Opinion
No. ED 78788.
February 19, 2002.
Appeal from the Circuit Court of the City of St. Louis, Hon. Patricia L. Cohen.
Leonard P. Cervantes, Jennifer L. Suttmoeller, Cervantes Associates, 1007 Olive, 4th Floor, St. Louis, Missouri, 63101, for appellant.
Michael B. Maguire, T. Michael Ward, Brown James, P.C., 705 Olive Street, Suite 1100, St. Louis, Missouri, 63101, for respondent.
Diane Buatte ("Plaintiff") sued Schnuck Markets, Inc. ("Defendant") for negligence stemming from her slip and fall at one of Defendant's grocery stores. The jury returned a verdict assessing $12,500 in damages and finding Plaintiff and Defendant each fifty percent at fault for the accident. Plaintiff thus was awarded $6,250 in damages. On appeal, Plaintiff argues that she was prejudiced by the erroneous display to the jury of evidence indicating that her medical bills were paid by a collateral source. We reverse and remand for a new trial.
I. Background
On July 26, 1993, Plaintiff was walking through a Schnuck market when she slipped and fell on a puddle of clear liquid. There were no cones or barricades around the puddle. After her fall, Plaintiff spoke with a store employee, who told her that prior to her fall someone in the store had been contacted and asked to mop up the wet spill. Plaintiff then walked to the front of the store to speak with a manager. Plaintiff gave the manager her name and phone number and told the manager that she had hurt her right arm and knee. When Plaintiff and manager looked at the spot where Plaintiff had fallen, it was in the process of being mopped up, and cones surrounded the area. After talking with the store manager, Plaintiff did her shopping and drove herself home.
Plaintiff went to a hospital emergency room on July 28, 1993, complaining of knee pain. Following an x-ray, she was diagnosed with a knee contusion. Then in September Plaintiff visited her family doctor, Dr. Sonsa. At that time Plaintiff complained of knee and arm pain, and Dr. Sonsa referred her to a physical therapist. Plaintiff's pain continued and eventually Dr. Sonsa referred Plaintiff to an orthopedic surgeon, Dr. Tessier. In February of 1994, when Plaintiff complained of back pain, Dr. Sonsa also referred her to another orthopedic surgeon, who was a back specialist, Dr. Hollocher. In March of that year, an MRI performed on Plaintiff showed that she had a herniated lumbar disc. Surgery was performed on Plaintiff's lower back in May and November of 1994, and again in December of 1995.
Following the third surgery, Plaintiff developed neck pain. An MRI of her neck was performed, revealing a herniated cervical disc. A fourth surgery was performed on Plaintiff, to remove the damaged neck disc. After the four surgeries, Plaintiff also developed problems in her left shoulder and left knee, which she alleged were due to physically overcompensating for her original injuries.
At trial, Plaintiff presented evidence that these injuries were suffered as a result of her fall at Defendant's store. She identified Plaintiff's Exhibit 13, a list of all her medical bills, and testified that the bills totaled $49,059.88. She also presented evidence that as a result of the injuries she continues to suffer from constant severe pain, is required to take a morphine derivative every eight hours as well as frequently use a TENS unit in order to cope with the pain, and will most likely be required to eventually undergo a spinal fusion, leave her employment prematurely and thereby lose substantial future earnings. Defendant presented evidence that the only injury Plaintiff suffered as a result of the fall was an injury to her right knee, and that her herniated discs were due to either the natural progression of underlying degenerative disc disease or some other cause. There was evidence that Plaintiff had suffered prior neck and back pain due to an automobile accident in 1991. All of the doctors, however, including Defendant's expert, testified that she did not have any herniated discs, in either her lower back or neck, prior to her fall at the Schnuck's store.
