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June 21, 1983


From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Richard J. Mehan.

Before Simon, P.j., Stephan, Karohl, JJ.

The opinion of the court was delivered by: Karohl

Plaintiff-appellant Mattie Harris, age 55, brought an action against defendant-respondent James Washington, Edward Jefferson, and her automobile insurer, Allstate Insurance Company, for personal injuries resulting from an automobile collision. The jury found for plaintiff, awarding her $30,000 damages from both individual defendants, found in plaintiff's favor against Allstate, and apportioned fault between Washington and Jefferson. Mr. Jefferson was not represented at trial and is not part of this appeal. After defendant Washington and Allstate brought separate motions for new trial, the trial court ordered a new trial on the issue of damages alone. The court found that plaintiff failed to prove a causal connection between the August 16, 1978 accident and a hospitalization in January, 1979. Allstate then paid $10,000 to plaintiff as the limit of her uninsured motorist coverage, and is no longer a party. Plaintiff appealed the trial court's order granting a new trial on the issue of damages.

On August 16, 1978, plaintiff was in her car, stopped at an intersection, when two cars in the cross-street collided in front of her. The cars, one driven by defendant Washington, the other by Mr. Jefferson, slid into plaintiff's car, pushing it onto a sidewalk and shattering the windshield. Plaintiff was taken to a hospital with her mouth bleeding from glass fragments. She was given a temporary neck collar, x-rays, and pain pills.

The next day plaintiff complained of soreness in her neck, shoulders and back. She went to see Dr. David Kantor, who examined her neck and shoulders, x-rayed her neck, shoulder and lower back, and prescribed muscle relaxants. She continued to wear the neck collar for five weeks.

Immediately after the accident, plaintiff remained home from work for fifteen days. After returning to work, she had an unrelated accident and injured her right shoulder. Plaintiff remained under Dr. Kantor's care, making constant office visits. After initial complaints of lower back pain after the accident, plaintiff did not complain of lower back pain from August 31, 1978 to January 11, 1979.

On January 28, 1979, plaintiff entered the hospital and had surgery on her lower back. She left the hospital on February 22, 1979. Plaintiff stated at trial that she still had problems with her back, wore a steel brace and had a loss of feeling in part of her left leg, causing her to limp. She presented evidence of hospital, drug and doctor bills totaling over $6,000.

Dr. Kantor, the treating physician, testified by deposition. His initial diagnosis after the accident was cervical and lumbar (lower back) sprain secondary to trauma, and symptomatic dysfunction of the left shoulder (a strain). The first x-rays he took showed increased sclerosis of the fourth lumbar vertebra, suggestive of either degenerative or osteoblastic disease. The doctor described this as a creation of a new bone in an area where there was no bone or a greater amount of bone than there should have been.

Dr. Kantor testified that the sclerosis and osteoblastic disease was not caused by the collision but felt that because of the accident, the pre-existing abnormality became symptomatic and painful.

Dr. Kantor admitted plaintiff to the hospital in January for evaluation of osteoblastic lesion of the lumbar spine, to rule out Pagent's disease, and for symptomatic dysfunction of the dorsal spine secondary to trauma. Plaintiff's back surgery involved a biopsy of the fourth lumbar vertebra.

On cross-examination, Dr. Kantor acknowledged that plaintiff told him at the first examination that approximately one year prior, she had an accident that injured her lower back. At the time of the initial examination she did not complain of lower back pain. Until the surgery, plaintiff received no treatment for her lower back except for muscle relaxants. From August 31, 1978 to January 11, 1979, Dr. Kantor found no muscle spasticity in plaintiff's lower back.

Dr. Kantor's final diagnosis after the hospitalization was osteoarthritis of the lumbar spine, possible metastatic carcinoma, degenerative arthritis and dorsal symptomatic dysfunction. He diagnosed the osteoarthritis, degenerative arthritis of the lumbar area, as a result of the wear and tear of getting older. Dr. Kantor admitted that the surgery did not come about as a result of a traumatic injury, although he stated that the collision aggravated the pre-existing condition to the lower back. Finally, Dr. Kantor was asked on cross-examination, "After the hospitalization had been undergone and the biopsy was taken, you are of the opinion now that the abnormality was not directly related to that automobile collision of August 16, 1978. Is that correct?" Dr. Kantor answered, "Yes."

Defendant's medical expert testified that there was no causal connection between the accident and plaintiff's lower back problems. Defendant made a motion in limine and a continuing objection at trial to anything dealing with the hospital stay of January, 1979, treatment received, any surgical procedure which occurred during the hospitalization, the medical expenses in connection with the hospitalization, and any wage loss associated with the hospitalization. Defendant argued that that evidence was not causally connected to the accident. The trial court overruled the objection, and defendant offered withdrawal instructions which sought to exclude from the jury's consideration any reference to the hospitalization or medical bills associated with the hospitalization. The court refused to give the withdrawal instructions.

The trial court granted the new trial on damages on the grounds that: (1) the court should have given defendant's offered withdrawal instruction, as the evidence failed to establish any causal connection between the hospitalization and the bills incurred and the accident; (2) the refused withdrawal instruction should have been given to clarify the issues in the jury's assessment of damages; (3) the verdict was excessive in that it must be presumed based in part on the improperly admitted evidence of the hospitalization and the bills incurred; and (4) that the court should have granted defendant's motion in limine and should have ...

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