Gary Veal v. Stacey Kelam ( 2020 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
GARY VEAL, ) No. ED108179
)
Respondent, ) Appeal from the Circuit Court of
) Jefferson County
vs. )
) Honorable Troy A. Cardona
STACEY KELAM, )
)
Appellant. ) Filed: June 23, 2020
Introduction
Stacey Kelam (“Appellant’) appeals from the trial court’s judgment, entered after a jury
trial, awarding Gary Veal (“Respondent”) $2.5 million for personal injuries sustained in a motor
vehicle accident. Appellant brings four points on appeal. In her first point, Appellant argues the
trial court erred in denying her motion for new trial because the trial court showed bias toward
Respondent and his counsel during voir dire, which prejudiced the jury against her. In her
second point, Appellant argues the trial court erred in denying her motions for new trial and
remittitur because the jury’s $2.5 million verdict was excessive. In her third point, Appellant
argues the trial court erred in denying her motions for new trial and remittitur because, during
closing argument, the trial court prohibited Appellant’s counsel from arguing damages could not
be awarded for Respondent’s past or future medical treatment. Appellant’s fourth point argues
the cumulative effects of these errors entitle her to a new trial. We affirm.
Factual and Procedural Background
On October 25, 2016, Appellant was in her vehicle attempting to turn left across Jeffco
Boulevard heading southbound when she pulled in front of Respondent’s vehicle headed
northbound on Jeffco Boulevard and caused a collision. Respondent filed a petition (“Petition”)
seeking damages for Appellant’s negligence related to the accident. Respondent alleged
Appellant was operating her vehicle at an excessive speed when she failed to yield to the traffic
on Jeffco Boulevard. Respondent alleged he sustained injuries to his cervical spine, shoulder,
and wrist due to the accident. Respondent also alleged he experienced inconvenience; loss of
enjoyment of life; restricted mobility; isolation; anxiety regarding the injury; pain and suffering;
numerous doctor appointments, invasive tests, and procedures; and emotional distress due to the
accident. Respondent’s Petition alleged he “suffered and [will] continue[ ] to suffer damages in
excess of $25,000 . . . on account of future medical costs, pain and suffering.” On May 21, 2019,
Respondent dismissed his claims for future medical costs.
A jury trial was held from June 12-14, 2019. The jury returned a $2.5 million verdict for
Respondent, and the trial court entered judgment on the verdict. Appellant moved for a new
trial, arguing she was entitled to one because: (1) the trial court precluded her counsel from
discussing medical expenses during closing argument; (2) the jury’s verdict was excessive and
against the weight of the evidence; (3) the trial court’s conduct during voir dire prejudiced the
jury against her; and (4) the cumulative effects of these errors prejudiced her.1
1
Appellant’s motion for new trial also argued she was entitled to a new trial because Respondent admitted
comparative fault during trial but the jury failed to allocate comparative fault. Appellant abandoned this challenge
on appeal.
2
This appeal followed. Additional facts will be included below as we address Appellant’s
points of error.
Discussion
Point I: Trial Court’s Conduct During Voir Dire
In her first point on appeal, Appellant urges the trial court erred in denying her motion for
new trial because the trial court demonstrated improper bias for Respondent and his trial counsel
during voir dire, which prejudiced the jury against her. Specifically, Appellant argues the trial
court: (1) made statements suggesting the trial court “was working . . . with Respondent in
choosing the jury”; (2) “engaged with Respondent’s counsel to discuss questions of law with the
venirepersons”; and (3) “interacted with Respondent’s counsel in a personal and familiar manner
in sharp contrast to its interactions with Appellant’s counsel.” Appellant argues the trial court’s
conduct and statements deprived her of a fair trial.
Respondent maintains Appellant’s first point on appeal is not properly preserved for
review. We agree. To preserve a claim of error in a jury-tried case, an appellant must: “(1)
timely object to the challenged [error] at trial; (2) restate the basis of objection in a motion for
new trial per Rule 29.11(d);2 and (3) file a brief with this Court that complies with the rules of
appellate procedure on the claim of error.” See State v. Davis, 533 S.W.3d 781, 785-86 (Mo.