As part of its attempt to disprove that the fall had caused Plaintiff's lower back injury, Defendant prepared its "Exhibit M." Exhibit M was a 30 x 40 blow-up of one page from Dr. Tessier's medical record of Plaintiff. It indicated, and was used by Defendant to show, that Plaintiff did not first complain to a doctor about back pain until approximately seven months after the fall. On the top left this record contained Plaintiff's name, apparent address and phone number. Across from this information, on the top right, was a line with the word "Insurance" pre-printed on it, and the words "Blue Choice" plainly written in on that same line next to the word "Insurance." Both Plaintiff and Defendant read to the jury portions of Exhibit M referencing Plaintiff's back complaints. Only those portions of Exhibit M which were read to the jury were admitted into evidence, and the parties stipulated that the medical records would not be taken into the jury room during deliberations. Before trial Plaintiff had filed a motion in limine to bar any collateral source evidence, and notes in her brief that in response to that motion, Defendant had agreed not to present any collateral source evidence.
Although both parties read from Exhibit M during trial, there is no indication in the record that Exhibit M was ever displayed to the jury by either party, prior to closing argument. However, during closing argument Defendant's counsel displayed Exhibit M to the jury in the course of arguing that Plaintiff had not complained about her back pain until some months after the fall. Defendant failed to redact the reference to Plaintiff being insured by Blue Choice before displaying Exhibit M to the jury, and the reference was in plain view of the jury. Plaintiff's counsel did not object when Exhibit M was displayed to the jury, and later stated that he was unaware at that time that the reference to Plaintiff having Blue Choice insurance coverage had not been redacted.
After the verdict, one of the jurors reported that the reference to Blue Choice health insurance coverage had been seen by the jury, considered in their deliberations, and served as a reason not to fully compensate Plaintiff for her medical bills. Plaintiff filed a post-trial motion requesting to interview that juror, which was denied. Plaintiff subsequently filed an affidavit from the juror's employer, attorney James Collins, indicating that the juror had advised him that Exhibit M had been displayed to the jury and that the jury had considered that Plaintiff was insured with Blue Choice in arriving at their award of damages. Plaintiff asserted this as one of the grounds for relief in her timely filed motion for new trial. That motion was denied and the judgment became final; this appeal follows.
II. Discussion
In her first point on appeal Plaintiff contends that it was plain error and violated the collateral source rule when Defendant was allowed to display to the jury during closing argument Exhibit M, which contained the reference indicating Plaintiff had health insurance coverage through Blue Choice.
Since Plaintiff did not object when Defendant displayed Exhibit M to the jury, she requests plain error review under Rule 84.13(c). That rule allows an appellate court to consider plain error affecting substantial rights even though the error has not been preserved for review, when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom. Plain error relief is sparingly granted in civil cases, and is reserved for situations where the error complained of has engendered hatred, passion or prejudice. Robertson v. Cameron Mutual Ins. Co., 855 S.W.2d 442, 447 (Mo.App.W.D. 1993).
The collateral source rule is an exception to the general rule that damages in tort actions should be compensatory only. Washington by Washington v. Barnes Hospital, 897 S.W.2d 611, 619 (Mo.banc 1995). Where the rule applies, it serves both substantive and evidentiary purposes. Substantively, the rule provides that a wrongdoer is not entitled to have the damages for which it is liable reduced by proving that the plaintiff has received or will receive compensation or indemnity for the loss from some third party, such as an insurance company, when that third party (the "collateral source") is wholly independent of the wrongdoer. Id. Although various courts have cited "numerous rationales" for the collateral source rule, Missouri courts have traditionally cited the language that "the wrongdoer may not be benefited by collateral payments made to the person he has wronged." Id., quoting Collier v. Roth, 434 S.W.2d 502, 506-07 (Mo. 1968).
One court has noted that the collateral source rule embodies the attempt to reconcile two competing principles of tort law: (1) that an injured party should recover no more than needed to make the party whole, and (2) that the tortfeasor should be held accountable for all damages resulting from the tort. Chenega Corporation v. Exxon Corporation, 991 P.2d 769, 790 (Alaska 1999). An injured party who is compensated by both a collateral source and the tortfeasor may to some extent obtain a double recovery; but a tortfeasor who is credited for compensation paid to the victim from a collateral source escapes accountability. Id. The common-law collateral source rule resolves this conflict in favor of the injured party. Id.
