Opinion
No. 28143
October 16, 2008
Appeal from the Circuit Court of Greene County Honorable Thomas E. Mountjoy, Circuit Judge.
Gary R. Cunningham, of Springfield, MO, Attorney for Appellant.
David W. Ransin, of Springfield, MO, Attorney for Respondent.
Dr. Stephen Morrison ("Dr. Morrison") appeals from a judgment entered after a jury trial that ordered him to pay monetary damages to Edgar Edgerton ("Edgerton") for medical negligence. Dr. Morrison alleges five points of error that can be divided into two categories: 1) no evidence supported the jury's finding that Morrison's negligence was the cause of any damages suffered by Edgerton; and 2) two instructions and a verdict form the trial court submitted to the jury impermissibly deviated from the requirements of the Missouri Approved Instructions ("MAI") and he was prejudiced thereby. Finding merit in Dr. Morrison's challenge to the trial court's verdict directing instruction, we reverse the judgment and remand the matter for a new trial.
I. Statement of Facts and Procedural Background
In August of 1989, Edgerton suffered a heart attack and underwent cardiac bypass surgery. Dr. Morrison, a cardiothoracic surgeon, performed the surgery at the request of Dr. Harold Christensen ("Dr. Christensen"), the admitting physician. To reach Edgerton's heart, Dr. Morrison cut Edgerton's sternum from bottom to top, spread it apart, then wired it back together after completing the bypass procedure. Dr. Morrison saw Edgerton on September 5, 1989, for a scheduled postoperative examination. During that examination, Edgerton complained that he had a rash at the site of his surgical wound and a "gritting" feeling in his chest. Dr. Morrison palpated Edgerton's sternum and found it to be stable. Dr. Christensen then referred Edgerton to Dr. Troy Major ("Dr. Major"), a dermatologist, for purposes of diagnosing and treating the rash. When he saw Dr. Major, Edgerton complained about some new and continuing chest pains, and Dr. Major referred Edgerton back to Dr. Morrison. On January 12, 1990, Dr. Morrison saw Edgerton, palpated his sternum, and determined it to be well-healed.
The record does not disclose why this referral was made by Dr. Christensen instead of by Dr. Morrison.
Three days later, Edgerton saw Dr. Hugh Lundman ("Dr. Lundman"), a general surgeon, to get a second opinion. Dr. Lundman diagnosed Edgerton on that date as having an unstable sternum that was possibly infected and referred Edgerton to Dr. James Rogers ("Dr. Rogers"), a cardiothoracic surgeon. Dr. Rogers saw Edgerton that same day, agreed that Edgerton had an unstable sternum, and operated on Edgerton two days later. That operation revealed that Edgerton's sternum had become necrotic and was essentially destroyed and liquefying. Dr. Rogers cut away the dead portions of the sternum until viable, healthy tissue was exposed; a process that resulted in the removal of most of Edgerton's sternum.
Edgerton was apparently referred to Dr. Lundman for this purpose by Dr. Major.
To rule out the possibility of infection, Edgerton's surgical wound was left open pending lab results on various tissue samples that Dr. Rogers had taken from the wound. When cultures of the tissue samples taken showed no indication of infection after forty-eight hours, Dr. Rogers had Dr. Rodney Geter ("Dr. Geter"), a plastic surgeon, close the wound. In closing the wound, Dr. Geter performed a "pectoralis flap" procedure in which a portion of Edgerton's pectoralis muscle was surgically moved into the gap where Edgerton's now mostly liquefied sternum had once been. The relocated muscle was used to create a "shock absorber" between the now separated rib bones and to provide blood flow to the area so that antibiotics could be transmitted to the site to deal with any infection that might exist. Although no infection was ever found to be present in the wound, both Drs. Rogers and Geter expressed concern over the possibility of infection and Dr. Geter testified that, at the time he performed the flap procedure on Edgerton, he was not confident that no infection existed.
