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Payne v. Fiesta Corp.

Court of Appeals of Missouri, Eastern District, Fourth Division

March 27, 2018

ADAM PAYNE, Respondent,

         Appeal from the Circuit Court of Jefferson County Cause No. 13JE-CC00284, Honorable Darrell E. Missey.

          COLLEEN DOLAN, P.J.

         Fiesta 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.

         I. Factual Background

         The 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.

         Fiesta 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.

         Representatives 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 Spaceball.

         As 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.

         Respondent 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 Amended Petition.

         Two 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.

         During 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.

         a. Evidence Presented at Trial

         i. Video Deposition Testimony of Dr. Levy

         Dr. 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 undisputed.

         Prior 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.

         Dr. 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."

         Dr. 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."

         Dr. 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.

         ii. Lay Witness Testimony

         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.

         b. Fiesta's Motions

         Fiesta 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.[1] The trial court denied all of these motions. This appeal follows.

         II. Discussion

         The 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).

         a. Point I - Admission of Expert Deposition Testimony of Dr. Levy

         i. Standard of Review

         In civil actions, the admissibility and sufficiency of expert testimony is governed by § 490.065.[2] 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).

         ii. Analysis on Point I

         Before 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."

         On 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.

         Dr. Levy's Bases for His Expert Testimony

         Fiesta 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 2012).

         Throughout 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.

         At the 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 injury.
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 complaints?
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.

         Additionally, 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.

         Fiesta 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 ...

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