In the 

Missouri Court of Appeals 

Western District

NICHOLAS LINTON, BY AND 

THROUGH HIS MOTHER AND 

NEXT FRIEND, ARICA LINTON,

Appellants,

v.

AMY S. CARTER, D.O. AND FERNS, 

MATILE, PERRYMAN & MOORE, 

ET AL.,

Respondents.

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WD82637

OPINION FILED: 

November 10, 2020

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Bryan Round, Judge

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and 

Gary D. Witt, Judge

Nicholas Linton1("Nicholas") appeals from the judgment of the Circuit Court of 

Jackson County ("trial court"), which following a jury trial found in favor of Respondents 

Dr. Amy Carter, ("Dr. Carter"); Dr. Scott Gray, ("Dr. Gray"); Ferns, Matile, Perryman, and 

Moore ("Ferns"); and Saint Luke's Hospital of Kansas City ("St. Luke's") (collectively 

 

1 Because Nicholas Linton and Arica Linton (collectively "Lintons") share a last name, we refer to the 

Lintons individually by their first names for purposes of clarity. No familiarity or disrespect is intended. Arica is 

Nicholas's mother, and Arica brought this action on Nicholas's behalf in her capacity as next friend.
2

"Respondents"). This appeal addresses the application of section 490.065.2 and

evidentiary rules regarding the admissibility of expert witness testimony to different parties 

based upon which party bore the burden of proof on an issue. The statutory requirements 

and evidentiary rules are the same for all parties, and the trial court's conclusion otherwise 

was an outcome determinative error in this case. We reverse and remand for a new trial.

Factual and Procedural Background2

On April 7, 2008, Arica Linton was 29.5 weeks pregnant with Nicholas and 

presented to St. Luke's in pre-term labor. Dr. Carter3 was the obstetrician/gynecologist on 

call at St. Luke's who treated Arica and Nicholas. Dr. Carter attempted to stop Arica's 

labor and administered steroids to encourage Nicholas's lung development. Dr. Carter also 

consulted with Dr. Gray, a Maternal Fetal Medicine Specialist who treats high risk 

obstetrical issues, who performed a growth ultrasound. Dr. Gray concluded that Nicholas 

was in a breeched position and had a funic presentation.

4 Dr. Gray recommended that 

Nicholas be delivered as soon as possible, and relying on that recommendation, Dr. Carter 

began to prepare for a Cesarean section.

St. Luke's has three procedure rooms available for Cesarean sections, and their 

practice is to leave one procedure room open for emergencies. When Dr. Carter called 

Labor and Delivery, two of the rooms were being used for non-emergency Cesarean 

sections, and Dr. Carter could not use the third room unless she declared Arica and 

 

2

"The pertinent facts are viewed in the light most favorable to the jury's verdict." Hayes v. Price, 313 

S.W.3d 645, 648 (Mo. banc 2010).

3 Dr. Carter practiced with Ferns, a professional corporation, and Dr. Carter was working within the scope 

and course of her employment at the relevant time period.

4

In a funic presentation, the umbilical cord is between the fetus and the opening of the cervix. 
3

Nicholas's situation an emergency. While waiting for a non-emergent procedure room, 

Arica's membranes containing amniotic fluid ruptured and compressed the umbilical cord, 

and at that point, Dr. Carter transferred her to a procedure room and performed an 

emergency Cesarean section. At the time of birth, Nicholas was "dusky" (bluish in color) 

with little respiratory effort and a weak cry. Nicholas was resuscitated and intubated. 

Nicholas was admitted to the neonatal intensive care unit ("NICU") with a diagnosis of 

prematurity and respiratory distress.

During the Caesarean section, Nicholas sustained a laceration to his upper thigh, 

which was treated by a subsequent surgery, and during this surgery, Nicholas experienced 

an episode of low blood pressure and difficulty breathing, which resulted in abnormally 

low blood gas readings. Approximately one year later, Nicholas was confirmed to have 

suffered a brain injury called Periventricular Leukomalacia ("PVL"), which caused spastic 

diplegia, which impacts his ability to move his lower and upper extremities.

On August 9, 2016, the Lintons filed an amended petition alleging that Respondents 

failed to: (1) timely and adequately examine, diagnose, and treat the Lintons, (2) timely 

deliver Nicholas, (3) timely perform a Cesarean section, (4) protect the baby from the 

umbilical cord compression, and (5) diagnose and treat fetal distress. A jury trial was held 

from October 29, 2018, through November 9, 2018.

The issue raised in this appeal is directed at the testimony of Dr. William Rhine

("Dr. Rhine") who testified as an expert on behalf of Respondents. Dr. Rhine is a

neonatologist. Of significance, Dr. Rhine was the only neonatology expert witness who 

testified at trial. 
4

The Lintons deposed Dr. Rhine on June 20, 2017, and Dr. Rhine's relevant 

deposition testimony was as follows:

[Lintons' Counsel]: Do you have an opinion based upon a reasonable degree 

of medical certainty as to whether Nicholas Linton suffered [PVL] or injury 

to the white matter of his brain before birth?

[Dr. Rhine]: No.

Q. Do you have an opinion based upon a reasonable degree of medical 

certainty as to whether he suffered injury. Suffered [PVL] or injury to the 

white matter in his brain after the birth?

A. No. I know it's one of the two. I know it's one of the two, either before 

or after or a combination.

Q. Do you have an opinion that you can state to a reasonable degree of 

medical certainty whether it is before or after or a combination?

A. Nope.

Based on this deposition testimony, the Lintons filed a motion in limine to preclude Dr. 

Rhine's "alternative causation" testimony on the grounds that his opinions were not stated 

to a reasonable degree of medical certainty. 

The trial court held a pretrial hearing on all of the parties' various motions in limine. 

At the hearing, Respondents argued that Dr. Rhine's opinion would be that Nicholas's PVL 

injury was caused prenatal, post-natal or a combination of both but could not say to a 

reasonable degree of medical certainty which one was the actual cause. Respondents 

argued that an expert should be allowed to testify as to "alternate causes" of the injury 

without providing an opinion within a reasonable degree of medical certainty as to which 

one was the actual cause. Upon questioning by the trial court, the Respondents conceded
5

that they had no authority to support this argument. The trial court granted the Respondents 

additional time to brief the legal issue. 

Respondents filed a trial brief arguing for the first time that because they did not 

bear the burden of proof on the issue of causation that their expert was not "governed by 

the same rule" as an expert of the party with the burden of proof on a particular issue. 

Subsequently, on the morning of the first day of trial, the trial court conducted an 

additional hearing on the issue of Dr. Rhine's causation testimony. The Lintons made clear 

that they were not objecting to Dr. Rhine's testimony that to a reasonable degree of medical 

certainty it was his opinion that the events that happened from the time of the rupture of 

membranes of the umbilical cord until the time of birth were not the cause of Nicholas's

PVL injury. The Lintons' objection was to the additional testimony from Dr. Rhine that 

the "alternative cause" of the PVL injury may have been caused by (1) other specific events

which occurred prenatal, (2) that the cause may have been other specific events which 

occurred post-natal, or (3) that the cause may have been a combination of the two. 

The trial court did not formally rule on the Lintons' motion in limine at the 

conclusion of the hearing other than stating on the record:

All right, I think that is inappropriate to let it in. It's going to be subject of 

extensive cross examination, so I would caution- well, you make your

objections as you need to make your objections, but I just want everybody to 

be aware that the plaintiff will be given great latitude in the cross examination 

they are allowed to do with Doctor Rhine before as we would expect.[5]

 

5

It is unclear what the trial court meant by first indicating it would be "inappropriate to let it in" but then 

going on to indicate that the parties should make their objections and plaintiff would be granted wide latitude with 

the cross-examination of the expert. It appears that the trial court denied the motion in limine but indicated the issue 

would be addressed by objections to the testimony during the trial. 
6

During the testimony of Dr. Rhine, the Lintons renewed their objection to Dr. 

Rhine's alternative causation testimony incorporating into the objection all of the previous 

arguments raised in their Motion in limine, and the trial court overruled the objection. Dr. 

Rhine was then allowed to testify, over objection, as to "what could be" the source of 

Nicholas's injuries. When asked about other possible sources of his injuries, Dr. Rhine 

stated, "So I wish I could tell you with certainty that I knew exactly where his white matter 

injury comes from, but I can't and I don't think anybody can." He then went on, over 

objection, to opine that he could not say with a reasonable degree of medical certainty the 

cause of the PVL injury to Nicholas's brain but speculated as to other possible causes. He 

stated that placental abnormalities were one source of the kind of injury at issue. Dr. Rhine 

testified that he could not say with a reasonable degree of medical certainty that an episode 

of low blood pressure during the subsequent surgery on his leg caused the PVL injury in

Nicholas – but low blood pressure is associated with the possibility of an increased risk of 

a PVL injury and the longer the low blood pressure lasted the more worrisome. He 

discussed the importance of Nicholas having a low carbon dioxide reading because this

was a known risk factor for a PVL injury. Dr. Rhine testified: "[G]eneral anesthesia has 

an impact on term babies, [it] may on preterm babies. Can I say that that one factor, no, 

but I know that's an unusual thing that happened in his course that would put him at an 

increased risk." (emphasis added).

