Wiley v. Homfeld

307 S.W.3d 145, 2009 Mo. App. LEXIS 1560, 2009 WL 3571294

• Court: Missouri Court of Appeals
• Decided: November 3, 2009
• Docket: WD 69560, WD 69599
• Status: Published

Opinions

JOSEPH M. ELLIS, Judge.

Lauren Wiley appeals the circuit court’s entry of remittitur and final judgment in her negligence action against Ryland Hom-feld, contending that the circuit court erred because: (1) it failed to give Ms. Wiley an opportunity to consent to remitti-tur or to request a new trial, and (2) it abused its discretion in remitting the jury’s verdict. Mr. Homfeld cross-appeals claiming that the circuit court erred in permitting Dr. John Scowley to testify regarding Ms. Wiley’s future medical expenses and in denying his motion for new trial. For the following reasons, the trial court’s decision to remit the verdict is reversed, and judgment is entered in accordance with the jury’s verdict.

On May 20, 2004, Ms. Wiley was driving her Ford Escort when she was struck by an eighteen-wheel truck and trailer driven by Mr. Homfeld, who had run a red light while talking on his cellular phone. Ms. Wiley sustained injuries to her back as a result of the collision.

Ms. Wiley subsequently filed a petition for damages in the Circuit Court of Ray County, and the case was tried by jury on November 26, 2007. At trial, Mr. Homfeld admitted liability, leaving only the issue of Ms. Wiley’s damages. The jury ultimately rendered verdict in favor of Ms. Wiley for $400,000.

Mr. Homfeld filed a motion for new trial, judgment notwithstanding the verdict, and/or remittitur. Mr. Homfeld’s motion for remittitur was based upon a claim of grossly excessive verdict. After a hearing, the circuit court denied the motions for new trial and judgment notwithstanding the verdict but ordered the jury’s verdict remitted by $300,000 and entered judgment in favor of Ms. Wiley for $100,000. Ms. Wiley appeals, and Mr. Homfeld cross-appeals.

We first address Ms. Wiley’s second point on appeal, wherein she contends that the circuit court abused its discretion in ordering remittitur. She argues that trial court improperly based its decision on a finding that no future medical expenses were established to a reasonable degree of medical certainty and in refusing to consider her future medical expenses in assessing the nature and extent of her injury.

“The assessment of damages is primarily a function for the jury.” Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 180 (Mo.App. W.D.2006). “Missouri courts have consistently adhered to the rule that a verdict of a jury in assessing damages will not be disturbed unless it is grossly excessive or inadequate.” Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 656 (Mo.App. W.D.1997).

The trial court’s authority to grant remittitur is established by § 537.068.¹ That statute only vests the trial court with discretion to remit a verdict if the evidence, viewed in the light most favorable to the verdict, does not support the amount awarded by the jury.² § 537.068. The trial court has no authority to alter the jury’s verdict unless that threshold requirement is met.

Accordingly, when reviewing a trial court’s grant of remittitur, an appellate court must first review whether the trial court had the statutory authority under § 537.068 to remit the jury’s verdict. Entering remittitur where the jury’s verdict is supported by the evidence would obviously be an abuse of discretion as it assumes authority not granted to the court by § 537.068. The only way to review the trial court’s decision in this regard is to view the evidence in the light most favorable to the verdict, as the trial court was required to do in assessing whether the jury’s verdict was supported by the evidence.³

This standard of review was utilized in the most recent, controlling case from the Missouri Supreme Court. In 1985, the Missouri Supreme Court abolished common law remittitur in Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985). It did so, however, only after deciding Ms. Firestone’s appeal, in which it reversed the trial court’s grant of remittitur. Id. In its analysis of the propriety of the trial court’s decision to remit, the Court cited with approval Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. , 193 S.W.2d 905, 907 (1946), and applied the teaching of Dodd in Ms. Firestone’s case.⁴ Id. at 108, 110.

