#26456-rev & rem-GAS

2013 S.D. 67

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
LITA ST. JOHN,                            Plaintiff and Appellant,

      v.

LINDA PETERSON, M.D.,                     Defendant and Appellee.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                   ROBERTS COUNTY, SOUTH DAKOTA

                                 ****

                     THE HONORABLE JON S. FLEMMER
                                Judge

                                 ****

THOMAS L. SANNES
DAVID A. GEYER of
Delaney, Nielsen & Sannes, PC
Webster, South Dakota                     Attorneys for plaintiff
                                          and appellant.


REED RASMUSSEN of
Siegal, Barnett & Schutz, LLP
Aberdeen, South Dakota                    Attorneys for defendant
                                          and appellee.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 12, 2013
                                          REASSIGNED JULY 5, 2013

                                          OPINION FILED 09/04/13
#26456

SEVERSON, Justice (on reassignment).

[¶1.]        In the first appeal of this medical malpractice suit, we reversed and

remanded a judgment for the defendant, Dr. Linda Peterson, holding that the trial

court abused its discretion when it misconstrued the rules of evidence on the

relevancy and admissibility of plaintiff Lita St. John’s proffered evidence. St. John

v. Peterson (St. John I), 2011 S.D. 58, 804 N.W.2d 71. On remand, Dr. Peterson

sought reconsideration of the evidentiary rulings and reinstatement of the

judgment. Concluding that our opinion still left open the question whether the

evidence was admissible, and ruling that it was not, the trial court declined to grant

St. John a new trial and reinstated the judgment for Dr. Peterson. We reverse and

remand.

                                  BACKGROUND

[¶2.]        After a 2010 jury verdict for Dr. Peterson in a negligence suit, St. John

appealed. In our decision, we framed the issue as “[w]hether the trial court abused

its discretion in precluding evidence regarding Dr. Peterson’s experience with

similar medical procedures.” Id. ¶ 9. From the trial court’s ruling, we could not

determine whether it deemed St. John’s proffered evidence relevant, because the

“court only said that it did not appear that there was ‘sufficient relevancy’ to

overcome or outweigh the prejudice that would be caused.” Id. ¶ 14. We declared

that on remand, “the court must determine whether the proffered evidence was

relevant before considering whether it is admissible.” Id.

[¶3.]        Returning to the trial court at the end of 2011, Dr. Peterson sought to

exclude plaintiff’s proffered evidence, arguing that if the trial court determined that


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the evidence was admissible, it could then proceed with a new trial. But if, using

the correct standard, the trial court concluded that the evidence was inadmissible,

it could reenter the judgment.

[¶4.]        St. John responded that the trial court must order a new trial

regardless, because this Court’s decision to reverse and remand meant the parties

stood as if no trial had yet been held. Alternatively, St. John argued that if the trial

court decided to reconsider the issue, Dr. Peterson’s admissions “that she had

several failed attempts repairing vesicovaginal fistulas involving multiple patients”

made it more probable that she breached the standard of care when she treated St.

John. Additionally, St. John argued that the evidence was admissible under SDCL

19-12-5 (Rule 404(b)) as other acts evidence: Dr. Peterson’s past failures were

relevant to prove Dr. Peterson’s deficiency in knowledge and skill. Lastly, St. John

asserted that Dr. Peterson testified at trial as an expert, and therefore, the evidence

was proper for impeaching her knowledge, skill, experience, training, or education.

The appellate briefs and the transcript from the oral argument for St. John I were

made part of the trial court’s record. After the hearing, the trial court issued a

memorandum decision concluding that a retrial was not the only permissible option.

It then reexamined the questioned evidence.

