Opinion
No. 26722
June 26, 2006
Appeal from the Circuit Court of Jasper County, Honorable William C. Crawford, Judge.
Randy P. Scheer and S. Jacob Sappington, for Appellant.
Eric M. Belk, for Respondent.
Gale Webb Transportation Company ("Webb") appeals from a judgment, entered on a jury verdict, awarding Megan Swartz ("Plaintiff") damages for personal injuries sustained in an automobile accident. The accident happened on September 20, 2000, when a school bus, owned by Webb and operated by Roberta Morris ("Morris"), pulled from an intersecting road into the path of a car operated by Christopher Hobbs ("Hobbs") and occupied by Plaintiff. Plaintiff suffered injuries in the resulting collision. Plaintiff filed suit against Morris, Webb and Hobbs, but dismissed the claim against Morris before trial. A jury returned a verdict for Plaintiff against Hobbs and Webb in the amount of $335,000 with fault apportioned at 25% to Hobbs and 75% to Webb. This appeal is from the judgment entered, jointly and severally, against Hobbs and Webb in the total amount of $391,417.67, representing the amount of the verdict plus pre-judgment interest.
Webb raises three points of error in this appeal. In doing so, it complains that the trial court permitted testimony and refused withdrawal instructions on potential future medical problems claimed by Plaintiff; erred in overruling its motion for new trial because of misrepresentations by several venirepersons; and erred in overruling its motion for new trial because of repeated references by Plaintiff's attorney that it had refused to accept responsibility for the accident and her injuries.
Webb's first point on appeal posits error on the trial court's overruling of its motion for new trial, arguing that the trial court erred in admitting testimony, permitting argument, and refusing withdrawal instructions concerning claimed future medical problems and expenses, which Webb contends were purely speculative, not based on a reasonable degree of medical certainty, and unduly prejudicial.
POTENTIAL CHILDBIRTHING PROBLEMS
The first issue relates to potential future difficulties or inability for natural childbirth. Among Plaintiff's injuries were pelvic and lower back fractures that included involvement of the bony structure which anatomically plays a role in a woman's birthing process. Specifically, Webb complains about the following with reference to the child bearing issue. In opening statement, Plaintiff's attorney said:
We don't know if [Plaintiff] is going to be able to carry a child to term and bear that child naturally, because the birthing inlet is altered and changed. And [Plaintiff] comes from love, she comes from a family and she wants to have kids. She's got a sister and two nieces that live with her. She's always wanted to have kids. She wants to have them someday. And that's kind of another issue that she is going to have to live with.
Webb also points out that one of Plaintiff's physicians, Dr. Clyde Parsons ("Dr. Parsons"), gave the following testimony (which for reasons that will appear below, is broken down into three parts) by way of deposition:
Part 1:
[Plaintiff's attorney]: Basically the issue as to whether or not she's going to be able to have children naturally is something that's undetermined at this point?
A: That's correct.
Part 2:
[Hobbs' attorney]: And at that point in time, Doctor, is it a fair statement that you referred her to an OB-GYN just to question whether or not she might have problems with — with the birthing process?
A: Correct.
[Hobbs' attorney]: And that doctor essentially said that there's no way for us to know —
A: Correct.
[Hobbs' attorney] — correct?
So whether or not she's going to have any problem with the birthing process at this point is speculation?
A: That's correct.
Part 3:
[Webb's attorney]: And what's your understanding of the results of that examination?
A: Basically, like we talked about, there's no way to know, until she's actually pregnant, whether there — whether there will be a concern with — with those — with those fractures. And the way it was explained to me, if she has a small baby, that she might not have any trouble at all with vaginal delivery. And if — if she has a very large baby, then, you know, whether or not she even had the accident, she still may need to have a C-section. So it really, truly is all up in the air. . . .
While Webb's complaint about this testimony was included in its motion for new trial, Webb does not cite us to any portion of the record demonstrating what objections it voiced to that testimony. Our review of the record indicates that Webb filed written objections to the portions of Dr. Parsons' deposition offered by Plaintiff on September 2, 2004, eleven days before the trial commenced on September 13, 2004. Those written objections contained the following with reference to Part 1 of the testimony above:
The referenced portion of Dr. Parsons' testimony is subject to a motion in limine, and the testimony is objectionable for the reasons set forth therein. Defendants hereby incorporate by reference the objections and arguments set forth more fully in the motion in limine. In sum, however, the referenced testimony is speculative and is not based on testimony of Dr. Parsons that was given with a reasonable degree of medical certainty.