Specifically, the Court in Firestone noted that it was for the jury to evaluate the credibility of conflicting expert testimony, and it viewed the evidence in the light most favorable to the jury’s verdict. Id. at 108-110. Concluding its analysis, the Supreme Court stated that “[t]he jury is vested with a broad discretion in fixing fair and reasonable compensation to an injured party” and held that where the record contains evidence that would support the jury’s award, “[s]uch a record does not authorize a trial court in the exercise of reasonable discretion to order any portion of it remitted.” Id. at 109-110. For this reason, the Court found an abuse of discretion on the part of the trial court and restored the jury’s verdict. Id. at 110.

The Supreme Court’s citation to, and reliance on, Dodd is a clear rejection of Steuemagel and the other prior cases that had reviewed remittitur in the light most favorable to the trial court and, as such, has the effect of overruling them sub silen-tio. Keller v. Marion County Ambulance Dist., 820 S.W.2d 301, 305 (Mo. banc 1991) (Recognizing that previous cases can be overruled sub silentio by subsequent decisions. “To the extent that this language constitutes the holding of Roberts, it has been overruled by this Court sub silentio in several cases.”). The Court was clearly mindful of those cases at the time because one of its reasons for abolishing remittitur was because of the “problems and conflicting philosophies” exhibited by the courts of this State in addressing remittitur. Firestone, 693 S.W.2d at 110.

Firestone is the most recent controlling decision of our Supreme Court on this issue. While Firestone abolished common law remittitur, the legislature adopted § 537.068 in 1987 creating a statute-based remittitur. “[T]he legislature is presumed to know the state of the law when enacting a statute.” Scoggins v. Timmerman, 886 S.W.2d 135, 137 (Mo.App. W.D.1994). Common law rules re main in effect “[u]nless a statute clearly abrogates the common law either expressly or by necessary implication.” Mika v. Cent. Bank of Kansas City, 112 S.W.3d 82, 90 (Mo.App. W.D.2003) (internal quotation omitted). If the legislature, in reinstating remittitur by statute, had intended to change the standard of review adopted and applied in Firestone, it could easily have done so. It did not. Accordingly, the standard of review currently applicable to cases appealing the grant of remittitur is that set out and applied in Firestone. ‘“This court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court.’ ” ⁵ Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo.App. W.D.2005) (quoting Kinder v. Mo. Dep't of Corr., 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2)).

Subsequent to the enactment of § 537.068, the Eastern District of this Court utilized this approach in holding that a trial court abused its discretion in granting remittitur in Crawford ex. rel. Crawford v. Shop ’N Save Warehouse Foods, Inc., 91 S.W.3d 646, 653 (Mo.App. E.D.2002). The Eastern District viewed the evidence in the light most favorable to the verdict to determine whether the jury’s award of future medical expenses was supported by substantial and competent evidence and held that the trial court erred in remitting the verdict where the evidence, so viewed, supported the jury’s verdict. Id. at 653-54.

Similarly, in Children International v. Ammon Painting Co., 215 S.W.3d 194, 199 (Mo.App. W.D.2006), this Court viewed the evidence in the light most favorable to the jury’s award in assessing whether the trial court properly ordered remittitur. While noting that the amount of the overall verdict was supported by the evidence and would likely require holding that the entry of remittitur was an abuse of discretion had various aspects of the verdict not been itemized by the jury, we held that the trial court’s remittitur of the amount specifically awarded for loss of use damages was proper because the record contained no evidence of such damages.⁶ Id.

In the case at bar, reasonable minds could differ on the extent to which the need for future medical treatment was established by the evidence, and the trial court’s decision could only be affirmed if the evidence is viewed in the light most favorable to the court’s decision to remit. When the evidence is properly viewed in the light most favorable to the jury’s verdict, that verdict is clearly supported by substantial evidence and is not against the weight of the evidence.