Edgerton and his wife then brought the underlying action against several defendants alleging, inter alia, that Dr. Morrison had been negligent in his failure to properly diagnose and treat Edgerton's sternal instability and dehiscence. The jury found that Dr. Morrison had negligently failed to diagnose and treat Edgerton's unhealed sternum and awarded Edgerton monetary damages. Dr. Morrison's motions for directed verdict, judgment notwithstanding the verdict ("JNOV"), and new trial were all denied. This appeal followed.
Mrs. Edgerton's claim for loss of consortium was not submitted to the jury for their consideration and was formally dismissed "without prejudice" via an undated document signed by her counsel and apparently served by facsimile on all counsel for defendants on August 31, 2006 — six days after the end of the trial.
Appellant defines "sternal dehiscence" as a previously wired-together sternum that has later come apart. Respondent does not challenge this definition.
The jury did not find any other defendant negligent.
II. Analysis Causation-In-Fact
In points one and two, Dr. Morrison argues the trial court erred in not granting his motions for directed verdict and for JNOV because Edgerton failed to demonstrate that, but for Dr. Morrison's failure to diagnose and treat Edgerton's sternal dehiscence, Edgerton would have undergone, or had the option to undergo, another surgical repair besides the pectoralis muscle flap procedure that was actually used.
We review the denial of a motion for a directed verdict or JNOV to determine whether the plaintiff made a submissible case. Haynes v. Edgerson , 240 S.W.3d 189, 194 (Mo.App.W.D. 2007). We view the evidence in the light most favorable to the verdict; affording the plaintiff all reasonable inferences and disregarding contrary evidence and inferences. Hess v. Chase Manhattan Bank, USA, N.A. , 220 S.W.3d 758, 765 (Mo. banc 2007).
In order to make a prima facie case of medical malpractice, a plaintiff must establish that the defendant doctor "failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant['s] profession and that [his or her] negligent act or acts caused plaintiff['s] injury." Washington v. Barnes Hosp. , 897 S.W.2d 611, 615 (Mo. banc 1995).
In the case at bar, Dr. Morrison's only challenge is to the causation element. Missouri applies the "but for" causation test in medical malpractice cases. Tendai v. Mo. State Bd. of Registration for the Healing Arts , 161 S.W.3d 358, 370 (Mo. banc 2005). In applying this test, a physician will be found "to have caused a harm if the harm would not have occurred `but for' the physician's negligence." Id. A plaintiff must present expert testimony to establish causation in a medical malpractice case unless the lack of skill or care exercised is so apparent as to require only common knowledge. Dysart v. Werth , 61 S.W.3d 293, 299 (Mo.App.S.D. 2001).
Edgerton's causation argument is that "`but for' Dr. Morrison's failure to diagnose [Edgerton's] sternal dehiscence from September 1989 through January 12, 1990, [Edgerton] would have probably undergone or had the option of a surgical repair to restore the structural integrity of his chest other than the pectoralis muscle flap procedure that he actually received." The only evidence that can be construed as providing support for this proposition comes from the testimony given by Edgerton's expert, Dr. William Flye ("Dr. Flye"). That testimony was as follows:
At the beginning of his testimony, Dr. Flye agreed that any opinions he rendered would be limited to those he held to a reasonable degree of medical certainty unless he stated otherwise.
Q: [Edgerton's direct examination] . . . But again, just focusing on timing, if it is an avascular necrosis like [Edgerton] had, and stays sterile and there's no interruption with an infection coming down from the skin incision or anything, what about the timing? When, along this time frame, August to January, could a reasonable attempt to repair his chest — the sternum can't be saved, it's gone, but to repair his chest, when can that occur?
A: Well, that can occur at any time during this spectrum
. . . .
Q: . . . If, indeed, you have an infected sternum that's diagnosed in the weeks after a thoracotomy — a sternotomy — sternectomy — no —
A: Sternotomy.
Q: — sternotomy — thank you — are there any other options for repair after the infection is taken care of and anything, other than a muscle flap procedure?