App. S.D. 2017) (footnote in original). “A reviewing court will not consider objections . . .
raised for the first time on appeal and will not convict the trial court of an error it was given no
opportunity to correct.” State v. McClanahan, 202 S.W.3d 64, 70 (Mo. App. S.D. 2006) (citing
Brown v. Jones Store, 493 S.W.2d 39, 41 (Mo. App. 1973)).
Appellant concedes she did not object to the trial court’s statements during voir dire she
now challenges. However, she complains “there was no trial court ruling or singular statement
2
All rule references are to the Missouri Supreme Court Rules (2017), unless otherwise indicated.
3
to which counsel could practically object”; thus, an objection was unnecessary to preserve her
claim of error. Appellant cites no case law, and we can find no case law, supporting her
argument. Objections must be timely and specific. Connour v. Burlington N. R. Co., 889
S.W.2d 138, 141 (Mo. App. W.D. 1994) (citing Appelhans v. Goldman, 349 S.W.2d 204, 207
(Mo. 1961)). Appellant’s failure to make a timely and specific objection renders her first point
on appeal unpreserved.
Appellant’s claim may be reviewed, if at all, for plain error. See Rule 84.13(c). But
“[p]lain error review . . . rarely is granted in civil cases.” Mayes v. St. Luke’s Hosp. of Kan. City,
430 S.W.3d 260, 269 (Mo. banc 2014) (citing St. Louis Cty. v. River Bend Estates Homeowners’
Ass’n, 408 S.W.3d 116, 125 n.6 (Mo. banc 2013)). Appellate courts “will review an unpreserved
point for plain error only if there are substantial grounds for believing that the trial court
committed error that is evident, obvious and clear and when the error resulted in manifest
injustice or miscarriage of justice.” Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d
396, 412 (Mo. banc 2019) (quoting Mayes, 430 S.W.3d at 269). Reversal for plain error in a
civil case further requires the injustice to be “so egregious as to weaken the very foundation of
the process and seriously undermine confidence in the outcome of the case.” McGuire v.
Kenoma, LLC, 375 S.W.3d 157, 176 (Mo. App. W.D. 2000) (quoting Atkinson v. Corson, 289
S.W.3d 269, 276-77 (Mo. App. W.D. 2009)).
There is no basis for reviewing Appellant’s claim for plain error. The record reveals the
trial court did not show impartiality or bias for Respondent or his counsel during voir dire.
Appellant complains the trial court made several statements suggesting it “was working . . . with
Respondent in choosing the jury.” For example, Appellant complains the trial court made
statements like “[t]hat’s what our questions are about” and “[w]e just want to make sure that
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everything we get you to talk about . . .” during Respondent’s counsel’s questioning. (emphasis
added). However, the record reveals the trial court made several statements throughout voir dire
suggesting the trial court and both parties were selecting the jury. For example, when addressing
the venirepersons at the outset of voir dire before either Respondent’s or Appellant’s counsel
began their questioning, the trial court stated, “[P]lease don’t be offended if we don’t choose you
as a juror.” (emphasis added). And at the conclusion of voir dire, the trial court stated, “[W]hen
you are here, it shows us how important you take this.” The trial court also told the
venirepersons, “[W]e appreciate” the way questions were answered with honesty. (emphasis
added).
Appellant also complains the trial court struck a venireperson for cause “on
[Respondent’s counsel]’s behalf during voir dire.” (alteration omitted). However, the record
shows the trial court did not strike the venireperson on Respondent’s counsel’s behalf. Instead,
after one venireperson indicated she disagreed with the law allowing plaintiffs to recover
damages for pain and suffering, the trial court stated, “We already know that you’re going to
object to her being on [the jury], and I’m going to take her off to cause.” It is well within the
trial court’s “authority to act on [its] own initiative in excusing a juror” during voir dire. Presley
v. State, 750 S.W.2d 602, 608 (Mo. App. S.D. 1988) (footnote omitted) (citations omitted). The
trial court’s decision to do so here did not indicate a bias or preference for Respondent or his
counsel.
Appellant’s complaint that the trial court “interacted with Respondent’s counsel in a
personal and familiar manner in sharp contrast to its interactions with Appellant’s counsel” is
similarly meritless. Appellant argues the trial court joked with Respondent’s counsel about the
pants he was wearing but did not extend Appellant’s counsel the same familiarity, prejudicing
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the jury against her during voir dire. But the record shows trial court joked with Appellant’s
counsel by calling him “Clark Kent” rather than “Kevin Clark.” The trial court’s interactions
with Appellant’s counsel were just as friendly and personal as the trial court’s interactions with
Respondent’s counsel.
