OPINION FILED: February 6, 2018 Motion for Rehearing and/or Transfer to
Supreme Court Denied March 22, 2018 Application for Transfer Denied May 22, 2018,
Daniel A. Thomas, Independence, MO, for appellant., Brian J. Niceswanger and Stephanie
A. Preut, Overland Park, KS, for respondents., Cynthia L. Martin, Judge *868Tim
Beverly ("Beverly") appeals from the trial court's judgment in favor of Michael
C. Hudak, D.C. ("Dr. Hudak") and I Got Your Back Chiropractic, LLC ("I Got Your
Back") (collectively "Defendants") following a jury trial on Beverly's claim of
chiropractic malpractice. Beverly asserts that the trial court erred in denying
his motion for new trial because the trial court made errors involving evidentiary
rulings and because the verdict in favor of the Defendants was against the weight
of the evidence. Finding no error, we affirm., On December 31, 2007, Beverly went
to the emergency room at St. Luke's North Hospital, complaining of the same symptoms,
though they were more localized to the left-side of his body. St. Luke's North
Hospital reviewed the records from Truman Medical Center and examined Beverly. St.
Luke's North Hospital gave Beverly medications for his symptoms and allowed him
to rest in the emergency room before discharging him with the same instructions
Beverly received from Truman Medical Center., The next day, Beverly's symptoms
returned. Beverly's roommate drove him to I Got Your Back on January 4, 2008, for
another chiropractic adjustment. Immediately after Dr. Hudak performed the adjustment
on Beverly's cervical spine, Beverly's eyes rolled back into his head, his right
arm and left leg shook, and his speech became slurred. Dr. Hudak's assistant called
911. An ambulance transported Beverly to North Kansas City Hospital, where doctors
diagnosed Beverly's vertebral artery dissection for the first time and determined
that Beverly had suffered four strokes., Beverly filed suit against the Defendants.
Though it was uncontested that Beverly sustained his vertebral artery dissection
while playing basketball on December 22, 2007, the jury was asked to determine whether
Dr. Hudak's chiropractic adjustment on January 4, 2008, caused a blood clot to
dislodge and occlude blood vessels in the brain, causing Beverly's strokes. The
jury returned a verdict in favor of the Defendants, and the trial court entered
a judgment ("Judgment") accepting the jury's verdict. Beverly filed a motion for
new trial, which was overruled., Beverly presents five points on appeal, each of
which argue that the trial court erred in denying Beverly's motion for new trial.
"[T]o succeed on a motion for new trial, the moving party must establish 'that
trial error or misconduct of the prevailing party incited prejudice in the jury.'
" Sherar v. Zipper , 98 S.W.3d 628, 632 (Mo. App. W.D. 2003) (quoting Kansas City
v. Keene Corp. , 855 S.W.2d 360, 372 (Mo. banc 1993) ). We review the denial of
a motion for new trial for abuse of discretion. Westerman v. Shogren , 392 S.W.3d
465, 469 (Mo. App. W.D. 2012). An abuse of discretion occurs when the trial court's
ruling is clearly against the logic of the circumstances before the court at the
time and is so unreasonable and arbitrary that it shocks one's sense of justice
and indicates a lack of careful consideration. Id. at 469-70. We will reverse the
trial court's denial of a motion for new trial only if we find a "substantial or
glaring injustice." Sterbenz v. Kansas City Power & Light Co. , 333 S.W.3d 1, 7
(Mo. App. W.D. 2010)., In his first point on appeal, Beverly argues that the trial
court erred in denying his motion for new trial because the Defendants' expert,
Dr. Harold Pikus ("Dr. Pikus"), was improperly allowed to testify "in that several
of his opinions were new opinions offered for the first time at trial." [Appellant's
Brief p. 22] Beverly asserts that Dr. Pikus's new opinions resulted in unfair surprise
that had a consequential influence on the jury's verdict., Rule 56.01(b)(4) allows
a party to obtain discovery by interrogatories or by deposition of facts known and
opinions held by any persons the other party expects to call as an expert witness
at trial. " 'Discovery rules and case law establish the principle that when an
expert witness has been deposed and later changes his opinion before trial or bases
that opinion on new or different facts from those disclosed in the deposition, it
is the duty of the party intending to use the expert witness *870to disclose that
new information to his adversary, thereby updating the responses made in the deposition.'