The written objections filed by Webb contained no reference to the portions of Dr. Parsons' testimony designated above as Part 2 or 3. Although the docket sheet indicates that Webb filed a motion in limine on September 2, 2004, we do not find a copy of that motion in the record on this appeal. Likewise, the docket sheet indicates that a pretrial conference was held on the record on September 3, 2004, and that "[r]ulings made on the record and said record shall be the pretrial order." The record here does not include the record of that hearing.
The record also indicates that on September 9, 2004, four days before trial commenced, Webb filed "Defendants' Objections to Deposition Testimony of Clyde Parsons, III. M.D." That document, however, contained no written objections to the testimony designated above as Part 1, 2 or 3.
Hobbs and Webb filed joint objections, signed by the attorneys for both parties, to the deposition testimony of other witnesses on the same day. The objections to Dr. Parsons' testimony, while titled "Defendants' Objections . . .," and reciting that it was on behalf of "Defendants," was signed only by the attorney for Webb.
When Dr. Parsons' deposition was offered at trial, the following occurred:
[Hobbs' attorney]: Judge, we filed joint objections to certain portions of the depositions that were discussed in the Motion in Limine and I'm not [sic] I don't wish to revisit those. But in [sic] he has offered the exhibit and I have offered the written objections which are filed of record at this time.
Court: Objections will be overruled.
[Webb's attorney]: Judge, we filed the same thing.
Court: The objection is overruled.
The reason we have meticulously reviewed this procedural history is to demonstrate the difficulty we have in determining what objections were made to the trial court. The only objection made to Dr. Parsons' deposition testimony on the basis argued in this point relied on, i.e. speculation and that it was not to a reasonable degree of medical certainty, was in the written objection filed by Webb's attorney on September 2, 2004, and that was to only one of the three testimony designations set out above. Those written objections do not appear to have been the ones brought to the trial court's attention when the deposition testimony was offered at trial.
In order to preserve evidentiary questions for appeal, there must be an objection giving the grounds at the time the evidence is sought to be introduced, and the same objection must be set out in the motion for new trial then carried forward in the appellate brief. Enos v. Ryder Auto. Operations, Inc. , 73 S.W.3d 784, 788-89 (Mo.App.E.D. 2002). The objection at trial must be specific and we only consider an objection to evidence on the same basis as that presented to the trial court. Id. at 790. It is the duty of the appellant to distinctly point out the alleged errors and where they can be found in the record. Id. Even if evidence was inadmissible, the issue remains whether it was properly preserved, and whether it was prejudicial. Blount v. Peipers , 864 S.W.2d 392, 393 (Mo.App.E.D. 1993).
At best, the only preserved objection, on the basis of speculation and that the testimony was not to a reasonable degree of medical certainty, was to the testimony of Dr. Parsons that "whether or not she's going to be able to have children naturally is something that's undetermined at this point." We are unable to conclude that this was erroneously received or that it was prejudicial to Webb.
To the extent that this point is directed to the failure to give a withdrawal instruction, it is also not well taken. The giving of a withdrawal instruction is left to the sound discretion of the trial court. Foster v. Catalina Indus., Inc. , 55 S.W.3d 385, 394 (Mo.App.S.D. 2001). Failure to give a withdrawal instruction is reversible error only when the evidence sought to be withdrawn creates a false issue. Id. Objection to evidence cannot be made for the first time by offering a withdrawal instruction. Id. In the absence of an objection when evidence is offered at trial, such evidence is not the proper subject of a withdrawal instruction. Colley v. Tipton , 657 S.W.2d 268, 272 (Mo.App.W.D. 1983). Ordinarily, it is not error to refuse a withdrawal instruction. Soper v. Bopp , 990 S.W.2d 147, 158 (Mo.App.S.D. 1999).
Webb has not demonstrated reversible error in this portion of the point relied on and it is denied.
THE NEED FOR FUTURE SURGERY
Webb also contends that the trial court erred in admitting evidence, permitting argument, and refusing a withdrawal instruction concerning Plaintiff's potential need for future surgery, including fusion surgery in the pelvic area. It argues that such evidence was inadmissible because it was speculative, was not based on a reasonable degree of medical certainty, and was unduly prejudicial.
