ULRICH, Judge.
Nevin Carlyle and Denise Kramer were the parents of David Carlyle, a 7-year-old boy who died August 7, 1984, at the Johnson County Memorial Hospital in Warrens-burg (hospital), as a result of complications from appendicitis. While in the hospital, David was attended by Hsein E. Lai, M.D., an emergency room physician placed at the hospital through Spectrum Emergency Care, Inc. (Spectrum), a Missouri corporation. Spectrum provided emergency room medical personnel to the hospital pursuant to contract. Dr. Lai worked for Spectrum. Mr. Carlyle and Ms. Kramer (parents) appeal from a verdict in favor of Dr. Lai and Spectrum in an action for the wrongful death of their son. The judgment is reversed.
On August 7,1984, at approximately 2:30 a.m., Mr. Carlyle and Ms. Kramer took their 7-year-old son David to the hospital’s emergency room. David experienced constant abdominal pain and vomited during the previous four days. Dr. Lai examined David at the emergency room. He ordered the administration of intravenous fluids and x-rays and contacted David’s family physician, Dr. A.L. Folkner. Dr. Lai and Dr. Folkner discussed and agreed upon fluid management and further laboratory [927]*927tests. Dr. Folkner, according to hospital policy, was the admitting and attending physician. He authorized Dr. Lai to call a surgeon into the case.
Dr. Hanna was the surgeon on call, and Dr. Lai first attempted to call him at 3:30 a.m. Dr. Hanna, who could not then be contacted by telephone, was finally contacted by the police around 5:30 a.m. He arrived at the hospital twenty minutes later. In the interim, Dr. Lai and nurse Mike Nishikawa attended David. His vital signs were monitored every fifteen minutes, although not recorded each time, and he was transferred to the intensive care unit at 5:15 a.m. Dr. Hanna did not operate on David upon his arrival at the hospital, but instead performed elective surgery on another patient.
At 9:00 a.m. David’s condition worsened. Dr. Hanna and Dr. Folkner were notified. David experienced respiratory distress at 10:50 a.m. and died.
Mr. Carlyle and Ms. Kramer sued both Dr. Lai and Spectrum for allegedly causing David’s death. Because Dr. Lai worked for Spectrum, the parents sued Spectrum on an agency theory. The jury rendered a verdict in the five-day trial for both Dr. Lai and Spectrum. David’s parents, seeking reversal and a new trial, allege the the trial court erred: 1) by allowing Dr. Lai to state his opinion that admissions read by plaintiff’s attorney from his deposition were unfair and out of context; and 2) by permitting defense counsel to ask Ms. Kramer on cross-examination when she first retained an attorney to prosecute this action.
The first issue involves the permissible reading of a party deposition into evidence pursuant to Rule 57.07(a)(2). Plaintiffs, in their case-in-chief, read certain admissions made by defendant Dr. Lai in his deposition. After portions of Dr. Lai’s deposition were read to the jury, Dr. Lai’s attorney asked him the following question:
Mr. Turner:
Q. All right. Now, sir, yesterday I think that they pulled excerpts from maybe 20 or 30 pages in the cross-examination of you. I want you to tell the Court and jury, do you feel that taking those excerpts
Plaintiff’s counsel objected to this question as argument and improper and a bench conference was held. Defense counsel admitted to the judge that his intention was to elicit the witness’s opinion whether the selected readings from Dr. Lai’s deposition were out of context. The court called such testimony self-serving but allowed it, and Dr. Lai testified, “In my opinion just reading was out of context and totally unfair.” Appellants assert that Dr. Lai’s testimony was factually wrong, prejudicial criticism, and impermissible subject matter for expert testimony.
Rule 57.07(a)(2) grants litigants the right to use a party’s deposition “for any purpose.” It is permissible to read parts of an opponent’s deposition to the jury. See, Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106, 1110 (Mo.App.1939). After plaintiff’s counsel read part of Dr. Lai’s deposition, defense counsel attempted to rehabilitate his client by asking his opinion of plaintiff’s counsel’s selective reading. Respondents assert that Dr. Lai's opinion that the readings selected from his deposition were out of context and unfair avoided their having to read all two hundred pages of Dr. Lai’s deposition. It is the general rule that when one party reads a portion of a deposition the opposing party may read some or all of the remainder in explanation. Burrous v. American Airlines, Inc., 639 S.W.2d 263, 267 (Mo.App.1982). Eliciting Dr. Lai’s opinion that reading portions of his deposition unfairly presented his deposed testimony out of context was improper. However, because Dr. Lai’s comments were so obviously self-serving and because plaintiff’s counsel had the opportunity to conduct redirect examination of the witness utilizing Dr. Lai’s deposition, prejudice meriting reversal did not occur.