Appellant urges us these facts and circumstances warrant reversal under plain error
review despite the fact she did not object to the trial court’s conduct during trial, just as the
Springfield Court of Appeals did in Fleetwood v. Miluakee Mechanics Insurance Co., 220
S.W.2d 614 (Mo. App. 1949). Fleetwood, however, is factually distinguishable. In Fleetwood,
the record showed the trial court made comments on the evidence in front of the jury and
engaged in the lengthy, argumentative questioning of witnesses that revealed its bias toward the
plaintiffs’ case. Id. at 618-22. Because the trial court’s remarks and questions showed “how the
trial judge felt about the defense being made,” the court found manifest injustice resulted and
reversed the trial court’s judgment, despite the fact the plaintiffs failed to object to the trial
court’s conduct during trial. Id. at 622. Unlike Fleetwood, the trial court made no comments on
the evidence or the strength of the parties’ respective cases during voir dire. Although the trial
court’s remarks here were unprofessional and unwarranted, we cannot find the trial court’s
behavior resulted in manifest injustice or miscarriage of justice.
We echo the longstanding sentiment that the trial court should “hold its questions and
comments to a minimum” when conducting trials “in the interest of preserving th[e] judicial
decorum so necessary to the general public’s belief in a fair trial.” See Crimi v. Crimi, 479
S.W.2d 195, 198 (Mo. App. 1972); see also Cundiff v. Cline, 752 S.W.2d 409, 412 (Mo. App.
S.D. 1988); Watson v. Tenet Healthsystem SL, Inc., 304 S.W.3d 236, 241 n.3 (Mo. App. E.D.
2009). We do not condone the trial court’s improper remarks. However, on the record before
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us, there are no substantial grounds for believing the trial court committed error that is evident,
obvious and clear, let alone an error that resulted in manifest injustice or miscarriage of justice.
Therefore, plain error review is unwarranted.
Point I is denied.
Point II: Alleged Excessive Verdict
In her second point on appeal, Appellant argues the trial court erred in denying her
motions for new trial and remittitur because the jury’s $2.5 million verdict was excessive.
We review a trial court’s denial of motions for new trial and remittitur for abuse of
discretion. See Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 567 (Mo. App. E.D. 2002)
(motion for new trial); Blanks v. Fluor Corp., 450 S.W.3d 308, 413 (Mo. App. E.D. 2014)
(motion for remittitur). An abuse of discretion occurs “only when the ruling is ‘clearly against
the logic of the circumstances’ and ‘so arbitrary and unreasonable as to shock the sense of justice
and indicate a lack of careful consideration.’” Stephenson v. Countryside Townhomes, LLC, 437
S.W.3d 380, 389 (Mo. App. E.D. 2014) (quoting Mitchell v. Kardesch, 313 S.W.3d 667, 675
(Mo. banc 2010)). Where “reasonable persons could differ on the propriety of the court’s
decision,” it cannot be said that the trial court abused its discretion. Burrows v. Union Pac. R.R.
Co., 218 S.W.3d 527, 533 (Mo. App. E.D. 2007) (citing Kehr v. Knapp, 136 S.W.3d 118, 122-23
(Mo. App. E.D. 2004)).
“Missouri appellate courts no longer engage in close scrutiny of the amounts awarded by
juries for personal injuries since the trial court is in a much better position than we are to assess
the verdict.” Evans v. FirstFleet, Inc., 345 S.W.3d 297, 303 (Mo. App. S.D. 2011) (quoting
Henderson v. Fields, 68 S.W.3d 455, 485 (Mo. App. W.D. 2001)). “We should exercise our
power to interfere with the judgment of the jury and the trial court with hesitation and only when
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the verdict is manifestly unjust.” Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 521 (Mo. App.
E.D. 2007), overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo.
banc 2013)). No “precise formula” exists for determining whether a verdict is excessive. Id.
(citing Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 211 (Mo. banc 1991)). Instead, “[e]ach
case must be examined on its own facts.” Id. Our review of the evidence is limited to the
evidence that supports the verdict, disregarding all contrary evidence. Id. (citing Coggins v.
