Bereal v. Bajaj

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No. 111,954

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDWARD M. BEREAL,
Appellant,

v.

RAVI K. BAJAJ, M.D.,
and
WESLEY MEDICAL CENTER, L.L.C.,
Appellees.


SYLLABUS BY THE COURT

1.
The admission of expert testimony generally lies within the trial court's sound
discretion, and its decision will not be overturned in the absence of an abuse of
discretion.

2.
An appellate court reviews a trial court's exclusion of an expert's rebuttal
testimony under K.S.A. 2015 Supp. 60-226(b)(6)(C)(ii) for an abuse of discretion.

3.
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary,
fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of
fact. Moreover, an abuse of discretion occurs if discretion is guided by an erroneous legal
conclusion or goes outside the framework of or fails to consider proper statutory
limitations or legal standards.

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4.
Rebuttal evidence is properly admissible under K.S.A. 2015 Supp. 2015 Supp. 60-
226(b)(6)(C)(ii) when the evidence is intended solely to contradict or rebut the defense
expert's evidence, even if the rebuttal evidence would tend to support the party's case-in-
chief.

Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed April 1,
2016. Affirmed in part, reversed in part, and remanded with directions.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and
Thomas M. Warner and Anne H. Pankratz, of Warner Law Offices, P.A., of Wichita, for appellant.

David S. Wooding and Marcia A. Wood, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of
Wichita, for appellee Ravi K. Bajaj, M.D.

John H. Gibson and G. Andrew Marino, of Gilliland & Hayes, LLC, of Wichita, for appellee
Wesley Medical Center, L.L.C.

Before ARNOLD-BURGER, P.J., GREEN and STANDRIDGE, JJ.

GREEN, J.: This medical malpractice action arose after Edward Bereal went in for
a heart catheterization during which air was improperly injected into his heart, causing an
embolism and stroke. This resulted in Bereal being permanently paralyzed. The
defendants, Dr. Ravi K. Bajaj and Wesley Medical Center, L.L.C., do not dispute that air
was improperly injected into Bereal's heart, injuring him. Instead, the defendants
maintain that his injuries occurred as a result of a defect in the medical device used for
the heart procedure and, thus, the manufacturer of the medical device was responsible for
Bereal's injuries. The manufacturer of the medical device was originally a party in this
case. But after a settlement agreement was reached between Bereal and the manufacturer,
Bereal dismissed the manufacturer as a party from the case.
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Following a 21-day jury trial, the jury found in favor of the defendants. On appeal,
Bereal asks this court to review the trial court's order striking the testimony of Bereal's
rebuttal expert witness, Dr. Suzanne Parisian, M.D. In addition, Bereal contends that the
trial court erred in allowing one of the defendants' experts to testify to conclusions that
were outside the scope of the disclosed expert's pretrial report. Moreover, Bereal asserts
that the defendants' expert's testimony was speculative and should have been stricken.
Finally, Bereal contends that the trial court erred when it failed to grant him a judgment
as a matter of law on all six of the defendants' affirmative defenses.

Of these three issues, we hold in Bereal's favor on the first issue. We conclude that
the trial court abused its discretion when it excluded Dr. Parisian's rebuttal testimony
because her testimony was intended solely to contradict or rebut the defense expert's
causation theory and therefore constituted proper rebuttal testimony. We therefore affirm
in part, reverse in part, and remand for a new trial.

In 2009, after complaining of chest pains, Bereal was referred to Dr. Ravi Bajaj, a
cardiologist at Wesley Medical Center, L.L.C. (Wesley). Dr. Bajaj scheduled Bereal for a
cardiac catheterization, commonly known as a heart catheter, on December 11, 2009.

On December 11, 2009, Bereal came to Wesley for his heart catheter procedure.
Dr. Bajaj was the physician, Travis January was the monitoring nurse, Stacy Cody was
the scrub tech, and Michael Stilwell was the circulating nurse.

Three weeks before Bereal's procedure, Wesley's Medrad Avanta (Avanta) fluid
injection system that was used during Bereal's procedure, received a software upgrade
which allowed the user to hit one button to purge both the saline and contrast lines
simultaneously. These types of upgrades were common and occurred regularly.

