The same Missouri Supreme Court that couldn’t be bothered to review a 22-plaintiff consolidation that resulted in a ten-figure verdict in a talc case saw fit to review a defense verdict in a pelvic mesh case. One wonders where justice stands among that court’s priorities. At least the verdict was affirmed – if only barely, 4-3, in a per curiam opinion. See Sherrer v. Boston Scientific Corp., 609 S.W.3d 697 (Mo. 2020), rehearing denied (Mo. Nov. 24, 2020).
Still, a win is a win.
The plaintiff raised four issues on the appeal – all evidentiary rulings reviewable only for abuse of discretion, id. at 705: (1) prohibiting plaintiff from introducing the “prior convictions” of one of the defendants; (2) allowing display of portions of plaintiff’s original complaint that also contained malpractice claims against healthcare providers that plaintiff later settled – and did not contain any product liability claims; (3) allowing plaintiff and some of her witnesses to be cross-examined about her original allegations; and (4) denying a mistrial when the fact of the malpractice settlement was mistakenly shown to the jury on one rather busy Powerpoint slide. Id. at 703.
The first issue is the most interesting, in terms of future litigation. Sherrer held that Mo. Rev. State. §491.050, allowing impeachment with prior criminal convictions, only applies to individuals, and not to corporations. Where applicable, §491.050, “gives an absolute right to show a prior conviction of a witness.” 609 S.W.3d at 705. A corporation, however, is not a “witness” as used in the statute. Witnesses must: (1) understand the obligation to tell the truth, (2) have observed the subject of their testimony; (3) must remember what they testify about; (4) can orally describe what they testify about; and (5) can only testify to their personal knowledge. Those criteria exclude corporations:
A corporation is unable to meet any of these criteria. A corporation, being an artificial person created by operation of law, can act only through its officers, directors and agents.
Id. at 706 (citation and quotation marks omitted). Plaintiff also had no basis for arguing that the statute – which was over 100 years old – was intended by the legislature to include artificial persons such as corporations. Id.
Because section 491.050 renders any convicted “person” a competent “witness” and corporations cannot be witnesses, interpreting “person” to include corporations would be plainly repugnant to the legislature’s intent and the context of section 491.050. When a corporate representative testifies on a corporation’s behalf, the right to impeach provided by section 491.050 is the right to impeach the corporate representative’s credibility as a witness by evidence of the corporate representative’s prior convictions. It is not the right to impeach the corporation’s credibility with evidence of the corporation’s prior convictions.
Id. at 706-07.
Nor did the defendants’ convictions, which were over 30 years old and involved an unrelated product, become admissible to “rebut” general evidence that, as to this product, the defendant complied with all FDA regulations, and the defendant’s other products were “life improving, life enhancing, [and] lifesaving.” Id. at 707. As to this product, those old convictions were collateral. “[Plaintiff] was not entitled to contradict the statements . . . with evidence of . . . prior convictions for unrelated conduct that was not otherwise pertinent to the issues being tried.” Id. at 708.
As to issues 2 and 3, Sherrer also held that, while it was “improper” for defendant to use plaintiff’s original malpractice petition, that error had not been properly preserved and was waived. Id. at 714. Sherrer overruled some prior precedent and held the superseded pleadings – described as “abandoned” had to be inconsistent to be admissible, and these weren’t. Id. at 713. Overruling still more prior precedent, Sherrer further eliminated “the principle that an abandoned pleading may be used to show that a claim added in a subsequent pleading is an afterthought or made in bad faith.” Id. at 713.
Finally, it was not an abuse of discretion to refuse a mistrial because, for a “brief” period, id. at 715, the jury was exposed to a Powerpoint slide that mentioned the malpractice settlement. The slide was a “timeline” and “charted 19 specific events.” Id. The settlement was never mentioned by counsel. The trial lasted for five weeks. This short-lived error wasn’t serious enough to demand the “drastic” remedy of mistrial. “First, the slide was displayed for a short period of time before the [trial judge] innocuously instructed [defense] counsel to take the slide down.” Id. at 716. “Second, the slide in question was highly detailed, containing 19 different text boxes,” so the jury probably never “noticed” the one improper item. Id. Indeed, not even plaintiffs’ counsel − only the judge − noticed the problem, and the trial judge handled it in a low-key way that did not call the jury’s attention to it. Id.
. . . [Plaintiff] seeks an opinion [that a trial] court manifestly abuses its discretion by not imposing the most drastic remedy available during a trial merely because there was a chance the jury saw an improper demonstrative aid. But such a holding does not reflect the law in this state. [Plaintiff] must demonstrate both prejudice and that mistrial is the only sufficient remedy. She has failed to show either.
Id. at 719.
Defense verdict affirmed, although three of the seven justices dissented on this last point.