Laclede Gas Co., 37 S.W.3d 335, 343 (Mo. App. E.D. 2000)).
A verdict may be excessive in two ways. The first is “a verdict that is disproportionate to
the evidence of injury and results from an ‘honest mistake’ by the jury in assessing damages.”
Mayes v. UPS, Inc., 593 S.W.3d 604, 616-17 (Mo. App. E.D. 2019) (quoting Stewart v.
Partamian, 465 S.W.3d 51, 56 (Mo. banc 2015)). “Generally, when an excessive verdict is the
result of an honest mistake by the jury in weighing the evidence of the nature and extent of
injuries and awarding disproportionate damages, it is appropriate that the trial court order
remittitur, rather than a new trial.” Evans, 345 S.W.3d at 302 (citing Woods v. Friendly Ford,
Inc., 248 S.W.3d 665, 678 (Mo. App. S.D. 2008)). See also § 537.0683 (“A court may enter a
remittitur order if, after reviewing the evidence in support of the jury’s verdict, the court finds
that the jury’s verdict is excessive because the amount of the verdict exceeds fair and reasonable
compensation for plaintiff’s injuries and damages.”). “A new trial is not required because the
jury is not guilty of misconduct, only an honest mistake as to the nature and extent of the
injuries.” Lindquist v. Scott Radiological Grp., Inc., 168 S.W.3d 635, 647 (Mo. App. E.D. 2005)
(internal quotations omitted).
The second is “a verdict that is excessive due to trial error that causes bias and prejudice
by the jury.” Mayes, 593 S.W.3d at 617 (quoting Stewart, 465 S.W.3d at 56). “Where an
3
All statutory references are to RSMo (2019), unless otherwise indicated.
8
excessive verdict is the result of trial error or misconduct, the verdict ‘is prejudiced and can only
be remedied with a new trial.’” Evans, 345 S.W.3d at 308 (quoting Barnett v. La Societe
Anonyme Turbomeca France, 963 S.W.2d 639, 655 (Mo. App. W.D. 1997)). “Actual trial error
must be shown” to establish this form of excessive verdict; “the size of the verdict alone will not
establish the requisite bias, passion, and prejudice of the jury sufficient to order a new trial for an
excessive verdict.” Id. (internal quotations omitted). The burden is on the party challenging the
verdict as excessive to “demonstrate that actual trial error or some misconduct of the prevailing
party was responsible for prejudicing the jury.” Id. (citing Woods, 248 S.W.3d at 679).
Here, Appellant argues the jury’s verdict revealed both “honest mistake” excessiveness
and “bias and prejudice” excessiveness.
Honest Mistake Excessiveness
Appellant argues the jury’s $2.5 million verdict reveals honest mistake excessiveness
warranting remittitur because it was unsupported by the evidence. We disagree.
“The jury is given a large amount of deference in determining a party’s injuries.”
McGathey v. Davis, 281 S.W.3d 312, 320 (Mo. App. W.D. 2009) (citing Graham v. Cty. Med.
Equip. Co., 24 S.W.3d 145, 148 (Mo. App. E.D. 2000)). Our inquiry is limited to “whether the
jury’s verdict is supported by substantial evidence, or in other words, ‘whether the amount of the
verdict is responsive to the evidence on the issue of damages.’” Heins Implement Co. v. Mo.
Hwy. & Transp. Comm’n, 859 S.W.2d 681, 692 (Mo. banc 1993) (quoting Nichols v. Blake, 395
S.W.2d 136, 141 (Mo. 1965)).
The evidence, when viewed in the light most favorable to the verdict, established
Respondent has been a self-employed automotive repairman for almost twenty-five years. He
has no employees. Before the accident, Respondent did not need help making repairs at his shop
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and no customers noticed Respondent complain of neck, wrist, or shoulder trouble. After the
accident, he had difficulty performing his work. Tasks that used to take Respondent one week to
complete take him two weeks or longer. After the accident, Respondent’s customers and friends
helped him change motors, pull transmissions, perform tire rotations, install water pumps, and
install gas tanks. One customer noticed Respondent “seemed to be in constant pain with his
arms and neck” after the accident. Respondent had to turn away work after the accident and
have friends come to his shop to perform the work instead.