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Normally, this is a routine outpatient procedure which Dr. Bajaj had performed
roughly 15,000 times. Nevertheless, it is undisputed that during Bereal's procedure, air
was injected into his heart, causing an embolism and stroke, which resulted in his lengthy
inpatient care and permanent paralysis.

Mechanics of a Cardiac Catheterization Using the Avanta System

All of the parties agree that the following is a fair and accurate statement
describing the mechanics of a cardiac catheterization procedure using the Avanta system
that was used in this case:

"In a cardiac catheterization, long, thin tubes called 'catheters' are placed in the
patient's heart, and radiopaque contrast dye is injected into the patient's heart, the flow of
which can be seen on an x-ray fluoroscope. The procedure takes measurements of
circulation pressures, blood flow, and oxygenation, and provides visualizations called
'angiograms' so as to recommend how to treat heart problems. As with Mr. Bereal, the
'most common reason' a heart cath is performed is to look for blockages in coronary
arteries.

"Besides the physician, the procedure also involves a circulating nurse, a
monitoring nurse, and a scrub tech. The monitoring nurse monitors the patient's vital
signs and angiograms from an adjoining room, obtains information from the other team
members, and also documents and keeps track of the procedure for records. The
circulating nurse ensures the patient is comfortable and gives and documents any
medication the physician orders, including the type, weight, and amount of contrast. The
scrub tech prepares the patient, stays sterile, and assists the physician; only the physician
and scrub tech are sterile.

"The physician begins by inserting a tiny 'femoral catheter' in the patient's groin,
through the femoral artery, and into the aorta in the heart, where it is under pressure. To
inject the dye, the physician uses either a hand-injection procedure or a power injector
such as the Avanta Fluid Injection System manufactured by Medrad, which was used in
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Mr. Bereal's procedure. The Avanta or another power injector 'is a required piece of
equipment in all cath labs.' The angiograms are x-ray images of the procedure showing
the dye going into the patient's heart and out into the vessels. Using the Avanta, the
physician hits a foot pedal, contrast goes in, and an image is taken, with each process
taking only four seconds.

"Besides contrast, saline also can be injected to flush the machine and ensure that
catheters are clean. A pressure transducer is connected, measuring blood pressure in real
time by translating fluid pressure into blood pressure as a 'wave form,' a 'sine wave'
visible on the monitoring screen.

"Contrast and saline are separately stored in the Avanta's injector head, with a
line primed from each storage and strung through the machine. Essentially, the Avanta
has plastic catheter tubing attached to it, which in turn is attached to the femoral catheter
already inserted inside the patient. Fluid under 400 PSI to 700 PSI of pressure in the
Avanta then is injected into the patient's heart through catheters that are themselves at
1200 PSI.

"It is crucial that all the tubing—both the Avanta's catheters and transducer and
the catheter in the patient—must be purged of air; there is 'no margin of error' for this.
Otherwise, it is 'extremely dangerous to the health and safety of a patient:' due to
'block[ing] the blood flow to the heart and to the brain,' air injection can cause serious
injury, including stroke, and even death."

Dr. Bajaj and Cody were responsible for purging all of the air from the catheters
and the Avanta system for Bereal's procedure. Both Dr. Bajaj and Cody testified that they
properly purged the system of air and that no one noticed any defects or cracks in the
catheters before the procedure began.

During the first injection, an unusual problem occurred which caused Bereal's
heart rate to drop. After Dr. Bajaj stabilized Bereal, he unhooked Bereal from the Avanta
system and switched to hand contrast injections to continue the procedure.
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After the procedure, Bereal was transferred to intensive care where he suffered a
stroke which paralyzed him. After receiving over 2 months of inpatient care and
rehabilitation, Bereal was discharged with a final diagnosis of stroke caused by an air
embolism from the heart catheter procedure.

At trial, all of the parties agreed that Bereal had suffered an "intravascular air
embolism." The parties presented conflicting expert testimony in an effort to explain how
the air got into the Avanta system.

Bereal's Medical Experts

Bereal presented two medical experts who testified that air was in the tubing
before the first injection occurred and that air did not enter the system through a defect or
malfunction of the Avanta equipment.