It is within the sound discretion of the trial court to determine the admissibility of expert testimony and we will not reverse unless there is a clear abuse of that discretion. Hobbs v. Harken , 969 S.W.2d 318, 321 (Mo.App.W.D. 1998). A clear abuse of discretion only occurs when the court's ruling is clearly against the logic of the circumstances or when it is arbitrary and unreasonable. Id. at 322.
The testimony Webb relies on in this point was as follows:
Dr. Charles Bret Bowling ("Dr. Bowling") testified, by deposition:
[Plaintiff's attorney]: And are you able to tell this jury what the likelihood is that [Plaintiff] will require some surgical intervention over the course of her life?
A: I would say there's about a 25 to 50 percent chance that she'll eventually need surgery on her lower spine.
Dr. Parsons testified, by deposition:
[Plaintiff's attorney]: That brings me to a good point, the next — the next thing I want to ask, and maybe this is something that you don't feel comfortable talking about, and if you don't, then just let us know.
But can you give us an idea in terms of a range, from minimum to maximum, as to what it would — it's going to require on just, say, in today's dollars to manage [Plaintiff's] condition, from minimum to worst — case scenario, over the course of her, you know, reasonable life?
[Hobbs' attorney]: Object to the form of the question as not containing sufficient facts.
A: I guess I can say —
[Plaintiff's attorney]: And just basically relate it to the types of — to the anatomical structures that you cared for?
A: I guess I could say from our standpoint, I think she probably will see an orthopedic surgeon provider periodically for the rest of her life. And she may require anti[-]inflammatory medications intermittently. I hope she would not be permanently on — on anti-inflammatory medication. And she might look at some sort of — or be looking at some sort of surgical procedure in the future.
[Plaintiff's attorney]: You're talking about 10, 20 years down the road?
A: I would hope it could be put off as long as possible, for either fusion — probably a fusion of the S1 joint or depending on what her lumbar spine does, you, know, some sort of procedure there. But that probably would be speculation.
[Plaintiff's attorney]: Okay. It's — she's certainly at an increased risk for those types of procedures?
A: Absolutely.
[Plaintiff's attorney]: And as to the amount of that increased risk, that's difficult to quantify for you?
A: That's correct.
[Plaintiff's attorney]: Can you give us any range whatsoever?
A: 50-50. I mean, I probably told her, and I tell patients that, you know, "You are in a group that now is at a definite increased risk. It doesn't mean it will happen to you" —
[Plaintiff's attorney]: Yeah.
A: — "but the people in your group are way out in front as far as their concerns."
[Plaintiff's attorney]: Those are the things — those are the issues and things that you've discussed with [Plaintiff], that is, that she's in the 50-50 category now?
A: Correct.
[Plaintiff's attorney]: And you're talking about a 50-50 category for the surgical fusion or the lumbar fusion?
A: Correct.
. . . .
[Hobbs' attorney]: As to whether or not she's going to require any future further surgical intervention, would you agree at this point that you cannot say that she will with any — with a reasonable degree of medical certainty?
A: That's correct.
[Hobbs' attorney]: So it will be speculation as to whether she's going to require any future surgery?
A: Yes.
It will be noted that with one exception, no objections were made to the above deposition testimony at the time of the deposition. Here, Webb relies on written objections made jointly at the time the depositions were read at trial. In written objections made jointly with Hobbs, Webb objected to the above portions of Dr. Bowling's deposition based on it being "speculation and is an opinion not stated to a reasonable degree of medical certainty." The above offers from Dr. Parson's deposition were objected to, in written objections, as speculative. No issue is raised about the timeliness or sufficiency of those objections.
In the depositions of both Dr. Bowling and Dr. Parsons, the doctors agreed that opinions they gave would be to a reasonable degree of medical certainty, and if they could not do so they would notify the questioner.