[¶5.]        St. John’s proffered evidence consisted of three other surgeries where

Dr. Peterson’s patients suffered vesicovaginal fistulas. With the first patient,

Cheryl, Dr. Peterson performed an abdominal hysterectomy. She observed a “rent”

on Cheryl’s bladder, but took no steps in response. Later, Cheryl developed a

vesicovaginal fistula. Dr. Peterson attempted to repair the fistula using the Latzko


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procedure, the same procedure used with St. John. Dr. Peterson thought the repair

was successful, but Cheryl developed another fistula at a different location. Dr.

Peterson repaired the second fistula, again using the Latzko procedure, but after

that attempt, Cheryl sought care elsewhere.

[¶6.]        While Cheryl’s and St. John’s treatments were similar—total

abdominal hysterectomies with vesicovaginal fistulas—the trial court found the

evidence of Cheryl’s treatment irrelevant. It concluded that there was “a successful

repair of one fistula and an unknown outcome concerning the other fistula.”

Cheryl’s treatment, in the trial court’s opinion, did not make the existence of any

fact in St. John’s case more or less probable. However, in her deposition, Dr.

Peterson testified that she did indeed fail to repair a fistula for Cheryl. Even if

relevant, the trial court went on to conclude that the probative value of this

evidence was outweighed by the danger of unfair prejudice, confusion of the issues,

and misleading the jury. This evidence, the trial court stated, was merely an

allegation of negligence in the failure to repair one of Cheryl’s two vesicovaginal

fistulas. Thus, the trial court reasoned, the jury would be required to “conduct a

mini-trial concerning the allegations about the treatment provided to Cheryl[.]”

Moreover, “admission of the evidence from [Cheryl’s] case would open the door to

Dr. Peterson presenting evidence in defense of those allegations as well as other

successful outcomes.” The trial court ruled the evidence inadmissible under SDCL

19-12-3 (Rule 403).

[¶7.]        As for the second patient, Crystal, during her vaginal hysterectomy, a

hole was discovered in her bladder. Although Dr. Peterson repaired the hole during


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surgery, Crystal was later diagnosed with a vesicovaginal fistula. But Dr. Peterson

did not diagnose the fistula or attempt to repair it. Because St. John’s negligence

claim centered on Dr. Peterson’s repair of her fistula, and no such repair was

performed by Dr. Peterson on Crystal, the trial court ruled the evidence of Crystal’s

care irrelevant. Moreover, the trial court found that the procedure performed was

different (vaginal hysterectomy), the claim was a mere allegation, and the jury

would again be required to conduct a mini-trial.

[¶8.]        Ruth, the third patient, underwent a vaginal hysterectomy and also

experienced a hole in her bladder. Dr. Peterson repaired the hole during surgery.

Later, she diagnosed Ruth with a vesicovaginal fistula. Yet Dr. Peterson did not

perform any repair because Ruth sought care elsewhere. Thus, the trial court found

the evidence of Ruth’s care irrelevant and inadmissible; and even if relevant, any

probative value it may have had would be outweighed by the risk of unfair

prejudice, confusion of the issues, and misleading the jury.

[¶9.]        Then, the trial court addressed St. John’s alternative argument that

her proffered evidence was admissible as other acts evidence under SDCL 19-12-5

(Rule 404(b)) to prove Dr. Peterson’s insufficiency of knowledge. The trial court

concluded that Dr. Peterson’s treatment of Cheryl, Crystal, and Ruth would not

provide additional evidence on this subject, but would only serve to insinuate that

Dr. Peterson committed malpractice in other cases, so she must have done the same

in St. John’s case.

[¶10.]       Finally, the trial court examined St. John’s claim that her proffered

evidence on the three other cases was admissible to impeach Dr. Peterson’s


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testimony as an expert witness. The trial court concluded from Dr. Peterson’s

previous trial testimony that she did not testify as an expert, but rather explained

how she treated St. John and the procedures her treatment required. St. John's

proffered evidence, the trial court ruled, was excludable as improper impeachment.

[¶11.]       Accordingly the trial court granted the motion for reconsideration and

entered a judgment for Dr. Peterson. In her appeal, St. John asserts that the trial

court erred by reviving a judgment that had been reversed and remanded, and

abused its discretion when it ruled that her proffered evidence was inadmissible.

