We have not shied away from letting our readers know what we think of the Bair Hugger litigation.  And it’s not good (check it out here).  Plaintiffs’ latest defeat is the affirmance of a defense verdict by the Missouri Court of Appeals.  O’Haver v. 3M Company, 2024 WL 3034549 (Mo. Ct. App. Jun. 18, 2024).  Once again, plaintiff performed dismally.  Plaintiff raised nine appellate evidentiary issues.  None were meritorious. 

The first five issues are variations on a theme – plaintiff was not allowed to go beyond the scope of the direct examination and cross-examine defendant’s experts about various exhibits that the experts never considered in reaching their opinions.  Id. at *2-4.   All of the exhibits except one were otherwise already in evidence.  In each instance, the expert testified to either not relying on or having never seen the exhibit in question.  Id.  However, when the trial court disallowed any further questioning about those exhibits, plaintiff made no contemporaneous offers of proof regarding the cross-examinations she was denied.

Plaintiff argued that no offer of proof was necessary because an offer would not have changed the trial court’s decision and is only necessary to establish relevance, which she claimed was “self-evident.”  Id. at *4.  But that ignores another important purpose—to preserve the record for appeal.  Id.  Appellate courts review the admission of evidence at trial for prejudice.  However, if the court has

no record of how the expert witnesses would have testified had the cross-examination proceeded, [it has] no idea the impact that testimony would have had on the credibility of the witness, and, by extension, whether it would have had any impact on the outcome of the trial. 

Id. Because plaintiff did not adequately preserve these issues, she could not demonstrate prejudice, and each of her first five evidentiary appeals were denied.

Plaintiff’s next point was that she was prejudiced when the trial court sustained defendant’s objection to cross-examination questions that “invaded the province of the jury.”  Id. at *5.  Plaintiff repeatedly asked the defense expert whether he could exclude the Bair Hugger device as a potential cause of plaintiff’s injuries.  The expert repeatedly testified he could neither rule it in nor rule it out.  But plaintiff went too far when she asked the expert whether “it was a potential cause for this jury to consider in determining whether it contributed to her [injury].”  Id. Plaintiff argued that by cutting off that question, the jury was left with the “false impression” that the device was not a potential cause it could consider.  The appellate court found no prejudice to disallowing this one question where the expert testified “at least six times” he could not exclude the device as a cause.  Id.

Plaintiff’s next point was that it was error to limit her cross-examination due to defendant’s expert’s scheduling limitations.  The expert had planned to testify later in the schedule, but during a pre-trial conference one week before trial, it was clear that due to the dismissal of several defendants and issues, the witness would be needed earlier.  Due both to religious and professional obligations, the witness could be available to testify either remotely on the morning of one trial day or available for a trial deposition over the weekend.  Plaintiff opted not to conduct the deposition.  Id. at *6.  Plaintiff got to cross-examine the witness for six minutes longer than defendant’s direct.  Plaintiff had “ample time” (was on notice before the trial started) and an alternative (weekend deposition) to prepare her cross-examination.  Moreover, plaintiff did not argue that she did not cover all of the topics she wanted to cover.  Id. at *7.  Because the trial court gave the parties equal time and plaintiff had opportunities to make sure she conducted a full cross-examination, the trial court did not abuse its discretion.

The final two points raised on appeal have to do with a claim of privilege.  During discovery, defendant claimed work product protection and attorney-client privilege over the results of an internal litigation product study conducted at the request of defendant’s in-house counsel and only shared with outside counsel.  The study results were reviewed in camera by a special master who upheld the claim of privilege.  A ruling that was affirmed by the trial court.  Id. Defendant, however, did produce to plaintiff the underlying test data.   

Plaintiff made three arguments why the study results should have been produced.  First, plaintiff claimed that defendant’s corporate representative waived privilege by mentioning the study during this deposition.  However, the witness’s testimony was that he was not aware of the results of the study, had never seen the results, and did not know its conclusions.  Id. at *8.  He could only testify to the underlying data, which plaintiff already had.  Second, plaintiff argued privilege was waived when defendant gave a study-related document to a consulting expert.  While it was unclear if the document contained the study results, even if it did,

such a disclosure does not necessarily waive the work product privilege [as] . . . a disclosure made in the pursuit of trial preparation and not inconsistent with maintaining secrecy against opponents does not waive the privilege.

Id. at *8 (citation omitted).   Finally, plaintiff claimed that she was entitled to the information because she had a substantial need and an inability to obtain a substantial equivalent.  But plaintiff could not explain her position in light of having the underlying data and the ability to have her own experts conduct their own testing.  Id.  at *10.  Any allegation that the study results were adverse to defendant were pure speculation.    Therefore, the appellate court sustained defendant’s objection to producing the study.

Plaintiff’s last and related point was that she should have been allowed to argue in closing that had the study’s results been favorable to defendant, defendant would not have kept them secret.  Id. However, during trial, plaintiff advised the court that the closing would not contain “an inference about any results or anything else.”  Id. at *11.   Plaintiff kept that promise and concluded her closing without making any inference.  Therefore, plaintiff’s point on appeal directly contradicts her statements to the trial court.  In other words, the trial court did not rule on this issue because the issue was not presented at trial.  The appellate court would “not convict a trial court of error on an issue that not put to the trial court to decide.”  Id.  (citation omitted).

Thanks to Ben Hulse from Norton Rose for sending us this decision and congratulations to him and the rest of the trial team that included DLA Piper, Kuckelman Torline Kirkland, and Jerry W. Blackwell.