In support of this portion of the point, Webb relies on Stuart v. State Farm Mut. Auto Ins. Co. , 699 S.W.2d 450, 455 (Mo.App. W.D. 1985), for the propositions that experts can only testify as to the future consequences of an injury if they are reasonably certain to occur, and consequences which are contingent, speculative or merely possible are not to be considered by the jury in determining damages. The Stuart court suggested, without deciding, that testimony that the plaintiff had a fifty-fifty chance of developing accelerated traumatic osteoarthritis did not constitute "consequences reasonably certain to occur." Id. at 456. However, it held that even if it were assumed that the testimony was inadmissible and should have been stricken, it did not result in prejudice because another doctor had testified, to a reasonable degree of medical certainty, that such a condition would develop. Id. The court also said that an expert's testimony that the plaintiff "possibly" would require surgery "did not meet the required standard of a reasonable medical certainty," but that its admission was not reversible because it was not objected to and another doctor had testified the surgery would be needed. Id. The Stuart court, however, also held that testimony by a doctor that he would need a cervical neck fusion "if his symptoms persisted" was "clearly admissible." Id. It also held that testimony showing a future danger existed — i.e. that if Plaintiff's condition went untreated he was susceptible to paralysis from a repeat trauma — was admissible. Id. Stuart relied on Hahn v. McDowell , 349 S.W.2d 479, 482 (Mo.App. St.L. 1961), for the proposition that an expert can only testify as to future consequences of an injury if they are reasonably certain to occur. In Hahn , the appellate court reversed a verdict for plaintiff in a personal injury case as a result of the testimony of two physicians. One testified that the plaintiff should be urged to consider re-grafting a scar because of the future possibility of repeated injuries to it, which "can[,] and they do[,] show a greater possibility of developing cancer in the future." Id. at 481. Another physician testified that the possibility of cancer occurs more often in scars from burns; that it was possible that the scar in question was one that cancer could occur in; and that the scar should be excised and replaced with a skin graft. Id. at 482. In reversing, the Hahn court said:
Both expert witnesses were permitted, over the objection of the defendant, to testify that there was a possibility of cancer developing in the site of the scar. Neither doctor gave it as his opinion that such development was reasonably certain to result, nor even that it would probably result from the injury. We think the evidence was clearly incompetent and prejudicial. It is undoubtedly true that in an action to recover damages for personal injuries testimony of experts as to the future consequences which are expected to follow the injury are competent, but to authorize such evidence, however, the apprehended consequences must be such as in the ordinary course of nature, are reasonably certain to ensue. It is not enough for the doctor to testify to the possibility of a certain result; his testimony should show that it is reasonably certain to follow the injury. Consequences which are contingent, speculative, or merely possible are not proper to be considered by the jury in ascertaining the damages, for it would be plainly unjust to compel one to pay damages for results that may or may not ensue and which are merely problematical.
Id.
In Kramer v. May Lumber Co. , 432 S.W.2d 617 (Mo.App. K.C. 1968), a claim by parents for loss of services and medical expenses for their daughter, the issue was whether evidence supported a damage instruction authorizing damages covering future loss and damage. The only possible evidence supporting an award for future medical expenses was testimony of a doctor that it was unlikely that a plate and screws inserted in the child would have to be removed, and that they should be removed only if they caused pain. Id. at 620. At the time of trial, the child was functioning without limitation. Id. In discussing whether the evidence supported the giving of an instruction authorizing future damages, the court noted that the approved instruction uses the phrase "and are reasonably certain to sustain in the future." Id. at 621. In the context of that instructional language, it recited the following general principals:
`The requirement of reasonable certainty is not satisfied by a mere showing of likelihood. The evidence must show more than a possibility and probability alone will not suffice.['] `Consequences which are contingent, speculative, or merely possible are not to be considered. To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.'
Id. (citations omitted). In holding that the giving of an instruction authorizing future damages was error, the court held that the evidence in that case did not show even a probability that additional medical expenses would be incurred. Id.
In Hobbs , the court held that the testimony of an economist as to future lost wages based on an assumption that the plaintiff's condition would continue unabated for twenty years had been erroneously admitted. 969 S.W.2d at 322. The court relied on Stuart in requiring that an expert can give testimony about future consequences of an injury only if they are reasonably certain to occur. Id. at 323. It also cited, with approval, First Nat'l Bank of Fort Smith v. Kansas City S. Ry. Co. , 865 S.W.2d 719, 738 (Mo.App.W.D. 1993), in which the court said:
We further found that it was "not enough for the doctor to testify to the possibility of a certain result; his testimony should show that it is reasonably certain to follow the injury. Consequences which are contingent, speculative, or merely possible are not proper to be considered by the jury in ascertaining the damages, for it would be plainly unjust to compel one to pay damages for results that may or may not ensue and which are merely problematical."
Id. at 324.