Bereal's first expert, Karen Harris, a supervising cardiovascular technologist at
Massachusetts General Hospital, testified that bubbles were visible on the angiograms
which showed that air came out of the catheter first and entered the aorta and then the
dye. Based on the angiogram image, Harris testified that this showed that there was no
failure in the Avanta system because "the air that was injected was the first thing that
came out of the catheter," meaning the air "was much further into the patient than the
[Avanta] system. . . . The air was the first thing to come out." Harris also relied on the
wave forms to support her testimony that air was in the femoral catheter before the first
injection. Harris explained that the wave forms were "dampened," which could be caused
by air somewhere in the Avanta system. Harris explained that there were only six ways
air could have entered Bereal's system and if any one of those occurred it would have
been a departure from the standard of care.

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Bereal's second expert, Dr. Michael Fifer, a cardiologist from Boston,
Massachusetts, agreed with Harris' conclusion that air got into the Avanta system as a
result of negligence by Wesley personnel. Dr. Fifer testified that in his opinion Dr. Bajaj
failed to aspirate the catheter after making the wet-to-wet connection, failed to fill the
catheter with X-ray dye before entering the coronary artery, failed to observe that the
wave form was dampened before the first injection, and failed to recognize the possibility
that there was air in the system, all of which were deviations from the standard of care.

Defense Medical Experts

Dr. Layne Reusser, an interventional cardiologist who practices in Wichita,
Kansas, testified as a standard-of-care expert witness for Dr. Bajaj. Dr. Reusser countered
Dr. Fifer's opinions, testifying that Dr. Bajaj had met the standard of care in aspirating the
catheter before making the wet-to-wet connection; that the standard of care does not
require a cardiologist to fill the catheter with dye before the first injection; and that in his
opinion, the wave form was not dampened before the first injection.

Dr. Bajaj also testified on his own behalf as an expert witness. Dr. Bajaj testified
that the wave form was not dampened before the first injection and that he is not required
to fill the catheter with dye before the first injection. Dr. Bajaj testified that air in the
tubing is very easy to see and that after 24 years there is no way he would have missed air
bubbles in the line. Dr. Bajaj testified that he estimated that 10-15 ccs of air were injected
into Bereal. Dr. Bajaj explained that this volume of air was greater than the volume in the
entire line and, thus, he concluded that the air had to have come in externally from
outside the tubing. Dr. Bajaj further testified that he met the standard of care in this case
and that he was "really quite convinced . . . that this was a device malfunction."

Dr. Yadin David, a biomedical engineer, was the defense's final expert witness.
Dr. David testified that the pressure isolation valve was defective. Dr. David based this
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conclusion on the fact that Medrad, the manufacturer of the Avanta system used in this
case, has made three different pressure isolation valves since 2009. Bereal's attorney
objected to this testimony, arguing that it was outside the scope of Dr. David's report. The
trial court overruled the objection, finding that the opinion regarding the pressure
isolation valve was within the scope because his report stated the air injection was caused
by "a defect in the Avanta or associated tubing."

Striking of Rebuttal Expert

On February 3, 2014, Bereal timely served his rebuttal expert report disclosing Dr.
Suzanne Parisian as his expert to rebut Dr. David's report. In her report, Dr. Parisian
criticized Dr. David's analysis and his opinions "primarily due to his failure to review
critical manufacturing, compliance and regulatory data [which was] unacceptable for a
regulatory/safety device analysis and render[ed] his opinions speculative at best." Dr.
Parisian's report further stated that "there is no evidence that the Medrad [Avanta] device
or any of the disposables were defective. In fact, the evidence is to the contrary."

On February 18-19, 2014, Wesley and Dr. Bajaj each moved to strike Dr. Parisian
as a rebuttal expert, arguing that her testimony would be duplicative of both Dr. Fifer and
Harris. Bereal opposed the motion, arguing that his disclosure was timely, that Dr.
Parisian was an authorized rebuttal expert, and that her testimony was not duplicative
because his original two experts were not medical device experts.

On February 27, 2014, the trial court held a hearing on the motion. After hearing
arguments, the trial court granted the defendants' motions and struck Dr. Parisian as a
rebuttal expert. The trial court held that because Bereal originally brought products
liability claims against Medrad and that the defendants' affirmative defenses of products
liability were against Medrad, "whatever you had to say about the equipment you needed
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to say it in your original disclosure," and not in rebuttal. The trial court denied Bereal's
motion to reconsider.