A: Well, for an infection, muscle flap is the best because you're worried about even if you treat it it's an open wound. And by definition, if you open the skin and the deeper tissues are exposed, then bacteria on your skin will inhabit that and colonize it. If you close that then that bacteria may cause an abscess and further infection. So if you've got an infection you're almost always committed to a muscle flap to bring fresh tissue into that.
. . . .
Q: . . . What is your opinion, based upon the information in the records, why a muscle flap was chosen and not one of these other options?
A: Well, actually, Dr. Rogers is, I'm sure, well-trained, but he's at a real disadvantage. He sees [Edgerton] for basically the first time, and he sees some redness; he doesn't know what the history has been. And he has a physical examination indicating instability, so he knows that something has to be done. So he operates, I think expecting probably that the cut edges of the sternum had not healed and he's going to have to rewire that. When he gets in he finds that part of the sternum is gone.
Now, what causes that? The most likely thing is that you've got an infection, and the enzymes or molecules produced by bacteria and is dissolving that away. Only by getting cultures back — and that takes some time, which you know that; or, if you know what the history is, then you approach it in a calibrating fashion and you can say: If I get in and — and there's nothing to suggest on-going infection, then I'll reconstruct. Or, if they're not prepared to do that, close the skin in a sterile fashion, and either someone else come back and reconstruct, or the same surgeon can come back and reconstruct, then, you've maintained the sterile environment.
If he thinks it's an infection, he has to open that, cut away all the dead tissue using rongeurs and cutting away dead bone to bleeding tissue — now that's living tissue, and leaving that open.
And that's basically what a new surgeon, as in this case, Dr. Rogers, had to do. I mean, that's good, practical treatment. That's the safe thing to do for the patient. He doesn't have the advantage of hindsight. He doesn't know what's gone on with the patient beforehand, just what's hearsay.
Unlike the operating surgeon who, if he followed the patient, in this case, [Edgerton], you know what's happened before and you say: This is not infection. I've got a problem. Now I can reconstruct or I can get a colleague who has experience to do that, to reconstruct the patient clean.
. . . .
Q: . . . [Dr. Morrison's cross-examination] And the best thing for [Edgerton] in January of 1990 was the flap procedure?
A: Because a new surgeon thought it was infected. That's true.
. . . .
Q: . . . Now, it is because Dr. Rogers thought it might be infected, even though he was in error, that they went to the flap procedure?
A: Correct.
. . . .
Q: . . . It may have been that had it been detected a month or two months or three months earlier, the flap procedure might still have been the best procedure for [Edgerton]?
A: If it were infected that's right.
Q: Even if it were not infected?
A: Possibly, but I outlined other stabilizing procedures that would have been preferable.
. . . .
Q: . . . You agree, just as a principle, the fact that a patient's sternum did not heal and that he ultimately needed a flap procedure does not mean the surgeon did something wrong?
A: It [sic] terms of dividing the sternum, taking the mammary, I said at the outset, yes. I think the key thing is, you're saying that a flap is needed and I'm disagreeing with that.
. . . .
Q: . . . Let's say this: If Dr. Rogers had not suspected the possibility of infection, all of those same options that would have been available to [Edgerton] would have been available to him in January of 1990?
A: Absolutely. That's the point I'm making. In fact, if Morrison had been there he probably would have known it wasn't infected and could then have treated as a non-infected wound.
. . . .
Q: . . . [Edgerton's re-direct] Is it generally dangerous for a medical doctor to only pay attention in their index of suspicion in creating and using their differential diagnosis process to put on blinders and only look at what happens most of the time and disregard the rare occurrences?
A: No, I mean you have to be attuned to what's unusual as well as what the usual expected is. I mean, that's a part of being attune [sic] to the patient and picking up problems early and treat them appropriately.
Q: Is that basically, in your opinion, what happened to [Edgerton] here?
A: That warning signs were missed and ignored, and proper studies were not performed in a timely fashion to pick this up in an early fashion so that you could diagnose a necrotic sternum that was not infected and therefore could be repaired to restore structural integrity of the skeleton, yes.
