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Martin v. Mercy Hospital Springfield

Court of Appeals of Missouri, Southern District, Second Division

April 12, 2017

DEBORAH MARIE MARTIN, et ux, Respondents,
v.
MERCY HOSPITAL SPRINGFIELD, d/b/a MERCY VILLA, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R. Brown, Judge

          OPINION

          DANIEL E. SCOTT, J.

         Deborah Martin tripped on a crank protruding from a relative's hospital bed at Mercy Villa, a skilled nursing facility. A jury assessed Mercy 70% of the fault and liability for Ms. Martin's injuries and denied her husband's consortium claim. Mercy appeals, raising three points. We affirm.

         Points I & II

         We take in reverse order Mercy's charges that the trial court erred in refusing to grant a mistrial or strike the venire due to allegedly prejudicial remarks by panelists during voir dire.

         Mercy argues in Point II that Ms. Martin's counsel stipulated to such relief and the trial judge "refuse[d] to enforce a stipulation against the will of both parties." Yet it was only after the verdict, via new-trial motion, that Mercy first cited such "stipulation" or claimed the court had to honor it. This was too late. Cf. State v. Marr, 499 S.W.3d 367, 377 (Mo.App. 2016) (even a criminal defendant convicted by an unconstitutionally-composed jury waives relief by failing to give the trial judge an opportunity to act while correction remains possible). We deny Point II without need to detail other doubts about Mercy's "stipulation" claim.

         We also reject Point I's more general charge that "multiple prospective jurors made inflammatory or prejudicial statements toward Mercy, " so the trial court erred in denying Mercy's motions for mistrial or to strike the venire.[1]

         The trial court enjoyed broad discretion in ruling Mercy's motions. State v. Stewart, 296 S.W.3d 5, 9 (Mo.App. 2009). That court was best positioned to assess any effect of alleged improprieties; we will not reverse unless we find a clear abuse of discretion; i.e., an illogical, arbitrary, unreasonable, ill-considered ruling that shocks a sense of justice. Id. at 9-10. We presume the trial court ruled correctly (id. at 10) and Mercy must prove otherwise by showing that the challenged comments were so inflammatory and prejudicial as to transgress Mercy's right to a fair trial. State v. Sprinkle, 122 S.W.3d 652, 668-69 (Mo.App. 2003).

         In these respects, Mercy's complaints fall woefully short. Although Mercy repeatedly labels the cited comments "unsolicited, " none of them were. All six were in response to questions posed by the court or counsel; only two can fairly be said to criticize Mercy or Mercy Villa (Ms. Sammon and Mr. Daniel's first response); and "[t]here are many cases where statements far more inflammatory or prejudicial than those by any of the jurors in this case were not considered grounds to quash the panel or declare a mistrial." Id. at 669 (citing examples). The trial court's ruling was not illogical, arbitrary, unreasonable, ill-considered, or shocking to a sense of justice. Point I fails.[2]

         Point III

         Mercy also complains that Ms. Martin testified, over hearsay objection, that personnel escorting her to her car after the fall said they too had nearly fallen in similar fashion and the hand cranks were a problem.[3]

         We find it fairly debatable that this was hearsay, offered for its truth, without sufficient foundation to admit it as Mercy's own statement (admission of a party opponent). Even so, arguendo, this point fails because

"[t]he improper admission of hearsay evidence requires reversal [only] if such evidence is prejudicial." Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009). "A complaining party is not entitled to assert prejudice if the challenged evidence is cumulative to other related admitted evidence." Id. at 292 (internal quotation omitted). "Cumulative evidence is additional evidence that reiterates the same point." Id.

Freight House Lofts Condo Ass'n v. VSI Meter Services, Inc., 402 S.W.3d 586, 593 (Mo.App. 2013). In other words, we cannot find that Mercy was prejudiced because "the challenged evidence [was] merely cumulative to other admitted evidence of like tenor." Missouri Land Dev. I, LLC v. Raleigh Dev., LLC, 407 S.W.3d 676, 689 (Mo.App. 2013).[4]

         Leslie Newberry, who had worked at Mercy Villa as an LPN and knew the bed-crank type at issue, testified that it was "common for staff to, you know, run into them because people get busy and they forget to fold them back underneath the bed. So it's very common for us to run into them with our shins or ankles depending on the height of the bed." She further testified:

Q. Now at Mercy Villa have you ever hit your shin on a bed crank that was left out?
A. Yeah, 'cause I remember like -- I don't know, it was like the first or second day that I was working there. I worked on a hall and there was a room just like almost in front of the nurse's station down a hallway there. And the bed was along the side of the wall, but the crank kind of stuck out in the doorway, if it was left out. And I went in there to do a treatment on a lady and was putting Vicks on her toe nails. Anyways, I hit my shin on it.
Q. Now did you fall?
A. No, I didn't fall. I caught myself with the bed, but it sure hurt.
Q. Okay. It is an uncommon phenomenon in a nursing home setting to run into those manual cranks, if they have still have manual beds?
A. They're often left out because like I said, people -- staff get in a hurry because, I mean, you're dealing with like 20 or 30 people that you're usually taking care of, you know, in a hallway.
And so people get in a hurry like when they're laying people down or they're getting people up and sometimes they get called into another room because of something. So they sometimes forget to put the cranks back underneath the bed. I mean, it's just human nature almost to sometimes forget that when you're in a hurry.

         The foregoing was admitted without objection, is not complained of on appeal, and is of like tenor and reiterates the same point as Ms. Martin's testimony. Thus, "[i]n light of other evidence in the case, [the challenged] statements were cumulative and were not prejudicial." Freight House Lofts, 402 S.W.3d at 593. Mercy's arguments to the contrary are wholly unpersuasive. We deny Point III and affirm the judgment.

          GARY W. LYNCH, P.J. - CONCURS

          WILLIAM W. FRANCIS, JR., J. - CONCURS

         APPENDIX

         Jury Panelist Comments Cited by Mercy

1. Mr. Siegmann, Ms. Baumgartner, and Ms. Sammon responded to the trial court's panel question: "Does anybody have any personal or business relationship or - with Mercy Hospital or Mercy Villa?":
VENIREPERSON SIEGMANN: Yes, sir. Matthew Siegmann. My mother was a pharmacist with Mercy from 1988 to 2006, at which time she switched working to Walgreen's. She worked at the main hospital in the pharmacy there and was, at one point, a supervisor for a few years. And so -- then she did switch jobs because of a dispute over retirement benefits so.
THE COURT: Okay. Well, let's get right to that, sir. Certainly, understanding she's your mother and understanding that she had had a dispute about that matter, do you think that would make it hard for you to set aside your mom's situation and her dispute so that Mercy and the plaintiffs started out at the same spot in this case?
VENIREPERSON SIEGMANN: I really don't know. I just wanted to disclose the information. Most of the time she worked there I was just a kid. But it's hard to say if I ...

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