                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1467
                                   ___________

Noel K. Blevens,                        *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
George W. Holcomb, III,                 *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 28, 2006
                                Filed: December 1, 2006
                                 ___________

Before RILEY and COLLOTON, Circuit Judges, and KYLE,1 District Judge.
                           ___________

COLLOTON, Circuit Judge.

     Noel K. Blevens appeals a post-trial order of the district court2 granting
judgment as a matter of law in favor of the defendant, Dr. George W. Holcomb, in this
medical malpractice case. The district court ruled that Blevens’s evidence was



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
insufficient as a matter of law, because his expert witnesses failed to articulate and
apply the proper standard of care in their testimony. We affirm.

                                          I.

      DeLanie Blevens, Noel’s daughter, was born with congenital defects in her
bowel. On the morning of August 21, 2001, DeLanie complained to her father of
severe abdominal pain and stiffness in her joints. After DeLanie vomited, her father
took her to the emergency room at Western Missouri Medical Center (“WMMC”) in
Warrensburg, Missouri. Later that morning, an ambulance took her to Children’s
Mercy Hospital (“CMH”) in Kansas City, Missouri. At CMH, several doctors,
including Appellee George Holcomb, examined DeLanie. Dr. Holcomb, a pediatric
surgeon and attending physician at CMH, diagnosed her with a possible early small
bowel obstruction and ordered that she be admitted for observation. DeLanie
remained in the hospital overnight, and Dr. Holcomb learned the next morning that
DeLanie’s condition had deteriorated. He commenced surgery in the morning, but
could not proceed because of DeLanie’s low blood pressure. A second operation was
performed later in the day. By this time, however, the bacteria from DeLanie’s bowel
had entered the blood stream, and she died in the evening.

       Noel Blevens sued Dr. Holcomb in Missouri state court for wrongful death as
a result of alleged medical negligence. Mo. Rev. Stat. § 537.080 (2000). Blevens
claimed that Holcomb should have monitored DeLanie’s condition more closely
during the night and performed surgery earlier. Holcomb removed the case to federal
court, and it was tried to a jury.

       At trial, Blevens presented the testimony of two expert witnesses, Dr. Mary
Alice Helikson and Dr. David Fleischer. Dr. Helikson testified that “the appropriate
standard of care” required Dr. Holcomb to order “further diagnostic studies.” Later
in her testimony, when asked what Dr. Holcomb “should . . . have done to meet the

                                         -2-
appropriate standard of care,” Dr. Helikson responded that Dr. Holcomb should have
“continue[d] to evaluate the patient or operate on the patient.” Dr. Fleischer initially
answered counsel’s question about Holcomb’s performance by reference to what he
would have done with his own patient. Counsel interrupted Fleischer and asked “what
a physician who [was] following the standard of care would do in a situation like
this.” Dr. Fleischer responded that, given DeLanie’s presentation, “[t]he standard of
care is to admit the child for observation” and “impress the residents with the
importance” of the possibility of rapid deterioration.

       The jury found in favor of Blevens and awarded damages of $1,100,000, with
90% of the fault apportioned to Dr. Holcomb. The district court, however, granted
Holcomb’s post-trial motion for judgment as a matter of law. The court concluded
that Blevens’s experts had failed to articulate and apply the proper standard of care in
testifying that Dr. Holcomb had been negligent.

                                           II.

       Judgment as a matter of law is appropriate when “a party has been fully heard
on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to
find for the party on that issue.” Fed. R. Civ. P. 50(a). “We draw all reasonable
inferences in favor of the non-moving party, and do not make credibility
interpretations or weigh the evidence.” Mattke v. Deschamps, 374 F.3d 667, 669 (8th
Cir. 2004). In this diversity case, the law of Missouri applies. Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938). We review de novo a district court’s grant of
judgment as a matter of law.