(all emphasis added)
Although Dr. Flye did not explain how Dr. Morrison's having performed the original sternotomy on Edgerton would have given him the unique ability to more quickly (than any other doctor) determine weeks later that Edgerton's dehiscent sternum was not infected, "[t]his court will not second-guess whom the jury chooses to believe, as we leave issues of credibility and the weight to be afforded conflicting evidence to the jury." Davolt v. Highland , 119 S.W.3d 118, 127 (Mo.App.W.D. 2003). Even if we were to disagree with the trial court's rulings on Dr. Morrison's motions for directed verdict and JNOV, we would not reverse the judgment without a re-trial as suggested by Dr. Morrison. "Where a plaintiff prevails in the trial court and an appellate court reverses because of insufficient evidence the preference is for remand for a new trial. Reversal without remand is appropriate only if the appellate court is persuaded the plaintiff cannot make a submissible case on retrial." Allstates Transworld Van Lines, Inc. v. Southwestern Bell Telephone Co. , 937 S.W.2d 314, 319 (Mo.App.E.D. 1996) (citing Moss v. Nat'l Super Mkts, Inc. , 781 S.W.2d 784, 786 (Mo. 1989)). Based on the record before us, we are not so persuaded. Points one and two are denied.
Jury Instructions
Dr. Morrison raises two alleged points of error relating to instructions given to the jury. We review " de novo, as a question of law, whether a jury was properly instructed." Harvey v. Washington , 95 S.W.3d 93, 97 (Mo. banc 2003). However, in determining whether a particular instruction was supported by the evidence, we again view the evidence in the light most favorable to the party who prevailed at trial and give that party all favorable inferences that may reasonably be drawn from that evidence. Mehrer v. Diagnostic Imaging Ctr, P.C. , 157 S.W.3d 315, 323 (Mo.App.W.D. 2005); Welch v. Hyatt , 578 S.W.2d 905, 912 (Mo. banc 1979). A party claiming instructional error must demonstrate that the allegedly erroneous instruction "misdirected, mislead, or confused the jury" and that the party was thereby prejudiced. Sorrell v. Norfolk S. Ry. Co. , 249 S.W.3d 207, 209 (Mo. banc 2008).
Initially, Dr. Morrison claims the trial court erred in submitting jury instruction number eleven, Edgerton's proffered verdict director against Dr. Morrison, because Instruction 11 failed to track plaintiff's theory of the case. Instruction 11 reads, in pertinent part, that the jury's verdict must be for Edgerton and against Dr. Morrison if the jury believed that: "First, [Dr. Morrison] failed to diagnose and treat [Edgerton's] unhealed sternum with rigid fixation on or after September 5, 1989, and Second, [Dr. Morrison] was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to [Edgerton]." (emphasis added)
Dr. Morrison alleges the use of the term "rigid fixation" constituted a prejudicial "roving commission" because that term was not specifically defined either by the instructions or by the evidence offered at trial.
"An issue submitted by an instruction must be supported by the evidence; the submission of any proposition without sufficient evidentiary foundation is error." Oldaker v. Peters , 817 S.W.2d 245, 251 (Mo. banc 1991). "Each element of a verdict directing instruction must be supported by substantial evidence." Hollis v. Blevins , 927 S.W.2d 558, 564 (Mo.App.S.D. 1996). The ultimate facts needed to sustain the verdict must be submitted to the jury. Williams v. Daus , 114 S.W.3d 351, 370 (Mo.App.S.D. 2003). "A verdict directing instruction is erroneous if it permits the jury to find for the plaintiff on a basis different from that pleaded and proved." Kraus v. Kraus , 693 S.W.2d 869, 873 (Mo.App.E.D. 1985).