In closing argument, the Respondents focused almost exclusively on the issue of 

causation and emphasized that Dr. Rhine was the only neonatologist who had testified for 
7

any party in the case and focused the jury on his testimony regarding "alternative possible 

causes" of the PVL injury. 

The jury returned a verdict in favor of the Respondents and the trial court entered 

Judgment accordingly. This timely appeal followed.

Standard of Review

Expert witness testimony is inadmissible if the offering party fails to satisfy the 

statute's foundational requirements. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 

145, 173 (Mo. App. W.D. 2006) (overruled on other grounds by Badahman v. Catering St. 

Louis, 395 S.W.3d 29, 40 (Mo. banc 2013)). The question of whether the foundational 

requirements of the statute have been met is a legal issue that we review de novo. Id. Once 

it is determined that the foundational requirements have been met, it is still within the trial 

court's discretion to admit or deny the admission of the expert's opinions. Id. "This Court 

reviews a circuit court's decision to admit or exclude expert testimony for an abuse of 

discretion." Spalding v. Stewart Title Guar. Co., 463 S.W.3d 770, 778 (Mo. banc 2015). 

"A circuit court abuses its discretion when its 'ruling is clearly against the logic of the 

circumstances then before the court and is so unreasonable and arbitrary that it shocks the 

sense of justice and indicates a lack of careful, deliberate consideration.'" Shallow v. 

Follwell, 554 S.W.3d 878, 881 (Mo. banc 2018) (quoting Lozano v. BNSF Ry. Co., 421 

S.W.3d 448, 451 (Mo. banc 2014)). We will "not reverse a circuit court's judgment unless 

the error materially affected the merits of the action." Id. 
8

Discussion

In his sole point relied on, Nicholas alleges that the trial court erred in admitting Dr. 

Rhine's alternative causation testimony because Dr. Rhine's testimony was not given to a 

reasonable degree of medical certainty in that Dr. Rhine was allowed to inform the jury of 

possible causes of Nicholas's brain injury thereby causing a substantial prejudice to the 

Lintons and leading to improper evidence in support of the verdict for Respondents.

The admission of expert testimony is governed by section 490.065. McGuire v. 

Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004). Section 490.065.26 provides:

(1) A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if:

(a) The expert's scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of 

the case[.]

"Failure to satisfy [the statute's] foundation requirements renders proffered expert witness 

testimony inadmissible." Scott, 215 S.W.3d at 173. 

When expert testimony concerns medical issues, "[e]xpert witnesses must provide 

testimony within a reasonable degree of medical certainty to support causation." Payne v. 

 

6 All statutory references are to the Revised Statutes of Missouri (2016) as currently updated unless 

otherwise noted. 

Section 490.065.2 was amended effective August 28, 2017 and models the Federal Rules of Evidence, 

Rules 702 through 705. Jones v. City of Kan. City, 569 S.W.3d 42, 53 (Mo. App. W.D. 2019) (overruled on other 

grounds by Wilson v. City of Kan. City, 598 S.W.3d 888 (Mo. banc 2020)).
9

Fiesta Corp., 543 S.W.3d 109, 119 (Mo. App. E.D. 2018) (citing Edgerton v. Morrison, 

280 S.W.3d 62, 69 (Mo. banc 2009)). The standard is necessary because "where there is a 

sophisticated injury, requiring surgical intervention or other highly scientific technique for 

diagnosis, proof of causation is not within a lay person's understanding." Love v. Waring, 

560 S.W.3d 614, 619 (Mo. App. W.D. 2018) (internal quotation omitted). Expert 

testimony which does not indicate that the expressed opinion is within a reasonable degree 

of medical certainty is legally irrelevant because it necessarily lacks sufficient facts or data 

to reach a reliable conclusion. Wagner v. Piehler, 879 S.W.2d 789, 792 (Mo. App. W.D. 

1994). Admitting this evidence is likely to mislead the jury or confuse the issues. See 

Glaize Creek Sewer Dist. Of Jefferson Cty. v. Gorham, 335 S.W.3d 590, 595 (Mo. App. 

E.D. 2011) (holding that admission of expert testimony not stated to a reasonable degree 

of certainty was devoid of evidentiary value and misled the jury); see also Adkins v. Hontz, 

337 S.W.3d 711, 720 (Mo. App. W.D. 2011) (abrogated on other grounds) (finding that 

expert witness did not base her opinions on the type of data reasonably relied upon by 

experts in her field and admitting her opinion had potential to confuse or mislead the jury).

"When an expert merely testifies that a given action or failure to act 'might' or 'could have'

yielded a given result, though other causes are possible, such testimony is devoid of 

evidentiary value." Tompkins v. Cervantes, 917 S.W.2d 186, 189 (Mo. App. E.D. 1996)

(citing Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. App. E.D. 1965); Shackelford v. 

W. Cent. Elec. Co-op, Inc., 674 S.W.2d 58, 62-63 (Mo. App. W.D. 1984); Hunt v. Armour 

& Co., 136 S.W.2d 312, 315-16 (Mo. 1939)). While the exact phraseology of "reasonable 

degree of certainty" may not be necessary, "language that is equivocal will not rise to the 
10

level necessary for consideration of the evidence by the trier of fact." Thompson v. Brown 

& Williamson Tobacco Corp., 207 S.W.3d 76, 109 (Mo. App. W.D. 2006)(internal 

citations omitted).

Respondents contend that because the Lintons had the burden of proof to establish 

causation the Lintons alone had to present expert testimony within a reasonable degree of 

medical certainty as to that issue, but that Respondents were not bound by the statute or 

the same rules of evidence regarding the admissibility for expert witness testimony in their 

defense. Respondents point out that every case cited by the Lintons in regard to the 

foundational requirements for expert testimony were focused on the expert testimony of 

the party with the burden of proof on the given issue. However, Respondents fail to point 

to a single case which has held that the statute or the rules of evidence are to be applied

differently based on which party bears the burden of proof. That is because, quite simply, 

they do not. 

The rules of evidence are applicable to all parties in a civil action regardless of the 

parties' burden of proof on a given issue. Nothing in section 490.065 draws any distinction 

or sets forth a different standard for the admissibility of expert testimony based on the 

applicable burden of proof. Dr. Rhine clearly stated in his deposition that he did not have 

an opinion based upon a reasonable degree of medical certainty as to the cause of or when 

Nicholas suffered the PVL injury. At trial, Dr. Rhine testified before the jury, "So I wish 

I could tell you with certainty that I knew exactly where his white matter injury comes 

from, but I can't and I don't think anybody can." He then went on, over objection, to opine 

that he could not say with a reasonable degree of medical certainty the cause of the PVL
11

injury to Nicholas's brain but speculated as to other possible causes. Therefore, this 

causation testimony violated the statute, lacked foundation, and the testimony was

therefore irrelevant, inadmissible, confused the jury, and the trial court erred as a matter of 

law in allowing Dr. Rhine's opinions regarding "alternate causes" of the injury into 

evidence.

The dissent asserts that we are bound by Lands v. Boyster, 417 S.W.2d 942, 944

(Mo. 1967), where a pregnant passenger went into premature labor following a car 

accident, and her child died several hours after its premature delivery. Diss. Op. at 5-8. 

During a trial for negligence, the driver asserted that the premature delivery resulting in the 

child's death may have been caused by the mother's pre-existing hypo-pituitary condition. 

Lands, 417 at 944. Our Supreme Court held that:

It was not improper, therefore, for [the driver] to ask his expert witness if a 

condition, assumed from other evidence, might, could or would produce a 

certain result, because an expert's view of possibility or probability is often 

helpful to the jury and proper even though such assurance of possibility 

would not of itself be sufficient to make a submissible case for one having 

the burden of proof.

Id. at 946. (emphasis added). However, Lands is readily distinguishable from the instant 

case because it significantly predates the legislature's adoption of 490.065 governing the 

standards for the admission of expert testimony. In addition, Lands sounded in general 

negligence rather than medical negligence, which are two separate and distinct causes of 

action. See Brown v. Bailey, 210 S.W.3d 397, 404 (Mo. App. E.D. 2006) ("A plaintiff can 

pursue a negligence cause of action against a defendant-physician in two ways: (1) a claim 

based on medical negligence, also referred to as 'medical malpractice,' and/or (2) a claim 
12

based on general negligence."). Furthermore, cases of general negligence and medical 

negligence have different definitions in the model jury instructions. In cases of medical 

negligence, the term "negligence" is defined as "the failure to use that degree of skill and 

learning ordinarily used under the same or similar circumstances by the members of 

defendant's profession." M.A.I. 11.06. In cases of general negligence, the term 

"negligence" is defined as "the failure to use that degree of care that an ordinarily careful 

person would use under the same or similar circumstances." M.A.I. 11.05. For these 

reasons, we are not bound by Lands.

7

"Where an expert's testimony is mere conjecture and speculation, it does not 

constitute substantive, probative evidence on which a jury could find ultimate facts and 

liability." Mueller v. Bauer, 54 S.W.3d 652, 657 (Mo. App. E.D. 2001). In Mueller, a 

medical expert in a medical malpractice lawsuit "testified in his deposition that he felt that 

a patient died because his heart stopped beating due to profound bradycardia, [but the 

expert] did not have the requisite degree of certainty about the cause of death because he 

admitted that he could not say with reasonable probability what caused patient's death[.]" 