A 21-day jury trial was conducted between March and April 2014. After just 1 1/2
hours of deliberation, the jury reached a unanimous verdict finding neither Dr. Bajaj nor
Wesley at fault for Bereal's injuries. Bereal appealed.

Did the Trial Court Err in Striking the Testimony of Bereal's Rebuttal Expert Witness,
Dr. Suzanne Parisian?

In his first issue on appeal, Bereal argues that the trial court erred when it excluded
Dr. Parisian's rebuttal expert testimony because her testimony would have specifically
refuted the testimony of defense expert Dr. David and, therefore, constituted a proper
rebuttal disclosure under K.S.A. 2015 Supp. 60-226(b)(6)(C)(ii).

The admission of expert testimony generally lies within the trial court's sound
discretion, and its decision will not be overturned in the absence of an abuse of
discretion. Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 444, 228 P.3d
1048 (2010). A judicial action constitutes an abuse of discretion if the action (1) is
arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an
error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). Moreover, an abuse of discretion
occurs if discretion is guided by an erroneous legal conclusion or goes outside the
framework of or fails to consider proper statutory limitations or legal standards. See
Graham v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013).

K.S.A. 2015 Supp. 60-226(b)(6)(C) requires the parties to disclose their experts in
the time and sequence as ordered by the court. No Kansas case has been cited nor have
we found one that addressed the admissibility of rebuttal experts under K.S.A. 2015
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Supp. 60-226, except when dealing with the timeliness of the disclosure of the expert.
That is clearly not the issue in this case since it is undisputed that Dr. Parisian was timely
disclosed as a rebuttal expert. In the absence of direct authority, we must draw guidance
from other jurisdictions involving the testimony of a rebuttal expert. Because the federal
and Kansas discovery rules which govern expert disclosures are identical, we may look to
federal caselaw for guidance. See Fed. R. Civ. P. 26(a)(2)(D)(ii); K.S.A. 2015 Supp. 60-
226(b)(6)(C)(ii).

Rebuttal expert testimony

"must relate to and rebut evidence or testimony on the same subject matter identified by
another party . . . . Such evidence is not tied to any particular witness; it is tied to whether
the party with the affirmative burden has presented evidence and/or testimony from a
duly disclosed expert on the same subject matter as that which will be rebutted by the
disclosed rebuttal expert. [Citation omitted.]" Bleck v. City of Alamosa, Colorado, No.
10-CV-03177-REB-KMT, 2012 WL 695138, at *4 (D. Colo. 2012).

"The proper function of rebuttal evidence is to contradict, impeach or defuse the
impact of the evidence offered by an adverse party." RMD, LLC v. Nitto Americas, Inc.,
No. 09-2046-JAR-DJW, 2012 WL 5398345, at *11 (D. Kan. 2010); see also Crowley v.
Chait, 322 F. Supp. 2d 530, 551 (D.N.J. 2004) ("Rebuttal evidence is properly admissible
when it will 'explain, repel, counteract or disprove the evidence of the adverse party.'").
An appellate court reviews a trial court's exclusion of an expert's rebuttal testimony under
K.S.A. 2015 Supp. 60-226(b)(6)(C)(ii) for an abuse of discretion. See Ohlmeir v. Jones,
51 Kan. App. 2d 1019, 360 P.3d 447 (2015).

K.S.A. 2015 Supp. 60-226(b)(6)(C)(ii) allows rebuttal testimony if the evidence is
intended "solely to contradict or rebut" other expert testimony. The defendants' focus on
these key words in the statute to support their argument that Dr. Parisian's report was not
proper rebuttal testimony. The defendants argue that Dr. Parisian's rebuttal evidence was
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duplicative of Bereal's two experts: Dr. Fifer and Harris. Thus, they argue that Dr.
Parisian's rebuttal testimony would have inappropriately bolstered Bereal's case-in-chief.
As a result, they argue that Dr. Parisian should have been disclosed as an expert in
Bereal's case-in-chief.