The second point claims prejudicial error resulted when the court permitted Ms. Kramer to be asked on cross-examination when she first contacted her attorney to sue the defendants following her son’s [928]*928death. The applicable cross-examination follows:
Q. Ma’am, your son died on August 7th of 1984, did he not?
A. Yes, he did.
Q. And just 15 days after he died, you hired Mr. Rahm to sue in this matter, did you not?
MR. RAHM: Your Honor, I object to that, and I think that’s entirely improper and obviously—
MR. TURNER: That’s a speaking objection.
MR. RAHM: I move that the question be stricken.
THE COURT: Overruled, proceed.
Q. (By Mr. Turner) Ma’am, that’s a fact, isn’t it? Just 15 days after your son died, you hired Mr. Rahm to prosecute an action in this case, didn’t you?
MR. RAHM: Your Honor, I object. That’s irrelevant and immaterial.
THE COURT: Overruled.
Q. (By Mr. Turner) Didn’t you, ma’am?
A. Yes, I did.
David’s parents contend that the defendant’s questions were improper, irrelevant, and prejudicial. They argue that the questions were intended to make them appear litigious and avaricious. There is no established law in Missouri specifically addressing the propriety of inquiring on cross-examination when a party hired counsel.1
To warrant a new trial Mr. Turner’s question to Ms. Kramer must be irrelevant and prejudicial. Roque v. Kaw Transport Co., 697 S.W.2d 254 (Mo.App.1985); Dent v. Monarch Life Ins. Co., 231 Mo.App. 283, 98 S.W.2d 123, 125 (1936). Simply asking an irrelevant question does not merit reversal.
The test for relevancy applied in Missouri is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence. Lawson v. Schumacher & Blum Chevrolet, Inc.,
Free access — add to your briefcase to read the full text and ask questions with AI
ULRICH, Judge.
Nevin Carlyle and Denise Kramer were the parents of David Carlyle, a 7-year-old boy who died August 7, 1984, at the Johnson County Memorial Hospital in Warrens-burg (hospital), as a result of complications from appendicitis. While in the hospital, David was attended by Hsein E. Lai, M.D., an emergency room physician placed at the hospital through Spectrum Emergency Care, Inc. (Spectrum), a Missouri corporation. Spectrum provided emergency room medical personnel to the hospital pursuant to contract. Dr. Lai worked for Spectrum. Mr. Carlyle and Ms. Kramer (parents) appeal from a verdict in favor of Dr. Lai and Spectrum in an action for the wrongful death of their son. The judgment is reversed.
On August 7,1984, at approximately 2:30 a.m., Mr. Carlyle and Ms. Kramer took their 7-year-old son David to the hospital’s emergency room. David experienced constant abdominal pain and vomited during the previous four days. Dr. Lai examined David at the emergency room. He ordered the administration of intravenous fluids and x-rays and contacted David’s family physician, Dr. A.L. Folkner. Dr. Lai and Dr. Folkner discussed and agreed upon fluid management and further laboratory [927]*927tests. Dr. Folkner, according to hospital policy, was the admitting and attending physician. He authorized Dr. Lai to call a surgeon into the case.
Dr. Hanna was the surgeon on call, and Dr. Lai first attempted to call him at 3:30 a.m. Dr. Hanna, who could not then be contacted by telephone, was finally contacted by the police around 5:30 a.m. He arrived at the hospital twenty minutes later. In the interim, Dr. Lai and nurse Mike Nishikawa attended David. His vital signs were monitored every fifteen minutes, although not recorded each time, and he was transferred to the intensive care unit at 5:15 a.m. Dr. Hanna did not operate on David upon his arrival at the hospital, but instead performed elective surgery on another patient.
At 9:00 a.m. David’s condition worsened. Dr. Hanna and Dr. Folkner were notified. David experienced respiratory distress at 10:50 a.m. and died.
Mr. Carlyle and Ms. Kramer sued both Dr. Lai and Spectrum for allegedly causing David’s death. Because Dr. Lai worked for Spectrum, the parents sued Spectrum on an agency theory. The jury rendered a verdict in the five-day trial for both Dr. Lai and Spectrum. David’s parents, seeking reversal and a new trial, allege the the trial court erred: 1) by allowing Dr. Lai to state his opinion that admissions read by plaintiff’s attorney from his deposition were unfair and out of context; and 2) by permitting defense counsel to ask Ms. Kramer on cross-examination when she first retained an attorney to prosecute this action.
