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Kappel v. Prater

Court of Appeals of Missouri, Eastern District, Fourth Division

May 28, 2019

DENISE KAPPEL, ET AL., Appellants,

          Appeal from the Circuit Court of the City of St. Louis Cause No. 1422-CC00747 Honorable David L. Dowd



         Denise Kappel ("Mrs. Kappel") and William Kappel ("Mr. Kappel") (collectively, "Appellants") appeal the judgment entered upon a jury verdict in Mrs. Kappel's favor on her negligence claim against Frederic Prater ("Respondent").[1] In their sole point on appeal, Appellants argue that the trial court abused its discretion in admitting a series of photographs showing the exterior of Mrs. Kappel's motor vehicle following the accident that preceded Mrs. Kappel's injuries. Appellants contend that the photographs were irrelevant, and that they were prejudiced because they received a reduced award of damages due to the inadmissible photographs. We affirm the trial court's judgment in regards to liability on Mrs. Kappel's negligence claim. However, finding that the trial court abused its discretion in admitting the photographs and that Appellants were prejudiced in that there is a reasonable tendency the erroneous admission of the photographs influenced the amount of damages that the jury awarded to Appellants, we reverse the judgment of the trial court regarding the damages awarded to Appellants and remand for a new trial solely on damages.

         I. Factual and Procedural Background

         On April 3, 2014, Mrs. Kappel filed a personal injury action against Respondent concerning a motor vehicle accident occurring in the City of St. Louis on May 8, 2009. A jury trial was conducted from October 23, 2017 to October 25, 2017, where the jury found in Mrs. Kappel's favor on her negligence claim, and awarded her $20, 000 in damages.[2] The trial court entered judgment upon the jury's verdict on November 3, 2017.

         The following facts were adduced at trial. On May 8, 2009, Mrs. Kappel was in St. Louis for a business trip and was involved in a vehicular accident while driving to meet her business partner and a client at a restaurant. She was stopped in the left turn lane at the intersection of Manchester Road and McCausland Avenue when Respondent rear-ended her rental vehicle. At trial, Mrs. Kappel testified that Respondent was traveling at an approximate speed of 35 miles per hour and the collision caused her vehicle to move and angle into the next lane. According to Respondent, he was only traveling at a speed of 15-20 miles per hour and "felt a jolt" when he hit the back of Mrs. Kappel's vehicle; Respondent's wife (a passenger in the vehicle) also categorized the collision as a "minor bump." After the accident, both Mrs. Kappel and Respondent moved their vehicles into a nearby lot and waited for police to arrive. Mrs. Kappel did not receive any medical attention at that time, nor did she take any pictures of her rental vehicle.

         The following day, Mrs. Kappel decided to cut her business trip short and return home to Chicago because she was experiencing pain following the accident. She returned the vehicle to the rental car agency and advised a representative that she had been in an accident. The representative informed Mrs. Kappel that she did not have to fill out any paperwork, and that the agency was already aware of the accident due to its communication with a representative for Respondent. Mrs. Kappel flew back to Chicago, and Mr. Kappel testified that he drove her to the emergency room that same day because she was experiencing pain down the left side of her neck, shoulder, and back. After several MRIs, her treating physician, Dr. Mohammad Alawad ("Dr. Alawad"), prescribed pain medication and physical therapy. Mrs. Kappel continued to take pain medication and participate in physical therapy, mainly doing exercises at home for her injuries. Her injuries did not improve after four years of physical therapy and pain treatment, so she saw two specialists, Dr. Brian Cole ("Dr. Cole") and Dr. Kathleen Weber ("Dr. Weber") for more definitive treatment; such treatment included steroid injections that Mrs. Kappel received in October of 2014. The injections failed to provide permanent relief, so she subsequently underwent shoulder surgery. Despite the surgery, Dr. Cole continued to administer steroid injections and ordered more physical therapy.

