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Walker v. Kelley

Court of Appeals of Missouri, Western District, First Division

October 18, 2016

FAITH KELLEY, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Marco Roldan, Judge

          Before: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          Anthony Rex Gabbert, Judge

         Steven Walker appeals from a judgment entered upon a jury verdict finding in his favor on his negligence claim against Faith Kelley and awarding him $1.00 in damages. He contends on appeal that the circuit court erred in denying his motion for new trial, arguing that the jury's verdict of $1.00 was grossly inadequate because his medical expenses were $11, 279.62 and the jury's award of only $1.00 was a result of jury bias, prejudice, or other misconduct. We affirm.

         On December 21, 2009, Faith Kelley was driving her stepmother's 1989 Chevrolet Corsica. At approximately 4:30 in the afternoon, while traveling northbound on River Boulevard in a residential neighborhood in Independence, Kelley failed to recognize that Walker had stopped for traffic and hit him from behind. Kelley testified that she was going twenty to twenty-five miles per hour just before the impact of the accident. She did not have time to apply her brakes before she hit the rear of Walker's vehicle.

         Walker testified that, just prior to the accident he was stopped for a vehicle ahead of him that was making a left turn. There was no advance warning of the collision, and the impact was of such force that Walker's head was thrown back and broke out the cab window of his pickup truck.

         Walker was transported from the scene of the accident by ambulance and received treatment at Centerpoint Emergency Department. His initial complaints included head, neck, and back pain. A computed tomography (CT) scan of his neck showed no fractures and mild arthritis. He was released the same day. He received follow-up care from his primary care physician, Dr. Mouse. Mouse referred Walker to Dr. Curtis Johnson, a physiatrist with a specialty in anesthesiology and pain medicine. Walker's first visit with Johnson occurred on January 6, 2010, approximately two weeks following the accident. At that time, Walker complained of a very stiff neck and problems with moving his head in any direction. Walker also reported headaches, floaters in his eyes, ringing in his ears, sensitivity to bright lights, low back pain and numbness, cramping in his right leg, and numbness in his left foot. Johnson believed Walker's complaints to be due to the injuries received in the December 21, 2009, accident.

         Johnson ordered an MRI of Walker's neck. Johnson noted that Walker had been taking Vicodin and Flexiril, narcotic pain medications prescribed by the emergency room doctors. Johnson performed a physical exam and concluded that Walker was experiencing neck pain caused by the motor vehicle accident and that he had degenerative disc disease of the lumbar spine causing left-sided lumbar radiculitis. Johnson did not believe that Walker's degenerative disc disease was caused by the motor vehicle accident. However, he did believe that the new onset of lumbar radiculitis was from the accident. Johnson considered Walker's biggest concern to be his neck and provided a cervical epidural shot for treatment on January 6, 2010.

         Following the initial cervical epidural shot, Walker returned for a follow-up visit on January 20, 2010. Walker described feeling a 20% improvement from the shot. On his second visit, Johnson reviewed the MRI previously ordered and noted a bulging disc at C5-6. This was not present in an MRI conducted at Centerpoint on the date of the accident. Johnson testified that the first MRI film showing no broad based disk bulging appeared to be a correct report of Walker's condition the day of the accident. Johnson testified that there was no way of knowing whether the motor accident caused the bulging C5-6 disks. Johnson gave Walker another epidural injection in his neck. On February 3, 2010, Johnson gave Walker a third and final epidural injection and enrolled Walker in therapy. Johnson focused on Walker's complaints regarding his neck and did not treat him for his back. Johnson did not see Walker again for nearly five years when he was re-evaluated on September 23, 2015, prior to Johnson giving his deposition in this case. Johnson was unaware of any intervening medical history Walker may have had between the final 2010 visit and the 2015 visit.

         On the September 23, 2015, visit, Walker reported to Johnson that he was still having neck pain with some radiation into his left shoulder. Walker had not received any treatment other than physical therapy since his last visit with Johnson in 2010. Walker told Johnson that he was experiencing stiffness at the base of his neck and upper back and was using ibuprofen (Motrin) for pain relief as needed. Johnson performed a physical examination and noted Walker to be tender in the left cervical area with decreased range of motion. Johnson concluded that Walker was experiencing chronic neck pain from the 2009 automobile accident. Because five years had passed since the accident, Johnson believed the neck pain had become permanent. Johnson suggested additional treatment including a change of medication from Motrin to Meloxicam and cervical facet injections. These injections were designed to pinpoint the facet joints that may have become arthritic with the goal of decreasing pain and improving range of motion. Johnson did not consider Walker to be a surgical candidate for his neck pain. His final diagnosis was chronic neck pain from the automobile accident.

         When Johnson was asked at trial why five years elapsed between the 2010 visit with Walker and the 2015 visit, Johnson testified that he believed that Walker wanted to be evaluated for his upcoming case. Johnson testified that he was unaware of other treatment Johnson may have received so he was unable able to testify that any other treatment that Walker received was reasonable and necessary.

         Walker testified at the trial. He testified that he had a work injury to his lower back in 1993 that took approximately three years to heal. Prior to and after the motor vehicle accident he visited the chiropractor periodically. Walker was working for Dependable Hauling doing physical labor the day of the accident. Walker claimed that he missed work for a period of time following the collision with Kelley but had no verification of wage loss from his employer. He admitted that he ultimately went back to work and resumed his former duties. Walker testified that, after working for Dependable Hauling he worked for a "temp company" doing a variety of jobs in 2010 and 2011. He went to work for Volt doing physical labor including sweeping and shoveling and he testified that there was nothing at Volt that he could not do physically. After working for Volt, Walker worked for Pro Logistics running a forklift, picking and pulling orders, stocking, warehousing, and sweeping the floor. He testified that he had no trouble doing that work. Walker then took a job in construction repurposing an existing office building and an indoor soccer facility. Following that he went to the Kansas City Power and Light boot camp for apprentice lineman and performed very physical work while there. Thereafter he worked for Foutch Construction and Shotts Construction where he performed hard physical labor. Finally, Walker obtained a job at KCPL as an apprentice lineman. This work requires digging six to eight foot holes in the ground with posthole diggers, hauling equipment, and climbing poles to put equipment on the poles. Walker testified that there is no activity he could do before the accident that he cannot do now.

         The jury initially returned a verdict for Walker but awarded no damages. The circuit court rejected the verdict on the grounds that it was inconsistent according to the law and the jury was instructed to be guided by the damages instruction which provided that "[i]f you find in favor of Plaintiff, then you must award Plaintiff such sum as you believe would fairly and justly compensate Plaintiff for any damages you believe Plaintiff sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence." The jury deliberated further and returned with a damage award of $1.00. On October 28, 2015, the court entered Judgment on the verdict and Walker filed his motion for new trial on November 2, 2015. On November 17, 2015, the court overruled Walker's motion for new trial. This appeal follows.

         "Denial of a new trial based on an inadequacy in the jury verdict is reviewed for abuse of discretion." Lewey v. Farmer, 362 S.W.3d 429, 435 (Mo. App. 2012). "A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and unreasonable as to shock the appellate court's sense of justice and indicate a lack of careful consideration." State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008). "There is no abuse of discretion if reasonable minds could disagree about the propriety of the trial court's decision." Lewey, 362 S.W.3d at 435. Abuse of discretion with regard to an inadequate jury verdict ...

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