                             STANDARD OF REVIEW

[¶12.]       We review de novo whether a trial court’s action conformed with our

mandate. Weins v. Sporleder, 2000 S.D. 10, ¶ 10, 605 N.W.2d 488, 490-91. See also

SDCL 15-30-14 (“In all cases the Supreme Court shall remit its judgment or

decision to the court from which the appeal was taken, to be enforced accordingly;

and if from a judgment, final judgment shall thereupon be entered in the court

below in accordance therewith, except where otherwise ordered.”).

                                    DISCUSSION

[¶13.]       Revision to ruling on a motion in limine

[¶14.]       After our decision in St. John I, Dr. Peterson moved for the trial court

to reconsider a previous ruling on a motion in limine. Dr. Peterson argued that the

trial court’s order on the motion in limine was reversed and remanded by this

Court. This is incorrect. The trial court’s earlier error was its failure to determine,

under the correct standards, the relevancy and admissibility of plaintiff’s proffered

evidence. We did not rule on our own that plaintiff’s evidence was admissible. We


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left that conclusion to the circuit court, indicating that the evidence “could” still be

excluded. See St. John I, 2011 S.D. 58, ¶ 19, 804 N.W.2d at 77. Ultimately, we

reversed the judgment, not the order on a motion in limine.

[¶15.]       Dr. Peterson misconstrues the nature and effect of a motion in limine.

A motion in limine is a motion “‘heard in advance of jury selection, which asks the

court to instruct the party, its counsel and witnesses not to mention certain facts

unless and until permission of the court is first obtained outside the presence and

hearing of the jury.’” Kjerstad v. Ravellette Publ’ns, Inc., 517 N.W.2d 419, 426 (S.D.

1994) (quoting Lapasinskas v. Quick, 170 N.W.2d 318, 319 n.1 (Mich. App. 1969)).

See generally Black’s Law Dictionary 896 (4th ed. 1968) (defining “in limine” as “[o]n

or at the threshold; at the very beginning; preliminarily”). “The purpose of a motion

in limine is to prevent prejudicial evidence, argument, or reference from reaching

the ears of the jury. However, a trial court’s ruling on a motion in limine is

preliminary and may change depending on what actually happens in trial.”

Kappenman v. Stroh, 2005 S.D. 96, ¶ 4, 704 N.W.2d 36, 39 (citing First Premier

Bank v. Kolcraft Enters., Inc., 2004 S.D. 92, ¶ 7, 686 N.W.2d 430, 437), superseded

by rule on other grounds, In re Estate of Duebendorfer, 2006 S.D. 79, 721 N.W.2d

438. See generally 75 Am. Jur. 2d Trial § 55 (2007) (describing the reviewability of

a trial court’s ruling on a motion in limine); 1 Christopher B. Mueller and Laird C.

Kirkpatrick, Federal Evidence, § 1:11(2) (3d ed. 2007) (“It seems that the trial court

may change its ruling during trial . . . . There is no doubt on this point if testimony

turns out differently from what was expected at the time of the pretrial ruling, or if

other unexpected events that bear upon the propriety of the ruling occur. Probably


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the judge may simply change the ruling because, in the actual context of trial, the

issues and merits seem different and the ruling made before seems wrong.”)

(footnote omitted); and 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s

Federal Evidence, § 103.11[2][b][ii] (2d ed. 2002) (“Motions in limine are frequently

made in a vacuum and in anticipation of some hypothetical circumstance that may

not develop at trial. As a result, if a party files numerous motions in limine, the

trial court may not pay close attention to each one, believing that many of them are

purely hypothetical. An objection that is made when challenged evidence is actually

introduced at trial gives the trial court an opportunity to reconsider the grounds of

the motion in light of the actual circumstances that have developed at trial.”)

(footnote omitted).