Dr. Scowley testified that the pain from the type of injury sustained by Ms. Wiley will progress as arthritis sets in to the injured area and “that there is a good medical certainty that she will require either intermittent epidurals, pain medications, anti-inflamatories, the whole gamut of treatment that will progress with her as she ages.” He testified that the amount of treatment she would require would depend on how much she could tolerate the pain and that her yearly medical expenses could range from five hundred dollars for office visits and medicines to fifteen thousand a year if she requires epidurals. He noted that Ms. Wiley would most likely need to continue to see her doctor and chiropractor at the same rate she had been but that she would need to increase those visits as her condition worsened. He stated that testing in the form of CAT scans and/or MRI scans would add to the medical expenses. Dr. Scowley also testified that Ms. Wiley would benefit from one to two rounds of physical therapy per year if she was doing well and more if her condition worsened. He said that such therapy usually goes on for ten to fourteen days and costs two to three hundred dollars per visit. Dr. Scowley stated that “she’ll have focalized periods of involvement just due to the nature of her injury with the facet arthropathy” and that “it’s something that will be there and it may not require surgery and it might require surgery.” He testified that Ms. Wiley would benefit from having epidurals in the future and the cost of each such procedure, though he could not quantify how many of these procedures she would require.

Properly viewed, the evidence presented at trial clearly supported the verdict rendered by the jury. Dr. Scowley’s testimony reflects that, at a minimum, Ms. Wiley would require visits to the doctor and/or chiropractor, medication, and one or more sessions of physical therapy each year. Dr. Scowley’s testimony reflects that these treatments would cost, in the aggregate, a minimum of $2,500 per year. Thus, the record established that Ms. Wiley had and would continue to have need of further medical treatment for her injury. Dr. Scowley also definitively stated that Ms. Wiley would require epidurals in the future. While he could not put a definite number on how many she would ultimately require, that testimony clearly supports a finding that she will require at least two such procedures. Accordingly, if the trial court found Dr. Scowley’s testimony credible,⁷ it erred as a matter of law in finding the testimony insufficient to establish to a degree of medical certainty that future medical expenses would be incurred. If, on the other hand, the trial court did not find Dr. Scowley’s testimony credible, it erred as a matter of law in failing to view the evidence in the light most favorable to the verdict.

In either case, properly considering Dr. Scowley’s testimony, in light of Ms. Wiley’s 61-year life-expectancy, as established in the record, the proven minimum cost of her future medical treatment for the injury clearly exceeds the $100,000 verdict rendered by the trial court in doctor and chiropractor visits alone. Furthermore, Dr. Scowley’s testimony established that Ms. Wiley would need MRIs and epidurals at some point in the future. In addition, the fact that Ms. Wiley might need additional treatment and/or back surgery could properly have been weighed by the jury in assessing the nature and extent of her injury as well as the pain and suffering she would experience as her condition worsened. The fact that her back injury carries with it a chance of requiring surgery in the future makes it a worse injury than a back injury with a lesser chance of future complications or one that had fully healed by the time of trial, a fact that should be considered by the jury in assigning a dollar value to her injury. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 132-33 (Mo. banc 2007). Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the record in this case supported the $400,000 verdict and that the trial court abused its discretion in finding to the contrary. In light of this holding, we need not address Ms. Wiley’s remaining point on appeal.⁸

Mr. Homfeld’s sole point in his cross-appeal contains multifarious claims of error and, accordingly, violates Rule 84.04. Atkins v. McPhetridge, 213 S.W.3d 116, 120 (Mo.App. S.D.2006). Despite this flagrant disregard of the rules, the policy of the appellate courts in this State is to decide a case on the merits rather than technical deficiencies in the brief. Citizens Nat’l Bank v. Maries County Bank, 244 S.W.3d 266, 272 n. 3 (Mo.App. S.D.2008) (citing Christeson v. State, 131 S.W.3d 796, 799 n. 5 (Mo. banc 2004)). Because we are able to discern the claims being made and the defective nature of the point relied on does not impede our disposition of the case on the merits, we will exercise our discretion to attempt to resolve the issues on the merits. Atkins, 213 S.W.3d at 120. We will separate Mr. Homfeld’s contentions, as best we can discern them, and respond to each one individually. Chipperfield v. Mo. Air Conservation Comm’n, 229 S.W.3d 226, 235 (Mo.App. S.D.2007).