Id. at 655. The expert further testified that there were three potential causes of death, and 

"it would be speculative to assign either cause of death in this case." Id. The Eastern 

District of this Court concluded that "[w]hen a party relies on expert testimony to provide 

evidence of causation when there are two or more possible causes, that testimony must be 

 

7 Similarly, the dissent relies on Roberts v. Missouri Highway and Transportation Commission, 222 S.W.3d 

222 (Mo. App. S.D. 2007), which applied the holding in Lands to a worker's compensation claim that arose from a 

traffic accident. Diss. Op. at 7. Roberts is also distinguishable because it is not a medical negligence case.
13

given to a reasonable degree of medical certainty." Id. at 657. (citing Baker v. Guzon, 950 

S.W.2d 635, 646 (Mo. App. E.D. 1997)).

The dissent further relies on Wilder v. Eberhart, 977 F.2d 673, 676 (1st Cir. 1992), 

where the court applying New Hampshire law held that "a defendant may produce other 

'possible' causes of the plaintiff's injury. These other possible causes need not be proved 

with certainty or more probably than not." Diss. Op. at 10-11. However, Wilder is not 

binding on this Court, and is in contravention to the Eastern District of this Court's holding 

in Mueller. We do not find Wilder persuasive because it establishes two different standards 

for a single rule of evidence—one for plaintiffs and one for defendants.8 The rules of 

evidence must apply equally to all parties in a suit, to hold otherwise would violate the

bedrock principles of fundamental fairness in our judicial system. Therefore, the circuit 

court erred in admitting Dr. Rhine's testimony because his opinions were not provided

within a degree of medical certainty as required by our rules of evidence, and in doing so 

gave an unfair advantage to the Respondents.

However, the improper admission of expert testimony does not end our analysis. 

The error must also be prejudicial. See Shallow, 554 S.W.3d at 881 (holding that erroneous 

admission of expert testimony will not be reversed "unless the error materially affected the 

merits of the action."). "A determination of prejudice by the erroneous admission of 

evidence depends largely upon the facts and circumstances of the particular case." 

McGuire, 138 S.W.3d at 722. "The appropriate question is whether the erroneously 

 

8 The dissent also relies on a string of cases that relied on the rationale set forth in Wilder, and we similarly 

do not find them persuasive. Diss. Op. at 11-12.
14

admitted evidence had any reasonable tendency to influence the verdict of the jury." Id.

(citing Chester v. Shockley, 304 S.W.2d 831, 835 (Mo. 1957)). 

In the instant case, the Lintons alleged and produced evidence that Nicholas suffered 

a hypoxic-ischemic event causing permanent injury to his brain at or near the time of his 

birth as a result of Respondents negligence. The Respondents rebutted this evidence 

largely through the testimony of Dr. Rhine. Dr. Rhine testified that various factors 

"associated with the possibility of an increased risk" (emphasis added) and "timeframes 

when a baby goes through the physiological abnormalities that it could have this injury."

(emphasis added). Further, when Dr. Rhine was asked "What are the other sources [of] 

this injury in Nicholas Linton?," Dr. Rhine testified:

So I wish I could tell you with certainty that I knew exactly where this white 

matter injury comes from, but I can't and I don't think anybody can. We have 

learned more over the years about this [problem] but there are still some 

questions that are unanswered.

After stating that the causes of the PVL injury in Nicholas were unknown, Dr. Rhine was 

allowed to continue by identifying possible causes including placental abnormalities

during gestation, low blood pressure, general anesthetic, and "periods where the carbon 

dioxide level is actually below a bit." Dr. Rhine also opined that Nicholas could have

sustained PVL during Nicholas's post-natal surgery. Because Dr. Rhine's opinions were 

not stated to a reasonable degree of medical certainty, they were irrelevant and speculative 

and therefore were of no value to the jury charged with finding ultimate facts and 

determining liability. For the same reason that expert testimony is allowed into evidence, 

because it assists the lay juror in understanding difficult scientific or medical concepts that 
15

a juror probably will not understand absent this testimony, when expert testimony is 

improperly admitted it is more likely to result in prejudice because it tends to mislead the 

jurors regarding difficult scientific or medical concepts. We conclude such prejudice exists 

here.

Furthermore, Respondents highlighted and focused on Dr. Rhine's testimony during 

closing arguments pointing to the fact he was the sole neonatologist to testify during the 

trial and argued the jury should rely on his testimony during their deliberations 

exacerbating the prejudice of the improperly admitted evidence. Other defense experts 

testified as to contradictory causes of Nicholas's injury. Dr. Marvin Nelson opined that 

Nicholas's injury was not caused by hypoxia but was instead caused by an abnormal 

placenta during the pregnancy. Dr. Michael Ross, while stating that his testimony was 

limited to the standard of care rather than causation, opined that the PVL injury was caused 

by inflammation and extreme prematurity. Dr. Paul Levisohn attributed Nicholas's injury 

to a placental abnormality or a maternal infection, but he acknowledged he had no basis 

for interpreting placental pathology. Dr. David Swartz opined that the placenta did not 

provide adequate oxygen during gestation and this was the cause rather than the 

compression of the umbilical cord at the time of birth. Respondents sought to mitigate this 

conflicting testimony through Dr. Rhine's testimony that no one would be capable of 

identifying the cause of Nicholas's PVL injury but testified, without referring to other 

expert's testimony, that all of the aforementioned causes were possible causes of Nicholas's

PVL injury. Further, Dr. Rhine was allowed to opine that the PVL injury could have also

occurred during Nicholas's post-natal surgery. Because all of the defense experts opined 
16

that the injury would have occurred before birth (placental abnormality, maternal infection, 

in utero inflammation), Dr. Rhine's testimony that Nicholas's injury could have occurred 

before birth, after birth, or from a combination of the two was the only testimony that 

addressed Dr. Rhine's conflicting and inadmissible opinions as to causation, particularly 

the post-birth surgery as a potential cause.

Because Dr. Rhine's testimony regarding alternative causation was not stated within 

a reasonable degree of medical certainty, the trial court erred in admitting it into evidence. 

Because Dr. Rhine's testimony was central to the Respondent's negation of the causation 

element and extensively highlighted by the Respondents during closing arguments as the 

only neonatologist placing his opinions on a pedestal, it materially affected the outcome of 

the trial resulting in prejudice.

9

Conclusion

We reverse and remand for a new trial.

__________________________________

Gary D. Witt, Judge

Ahuja, Judge, dissents in separate opinion

Pfeiffer, Presiding Judge, joins in the majority opinion

 

9 The Respondents also argue, for the first time on appeal that because the jury found that Respondents 

were not negligent through a converse jury instruction, that the Lintons did not meet their burden of proof even if 

Dr. Rhine's testimony was not considered by the jury. Respondents argue that the Lintons bore the burden of proof 

to establish that: "(1) an act or omission of [Respondents] failed to meet the requisite medical standard of care; (2) 

the act or omission was performed negligently; and (3) the act or omission caused the plaintiff's injury." Edgerton, 

280 S.W.3d at 68. However, the jury instructions and verdict directors were not included in the Appellant's Legal 

File. Rule 81.12(e) provides that "[i]f a respondent is dissatisfied with appellant's record on appeal, that respondent 

may file without leave of court within the time allowed for filing respondent's brief such additional parts of the 

record on appeal as respondent considers necessary." We presume that omitted portions of the record are 

unfavorable to the party who relies on the omitted record. See State v. Richter, 504 S.W.3d 205, 208 n. 3 (Mo. App. 

W.D. 2016). Therefore, because this argument was never presented to the trial court and because we were not 

provided the necessary documents in the record on appeal to properly review this issue, we decline to further address 

this argument.
IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

NICHOLAS LINTON, by and 

through his Mother and Next 

Friend, ARICA LINTON,

Appellants,

v.

AMY S. CARTER, D.O., and 

FERNS, MATILE, PERRYMAN & 

MOORE, et al.,

Respondents.

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WD82637

FILED: November 10, 2020

DISSENTING OPINION

The majority reverses a judgment entered after a two-week jury trial, based 

on its conclusion that part of the testimony of one of the Respondents’ seven expert 

witnesses was speculative, and therefore improperly admitted.

I respectfully dissent. Dr. William Rhine testified, to a reasonable degree of 

medical certainty, that Nicholas Linton’s brain injury was caused by specific 

circumstances which Dr. Rhine identified, acting alone or in combination. This 

testimony was not “mere conjecture and speculation,” as the majority contends. 

Maj. Op. at 12. The Lintons’ counsel acknowledged at argument that it was 

permissible for a defense expert to testify to multiple potential causes of a plaintiff’s 

injury, so long as the expert testified to a reasonable degree of medical certainty 

that those factors, in some combination, caused the injury. Dr. Rhine did just that. 

Numerous Missouri cases, including at least two decisions of the Missouri 

Supreme Court which we are bound to follow, have endorsed similar “possible 
2

cause” testimony – whether presented by a plaintiff or by a defendant. Caselaw 

from other jurisdictions likewise authorizes testimony like Dr. Rhine’s, to rebut a 

medical-malpractice plaintiff’s causation evidence. The majority opinion would 

apparently be the first, and only, appellate decision in the United States to reverse 

a jury verdict based on the admission of defense expert testimony like Dr. Rhine’s.