[¶16.]       The United States Supreme Court has also weighed in on the effect of

rulings on motions in limine. “[I]n limine rulings are not binding on the trial judge,

and the judge may always change his mind during the course of a trial.” Ohler v.

United States, 529 U.S. 753, 758 n.3, 120 S. Ct. 1851, 1854 n.3, 146 L. Ed. 2d 826

(2000). In addition, the Supreme Court has noted that a ruling on an in limine

motion is “subject to change when the case unfolds, particularly if the actual

testimony differs from what was contained in the [party’s] proffer.” Luce v. United

States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984). “Indeed even if

nothing unexpected happens at trial, the district judge is free, in the exercise of

sound judicial discretion, to alter a previous in limine ruling.” Id. at 41-42.

[¶17.]       On December 22, 2011, the trial court held a hearing on the motion for

reconsideration of the motion in limine, where Dr. Peterson argued that if the trial


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court determined that certain evidence was inadmissible, it was not necessary to go

through a trial. St. John argued that evidence of three other surgeries performed

by Dr. Peterson was relevant and demonstrated Dr. Peterson’s insufficient

knowledge to perform St. John’s surgery. The trial court determined that the

evidence of Dr. Peterson’s other surgeries was not relevant evidence and further

was inadmissible under SDCL 19-12-3 (Rule 403) and SDCL 19-12-5 (Rule 404(b)).

Based on the exclusion of the evidence, the trial court granted the motion for

reconsideration and entered a judgment for Dr. Peterson. The trial court’s ruling

ignores that the purpose of a motion in limine is to make a preliminary

determination regarding the introduction of evidence or argument outside the

presence of the jury to protect the jury from hearing prejudicial evidence.

[¶18.]       The trial court’s ruling on this evidentiary motion in limine is

preliminary and interlocutory, and it is subject to change during trial. In assessing

this case, we do not assert that a ruling on a motion in limine could never be a

definitive ruling under SDCL 19-9-3 (Rule 103(a)). SDCL 19-9-3 (Rule 103(a))

addresses how and when to preserve an evidentiary ruling for appeal. The statute

provides that “[o]nce the court makes a definitive ruling on the record admitting or

excluding evidence, either at or before trial, a party need not renew an objection or

offer of proof to preserve a claim of error for appeal.” SDCL 19-9-3 (Rule 103(a)).

Rule 103(a) addresses a separate issue: how to preserve a record and how a party




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may preserve an evidentiary issue for appeal without repeated objections. See id. 1

[¶19.]         Many issues addressed by motions in limine, including evidentiary

issues, are frequently reexamined during trial and the trial court may change

rulings based on the actual evidence at trial. Thus, it was an error for the trial

court in this case to reinstate a judgment based on reconsidering and ruling on a

motion in limine outside of the context of a trial. We reverse the trial court’s

decision and remand for a new trial.

[¶20.]         Legal effect of reversing a judgment

[¶21.]         We have previously discussed the legal effect of reversal. See Gluscic

v. Avera St. Luke’s, 2002 S.D. 93, ¶ 20, 649 N.W.2d 916, 920; Janssen v. Tusha, 67

S.D. 597, 601, 297 N.W. 119, 120 (1941). We have stated that “‘the mandate of this

court ordering a reversal of a judgment without other direction nullifies the




1.       SDCL 19-9-3 (Rule 103(a)) provides:

               Error may not be predicated upon a ruling which admits or
               excludes evidence unless a substantial right of the party is
               affected, and:

               (1) In case the ruling is one admitting evidence, a timely
               objection or motion to strike appears of record, stating the
               specific ground of objection, if the specific ground was not
               apparent from the context; or

               (2) In case the ruling is one excluding evidence, the substance of
               the evidence was made known to the court by offer or was
               apparent from the context within which questions were asked.

               Once the court makes a definitive ruling on the record admitting
               or excluding evidence, either at or before trial, a party need not
               renew an objection or offer of proof to preserve a claim of error
               for appeal.

