#27098-a-LSW

2015 S.D. 41

                           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
Siegel, Barnett and Schutz, LLP
Aberdeen, South Dakota                     Attorneys for defendant
                                           and appellee.

                                  ****

                                           CONSIDERED ON BRIEFS
                                           ON MARCH 23, 2015

                                           OPINION FILED 06/03/15
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WILBUR, Justice

[¶1.]        The circuit court entered judgment for Defendant, Dr. Linda Peterson.

Plaintiff, Lita St. John, appeals the judgment and challenges the court’s ruling that

certain evidence was not relevant and, therefore, was inadmissible. We affirm.

                                     Background

[¶2.]        This is the third appeal of this medical malpractice action. See St.

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

John II), 2013 S.D. 67, 837 N.W.2d 394. The subject of the first appeal involved an

appeal of the 2010 jury verdict in favor of Dr. Peterson. St. John I, 2011 S.D. 58,

¶ 19, 804 N.W.2d at 74. The circuit court denied the admission of testimony from

St. John’s expert witness, Dr. Arnold Wharton, regarding Dr. Peterson’s experience

with similar medical procedures. Id. ¶ 8. We held that the circuit court “misstated

and apparently misapplied the balancing test of Rule 403.” Id. ¶ 18, 804 N.W.2d at

77. As a result, we reversed and remanded to the circuit court. Id. ¶ 19.

[¶3.]        On remand, the circuit court concluded that the proffered evidence was

inadmissible and reinstated the original judgment. St. John II, 2013 S.D. 67, ¶ 11,

837 N.W.2d at 397. The court issued a memorandum decision on June 4, 2012, and

findings of fact and conclusions of law on July 9, 2012. We held on appeal that the

circuit court erred when it reinstated the judgment against Dr. Peterson. Id. ¶ 23,

837 N.W.2d at 400. Consequently, we reversed and remanded for a retrial, stating

that “[t]he 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.” Id.




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[¶4.]         This third appeal concerns St. John’s claim that Dr. Peterson was

negligent for failing to refer St. John to a doctor who specialized in repairing

vesicovaginal fistulas. 1 On April 10, 2014, Dr. Peterson filed a motion in limine

with the circuit court. Dr. Peterson requested that the court preclude, inter alia, (1)

“Plaintiff from offering any testimony or evidence concerning other lawsuits or

claims brought against Defendant or the facts involved in those other lawsuits or

claims[;]” and (2) “Plaintiff from offering any testimony or evidence regarding

Defendant’s unsuccessful treatment of other patients with vesicovaginal fistulas.”

Dr. Peterson further requested that the court “reaffirm its Order regarding Dr.

Wharton’s deposition filed August 18, 2010, and order the redaction of the same

portions of his deposition that were redacted during the last trial of this matter.”

[¶5.]         On April 24, 2014, the circuit court conducted a pretrial hearing on the

motion in limine. The court granted Dr. Peterson’s motion in limine on April 30,

2014. This precluded St. John from proffering statements from Dr. Peterson’s

deposition regarding her treatment of three former patients who suffered

vesicovaginal fistulas: Cheryl, Crystal, and Ruth. Moreover, the court reaffirmed

its July 9, 2012 findings of fact and conclusions of law, wherein the court found that

St. John’s proffered evidence regarding Dr. Peterson’s treatment of Cheryl, Crystal,

and Ruth, was not relevant.




1.      On August 16, 2010, the circuit court granted summary judgment in favor of
        Dr. Peterson on St. John’s claim of informed consent. Later, on April 20,
        2014, the court granted partial summary judgment in favor of Dr. Peterson
        on St. John’s claim that Dr. Peterson negligently caused injury to St. John’s
        bladder.

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[¶6.]        Specifically, the circuit court found that evidence regarding Dr.

Peterson’s care and treatment of Cheryl was not relevant because it did not make

the existence of any fact in St. John’s case more or less probable on the issue of Dr.

Peterson’s competence to repair St. John’s vesicovaginal fistula. Dr. Peterson

performed an abdominal hysterectomy on Cheryl. During the surgery, Dr. Peterson

observed a “rent” on Cheryl’s bladder, but she took no steps to address the “rent” at

the time of the surgery. Later, Cheryl developed a vesicovaginal fistula in a

different location than the “rent.” Dr. Peterson successfully repaired the fistula.