Respondent saw his primary care physician, Dr. Alan Sandidge, at least once a year since
2008 and never complained of neck or shoulder pain before the accident. Although Respondent
told Dr. Sandidge he experienced pain in his right wrist before the accident, Respondent never
mentioned the pain caused him difficulty working. After the accident, Dr. Sandidge noted more
“significant swelling across the joint and limited range of motion” in Respondent’s right wrist.
Dr. Sandidge believes the accident exacerbated Respondent’s wrist pain.
Dr. Dennis Dusek, an orthopedic surgeon, treated Respondent for pain in his right
shoulder after the accident and testified Respondent complained he had trouble sleeping at night
and had to sleep in a recliner with his right arm hanging over the arm rest to get comfortable. Dr.
Dusek’s physical examination of Respondent revealed Respondent could only bring his shoulder
to 90-degree flexation rather than 110-degree full flexation. Dr. Dusek gave Respondent two
cortisone shots, which provided only temporary relief. Dr. Dusek opined Respondent’s shoulder
injury is permanent and was caused by the accident. In Dr. Dusek’s opinion, Respondent will
not get better without arthroscopic surgery, which would require Respondent to take time off
work. Dr. Dusek noted Respondent “would be hard-pressed to put himself through an operation
that would require many months of post-op recovery under the circumstances.”
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Dr. Richard Howard examined Respondent’s right wrist and noticed it was swollen and
causing Respondent pain. Dr. Howard observed Respondent’s right wrist displayed a limited
range of motion. Dr. Howard noted x-rays showed a ligament in Respondent’s right wrist was
ruptured. Dr. Howard believed any injury to Respondent’s right wrist pre-existing the accident
was asymptomatic. Dr. Howard believed the accident exacerbated Respondent’s wrist condition
and caused Respondent’s wrist to be symptomatic. He recommended Respondent undergo a
partial wrist fusion surgery, which would require Respondent to take time off work. Dr. Howard
noted this surgery would not return Respondent’s wrist to a “normal” state, but it would allow
Respondent to “do a lot more than what he can do now.”
Dr. Kevin Rutz, an orthopedic spine surgeon, saw Respondent for his neck and shoulder
pain. During Dr. Rutz’s physical examination, Respondent had decreased range of motion in his
neck and experienced pain when leaning his neck forward and backwards. Dr. Rutz’s physical
examination revealed Respondent had “impingement signs in his right shoulder, which [are]
consistent with having either a rotator cuff tear or tendonitis or bursitis.” Respondent also
experienced pain when Dr. Rutz manipulated his wrist. X-rays of Respondent’s neck showed he
had degenerative changes in his neck and spine but those changes were asymptomatic before the
accident. Dr. Rutz opined the accident caused Respondent’s neck and shoulder to be
symptomatic. Dr. Rutz recommended Respondent undergo a C4-7 anterior cervical discectomy
and fusion surgery to alleviate Respondent’s pain. Respondent never had the surgery.
The jury could fairly reach a verdict of $2.5 million based on this evidence. Appellant’s
arguments to the contrary are unavailing. Appellant claims the jury’s verdict was unsupported
by the evidence presented at trial because she adduced evidence she looked both ways when
attempting to turn left across Jeffco Boulevard heading southbound, never saw Respondent’s
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vehicle, was traveling at speeds of ten miles per hour or less, and “there was no evidence she was
speeding, talking or texting on her telephone, or otherwise distracted” when their vehicles
collided. Appellant also claims the jury’s verdict was unsupported by the evidence presented at
trial because Respondent admitted on cross-examination he could not recall he experienced pre-
existing neck, shoulder, or wrist pain despite contrary medical records; he could not recall a CT
scan that showed advanced degeneration of his cervical spine likely pre-existing the accident; he
chose not to pursue physical therapy recommended by his physician; he refused epidural
injections for his neck injury; a physician diagnosed him with severe degenerative disc disease in
his neck; and a physician told him his shoulder injury needed no treatment. These arguments ask
us to ignore all evidence supporting the jury’s verdict and consider only evidence favorable to
her, violating our standard of review. See Coggins, 37 S.W.3d at 343.