Nevertheless, if the opinion of a rebuttal expert "explains, refutes, counteracts, or
disproves the evidence put on by the other party, even if the rebuttal evidence also tends
to support the party's case-in-chief," it should not be stricken. See People v. Welsh, 80
P.3d 296, 304 (Colo. 2003). Here, Dr. David, who was not a medical doctor, singled out
Medrad, the manufacturer of the medical device, Avanta, as the sole culprit for the
injection of air into Bereal's aorta during the heart catheterization procedure. To illustrate,
Dr. David testified that "Medrad failed to behave as a reasonably prudent manufacturer of
medical device by failing to warn the staff and the physicians at Wesley . . . about
problems relating to air injection associated with the Avanta Injector System." In like
manner, Dr. David testified that he "found 119" reports "of air injections . . . associated
with the Avanta" on the Internet, of which he "looked at about 70."

The testimony of Dr. David, however, would have been contradicted by the
rebuttal testimony of Dr. Parisian, who is both a doctor of medicine and an expert in the
area of the Food and Drug Administration (FDA) approved radiological medical
products. Dr. Parisian's rebuttal testimony would have refuted the theory underlying Dr.
David's causation analysis. Dr. Parisian's rebuttal testimony would have undercut Dr.
David's testimony by explaining as follows: that Dr. David's "liberal use of various
public FDA documents which he obtained from the internet" was flawed, inappropriate,
superficial, speculative, misstated, and incomplete; that he "failed to create a valid
engineering root cause analysis"; that his "report lacks valid scientific or regulatory
methodology and credible evidence to establish that Medrad's device performed
defectively"; that his assumptions about clinical conduct were "unsupported"; that his
brushing away user error was wrong; and that he did not engage in any proper design
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review of the Avanta system. In short, Dr. Parisian would have testified that "Dr. David's
methodology, primarily due to his failure to review critical manufacturing, compliance
and regulatory data is unacceptable for a regulatory/safety device analysis and render his
opinions speculative at best." Moreover, Dr. Parisian would have testified that "there is
no evidence that the Medrad [Avanta] device or any of the disposables were defective. In
fact, the evidence is to the contrary."

Because Dr. Parisian's rebuttal evidence was intended solely to contradict, rebut,
explain, counteract, or disapprove the testimony of Dr. David, it would not have been
cumulative. The fact that Dr. Parisian's rebuttal evidence would have also helped support
Bereal's case-in-chief does not mean that it was an improper rebuttal disclosure. See
Welsh, 80 P.3d at 304 (Rebuttal evidence is admissible even if the rebuttal evidence also
tends to support the party's case-in-chief).

Turning our attention to the defendants' argument and the trial court's ruling that
Dr. Parisian should have been disclosed in Bereal's case-in-chief, we note that Bereal's
claims against Bajaj and Wesley involved their failure to meet the proper standard of
care. Bereal had no reason to present a products liability expert in his case-in-chief until it
was disclosed that the defendants were presenting a products liability expert in their
defense. As a result, the trial court's order striking Dr. Parisian's expert rebuttal evidence
improperly required Bereal to anticipate Bajaj's and Wesley's theory of the case. See
Taylor v. Mazzola, 150 Colo. 553, 557, 375 P.2d 96 (1962) ("A party is not required to
anticipate the testimony the opposing party will offer in defense.").

We are further guided in this inquiry by Warden v. Exempla, Inc., 2012 CO 74,
291 P.3d 30 (2012), where the Colorado Supreme Court reversed a trial court's order
striking a timely disclosed rebuttal expert. The Warden court held that the trial court had
abused its discretion in excluding the rebuttal expert's testimony because it properly
rebutted the defendant's expert's conclusions regarding the cause of injury. 291 P.3d at
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34-36, ¶¶ 18-29. In reaching this decision, the Warden court noted that the rebuttal expert
did not offer a new theory of the case; instead, the expert undercut the defense's expert by
attacking the report the defense expert relied on. 291 P.3d at 36, ¶ 28.

The facts presented in Warden are very similar to the facts of this case, and the
conclusion of the Supreme Court of Colorado that it was an abuse of discretion to strike
the timely designated rebuttal expert is persuasive.

Nevertheless, Wesley argues that any error in excluding Dr. Parisian's rebuttal
testimony was harmless. Wesley bases its argument on Dickerson v. St. Luke's South
Hospital, Inc., 51 Kan. App. 2d 337, 346 P.3d 1100 (2015). In that case, this court
recently held in a wrongful death action that where a jury found the named parties not at
fault, error in excluding nonparties from the verdict form was harmless. 51 Kan. App. 2d
at 354-55. Similarly, Wesley argues that because the jury found the named defendants not
at fault in this case, the reasoning applied in Dickerson is equally relevant to this case.
We disagree. The Dickerson holding stands in stark contrast to this case.