Thereafter, Cheryl developed another fistula in a separate location from the first

fistula. Dr. Peterson attempted to repair the second fistula. Following the surgery

of the second fistula, Cheryl sought care elsewhere and underwent further surgery.

In finding that this evidence was not relevant, the court noted that Dr. Peterson

successfully repaired one fistula, and the “results of her attempts to repair the

second fistula are unknown.”

[¶7.]        In addition, the circuit court found that evidence regarding Dr.

Peterson’s care and treatment of Crystal and Ruth was not relevant because Dr.

Peterson did not attempt to use the Latzko procedure to repair either Ruth or

Crystal’s vesicovaginal fistulas. Instead, “a different surgical procedure” was

performed on Crystal and Ruth than was performed on St. John. Accordingly, the

court found that Dr. Peterson’s treatment of Crystal and Ruth did “not make the

existence of any fact in Plaintiff’s case more or less probable on the issue of

Defendant’s competence to repair Plaintiff’s vesicovaginal fistula.”




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[¶8.]         Furthermore, in its April 30, 2014 order regarding Dr. Peterson’s

motion in limine, the circuit court reaffirmed most of the redactions to Dr.

Wharton’s deposition. At the third jury trial 2 on April 30, 2014, St. John made two

offers of proof regarding the redactions to Dr. Wharton’s deposition. The first offer

of proof included statements made by Dr. Wharton regarding his review of the

medical records for Cheryl, Crystal, and Ruth. Dr. Wharton stated that each of

these three women developed vesicovaginal fistulas while under Dr. Peterson’s care

within 18 months of each other, and that Dr. Peterson attempted and failed to

repair each woman’s fistula. St. John’s counsel asked Dr. Wharton, “[I]n terms of

her competency [at] fixing holes in the bladder once they’ve been caused, does the

fact that she’s had multiple attempts to fix them that have failed give you an

impression one way or the other as to whether she knows how to do that?” Dr.

Wharton replied, “Yeah. It simply tells me that this doctor really had no idea what

she’s doing or how to repair a fistula appropriately and following standard principle

techniques [that are well known] throughout the United States.”

[¶9.]         The second offer of proof involved statements made by Dr. Wharton

about whether Dr. Peterson informed St. John that repairing fistulas was not her

specialty. The offer of proof included the following exchange:

              Counsel: Dr. Wharton, I only have a couple of more questions.
              And I may have covered this, but I’m not sure. But at any point
              along the care, did you ever see anytime where Dr. Peterson
              indicated in her records that she’d had any kind of conversation


2.      The jury was unable to reach a verdict in the first trial. St. John I, 2011 S.D.
        58, ¶ 5, 804 N.W.2d at 73. In August 2010, the court conducted a second jury
        trial. Id. ¶ 9, 804 N.W.2d at 74. We reversed the second trial and remanded
        for a third trial. See St. John II, 2013 S.D. 67, ¶ 24, 837 N.W.2d at 400.

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             with Ms. St. John where she said something to the effect of
             “fixing a hole in your bladder is not my subspecialty, you’re
             really better off getting referred to someone whose specialty is
             fixing this type of thing”?
             Dr. Wharton: No, I never saw that in the record.
             Counsel: If that were the case, if Dr. Peterson knew that it
             wasn’t her specialty and she knew that there were people whose
             specialty it was, would the standard of care require her to
             inform the patient of that and . . . let them make an informed
             decision?
             Dr. Wharton: Yes.
             Counsel: And in that regard, did you see any evidence in the
             records, or from the evidence in the records, did it appear that
             Dr. Peterson had fallen below the standard of care?
             Dr. Wharton: In my opinion . . . that, by definition, ends below
             the standard of care, to offer a procedure that you’re not
             comparable doing without informing the patient or giving the
             patient a choice.

[¶10.]       The circuit court rejected both offers of proof. The court stated that it

“would deny the [first] offer of proof at this time for the reasons that the [c]ourt has

previously set forth in its rulings and memorandum decision that was issued

previously.” At an earlier trial, the court ruled that the first offer of proof was

inadmissible because the testimony about the three women, as described above, was

not relevant. The court denied the second offer of proof because it found that the

statements made by Dr. Wharton related to the issue of informed consent, an issue

upon which the court had previously granted summary judgment in favor of Dr.

Peterson.