The term "rigid fixation" was not defined within the jury instructions. Nor was the term ever defined within the evidence offered at trial. In fact, the term "rigid fixation" was never uttered during Edgerton's case-in-chief. The term was used twice during Edgerton's cross-examination of doctors called by Dr. Morrison. The first use occurred in a question directed to Dr. Hendrick Barner, Dr. Morrison's retained expert, a cardiothoracic surgeon:
Q: To know whether your surgical colleagues in the late `70s and early `80s were attempting autogenous ribs, the use of autogenous ribs and artificial materials to secure rigid fixation of the skeletal defects in the region of the sternum, you don't need to know the color of the hair or right-handed or the underlying medical history of each and every patient to know that those procedures were being undertaken and reported by your colleagues, true?
A: I don't need to know the skin color or hair color, but I need to know the specific situations in which those techniques were applied. Both techniques were not being applied to patients with sternal non union, sternal infection or sternal dehiscence in my experience or that of my immediate colleagues.
(emphasis added).
The second occasion occurred during Edgerton's cross-examination of Dr. Geter, the surgeon who performed the pectoralis muscle flap procedure on Edgerton:
Q: Dating back into the late — pardon me, late `70s and early `80s there's literature you're aware of?
A: That's correct.
Q: Using both artificial methods like a plastic or metal or combination, true?
A: That's correct.
Q: As well as what is called autogenous, meaning using your own rib, your own material?
A: That's right.
Q: And I was listening very carefully, all of your answer [sic] were you would not do that, you would not recommend that, but that's not saying that some other plastic surgeon might not try to obtain a rigid fixation under these circumstances, true?
A: If they did they would be risking an infection in this situation because you have an unexplained rash, and you have a culture that you're not really confident about.
(emphasis added).
Counsel did not explain what he meant by "rigid fixation" and neither doctor asked for any such definition before answering his questions.
Dr. Morrison relies principally upon Mast v. Surgical Services of Sedalia, L.L.C. , 107 S.W.3d 360 (Mo.App.W.D. 2003) as support for his contention that the use of the phrase "rigid fixation" in Instruction 11 constituted a "roving commission" because it failed to track Edgerton's evidence at trial.
In Mast , the husband and estate of a deceased patient brought a medical malpractice claim against several physicians. 107 S.W.3d at 363-64. After a jury trial, a verdict was returned in favor of all defendants. Id. at 365. On appeal, the plaintiffs argued that the trial court had erred in refusing to adopt two of the plaintiffs' proposed jury instructions. Id. at 365-66. At trial, the plaintiffs' expert had testified about several methods that could be used to provide additional nutrition to a patient, but that only one specific type of treatment would have been appropriate for this particular patient's alleged condition of malnutrition. Id. at 368-69. The first of the rejected instructions read, in pertinent part, that the defendant "failed to diagnose" or "failed to treat the malnutrition of" the deceased patient and the second proposed instruction stated, in part, that the defendant "failed to treat the malnutrition" of the deceased patient. Id. at 366.
The Mast court noted that any acts or omissions contained in the instruction had to be supported by those theories developed at trial and the evidence presented. Id. Further, the court stated that "in `a medical malpractice case, a jury instruction which tracks the plaintiffs' expert's testimony is proper in that it does not permit the jury to find for plaintiffs on facts different from those pleaded or proved.'" Id. at 368 (quoting Hruban v. Hickman Mills Clinic, Inc. , 891 S.W.2d 188, 192 (Mo.App.W.D. 1995)). In conclusion, Mast held that the trial court had acted properly in rejecting the plaintiffs' proposed instructions because the plaintiffs' evidence was that only one particular type of treatment would have been appropriate for the deceased patient's alleged condition. Id. If the instruction merely stated that the defendant had "failed to treat" the alleged condition, then the jury could have found the defendant liable for failing to initiate treatment procedures that the plaintiffs' own expert had stated were either not available or not advisable in this particular situation. Id. at 370.