         During pre-trial discovery, Appellants requested photographs of both Mrs. Kappel's rental vehicle and Respondent's vehicle. Respondent turned over colored photographs of Respondent's vehicle, but responded that he had no photographs of Mrs. Kappel's rental vehicle. Two years after discovery began, or seven years from the date of the accident, Respondent's counsel found the rental car agency's Xeroxed black-and-white copies of photographs of the rental vehicle in her file and sent them to Appellants' counsel.[3] Appellants filed a motion in limine to exclude the photographs of Mrs. Kappel's vehicle before trial, claiming that the evidence was not relevant and the late disclosure prejudiced Appellants because they could no longer request better quality photographs.[4] Appellants also claimed that the photographs would mislead the jury because of their poor quality. The trial court denied Appellants' motion in limine, but indicated that Appellants' counsel could address the jury about the late disclosure and poor quality of the photographs. Following this ruling, the parties commenced with trial.

         At trial, Appellants objected to admission of the photographs of Mrs. Kappel's vehicle into evidence, specifically noting their extremely poor quality. Appellants also reasserted their argument that the photographs were irrelevant to the disputed facts and prejudiced Appellants because of Respondent's untimely production of the photographs. The trial court allowed the photographs to be admitted into evidence, but permitted Appellants' counsel to address the jury about the untimely production of the photographs and that the photographs of the vehicle used by Respondent were "actually enhanced from the black-and-white small grainy" pictures given to Appellants prior to trial. When asked on cross-examination if any of the photographs showed a "clear view of the full back end" of Mrs. Kappel's vehicle, Respondent answered that he did not "see a full back view." Respondent's counsel later mentioned the photographs several more times in her closing argument to reiterate that they were "objective evidence" of a minor impact.

         In addition to Appellants' testimony, Appellants also called one expert, Dr. Randall Otto ("Dr. Otto"), to testify regarding the causation of Mrs. Kappel's injuries, and played three video depositions of Mrs. Kappel's treating physicians, Dr. Alawad, Dr. Weber, and Dr. Cole. Dr. Otto opined to a reasonable degree of medical certainty that the vehicular accident was a contributing factor to Mrs. Kappel's shoulder injury, and even though the accident took place five years prior to the shoulder surgery, that did not undermine his opinion on medical causation. The treating physicians gave testimony on Mrs. Kappel's treatment following the collision on May 8, 2009. Dr. Weber and Dr. Cole both testified in their depositions that they determined Mrs. Kappel would benefit from shoulder and back steroid injections. However, Mrs. Kappel was only temporarily relieved by the shoulder injections, so Dr. Cole performed left shoulder surgery to resolve the injury. Respondent called one expert witness, Dr. Richard Rende ("Dr. Rende"), who testified that Mrs. Kappel's injuries would have been resolved within 8-12 weeks after the accident. Respondent and his wife also testified that the collision seemed to be minor.

         Following the trial, the jury found in Mrs. Kappel's favor on her negligence claim, and awarded her $20, 000 in damages.[5] The trial court entered judgment upon the jury's verdict on November 3, 2017. Appellants filed a motion for a new trial and an alternative motion for additur, arguing that the photographs of Mrs. Kappel's vehicle were erroneously admitted into evidence; both motions were denied on December 14, 2017.

         This appeal follows.

         II. Standard of Review

         "A trial court has broad discretion in admitting or excluding evidence, and we will reverse the trial court's decision only if the court clearly abused its discretion." Ball v. Allied Physicians Group, L.L.C., 548 S.W.3d 373, 384 (Mo. App. E.D. 2018). "A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Wilson v. P.B. Patel, M.D., P.C., 517 S.W.3d 520, 523 (Mo. banc 2017). "An abuse of discretion compels reversal only 'if the prejudice resulting from the improper admission of evidence is outcome-determinative.'" Bowolak v. Mercy East Communities, 452 S.W.3d 688, 703 (Mo. App. E.D. 2014) (quoting Williams v. Trans State Airlines, Inc., 281 S.W.3d 854, 872 (Mo. ...

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