In support of its harmless error determination, the Dickerson court stated: "[T]he
jury determined the named defendants were not at fault indicates that the jury believed
the defendants' theory of the case—Nicole did not die because of a Vasotec error." 51
Kan. App. 2d at 355. We are unable to say the same in this case. Dr. David was the
principal defense expert on the theory of causation. As stated earlier, Dr. David singled
out the Avanta medical device as solely responsible for the injection of air into Bereal's
aorta during the heart catheterization procedure. If the jury believed Dr. David's
unrebutted causation testimony, it would have certainly found, as it did, that the
defendants were not at fault. Nevertheless, Dr. Parisian's excluded rebuttal testimony
would have refuted a central theory of Dr. David's conclusion. We are unable to say with
any degree of certainty that the jury would have found that the defendants were not at
fault if the trial court had not excluded Dr. Parisian's rebuttal testimony. Had the trial
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court allowed the jury to hear and to consider Dr. Parisian's rebuttal testimony, the jury
might have found the other way. Thus, Wesley's reliance on Dickerson is misplaced.

Accordingly, we conclude that the trial court erred when it excluded Dr. Parisian's
rebuttal testimony because her testimony was intended solely to contradict or rebut the
defense expert's causation evidence and therefore constituted a proper rebuttal disclosure
under K.S.A. 2015 Supp. 60-226(b)(6)(c)(ii).

Did the Trial Court Err in Allowing Dr. David to Testify to Conclusions That Were
Outside the Scope of His Disclosed Pretrial Report?

Next, Bereal argues that the trial court erred in allowing Dr. David to testify to two
separate conclusions that were outside the scope of his report. Specifically, Bereal
complains that the trial court incorrectly overruled his objections to two of Dr. David's
conclusions: (1) that the large volume of air injected into Bereal supported his opinion
that the air injection was caused by a device failure; and (2) that the pressure isolation
valve was defective. In response, the defendants maintain that both conclusions were
simply a matter of Dr. David giving additional detail about his opinions and were within
the scope of his report.

"A trial court has broad discretion regarding the admissibility of expert
testimony." Frans v. Gausman, 27 Kan. App. 2d 518, 527, 6 P.3d 432, rev. denied 270
Kan. 897 (2000). Again, we review this under an abuse of discretion standard.

As Bereal points out, K.S.A. 2015 Supp. 60-226(b)(6) requires disclosure of
expert testimony before trial:

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"(6) Disclosure of expert testimony. (A) Required disclosures. A party must
disclose to other parties the identity of any witness it may use at trial to present expert
testimony. The disclosure must state:

(i) The subject matter on which the expert is expected to testify; and

(ii) the substance of the facts and opinions to which the expert is expected to
testify.

"(B) Witness who is retained or specially employed. Unless otherwise stipulated
or ordered by the court, if the witness is retained or specially employed to provide expert
testimony in the case, or is one whose duties as the party's employee regularly involve
giving expert testimony, the disclosure under subsection (b)(6)(A) must also state a
summary of the grounds for each opinion."

Dr. David's pretrial report disclosed that in his opinion the air injection was the
"result of a defect in the Avanta or associated tubing that allowed air to enter during this
initial injection." Dr. David's report also disclosed that "it is more likely than not that the
connections within the disposable sets, even though properly attached, allowed air to
enter the system."

Amount of Air Testimony

At trial, Bereal objected after Dr. David testified to the following:

"Q: Okay. Dr. David, what is the testimony that you reviewed telling you about the
amount of air that was injected into Mr. Bereal?

"A. There's several sources for that volume of air. One is the plaintiff cardiologist expert,
Dr. Fifer, identify that a significant, large amount of air. The second one was Dr. Bajaj
testimony that is more definitive, call for, I believe, 7 to 15 cc volume air, and there is
cine [MRI] images that is showing air entered.
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"Q. Okay. What does that volume, that amount of air, suggest to you?

"A. If you look at the engineering of the disposable set that conducting the contrast and
the saline fluid from the injector to the patient, you take all this length of tubing and you
calculate the volume within that is about 5 cc space, and discussion is that the air that we
know to be entered into Mr. Bereal is larger than that, then it's obvious that there is
external source of air not only expendable by the volume was in the catheter."