In the first sub-point of his point relied on, Mr. Homfeld contends that Dr. Scowley’s testimony indicating that Ms. Wiley would require future medical treatment should have been excluded from evidence because Ms. Wiley failed to list such expenses in response to an interrogatory asking her to itemize any special damages she was seeking aside from lost earnings. Mr. Homfeld argues that he was unfairly surprised by this testimony and denied the opportunity to find an expert that would testify that Ms. Wiley would not need future treatment.

“The trial court has broad discretion to admit or exclude evidence,” and “[w]e will affirm the trial court’s decision absent a clear abuse of discretion.” Campbell v. Tenet Healthsystem, DI, Inc., 224 S.W.3d 632, 638 (Mo.App. E.D.2007). “This discretion extends to the trial court’s choice of remedies in response to the nondisclosure of evidence.... ” Wilkerson v. Prelutsky, 943 S.W.2d 643, 647-48 (Mo. banc 1997). “A trial court will be found to have abused its discretion when a 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.” Swartz, 215 S.W.3d at 130 (internal quotation omitted).

Regardless of whether Ms. Wiley should have listed expenses for future medical treatment as special damages in her answer to Mr. Homfeld’s interrogatories, the trial court noted in deciding to allow the testimony that Mr. Homfeld was well aware that Dr. Scowley would testify about such expenses as a result of the testimony provided in Dr. Scowley’s deposition during discovery. Because Mr. Homfeld learned of the testimony that would be offered through Dr. Scowley’s deposition, we cannot say the trial court abused its discretion in denying Mr. Homfeld’s motion to exclude the evidence at trial. Campbell, 224 S.W.3d at 639.

In his next sub-point, Mr. Hom-feld contends that Dr. Scowley’s testimony related to future medical treatment should have been excluded from evidence because it did not have a sufficient evidentiary foundation. Mr. Homfeld argues that this testimony was used to establish future special medical damages and that such damages required evidence that they are reasonably certain to be incurred. He further claims that Dr. Scowley’s testimony was too speculative and should have been excluded from evidence.

“It is Missouri’s well-settled rule that a plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by a preponderance of the evidence were caused by the defendant.” Swartz, 215 S.W.3d at 130-31. “In accordance with this basic damage instruction, when an expert testifies to a reasonable degree of certainty that the defendant’s conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiffs present injuries, even if those future consequences are not reasonably certain to occur.” Id. at 131. For this reason, under Missouri case law, expert testimony is admissible where it addresses the probability, short of reasonable certainty, that future treatment may be necessary and of the potential cost of such treatment. Id.

Dr. Scowley testified to a reasonable degree of medical certainty that Ms. Wiley had a permanent condition that would require continued treatment and that this condition was going to worsen with age and require more extensive treatment. He described the various forms of treatment that might be required and the costs associated therewith. His testimony also reflects a minimum amount of medical treatment that she would require. Although he could not testify with certainty how much treatment Ms. Wiley would ultimately require because it would be dependent on her ability to tolerate pain, the speed with which her condition deteriorated, and the success of more conservative treatment, all of the testimony offered by Dr. Scowley on the subject of future medical treatment was properly admitted to allow the jury to assess the nature and extent of her injuries.⁹ Id. at 130-31.

In his final sub-point, Mr. Homfeld asserts that the trial court erroneously found that he had waived his claim of error related to Dr. Scowley’s testimony in denying his motion for new trial. He contends that he made a continuing objection that sufficiently preserved his challenge to the evidence. As noted supra, the trial court did not err in admitting Dr. Scowley’s testimony. Thus, regardless of whether Mr. Homfeld’s objection was adequately preserved, the motion for new trial was properly denied. As none of the claims made in his point on cross-appeal have any merit, the point is denied.