Application of the collateral source rule thus prevents a defendant from introducing evidence at trial that the plaintiff's damages will be covered in whole or in part by a collateral source such as insurance, in order to prevent the jury from considering such collateral payments in determining the amount of damages. Duckett v. Troester, 996 S.W.2d 641, 648 (Mo.App.W.D. 1999). Errors in admitting evidence of payments of benefits from a collateral source are presumed to be prejudicial.Kickham v. Carter, 335 S.W.2d 83, 90 (Mo. 1960); Duckett v. Troester, 996 S.W.2d 648; Spengel v. Kantor, 736 S.W.2d 51, 52 (Mo.App.E.D. 1987).
In the present case, the jury was improperly presented with information, through the display of the large blow-up of Exhibit M during closing argument, which showed that Plaintiff had health insurance coverage with Blue Choice. That information was never admitted into evidence during trial. Although Defendant's counsel did not directly comment on the insurance coverage in his spoken comments during closing argument, there is no doubt that the reference to Blue Choice insurance coverage was clearly displayed to the jury; that they saw it; and that its obvious import would be readily understandable to an average layperson of ordinary intelligence. As a result, the jury was likely left with the impression — without any further explanation — that Plaintiff was trying to recover for items that had already been paid by insurance. Under the circumstances of this case, we find that Plaintiff was not only prejudiced specifically with regard to the information concerning her medical bills, but very well "may have been prejudiced generally, in the eyes of the jury," affecting their view of her overall credibility and entire case. See Kickham v. Carter, 335 S.W.2d at 90.
Although the Collins affidavit may not be used to impeach the jury verdict by showing what occurred during jury deliberations, the mere fact that the jury observed Exhibit M's reference to Blue Choice insurance coverage during closing argument is not the same as impeachment. It thus is a fact "not appearing of record" that may be shown by affidavit filed with a motion for new trial. See Rule 78.05.
Defendant argues that Plaintiff's contention that she was actually prejudiced by the collateral source information necessarily depends on the Collins affidavit, which contained the hearsay statements of the juror who first alleged that the jury had relied on this collateral source information in reaching its verdict. Defendant properly notes that public policy prohibits the impeachment of jury verdicts, and that juror testimony — whether true or not — is inadmissible and cannot be received or used to impeach the verdict of a jury of which the juror was a member. See Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo.App.E.D. 1996). We do not rely on the Collins affidavit, however, in order to find that Plaintiff was prejudiced by the jury's improper exposure to collateral source evidence during the closing argument in this case. Such evidence is presumed to be prejudicial, and must be considered as such unless that presumption is rebutted. Duckett v. Troester, 996 S.W.2d at 648. We find that the facts and circumstances presented by this case do not rebut the inherent presumption of prejudice.
Relying primarily on Duckett v. Troester, supra, Defendant argues that the trial court correctly found that the collateral source rule was never triggered because the Blue Choice reference in Exhibit M was not proof of payment by a collateral source.
We disagree. Duckett is distinguishable from the instant case. InDuckett, a student cheerleader sued her school athletic director for personal injuries. During direct examination, the director's counsel asked her what arrangements were available through the school for injured students. The director replied: "We have insurance as provided" and then was cut off by the attorney. Duckett, 996 S.W.2d at 647. Later, the trial court granted the student a new trial. On appeal, the Court reversed the trial court and reinstated the verdict in the director's favor. Id. at 648. The Court held that the director's testimony had not violated the collateral source rule. The court explained, in part, that the director's testimony did not tell the jury what type of insurance was being referenced and whether the insurance would, in fact, cover the student's injuries. Id. at 648-49. The court thus reasoned that "the jury would not have been advised as to whether the [student's] medical bills were paid by a collateral source." Id. At 649. The Duckett court further opined that the collateral source rule has no application where the plaintiff has incurred no "expense, obligation or liability" in securing the insurance coverage in question, and that the rule therefore was inapplicable because the director's testimony had "made no mention of any insurance coverage for which the [student] had incurred expense, obligation or liability. . . ." Id. at 648.