[¶11.]       The jury returned a verdict in favor of Dr. Peterson. St. John appeals

and raises the following issues for our review:

             1.     Whether the circuit court erred by denying admission of
                    evidence regarding Dr. Peterson’s treatment of other
                    patients.
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             2.     Whether the circuit court erred by denying admission of
                    Dr. Wharton’s testimony that Dr. Peterson breached the
                    standard of care by failing to inform St. John that
                    repairing vesicovaginal fistulas was not her specialty.

                                Standard of Review

[¶12.]       “‘The trial court’s evidentiary rulings are presumed correct and will not

be overturned absent a clear abuse of discretion. An abuse of discretion refers to a

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.’” St. John I, 2011 S.D. 58, ¶ 10, 804 N.W.2d at 74 (quoting Mousseau

v. Schwartz, 2008 S.D. 86, ¶ 10, 756 N.W.2d 345, 350). We will not overturn an

evidentiary ruling unless the error is prejudicial. Id. (quoting Novak v.

McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912). “‘Error is prejudicial when,

in all probability, it produced some effect upon the final result and affected rights of

the party assigning it.’” State v. Kvasnicka, 2013 S.D. 25, ¶ 56, 829 N.W.2d 123,

135 (quoting State v. Vatne, 2003 S.D. 31, ¶ 10, 659 N.W.2d 380, 383).

                                       Analysis

[¶13.]       1.     Whether the circuit court erred by denying admission of
                    evidence regarding Dr. Peterson’s treatment of other
                    patients.

[¶14.]       The circuit court denied admission of evidence relating to lawsuits or

claims brought against Dr. Peterson and evidence relating to Dr. Peterson’s

unsuccessful treatment of other patients with vesicovaginal fistulas. The court also

denied admission of Dr. Wharton’s testimony regarding Dr. Peterson’s treatment of

other patients with fistulas. St. John argues that the court erred by denying this

evidence because the evidence was relevant under SDCL 19-12-1 (Rule 401), and


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admissible under SDCL 19-12-2 (Rule 403) or, alternatively, under SDCL 19-12-5

(Rule 404(b)). “‘For evidence to be admitted during trial, it must be found to be

relevant. Once the evidence is found to be relevant, it is admissible unless it is

specifically excluded.’” St. John I, 2011 S.D. 58, ¶ 12, 804 N.W.2d at 75 (quoting

Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 30, 764 N.W.2d 474, 484).

“Evidence which is not relevant is not admissible.” SDCL 19-12-2 (Rule 402).

[¶15.]       “Relevance” is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” SDCL 19-12-1

(Rule 401). We have noted that “Rule 401 uses a lenient standard for relevance.

Any proffered item that would appear to alter the probabilities of a consequential

fact is relevant, although it may be excluded because of other factors.” Supreme

Pork, 2009 S.D. 20, ¶ 46, 764 N.W.2d at 488 (quoting 2 Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Federal Evidence § 401.04[2][c] (Joseph M.

McLaughlin, ed., Matthew Bender 2d ed. 2008)). The proponent of Rule 404(b)

evidence “has the burden of showing the relevance of the other crimes, wrongs, or

acts.” State v. Wright, 1999 S.D. 50, ¶ 14, 593 N.W.2d 792, 798. Rule 404(b)

evidence offered to show a defendant’s propensity to commit the act is not relevant.

Id. ¶ 14, 593 N.W.2d at 799. “Once a circuit court finds other acts evidence

relevant, the balance tips emphatically in favor of admission.” State v. Medicine

Eagle, 2013 S.D. 60, ¶ 17, 835 N.W.2d 886, 893 (quoting State v. Huber, 2010 S.D.

63, ¶ 59, 789 N.W.2d 283, 302) (internal quotation marks omitted).




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[¶16.]       First, we consider the exclusion of statements made by Dr. Peterson

during a deposition regarding her treatment of Cheryl, Crystal, and Ruth. St. John

argues that this evidence is relevant because it addresses Dr. Peterson’s experience,

knowledge, and competency in repairing fistulas. St. John asserts, “Dr. Peterson’s

failed attempts to repair a similar vesicovaginal fistula in the same location, during

the same time frame, make it more probable . . . that she did not possess the

necessary skill to perform the repair.” St. John contends that this evidence

addresses a “consequential fact that goes to the heart of the case[.]” See SDCL 19-

12-1 (Rule 401).