Even if the admission of Dr. Rhine’s alternative-cause testimony was 

erroneous, it would not justify reversal. The Linton’s object to only a small portion 

of Dr. Rhine’s testimony – and he was just one of five defense experts testifying to 

the causation of Nicholas’ brain injury. Another defense expert offered virtually 

identical alternative-causation testimony, to which the Lintons did not object. 

Despite the majority’s characterizations, Dr. Rhine’s challenged testimony was not 

“central to,” or “extensively highlighted by,” the Respondents’ closing arguments –

to the contrary, it was barely mentioned in the Respondents’ lengthy closings.

I.

The Lintons do not challenge the bulk of Dr. Rhine’s testimony. The main 

purpose of his testimony was to dispute the Lintons’ theory that Nicholas’ brain 

injury was caused by oxygen-deprivation (hypoxia) resulting from compression of 

the umbilical cord during the eighteen minutes between when the amniotic sac 

ruptured, and Nicholas’ delivery by Caesarean section. At the outset of his 

testimony, counsel requested that Dr. Rhine “confine [his] opinions to those that 

will be expressed with a reasonable medical certainty,” and he agreed to do so. Tr. 

1385:1-5.

Dr. Rhine testified in detail as to why he rejected the Lintons’ causation 

theory. Thus, he testified that Nicholas’ “dusky” (or blue) skin color at birth, and 

his limited respiratory effort, were not signs that he had experienced a brain injury 

during delivery. Instead, Dr. Rhine explained that Nicholas’ early breathing 

difficulties and appearance were typical of a newborn in his circumstances, who: 
3

was significantly premature; was not given a full course of steroids prior to birth to 

accelerate his lung development; and whose mother was given general anesthesia 

and magnesium. Tr. 1390:16-1391:17. The fact that Nicholas’ breathing recovered 

reasonably quickly after he was born also indicated to Dr. Rhine that Nicholas had 

not suffered a serious, recent brain injury. Tr. 1391:19-1392:9. Dr. Rhine found 

confirmation that Nicholas had not suffered “a recent profound insult that has left 

him with permanent brain damage” in the admission note from the neonatal 

intensive care unit, which indicated that he was “responsive and he has normal tone 

and activity for this gestation”; Dr. Rhine testified that babies who have just 

suffered significant brain injury “take[ ] days . . . to look normal,” and that some 

“never fully recover.” Tr. 1396:16-21, 1397:12-13.

Although the Lintons’ experts believed that Nicholas’ Apgar scores were 

significant indicators of a birth-related brain injury, Dr. Rhine testified that Apgar 

scores assigned shortly after birth do not identify long-term disability. Tr. 1403:8-

13. In any event, he opined that Nicholas’ scores were “fairly typical, especially 

under the circumstances of an emergent C-Section and mom getting magnesium.” 

Tr. 1403:18-20. 

Dr. Rhine testified that, while some of Nicholas’ first post-birth blood-gas 

results were “concerning” and “notable,” they were not problematic given that he 

was moving and responsive, and given that the readings improved an hour later. 

Tr. 1412:16-1413:7, 1415:8-11. If Nicholas had suffered “a profound insult in the 

minutes before birth, an intrapartum asphyxial event,” his blood gasses would have 

taken several hours, or longer, to return to a normal range. Tr. 1416:3-9. Dr. Rhine 

considered the progression of blood gas results to be “one more strong piece of 

evidence that he did not have significant compromise i[n] that short time before 

birth that would be associated with brain injury.” Tr. 1417:16-21.
4

Dr. Rhine also found it significant that, although Nicholas was under close 

observation in the neonatal intensive care unit for more than six weeks, no health 

professional expressed a concern in Nicholas’ chart that he had suffered an injury 

associated with hypoxia during childbirth, and no MRI of Nicholas’ head was 

ordered. Tr. 1418:20-1419:9, 1420:16-1421:3.

After explaining why he rejected the Lintons’ causation theory, Dr. Rhine 

was asked to discuss “other more likely causes of Nicholas’ injury.” Tr. 1421:20-24. 

Counsel reminded Dr. Rhine to confine his opinions to those he could express “to a 

reasonable degree of medical certainty.” Tr. 1422:1-3. Dr. Rhine began his 

discussion of alternate causes by emphasizing that neither he, nor anyone else, 

could identify with certainty the precise cause of Nicholas’ injury:

So I wish I could tell you with certainty that I knew exactly where his 

white matter injury comes from, but I can't and I don't think anybody 

can. We have learned more over the years about this proble[m], but 

there are still some questions that are unanswered.

Tr. 1422:7-12.

Dr. Rhine then proceeded to discuss several potential sources of Nicholas’ 

brain injury which were supported in the evidence, including Nicholas’ significant 

prematurity, placental abnormalities, and episodes of low blood pressure and low 

carbon dioxide in the blood during the first few days of his life. Tr. 1386:24-1387:8, 

1424:12-25, 1427:12-15.

Dr. Rhine closed his direct testimony by opining, to a reasonable degree of 

medical certainty, that one or more of the alternative causes he had identified in 

fact caused Nicholas’ brain injury, and that his brain injury had not been caused by 

hypoxia after the amniotic sac ruptured, as the Lintons contended.

Q. So you said something earlier that I want to amplify in 

the context of all of the causes that we've identified here. Are you able 

to say that any one of these causes was the cause of Nicholas' white 

matter injury of brain injury?
5

A. No.

Q. What can you say with reasonable medical certainty?

A. I can say one or more of these, I think to a reasonable 

medical certainty, was the cause. . . .

Q. So with reasonable medical certainty, you are able to say 

that it's one or more, i.e. a combination of the factors that we have just 

talked about, both before the birth and those factors that we have just 

looked at after the birth?

A. Yes.

Q. Okay, and once again, your opinion with reasonable 

medical certainty about whether this injury occurred during the 

birthing process is what?

A. I think that is not when it happened for all of these 

reasons that I explained.

Tr. 1435:8-1436:12.

Dr. Rhine did not simply “speculate[ ] as to other possible causes” of Nicholas’ 

injuries, as the majority suggests. Maj. Op. at 11. To the contrary, Dr. Rhine used 

his medical knowledge and expertise to opine, to a reasonable degree of medical 

certainty, that one or more of the causes he identified had actually caused Nicholas’

injuries.

II.

A large body of caselaw, both from Missouri and elsewhere, supports the 

circuit court’s admission of Dr. Rhine’s alternative-causation testimony.

A.

Most significantly, the Missouri Supreme Court has expressly held that 

testimony identifying “possible [alternative] causes” of bodily injuries, like Dr. 

Rhine’s testimony, is proper and admissible.

In Lands v. Boyster, 417 S.W.2d 942 (Mo. 1967), a pregnant woman went into 

premature labor following a car accident. Her child “died several hours after its 

premature delivery.” Id. at 944. The woman sought to recover damages for her 

child’s death from the driver of the other vehicle involved in the accident. In 
6

response, the other driver presented evidence that the child’s premature delivery 

and death could have been caused by the mother’s pre-existing medical condition, 

rather than by the car accident. The Supreme Court held that this evidence of an 

alternate cause was permissible, even though framed in terms of “possibilities”.

Defendant had no burden to disprove plaintiffs' case, but was entitled 

to show all possible causes of Mrs. Lands's condition. It was not 

improper, therefore, for defendant to ask his expert witness if a 

condition, assumed from other evidence, might, could, or would 

produce a certain result, because an expert's view of possibility or 

probability is often helpful to the jury and proper even though such 

assurance of possibility would not of itself be sufficient to make a 

submissible case for one having the burden of proof.

Id. at 946 (emphasis added). 

Although decided more than 50 years ago, Lands has not been overruled, and 

we are bound to follow it under Article V, § 2 of the Missouri Constitution, which 

specifies that the decisions of the Missouri Supreme Court “shall be controlling in 

all other courts.”

The admissibility of such possible-cause testimony is not a “defendants-only” 

evidentiary principle, as the majority suggests. To the contrary, Lands relied on the 

Supreme Court’s earlier decision in Kimmie v. Terminal Railroad Association of St. 

Louis, 66 S.W.2d 561 (Mo. 1933), which expressly held that a personal-injury 

plaintiff would be entitled to present similar testimony. In Kimmie, the Court held 

that a plaintiff/railroad employee had failed to present sufficient evidence that a 

work-related fall had caused a cancerous bone tumor, where his expert witnesses 

merely testified that the fall “might, could or would” have caused the tumor. Id. at 

603. But the Court emphasized that personal-injury plaintiffs were entitled to 

present such possible-cause evidence, so long as other evidence placed causal 

responsibility on the defendant. 

We do not hold, however, as defendant contends, that it is 

improper to ask an expert witness if something might, could, or would 
7

produce a certain result. An expert's view of possibility or 

probability is often helpful and proper. Where there are other 

facts which tend to show an accident caused a certain 

condition, the assurance of an expert that it is scientifically 

possible is of some aid to the jury in determining what are 

reasonable inferences to be drawn from such facts. Assurance of 

possibility is not of itself, however, sufficient to make a submissible 

case, upon the issue of cause and effect, for a plaintiff who has the 

burden of proof upon that issue. The trouble here is that there is no 

more than possibility shown by either the facts or the expert 

testimony.

Id. at 605 (emphasis added). 

Consistent with Kimmie, the Lintons could have presented testimony like Dr. 