Bereal immediately objected arguing that this opinion was outside the scope of Dr.
David's report and that it also went to causation of Bereal's injury, which was outside the
scope of the order in limine. After hearing argument, the trial court overruled Bereal's
objection finding that the testimony was not a causation opinion.

The defendants argue that this issue is controlled by K.S.A. 60-456(b) and rely on
Munoz v. Clark, 41 Kan. App. 2d 56, 199 P.3d 1283, rev. denied 289 Kan. 1279 (2009),
for support. Under K.S.A. 60-456(b), an expert is permitted to continue to form opinions
even at trial:

"'If the witness is testifying as an expert, testimony of the witness in the form of
opinions or inferences is limited to such opinions as the judge finds are (1) based on facts
or data perceived by or personally known or made known to the witness at the hearing
and (2) within the scope of the special knowledge, skill, experience or training possessed
by the witness.'

"See also Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978)
('The introduction of opinion or expert testimony is controlled by K.S.A. 60-456. An
expert must base his testimony upon facts personally perceived by or known to him or
made known to him at the hearing.')." Munoz, 41 Kan. App. 2d at 68.

In Munoz, our court affirmed the admission of expert testimony over objection that
the opinions were not within the scope of the expert's report. The Munoz court held that
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the opinion was based on facts made known to the expert at the jury trial and that the
opinions were within the scope of the expert's special knowledge, skill, and experience.
Thus, the court found the evidence was admissible under K.S.A. 60-456(b). 41 Kan. App.
2d at 68.

The same analysis can be applied in this case. Here, Dr. David explained in his
testimony that he reviewed Dr. Fifer's testimony and Dr. Bajaj's testimony regarding the
amount of air that was injected into Bereal to form his opinion that the air injection came
from an external source and not from the femoral catheter and tubing. Based on Munoz
and K.S.A. 60-456(b), Dr. David was permitted to continue to form opinions even at the
trial as long as that opinion was within the scope of his expertise. Therefore, because this
opinion was within the scope of Dr. David's special knowledge, skill, and experience and
was also based on facts made known to him at the jury trial, we determine that the
evidence was admissible. As a result, the trial court did not abuse its discretion in
allowing this evidence to come in.

Pressure Isolation Valve Testimony

Later, while Dr. David was testifying, he was asked to explain his theory on how
the air entered the single patient tubing (SPAT) during the initial injection. (By way of
explanation, the SPAT is a specialized tubing that connects to the multipatient tubing
(MPAT). The SPAT connects to a femoral catheter inserted into the patient's femoral
artery through an incision near the groin. The MPAT, however, connects directly into the
injector.). Dr. David responded as follows:

"We have a system, that is correct, it is serving high-pressure injection from the Medrad
device into the MPAT and the SPAT, the disposable system. However, the pressure that
is going down the line is creating what I would call a Venturi effect. The Venturi effect is
the effect that if you have a flow of fluid and there is [an] opening, the air from the
18

atmosphere would be sucked in. So in order to reconcile all the evidence we have here, it
seems to me that the proper explanation would be that the pressure isolation [valve] was
defective, did not serve its purpose, and was open to external air to allow to be sucked in
when the injection began."

Dr. David continued to discuss the pressure isolation valve for an additional 10
pages of testimony before Bereal objected. Bereal objected after Dr. David testified that
"the only way to reconcile the facts that were just described here in Court is by
determining that the pressure isolation valve was defective." The trial judge overruled
Bereal's objection and later gave the following explanation for overruling his objection:

"Mr. Warner [Bereal's counsel] made an objection [based on being] outside the scope of
the report, and I didn't have counsel approach or anything, I just overruled the objection.
And basically when I'm looking at Page 10 of his report, this is what—why I did it. It
says, the air injected into Mr. Bereal entered the Avanta tubing, or catheter, upon the
initial injection as a result of a defect in the Avanta or associated tubing that allowed air
to enter into this initial injection.

"All right. So that—that was the basis of my ruling which was while that may be
a broad opinion, the question that was asked was within the scope of that broad question.
And so that's why I overruled the objection."

Wesley contends that Bereal failed to preserve this issue for appeal regarding the
testimony about the pressure isolation valve because he failed to make a timely and
specific objection at trial as required by K.S.A. 60-404.

