The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JILL NATION, )
)
Plaintiff, )
)
vs. ) Case No. 3:22-cv-05063-MDH
)
THOMAS E. MOORE, DDS, et. al., )
)
Defendants. )
ORDER
Before the Court is Plaintiff’s Motion for New Trial. (Doc. 272) Defendants’ have jointly
responded in opposition to Plaintiff’s Motion for a New Trial (Doc. 276) and Plaintiff has replied.
(Doc. 277). The matter is now ripe for review. For the following reasons Plaintiff’s Motion for a
New Trial is DENIED.
BACKGROUND
Plaintiff brought three counts to trial against Defendants. Specifically, Plaintiff brought
counts of: (1) Dental Negligence against part Defendant Thomas E. Moore DDS and Thomas E.
Moore DDS, P.C.’s (collectively “Dr. Moore”); (2) Dental Negligence against Defendant Rock
Dental Missouri, LLC (“Rock Dental”); and (3) conversion of medical records against all
Defendants. On October 31, 2024 this Court granted in part and denied in part Defendant Moore’s
Motion for Directed Verdict and Defendant Rock Dental’s Motion for Directed Verdict. (Doc.
250). The Court found that Plaintiff failed to prove the necessary elements of conversion and
directed a verdict in favor of Defendants on that issue. Further, the Court directed a verdict in favor
of Rock Dental regarding any direct lability resulting from the alleged inaction of the Doctor
Executive Committee. Additionally, On November 4, 2024, the jury returned a verdict finding
Defendants zero percent at fault on Plaintiff’s medical malpractice claim. Plaintiff’s current
Motion seeks a new trial on her claims of conversion and negligence. Plaintiff also seeks a new
trial because she claims Defendants’ arguments regarding alternate causation were prejudicial and
the weight of evidence was that Plaintiff suffered damages for which she is receiving care and
treatment.
STANDARD
The Eighth Circuit held, “Federal Rule of Civil Procedure 59(e) was adopted to clarify a
district court’s power to correct its own mistakes in the time period immediately following entry
of judgment.” Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d
1284, 1286 (8th Cir. 1998) (citations omitted). Motions under Rule 59(e) may only correct
manifest errors or present newly discovered evidence. Id. Plaintiffs may not rely on Rule 59(e) to
introduce new evidence or raise new arguments or theories. Id.
DISCUSSION
I. Conversion
Plaintiff argues that she presented competent evidence on all elements of conversion and
was entitled to have it determined by the jury. Defendants argue that the Court correctly directed
verdict as conversion of medical records is not a valid claim under Missouri law. Under Missouri
law, conversion requires: (1) the plaintiff owned the property or was entitled to possess it, (2) the
defendant took possession of the property with the intent to exercise some control over it, and (3)
the defendant thereby deprived the plaintiff or the right to possession. In re Luebbert, 987 F.3d
771, 783 (8th Cir. 2021). To maintain conversion, there must be an invasion of a legal right, as
opposed from an equitable right. Osborn v. Chandeysson Elec. Co., 248 S.W.2d 657, 663 (Mo.
1952). In Missouri an equitable ownership is the right of the party to have legal title transferred to
her upon the performance of a specified condition. K.C. 1986 Ltd. Partnership v. Reade Mfg., 33
F.Supp.2d 820, 834 (W.D. Mo. 1998).
The Court found that Plaintiff did not have an immediate legal right to possession of her
dental records and thus had an equitable ownership interest rather than a legal right. In Missouri
dentists are responsible for maintaining an adequate and complete record of the patient for seven
years from the date of the last professional service rendered. Mo. Rev. Stat. § 332.052. The dentist
may provide a copy of the patient’s record upon written request, and that copy may be limited to
access consistent with the patient’s condition and sound therapeutic treatment as defined by the
provider. Mo. Rev. Stat. § 191.227.1. As such the Court found Plaintiff had a conditional right to
her record and not an immediate right such that a claim for conversion was not proper.
Finally, it should be noted Plaintiff was given substantial records immediately upon
request. Some delay in producing additional records resulted in part from a change of ownership
of Defendants dental practice. A request for records by one of Plaintiff’s experts of portions of the
medical record not traditionally sent in response to a typical records request also caused some
records to be provided later. Lastly, another one of Plaintiff’s experts wanted better quality film
which Defendant Moore ultimately provided. Plaintiff’s expert request for records by Plaintiff’s
subsequent treating dentist was clearly motivated by a desire to protect himself from any potential
litigation. In any event he did not need the records to begin care of Plaintiff and in fact admitted
he never looked at the later produced record. Plaintiff has not shown a manifest error that would
warrant Rule 59(e) relief with regard to this claim. As such, Plaintiff’s request for a new trial on
her conversion claim is DENIED.
II. Negligence
Plaintiff argues a new trial is warranted on negligence because the weight of the evidence
was that Dr. Moore failed to use that degree of skill and learning ordinarily used under same or
similar circumstances by members of his profession in (1) moving over the lateral incisor to replace
the central incisor, and (2) failing to treat Plaintiff’s class II skeletal condition. Defendants argue
that the great weight of evidence in this case established that Dr. Moore’s treatment was within
the standard of care.
“A district court abuses its discretion in denying a motion for new trial based on sufficiency
of evidence if the verdict is against the weight of the evidence and allowing it to stand would result
in a miscarriage of justice.” Russell v. Anderson, 966 F.3d 711, 724 (8th Cir. 2020) (quoting
Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 4533, 459 (8th Cir. 2016)). In a diversity
action, “whether the jury’s verdict was against the great weight of the evidence is judged in
accordance with substantive state law.” Russell v. Anderson, 966 F.3d 711, 724 (8th Cir. 2020)
(quoting Bank of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841, 851 (8th Cir. 2014)). Under Missouri
law the elements of a medical negligence claim are “the health care provider failed to use that
degree of skill and learning ordinarily used under the same or similar circumstances by members
of the defendant’s profession and that such failure directly caused or contributed to cause the
plaintiff’s injury or death.” Mo. Rev. Stat. § 538.210.1.
A. Moving the Lateral Incisor to the Central Incisor Position
Plaintiff argues that the great weight evidence as presented by Dr. Moore, Dr. Meredith,
Dr. Truitt, and Dr. Miller established the Defendants’ negligence regarding the moving the lateral
incisor to the central incisor position. Defendants argue that the great weight of evidence
established that Dr. Moore used the degree of skill and learning ordinarily exercised under the
same or similar circumstances by members of his profession. Defendants’ state any argument to
the contrary would require the court to reweigh the evidence and substitute its judgment for that
of the jury.
Plaintiff’s expert Dr. Meredith testified that Plaintiff’s missing central incisor should be
treated with either a bridge or implant and that a space closure for a missing central incisor was
not taught to her or dental students. Plaintiff’s expert Dr. Truitt testified that Defendant Dr. Moore
was negligent for failing to consult any other orthodontist, a cosmetic dentist, and the UMKC
Dental School before starting his plan. However, Defendants highlighted that both Dr. Meredith
and Dr. Truitt were general dentists without orthodontic residency training research. Dr. Truitt
repeatedly admitted that some of his ideas were rejected by the traditional mainstream orthodontic
community in the United States. Defendants’ expert Dr. Miller provided testimony by the only
residency trained and board-certified orthodontist other than Dr. Moore. He testified that the lateral
incisor substation plan was well within the standard of care and was an option which any
orthodontist exercising that degree of skill and learning ordinarily exercised under same or similar
circumstance by their profession would have offered to Plaintiff.
The Court cannot say that the verdict is against the weight of evidence nor that allowing it
to stand would result in a miscarriage of justice. A reasonable jury could and did find no negligence
in Plaintiff’s treatment by Dr. Moore. For the reasons stated above Plaintiff’s Motion for a New
Trial based on negligence relating to moving the lateral incisor to the central incisor position is
DENIED.
B. Treating Plaintiff’s Class II Skeletal Structure
Plaintiff argues that the weight of evidence showed Dr. Moore failed to correct Plaintiff’s
skeletal class II condition. Specifically, Defendant Moore charted Plaintiff’s class II skeletal
problems in September of 2015 but had no treatment to address those diagnosed problems. Plaintiff
also argues that Rock Dental admitted that it rendered no treatment to correct Plaintiff’s skeletal
class II condition. Defendants argue that Dr. Moore’s treatment plan included interventions to
address Plaintiff’s class II skeletal condition but was denied the chance to fully implement his plan.
Dr. Moore testified he intended to treat Plaintiff’s class II skeletal condition by using tooth
extractions and class II elastics. Defendants’ expert Dr. Miller testified that Dr. Moore’s plan to
use tooth extractions and rubber bands to address Jill Nation’s class II skeletal condition was
appropriate. Dr. Miller further testified that the tooth extractions did improve Plaintiff’s Skeletal
Class II condition. However, both Dr. Moore and Dr. Miller testified that because Plaintiff did not
keep regular visits for follow up care, Plaintiff never progressed sufficiently to allow the use of
rubber bands and therefore Dr. Moore did not have an opportunity to address the class II skeletal
condition. The jury was entitled to believe their testimony.
Regarding Plaintiff’s argument that Rock Dental rendered no treatment to correct
Plaintiff’s skeletal class II condition is misleading. While evidence was presented that Rock Dental
did not actually render treatment after Dr. Moore became affiliated with it, there was evidence that
Rock Dental, through Dr. Moore, set up a follow-up appointing with Plaintiff for December 13,
2021. Evidence established that Dr. Moore prepared for the December 13, 2021 visit by reviewing
the most recent records and problems list. Evidence was produced by which a reasonable jury
could have believed and found it was Plaintiff who refused further treatment by Dr. Moore at that
time. The Court cannot say that the verdict is against the weight of evidence nor that allowing it to
stand would result in a miscarriage of justice. For the reasons stated above Plaintiff’s Motion for
a New Trial based on negligence relating to treating Plaintiff’s class II skeletal structure is
DENIED.
III. Alternative Causation
Plaintiff argues that Defendants’ alternate causation evidence prejudiced the outcome of
the trial. Specifically, she points to Defendants’ arguments that Tracie Nation, stress, and whiplash
arguments were all prejudicial. Defendants assert that the alternative causation arguments were
proper.
A. Alternative Causes
Plaintiff argues that Dr. Miller’s testimony regarding the fault of Tracie Nation was
prejudicial and insufficient to present a sole cause defense. Specifically, Plaintiff argues that the
sole causation arguments regarding Tracie Nation was never properly disclosed and that such a
failure warrants a new trial. Additionally, Plaintiff states Dr. Moore was required by the standard
of care to have a “huddle up” with the mother and patient after the extractions delay to discuss the
effect it may have on the plan, which was not done. Defendants argue that evidence of non-party
sole cause was properly admitted. The jury was free to disregard evidence of Plaintiff’s failure to
consistently keep appointments based on Dr. Moore’s failure to “huddle up”.
The rules of evidence do not prevent a defendant from arguing that the act of a third person,
even a non-party, was the sole cause of the plaintiff’s injuries. Mengwasser v. Anthony Kempker
Trucking, Inc., 312 S.W.3d 368, 373 (Mo. Ct. App. 2010) (citing Oldaker v. Peters, 817 S.W.2d
245, 253 (Mo. banc 1991). The defendant may choose to introduce evidence of sole cause because
sole cause is not an affirmative defense, and plaintiff has the burden of proof on the issue of
defendant’s negligence. Hoehn v. Hampton, 483 S.W.2d 403, 409 (Mo. App. 1972). A defendant
may submit evidence of a non-party’s negligence “to establish that [the defendant] is not guilty of
the negligence charged.” Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 374
(Mo. Ct. App. 2010) (quoting Oldaker v. Peters, 817 S.W.2d 245 (Mo. banc 1991). A defendant
may also introduce evidence and argue “that the acts of one other than the defendant were the sole
cause of the accident.” Id. (quoting Oldaker v. Peters, 817 S.W.2d 245 (Mo. banc 1991). Here
evidence of Plaintiff’s failure to follow up with appointments goes directly to both Defendant
Moore’s negligence and the cause of any damage Plaintiff sustained.
Here, the sole cause argument was properly disclosed. Defendants plead sole cause in their
answers to Plaintiff’s Complaint. (Docs. 47 and 50). Notice would have been provided based on
Dr. Miller’s deposition. Plaintiff also had notice as evidenced by her Motion in Limine asking the
Court to preclude such an argument. (Doc. 143, pages 4-5). Regarding Dr. Miller’s testimony, he
testified that Tracie Nation, as the parent, bore responsibility for the fact that Plaintiff was not seen
for timely follow up after the arch wire was clipped which resulted the loss of critical space
regarding Plaintiff’s midline. Dr. Miller also testified that Dr. Moore met with Plaintiff’s
grandmother who sometimes transported Plaintiff to appointments for care, and as documented in
Dr. Moore’s medical records, was sufficient to satisfy any obligations for a “huddle up” after the
extraction delay. The jury was entitled to believe his testimony. The Court finds that the sole cause
argument was properly disclosed. The Court cannot say there were any manifest errors that would
require Rule 59(e) relief regarding Plaintiff’s sole cause argument. For the reasons stated,
Plaintiff’s Motion for a New Trial based on Defendants’ sole cause argument is DENIED.
B. Stress and Whiplash
Plaintiff argues that Defendants stress and whiplash arguments were prejudicial.
Specifically, Plaintiff argues Defendants stress argument was a disguised comparative fault
argument that Plaintiff caused her own damages, and no evidence was adduced that Plaintiff had
stress that harmed her temporomandibular joints. Plaintiff states the whiplash was a possible cause
of temporomandibular dysfunction (TMD) made by Dr. Pogrel was prejudicial. Defendants argue
that stress and whiplash were proper arguments.
The standard to admit alternative causation testimony may apply equally to all parties,
however plaintiffs, not defendants bear the burden of proof in medical malpractice cases. Linton
by & through Linton v. Carter, 634 S.W.3d 623, 628 (Mo. 2021). A defendant does not bear the
burden of disproving a plaintiff’s case. Id. Any rule requiring a defendant’s expert to prove a
plaintiff’s injury resulted from a specific cause or combination of causes would improperly shift
the burden of proof to the defendant and hinder the defendant’s ability to disprove the plaintiff’s
theory of causation. Id.
Here, Defendants’ arguments were proper. Dr. Pogrel testified that TMD is a multifactorial
condition. In his testimony he opined that females are up to 10 times more likely to develop TMD.
Dr. Pogrel stated that a variety of factors can cause TMD such as: stress; whiplash from a car
accident; and trauma such as being hit in the face by an airbag or softball. Dr. Porgrel specifically
testified that braces in his opinion do not cause TMD. Ultimately, Dr. Pogrel testified that there
were too many factors to determine exactly what caused Plaintiff to develop TMD, but in his
opinion it was not Dr. Moore’s treatment. The Court finds that Defendants alternative causation
arguments were proper. The jury was entitled to believe Dr. Pogrel. The Court cannot say there
were any manifest errors that would require Rule 59(e) relief regarding Plaintiff’s alternative
causes argument. For the reasons stated, Plaintiff’s Motion for a New Trial based on Defendants’
alternative causes is DENIED.
IV. Weight of Evidence
Plaintiff argues that the weight of evidence was that Plaintiff suffered damages for which
she is receiving care and treatment. Defendants argue that Plaintiff failed to establish that negligent
conduct by Defendants caused her damages. “A district court abuses its discretion in denying a
motion for new trial based on sufficiency of evidence if the verdict is against the weight of the
evidence and allowing it to stand would result in a miscarriage of justice.” Russell v. Anderson,
966 F.3d 711, 724 (8th Cir. 2020) (quoting Lincoln Composites, Inc. v. Firetrace USA, LLC, 825
F.3d 4533, 459 (8th Cir. 2016)).
Here, Plaintiff has fails to establish how the verdict is against the weight of the evidence
or how allowing it to stand would result in a miscarriage of justice. Plaintiff’s argument focuses
only on testimony presented on behalf of Plaintiff which ignores the testimony of Defendant and
Defendant’s experts. Plaintiff’s offered testimony arguing Plaintiff’s teeth looked abnormal, that
she was embarrassed by them, and that Plaintiff had worsening asymmetry and ongoing pain in
her jaw and head after treating with Dr. Moore. Likewise, Defendants offered testimony that Dr.
Moore’s treatment plan was appropriate, the plan would have worked with a compliant patient and
that orthodontic treatment does not cause the type of problems Plaintiff claimed. The Court cannot
say the jury verdict was against the weight of the evidence nor allowing it to stand would result in
a miscarriage of justice. In fact the Court finds the jury’s verdict well supported by the evidence
provided by Defendants. For the reasons stated, Plaintiff’s Motion for a New Trial based on the
weight of evidence is DENIED.
CONCLUSION
For the reasons stated herein, Plaintiff’s Motion for a New Trial on conversion is DENIED.
Plaintiff’s Motion for a New Trial on negligence is DENIED. Plaintiff’s Motion for a New Trial
based on Defendants’ alternative causation arguments is DENIED. Lastly, Plaintiff’s Motion for
a New Trial based on the weight of evidence is DENIED.
IT IS SO ORDERED.
Dated: January 23, 2025
/s/ Douglas Harpool______
DOUGLAS HARPOOL
United States District Judge