The first issue involves the permissible reading of a party deposition into evidence pursuant to Rule 57.07(a)(2). Plaintiffs, in their case-in-chief, read certain admissions made by defendant Dr. Lai in his deposition. After portions of Dr. Lai’s deposition were read to the jury, Dr. Lai’s attorney asked him the following question:
Mr. Turner:
Q. All right. Now, sir, yesterday I think that they pulled excerpts from maybe 20 or 30 pages in the cross-examination of you. I want you to tell the Court and jury, do you feel that taking those excerpts
Plaintiff’s counsel objected to this question as argument and improper and a bench conference was held. Defense counsel admitted to the judge that his intention was to elicit the witness’s opinion whether the selected readings from Dr. Lai’s deposition were out of context. The court called such testimony self-serving but allowed it, and Dr. Lai testified, “In my opinion just reading was out of context and totally unfair.” Appellants assert that Dr. Lai’s testimony was factually wrong, prejudicial criticism, and impermissible subject matter for expert testimony.
Rule 57.07(a)(2) grants litigants the right to use a party’s deposition “for any purpose.” It is permissible to read parts of an opponent’s deposition to the jury. See, Meyer v. Dubinsky Realty Co., 133 S.W.2d 1106, 1110 (Mo.App.1939). After plaintiff’s counsel read part of Dr. Lai’s deposition, defense counsel attempted to rehabilitate his client by asking his opinion of plaintiff’s counsel’s selective reading. Respondents assert that Dr. Lai's opinion that the readings selected from his deposition were out of context and unfair avoided their having to read all two hundred pages of Dr. Lai’s deposition. It is the general rule that when one party reads a portion of a deposition the opposing party may read some or all of the remainder in explanation. Burrous v. American Airlines, Inc., 639 S.W.2d 263, 267 (Mo.App.1982). Eliciting Dr. Lai’s opinion that reading portions of his deposition unfairly presented his deposed testimony out of context was improper. However, because Dr. Lai’s comments were so obviously self-serving and because plaintiff’s counsel had the opportunity to conduct redirect examination of the witness utilizing Dr. Lai’s deposition, prejudice meriting reversal did not occur.
The second point claims prejudicial error resulted when the court permitted Ms. Kramer to be asked on cross-examination when she first contacted her attorney to sue the defendants following her son’s [928]*928death. The applicable cross-examination follows:
Q. Ma’am, your son died on August 7th of 1984, did he not?
A. Yes, he did.
Q. And just 15 days after he died, you hired Mr. Rahm to sue in this matter, did you not?
MR. RAHM: Your Honor, I object to that, and I think that’s entirely improper and obviously—
MR. TURNER: That’s a speaking objection.
MR. RAHM: I move that the question be stricken.
THE COURT: Overruled, proceed.
Q. (By Mr. Turner) Ma’am, that’s a fact, isn’t it? Just 15 days after your son died, you hired Mr. Rahm to prosecute an action in this case, didn’t you?
MR. RAHM: Your Honor, I object. That’s irrelevant and immaterial.
THE COURT: Overruled.
Q. (By Mr. Turner) Didn’t you, ma’am?
A. Yes, I did.
David’s parents contend that the defendant’s questions were improper, irrelevant, and prejudicial. They argue that the questions were intended to make them appear litigious and avaricious. There is no established law in Missouri specifically addressing the propriety of inquiring on cross-examination when a party hired counsel.1
To warrant a new trial Mr. Turner’s question to Ms. Kramer must be irrelevant and prejudicial. Roque v. Kaw Transport Co., 697 S.W.2d 254 (Mo.App.1985); Dent v. Monarch Life Ins. Co., 231 Mo.App. 283, 98 S.W.2d 123, 125 (1936). Simply asking an irrelevant question does not merit reversal.
The test for relevancy applied in Missouri is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence. Lawson v. Schumacher & Blum Chevrolet, Inc., 687 S.W.2d 947, 951 (Mo.App.1985). The amount of proof required to meet the relevancy threshold is attained when the truth of the offered fact makes probable the existence of the fact in issue. Id. Because of the obvious subjective nature of such a determination, the trial court is granted broad discretion which will be disturbed by this court only for an abuse of that discretion. Id.