[¶17.]       The circuit court did not abuse its discretion when it determined that

the evidence pertaining to Dr. Peterson’s treatment of Crystal and Ruth did not

reach the threshold level of relevance under Rule 401. See id.; Supreme Pork, 2009

S.D. 20, ¶ 43, 764 N.W.2d at 487. Although Crystal and Ruth both developed a

vesicovaginal fistula after Dr. Peterson performed a vaginal hysterectomy on them,

Dr. Peterson did not attempt to repair either of their fistulas. Instead, Crystal and

Ruth both sought treatment elsewhere. Consequently, the proffered evidence

regarding Dr. Peterson’s treatment of Crystal and Ruth does not tend to make the

question of whether Dr. Peterson was competent in repairing fistulas any more or

less probable. See SDCL 19-12-1 (Rule 401).

[¶18.]       Likewise, the circuit court did not abuse its discretion when it denied

admission of evidence of Dr. Peterson’s treatment of Cheryl. Cheryl developed a

fistula after Dr. Peterson performed an abdominal hysterectomy on her. Dr.

Peterson successfully repaired the fistula. After this surgery, Cheryl developed


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another fistula in a separate location from the first fistula. Dr. Peterson performed

surgery on the second fistula. The circuit court found that “the results of her

attempts to repair the second fistula are unknown.” Following the surgery of the

second fistula, Cheryl sought care elsewhere and eventually underwent further

surgery. The court found that Dr. Peterson’s “post-operative care of [Cheryl] does

not make the existence of any fact in [St. John’s] case more or less probable on the

issue of [Dr. Peterson’s] competence to repair [St. John’s] vesicovaginal fistula,” and

therefore “evidence concerning the care and treatment of [Cheryl] is not relevant.”

We agree. All that is clear from this evidence is that Dr. Peterson did in fact

successfully repair Cheryl’s first fistula. The results of Cheryl’s second surgery

were not made known to the circuit court. Accordingly, the court did not abuse its

discretion when it determined this evidence was not relevant.

[¶19.]       Next, we consider whether the circuit court erred by excluding St.

John’s offer of proof regarding Dr. Wharton’s testimony about Dr. Peterson’s

treatment of former patients. A circuit court has “broad discretion in ruling on the

admissibility of expert opinions.” Reinfeld v. Hutcheson, 2010 S.D. 42, ¶ 27, 783

N.W.2d 284, 292 (quoting Garland v. Rossknecht, 2001 S.D. 42, ¶ 9, 624 N.W.2d

700, 702). “‘When dealing with expert opinion, the court must fulfill a gatekeeping

function, ensuring that the expert opinion meets the prerequisites of relevance and

reliability before admission.’” Id. (quoting Garland, 2001 S.D. 42, ¶ 10, 624 N.W.2d

at 702). “A trial judge must ensure that an expert’s testimony rests on both a

reliable foundation and is relevant to the task at hand.” Id. (quoting Rogen v.




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Monson, 2000 S.D. 51, ¶ 13, 609 N.W.2d 456, 459) (internal quotation marks

omitted).

[¶20.]       Here, the circuit court did not err when it denied St. John’s first offer

of proof and excluded a portion of Dr. Wharton’s testimony. Dr. Wharton’s

testimony was neither relevant nor reliable. See id. Dr. Wharton relied on Dr.

Peterson’s statements during her deposition to reach the conclusion that she was

not competent to perform the Latzko procedure on St. John. As discussed above,

Dr. Peterson’s statements were not relevant to the case. Furthermore, Dr. Wharton

incorrectly testified that Dr. Peterson had attempted a Latzko repair on Cheryl,

Crystal, Ruth, and St. John, and that all such attempts failed. Dr. Peterson and

two expert witnesses submitted affidavits establishing that Dr. Peterson did not

perform a Latzko repair on Crystal and Ruth. St. John did not submit evidence

refuting these affidavits. Thus, we conclude that the circuit court did not err when

it denied St. John’s offer of proof on grounds of relevance. Therefore, we need not

consider St. John’s arguments as to whether the evidence was admissible under

Rule 403 or Rule 404(b). See St. John I, 2011 S.D. 58, ¶ 12, 804 N.W.2d at 75.

[¶21.]       2.     Whether the circuit court erred by denying admission of
                    Dr. Wharton’s testimony that Dr. Peterson breached the
                    standard of care by failing to inform St. John that
                    repairing vesicovaginal fistulas was not her specialty.