      To establish a claim for negligence under Missouri law, the plaintiff must
prove: (1) the existence of a duty on the part of the defendant to protect the plaintiff
from injury, (2) a failure of the defendant to perform that duty, and (3) an injury
proximately caused by the defendant’s failure. Krause v. U.S. Truck Co., 787 S.W.2d

                                          -3-
708, 710 (Mo. 1990) (en banc). To prove a breach of duty in a medical malpractice
case, the plaintiff must show that the defendant failed to use “that degree of skill and
learning ordinarily used under the same or similar circumstances by members of
defendant’s profession.” Swope v. Printz, 468 S.W.2d 34, 39 (Mo. 1971). Except in
rare circumstances, a plaintiff cannot state a prima facie case of medical negligence
without expert testimony describing how the defendant’s conduct fell below the
applicable standard of care. Hart v. Steele, 416 S.W.2d 927, 931-32 (Mo. 1967).

       To meet the plaintiff’s burden, expert testimony “must be based upon a proper
test of professional competence.” Swope, 468 S.W.2d at 40. A plaintiff cannot
establish a case of medical negligence with an expert’s “undisclosed subjective
conception of acceptable medical standards.” Id. Although experts need not recite the
proper standard in “ritualistic fashion,” they must show in their testimony “that the
proper objective legal standard is the standard being employed.” Ladish v. Gordon,
879 S.W.2d 623, 634 (Mo. Ct. App. 1994). Thus, the plaintiff need not “establish the
standard of care in a particular manner,” but “must adequately inform the jury as to
the appropriate standard of care.” Redel v. Capital Region Medical Center, 165
S.W.3d 168, 175 (Mo. Ct. App. 2005).

        Testimony that a physician failed to live up to some vague “standard of care,”
without elaboration as to the content of that standard, is insufficient to satisfy this
burden. Ladish, 879 S.W.2d at 634. In Swope, for example, the plaintiff’s expert
testified that an operation performed by the defendant was not “up to acceptable
medical standards                        .” Swope, 468 S.W.2d at 40. The Supreme
Court of Missouri held that this testimony could not establish medical negligence
because “[w]hat his personal, individual understanding of acceptable medical
standards may have been was not shown.” Id.

      Similarly, in Ladish, the plaintiff’s expert testified that the defendant had failed
to provide proper post-operation advice and that his conduct thus fell “below the

                                           -4-
standard of care.” Ladish, 879 S.W.2d at 634. Holding that this testimony did not
satisfy the plaintiff’s burden, the court said that “[q]uestions should not be
propounded, or answered, in terms of inadequately explored legal criteria.” Id.
(internal quotation omitted). The court reasoned that the use of terms such as
“accepted standards” and “standards of care” invite witnesses “to rely upon their own
views of acceptable practice rather than applying the objective legal standard.” Id. at
635. Instead, under Missouri law, experts must indicate what they mean when they
say that another physician’s conduct fell below the “standard of care.” Something in
their testimony must demonstrate that the defendant failed to use “that degree of skill
and learning ordinarily used under the same or similar circumstances by members of
the defendant’s profession.” Id. at 634.

        In this case, neither of Blevens’s experts explained what they meant when they
testified that Dr. Holcomb had failed to meet the “standard of care.” Dr. Helikson
merely testified that the “appropriate standard of care” required further diagnostic
studies and continued evaluation, without explaining the source of this standard. (T.
Tr. at 276). Likewise, Dr. Fleischer’s testimony did not provide the jury with
evidence that Dr. Holcomb failed to exercise “that degree of skill and learning
ordinarily used under the same or similar circumstances by members of the
defendant’s profession.” Ladish, 879 S.W.2d at 634. Though counsel interrupted Dr.
Fleischer when he began to describe how he would treat his own patient, counsel’s
follow-up question asked simply “what a physician who is following the standard of
care would do in a situation like this.” (T. Tr. at 326-27) (emphasis added). The
witness responded that Dr. Holcomb had “violated the appropriate standard of care”
by not admitting DeLanie for observation. (Id.).

