Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Jefferson County Cause No.
13JE-CC00284, Honorable Darrell E. Missey.
COLLEEN DOLAN, P.J.
Corporation ("Fiesta") appeals a judgment entered
against it by the Circuit Court of Jefferson County after the
jury returned a verdict of $1, 500, 000 in damages in favor
of Adam Payne ("Respondent"). On appeal, Fiesta
alleges multiple trial court errors: (1) the admission of
deposition testimony from Respondent's expert witness,
(2) the exclusion of evidence concerning Respondent's
past medical bills and past lost wages, (3) the court's
failure to declare a mistrial for an allegedly leading
question by Respondent's trial counsel that unfairly
prejudiced Fiesta, (4) the court's denials of
Fiesta's motions for directed verdict and judgment
notwithstanding the verdict, (5) the court's denial of
Fiesta's motion for new trial based on an excessive
verdict unsupported by the evidence, and (6) the court's
denial of Fiesta's motion for remittitur. We find the
trial court did not err on any of these matters. Thus, we
affirm the judgment.
litigation in this case stems from the pain and suffering
sustained by Respondent when he fell from a "Spaceball
human gyroscope ride" ("the Spaceball") at a
fundraising event on September 29, 2012. The event was
organized by Hillsboro Youth Football and Cheer
("HYFC"), and Fiesta owned both the Spaceball and
the recreational facility where the event was held.
described the Spaceball and how it is operated as follows:
The Spaceball is a single-seat human gyroscope that inverts
and rotates its rider. To prevent the rider from exiting the
ride mid-operation, the Spaceball is equipped with a harness
that is locked in place with a cotter pin and secures the
rider to the chair. The Spaceball is controlled by an
operator who manually spins a control wheel to cause the
rider to invert and rotate.
of HYFC wanted to sell tickets to ride the Spaceball. Fiesta
alleges that it provided training for certain HYFC staffers
to operate the Spaceball but these trained staffers failed to
show up and operate the Spaceball on the day of the event.
Respondent alleges "Fiesta never provided training on
the Spaceball to anyone from HYFC." Thus, under either
version of the facts, the Spaceball was left unattended.
Nonetheless, the Spaceball was used by patrons, including
Respondent. Shawn James, an employee of Fiesta, testified
that he saw people using the Spaceball "all night
long" without supervision, but neither he nor any other
employee of Fiesta acted to stop the unsupervised use of the
there was no trained personnel to oversee patrons, Respondent
relied on a couple of bystanders to enter the ride and secure
him with the harnesses. Respondent contends that he was not
aware that the people helping him were bystanders and he
believed they were part of a trained staff qualified to
operate the ride. Respondent testified that the two
bystanders were not wearing any special type of clothing or
uniform to indicate an affiliation with Fiesta, but no one
else at the event-including Fiesta employees-wore such
apparel either. These untrained bystanders did not properly
secure Respondent into the ride. Consequently, as
Respondent's brother-in-law manually operated the ride
and "[gave] it a good spin, " Respondent fell out
of the Spaceball head first onto the steel flooring of the
ride. Respondent testified that the fall caused him
tremendous pain immediately. He also testified that after he
went to bed that night, he woke up in the middle of the night
and had to vomit. Respondent stated he was still in "an
incredible amount of pain" the next morning, and
consequently, he went to the emergency room. Respondent went
to St. Clare Hospital and had his neck examined by Dr. Eric
Sincoff, who diagnosed Respondent with an acute left C4 facet
joint fracture. Additionally, Dr. Sincoff determined that
Respondent suffered from pre-existing scoliosis and a
curvature in his neck and spine that would continue to worsen
with time. Part of the condition involved degenerative joint
disease, which affected disks C3-4, C4-5, and C5-6.
filed suit against Fiesta and Thomas Kerr-Fiesta's
President-on March 28, 2013. Respondent then filed a first
amended petition on November 11, 2013, adding HYFC as a
defendant. Finally, Respondent filed a second amended
petition on November 12, 2014 (herein "Amended
Petition"), which is the subject of the underlying
litigation in this matter. Respondent's Amended Petition
included claims of negligence against Fiesta and HYFC. In the
Amended Petition, Respondent claimed that Fiesta's
negligence caused him $54, 000 in medical expenses and $9,
000 in lost wages at the time of filing the petition.