In State v. King, 288 Kan. 333, 341-50, 204 P.3d 585 (2009), our Supreme Court
held that K.S.A. 60-404 provides that a judgment shall not be reversed on account of the
"erroneous admission of evidence unless there appears of record objection to the
evidence timely interposed and so stated as to make clear the specific ground of
objection."
19

Moreover, we are duty bound to follow the rule in King absent some indication the
court is departing from this ruling. See Farley v. Above Par Transportation, 50 Kan.
App. 2d 866, 877, 334 P.3d 883 (2014), rev. denied 302 Kan. __ (July 24, 2015). Our
Supreme Court has applied King in a variety of contexts since then; therefore, we see no
indication that the court is departing from King.

Under the analysis required by King, we note that Bereal did not object when Dr.
David began testifying that the pressure isolation valve was defective. When he did
object, Dr. David had already been discussing the pressure isolation valve for 10 pages of
the trial transcript testimony. Based on the late objection to the pressure isolation valve
testimony, we conclude that Bereal has failed to preserve this issue for appeal.

In addition, based on the broad language in Dr. David's report, we cannot say that
the trial court abused its discretion in finding that this testimony was within the scope of
Dr. David's report.

Was Dr. David's Evidence Speculative?

Before trial, Bereal moved to exclude Dr. David's testimony as speculative. The
trial court ultimately denied the motion. Again, Bereal failed to note this decision in his
brief and does not challenge the trial court's decision. As a result, his argument fails.

Was Bereal Entitled to Judgment as a Matter of Law on All Six of the Defendants'
Affirmative Defenses of Products Liability?

Finally, Bereal argues that he should have been granted judgment as a matter of
law on the affirmative defenses at the conclusion of the evidence for two reasons: (1) The
defendants failed to overcome certain statutory presumptions set forth in the Kansas
20

Product Liability Act (KPLA), K.S.A. 60-3301 et seq.; and (2) Dr. David's testimony was
speculative and failed to identify which aspect of the Avanta system was defective.

Defendant Bajaj argues that Bereal's argument fails for three reasons: (1) This
case was not decided based on comparative fault; (2) Bereal improperly requests this
court to disregard Dr. David's expert opinions even though he failed to show, or argue,
that they were inadmissible; and (3) Bereal incorrectly argues that the defendants raised
affirmative defenses under the KPLA.

A trial court's decision on a motion for judgment as a matter of law is reviewed
under the former directed verdict standard of review. Bussman v. Safeco Ins. Co. of
America, 298 Kan. 700, 706, 317 P.3d 70 (2014); see K.S.A. 2015 Supp. 60-250.

When ruling on a motion for directed verdict, the trial court is required to resolve
all facts and inferences that may reasonably be drawn from the evidence in favor of the
party against whom the ruling is sought. Where reasonable minds could reach different
conclusions based on the evidence, the motion must be denied. An appellate court must
apply a similar analysis when reviewing the grant or denial of a motion for judgment as a
matter of law. City of Neodesha v. BP Corporation, 295 Kan. 298, 319, 287 P.3d 214
(2012); see Bussman, 298 Kan. at 706-07.

Bereal's Argument Regarding the KPLA

During pretrial motions the following statements were made:

"[Defense counsel:] . . . It's true we're going to have to meet the burden of proof
for our comparative fault defense. But those are the common-law elements in the product
liability claim we're going to have to fulfill and we intend to do so. It doesn't have
21

anything to do with disproving or proving—disproving the defenses that are in the
Kansas Product Liabilty Act.

. . . .

"[THE COURT:] '"I agree, and—and I'm holding as a matter of law because no
one's really been able to convince me otherwise that the KPLA does not apply to Medrad
comparative fault claim because the company is no longer a party. It's someone who's not
a party. And so I agree with the arguments and the briefs on that. So to the extent that it
might apply if Medrad were still in, it doesn't apply.'"

In his brief, Bereal assumes that the KPLA applies to the defendants' affirmative
defenses. Bereal failed to note that the trial court held that the KPLA did not apply to the
defendants' affirmative defenses. Bereal has failed to challenge the trial court's decision
on this point. Instead, he has built his claim on an inference that he has not argued or
proved. Thus, his argument fails.

Affirmed in part, reversed in part, and remanded for a new trial.