The same problem that existed in Mast exists here. Edgerton's expert, Dr. Flye, never used the term "rigid fixation" at trial. Dr. Flye's testimony was that absent Dr. Morrison's negligence, Edgerton would have had the opportunity to receive either of two alternatives to the muscle flap procedure ultimately used by Dr. Geter: 1) harvest one of the patient's own ribs, split it, and use the pieces as "struts between the bones on either side of the ribs to . . . get some structural integrity;" or 2) take a synthetic mesh impregnated "with the same method they use to implant artificial hips" to "give you a solid structure and wire and suture that from rib to rib, and that gives you a solid surface over the heart to help protect it and give you some structural integrity. . . ." In other portions of Dr. Flye's testimony, he referred at various times to these two procedures producing a "structural integrity;" "stability;" "solid structure;" "solid surface;" "structural stability;" "solid repair;" or "stabilizing [effect]."
Edgerton's argument that all witnesses and the parties' legal counsel knew what was being referred to when the term "rigid fixation" was used misses the mark; the critical issue is whether the jury understood what that term referred to and whether it tracked the evidence and Dr. Flye's theory of the case. As the term "rigid fixation" was never defined for them, we assume the jurors gave the words their usual and ordinary meaning. "Rigid" means "to be stiff" or "devoid of flexibility." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1073 (11th ed. 2005). "Fixation" means "the act, process or result of fixing." Id. at 474. As thus defined, the term would not be so narrow as to only cover the two procedures recommended by Dr. Flye.
Element one of Instruction 11 required the jury to believe that "[Dr. Morrison] failed to diagnose and treat [Edgerton's] unhealed sternum with rigid fixation. . . ." This, then, was the form of the ultimate fact Edgerton chose (over Dr. Morrison's "roving commission" objection) to submit to the jury for its determination. "The instructions must submit to the jury `the ultimate facts required to sustain a verdict.'" Williams , 114 S.W.3d at 370 (quoting Stalcup v. Orthotic Prosthetic Lab, Inc. , 989 S.W.2d 654, 658 (Mo.App.E.D. 1999)). There is no overarching definition of what distinguishes evidentiary facts from ultimate facts; "`[t]his determination involves analysis of the specific theory relied upon by the party offering the instruction.'" Id. (quoting Burns v. Elk River Ambulance, Inc. , 55 S.W.3d 466, 478 (Mo.App.S.D. 2001)).
In this case, the jury could certainly have believed that the two alternatives recommended by Dr. Flye would have provided Edgerton with a "rigid fixation." Unfortunately, the jury also heard Dr. Flye testify that in some cases of sternal dehiscence — where the sternum is infected but not necrotic — "you can wire it back together and you can re-establish what's remaining with the structural integrity of the skeleton in that part of the body" to "obtain a stable sternum, a fixed, rigid chest, solid." The possibility that the jury may have also considered this method and its resulting stability to be among those falling within the category of "rigid fixation" is critical in this case because all of the witnesses agreed that a re-wiring of Edgerton's necrotic sternum was not an available option and, thus, failing to do so would not have been negligent. Because the jury could have considered a re-wiring of the sternum to be among methods capable of providing a "rigid fixation," the judgment must be reversed and the matter remanded for a new trial.
To complicate matters further, Dr. Flye also testified that the muscle flap procedure performed by Dr. Geter provided Edgerton with "structural integrity," albeit, "not skeletal."
For his fourth point, Dr. Morrison alleges the trial court erred in submitting instruction number fifteen to the jury. Instruction 15 stated, in pertinent part:
If you find in favor of plaintiff [Edgerton], then you must award plaintiff [Edgerton] such sum as you believe will fairly and justly compensate plaintiff [Edgerton] for any damages you believe he sustained and is reasonably certain to sustain in the future that the conduct of one or more of the defendants as submitted in Instruction Numbers 7, 9, 11, and 13 directly caused or contributed to cause.
(emphasis added).
"Instruction Numbers 7, 9, 11, and 13" referred to above were Edgerton's verdict directors against the various defendants.