" Snellen ex rel. Snellen v. Capital Region Med. Ctr. , 422 S.W.3d 343, 353 (Mo.
App. W.D. 2013) (quoting Redel v. Capital Region Med. Ctr. , 165 S.W.3d 168, 175
(Mo. App. E.D. 2005) (emphasis added)). The purpose of the principle is "to protect
a party from the failure of an expert to disclose his opinion or the facts he bases
that opinion on during the discovery process." Sherar , 98 S.W.3d at 633. If an
expert provides different testimony from that disclosed in discovery, then the trial
court is vested with discretion to determine how to remedy the situation. Beaty
v. St. Luke's Hosp. , 298 S.W.3d 554, 560 (Mo. App. W.D. 2009). Surprise exists
when "an expert witness suddenly has an opinion where he had none before, renders
a substantially different opinion than the opinion disclosed in discovery, uses
new facts to support an opinion, or newly bases that opinion on data or information
not disclosed during the discovery deposition." Sherar , 98 S.W.3d at 634. Surprise
cannot be manufactured, however. "The attorney deposing the witness must ask for
the expert's opinion and/or the underlying facts or data." Id. A party cannot claim
surprise based on "new opinions" as to matters about which the expert witness has
not been asked during discovery. As we explained in Sherar , to conclude otherwise:,
Beverly's first point on appeal identifies eight "new" opinions Dr. Pikus gave
at trial: (i) that Beverly did not have nystagmus when he was treated by Dr. Hudak;
(ii) that it takes twenty seconds for a blood clot to travel to the brain; (iii)
that Beverly had suffered a stroke more than forty-eight hours before Dr. Hudak
adjusted his neck; (iv) that Beverly made a remarkable recovery with rehabilitation;
(v) that Beverly did not comply with treatment recommendations; (vi) that Beverly's
cognitive dysfunction was not caused by his stroke ; (vii) that Beverly reached
maximum medical improvement; and (viii) that Beverly's insomnia and memory issues
were not caused by his stroke. Beverly argues that these opinions were "new," and
subject to exclusion from evidence, because Dr. Pikus was asked in his deposition
if he had given all of the opinions he intended to offer at trial.2 Beverly began
his cross-examination of Dr. Pikus by asking him to admit that he had offered "new
opinions" during his direct examination-that is opinions he had not given during
his deposition. Dr. Pikus responded that any "new opinions" given at trial involved
matters he had not been asked about during his deposition.3, *871First, Beverly
complains that Dr. Pikus testified at trial that even though Dr. Hudak made a notation
that Beverly had "nystagmus present left eye," Dr. Pikus did not believe that Beverly
had nystagmus because nystagmus symptoms would have been present in both eyes. Beverly
complains that this opinion was not provided during Dr. Pikus's deposition. Beverly's
argument fails to account for the fact that Dr. Pikus's trial testimony on this
subject was provided in response to Beverly's cross-examination of Dr. Pikus. [Tr.
1236] Beverly did not object to the trial testimony at the time it was given, or
otherwise seek relief from the trial court regarding the testimony, leaving his
objection on appeal unpreserved for our review. Host , 460 S.W.3d at 106. Moreover,
during his deposition, Dr. Pikus was generally asked about the causes of nystagmus.
Dr. Pikus testified during his deposition that a dissection will not cause nystagmus,
though the sequelae of dissection (such as a stroke or ischemia) might cause nystagmus.
He was not asked about Beverly's reported nystagmus. In order for an expert's
testimony to constitute a surprise, "the attorney deposing the witness must ask
for the expert's opinion and/or the underlying facts or data." Sherar , 98 S.W.3d
at 634., Second, Beverly challenges Dr. Pikus's testimony that it takes approximately
20 seconds for a blood clot to travel to the brain once it dislodges. Dr. Pikus
offered this trial testimony to explain why he believed that even though Beverly
suffered a stroke while he was at Dr. Hudak's office, the stroke was not caused
by Dr. Hudak's manipulation. During his deposition, Dr. Pikus consistently testified
that "any little movement" will free a clot, and that although there was a temporal
relationship between when Beverly had a stroke and his presence in Dr. Hudak's
office, he could not say that Dr. Hudak's manipulation caused the clot to let lose.