In addition, Appellant criticizes Respondent adduced no evidence he was receiving
ongoing medical treatment, intended to seek future medical treatment, or suffered a loss of
income because of his alleged pain and suffering. However, Respondent dismissed his claims
for future medical costs shortly before trial, and Respondent never plead loss of income in his
Petition. Thus, not surprisingly he presented no evidence regarding medical treatment or loss of
income, as “trial is limited to the scope of the issues raised by the pleadings.” Schieffer v.
DeCleene, 539 S.W.3d 798, 807 (Mo. App. E.D. 2017) (quoting Int’l Div., Inc. v. DeWitt &
Assoc., Inc., 425 S.W.3d 225, 228 (Mo. App. S.D. 2014)).
Appellant has failed to show the jury’s $2.5 million verdict is disproportionate to the
evidence of injury and resulted from an honest mistake. Accordingly, the trial court did not
abuse its discretion in denying Appellant’s motion for remittitur.
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Bias and Prejudice Excessiveness
Appellant also argues the jury’s $2.5 million verdict reveals bias and prejudice
excessiveness. According to Appellant, the jury was biased and prejudiced by the trial court’s
statements during voir dire, which she claim indicated its bias for Respondent and his counsel.
Appellant also argues the jury was biased and prejudiced by Respondent’s counsel’s closing
argument to the jury, which suggested Appellant wished to portray Respondent as “a liar, a
cheat, and a fraud” through an expensive expert witness—“the 10-million-dollar man.”
Appellant claims this argument was “inflammatory,” lacked evidentiary support, and prejudiced
the jury against her.4 We disagree.
To the extent Appellant argues the trial court’s statements during voir dire resulted in
bias and prejudice excessiveness, her claim fails for the reasons discussed in Point I. To the
extent Appellant argues Respondent’s counsel’s closing argument caused bias and prejudice
excessiveness, her claim also fails. Appellant bore the burden to demonstrate Respondent’s
counsel’s closing argument amounted to actual trial error or misconduct “responsible for
prejudicing the jury.” Evans, 345 S.W.3d at 308 (citing Woods 248 S.W.3d at 679). She has not
done so.
Appellant failed to object to Respondent’s counsel’s closing argument at trial. “It is the
general rule that the effect of improper argument is considered on appeal to have been waived if
proper and timely objection is not made to the trial court so that it may . . . take appropriate
4
In the alternative, Appellant suggests Respondent’s counsel’s closing argument “supports [her] contention that, at a
minimum, the verdict was the result of an honest mistake by the jury which resulted in a verdict which far exceeds
fair and reasonable compensation for Respondent thereby entitling Appellant to a remittitur of the award.” But a
finding of honest mistake excessiveness requires the verdict to be unresponsive to the evidence on the issue of
damages. See Heins Implement Co. v. Mo. Hwy. & Transp. Comm’n, 859 S.W.2d 681, 692 (Mo. banc 1993)
(quoting Nichols v. Blake, 395 S.W.2d 136, 141 (Mo. 1965)). As discussed infra in this opinion, Respondent’s
counsel’s argument was supported by the evidence presented at trial and the reasonable inferences therefrom.
Therefore, we do not find the jury was honestly mistaken in reaching its verdict because of Respondent’s counsel’s
statements during closing argument.
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action under the circumstances to remove the prejudicial effect.” O’Brien v. City of St. Louis,
355 S.W.2d 904, 907 (Mo. 1962) (citations omitted); see also Arrington v. Goodrich Quality
Theaters, Inc., 266 S.W.3d 856, 861 (Mo. App. S.D. 2008). Therefore, Respondent’s closing
argument to the jury could not have amounted to trial error.
Appellant has also failed to prove Respondent’s counsel’s argument amounted to
“misconduct” that prejudiced the jury. “Counsel is given wide latitude to suggest inferences
from the evidence in closing argument, even if the inferences drawn are illogical or erroneous.”
Marmaduke v. CBL & Assocs. Mgmt., Inc., 521 S.W.3d 257, 274 (Mo. App. E.D. 2017) (citing
Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000)); Minze v. Mo. Dep’t of Public Safety,
541 S.W.3d 575, 581 (Mo. App. W.D. 2017) (quoting Hemann v. Camolaur, Inc., 127 S.W.3d
706, 710 (Mo. App. W.D. 2004) (“Counsel on both sides of the bar are permitted wide latitude
and discretion in referring to evidence and arguing inferences during closing argument.”).