Respondent also claimed that his injuries would force him to
incur "future medical care and substantial future
medical expenses, " and he alleged his "ability to
continue gainful employment has been destroyed and he will
suffer future lost wages and diminished earnings capacity in
the future." Further, Respondent alleged that his
"ability to enjoy a normal life has been permanently
altered as a result of [Fiesta's] negligence."
Before the trial, Respondent dismissed his claims of
"past medical bills and past loss wages" from the
trials were held in this case. Before the first trial, on
January 29, 2016, Respondent dismissed its negligence claim
against HYFC-which removed HYFC as a party from the action.
The first trial commenced on February 2, 2016. However, the
court declared a mistrial, finding Respondent's counsel
elicited prejudicial testimony from a witness. The case was
reset and tried from November 8-10, 2016.
closing argument, Respondent's counsel suggested that the
jury should award between $500, 000 and $750, 000 to
Respondent for his future pain and suffering. On November 11,
2016, the jury returned a verdict assessing 100% of the fault
to Fiesta. The jury also determined that Fiesta's
negligence caused $1, 500, 000 in damages to Respondent.
Evidence Presented at Trial
Video Deposition Testimony of Dr. Levy
Armond Levy is a board-certified neurosurgeon who actively
practices neurosurgery. Dr. Levy performed several physical
examinations on Respondent and prescribed treatments, such as
physical therapy and pain management. Dr. Levy's
qualifications to be considered an expert witness are
to Dr. Levy's doctor-patient relationship with
Respondent, Respondent saw Dr. Sincoff for his neck injury.
Respondent first visited Dr. Sincoff the day after he fell
from the Spaceball in November of 2012. Dr. Sincoff continued
to provide care for Respondent until he left his practice, at
which point Dr. Levy began treating Respondent.
Levy relied on some of Dr. Sincoff's notes to care for
Respondent, which he often alluded to throughout the
deposition. Dr. Levy testified that Dr. Sincoff diagnosed
Respondent with an acute facet fracture of his C4 facet
joint-"acute" meaning "[i]t had just
occurred"- which Dr. Levy said was reflected by the
records from the emergency room on the day after
Respondent's fall. While Dr. Sincoff was treating
Respondent, he initially noted that fusion surgery to the
cervical spine in Respondent's neck was a possible course
of treatment, but Dr. Sincoff decided it would be prudent to
try more conservative measures before recommending the
surgery; these conservative measures included "physical
therapy, injections, wearing a cervical collar, resting,
[and] various kinds of medications."
Levy first saw Respondent in August of 2013, approximately a
year after his fall from the Spaceball. Respondent told Dr.
Levy that the pain in his neck had not lessened since the
injury. Also, records from Respondent's primary care
physician show he had never complained of neck injury before
the Spaceball incident. Dr. Levy testified that-within a
reasonable degree of medical certainty-there was a connection
between the Spaceball incident and Respondent's neck
pain. Dr. Levy also opined that Respondent's pain had
been "set in motion by the fall."
Levy discussed the possibility of a three-level cervical
fusion surgery to help alleviate some of Respondent's
pain. Pain was Respondent's primary motivating factor for
considering the surgery. Dr. Levy noted that his
recommendation of surgery was largely dependent upon
Respondent's pain tolerance. Dr. Levy also noted that
unless the surgery was performed, Respondent would likely
need to do certain things throughout his lifetime to manage
his pain, such as taking medication, doing physical therapy,
and receiving injections. Although Dr. Levy had hoped to
solve the problem with a much less invasive surgery ("a
posterior left C 4 foraminotomy"), he eventually
reverted back to his original, "more aggressive"
suggestion of the three-level fusion surgery. Dr. Levy
further testified that Respondent's fall from the
Spaceball caused or contributed to the injury for which Dr.
Levy recommended surgery be performed.
Lay Witness Testimony
from lay witnesses is discussed in more depth where it is
most relevant infra. Respondent provided testimony
to describe his personal experience with enduring neck pain
after his fall. He also testified about how this pain
hindered his ability to participate in certain activities
that he had been able to before his injury, including playing
games with his children. His co-worker, Bobby Wayne Spurlock,
and his wife, Ashley Payne ("Wife"), both testified
as to how his life had been impacted after the Spaceball
fall. They testified about the neck pain of which Respondent
often complained and that Respondent was incapable of doing
certain things that he could before his fall. Wife also
testified that Respondent has difficulty sleeping, especially
in the summer, due to his neck pain.
called Dr. Donald Brancato to the stand as an expert witness.