Rhine’s, to show that there are several medically-recognized, possible causes of 

periventricular leukomalacia. As Kimmie explains, however, while the Lintons may 

have been entitled to present such evidence, it would not have been sufficient, 

standing alone, to sustain a verdict in their favor.

The principles announced in Lands and Kimmie have been applied in 

numerous more recent Missouri decisions. Thus, the Southern District followed 

Lands in Roberts v. Missouri Highway & Transportation Commission, 222 S.W.3d 

322 (Mo. App. S.D. 2007), in which a worker’s compensation claimant contended 

that he had sustained a herniated disc in his back as a result of work-related traffic 

accident. The employer defended the claim, in part, by presenting evidence of the 

claimant’s falls while horseback riding after the traffic accident; the employer also 

presented expert testimony “that this activity could cause a herniated disc.” Id. at 

333 (emphasis added). The Commission’s order denying compensation referred to 

claimant’s falls while horseback riding to support its conclusion that claimant had 

failed to prove that his injuries were work-related. The Southern District affirmed. 

Citing Lands, it explained:

It was not Employer's obligation to disprove Claimant's case. “In cases 

in which more than one event could have caused a condition but only 

one is compensable, a claimant has the burden of proving the nature 
8

and extent of disability attributable to his or her job duties or 

workplace.” Because Employer did not bear the burden of proof, 

it was entitled to show all possible causes for Claimant's 

condition. Lands v. Boyster, 417 S.W.2d 942, 946 (Mo. 1967). “[A]n 

expert's view of possibility or probability is often helpful . . . and proper 

even though such assurance of possibility would not of itself be 

sufficient to make a submissible case for one having the burden of 

proof.” Id.

In sum, we interpret the Commission's finding that 

Claimant was thrown from a horse at his wedding to simply be 

another factor casting doubt on his contention that the accident 

caused him to be totally and permanently disabled. It was 

appropriate for the Commission to consider this factor in 

deciding whether Claimant met his burden of proof. Lands, 417 

S.W.2d at 946. We reject Claimant's assertion that, by doing so, the 

Commission must have implicitly determined that Claimant sustained 

further injury to his back after [the work-related traffic accident on] 

December 28, 1998.

Id. at 333 (emphasis added; other citations omitted).

In Koontz v. Ferber, 870 S.W.2d 885 (Mo. App. W.D. 1993), this Court upheld 

the admission of alternate-causation evidence in a case involving a similar claim of 

birth-related injury. In Koontz, following a defense verdict, the plaintiff claimed 

that the circuit court had erroneously permitted the defendants to offer the 

testimony of three physicians “regarding the possible causes of [the child’s] injuries 

other than perinatal trauma,” because “the three physicians were unable to offer 

testimony to a reasonable degree of medical certainty as to what caused the child’s 

injuries.” Id. at 892. The Court summarily rejected this argument, in reasoning 

that would seem equally applicable here:

Plaintiffs complain that the doctors did not base their testimony 

on a reasonable degree of medical certainty. This claim is without 

merit. Each physician specifically opined to a reasonable degree of 

medical certainty that Amber's injuries did not result from a hypoxic 

injury but rather resulted from either a primary muscle disease or a 

developmental malformation of the brain occurring at or before the 

34th week of gestation. Next, plaintiffs complain that the doctors' 

opinions primarily addressed what was not the cause of Amber's 

condition, rather than exactly what was the cause. Plaintiffs, however, 

fail to demonstrate any error. We fail to discern any legal or logical 
9

problem with such testimony. It is certainly proper for a defense 

expert to state an opinion as to whether plaintiffs' theory is a theory 

held by other medical experts.

Id. at 892-93.

In Heiskell v. Golden City Foundry, Inc., 260 S.W.3d 443 (Mo. App. S.D. 

2008), the Southern District affirmed a decision of the Labor and Industrial 

Relations Commission which denied worker’s compensation benefits for an 

employee’s death caused by a pulmonary embolism. In finding that the claimant 

had failed to prove that his injuries were work-related, the Commission relied on 

the testimony of an employer’s expert which was much like Dr. Rhine’s.

Dr. Boulware testified there was no way of knowing exactly what 

caused the pulmonary embolism which killed Employee, but that based 

on the numerous risk factors [(including smoking, diabetes, and 

obesity)] it could have been any number of things which were 

supported by the medical evidence.

Id. at 451. The Commission expressly relied on Dr. Boulware’s causation testimony, 

stating that he was “‘refreshingly candid when he opines that the exact cause of the 

death of [Employee] cannot be determined within a reasonable degree of medical 

certitude.’” Id. The Southern District held that the Commission, as fact-finder, was 

entitled to rely on Dr. Boulware’s alternative-possible-cause testimony to reject the 

claimant’s evidence that the employee’s death was work-related. Id. While the 

Court did not specifically address the admissibility of the alternative-causation 

testimony, it plainly considered that testimony to be competent and substantial 

evidence supporting the Commission’s denial of the benefits claim.

Similarly, numerous cases have applied the Kimmie decision, and held that a 

plaintiff too can present evidence of potential causes of an injury – although to 

sustain a verdict, the plaintiff must also present some “other facts” supporting a 

specific cause for which the defendant is liable. See, e.g., Stephens v. Guffey, 409 

S.W.2d 62, 69-70 (Mo. 1966); Ketcham v. Thomas, 283 S.W.2d 642, 649-50 (Mo. 

1955); Baker v. Kansas City Terminal Ry. Co., 250 S.W.2d 999, 1007 (Mo. 1952); 
10

Kummer v. Cruz, 752 S.W.2d 801, 806-07 (Mo. App. E.D. 1988); York v. Daniels, 259 

S.W.2d 109, 122-23 (Mo. App. 1953).

B.

The principle that litigants in a personal-injury case may present evidence of 

multiple, potential causes of an injury is not limited to Missouri. On the contrary, 

decisions from other state and federal courts endorse such testimony with near 

uniformity. Like Lands, many of these out-of-state cases emphasize that the 

justification for permitting alternative-possible-cause evidence is particularly strong 

when it is the defendant proffering the evidence, because the defendant has no 

burden to actually prove the cause of a plaintiff’s injuries, but need only cast doubt

on the plaintiff’s evidence. Notably, Dr. Rhine’s testimony is significantly stronger

than the testimony endorsed in many of the out-of-state cases, since he testified to a 

reasonable degree of medical certainty that the alternate causes he had identified 

did (alone or in combination) produce Nicholas’ injury. 

A leading decision is Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992) (New 

Hampshire law). In Wilder, like here, a physician-defendant in a medical 

malpractice case sought to introduce evidence of potential causes of the plaintiff’s 

injuries other than the physician’s negligence. The trial court excluded the 

alternative-cause evidence. Following a plaintiff’s verdict, the physician appealed, 

arguing that the district court had erroneously excluded his alternative-causation 

evidence.

The First Circuit agreed, and reversed. It explained:

It is well settled under New Hampshire law that the burden of 

proof with respect to causation in a medical malpractice case rests and 

remains with the plaintiff. . . . On the other hand, the defendant 

need not disprove causation. Rather, he must produce credible 

evidence which tends to discredit or rebut the plaintiff's evidence. . . . 

Defendant need not prove another cause, he only has to 

convince the trier of fact that the alleged negligence was not the 

legal cause of the injury. In proving such a case, a defendant 
11

may produce other “possible” causes of the plaintiff's injury. 

These other possible causes need not be proved with certainty or 

more probably than not. To fashion such a rule would unduly tie a 

defendant's hands in rebutting a plaintiff's case, where as here, 

plaintiff's expert testifies that no other cause could have caused 

plaintiff's injury. The burden would then shift and defendant would 

then bear the burden of positively proving that another specific cause, 

not the negligence established by plaintiff's expert, caused the injury. 

Certainly, this is much more than what should be required of a 

defendant in rebutting a plaintiff's evidence.

Were we to accept plaintiff's argument that once a plaintiff puts 

on a prima facie case, a defendant cannot rebut it without proving 

another cause, the resulting inequities would abound. For example if 

ninety-nine out of one hundred medical experts agreed that there were 

four equally possible causes of a certain injury, A, B, C and D, and 

plaintiff produces the one expert who conclusively states that A was 

the certain cause of his injury, defendant would be precluded from 

presenting the testimony of any of the other ninety-nine experts, 

unless they would testify conclusively that B, C, or D was the cause of 

injury. Even if all of defendant's experts were prepared to testify that 

any of the possible causes A, B, C or D, could have equally caused 

plaintiff's injury, so long as none would be prepared to state that one 

particular cause, other than that professed by plaintiff more probably 

than not caused plaintiff's injury, then defendant's experts would not 

be able to testify at all as to causation. We think that such a result . . . 

would be manifestly unjust and unduly burdensome on defendants.

Id. at 676-77 (emphasis added; citations and internal quotation remarks omitted).

Wilder was followed in R.J. Reynolds Tobacco Co. v. Mack, 92 So.3d 244 (Fla. 

App. 2012), in which a plaintiff contended that her decedent’s laryngeal cancer had 

been caused by cigarette smoking. In response, the defendant sought to offer 

testimony of a physician-expert that, because the decedent had quit smoking 

sixteen years before his cancer diagnosis, “the decedent's risk of getting cancer as a 

result of smoking was the same as someone who never smoked.” Id. at 247. The 

expert also sought to offer opinions concerning potential alternative causes of the 

decedent’s cancer: “that the decedent had a strong family history of cancer,” which 

“was much more important in causing his laryngeal cancer as compared with his 

smoking”; and also “that the decedent had a very significant asbestos exposure.” Id. 
12

“When asked if he could testify before the jury with any reasonable degree of 

medical certainty as to what caused the decedent's cancer, [the defendant’s expert] 

replied, ‘Well, I can say this: It had – it had more of a role than his declining risk of 

tobacco.’” Id.

