Connour v. Burlington Northern Railroad

889 S.W.2d 138, 1994 Mo. App. LEXIS 1804
CourtMissouri Court of Appeals
DecidedNovember 22, 1994
DocketNo. WD 48667
StatusPublished
Cited by5 cases

This text of 889 S.W.2d 138 (Connour v. Burlington Northern Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connour v. Burlington Northern Railroad, 889 S.W.2d 138, 1994 Mo. App. LEXIS 1804 (Mo. Ct. App. 1994).

Opinion

BERREY, Judge.

William L. Connour was the plaintiff below in his Federal Employer’s Liability Act (FELA) claim against Burlington Northern Railroad Co. (BNRR). Liability was admitted by BNRR and the case was tried to a jury on the nature and extent of Connour’s injuries' and the resulting damages. The jury returned a verdict of $200,000 and BNRR appealed.

Connour’s right arm was caught between two large shaped steel “wing sheets.” He sustained bruises and abrasions to the right forearm. The arm was not fractured. These wing sheets weigh approximately 400 to 500 pounds each and are put in place by an overhead crane. While placing the wing sheet in position, Connour’s arm was pinned between the wing sheets. The arm was bruised from the palm to beneath his armpit. After receiving emergency treatment, he was treated by Drs. Pazell, Schwab and Boben-house.

Dr. Schwab, an orthopedic surgeon, diagnosed Connour’s condition as “moderate severe contusion of the right forearm with per-iosteal contusion mid-ulnar region and a mild lateral epicondylitis.” Dr. Schwab recommended “continued rest and continued activity, return, I think, in three weeks, continue with light work duties or sedentary work activities.”

Dr. Bobenhouse, a neurologist, examined Connour. Dr. Bobenhouse diagnosed Conn-our’s condition as “a right forearm contusion with probable ulnar nerve irritation or injury, ... that he had right shoulder pain and upper arm pain related to the muscle strain while attempting to pull his arm out of the pieces of metal. There was a slight suggestion of irritation of the muscles on the EMG testing, which is the needle test, where we insert needles into the muscles to look for nerve damage.” Dr. Bobenhouse stated he thought there was a mild stretch injury to the brachial plexes. Dr. Bobenhouse also stated, “I thought that there may have been a superimposed thoracic outlet syndrome at that time as well.”

Dr. Pazell diagnosed Connour as having a “status post release for lateral epicondylitis.” Further, Pazell testified, “I think he’s still got disease in the radial capitular joint or inside the elbow ... and he’s got cubital tunnel syndrome ...”

BNRR raises three points of trial court error. 1) The trial court erred in overruling BNRR’s objection to improper cross-examination by plaintiff of BNRR’s employee/witness Patricia Heather. 2) The trial court erred in overruling BNRR’s objection to improper argument personally attacking BNRR, and; 3) the trial court abused its discretion in overruling BNRR’s motion to dismiss grounded on forum non convenes.

I

BNRR alleges in Point I that the trial court erred in overruling its objection to the cross-examination of employee witness, Patricia Heather, which allowed plaintiff to reference depositions of other employees of BNRR taken in other lawsuits against BNRR. BNRR contends it was prejudiced on the issue of Connour’s claim for damages for loss of future earnings from employment with the railroad.

Patricia Heather is a senior claim representative for BNRR. She testified on direct examination that BNRR attempts to get injured workers back to employment as quickly as possible and that the railroad allows injured workers to perform restricted duties or modifies the work place to allow injured workers to continue to work. On cross-examination, Connour’s attorney, Douglas K. Rush, asked Ms. Heather, “Who is Mr. Stremcha?”. Ms. Heather answered, “Mr. Stremcha is the Superintendent of the Havel-ock Shops.” Counsel for BNRR stated:

[141]*141Excuse me, your Honor. May we approach? Now, yesterday Mr. Rudd cross-examined witnesses on the stand from depositions taken of other persons not in this case and not the witness on the stand regarding the, I suppose whatever is suggested by the testimony in those depositions taken in other cases of other persons, and I think it is entirely inappropriate to do that in this case, to cross-examine a witness on the stand not from their own deposition, not from the deposition of any witness in this case, but from some transcript from some other case and I object to it ...

Following remarks by Mr. Rush, BNRR’s attorney added:

Well, I haven’t heard anything that makes the cross-examination of this witness proper with those depositions to attempt to bootstrap in some cross-examination from some other deposition of another person.

The objection was overruled. Mr. Rush proceeded to ask Ms. Heather about Mr. Stremcha and the deposition he gave in the case of Gustafson vs. Burlington Northern Railroad. No further objection was offered by counsel for BNRR. Mr. Rush also asked Ms. Heather about Joe Burroughs, the director of shop operations at Havelock, and the deposition he gave in the Gustafson case. BNRR did not object. BNRR concedes the purported testimony read by Mr. Rush was not necessarily contrary to what Ms. Heather had testified, but contends its use to cross-examine her suggested a contradiction and that some portions of the disputed testimony were open to interpretation and argument.

We first look at the use of the Stremcha deposition. A review of the transcript indicates Ms. Heather agreed with the testimony read to her from the Stremcha deposition. Heather was asked if she remembered Stremcha stating that BNRR had no positions at Havelock that “will accommodate an employee for the remainder of them career with lots of restrictions;” that the railroad creates positions for persons with limited restrictions for a short period of time; and that BNRR has no people that work for a “long, long period of time with multiple restrictions.” Ms. Heather answered, “I don’t remember specifically, but that’s certainly true.” Ms. Heather also agreed with Mr. Stremcha deposition testimony that he could order a “fit-for-duty examination[ ] by a doctor of the Burlington Northern’s choosing?” Ms. Heather was also given opportunity on redirect examination to fully explain her understanding of the policies of BNRR concerning light duty, physical restrictions on employees, and the railroad’s vocational retraining program. BNRR failed to make specific objections to this procedure as it unfolded.

The instant case is similar to Frey v. Barnes Hospital, 706 S.W.2d 51, 57 (Mo.App.1986) where the court held that the plaintiffs contention that the defendant’s use of a deposition constituted improper impeachment of his expert witness was not preserved for purposes of appeal where the plaintiff never expressly objected at trial. In Frey, the plaintiff made a general objection to the use of the deposition. The Court suggests that because plaintiff “never expanded his previous objections to include improper impeachment or the failure to lay the requisite foundation for prior inconsistent statements” the issue was not preserved for appeal. Id. The same should apply to the present case. A general objection preserves nothing for review. Bergel v. Kassebamn, 577 S.W.2d 863, 870 (Mo.App.1978).

After Mr. Rush questioned Ms. Heather about Mr. Stremeha’s deposition testimony, he questioned her about Joe Burroughs and his deposition testimony. There was no objection to the use of the Mr. Burroughs’ deposition.

Objections to the admission of evidence must be timely and specific. Appelhans v. Goldman, 349 S.W.2d 204

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Bluebook (online)
889 S.W.2d 138, 1994 Mo. App. LEXIS 1804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connour-v-burlington-northern-railroad-moctapp-1994.