      Blevens argues that counsel’s effort to redirect Dr. Fleischer’s testimony toward
a physician “following the standard of care” shows that the witness did not apply a
subjective standard in testifying that Holcomb’s conduct was negligent. That is not
necessarily so, however, because a witness may testify about what another physician

                                         -5-
should have done, but still apply a subjective test. Swope, 468 S.W.2d at 40. Even
if the questioning indicated that Dr. Fleischer did not use a subjective standard,
moreover, the colloquy does not show that Fleischer applied the proper objective
standard. “What his personal, individual understanding of acceptable medical
standards may have been was not shown.” Swope, 468 S.W.2d at 40. The testimony
is open to the interpretation, for example, that Dr. Fleischer believed the “best
practice” in the field was to admit DeLanie for observation, even though this practice
would not “ordinarily” be followed by members of the profession in same or similar
circumstances. We therefore agree with the district court that neither witness
“identified the content or source of the ‘standard of care’ to which they referred,
leaving the jury without confirmation that they were referring to the standard required
by law as opposed to a personal (or some other) standard of conduct.” (App. at 112).
See also Keirsey v. Barnes, 2006 WL 680956, at *2 (E.D. Mo. Mar. 14, 2006)
(observing that in Blevens, neither expert witness “defined what was meant by the
phrase ‘standard of care,’” and that both experts “compounded the problem by
testifying as to what they would have done”).

       Blevens contends that even if Dr. Helikson and Dr. Fleischer failed to apply the
proper standard of care, Dr. Holcomb’s experts established it for him. In Pettet v.
Bieterman, 718 S.W.2d 188 (Mo. Ct. App. 1986), one division of the Missouri Court
of Appeals upheld a verdict for the plaintiff where the testimony of the plaintiff’s
expert was “based upon the ‘standard,’ ‘accepted,’ and ‘prescribed’ medical practice
and not upon his own personal opinion.” Id. at 190. Although the plaintiff’s expert
did not testify expressly concerning “that degree of skill and learning ordinarily used
under the same and similar circumstances,” the court added that because defendant’s
experts had explicitly stated the proper standard, the testimony of plaintiff’s and
defense experts, taken together, “allowed the jury to base [its] decision on a clearly
identified objective medical standard.” Id.




                                         -6-
        Noting that Dr. Holcomb’s experts ritualistically stated the proper standard,
Blevens argues that he can rely on that testimony to prove that his experts applied the
proper standard. We disagree. Blevens concedes that Pettet is inconsistent with the
decision of another Missouri court of appeals in Ladish, which declined to adopt the
view that defense witnesses can establish the standard of care for the plaintiff. 879
S.W.2d at 634. While the Pettet court did not even cite the decision of the Supreme
Court of Missouri in Swope, the Ladish court concluded that Swope “requires that the
fact finder be informed of the standard being employed by plaintiff’s experts in order
for plaintiff to make a submissible case.” Id. We deem Ladish more in keeping with
Swope, and we thus apply Ladish as the better view of Missouri law in this diversity
action. Because the testimony of one witness cannot establish that another witness
understood and applied the proper standard, the testimony of Holcomb’s experts is
insufficient to satisfy Blevens’s burden of proof.

       Finally, Blevens argues that defense counsel, in his closing argument, conceded
that Blevens’s experts applied the proper standard when defense counsel stated that
plaintiff’s experts had testified concerning Dr. Holcomb’s alleged “negligence.” (T.
Tr. at 572-73). Blevens contends that because the jury was instructed that
“negligence” means a failure to use “that degree of skill and learning ordinarily used
under the same or similar circumstances by members of those respective professions,”
(R. Doc. 78, Jury Instruction No. 13), counsel’s reference to testimony from Drs.
Fleischer and Helikson concerning alleged “negligence” necessarily implied a
concession that those witnesses applied the correct standard of care. We find this
contention unpersuasive. Counsel’s arguments were not evidence, (R. Doc. 78, Jury
Instruction No. 2), and a passing statement in closing argument cannot cure an
evidentiary deficiency in the plaintiff’s case. While a defense expert may concede that
the legal standard is the standard suggested by a plaintiff’s expert, even where the
plaintiff’s expert did not properly identify the standard of care, Ladish, 879 S.W.2d
at 634, this sort of concession requires evidence from a defense witness that the
standard of care proffered by the plaintiff is indeed dictated by use of the degree of

                                         -7-
skill and learning ordinarily used in the circumstances by members of the profession.
Counsel’s mere use of the word “negligence” during final argument, in a context
unrelated to the debate about whether plaintiff’s experts applied the proper standard
of care, did not provide the missing foundation to show that Blevens’s experts applied
the proper test of professional competence.

                                  *       *       *

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




                                         -8-