For the reasons discussed herein, the trial court abused its discretion in ordering remittitur. The judgment of the trial court is reversed, and judgment is hereby entered in favor of Ms. Wiley in the amount of the original jury verdict, $400,000.00.

NEWTON, C.J., HOWARD, HARDWICK, PFEIFFER, and MITCHELL, JJ. concur.

AHUJA, J. concurs in result in separate opinion filed.

WELSH, J. dissents in separate opinion filed.

SMART, J. concurs in dissenting opinion.

1 . All statutory references are to RSMo 2000 unless otherwise indicated.

2 . While the dissent reads the language "evidence in support of the jury’s verdict" to mean "all admissible evidence” or "all evidence available to the jury," there is no support for such an interpretation. The long line of cases cited by the dissent were all handed down before the practice of remittitur was abolished by the Missouri Supreme Court in Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985). Although the legislature subsequently reinstated a form of remittitur, the whole of the common law was not incorporated in the statute. The legislature could easily have provided for the trial court to remit a verdict if "the admissible evidence” does not support the award but it chose not to incorporate such language in the statute.

3 .The dissent incorrectly concludes that viewing the evidence in the light most favorable to the verdict renders the remittitur standard meaningless because it is then the same as the standard for directed verdict or judgment notwithstanding the verdict. To grant a directed verdict, before the case is submitted to the jury, the trial court does not consider the evidence in the light most favorable to the verdict because the case has yet to be submitted to the jury and there is no verdict. In granting a motion for directed verdict, the court considers the evidence in the light most favorable to the non-moving party. Laws v. St. Luke’s Hosp., 218 S.W.3d 461, 466 (Mo.App. W.D.2007). As noted by the dissent, the standard is the same for JNOV. This is not the same as viewing the evidence in the light most favorable to the verdict. Indeed, a verdict is not always favorable in all respects to any one party, and often neither party gets everything it wants.

4 . In Dodd v. Missouri-Kansas-Texas R. Co., 354 Mo. 1205, 193 S.W.2d 905, 907 (1946), the Missouri Supreme Court stated:

The question of the amount of the damages in cases of this nature is primarily for a jury. Courts should not interfere unless a verdict is grossly excessive or inadequate. In considering the question of whether a verdict is excessive a court must take into consideration the plaintiff's evidence in its most favorable light to plaintiff. This for the reason that a jury has weighed the evidence and found in plaintiff's favor.

5 . The dissent quotes extensively from Steuernagel v. St. Louis Pub. Service Co., 361 Mo. 1066, 238 S.W.2d 426 (1951), and cites other cases of similar import in support of its position. While "the cases before 1985 interpreting remittitur remain helpful in interpreting § 537.068,” Bishop v. Cummines, 870 S.W.2d 922, 924 (Mo.App. W.D.1994), as to the issue before us, the cases cited by the dissent have been effectively overruled.

6 . Were we to utilize the contrary approach and give deference to the manner in which the trial judge assessed credibility and weighed the evidence in determining whether he had the statutory authority to remit the verdict, it would lead to absurd results. We would effectively be reviewing the case as though it were a court-tried case and not a jury trial. Anytime a judge chose to remit a jury verdict, we would simply be reviewing the verdict entered by the trial court to see if it is supported by the evidence and is not against the weight of the evidence with no regard for the jury’s verdict. We would effectively be granting the trial judge unfettered authority to enter a verdict in any amount within the range of evidence presented at trial anytime the judge so chooses in complete derogation of the juiy's verdict. Such an approach would not only be erroneous, but contrary to existing case law, as noted supra.