In contrast to Duckett, in the case at bar the notation on Exhibit M was not merely some vague and generic reference to "insurance." It specifically stated "Blue Choice," on a line in the doctor's pre-printed medical record form that was clearly intended to indicate what (if any) health insurance coverage the patient had. The reasonable person would know that "Blue Choice" is a medical insurance program that covers most of a patient's medical bills. (And, indeed, the jury assessed damages that were only about one-fourth of Plaintiff's claimed medical damages.) Likewise, that person would also realize that an individual covered by such an insurance program must incur some expense or obligation, in the form of premiums paid by either the person or his/her employer, in order to receive benefits. Thus, the collateral source rule clearly was violated by Defendant's display of Exhibit M to the jury, and Duckett does not hold to the contrary.
Plaintiff's health insurance coverage with Blue Choice is still deemed a collateral source even if all of the premiums for such coverage were paid by her employer. See Beck v. Edison Bros. Stores, Inc., 657 S.W.2d 326, 330-31 (Mo.App.E.D. 1983).
We find that the error in allowing such collateral source information to be presented to the jury engendered prejudice, which affected the verdict to Plaintiff's detriment, thereby resulting in manifest injustice. Accordingly, Plaintiff is entitled to a new trial and Point I is granted. In view of our disposition on this point, we need not reach the merits of Plaintiff's two remaining points on appeal.
The judgment is reversed and the cause remanded for a new trial.
Robert G. Dowd, Jr., J. concurs.
Clifford H. Ahrens, J. dissents in separate dissenting opinion.
I respectfully dissent. Plaintiff concedes she did not object when defendant displayed to the jury the doctor's notes, Exhibit M, which contained a brief reference to insurance. Our review is for plain error. "Plain error review is rarely extended to civil cases notwithstanding that Rule 84.13(c) permits review to prevent manifest injustice or miscarriage of justice." Chilton v. Gorden, 952 S.W.2d 773, 781 (Mo.App. 1997).
Although errors in admitting evidence of payments of benefits from a collateral source are presumed prejudicial, such presumption may be rebutted. Duckett v. Troester, 996 S.W.2d 641, 648 (Mo.App. 1999). The record in this case rebuts the presumption. Both attorneys read portions of Exhibit M to the jury, and to that extent the exhibit was admitted into evidence without objection. The exhibit made no reference to whether plaintiff had insurance, or whether insurance covered plaintiff's expenses, and there was no evidence that any of plaintiff's medical bills were paid by insurance. The exhibit was not passed to the jury or taken to the jury room during the jury's deliberations. And defense counsel made no reference to insurance.
Defendant argues that plaintiff also displayed Exhibit M to the jury. The extent to which either side displayed the exhibit to the jury is unclear from the record. We should not presume prejudice and reverse the trial court for plain error when the record does not show the extent to which either party displayed the exhibit to the jury.
As the trial court observed, plaintiff's claim of prejudice was based on hearsay statements in an affidavit of a juror. The majority does not rely on the juror's affidavit to establish prejudice, correctly noting that public policy prohibits the impeachment of jury verdicts, and that testimony of a juror is inadmissible to impeach the verdict. Instead, relying on Kickham and Spengel, the majority finds that the presumption of prejudice was not rebutted. Kickham and Spengel are distinguishable, in that they involved claims of error that had been preserved in the trial court. Kickham v. Carter, 335 S.W.2d 3, 89 (Mo. 1960); Spengel v. Kantor, 736 S.W.2d 51 (Mo.App. 1987). Here, both parties read from Exhibit M, plaintiff made no objection to defendant's use of the exhibit at trial, and plaintiff failed to preserve any claim of error.
Missouri courts have been reluctant to find plain error in the admission of evidence of payment of benefits from collateral sources, where there was no objection to the evidence at trial. In Crabtree v. Reed, 494 S.W.2d 42, 45 (Mo. 1973), the Missouri Supreme Court held that if no objection is made at trial to the introduction of evidence concerning payment of benefits by a collateral source, then on appeal the trial court is not to be held to have erred. Further, this court held inMeyer v. Clark Oil Co., 686 S.W.2d 836, 838 (Mo.App. 1984), that if not objected to at trial, a charge that the opposing party violated the collateral source rule is not preserved for appellate review.
In my opinion, the displaying of the exhibit to the jury during closing argument and the reading from the exhibit of statements of the doctor which had been admitted into evidence, all without objection and with no reference to insurance, did not result in a manifest injustice or miscarriage of justice. There was no plain error. I would affirm the judgment of the trial court.