Based on these cases, it would seem that the testimony that Plaintiff "might" be looking at a surgical procedure in the lumbar spine; that her risk of having such procedures is 50-50; and that it is speculation as to whether or not she will require surgery, would make evidence of the possibility of surgery, and its attendant costs, inadmissible. That result would seem consistent with Notes of Decision No. 6 to MAI 4.01, which requires future damages to be "reasonably certain" to be sustained in order to be submissible. Likewise, a 50-50 chance of having to have surgery would not seem to be a risk reasonably certain to occur.
Plaintiff focuses on the testimony that her injuries have exposed her to an increased "risk" of needing such surgery. She points out that in Stuart , a case in which the court approved testimony that surgery would be required "if . . . symptoms persisted," the defendant also contended that testimony that the plaintiff's condition would make him susceptible to paralysis by repeat trauma if it was not treated was speculative. 699 S.W.2d at 456. The Stuart court said that the doctor's testimony "described only the dangers that plaintiff's existing condition posed to him without treatment. The fact that the danger exists is not speculative. Therefore, the testimony was admissible." Id.
In essence, Plaintiff argues that regardless of whether she will, as an absolute, require surgery is speculative, the fact that she has incurred an increased risk of requiring that procedure, is damage testimony which she was entitled to present to the jury. Quoting Stuart , Plaintiff argues that the risk "exists and is not speculative."
Plaintiff also cites McKersie v. Barnes Hospital , 912 S.W.2d 562 (Mo.App.E.D. 1995), where the issue was the sufficiency of the evidence to support a future damage instruction. There, plaintiff had lost her right ovary and fallopian tube as the result of a ruptured appendix, and her theory of recovery of future damages was based on the impact that the loss had on her ability to conceive. Id. at 566. Her expert testified that because of the lost ovary and fallopian tube she would have a diminished chance of reproducing, but stated on cross-examination that she was still "more likely than not" capable of conceiving with the remaining ovary and fallopian tube, and that nothing indicated an "extra problem" with regard to conception. Id. at 565. The court held the testimony was sufficient to support the recovery of future damages. Id. at 566. In doing so, the court noted that the MAI instruction authorizing recovery for future damages requires that they be reasonably certain to sustain in the future," and it also acknowledged the following principles:
To receive an award of future damages, the plaintiff must adduce competent medical evidence showing future physical conditions of the kind asserted as damages will result from the original injury. The degree of probability of such damages must be greater than a mere likelihood; it must be reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible may not be considered. Future damages are a matter of medical opinion and generally require expert medical testimony.
Id. (citations omitted).
None of the cases discussed above were decided by our Supreme Court. Several cases decided by that Court, however, are significant with regard to the issue at hand. In Breeding v. Dodson Trailer Repair, Inc. , 679 S.W.2d 281 (Mo. banc 1984), a doctor testified that the plaintiff would need surgery if conservative treatment was not successful, and he also gave the projected costs of surgery. Id. at 283. The defendant relied on Hahn in arguing that the testimony showed nothing more than a mere possibility of future surgery. Id. The Court distinguished Hahn by noting that there the testimony concerning the possible development of cancer at a burn site related to the possibility of a new disability unrelated to the existing ailment. Id. at 284. In finding no reversible error, the court said that the doctor's suggestion of surgery was a "legitimate medical alternative to the conservative treatment that the plaintiff was receiving," and that it was evidence that the testimony did "not reach the arena of conjecture and speculation condemned in Hahn. Inasmuch as the jury was entitled to consider the possible need for surgery, the estimated cost was also appropriate for its consideration." Id.
In Seabaugh v. Milde Farms, Inc. , 816 S.W.2d 202 (Mo. banc 1991), the plaintiff sustained a break in her ankle bone and also discomfort and limitation of motion in the joint between her foot and ankle. Id. at 204. An orthopedic surgeon testified by way of deposition that because the plaintiff continued to have pain in her foot, further treatment was indicated because of the failure of the bone to heal properly. Id. at 209. He testified that he recommended steroid and cortisone injections which, if unsuccessful in alleviating the pain, would be followed by surgery to fuse the joint. Id. In response to a hypothetical question that if the plaintiff returned to him a year later complaining of no improvement in the pain and requesting surgery, whether it was more likely than not that she would need surgery, he said that she would. Id. at 209-210. Another physician testified by deposition that it was more likely that her ankle would get worse and more painful as time went on. Id. at 210. Notwithstanding the fact that none of that testimony was objected to at the time of the deposition, but rather was objected to when offered at trial and thus was waived, the Seabaugh court said:
The court noted that Rule 57.07(d)(3)(B), Missouri Rules of Civil Procedure, in effect at that time provided, in part, that "errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition." 816 S.W.2d at 210. That provision is now found in Rule 57.07(b)(4). The Court held that if objections had been made at the time of the deposition, the questions may have been rephrased so as to avoid the use of the words "more likely" or "probable," and that waiting until trial to raise the objections amounted to a waiver of the claims that the answers should not have been admitted because they were too speculative and conjectural. Id.
