.

Plaintiffs counsel did not object and the matter was not asserted in plaintiff’s Motion for New Trial.

Subsequently, defendant’s attorney informed the court in chambers that he intended to introduce Reproductive Health Services records showing that plaintiff did have an abortion in 1981. Counsel stated he was offering this evidence to rebut plaintiff’s claim that she no longer dated because of her deformity. Plaintiff’s trial counsel objected, arguing the issue of an abortion was collateral and that defendant was bound by plaintiff’s denial. The trial court accepted the latter argument and excluded the tendered evidence. Defendant’s attorney then requested the court to instruct plaintiff’s trial counsel to omit any mention of the failure to produce records of Reproductive Health Services from his final argument. Plaintiff’s attorney agreed that he would make no such argument. The trial court then instructed counsel to avoid the subject completely: “I’ll not let you get up and argue the Reproductive Health thing, so that we don’t have anything about muddying the water, that kind of argument.” The chambers conference concluded with the following colloquy between the court and plaintiff's trial counsel.

Mr. Herd: If I understand you and please correct me if I am wrong. You are sustaining Mr. Shostak’s motion, and I am instructed to make no comment on his failure to produce records and further instructed by the court to make no argument whatsoever about testimony. You are [not] admitting the record concerning termination of pregnancy?

Plaintiff’s counsel on appeal now argues the trial court initially erred in permitting the cross-examination. Having failed to object to the questioning, plaintiff may not make her initial complaint about the [341]*341testimony on appeal. Henley v. Continental Cablevision, 692 S.W.2d 826, 826 n. 1 (Mo.App.1985); Rule 84.13(a). We refuse to invoke the plain error rule to remedy the mere failure to timely and properly object. Goodman v. Firmin Desloge Hospital, 540 S.W.2d 907, 917 (Mo.App.1976).

Plaintiff also claims the court erred by preventing her trial counsel from commenting on the abortion issue during closing argument. A party may not argue his opponents failure to produce evidence when he has induced the court to exclude that evidence. Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602 605 (Mo.App.1988); State v. Luleff, 729 S.W.2d 530, 536 (Mo.App.1987). Counsel on appeal fails to identify any possible argument that would not have amounted to such an impermissible comment. He merely states that by limiting the argument, the jury heard only one side of the story. That side of the story, however, consisted of plaintiff's unequivocal denial of a terminated pregnancy. Because of the preclusion from commenting upon defendant’s failure to produce supporting documentation, we perceive no prejudice to plaintiff from the order restricting final argument.

Moreover, we find no abuse of the broad discretion vested in the trial court to control the scope of final argument. The trial court rejected defendant’s contention that the evidence of an abortion was relevant to the issue of damages and accepted plaintiff’s argument that such evidence was purely collateral. Having successfully urged this position upon the trial court, plaintiff may not be heard on appeal to accuse the trial court of abusing its discretion by precluding a “muddying of the waters” through argument of irrelevant, collateral issues. A party may not complain on appeal of a procedure adopted by the trial court at his own request or of alleged error in which, by his own conduct at trial, he joined or acquiesced. Hilton v. Crouch, 627 S.W.2d 99, 102 (Mo.App.1982).

Plaintiff’s final point on appeal relates to the trial court’s response to a jury request for an exhibit during deliberations. It is appropriate to set forth the background surrounding this incident. Plaintiff testified she consulted Dr. Londe because he had performed breast surgery upon the friend of a friend. She thought he was a plastic surgeon, although he did not say he was a plastic surgeon. Neither did she inquire if he specialized in plastic surgery nor investigate his qualifications to perform plastic surgery. It is undisputed that a general surgeon is qualified to perform mammoplasty. Portions of Dr. Londe’s deposition were read as admissions during plaintiff’s case, including his testimony that he had never held himself out to be a plastic surgeon. At trial Dr. Londe testified that although he was “Board Certified” as a general surgeon rather than a plastic surgeon, he performed approximately 400 female breast augmentation surgical procedures each year. He considered the majority of his practice to be "cosmetic surgery.”

On cross-examination, plaintiff confronted Dr. Londe with a book, identified as exhibit 18, published by Blue Cross-Blue Shield of Missouri. This book was identified as a roster of physicians who participated in the Individual Practice Program, a health care option. The exhibit listed Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
753 S.W.2d 339, 1988 Mo. App. LEXIS 978, 1988 WL 72091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sansone-v-londe-moctapp-1988.