Dr. Brancato is an orthopedic surgeon. During the testimony
of Dr. Brancato, Fiesta objected to Respondent's line of
questioning and moved for a mistrial, claiming improper
injection of the issue of insurance. The court sustained
Fiesta's objection, but denied its motion for mistrial.
At the close of Respondent's evidence, Fiesta moved for a
directed verdict, which the court denied. Once again, Fiesta
moved for a directed verdict after the close of all the
evidence, which the trial court also denied. After the
verdict was rendered, Fiesta timely filed a motion for new
trial, a motion for judgment notwithstanding the verdict, and
a motion for remittitur pursuant to §
537.068. The trial court denied all of these
motions. This appeal follows.
jury rendered a verdict in favor of Respondent on his
negligence claim. For a plaintiff to prevail on a negligence
claim, he or she must establish that (1) the defendant owed a
duty to him or her; (2) the defendant breached that duty; (3)
causation; and (4) "injury" or "actual
damages." Peters v. Wady Indus., Inc., 489
S.W.3d 784, 793 (Mo. banc 2016); Friday v. McClure,
536 S.W.3d 235, 239 (Mo. App. W.D. 2017).
Point I - Admission of Expert Deposition Testimony of Dr.
Standard of Review
civil actions, the admissibility and sufficiency of expert
testimony is governed by § 490.065. Essentially,
§ 490.065 establishes four requirements for the
admission of expert testimony: "1) the expert witness
must be qualified; 2) the testimony will assist the trier of
fact; 3) the expert's testimony is based on facts or data
of a type reasonably relied on by other experts in the field;
and 4) the facts or data used by the expert are otherwise
reasonably reliable." Spalding v. Stewart Title
Guar. Co., 463 S.W.3d 770, 778 (Mo. banc 2015).
"The decision to admit or exclude expert testimony is
within the trial court's discretion, and we will not
reverse the decision absent an abuse of discretion."
Colt Investments, L.L.C. v. Boyd, 419 S.W.3d 194,
197 (Mo. App. E.D. 2013). A trial court abuses its discretion
if its decision was "against the logic of the
circumstances and was so arbitrary or unreasonable as to
shock the sense of justice and indicate a lack of careful
consideration." Kirk v. State, 520 S.W.3d 443,
460 (Mo. banc 2017).
Analysis on Point I
trial, Fiesta filed a motion to strike the deposition
testimony of Dr. Levy in its entirety. Once again,
immediately before Dr. Levy's video deposition was to be
played at trial, it renewed its motion to strike the
testimony. The court overruled both of these motions, finding
that Fiesta's complaints about the testimony went
"to the weight of it, not the admissibility of it."
appeal, Fiesta argues that "[t]he circuit court erred in
admitting the deposition testimony of Dr. Levy on causation
and future pain and suffering because [his] testimony lacked
a sufficient basis and was speculative…and the
admission of this testimony unfairly prejudiced Fiesta."
Specifically, Fiesta argues that Dr. Levy's testimony was
too speculative to establish (1) causation and (2) future
pain and suffering (i.e., the extent of damages caused by the
fall). Expert witnesses must provide testimony within a
reasonable degree of medical certainty to support causation.
Edgerton v. Morrison, 280 S.W.3d 62, 69 (Mo. banc
2009). Fiesta notes that Respondent had a pre-existing
condition which may have caused, or at least contributed to
cause, Respondent's damages, such as the possibility of
an expensive future surgery. Dr. Levy described the condition
as "a preexisting degenerative and scoliotic
deformity" in Respondent's neck. Fiesta further
contends that Dr. Levy's testimony was the only evidence
presented to establish the essential element of
"causation" in Respondent's negligence claim.
See Peters, 489 S.W.3d at 793. Thus, Fiesta argues
that if Dr. Levy's testimony was properly excluded,
Respondent would have failed to make a submissible case.