Dr. Pikus's trial testimony about the time it takes a blood clot to travel to the
brain constituted an explanation for the causation opinion Dr. Pikus provided both
at trial and during his deposition. However, Beverly's counsel did not ask Dr.
Pikus to explain the basis for his causation opinion during his deposition. "[T]he
attorney deposing the witness must ask for the expert's opinion and/or the underlying
facts or data ." Sherar , 98 S.W.3d at 634 (emphasis added). Dr. Pikus's trial
testimony was not surprise testimony., Third, Beverly claims that Dr. Pikus's trial
testimony that Beverly suffered a stroke at least forty-eight hours before his January
4, 2008 visit to Dr. Hudak was a surprise. We disagree. Dr. Pikus testified at trial
that, in addition to the stroke that Beverly suffered on January 4, 2008 at Dr.
Hudak's office, Beverly suffered other strokes, including one that occurred at
least forty-eight hours before the CT scan taken after his admission to North Kansas
City Hospital. During his deposition, Dr. Pikus similarly testified that Beverly
had a stroke before his neck was manipulated by Dr. Hudak on January 4, 2008. He
explained that this prior stroke occurred "at least a day" before the CT scan on
January 4, 2008. Though Dr. Pikus's *872trial testimony, which suggested that the
time frame of the earlier stroke was forty-eight hours before January 4, 2008, was
more specific than the "at least a day" time frame testified to in his deposition,
the discrepancy is not so material as to constitute surprise testimony. The principle
requiring a party to disclose when an expert witness changes an opinion "is not
intended as a mechanism for contesting every variance between discovery and trial
testimony. Impeachment of the witness will accomplish that goal." Sherar , 98 S.W.3d
at 634., The seventh opinion Beverly challenges is Dr. Pikus's trial testimony
that he believed Beverly had reached maximum medical improvement within a year of
the strokes. Beverly's point on appeal complains about Dr. Pikus's cross-examination
testimony. [L.F. 1265-66] However, it was Beverly's question of Dr. Pikus that
used the phrase "maximum medical improvement," not Dr. Pikus's response. Dr. Pikus
did explain on direct-examination that he had reviewed Beverly's medical records
from January 2008 to January 2009 because "this is the critical period [in which]
you can expect that somebody is going to be at their maximum medical improvement."
One of these records indicated that Beverly was "neurologically normal" in August
2008. However, Beverly did not object to this direct examination testimony at trial,
and has not cited to this testimony as the basis for his claim of error on appeal,
preserving nothing for our review. Host , 460 S.W.3d at 106., The eighth opinion
Beverly challenges is Dr. Pikus's trial testimony that Beverly's insomnia and
memory problems were due *873to stress. At trial, Dr. Pikus testified that insomnia
and memory problems "are characteristic of stress reaction" and that he believed
that stress is "responsible for [Beverly's] tension headaches and his insomnia
and his perception of cognitive trouble." During his deposition, Dr. Pikus was specifically
asked for his "opinion as to why [Beverly is] having the trouble he's having now."
Dr. Pikus similarly responded:, The trial court did not err in denying Beverly's
motion for new trial based on Beverly's claims that Dr. Pikus provided surprise
expert opinion testimony. Point One is denied., Beverly's second point on appeal
argues that the trial court erred in denying his motion for new trial because Dr.
Hudak should not have been allowed to give surprise expert witness testimony on
the subject of whether his treatment of Beverly fell below the chiropractic standard
of care. Beverly asserts that Dr. Hudak should not have been permitted to give this
opinion because he had not been disclosed or identified as an expert witness on
the issue of the standard of care., Beverly's claim of error fails to differentiate
between the discovery rules applicable to retained versus non-retained experts.