The trial court in Mack excluded the defendant’s proffered testimony, and a 

jury returned a plaintiff’s verdict. The court of appeals reversed. It explained:

Appellee, as the plaintiff below, had the burden of proof with regard to 

the causation of the decedent's illnesses. By excluding Appellant's 

alternative causation evidence on the basis that its experts could not 

testify to a reasonable degree of medical probability, the trial court 

improperly shifted the burden of proof as to causation to Appellant. 

Contrary to the trial court's reasoning, Appellant was not 

attempting to prove that something else caused the decedent's 

laryngeal cancer. Instead, it was attempting to diminish 

Appellee's expert testimony that smoking was the probable 

cause of the cancer by introducing other possible causes that 

were pertinent to the decedent's situation.

Our conclusion that the trial court improperly shifted the 

burden to Appellant is supported by the majority of courts that have 

addressed this issue.

Id. at 248 (emphasis added).

In another leading case, a Pennsylvania appellate court emphasized that the 

purpose of alternative-cause testimony offered by a defendant is not to establish any 

affirmative proposition, but instead to impeach and rebut the plaintiff’s causation 

evidence:

[T]he burden of proving causation with the appropriate certainty rests 

upon the plaintiff. . . . The defendant ordinarily need not prove, with 

certainty or otherwise, that he or she is innocent of the alleged 

wrongdoing. Absent an affirmative defense or a counterclaim, the 

defendant's case is usually nothing more than an attempt to rebut or 

discredit the plaintiff's case. Evidence that rebuts or discredits is not 

necessarily proof. It simply vitiates the effect of opposing evidence. 

Expert opinion evidence [suggesting alternative causes of an injury] 

. . . certainly affords an effective means of rebutting contrary expert 

opinion evidence, even if the expert rebuttal would not qualify as proof.
13

Neal by Neal v. Lu, 530 A.2d 103, 109–10 (Pa. Super. 1987) (citations omitted); 

quoted and followed in, e.g., Jacobs v. Chatwani, 922 A.2d 950, 961 (Pa. Super. 

2007).

Multiple other cases similarly endorse the presentation of such alternativecausation evidence. These cases hold that alternative-causation evidence offered by 

a defendant in a medical malpractice or personal-injury case is admissible, even if 

the defense expert does not definitively identify an alternative cause of the 

plaintiff’s injuries to a reasonable degree of medical certainty. They reason, like the 

cases described above, that a defendant does not bear the burden of proving an 

alternative cause for a plaintiff’s injuries by a preponderance of the evidence, but 

can instead simply cast doubt on a plaintiff’s evidence by informing the jury of 

alternative causes which may have produced the plaintiff’s injuries. See, e.g., 

Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1070 (11th Cir. 2014) (Florida 

law); Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 574–75 (8th Cir. 2008) (South 

Dakota law); Benkendorf v. Advanced Cardiac Specialists Chtd., 269 P.3d 704, 706–

09 ¶¶ 9-17 (Ariz. App. 2012); Williams v. Eighth Judicial Dist. Ct., 262 P.3d 360, 

368–69 (Nev. 2011) (followed in Leavitt v. Siems, 330 P.3d 1, 5-6 (Nev. 2014)); Roy v. 

St. Lukes Med. Ctr., 741 N.W.2d 256, 264 ¶ 20 (Wis. App. 2007); Larson ex rel. 

Millam v. Nelson, 110 Wash. App. 1002, 2002 WL 77763 at *8-*9 (2002); Sakler v. 

Anesthesiology Assocs., P.S.C., 50 S.W.3d 210, 212-13 (Ky. App. 2001); Davis v. 

Chism, 513 P.2d 475, 484–85 (Alaska 1973); see also 57A AM.JUR.2D, NEGLIGENCE

§ 441 (2020) (“To convince the trier of fact that the alleged negligence is not the 

legal cause of the injury, the defendant may produce other possible causes of the 

plaintiff's injury; these possible causes need not be proved with certainty or more 

probably than not.”).

The only appellate case endorsing the Lintons’ position of which I am aware –

decided anywhere in the United States – is Hunter v. Ura, 163 S.W.3d 686, 703-04 
14

(Tenn. 2005). Hunter is an outlier, and was decided by a closely divided 3-2 vote. I 

find the dissent persuasive when it argues:

Alternative theories of causation, when presented by a qualified expert 

and supported by the current state of medical or scientific knowledge 

in the relevant field, serve to educate the jury as to other potential 

causes of the plaintiff's injury. Presenting such evidence allows the 

defendant to “test” the plaintiff's case and assists the jury in 

understanding the full import of the plaintiff's proof before assigning 

weight to the evidence and ultimately determining factual issues.

Id. at 715. It is significant that, in Hunter, the majority merely held that the trial 

court had not abused its discretion by excluding the defense’s evidence of other 

potential causes, id. at 703; the court did not reverse a trial court’s discretionary 

decision to admit such testimony. The majority’s decision in the present case will 

hold the distinction of being the only appellate decision in America to reverse a 

defense verdict based on the trial court’s admission of testimony like Dr. Rhine’s. 

C.

The majority’s justifications for refusing to follow the Missouri Supreme 

Court’s controlling decisions in Lands and Kimmie are unpersuasive. 

First, the majority notes that Lands predates the enactment of § 490.065.2, 

RSMo. But that is irrelevant. The Lintons do not challenge the admission of Dr. 

Rhine’s testimony on the basis that it fails to satisfy the statutory standards. Thus, 

they do not argue: that Dr. Rhine was unqualified to give opinions concerning the 

potential causes of periventricular leukomalacia, § 490.065.2(1); that the causes of 

this type of brain injury are generally known by laypersons, or that Dr. Rhine’s 

testimony would not “help the trier of fact to understand the evidence,” 

§ 490.065.2(1)(a); or that Dr. Rhine’s opinions are not based on sufficient facts or 

data, that he relied on unreliable principles or methods, or that he failed to reliably 

apply those principles or methods. § 490.065.2(1)(b)-(d). The Lintons’ arguments 

are not based on § 490.065.2. The fact that the Lands decision predates that statute 

is neither here nor there.
15

The majority also points out that Lands was a general negligence case, not a 

medical malpractice case like this one. The majority emphasizes that general 

negligence and medical malpractice cases are governed by differing standards of 

care. But this is likewise irrelevant. The Lintons are not challenging testimony by 

Dr. Rhine concerning the standard of care; they are challenging his testimony 

concerning causation. The majority cites no authority for the proposition that the 

standards for expert causation testimony differ between medical malpractice cases, 

and other cases where complex questions arise concerning the causation of a 

particular bodily injury.

Ironically, most of the cases which the majority cites to establish the relevant 

standards for expert causation testimony are not medical malpractice cases. See

Payne v. Fiesta Corp., 543 S.W.3d 109 (Mo. App. E.D. 2018) (negligence action for 

personal injuries against owner of amusement ride); Adkins v. Hontz, 337 S.W.3d 

711 (Mo. App. W.D. 2011) (wrongful-death action against automobile driver); Glaize 

Creek Sewer Dist. v. Gorham, 335 S.W.3d 590 (Mo. App. E.D. 2011) (condemnation 

action brought by municipality to acquire real property for sewer line); Thompson v. 

Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App. W.D. 2006) (strict 

liability and negligence action against cigarette manufacturer for injuries caused by 

smoking); Shackelford v. West Cent. Elec. Coop., Inc., 674 S.W.2d 58 (Mo. App. W.D. 

1984) (negligence action against electric utility for property damage caused by 

house fire); Bertram v. Wunning, 385 S.W.2d 803 (Mo. App. 1965) (negligence action 

for personal injuries arising from automobile accident); Hunt v. Armour & Co., 136 

S.W.2d 312 (Mo. 1939) (action against employer for personal injuries allegedly 

resulting from plaintiff’s working conditions).

The majority’s own citation to non-medical-malpractice cases to identify the 

standards governing expert causation testimony confirms the obvious: those 

standards do not vary between general negligence and medical malpractice cases. 
16

The majority cannot have it both ways – it cannot on the one hand dismiss Lands

because it “sounded in general negligence rather than medical negligence,” Maj. Op. 

at 11, while at the same time citing general negligence cases for the relevant 

standards. It is also significant that the majority does not even acknowledge, or 

attempt to distinguish, the three Missouri medical-malpractice cases which apply 

the evidentiary principles established in Lands and Kimmie. See Koontz v. Ferber, 

870 S.W.2d 885, 892-93 (Mo. App. W.D. 1993); Kummer v. Cruz, 752 S.W.2d 801, 

806-07 (Mo. App. E.D. 1988); York v. Daniels, 259 S.W.2d 109, 122-23 (Mo. App. 

1953).