Assuming a timely objection was interposed, the testimony of [the two doctors] was admissible. With regard to [the first doctor's] testimony he specifically testified that his opinions were based upon reasonable medical certainty. The mere fact that the course of treatment he recommended depended upon the results of a more conservative treatment prior to surgery does not render the evidence of future surgery inadmissible speculation and conjecture, or deprive such evidence of its probative value.
Defendant concedes that in the depositions of [the two doctors], each stated that his opinions were based on reasonable medical certainty. Nevertheless, defendant points to cross-examination testimony by [the first doctor] stating the need for the surgery was dependent upon the outcome of the cortisone treatments, and testimony of [the second doctor] that he did not know if the ankle injury would get worse. These statements by the physicians are nothing more than the obvious truism that no one can predict the future with absolute certainty. That, of course, is not and has never been the standard for determining whether evidence is admissible and sufficient to support submission of future damages. The standard for recovering for future consequences requires evidence of such a degree of probability of those future events occurring as to amount to reasonable certainty. The testimony of the two physicians in this case meets that standard.
Id. at 210-211 (citations omitted).
The contention that medical testimony about future medical treatment and damages were based on speculation and conjecture was again visited in Bynote v. National Super Markets, Inc. , 891 S.W.2d 117 (Mo. banc 1995). There, a doctor testified that the plaintiff's prognosis was poor and that she would require surgery "if she suffered a locked back," but in the meantime he recommended a more conservative, nonsurgical approach. Id. at 125. As in Breeding , the doctor also gave his opinion as to the cost of such surgery. Id. Another witness testified that the plaintiff should tolerate the pain as long as possible because eventually she would have to have surgery. Id. One of the defendant's contentions on appeal was that the witnesses' testimony relating to the likelihood of future surgery failed to meet the "reasonably certain" standard. Id. The Court relied on Seabaugh in holding that the fact that recommended treatment depended on the results of more conservative treatment did not render the evidence of future surgery inadmissible speculation and conjecture or deprive it of probative value. Id. Emery v. Wal-Mart Stores, Inc. , 976 S.W.2d 439 (Mo. banc 1998), was another case dealing with expert testimony about the need for future surgery. There, a doctor testified that there was a possibility the plaintiff would need future surgery, and other doctors testified that the plaintiff had an operable condition and that future surgery might be needed. Id. at 447. The Supreme Court of Missouri found no reversible error, relying on cases such as Bynote and Breeding. Id.
We are constitutionally bound to follow the latest decisions of the Supreme Court of Missouri. Mo. Const. art. V, § 2; Independence — Nat. Educ. Ass'n v. Independence School District , 162 S.W.3d 18, 21 (Mo.App.W.D. 2005); State ex rel. FAG Bearings Corp. v. Perigo , 8 S.W.3d 118, 123 (Mo.App.S.D. 1999). Accordingly, based on the Supreme Court cases cited above, we are constrained to deny this portion of the point relied on.
POTENTIAL FOR DEVELOPING ADVERSE EFFECTS FROM MEDICATIONS
Webb also contends that the trial court erred in admitting testimony and permitting argument regarding Plaintiff's potential for developing adverse results from taking pain medication and anti-inflammatories, as well as by refusing a withdrawal instruction on those matters. The subject of this contention was testimony by Dr. Bowling in which the following occurred:
[Plaintiff's attorney]: Now, [Plaintiff's] taking, I guess, anti-inflammatories on a daily basis, is that correct?
A. Yes.
[Plaintiff's attorney]: Is there any sort of risks associated with taking anti-inflammatories on a daily basis for a 22-year-old over the course of their lifetime?
A: Yes.
[Plaintiff's attorney]: What are the — what are the problems or the risks associated with that?
