Opinion
No. 27648
October 9, 2007.
Plaintiffs have filed a motion for rehearing or, in the alternative, application for transfer to the Missouri Supreme Court in which they allege, inter alia, that no Missouri court had ever, prior to this case, held that a corporate representative's admission cannot bind the defendant corporation, referring to the testimony of Dr. Bays. They now contend that the fact that Dr. Bays could bind Defendant was never contested, was not an issue before the trial court, and was not preserved for appellate review. While, as indicated in the court's opinion, Plaintiffs argued and cited authority for the fact that a defendant's evidence can establish the standard of care, they failed to cite the court to any portion of the record establishing that Dr. Bays' testimony could be taken as that of the Defendant corporation, or any legal authority in support of that premise. In short, they implicitly relied on that argument without explicitly directing this court to where in the record necessary facts supporting that premise were established, or citing to authority establishing that their implied conclusion applied under those facts.
For the first time Plaintiffs now direct the court in this motion to two instances in the record that they contend establish that Dr. Bays' testimony could be considered as that of the Defendant. In one, Defendant's counsel, outside the hearing of the venire panel, introduced Dr. Bays as "the former Defendant Michael Bays[,]" to which the trial court inquired, "He's the representative of the corporation?" to which Defendant's counsel stated, "He is now." The second instance occurred later, at the beginning of voir dire, when the trial court announced to the venire panel, "The defendant in this case is [Defendant]. The corporate repetitive [sic] is Michael Bays, and he's standing." We note, however, that when Dr. Bays was called to testify by Plaintiffs, counsel announced, "Your Honor, at this time we call Dr. Michael Bays[,]" without indicating that he was being called in any representative capacity.
If Plaintiffs were contending in this appeal, as they now insist, that Dr. Bays' testimony was binding on the Defendant corporation when he testified as Plaintiffs' witness, it was their obligation to cite in their brief to portions of the record establishing a factual basis for that fact and legal authority supporting it. They failed to do so, even though they were the ones contending on appeal that Dr. Bays' testimony, along with Dr. Nelson's, established the standard of care. As indicated in this court's opinion, it is not the appellate court's function to develop an argument for counsel.
Even if we ignore Plaintiffs' failure to make and support this argument prior to the filing of our opinion, it does not provide any aid for Plaintiffs. They now state in their motion that Dr. Bays was "[Defendant's] designated corporate representative chosen to represent it and to speak on its behalf in the trial of this case." The record, as now cited by Plaintiffs in this motion, indicates that Dr. Bays was present at trial as Defendant's corporate representative, but nothing in the record indicates that he was chosen by Defendant to speak on its behalf at the trial.
Plaintiffs' further statement in their motion that "as the corporate representative, Dr. Bays' statements are binding against [Defendant] as a matter of law[,]" with citations to Payne v. Cornhusker Motor Lines, Inc. , 177 S.W.3d 820 (Mo.App.E.D. 2005) and Annin v. Bi-State Development Agency , 657 S.W.2d 382 (Mo.App.E.D. 1983), is inaccurate and misapplies those cases. In Payne , the witness whose deposition testimony was properly considered to be admissions of the defendant had been specifically designated, pursuant to Rule 57.03(b)(4) to testify at deposition concerning the matters that were introduced. The same was true in Annin , where the appellate court also said, "Defendant designated the bus driver to testify on its behalf. The deposition was not that of the bus driver as an individual but under Rule 57.03(b)(4) it was the deposition of the corporate defendant." 657 S.W.2d at 386 (emphasis added).
Plaintiffs, in this motion, do not cite us to any portion of the record indicating that Dr. Bays was designated by Defendant to speak on its behalf concerning the matter about which he testified. In addition, it clearly appears that Dr. Bays was called by Plaintiffs in their case as an individual witness, with there being no indication that he was called as a corporate representative.
Finally, even if Dr. Bays had been designated by Defendant to speak on its behalf and had been called to testify as the Defendant's corporate representative, Plaintiffs erroneously assume that Dr. Bays' testimony established the standard of care necessary to make a submissible case. As such, they completely overlook the fact that this court said in its opinion, after reviewing the many authorities cited by it, "In the instant case, neither Dr. Nelson nor Dr. Bays indicated that their testimony was based on the legal standard as defined in MAI 11.06 that the jury received. Likewise, neither indicated that it was based on a substantially similar standard."
Dr. Bays' testimony had the same types of deficiencies identified with reference to Dr. Nelson's. Dr. Bays acknowledged that he owed a patient "certain duties of care" "to do the operation properly"; that it is his responsibility if he didn't "do the operation properly"; that when there is thyroid cancer, the "standard of care" is to do a total thyroidectomy; and that when you do a total thyroidectomy, you don't leave an entire lobe. When asked if leaving an entire lobe when doing a total thyroidectomy would be a "mess up" he said, "If you did that and said that you did that, then you would be a liar and a fraud." In response to a question of whether leaving an entire thyroid lobe when you felt you had done a total thyroidectomy would be a "surgical mistake[,]" he said "it may not be a surgical mistake, but it would be an out-and-out lie." He acknowledged that if you think you removed the entire thyroid but left it, that would be a "mistake" and "would be in violation of your duties as a surgeon."
A "mistake" is defined in Black's Law Dictionary, seventh edition, as "an error, misconception, or misunderstanding; an erroneous belief." As we said in McLaughlin v. Griffith , 220 S.W.3d 319, 320-21 (Mo.App.S.D. 2007), "[a] physician's honest but mistaken diagnosis creates no liability unless the MAI 11.06 standard of care was violated," and "jurors must know an expert's opinion is based on MAI 11.06 and not something else."
Like Dr. Nelson's testimony, there was no showing that Dr. Bays was basing his testimony on the standard of care required to make a submissible case, i.e. that defined in MAI 11.06. There was nothing in Dr. Bays' testimony to communicate to the jury that his concession that the failure to remove the total thyroid would be a "mistake" and a "violation of his duties as a surgeon" constituted "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession."
Plaintiffs' motion for rehearing or for transfer to the Missouri Supreme Court is denied.