#25772-rev & rem-DG 

2011 S.D. 58

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 

* * * * 

HONORABLE JON S. FLEMMER 

Judge 

* * * * 

THOMAS L. SANNES 

GORDON P. NIELSEN of 

Delaney, Vander Linden, 

 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. 

* * * * 

ARGUED ON MAY 25, 2011 

 OPINION FILED 09/14/11
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GILBERTSON, Chief Justice 

[¶1.] Lita St. John sued Dr. Linda Peterson alleging medical malpractice in 

repairing a vesicovaginal fistula. The jury entered a verdict for Dr. Peterson. St. 

John appeals, arguing that the trial court erred in excluding evidence of other cases 

where Dr. Peterson had failed to repair vesicovaginal fistulas. We reverse and 

remand. 

FACTS 

[¶2.] Dr. Peterson was treating St. John for stress incontinence and 

menstrual problems. In May 2006, Dr. Peterson performed a hysterectomy on St. 

John. The parties agree that the hysterectomy was medically necessary. Within 

two weeks of the hysterectomy, St. John began experiencing uncontrollable 

urination. On May 24, 2006, Dr. Peterson diagnosed St. John with a vesicovaginal 

fistula.1 A vesicovaginal fistula is “an abnormal fistulous tract extending between 

the bladder and the vagina that allows the continuous involuntary discharge of 

urine into the vaginal vault.” John Spurlock, Medscape Reference,

http://emedicine.medscape.com/article/267943-overview (last visited September 8, 

2011). 

[¶3.] On June 9, 2006, Dr. Peterson attempted to repair St. John’s fistula 

utilizing what she called a “Latzko” procedure. Her attempt failed and the leaking 

continued. Dr. Peterson again attempted to repair the fistula by way of a vaginal 

stitch on June 14 without utilizing any anesthetic. The attempt was not finished 

1. Whether Dr. Peterson caused the vesicovaginal fistula is not an issue on 

appeal. 
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because St. John could not tolerate the pain. On June 20, Dr. Peterson tried a 

vaginal stitch again, this time with an epidural. The stitch failed. Dr. Peterson’s 

fourth and final attempt to repair the fistula, again using the “Latzko” procedure, 

was made on July 13. It too failed. St. John’s fistula was eventually repaired by 

another physician using traditional techniques, not the “Latzko” procedure. 

[¶4.] St. John and three other women sued Dr. Peterson. They alleged that 

they were injured when Dr. Peterson performed hysterectomies that caused 

vesicovaginal fistulas. They further alleged that Dr. Peterson was negligent and 

her efforts to repair the fistula deviated from the standard of care. The trial court 

severed the claims after finding that there would be undue prejudice against Dr. 

Peterson if all four cases were presented to the jury at the same time. 

[¶5.] Before trial, Dr. Peterson made a motion in limine to prevent St. John 

from introducing testimony of evidence of prior claims or other lawsuits brought 

against her. The motion was granted by the trial court. After a three- day trial in 

November 2009, the jury was unable to reach a verdict. 

[¶6.] Another trial was scheduled for August 2010. Before this second trial, 

St. John’s counsel requested clarification of the trial court’s grant of the motion in 

limine from the first trial. St. John wanted to be able to question Dr. Peterson 

about her experience repairing vesicovaginal fistulas. The trial court again granted 

Dr. Peterson’s motion. By written order on August 16, 2010, the trial court ordered 

that “[St. John] is prohibited from offering any testimony or evidence concerning 

other lawsuits or claims brought against [Dr. Peterson] and the facts involved in 

those other lawsuits and claims. . . . [St. John] is prohibited from offering any 
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testimony or evidence regarding [Dr. Peterson’s] treatment of other patients for 

vesicovaginal fistulas.” 

[¶7.] At the pretrial hearing, St. John also asked the court if she would be 

allowed to ask Dr. Peterson: “Have you had problems with this procedure in the 

past? Yes or no.” The trial court prohibited this question because “whether or not 

there’s been problems in the past still doesn’t provide evidence of whether there was 

a problem in this case.” In doing so, St. John argues that the trial court improperly 

expanded Dr. Peterson’s motion in limine. 

[¶8.] At trial, St. John made an offer of proof of testimony by expert witness 

Dr. Arnold Wharton in which he discussed his review of some of the medical records 

for other patients treated by Dr. Peterson.2 Dr. Wharton testified that he had 

reviewed the records of the other three women who were co-plaintiffs with St. John 

before the cases were severed. He testified that all four women developed fistulas 

while under Dr. Peterson’s care within 18 months of each other. Dr. Peterson 

attempted to repair each woman’s fistula, but failed on all four. Dr. Wharton was 

asked, “in terms of her competency and 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 

2. There is some confusion in the record as to whether St. John was offering Dr. 

Wharton’s offer of proof from the first trial or a section of his deposition. 