A: The greatest risk is about a 5 percent per year risk of developing an ulcer or gastric bleeding. Rarely you can have allergic reactions. You can also suffer even more rarely kidney or liver damage.
Webb's objection to the offer of this portion of Dr. Bowling's deposition on the basis that it was speculation was overruled.
No issue is raised about the timeliness or sufficiency of that objection.
As with its previous contention, Webb argues that this testimony did not comply with the requirement that future consequences be reasonably certain to occur in order for evidence of them to be considered by the fact finder. It refers to the argument concerning the possibility of future surgery and, in addition, cites Haggard v. Mid-States Metal Lines, Inc. , 591 S.W.2d 71 (Mo.App.W.D. 1979), in support. Haggard states the general principle that while damages need not be established with absolute certainty, reasonable certainty is required both as to existence and amount, and the evidence must not leave the matter to speculation. However, Haggard is factually disparate from this case.
Here, the witness did not testify that Plaintiff would develop adverse results from taking pain medication and anti-inflammatories. He spoke of risks associated with such medications. As the Court said in Emery , it is not improper to ask an expert if something might, could, or would produce a certain result since an expert's view of possibility or probability is often helpful and proper. 976 S.W.2d at 447. The fact that a danger exists is not speculative. Stuart , 699 S.W.2d at 456. This contention is, on the basis of those authorities, denied.
NON-DISCLOSURE BY VENIREPERSONS
In another point relied on, Webb contends that the trial court erred in overruling its motion for new trial based on alleged misrepresentations by venirepersons on their "juror qualification forms" and during voir dire regarding their prior involvement in lawsuits. In support, Webb points to the fact that ten prospective jurors gave negative responses on a juror questionnaire when asked if they or a member of their immediate family had been a party to any type of lawsuit, and whether a claim for personal injuries had ever been made against them or an immediate family member. Of those ten venirepersons, six testified at the hearing on Webb's motion for new trial and acknowledged, in one form or another, that their responses to the questionnaire were incorrect. None of those six actually participated in rendering the verdict in this case. One served as an alternate, but was discharged prior to deliberations, and one was the subject of a preemptory strike by Webb.
There is no contention here that the jury questionnaires used in this case did not comply with those authorized by § 494.415, RSMo (2000). See Wingate v. Lester E. Cox Medical Center , 853 S.W.2d 912, 914-15 (Mo. banc 1993).
The trial court made no findings on the issue of nondisclosure by the venirepersons in denying Webb's motion for new trial. During the hearing on Webb's motion for new trial, the trial court stated for the record that one of the venirepersons was removed with a peremptory strike by Webb; one served as an alternate juror, but was released prior to deliberations; one had been removed by a peremptory strike by Plaintiff; one was removed for cause; and two were excess jurors who were dismissed by the court.
The determination of nondisclosure is left to the discretion of the trial judge whose ruling is disturbed only by showing an abuse of discretion. Wingate , 853 S.W.2d at 917. Abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. If reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id.
It is the duty of potential jurors on voir dire to fully, fairly and truthfully answer all questions directed to them so that their qualifications may be determined and challenges may be intelligently exercised. Beeks v. Hierholzer , 831 S.W.2d 261, 263 (Mo.App.W.D. 1992), overruled on other grounds by Brines by Through Harlan v. Cibis , 882 S.W.2d 138, 140 (Mo. 1994). In determining the right to relief as a result of alleged nondisclosure, we note that prejudice is a key ingredient, as is whether the failure to disclose information was intentional or unintentional. The following general principals apply:
If a juror intentionally withholds material information requested on voir dire, bias and prejudice are inferred from such concealment. If intentional nondisclosure of material information by a juror is found, then, bias and prejudice must be presumed to have influenced the juror's verdict. Only where a juror's intentional nondisclosure does not involve a material issue, or where the nondisclosure is unintentional, should the trial court inquire into prejudice.
Doyle v. Kennedy Heating and Service, Inc. , 33 S.W.3d 199, 201 (Mo.App.E.D. 2000) (citations omitted). Even with intentional nondisclosure, it is clear that the presumption of prejudice applies to presume that the "juror's verdict" was influenced. If the nondisclosure related to non-material matters or was unintentional then the trial court is to inquire into prejudice. Prejudice under that scenario relates to whether the "juror's presence on the jury did or may have influenced the verdict." Williams By and Through Wilford v. Barnes Hosp. , 736 S.W.2d 33, 37 (Mo. banc 1987). In both cases, participation in the verdict seems to be presupposed. Webb, however, cites no cases holding that the failure of a venireperson to disclose information requires a new trial where that person does not serve on the jury that deliberated and decided the case. Based on the above principles, prejudice is not shown with regard to venirepersons who did not participate in the deliberations.