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judgment, findings of facts, and conclusions of law, and leaves the case standing as if

no judgment or decree had ever been entered.’” Gluscic, 2002 S.D. 93, ¶ 20, 649

N.W.2d at 920 (quoting Janssen, 297 N.W. at 120) (emphasis added). “A complete

reversal generally annuls the judgment below, and the case is put in the same

posture in which it was before the judgment was entered.” 5 Am. Jur. 2d Appellate

Review § 803 (2013) (footnotes omitted). “Thus, after the reversal on appeal, the

parties’ rights are left wholly unaffected by any previous determination that was

reversed, so that a judgment that is reversed and remanded stands as if no trial has

yet been held.” Id.

[¶22.]       Other appellate courts have taken the same position as we have when

a judgment is reversed. “To ‘reverse’ a judgment means to ‘overthrow, vacate, set

aside, make void, annul, repeal, or revoke it.’” Wheeler v. John Deere Co., 935 F.2d

1090, 1096 (10th Cir. 1991) (quoting Black's Law Dictionary 1319 (6th ed. 1990)).

“A judgment reversed by a higher court is ‘without any validity, force or effect, and

ought never to have existed.’” Id. (quoting Butler v. Eaton, 141 U.S. 240, 244, 11 S.

Ct. 985, 987, 35 L. Ed. 713 (1891)). See also Arkadelphia Milling Co. v. St. Louis

Sw. Ry. Co., 249 U.S. 134, 145, 39 S. Ct. 237, 242, 63 L. Ed. 517 (1919) (stating that

“the principle, long established and of general application, that a party against

whom an erroneous judgment or decree has been carried into effect is entitled, in

the event of a reversal, to be restored by his adversary to that which he has lost

thereby”); Riha v. Int’l Tel. & Tel. Corp., 533 F.2d 1053, 1054 (8th Cir. 1976) (noting

“[a] judgment vacated on appeal is of no further force and effect”).




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[¶23.]        The language that we used in St. John I is straightforward. In that

case, we wrote, “[w]e reverse and remand.” St. John I, 2011 S.D. 58, ¶ 19, 804

N.W.2d at 77. Because we reversed and remanded without other direction, the

judgment was voided. The restoration of a reversed jury verdict based on a trial

court’s review of a pre-trial motion in limine on an evidence issue subverts the trial

process.

                                    CONCLUSION

[¶24.]        We reverse the trial court’s decision and remand the matter to the trial

court for retrial.

[¶25.]        GILBERTSON, Chief Justice, and WILBUR, Justice, concur.

[¶26.]        KONENKAMP and ZINTER, Justices, dissent.



KONENKAMP, Justice (dissenting).

[¶27.]        This case was sent back to the circuit court to correct a legal error in

deciding the admission of evidence. On remand, the court used the correct legal

analysis and again excluded plaintiff’s proffered evidence. As the Court today

acknowledges, “The trial court’s earlier error was its failure to determine, under the

correct standards, the relevancy and admissibility of plaintiff’s proffered evidence.”

Nonetheless, despite the fact that the circuit court has now used the correct legal

analysis in excluding the evidence, this Court holds that there must be a new trial

because the trial court “may change” its rulings.

[¶28.]        A new trial is necessary, the Court reasons, because an in limine

ruling is interlocutory and preliminary. Yet in our earlier decision, St. John I, we