"Discovery rules distinguish between facts and opinions held by non-retained experts
from those held by experts who acquired facts and developed opinions in anticipation
of litigation." St. Louis Cty. v. River Bend Estates Homeowners' Ass'n , 408 S.W.3d
116, 133 (Mo. banc 2013). Rule 56.01(b)(4) "applies only to experts retained by
parties in anticipation of litigation." State ex rel. Mo. Highway & Transp. Comm'n
v. McDonald's Corp. , 872 S.W.2d 108, 113 (Mo. App. E.D. 1994). "To give advance
notice to the opposing party and avoid unfair surprise, Rule 56.01(b)(4) requires
a party to disclose more information with respect to expert witnesses who acquired
facts and have formed opinions in preparation for litigation." St. Louis Cty. ,
408 S.W.3d at 133. Parties may discover what witnesses their opponents expect to
call as expert witnesses at trial through the use of interrogatories:, Though the
argument is not made by Beverly, the Defendants were required to comply with Rule
56.01(b)(5), which sets forth the disclosure rules for non-retained experts, including
parties. "A party, through interrogatories, may require any other party to identify
each non-retained expert witness, including a party, whom the other party expects
to call at trial who may provide expert witness opinion testimony by providing the
expert's name, address, and field of expertise ." Rule 56.01(b)(5) (emphasis added).
"Discovery of the facts known and opinions held by such an expert shall be discoverable
in the same manner as for lay witnesses." Id., The trial court overruled Beverly's
objection that Dr. Hudak should not be allowed to testify regarding the standard
of care because the Defendants had not identified him as an expert for this purpose.
Though the Defendants violated Rule 56.01(b)(5) by failing to specifically identify
Dr. Hudak as a non-retained expert on the subject of the standard of care, we review
the trial court's decision to permit Dr. Hudak's testimony for an abuse of discretion.
Travelers Commercial Cas. Co. v. Vac-It-All Servs., Inc. , 451 S.W.3d 301, 306 (Mo.
App. E.D. 2014) (holding that the trial court has broad discretion to resolve discovery
violations). In reviewing the trial court's decision, "we consider whether the
challenged act by the trial court, under the totality of the circumstances, has
resulted in prejudice or unfair surprise." Id., This case is thus distinguishable
from Wilkerson v. Prelutsky , 943 S.W.2d 643 (Mo. banc 1997). There, the plaintiff
disclosed that it might "call as expert witnesses on damages any and all of Plaintiff's
treating physicians. Said experts may testify to various aspects of the damage issues
including fairness and reasonableness of the medical charges and causal relationship
of the treatment provided to the carbon monoxide poisoning." Id. at 649. The trial
court excluded the testimony of a non-party treating physician as a sanction for
the plaintiff's failure to specifically identify the treating physicians who would
testify as non-retained experts. Id. at 648. The Supreme Court noted that "[d]efendants
were entitled to rely on plaintiff's answers to interrogatories in determining
who they should depose and who to select as their experts," and the "[p]laintiff's
failure to identify [the treating physician] in her interrogatory responses could
*875very well have led defendants to believe that plaintiff did not consider [the
treating physician] to be a potential witness in the case." Id. Our Supreme Court
thus concluded the trial court did not abuse its discretion in excluding the testimony
of one of the treating physician as a sanction for failing to comply with Rule 56.01(b)(4).
Id., Beverly does not similarly contend that the Defendants' failure to identify
Dr. Hudak, the party defendant, as a non-retained expert who would testify regarding
his own standard of care, impacted Beverly's decision about who to depose. Nor
has Beverly argued that he was prejudiced in the selection of his own experts on
the issue of the standard of care. Moreover, Dr. Donald Knudson ("Dr. Knudson"),
the Defendants' retained chiropractic expert, testified that Dr. Hudak's treatment
of Beverly did not fall below the applicable standard of care, rendering Dr. Hudak's
self-serving testimony to the same effect merely cumulative. The trial court did
not abuse its discretion in denying Beverly's motion for new trial based on Dr.