The trial court, in overruling counsel’s objection on grounds of relevancy, implicitly held the question relevant. This court disagrees. When the parents first contacted their legal counsel after their son’s death is not an issue in this trial, nor can the response to the question reasonably be expected to tend to prove or disprove a fact in issue. An answer to the question cannot reasonably be expected to corroborate other relevant evidence. Respondents argue that when plaintiffs obtained counsel was relevant because appellants’ attorney commented twice in his opening statement that the case had been pending for four years before trial.2 These innocuous statements did not “open the door” to permit inquiry about when Ms. Carlyle contacted her attorney. The information sought by defense counsel’s question was irrelevant.
[929]*929Appellants offer Missouri cases and one directly in point from Texas to support their premise that defendant’s inquiry was prejudicial. The Missouri Supreme Court in the case of Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 (1945), reversed the judgment because defendant’s cross-examination of the plaintiff about his choice of venue was deemed prejudicial. The plaintiff brought suit for personal injury caused when the vehicle he was driving was struck from behind by a truck owned by the defendant and driven by defendant’s employee. Suit was filed in St. Louis. The plaintiff, apparently, could have filed suit in Illinois had he so chosen. The court stated that “if such inquiries are wholly immaterial and can have no effect other than their general tendency to prejudice the jury against the witness or party they are not the subjects of legitimate interrogation and are not permissible.” Id. at 649. The court also stated, “It could hardly logically be stated that taking advantage of any right which the law gives would be discreditable.” Id. at 650 (quoting Shull v. Kallauner, 222 Mo.App. 64, 300 S.W. 554, 555 (1927)).
In the case of Dent v. Monarch, 98 S.W.2d at 124, over plaintiff’s objections, the defendant cross-examined the plaintiff about numerous unrelated personal injury claims that she had filed with the defendant insurance company. No effort was made by the defendant to show that plaintiff’s claim being litigated was fraudulent except by the criticized cross-examination. The court held the questioning of the plaintiff about unrelated claims in an attempt to show her litigated claim fraudulent was irrelevant, prejudicial and an abuse of the trial court’s discretion. Dent, 98 S.W.2d at 124, 125.
Martinez v. Williams, 312 S.W.2d 742 (Tex.App.1958), is a Texas personal injury case in point. The verdict was for the plaintiff. Defendant appealed the trial court’s ruling that he could not inquire about the time and circumstances under which plaintiff engaged his counsel. He asked the question to attack the plaintiff’s credibility by showing him to be “claims minded.” The court quoted McCormick and Ray Vol. 2 (2nd Ed.), p. 375: “where the defendant merely seeks to show that the plaintiff is a chronic personal injury litigant the evidence will be excluded on the theory that its slight probative value is outweighed by the danger of unfairly prejudicing the claim of an innocent litigant.” The judgment was affirmed with a holding that the slight probative value of the jury knowing when and under what circumstances the plaintiff hired his lawyer was outweighed by danger of unfair prejudice. Id. at 752.3
These cases address attempts to discredit plaintiffs for exercising rights fundamental to or granted by the legal system. Accessing the legal system is normally not to be discouraged and, exercising one’s right to utilize the legal system within established rules and procedures should normally not to be used to attempt to discredit a litigant with a jury. The Missouri legislature and Supreme Court have established the statutes and rules which govern a person’s access to the courts. The right to seek the advice of counsel is so fundamental that, absent a justifiable reason and supporting evidence, counsel risk reversal when attempting to discredit a litigant by cross-examining him about the time and circumstances of his having consulted an attorney to discuss and exercise his legal rights.
The questions asked at the commencement of Ms. Kramer’s cross-examination and argued during summation by Mr. Turner regarding when Ms. Kramer hired plaintiffs’ attorney injected into the trial an improper issue. The questions were asked to discredit the plaintiffs as avaricious be[930]*930cause they sought the services of a lawyer soon after their son’s death. Both Martinez and Hungate held that the exercise of a party’s rights is not a proper issue for examination and is grounds for reversal. The question posed to Ms. Kramer and the subsequent argument injected an improper issue into the trial that materially affected the outcome of the action and constituted prejudice. See Coffman v. Faulkner, 591 S.W.2d 23, 26 (Mo.App.1979).
The judgment is reversed and the case is remanded for a new trial.
NUGENT, C.J., concurs.
FENNER, J., dissents in separate dissenting opinion.