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did not address the circuit court’s decision to exclude the evidence in the context of

its preliminary or interlocutory nature. Rather, St. John I examined the court’s

application during trial of two evidentiary rules, SDCL 19-12-1 (Rule 401) and

SDCL 19-12-2 (Rule 402), as those rules related to the court’s decision to exclude

plaintiff’s proffered evidence. Then, because the record was “unclear” and because

the trial court applied the wrong legal standard when it excluded the proffered

evidence, we remanded because it was “possible that the exclusion of the evidence”

affected the outcome of the jury’s verdict. See 2011 S.D. 58, ¶¶ 14, 18, 804 N.W.2d

at 75, 77 (emphasis added). Had the record been clear, this Court could have

upheld the jury’s verdict notwithstanding the court’s evidentiary error. Indeed, in

past cases we have affirmed where a trial court has erred, but on the record,

application of the correct legal standard would lead to the same result: exclusion of

the evidence. 2

[¶29.]         Trial courts must do their best to conduct remand proceedings as

consistent as possible with the appellate mandate. Pac. Gas & Elec. Co. v. United

States, 668 F.3d 1346, 1351-52 (Fed. Cir. 2012). Both the letter and the spirit must

be taken into account in following “the appellate court’s opinion and the




2.       See Surgical Inst. of S.D., P.C. v. Sorrell, 2012 S.D. 48, 816 N.W.2d 133
         (independently considering relevancy and admissibility of the record
         evidence); Janis v. Nash Finch Co., 2010 S.D. 27, 780 N.W.2d 497 (court
         applied wrong legal standard and this Court applied the correct standard to
         the record evidence); In re C.V., 1998 S.D. 47, 579 N.W.2d 17 (affirming
         because result would not change on rehearing); Horne v. Crozier, 1997 S.D.
         65, 565 N.W.2d 50 (court applied wrong standard, yet affirmed on assessment
         of the record).


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circumstances it embraces.” Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d

943, 949 (3d Cir. 1985) (citations omitted). 3 Here, both the letter and the spirit

were followed on remand when the circuit court considered, using the correct legal

standards, the admissibility and relevancy of the proffered evidence. By

appropriately applying the rules of evidence to plaintiff’s proffered evidence, the

court acted in harmony with our mandate. To order a new trial simply because the

evidentiary ruling involved a motion in limine is nonsensical. After all, in St. John

I, we held that the error in excluding plaintiff’s proffered evidence was the faulty

analysis leading to the exclusion. But we wrote that under the correct analysis this

evidence “could” still be excluded. See St. John I, 2011 S.D. 58, ¶ 19, 804 N.W.2d at

77.

[¶30.]         That the circuit court made a “definitive ruling” excluding plaintiff’s

proffered evidence there can be no doubt. SDCL 19-9-3 (Rule 103(a)). This

evidence, Dr. Peterson’s operations on other patients, has been consistently

rejected, even to the extent of requiring separate trials for each plaintiff in order “to

avoid the possibility of testimony from one case affecting the other cases[.]” St.

John I, 2011 S.D. 58, ¶ 11, 804 N.W.2d at 75. And the circuit court’s severance

decision was not appealed. The purpose of a new trial is to have a trial free from

the errors of the previous trial. But the new trial ordered here will only duplicate




3.       See Pac. Gas & Elec. Co., 668 F.3d at 1351; Carolina Power & Light Co. v.
         United States, 98 Fed. Cl. 785, 794 (2011); S. Atl. Ltd. P’ship of Tenn., L.P. v.
         Riese, 356 F.3d 576, 583-84 (4th Cir. 2004); Ayyad v. Sprint Spectrum, L.P.,
         148 Cal. Rptr. 3d 709, 715-16 (Cal. Ct. App. 2012); see also Briggs v. Pa. R.R.
         Co., 334 U.S. 304, 306, 68 S. Ct. 1039, 1040, 92 L. Ed. 1403 (1948).

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the last trial. Our rules of evidence are to be construed to eliminate “unjustifiable

expense and delay[.]” SDCL 19-9-2 (Rule 102). Thus, it is disappointing to

contemplate how, when this Court finds no error in the circuit court’s present

evidentiary ruling and no appeal was taken on the decision to sever the cases in

order to prevent this same evidence from prejudicing this case, that there must

nonetheless be another trial because the circuit court might change its rulings.

[¶31.]       ZINTER, Justice, joins this dissent.




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