Hudak's testimony regarding the chiropractic standard of care., Beverly's third
point on appeal argues that the trial court abused its discretion in denying his
motion for new trial because the trial court erroneously denied Beverly's motion
in limine involving the admission of evidence of Beverly's prior drug use., A ruling
on a motion in limine is interlocutory and subject to change during the course of
a trial. Peters v. Gen. Motors Corp. , 200 S.W.3d 1, 15 (Mo. App. W.D. 2006). Thus,
a motion in limine preserves nothing for appeal. Id. Instead, a party is required
to object at trial to the introduction of evidence and restate the objection in
a motion for new trial in order to preserve the issue for appeal. Id., On each occasion
during trial when the prospect of admitting evidence of Beverly's drug use was
broached by the Defendants, Beverly successfully objected, resulting in the exclusion
of the evidence. Beverly nonetheless asserts on appeal that the trial court's denial
of his motion in limine set in motion a series of procedural events that were ultimately
grounds for a mistrial. During voir dire, Beverly's attorney asked the venire the
following question: "Now, this next issue, the defendants and their witnesses may
talk about drugs and whether or not Mr. Beverly, my client, has experimented with
them when he was younger. Is there anyone here who believes it would be difficult
for them to enter a verdict for a person who may have experimented with drugs when
they were younger?" No venirepersons raised their hands. The Defendants' attorney
then asked the venire if anyone had an experience when working in health care when
a patient did not fully disclose all relevant information. A juror answered, referencing
*876patients' tendency to hide drug use, particularly cocaine or meth. The Defendants'
attorney then stated, "[Beverly's attorney] indicated that there may be an issue
in this case about drug use. And since you're involved with caring for patients-you
mentioned cocaine-is that something that can have adverse consequences to patients?"
The venireperson responded affirmatively, and stated that if the patient is currently
on cocaine or meth and discloses that information, the treatment plan will be different.
Beverly moved for a mistrial the next morning before opening statements. Beverly
argued that a mistrial was necessary because "the jury has been voir dired on the
drug issue, and I can't unring that bell." The trial court denied the request for
mistrial., We express no opinion as to whether Beverly's request for a mistrial
should have been granted. Neither Beverly's motion for new trial nor his point
on appeal claim error in the denial of his request for a mistrial. Instead, Beverly's
point on appeal challenges only the trial court's preliminary ruling denying Beverly's
motion in limine, a ruling which preserves nothing for our review. Beverly argues
that the motion in limine ruling left him no choice but to question the venire about
prejudice or bias regarding drug use. Beverly cites no authority, however, for the
proposition that his decision to voir dire on the subject of drug use converted
the trial court's interlocutory pre-trial ruling into an appealable ruling.4 "Rule
84.04(d) requires that an Appellant provide appropriate citation to authority in
support of his contentions. If no authority exists on the issue, an explanation
for the absence of authority is required. If no explanation is given, we may consider
the point to be abandoned." White v. Emmanuel Baptist Church , 519 S.W.3d 917, 927
(Mo. App. W.D. 2017)., The trial court did not abuse its discretion in denying Beverly's
motion for new trial based a claimed error in ruling on a motion in limine. Point
Three is denied., Beverly's fourth point on appeal argues that the trial court
abused its discretion in denying his motion for new trial because the Defendants
were permitted to elicit testimony to support an "empty chair" defense., Beverly
complains that the trial court erred in allowing the Defendants to elicit testimony
that blamed the emergency rooms at Truman Medical Center and St. Luke's North for
failing to discover Beverly's vertebral artery dissection. However, the premise
of Beverly's argument is not borne out by the record. The Defendants asked Dr.
Robert Allen Bailey ("Dr. Bailey"), Beverly's chiropractic expert witness, whether
he believed "it was fine for Mr. Beverly to be sent home from both of those emergency
rooms." The trial court overruled Beverly's objection that the question sought
improper "empty chair" testimony, after which Dr. Bailey testified that he saw no
fault in either emergency rooms' discharge decision. The Defendants also asked
Dr. Pikus about Truman Medical Center's failure to diagnose Beverly's vertebral
artery dissection. Dr. Pikus answered: