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Collins v. Hertenstein9/3/2002
sible harm caused by independent, separate, but concurring torts of two or more persons." Id. at 912. "An indivisible injury results when two or more causes combine to produce a single injury incapable of division on any reasonable basis[.]" McDowell v. Kawasaki Motors Corporation USA, 799 S.W.2d 854, 861 (Mo. App. 1990). Thomas' conduct need not have been the sole cause of Wilson's death--only a contributing cause. Coggins v. Laclede Gas Company, 37 S.W.3d 335, 339 (Mo. App. 2000). Collins was not required to establish by absolute certainty a causal connection between Thomas' actions and Wilson's injury. Id. "This connection can be proven by reasonable inferences from proven fact or by circumstantial evidence--direct proof is not required; the jury may infer causation from circumstances." Id. Collins made a submissible case that Thomas' gunshot was a contributing cause of Wilson's death. Viewed in the light most favorable to Collins, the evidence established that a bullet from Thomas' gun wounded Wilson in the left arm. Dr. Sam Gulino, a forensic pathologist, testified that two bullet wounds--one from Hertenstein's gun and the other Keeney's--were individually fatal and together caused Wilson's death. When asked whether or not the combination of the other wounds would have caused or contributed to cause Wilson's death, Gulino said:
A: Most likely not. These were basically flesh wounds. Certainly if he were unable to seek medical attention for a long period of time, then I suppose he could bleed sufficiently from them or eventually get some kind of infection that could lead to his death. However, given the short time period between being shot and his death, [shots fired by Hertenstein and Keeney] were the gunshot wounds which caused his death.
Q: All of the gunshot wounds caused bleeding; is that correct?
A: Yes.
Q: And was it bleeding, in your opinion, which caused his death?
A: Well, the mechanism of death when you have someone with complex gunshot wounds through the chest is complicated. Bleeding is certainly a large portion of it. But, in addition, when you have air escaping from a lung into the space around the chest, it creates a problem in the chest called a tension pneumothorax, wherein it disrupts the normal flow of blood through the blood vessels in the chest. So that it's not just one mechanism of bleeding. But that certainly is a large part of it.
Q: Bleeding is a large cause of his death in your opinion?
A: It is a large part of the mechanism of his death, yes.
Q: Based upon reasonable degree of medical certainty?
A: Correct.
Q: And in your opinion, he would have bled from all of these gunshot wounds, is that correct?
A: That's correct.
Q: So it's likely, in your opinion, is it not, Doctor, that from the time these bullets entered [Wilson's] body until his death, he, number one, bled to death and while he was doing it, he was starved for oxygen and gasping for air.
A: I would agree with that statement except that it would not be from the time he was shot until he died, but rather from the time he was shot until the blood flow to his brain had decreased sufficiently that he was no longer conscious.
Later, on cross-examination, the officers asked Gulino:
Q: . . . n your opinion, within a reasonable degree of medical certainty[, the gunshot wounds to the arm and leg] did not and likely would not have contributed or caused the death of Mr. Wilson; is that your opinion?
A: That's correct.
Q: . . . ithin a reasonable degree of medical certainty, would the wound that just
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