The caselaw cited by the majority and by the Lintons is distinguishable, and 

cannot justify our disregard of the Missouri Supreme Court’s holdings in Lands and 

Kimmie. Notably, with the exception of one land-condemnation case which is 

clearly distinguishable for other reasons,1 all of the caselaw on which the Lintons 

and the majority rely involves experts testifying on behalf of the party bearing the 

burden of proof (generally, the plaintiff).2 And, in the majority of those cases, the 

competence of the testimony of the plaintiff’s causation experts is discussed only in 

connection with a challenge to the submissibility of the plaintiff’s case.3 It is hardly 

 

1 In Glaize Creek Sewer Dist. v. Gorham, 335 S.W.3d 590 (Mo. App. E.D. 2011), 

the Court held that an expert should not have been permitted to opine on the fair market 

value of property subject to condemnation because the expert admitted that he had not 

applied the governing valuation standard, and “had no data or evidence to support his 

opinion.” Id. at 594-95. The Lintons do not attack Dr. Rhine’s testimony on these grounds.

2 Thus, with the exception of the Glaize Creek case discussed in the prior 

footnote, all of the cases cited in the majority opinion (at 8-10) state the standards for 

expert testimony presented by the plaintiff. See Edgerton v. Morrison, 280 S.W.3d 62, 69 

(Mo. 2009); Hunt v. Armour & Co., 136 S.W.2d 312, 315-18 (Mo. 1939); Love v.Waring, 560 

S.W.3d 614, 619 (Mo. App. W.D. 2018); Payne v. Fiesta Corp., 543 S.W.3d 109, 119-20 (Mo. 

App. E.D. 2018); Adkins v. Hontz, 337 S.W.3d 711, 720 (Mo. App. W.D. 2011); Thompson v. 

Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 109-11 (Mo. App. W.D. 2006); 

Tompkins v. Cervantes, 917 S.W.2d 186, 189 (Mo. App. E.D. 1996); Wagner v. Piehler, 879 

S.W.2d 789, 792 (Mo. App. W.D. 1994); Bertram v. Wunning, 385 S.W.2d 803, 806-07 (Mo. 

App. 1965)

3 See, e.g., Love, 560 S.W.3d 614 (appeal of grant of summary judgment to 

physician-defendant, based on insufficiency of the plaintiff’s causation evidence); Payne, 
17

surprising that these cases state that the plaintiff must present evidence which 

establishes, to a reasonable degree of medical certainty, that a circumstance or 

event for which the defendant is liable actually caused the plaintiff’s injuries. 

These statements of the standard for admissibility of expert causation evidence are 

necessarily bound up with the burden of proof the plaintiff shoulders to make a 

submissible case. But those standards have no applicability to a defendant’s

experts, since a defendant has no burden to prove anything.

The fact that the majority’s cases involve a different issue is illustrated by 

the majority’s citation of Mueller v. Bauer, 54 S.W.3d 652 (Mo. App. E.D. 2001), for 

the proposition that, “‘[w]here an expert's testimony is mere conjecture and 

speculation, it does not constitute substantive, probative evidence on which a jury 

could find ultimate facts and liability.’” Maj. Op. at 12 (quoting Mueller, 54 S.W.3d 

at 657 (emphasis added)). But the Respondents did not ask the jury to rely on Dr. 

Rhine’s opinions to “find ultimate facts” in their favor. They didn’t need to – the 

Lintons bore the burden of proving causation. It was not necessary for the jury to 

find any facts in the Respondents’ favor in order to return a defense verdict. 

Instead, the jury was merely required to find that the Lintons had failed to satisfy 

their burden of proof as to one or more elements of their claim.

 

543 S.W.3d at 119 (“Fiesta argues that if Dr. Levy’s testimony was properly excluded, 

Respondent would have failed to make a submissible case” on causation of plaintiff’s injury 

(citation omitted)); Edgerton, 280 S.W.3d at 69 (addressing physician-defendant’s claim 

that “it was error to deny his motions for directed verdict and JNOV because Patient failed 

to present [competent] evidence of a causal connection between his injury and Surgeon's 

alleged negligence”); Thompson, 207 S.W.3d at 109 (addressing competence of plaintiff’s 

causation testimony in connection with defendant’s claim that plaintiff failed to make a 

submissible case); Tompkins, 917 S.W.2d 186 (appeal of grant of summary judgment to 

defendant); Shackelford, 674 S.W.2d at 62-63 (addressing admissibility of plaintiff’s expert 

testimony and, because of defects in that testimony, concluding that directed verdict should 

have been entered for defendant); Bertram, 385 S.W.2d 803 (because of defects in plaintiff’s 

causation evidence, holding that circuit court should have issued withdrawal instruction 

advising jury not to award damages for that injury); Hunt, 136 S.W.2d at 319 (ruling that 

defendant’s demurrer to the evidence should have been granted due to inadequacy of 

plaintiff’s causation evidence).
18

III.

On appeal, the Lintons do not make any broad legal arguments; instead, 

their arguments boil down to a dispute concerning how Dr. Rhine’s trial and 

deposition testimony should be interpreted and reconciled. This is an enormously 

fact- and record-specific question on which we should defer to the circuit court’s 

exercise of its discretion.

At oral argument, the Lintons’ counsel conceded that, if Dr. Rhine had 

testified to a reasonable medical certainty that Nicholas’ injuries were caused by an 

identified list of factors, acting alone or in combination, that testimony would be 

admissible. Rather than arguing broadly that possible-cause testimony is 

categorically inadmissible, the Lintons have instead argued only that Dr. Rhine 

failed to give his testimony concerning possible alternative causes to a reasonable 

degree of medical certainty.

As described above in § I, at trial Dr. Rhine gave exactly the type of 

testimony which the Lintons concede is admissible: he testified to a reasonable 

degree of medical certainty that one or more of the specific factors he identified had 

caused Nicholas’ brain injury. In the circuit court, and on appeal, the Lintons have 

disputed that Dr. Rhine testified with the requisite certainty. To make this 

argument, they rely heavily on a colloquy from Dr. Rhine’s deposition in which –

they contend – he admitted that he could not give competent alternative causation 

testimony.

The circuit court, in its discretion, could properly conclude that the deposition 

testimony on which the Lintons rely did not render Dr. Rhine’s possible-cause 

testimony inadmissible. In the passage on which the Lintons heavily rely (which is 

quoted in the majority opinion), Dr. Rhine gave the following testimony:

Q. Do you have an opinion based upon a reasonable degree of 

medical certainty as to whether Nicholas Linton suffered 
19

periventricular leukomalacia or injury to the white matter of his brain 

before birth?

A. No.

Q. Do you have an opinion based upon a reasonable degree of 

medical certainty as to whether he suffered injury . . . periventricular 

leukomalacia or injury to the white matter in his brain after the birth?

A. No. I know it's one of the two. I know it's one of the two, 

either before or after or a combination.

Q. Do you have an opinion that you can state to a reasonable 

degree of medical certainty whether it is before or after or a 

combination?

A. Nope.

In the penultimate answer during this colloquy, Dr. Rhine testified that “I know it's 

one of the two, either before or after or a combination.” But in his final answer, Dr. 

Rhine stated that he could not testify to a reasonable degree of medical certainty 

“whether it is before or after or a combination.”

The Lintons argue that in the final quoted answer, Dr. Rhine admitted that 

he could not offer an alternative causation opinion to a reasonable degree of medical 

certainty. Given this purported admission, they contend that Dr. Rhine’s 

alternative causation opinions were incompetent, and should have been excluded.

At trial, however, Dr. Rhine offered an explanation for his deposition 

testimony. “I interpreted your question as, can you tell me which of those three 

options it was and I told you then and I'm telling you and the jury now that I can't.” 

Tr. 1489:20-24. Thus, Dr. Rhine interpreted the Lintons’ deposition question as 

asking whether he could opine if A or B or C caused Nicholas’ injury; because he 

could not choose among the three, he answered “Nope.” 

The explanation Dr. Rhine offered at trial for his answer to the final quoted 

deposition question is consistent with his answer to the immediately preceding 

question, in which he testified – seemingly unambiguously – that “I know it's one of 

the two, either before or after or a combination.” Indeed, the Lintons’ interpretation 
20

of the final answer renders Dr. Rhine’s answer to the penultimate question 

meaningless.

The circuit court evidently accepted Dr. Rhine’s explanation for his deposition 

testimony, since it concluded that Dr. Rhine’s deposition did not render his 

alternative-cause testimony inadmissible. Whether to accept Dr. Rhine’s

explanation, or whether to instead interpret his deposition as the Lintons advocate, 

is the sort of fact-specific, discretionary determination on which we should defer to 

the circuit court. Particularly with the results of a two-week jury trial hanging in 

the balance, I see no justification for this Court to second-guess the circuit court’s 

eminently reasonable reading of Dr. Rhine’s deposition. And, putting the deposition 

testimony to one side, the Linton’s have conceded that Dr. Rhine’s trial testimony

concerning potential alternative causes, which was undeniably given to a 

reasonable degree of medical certainty, was competent and admissible.

IV.

For the reasons explained in detail above, the circuit court did not abuse its 

discretion in admitting Dr. Rhine’s possible-cause testimony. But even if the circuit 

court had erred, the admission of that testimony would not require reversal.

As described in § I, above, Dr. Rhine’s possible-cause testimony was only a 

small part of the testimony he offered at trial. The main focus of Dr. Rhine’s 

testimony was to opine that Nicholas’ brain injury was not caused by hypoxia 

during the birth process, and to explain why he believed that the Lintons’ experts’ 

causation opinions were unsupported by, and even contrary to, the clinical evidence. 