By way of example, assume Defendant intentionally destroyed a painting owned by Plaintiff, and Plaintiff sued. Plaintiff's expert testified that the painting was worth $100,000. Defendant admitted liability but presented expert testimony that the painting was worth $75,000. The jury entered an award of $100,000. On a motion for remitti-tur, the trial court remitted to $75,000. Clearly, had the trial court properly viewed the evidence in the light most favorable to the jury verdict as required by statute, it could not have found the verdict was not supported by the evidence or that it had the statutory authority to remit. The jury verdict was clearly within the range of damages supported by the evidence. If, however, we were required to review the evidence in the light most favorable to the trial court’s decision to remit, then we could not find that the trial court abused its discretion because there was evidence in the record that could support the lesser award entered by the court.

7 . The trial court made no express finding related to the credibility of the testimony offered by Dr. Scowley.

8 . We gratuitously note that, where a trial court sustains a motion for remittitur, it must afford the affected party the option of electing to have a new trial instead of accepting judgment in the lesser amount. Rule 78.10(b).

9 . Dr. Scowley’s actual testimony related to Ms. Wiley’s future medical problems and treatments was as follows:

Q: Are there times, though, when the muscles don’t heal?

A: Yes.

Q: And is that what we've got here?

A: Yes, sir.

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Q: Doctor, is it your testimony, are you telling the jury that Ms. Wiley would benefit from these [epidural] injections?

A: At some point, yes.

Q: And how many injections over what period of time?

A: That’s difficult to ascertain. Depends on the degree of pain she has through the years.

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Q: What else do you believe might benefit Lauren in the future?

A: That’s a very difficult question ... I don't know exactly. I think she’ll have problems for the rest of her life. I think that there’s a good medical certainty that she will require either intermittent epidurals, pain medications, anti-inflamatories, the whole gamut of treatment that will progress with her as she ages.

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Q: How much, how often in the future is she going to have to see a doctor or a chiropractor?

A: Again, it varies on the degree of tolera-bility she has to pain.

Q: Is it going to be similar to what she’s seeing a doctor and chiropractor for over the past?

A: Most likely. It may get worse as she goes on. Like I said, as the age on those bones, younger bones tolerate it better than older bones do.

Q: What do you anticipate the cost of seeing a doctor or chiropractor per year is going to be for this lady?

A: It can range anywhere from the, you know, five hundred to a thousand dollars for office visits, medications, too; so fifteen thousand dollars a year if she gets a set of epidurals.

Q: And does that include — that five hundred to a thousand dollars a year, does that include x-rays and testing?

A: No, sir.

Q; Or medicines?

A: It may include medicines but any testing’s going to run it up. CAT scan is going to run a thousand or fifteen hundred, and that doesn't, the radiologists, MRIs will be slightly more.

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Q: Do you think she'll benefit from physical therapy?

A: Yes.

Q: How often will you send a person to physical therapy?

A: Again, it depends on severity during the year. If she has a good year, once or twice. If she has a bad year, possibly more.

Q: Physical therapy; and how long is physical therapy, a round of physical therapy?

A: Varies depends on the progress the therapists find at the time. Some are shorter; some are longer. Ten days, two weeks.

Q: And what is the cost of that?

A: Usually it's around two to three hundred dollars per visit would be my best estimation.

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A: Overall prognosis is the fact she'll probably have back pain intermittently for the rest of her life.

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Q: And in terms of need for any future medical care, if I understand your testimony, that may occur but only if her pain gets worse, fair statement?

A: It most likely will occur.

Q: But only if her pain gets worse?

A: Yes, sir.

Q: And you don’t know with certainty what's going to happen to her down the road, true?

A: No, sir.

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Q: So is she going to have more arthritis than everyone else in this courtroom? If they have a normal amount, is she going to have more?

A: She'll have focalized periods of involvement just due to the nature of her injury with the facet arthropathy. Like I said, ... it's something that will be there and it may not require surgery and it might require surgery.

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Q: She’s going to have arthritis that she wouldn’t have had; isn't that true?

A: Yes, sir.