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Deckard v. Webster County

Court of Appeals of Missouri, Southern District, Second Division

March 9, 2015

DEANNA DECKARD, Plaintiff-Respondent,
v.
WEBSTER COUNTY, MISSOURI, Defendant-Appellant

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[Copyrighted Material Omitted]

Page 285

APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY. Honorable James A. Hackett, Special Judge.

For Appellant: Patricia Keck, Jill Patterson of Springfield, MO.

For Respondent - Jerry M. (Jay) Kirksey, Kevin K. Fick of Bolivar, MO.

Nancy Steffen Rahmeyer, J. -- Opinion Author. Mary W. Sheffield, P.J. - Concurs. Don E. Burrell, J. - Concurs.

OPINION

Page 286

Nancy Steffen Rahmeyer, J.

This case comes before us following a jury verdict against Webster County, Missouri (" Appellant" ), after a reserve deputy from Webster County struck and injured plaintiff Deanna Deckard. Appellant brings five points on appeal; four of the points challenge evidentiary rulings by the trial court and one challenges the verdict director. We find no error and affirm the judgment.

EVIDENTIARY RULINGS

The trial court's decision whether to admit an expert's testimony will not be disturbed on appeal absent an abuse of discretion. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 129-130 (Mo. banc 2007). " 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." McGuire v. Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004). " A determination of prejudice by the erroneous admission of evidence depends largely upon the facts and circumstances of the particular case." Id. at 722. Likewise, we give substantial deference on other evidentiary rulings. Kansas City v. Keene Corp., 855 S.W.2d 360, 367 (Mo. banc 1993).

Point I

In its first point, Appellant complains that its retained expert witness, Michelle Beach, should not have been allowed to testify on behalf of Deckard because " she was not named as an expert witness during the discovery process." Appellant claims Deckard's failure to list Beach in an interrogatory request violated Rule 56.01(b)(4)(a),[1] and, as such, is an abuse of discretion. The facts in this case warrant a finding that there was no abuse of discretion in allowing the testimony. The trial was set to occur on December 2, 2013. Beach was hired by Appellant two years prior to trial, in October 2011; but she was not named as a retained expert until November 14, 2013, by Appellant, and was deposed by Deckard on November 26, 2013. On that same date (6 days prior to trial), Appellant admitted to the trial court it was informed that counsel for Deckard announced his intention to call Beach as a witness for Deckard. Appellant also admitted that the expert was named in a witness list on that same date, identifying Beach, and stating that she would be called in Deckard's case in chief. Appellant was even told the date and time that Beach would be called. From that record, the trial court could have reached the conclusion that after the expert witness was named by Appellant (two weeks prior to trial) and during the deposition something was said that Deckard's attorney decided may have assisted Deckard. It also may have caused Appellant to have had second thoughts about the expert. The claim of Appellant that it was prejudiced because it " removed the ability of [Appellant] to decide whether to call her as a witness at all" is specious. Appellant knew or could have known what the witness would say two years prior to its notice to Deckard.

It is clear from the record that the parties were engaging in discovery right up to the time of trial; there was no prejudice to Appellant because of the notice by Deckard at the deposition and the

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subsequent written notice that Deckard intended to call Appellant's witness in her case. Appellant's attempt to claim a novel interpretation of Rule 56.01(b)(4)(a), which would absolutely prohibit a trial judge from admitting testimony from an expert (or any other witness) that was not properly disclosed by supplementing interrogatory answers, has no support in the rule itself or in case law and, thus, fails. Our review is whether the trial court abused its discretion in allowing this expert known to, retained by, and ...


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