Only after offering his refutation of the Lintons’ causation theory did Dr. Rhine then

offer opinions concerning potential other explanations for Nicholas’ brain injury. In 

offering those opinions, Dr. Rhine made clear that he could not identify a single, 

unique cause to a reasonable degree of medical certainty, but that he could only 
21

identify a constellation of factors which had caused Nicholas’ injury, acting alone or 

in combination.

Given the limited extent, and qualified nature, of Dr. Rhine’s possible-cause 

testimony, that testimony could not have had a decisive effect on the jury’s verdict. 

This was a two-week trial in which the Respondents presented five separate 

causation experts. It is unrealistic to ascribe substantial prejudicial effect to a 

minor portion of the testimony of just one of those five experts.

Any possibility of prejudice is defeated by the fact that another defense 

expert, Dr. Paul Levinsohn, offered alternative-cause testimony similar to Dr. 

Rhine’s, with no objection by the Lintons. Thus, Dr. Levinsohn testified on direct 

examination:

Q. Okay. So let's talk about other evidence of what might 

have caused injury. We have talked about birth asphyxia not being the 

cause of this, correct?

A. Correct.

Q. So what other evidence did you find in your review of the 

records that points to other potential causes?

A. Well, if it is not related directly to birth asphyxia, then it 

was either due to something that happened before birth in utero when 

the baby was still developing or something that occurred postnatally, 

after birth while the child was being treated in the Intensive Care Unit 

after he was born. The evidence of the latter, or it being something 

that occurred afterwards is a report of low blood pressure on occasion 

and also the occurrence of low carbon dioxide levels, which goes along 

with being over-ventilated. Both of these features have been 

associated with subsequent direct development of periventricular 

leukomalacia, but there is also a possibility of more than one cause, 

and it could have been something prenatal. For instance, not enough 

oxygen getting into the baby's blood from the mother, the placenta isn't 

working well or maternal infection or there are other things it could be. 

So it is hard to say it's one or the other, but it is clearly not something 

that occurred at birth and it could be one or both post-natal or 

intrauterine injury.

Q. And you hold that opinion with reasonable medical 

certainty, Doctor Levinsohn?
22

A. I do.

Tr. 1524:5-1525:14. 

Dr. Levinsohn then continued by testifying that an abnormally small or 

dysfunctional placenta “could be the cause, or one of the causes of the baby[’s] 

problems.” Tr. 1526:13-23. Dr. Levinsohn was also shown a record of Nicholas’ 

blood-pressure readings shortly after his birth; he agreed with counsel that “this 

period of low blood pressure here that we're looking at . . . [was] long enough to 

create the injury that we see on Nicholas' M.R.I. a year later.” Tr. 1529:10-16. Dr. 

Levinsohn also testified that Nicholas’ low carbon dioxide readings after his birth 

could have caused his brain injury, since the low carbon dioxide “also causes 

ischemia, that is a lack of adequate blood flow to the structures of the brain.” Tr. 

1530:7-12.

Dr. Levinsohn’s direct examination concluded by emphasizing his opinion 

that Nicholas’ brain injury was caused by circumstances existing in utero, or 

subsequent to his birth, but not during the eighteen minutes between the rupture of 

the amniotic sac and his delivery:

Q. Okay, and from the standpoint of now having identified 

the things that are in the record, do you have an opinion with 

reasonable medical certainty as to whether both the prenatal and the 

postnatal causes or likely causes of Nicholas’ –

A. This brain injury was a result of either in-utero problems 

or post-natal, problems without adequate blood flow to the brain. And 

it could be both of them that are contributing or it could be only one of 

them. There is no way of knowing that. We don't have text [sic] that 

allows us to know which one it is. We don't have the neonatal 

encephalopathy and we know that the baby suffered respiratory 

problems, so that leads us only with two places to go. Therefore either 

before he was born in-utero or after he was born as a neonatal injury 

would be identifiable causes that we have looked at.

Q. And the identifiable causes are totally sufficient to have 

caused this?

A. They are.
23

Q. And you hold those opinions with reasonable medical 

certainty?

A. I do.

Tr. 1530:13-1531:12. These are the exact same opinions which the Lintons now 

challenge – when expressed by Dr. Rhine.

The Lintons could not have been prejudiced by the admission of Dr. Rhine’s 

testimony, when Dr. Levinsohn testified – without objection – to the same 

alternative-causation opinions. “A party cannot be prejudiced by the admission of 

allegedly inadmissible evidence if the challenged evidence is merely cumulative to 

other evidence admitted without objection.” Swartz v. Gale Webb Transp. Co., 215 

S.W.3d 127, 134 (Mo. 2007) (citations omitted); accord Gateway Foam Insulators, 

Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 189 (Mo. 2009).4

To bolster its claim that the admission of Dr. Rhine’s testimony was 

prejudicial, and mandates a new trial, the majority vastly overstates the 

significance of Dr. Rhine’s testimony. It is simply inaccurate to assert that “[t]he 

Respondents rebutted [the Lintons’ causation] evidence largely through the 

testimony of Dr. Rhine.” Maj. Op. at 14. Dr. Rhine was one of five physicians who 

 

4 Swartz recognizes that objections to later, similar evidence are not required 

“when testimony on a particular subject is objected to the first time it is offered and the 

court makes clear that it is rejecting the objection to all evidence of the same type. In such 

cases, a failure to specifically object to each later piece of similar testimony may be forgiven 

on the basis that further objection would have been futile.” Swartz, 215 S.W.3d at 133 

(citations omitted). In the present case, however, the Lintons’ objections were always 

targeted specifically – and solely – against Dr. Rhine’s testimony. The Lintons’ objections 

were based in large part, if not exclusively, on Dr. Rhine’s deposition testimony in which he 

purportedly admitted that he could not give alternative-cause testimony to a reasonable 

degree of medical certainty. The circuit court’s rejection of the Lintons’ objections to Dr. 

Rhine’s alternative-cause testimony says nothing about how the court would have ruled on 

an objection to similar testimony from Dr. Levisohn. See State v. Gott, 523 S.W.3d 572, 578 

n. 5 (Mo. App. S.D. 2017) (exception to contemporaneous objection requirement “does not 

apply here because the trial court did not make clear that it was rejecting the objection to 

all evidence of the same type when it overruled Defendant’s objection to [earlier, similar] 

testimony”).
24

testified on causation issues for the defense. The testimony of each of those experts 

was intended to rebut the Lintons’ causation theories.

The majority also claims that prejudice is established because “Dr. Rhine's 

testimony was central to the Respondent's negation of the causation element and 

extensively highlighted by the Respondents during closing arguments.” Maj. Op. at 

16. These characterizations are likewise inaccurate. Three different attorneys 

made closing arguments on behalf of the Respondents, and together they spoke for 

well over an hour. In those extensive arguments, Dr. Rhine’s testimony was 

referenced only twice. Each time, counsel emphasized that Dr. Rhine had rejected 

the Lintons’ claim that Nicholas’ injury occurred during the birthing process; 

counsel then referred only generally to Dr. Rhine’s identification of other possible 

causes. Thus, the first time Dr. Rhine’s testimony was mentioned in closing, 

counsel argued:

Doctor Rhine from Stanford, a Neonatologist with decades of 

experience. I point out that the plaintiff did not call a Neonatology, 

only defense. He explained also that the injury was not caused 

between 12:17 and 12:35, which is all we need to do. These gentlemen 

think about this stuff and they've come up with more likely 

explanations, but looking at the medical evidence, he said that this 

white matter injury, the prematurity itself was most likely the cause. 

It wasn't anything that happened in that time period, for all of the 

reasons that he said. But I don't have time to go over all of those.

Tr. 1817:17-1818:4. The second reference was similar (and grouped Dr. Rhine’s 

testimony with the testimony of Dr. Levisohn, to which the Lintons did not object):

I would encourage you all to listen – Number one to the only 

Neonatologist who testified in this case, Doctor Rhine, to our Pediatric 

Neurologist, Doctor Levisohn, who told you that the evidence in this 

case is that Nicholas did not have symptoms, did not have neurologic 

syndrome at birth, and therefore did not suffer an intra-birth or a 

birthing process injury to his brain. What is more likely, you 

remember the blood pressures we showed you. Remember the low 

pCO2 on the second day of life. Those are much much more likely, as 

you've heard the testimony, factors that would be included in 

analyzing why Nicholas has periventricular leukomalacia today.
25

Tr. 1844:2-15. These limited references belie the majority’s claim that Dr. Rhine’s 

testimony was somehow the centerpiece of the defense case.

Conclusion

The judgment of the circuit court should be affirmed. The court did not abuse 

its discretion in admitting the testimony of Dr. William Rhine concerning other 

potential causes of Nicholas Linton’s brain injury. That testimony was expressly 

authorized by two controlling decisions of the Missouri Supreme Court, by a host of 

later Missouri cases which follow them, and by the overwhelming weight of 

authority across the country. Even if admission of Dr. Rhine’s testimony was 

erroneous, its admission cannot justify reversal of a jury verdict reached after a 

two-week trial, where the Linton’s challenge only a portion of Dr. Rhine’s testimony, 

he was merely one of five defense causation experts, and where another defense 

expert offered virtually identical testimony without objection.

Alok Ahuja, Judge