Dr. Morrison argues that Instruction 15 was misleading and prejudicial because it allowed the jury to award against any one defendant damages not caused by that particular defendant. Dr. Morrison, however, cites to no authority as support for his argument, nor does he provide an explanation for the absence of any such authority. As such, he has waived his point of error. Muilenburg, Inc. v. Cherokee Rose Design Build, L.L.C. , 250 S.W.3d 848, 853 (Mo.App.S.D. 2008). Further, the matter will be moot on retrial as only one defendant will be involved. We will, however, address Dr. Morrison's final point of alleged error as it may be at issue again on retrial.
Verdict Form
For his fifth point, Dr. Morrison attacks the verdict form submitted to the jury. That form, based on MAI 36.21, stated in pertinent part: "On the claim of plaintiff [Edgerton] for personal injuries against defendants [Dr. Morrison], as submitted by Instruction No. 11, we, the undersigned jurors, find in favor of; [Edgerton] or [Dr. Morrison][.]" (emphasis added).
Unless otherwise noted, all references to MAI are to the sixth edition.
Dr. Morrison argues that the inclusion of the phrase "as submitted by Instruction No. 11" constituted an erroneous deviation from MAI 36.21 and that he was thereby prejudiced.
Edgerton argues that the phrase "as submitted by Instruction No. 11" was properly submitted as an identifying phrase under the Notes on Use for MAI 36.21. Note number two of the Notes on Use (2002) to MAI 36.21 states that:
Dr. Morrison argues that, because this case was not a "packaged" case as defined by MAI 2.00, then Notes on Use 2 for MAI 36.21 would not apply because it specifically references "this particular package." We need not address this argument for, even if we assume that the specific note on use applies, we still find that the phrase "as submitted by Instruction No. 11" constituted a deviation from MAI 36.21.
[t]he verdict form will contain a descriptive phrase describing and identifying the claim submitted by this particular package which will be the claim to which this verdict is applicable. The identifying phrase should be non-inflammatory and as neutral as possible and should avoid the assumption of disputed facts.
The note then references MAI 2.00 for a discussion of and examples of appropriate identifying phrases. MAI 36.21 Note 2 (2002). MAI 2.00 provides several examples of appropriate identifying phrases. The examples of such identifying phrases are in the form of ". . . on the claim of plaintiff Joe Smith for personal injuries[.]" MAI 2.00. They briefly describe in words the nature of the claim; they do not contain a reference to an instruction or instructions of the court. Thus, Edgerton's claim that the disputed phrase serves as an "identifying phrase" is without merit; the tendered verdict form already contained an identifying phrase consistent with the examples listed in MAI 2.00. We agree with Dr.
Morrison that the deviation from MAI was unnecessary and erroneous. As we assume the error will not be repeated on retrial, we need not address the apparent unresolved conflict between our fellow districts as to whether any such deviation should carry a presumption of prejudice.
Under Rule 70.02(c) Missouri Rules of Civil Procedure (2008), any instruction given in violation of rule 70.02 constitutes error. (emphasis added). "Any deviation from an approved MAI instruction is presumed prejudicial error unless the contrary is shown." Kenney v. Wal-mart Stores, Inc. , 100 S.W.3d 809, 813 (Mo. banc 2003). In considering whether a MAI verdict form is an "instruction" for purposes of Rule 70.02(c), the other two districts of our Court have come to differing conclusions. Compare Mathes v. Sher Express, L.L.C. , 200 S.W.3d 97, 105 (Mo.App.W.D. 2006) ("A verdict form, however, is not an `instruction,' but merely `"the medium to record the decision of the jury.'") (quoting Davis v. Stewart Title Guar. Co. , 726 S.W.2d 839, 857 (Mo.App.W.D. 1987)) to Chambers v. McNair , 692 S.W.2d 320, 324-25 (Mo.App.E.D. 1985) (applying the same presumption of prejudice when a verdict form deviates from the requirements of MAI as is applied when an instruction does so is logical and will promote the virtues of MAI).
The trial court's judgment is reversed and the matter is remanded for a new trial.
Lynch, C.J. — Concurs
Rahmeyer, J. — Concurs