[¶22.]       The circuit court excluded St. John’s second offer of proof on the

grounds that it was not relevant to St. John’s claim that Dr. Peterson was negligent

by failing to refer St. John to a specialist. Instead, the court found that the offer of

proof related to the issue of informed consent, an issue that the circuit court



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previously resolved by summary judgment in favor of Dr. Peterson. 3 St. John

contends that the court erred when it determined that the offer of proof did not

relate to her claim that Dr. Peterson was negligent in failing to refer St. John to a

specialist for treatment of her fistula. We disagree.

[¶23.]         The circuit court’s “evidentiary rulings are presumptively correct.”

Cain v. Fortis Ins. Co., 2005 S.D. 39, ¶ 31, 694 N.W.2d 709, 716. At the third trial,

the court instructed the jury on the duty to refer a patient to a specialist:

               A physician has the duty to refer a patient to a specialist or
               recommend the assistance of a specialist if, under the
               circumstances, a reasonably careful and skillful physician would
               do so.

The offer of proof at issue included the following exchange between Dr. Wharton

and counsel at his deposition. Counsel asked Dr. Wharton, “[I]f Dr. Peterson knew

that [repairing fistulas] wasn’t her specialty and she knew that there were people

whose specialty it was, would the standard of care require her to inform the patient

of that and . . . let them make an informed decision?” (Emphasis added.) Dr.

Wharton replied, “In my opinion . . . that, by definition, ends below the standard of



3.       Addressing St. John’s motion for reconsideration of the prior limine ruling on
         the second offer of proof, the court stated during the third trial:
               The portion of the deposition in question does make reference to
               being referred to someone else. But the answer that Dr.
               Wharton gave does not necessarily indicate that that’s what he’s
               talking about. The second question before Dr. Wharton’s answer
               indicates that we’re talking about the standard of care required
               her to inform the patient of that and let them make an informed
               decision. And it appears to the [c]ourt that the prior ruling in
               which this evidence was determined to be inadmissible due to
               the ruling on the summary judgment on informed consent would
               still be applicable, so the Motion for Reconsideration would be
               denied.

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care, to offer a procedure you’re not comparable doing without informing the patient

or giving the patient a choice.” (Emphasis added.)

[¶24.]       This offer of proof relates to the issue of whether Dr. Peterson informed

St. John that she was not a specialist in repairing vesicovaginal fistulas, not

whether Dr. Peterson breached a duty to refer St. John to a specialist. Notably

absent from the offer of proof is any opinion from Dr. Wharton on whether, under

these circumstances, “a reasonably careful and skillful physician would” have

referred St. John or recommended that she see a specialist, as is required to

establish negligence in failing to refer to a specialist. Dr. Wharton merely opined

that Dr. Peterson’s conduct fell below the standard of care when she failed to inform

St. John that repairing fistulas was not her specialty.

[¶25.]       Moreover, a review of the record as a whole establishes that Dr.

Wharton’s testimony did not relate to the issue of negligence in failing to refer to a

specialist. Dr. Wharton’s deposition occurred before the second trial on February

12, 2010. Several months before the deposition, Dr. Wharton submitted an affidavit

to the court alleging that Dr. Peterson’s care fell below the accepted standard of

care due to her failure to obtain informed consent and for her alleged negligent

treatment of St. John’s fistula. Dr. Wharton made no mention of the standard of

care for referring a patient to a specialist in his affidavit. Indeed, St. John did not

claim that Dr. Peterson was negligent in failing to refer her to a specialist until

years later, before the third trial. In fact, at the July 29, 2010 pretrial conference

on Dr. Peterson’s motion for summary judgment on the issue of informed consent,

counsel for St. John stated, “Defendant acknowledges that our expert witness has


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testified as to his opinion as to informed consent.” Counsel for St. John specifically

referenced Dr. Wharton’s testimony in an attempt to avoid summary judgment for

informed consent. Now St. John argues that this same testimony relates to the

issue of negligence in failing to refer to a specialist. Consequently, we are not

persuaded that the circuit court abused its discretion when it excluded this

evidence. The exclusion of this evidence did not amount to error, much less

prejudicial error. See Ruschenberg v. Eliason, 2014 S.D. 42, ¶ 23, 850 N.W.2d 810,

817.

[¶26.]       We affirm.

[¶27.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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