Webb also argues that he utilized a peremptory strike to remove one of the six venirepersons referred to in the motion for new trial. Allen v. Grebe , 950 S.W.2d 563, 565 (Mo.App.S.D. 1997), holds, however, that a "litigant in a civil case does not have a right to a new trial because he or she was required to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause. So long as an unqualified juror who was not removed based on a proper challenge for cause does not serve in a civil case, there is no reversible error."
Additionally, Webb points out that one of the venirepersons was selected and served as an alternate juror. In State v. White , 706 S.W.2d 280, 281-82 (Mo.App.E.D. 1986), the court held that there was no showing of prejudice by the court's failure to sustain a challenge for cause to remove a venireperson who served as an alternate in the case, but who was discharged and did not participate in the deliberations of the jury. We see no reason to apply a different standard in this case.
The trial court did not abuse its discretion in failing to sustain Webb's motion for new trial on the basis alleged in this point. This point is therefore denied.
In its final point, Webb argues that the trial court erred in not awarding it a new trial based on the alleged prejudice created by Plaintiff's counsel's references and/or arguments that the only reason the case went to trial was because Webb refused to "accept responsibility" for the accident. It contends that Plaintiff's argument was improper, irrelevant and prejudicial because the cumulative effect was to place the improper issues of settlement, punishment for refusing to settle, and the parties' income disparity before the jury.
The argument to which we are referred in the argument section of Webb's brief under this point was as follows:
[Plaintiff's Attorney]: . . . Four years ago [Plaintiff] was in a life-changing collision. It's pretty clear [Webb and Hobbs] for four years have blamed each other. I'm not going to talk much about that. . . .
This is the argument contained on the page and line references from Webb's brief.
This is the argument contained on the page and line references from Webb's brief.
Webb also refers to references during voir dire. In one exchange, Plaintiff's counsel asked a venireperson, "[d]id they accept responsibility right away" when discussing an automobile accident the venireperson had been involved in. He also asked that venireperson if he had to hire a lawyer and whether "they" accepted responsibility after he did so.
Another incident during voir dire referred to by Webb was when Plaintiff's counsel was asking a venireperson about an accident she had been involved in previously. He asked if the other side of that incident had accepted responsibility right away, and during the exchange the venireperson related that in order to get her damages she had to get an attorney "for them to accept what was fair."
None of these references or argument was objected to at trial. With reference to the voir dire examination, a party claiming to be aggrieved by that process has a duty to preserve the record by presenting the basis for an objection to the trial court. Pollard v. Whitener , 965 S.W.2d 281, 289 (Mo.App.W.D. 1998). Where that is not done, the appellate court is authorized to hold that there be no appellate review. Id. With regard to closing argument, the failure to object results in a waiver of the objection. Blevins v. Cushman Motors , 551 S.W.2d 602, 616 (Mo. banc 1977). Under those circumstances our review is, at most, for plain error under Rule 84.13(c), Missouri Rules of Civil Procedure (2005), which provides that plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. We are constrained to exercise review under this rule only in those circumstances where "we discern a substantial ground for believing that manifest injustice or miscarriage of justice has resulted from plain error." Flood ex rel. Oakley v. Holzwarth , 182 S.W.3d 673, 676 (Mo.App.S.D. 2005) (quoting Collins v. Hertenstein , 90 S.W.3d 87, 98 (Mo.App.W.D. 2002). Plain error will rarely provide the basis for overturning the judgment of the trial court in civil cases. Flood , 182 S.W.3d at 676. Plain error review places a greater burden on appellants because plain error is more than prejudicial error. Id. In particular, comments made during closing arguments rarely rise to the level of plain error. Rains v. Herrell , 950 S.W.2d 585, 592 (Mo.App.S.D. 1997).
We are not persuaded that the instances about which Webb complains in this point create a substantial ground for believing that a manifest injustice or miscarriage of justice has resulted. Accordingly, this point is denied.
The judgment is affirmed.
Shrum, P.J., and Barney, J., — concur