Expert’s past tort advocacy merits new medical malpractice trial

The Missouri Court of Appeals Eastern District ordered a new trial in a medical malpractice case, saying the plaintiff should have been allowed to ask a defense expert about his advocacy for tort reform.

In a 2-1 ruling, the court said questioning the expert, Dr. Brett Grebing, who practices in Illinois, could have revealed a bias against the claim that Amy Revis brought against her treating orthopedist, Dr. Donald Bassman.

“The jury could conclude Dr. Grebing’s efforts to cap or limit monetary awards against all doctors in Illinois, including himself, played a role in his testimony in this case,” Judge Philip M. Hess wrote for the court. “Dr. Grebing’s testimony would have tended to show he was prejudiced against plaintiffs in medical malpractice suits and had a bearing upon his veracity as a witness. It is up to the jury to determine if Dr. Grebing’s tort reform efforts were a source of potential bias or prejudice influencing his testimony, not a court.”

Judge Kurt S. Odenwald dissented, arguing that the trial judge had found that evidence “too tangential and remote to show bias.”

“I am unwilling to declare and hold the trial court’s exercise of discretion erroneous,” he wrote.

In 2013, Revis fell from a ladder and broke her ankle and heel bone. At the emergency room, Bassman, the on-call orthopedist, said Revis needed several screws to be placed. He contacted the operating room the next morning to schedule the surgery, but the room wasn’t available until late that afternoon, about 28 hours after Revis was admitted.

After surgery, the back of Revis’s heel developed necrosis, requiring additional treatment and skin grafts. Revis sued Bassman, alleging that the delay in her surgery had caused the tissue damage.

At trial in St. Louis County in 2018, each side presented medical expert testimony. Revis’ expert, Dr. James Turner Vosseler, testified that Bassman waited too long to perform the surgery. Grebing, in contrast, blamed the necrosis on the force of her fall having caused a piece of bone to move through the tissue.

Judge Joseph S. Dueker permitted Revis’ attorneys to probe Grebing’s prior litigation history, but the judge drew the line at a request to talk about actions that Grebing took during his year as president of the Madison County (Illinois) Medical Society. According to the opinion, Grebing had advocated in favor of Illinois enforcing its existing statutes of limitations for certificates of merit in medical malpractice actions and pushed to reinstate limits on damage awards.

Hess, writing for the majority, relied on a 2018 Eastern District case he helped to decide, Koelling v. Mercy Hospitals East Communities. In that case, the court had granted a new trial in a medical malpractice case in which the plaintiff had been barred from cross-examining the defense expert about medical malpractice suits he faced.

The Koelling opinion noted that the doctor had said in his deposition that he was “angered,” “frustrated” and “sad” about the way he’d been treated in the legal system. While the trial judge can limit cross-examination about potential bias, the court said, “It is not within the trial court’s discretion to prevent it entirely.”

“While the bias [Revis] sought to expose in Dr. Grebing is less personal than the bias sought to be exposed in Koelling, we are unconvinced this distinction compels a different result than Koelling,” Hess wrote. Judge Lisa Page concurred.

Odenwald, however, said there was no evidence that Grebing had the sort of strong personal feelings at issue in Koelling. During the doctor’s term as president, the medical society passed resolutions that were sent to the state medical association, but Grebing didn’t personally contact the state legislature or individual legislators, and he never traveled to the state capitol to lobby for any reforms.

The case also involved a challenge to Grebing’s credentials as an expert. In 2017, the Missouri legislature changed the standard for admitting expert testimony to conform to the Daubert standard employed in federal courts.

That standard, derived from a 1993 U.S. Supreme Court ruling, Daubert v. Merrell Dow Pharmaceuticals, requires judges to act as “gatekeepers” when admitting evidence from an expert witness.

Revis had argued that Grebing’s testimony wasn’t reliable because it was derived from a study of a different kind of fracture than Revis suffered. Revis’ calcaneal avulsion fracture is rare and hasn’t been the subject of many medical studies.

But the Eastern District said the Daubert standard doesn’t require exact similarity between the expert opinion and the medical study he or she relies on, and Grebing’s opinion was a “permissible extrapolation.”

David Cates of Cates Mahoney in Swansea, Illinois, an attorney for Revis, and James Thoele of Brinker & Doyen, an attorney for Bassman, couldn’t be reached for comment.

The case is Revis v. Bassman, ED107663.

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