Levy's Bases for His Expert Testimony
points out that Respondent was diagnosed with a
"pre-existing degenerative and scoliotic deformity,
" which likely, at minimum, contributed to
Respondent's pain. Numerous times, Fiesta references the
pre-existing condition and highlights where Dr. Levy opined
that the pre-existing condition likely contributed to
Respondent's injury in some manner. To the extent Fiesta
is suggesting it is shielded from liability by a concurrent,
contributing cause, that argument necessarily fails; the
general rule is that a defendant can be held liable for
negligence even if some other independent, intervening cause
contributed to the injury, and even if the injury would not
have occurred without that independent, intervening cause.
Sanders v. Ahmed, 364 S.W.3d 195, 209 (Mo. banc
Fiesta's appellant's brief, it directs us to portions
of the transcript of Dr. Levy's testimony where Dr. Levy
expresses uncertainty with his opinion, which arguably would
have been considered inadmissible if specific objections were
made. Nonetheless, there are portions of Dr. Levy's
testimony where he expressly opines on the issues of
causation and damages within a reasonable degree of medical
certainty. Because Fiesta sought a wholesale exclusion of the
deposition testimony, the court would have had to exclude
relevant, admissible testimony to grant Fiesta's request.
beginning of Dr. Levy's testimony, he agreed to offer all
of his opinions to a reasonable degree of medical certainty
whenever possible and indicate when he would depart from that
standard. Consistent with this testimony, at times, Dr. Levy
would equivocate or speculate on certain matters after
disclosing that he could not opine "to a reasonable
degree of medical certainty" on some matters. Still, on
many occasions throughout the deposition, Dr. Levy would
provide testimony without hedging or equivocating, thereby
conforming with the requirement that his opinion is made
within "a reasonable degree of medical certainty."
For example, the transcript reflects the following exchanges:
Q. Do you have an opinion on a more likely
than not basis whether there's a connection between
[Respondent's] fall on September 29, 2012 and his spine,
neck, and low back complaints?
A. ….So speaking about his neck, I
think I've been pretty consistent in my report and my
discussion with you that, and also in my medical records in
general, that I feel that Adam had a -a preexisting
degenerative and scoliotic deformity, a combination of both
in his neck. Nonetheless, his fall obviously
produced the - the tangible evidence of a fracture but
physiologically gave him a - a functional problem going
forward that…set off and/or exacerbated by the -by the
Q. Within a reasonable degree of medical
certainty is there a connection between the September 29,
2012 fall and the - his - his spine or cervical spine neck
A. Yes, I think that there is.
Q. And in terms of your-your surgical
recommendation of the three-level fusion, would that be
caused or contributed to cause by the September 29, 2012 fall
that we've been talking about?
A. Ultimately, yes.
Dr. Levy gave testimony that MRI, CT, and x-ray scans from
the emergency room revealed an acute (i.e., recently
developed) "left C4 facet joint fracture, " which
supports that the fracture was caused by Respondent's
fall from the Spaceball. The fracture had healed by the time
of the trial. Nonetheless, Dr. Levy concluded that
Respondent's pain was caused, at least in part, by nerve
damage to the C4 root resulting from the fall. He reached
this conclusion after he observed that giving Respondent C4
nerve root injections provided some temporary relief to
Respondent, stating "[t]he subsequent relief with the
nerve root injection would seem to suggest that the nerve
root and its environment were the source of his pain."
Dr. Levy testified that all of his opinions would be to a
degree of medical certainty unless he stated otherwise.
points out that Dr. Levy explicitly stated he could not
explain the exact mechanics of how and why Respondent's
C4 nerve root continued to be a source of pain after
Respondent's fracture fully healed. This is accurate; Dr.
Levy admitted that it was just his "theory" that
the fracture "compromised" the nerve which caused
Respondent pain. However, all that Dr. Levy was required to
opine within a reasonable degree of medical certainty was
that the fall was the cause of Respondent's complaints of
pain. Dr. Levy even testified within a reasonable degree of
medical certainty that without the fusion surgery,
Respondent's "symptomatology is going to be more or
less permanent." Dr. Levy expressed his opinion to a
reasonable degree of medical certainty, and his opinion was
founded on relevant, factual information, such as
Respondent's medical records, which showed no complaints
of neck pain prior to his fall, a history of Respondent's
treatment following the fall, including various ...