Szasz v. Tella

984 S.W.2d 129, 1998 Mo. App. LEXIS 1981, 1998 WL 761540
CourtMissouri Court of Appeals
DecidedNovember 3, 1998
DocketWD 55039
StatusPublished
Cited by6 cases

This text of 984 S.W.2d 129 (Szasz v. Tella) 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
Szasz v. Tella, 984 S.W.2d 129, 1998 Mo. App. LEXIS 1981, 1998 WL 761540 (Mo. Ct. App. 1998).

Opinion

HOWARD, Judge.

Helge Szasz appeals from the trial court’s judgment in favor of Dr. Nalini Telia on Szasz’s wrongful death claim arising out of Dr. Tella’s allegedly negligent medical care and treatment of her husband, Frank Szasz. Mrs. Szasz raises four points on appeal. First, she contends the trial court erred in allowing the introduction of evidence that 1) Dr. Telia had brought a wedding present for the Szaszes to their home; 2) Mrs. Szasz liked Dr. Telia; 3) Dr. Telia had never been rude or disrespectful to Mr. or Mrs. Szasz; and 4) Dr. Kopp, Mi’. Szasz’s other physician, had given the Szaszes a wedding present. Second, Mrs. Szasz argues that the trial court erred in allowing the introduction of evidence that her counsel had used a subpoena to require Dr. Telia to bring evidence to trial. Third, Mrs. Szasz claims the trial court erred in permitting redirect examination of Dr. Tella’s expert witness, Dr. Hei-bert, about a pay dispute Dr. Heibert had with Mrs. Szasz’s counsel in a separate case. Fourth, Mrs. Szasz claims that the cumulative effect of the trial court’s errors warrants reversal and remand for a new trial.

We affirm.

Facts

A brief summary of the facts is presented here. The facts will be further recited as warranted by the points on appeal.

Frank and Helge Szasz were married in 1994, several months before Frank Szasz’s death on March 10, 1995. Frank Szasz’s primary physicians were Dr. Kopp and Dr. Nalini Telia. Dr. Telia examined Frank Szasz on or about February 27,1995, and she noted some spots on his chest and abdomen. At trial, Helge Szasz contended that Dr. Telia failed to respond to telephone calls and failed to examine Frank Szasz between February 28 and March 2,1995. Dr. Telia examined Frank Szasz on March 3, 1995 and sent him to the University of Kansas Medical Center. On March 10, 1995, Frank Szasz died while at the University of Kansas Medical Center from a rare condition known as TEN (or TENS). On August 3, 1996, Mrs. Szasz filed her petition, alleging medical negligence on the part of Dr. Telia. The case was tried before a jury. Following trial, the jury found in favor of Dr. Telia. This appeal followed.

Point I

The first point on appeal is that the trial court erred in allowing the introduction of evidence that 1) Dr. Telia had brought a wedding present for the Szaszes to the Szasz home; 2) Mrs. Szasz liked Dr. Telia; 3) Dr. Telia had never been rude or disrespectful to the Szaszes; and 4) Dr. Kopp, Mr. Szasz’s other physician, had also given the Szaszes a wedding present. Mrs. Szasz contends that the evidence was irrelevant, immaterial to any issue before the court, and prejudicial.

Dr. Telia correctly asserts that Mrs. Szasz did not object to the testimony that she had brought a wedding present for the Szaszes to their home, that Dr. Telia was nice to Mrs. Szasz and had never been rude or disrespectful to her, and that Dr. Kopp had brought the Szaszes a wedding present. Mrs. Szasz’s failure to object to this testimony elicited at *132 trial waives any complaint about the testimony she might have on appeal. Bowls v. Scarborough, 950 S.W.2d 691, 698 (Mo.App.W.D.1997).

The only portion of Mrs. Szasz’s testimony that was properly objected to at trial was her testimony that she liked Dr. Telia. Therefore, we consider whether the trial court erred in admitting this portion of the testimony. The trial court’s determination of relevancy and its ruling on the admissibility or exclusion of evidence is accorded substantial deference and will not be disturbed absent an abuse of discretion. Carter v. Wright, 949 S.W.2d 157, 162 (Mo.App.W.D.1997). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and' arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. (quoting Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991)). We find that the trial court did not abuse its discretion in admitting this testimony.

Even assuming, arguendo, that the testimony was irrelevant, the placing of irrelevant evidence before a jury is not a ground for reversal unless it prejudices the complaining party or materially affects the result or outcome of the trial. Choate v. Natvig, 952 S.W.2d 730, 736 (Mo.App. S.D.1997). Prejudicial error occurs only when objectionable evidence affects the result or outcome of the trial. Id. Mrs. Szasz has faded to demonstrate that her comment that she liked Dr. Telia prejudiced her or materially affected the outcome of the trial, especially in light of the fact that Mrs. Szasz’s counsel had already elicited testimony from Mrs. Szasz that Mr. Szasz liked Dr. Telia very much. Point denied.

Point II

The second point on appeal is that the trial court erred in allowing the introduction of evidence that Mrs. Szasz’s trial counsel had used a subpoena to require Dr. Telia to bring evidence, a painting, to trial because 1) a subpoena is a lawful method of obtaining evidence for use at a trial; 2) the fact that lawful process was used to obtain evidence at a trial was irrelevant and immaterial to any issue in the ease; 3) the use of lawful process cannot be the basis of any adverse inferences generally or under the facts of this case; and 4) the comments were made for the sole purpose of creating sympathy for Dr. Telia, thereby unduly prejudicing Mrs. Szasz.

The fact that Mrs. Szasz’s counsel subpoenaed the painting from Dr. Telia was first brought up on redirect examination of Mrs. Szasz by her own counsel. An objection to the admission of evidence is waived where the same or similar evidence has been elicited or introduced by the objector. Alvey v. Sears, Roebuck & Co., 360 S.W.2d 231, 234 (Mo.1962). Therefore, because Mrs. Szasz’s counsel first brought out the fact that he had subpoenaed the painting from Dr. Telia, Mrs. Szasz may not complain on appeal that Dr. Tella’s counsel later asked a similar question of Dr. Telia.

We next address Mrs. Szasz’s contention that Dr. Tella’s counsel made the following improper remarks during closing argument:

What did Mr. Pickett do on cross-examination? He forced [Dr. Telia] to bring a picture. A picture. What does this have to do with this case other than harassment of Dr. Telia, making her bring it? She paid $4,000 for that and she has to bring it and take it home every day to safe keep it.
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Mrs. .Szasz’s counsel objected to the remarks, and the trial court responded, “This is just argument.” Mrs. Szasz argues on appeal that the remarks were improper because they reflected negatively on her counsel’s proper use of the legal system.

Counsel is traditionally given wide latitude to suggest inferences from the evidence on closing argument. Moore v. Missouri Pac. R.R. Co.,

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Bluebook (online)
984 S.W.2d 129, 1998 Mo. App. LEXIS 1981, 1998 WL 761540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szasz-v-tella-moctapp-1998.