They are similar, but his deposition is more specific. During the offer of proof 

from the first trial, Dr. Wharton could not remember if two of the four women 

had failed attempts to repair fistulas, but did testify that St. John and one 

other woman had repair attempts by Dr. Peterson fail. He did not offer an 

opinion or any context for this testimony. For our present purposes, we 

presume that the offer of proof was from the deposition testimony because it 

appears to be more specific. 
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give you an impression one way or the other as to whether she knows how to do 

that?” He responded, “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’s well-known throughout the United States.” 

[¶9.] The second trial was held in August 2010. The jury found in favor of 

Dr. Peterson. St. John raises one issue on appeal: 

Whether the trial court abused its discretion in precluding 

evidence regarding Dr. Peterson’s experience with similar 

medical procedures. 

STANDARD OF REVIEW 

[¶10.] “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.” Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10, 756 N.W.2d 345, 350 

(quoting Kaiser v. Univ. Physicians Clinic, 2006 S.D. 95, ¶ 29, 724 N.W.2d 186, 

194). “An evidentiary ruling will not be overturned unless error is demonstrated 

and shown to be prejudicial error.” Novak v. McEldowney, 2002 S.D. 162, ¶ 7, 655 

N.W.2d 909, 912 (quoting State v. Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d 344, 353). 

ANALYSIS 

[¶11.] Before the first trial, the trial court granted Dr. Peterson’s motion to 

sever. The trial court found that: 1) “[t]he four cases involve different medical 

diagnoses and issues”; 2) “[t]here has been no showing that the testimony of each of 

the Plaintiffs would be admissible at the trials of the other Plaintiffs”; and, 3) 

“judicial economy which might be promoted by a joint trial is outweighed by the 
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potential prejudice that would be suffered by [Dr. Peterson] should the four cases be 

tried together.” Before the second trial, in granting Dr. Peterson’s motion to exclude 

evidence or testimony concerning other lawsuits or claims brought against Dr. 

Peterson, the trial court stated that it had severed the trials to avoid the possibility 

of testimony from one case affecting the other cases: 

[T]he [c]ourt first addressed this issue of the four pending cases 

when the Motion to Sever was brought and the [c]ourt did grant 

that motion because of concern . . . that there would be undue 

prejudice against [Dr. Peterson] in presenting all four cases to 

the jury at the same time. . . . The issue is whether or not Dr. 

Peterson committed malpractice as concerns Lita St. John. And 

whether or not there are other claims of malpractice from other 

patients isn’t necessarily probative of what happened or didn’t 

happen in this case. . . . [W]hile there may be some relevancy in 

other procedures conducted by Dr. Peterson, that doesn’t appear 

to the court that there is sufficient relevancy to outweigh the 

prejudice that would be caused. [I]t would appear that allowing 

[St. John] to inquire of other patients or actions taken with 

other patients . . . is simply going to lead back to the same issue 

that the [c]ourt intended to avoid by severing the trials initially. 

. . . It does leave open the possibility for some evidence to be 

introduced as impeachment evidence [i]f the [c]ourt’s approval is 

granted. . . . But as to the other patients who are involved in 

lawsuits at this time, the court doesn’t believe that there is -- 

sufficient relevancy to overcome the prejudice that would be 

caused by the introduction of that evidence. 

In its written order before the first trial, the trial court stated that: “[s]hould [St. 

John] seek to present any evidence regarding other claims against [Dr. Peterson] as 

impeachment evidence, [St. John’s] counsel is instructed to bring the matter before 

the [c]ourt prior to offering any such evidence.” This written order was referenced 

and clarified before the first trial. 

[¶12.] “For evidence to be admitted during trial, it first must be found to be 

relevant. Once the evidence is found to be relevant, it is admissible unless it is 
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specifically excluded.” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 

30, 764 N.W.2d 474, 484. “‘Relevance’ and ‘admissibility’ are separate concepts.” 

Id. ¶ 43, 764 N.W.2d at 487. We analyze each in turn. 

Relevance 

[¶13.] Relevance is defined by SDCL 19-12-1 (Rule 401). “‘Relevant evidence’ 

means 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). As we have previously 

noted, “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)). 

[¶14.] It is unclear from the record whether the trial court found St. John’s 

proffered evidence relevant. On relevancy, the trial court only said that it did not 

appear that there was “sufficient relevancy” to overcome or outweigh the prejudice 

that would be caused. At trial, expert testimony indicated that vesicovaginal 

fistulas are a known complication of hysterectomies. We have previously stated 

that “the ‘relevance’ of evidence must be determined before considering whether or 

not evidence is ‘admissible.’” Id. ¶ 43, 764 N.W.2d at 487. On remand, the court 

must determine whether the proffered evidence was relevant before considering 
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whether it is admissible. To provide further guidance upon re-trial, we address the 

issue of admissibility. 

Admissibility 

[¶15.] “After the relevance of evidence is determined, [SDCL 19-12-2 (Rule 

402)] applies the concept of ‘admissibility’ to that determination.” Id. ¶ 44. “All 

relevant evidence is admissible, except as otherwise provided by . . . statute . . . . 

Evidence which is not relevant is not admissible.” SDCL 19-12-2. Other rules, “as 

otherwise provided,” further condition the admissibility of relevant evidence. 

Supreme Pork, 2009 S.D. 20, ¶ 44, 764 N.W.2d at 487 (citing Rules 403, 404(a), and 

404(b)). On appeal, St. John limits her discussion on admissibility to Rule 403. 

[¶16.] Under SDCL 19-12-3 (Rule 403), relevant evidence “may be excluded if 

its probative value is substantially outweighed by the danger of unfair prejudice. . . 

.” As we have previously stated, “Rule 403 is not simply a ‘more than, less than’ 

comparison; the test is whether the probative value is substantially outweighed by 

the danger of unfair prejudice.” Supreme Pork, 2009 S.D. 20, ¶ 55, 764 N.W.2d at 

490. “To cause unfair prejudice, the evidence must persuade the jury in an unfair 

and illegitimate way.” Novak, 2002 S.D. 162, ¶ 11, 655 N.W.2d at 913. Once the 

evidence is found relevant, the balance tips in favor of admission. Supreme Pork, 

2009 S.D. 20, ¶ 55, 764 N.W.2d at 490. “The party objecting to the admission of 

evidence has the burden of establishing that the trial concerns expressed in Rule 

403 substantially outweigh probative value.” Id. ¶ 56 (emphasis omitted) (quoting 

State v. Mattson, 2005 S.D. 71, ¶ 20, 698 N.W.2d 538, 546). In this case, the burden 

was on Dr. Peterson at the trial court level. However, on appeal St. John has the 
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burden to demonstrate that the trial court abused its discretion in making this 

ruling. 

[¶17.] In ruling on this motion, the trial court stated that “it doesn’t believe 

that there is - - sufficient relevancy to overcome the prejudice that would be caused 

by the introduction of that evidence.” The trial court improperly stated the 

language of the rule. From this record, it is unclear whether the court not only 

misstated the rule, but also misapplied the rule. It should have examined whether 

the probative value of the evidence was substantially outweighed by the danger of 

unfair prejudice to Dr. Peterson. Such a balancing was not conducted on the record 

in this case. 

[¶18.] We have repeatedly stated that a 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.” Kostel v. Schwartz, 2008 S.D. 85, ¶ 

12, 756 N.W.2d 363, 370 (quoting Kaiser, 2006 S.D. 95, ¶ 29, 724 N.W.2d at 194). 

“An abuse of discretion can simply be an error of law or it might denote a discretion 

exercised to an unjustified purpose, against reason and evidence.” Stahl v. 

Pollman, 2006 S.D. 51, ¶ 9, 716 N.W.2d 794, 796 (quoting Hendrickson v. Wagners, 

Inc., 1999 S.D. 74, ¶ 14, 598 N.W.2d 507, 510). In this case, the trial court 

misstated and apparently misapplied the balancing test of Rule 403. It is possible 

that the exclusion of the evidence “in all probability affected the outcome of the 

jury’s verdict and thereby constitutes prejudicial error.” Mousseau, 2008 S.D. 86, ¶ 

41, 756 N.W.2d at 363. 
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CONCLUSION 

[¶19.] A balancing of whether the probative value of the evidence was 

substantially outweighed by the danger of unfair prejudice could exclude St. John’s 

evidence. Applying the abuse of discretion standard of review, it appears that the 

trial court committed a “fundamental error of judgment, a choice outside the range 

of permissible choices, a decision, which, on full consideration, is arbitrary or 

unreasonable.” Supreme Pork, 2009 S.D. 20, ¶ 57, 764 N.W.2d at 490. We reverse 

and remand. 

[¶20.] KONENKAMP, ZINTER and SEVERSON, Justices, and 

MEIERHENRY, Retired Justice, concur. 

[¶21.] WILBUR, Justice, not having been a member of the Court at the time 

this action was submitted to the Court, did not participate.