Respondent’s counsel’s closing argument discussed the evidence presented at trial and
the reasonable inferences therefrom. Appellant’s defense, shown through her cross-examination
of Respondent and presentation of expert testimony, questioned the credibility of Respondent’s
injuries. During cross-examination of Respondent, Appellant elicited testimony that
Respondent’s neck, wrist, and shoulder pain preexisted the accident and Respondent chose not to
participate in recommended physical therapy. Appellant also presented testimony from her paid
independent medical expert, Dr. Peter Mirkin, that Appellant’s wrist, neck, and shoulder pain
preexisted the accident. Dr. Mirkin testified he makes approximately $500,000 in medical legal
fees per year and participated in 197 depositions over twenty years. Respondent’s counsel’s
closing argument criticizing Appellant for suggesting Respondent is “a liar, a cheat, and a fraud”
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through the use of Dr. Mirkin, her “10-million-dollar man,” responded to the evidence produced
at trial and the inferences a jury could rightly make from that evidence.
Appellant argues this Court recently held Respondent’s counsel’s “inflammatory” closing
argument “tactics” were prejudicial in Collier v. Steinbach, 597 S.W.3d 317 (Mo. App. E.D.
2019). In Appellant’s view, the Collier decision compels us to find Respondent’s counsel’s
closing argument biased and prejudiced the jury’s verdict in this case. However, Appellant
misunderstands Collier’s holding. In Collier, we held the trial court abused its discretion in
allowing the plaintiff to make prejudicial references to the defendant’s liability insurer during
opening statement, her case in chief, and closing argument. Id. at 320. We held the trial court
committed reversible error because the trial court’s rulings allowed the plaintiff to “flaunt” the
defendant’s insurance coverage to the jury, which is prohibited by Missouri case law. Id. at 320-
21 (citing Pope v. Pope, 179 S.W.3d 442, 463 (Mo. App. W.D. 2005)). Appellant’s case does
not involve comments on liability insurance. Thus, Collier is inapplicable to Appellant’s case.
Appellant has failed to show the jury’s $2.5 million verdict was prejudiced because of
trial error or misconduct. Accordingly, the trial court did not abuse its discretion in denying
Appellant’s motion for new trial.
Point II is denied.
Point III: Statements Regarding Past and Future Medical Treatment in Closing Argument
In her third point on appeal, Appellant argues the trial court erred in denying her motions
for new trial and remittitur because the trial court prohibited Appellant’s counsel from arguing
damages could not be awarded for Respondent’s past or future medical treatment. She argues
this prohibition was “presumptive[ly]” prejudicial. She further argues the presumption of
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prejudice “cannot be rebutted because the jury was instructed to award any damages Respondent
sustained or was reasonably certain to sustain in the future.”
Appellant’s argument is without merit. On damages, the trial court instructed the jury:
If you assess a percentage of fault to [Appellant], then, . . . you must determine
the total amount of [Respondent]’s damages to be such sum as will fairly and
justly compensate [Respondent] for any damages you believe [Respondent]
sustained and is reasonably certain to sustain in the future that the motor vehicle
collision of October 25, 2016 directly caused or directly contributed to cause.
During instruction conference in chambers, Appellant’s counsel stated he had no
objection to this jury instruction. However, Appellant’s counsel urged the trial court he should
be allowed to argue damages could not be awarded for Respondent’s past or future medical
treatment because he believed Respondent’s counsel told the jury during opening statement
Respondent sought no damages for medical bills. Respondent’s counsel disputed whether he
told the jury this during opening statement and objected to Appellant’s counsel being permitted
to make such an argument because he believed medical bills were a “nonissue,” as Respondent’s
claim for medical costs was dismissed before trial. The trial court then told Appellant’s counsel,
“I will overrule their objection if you are able to show me . . . that [Respondent’s counsel] said in
opening statement we won’t be seeking medical bills.”
There is no record Appellant’s counsel ever followed up about whether Respondent’s
counsel stated Respondent sought no medical bills during opening statement. The record reveals
the trial court made no ruling prohibiting Appellant’s counsel from arguing damages could not
be awarded for Respondent’s past or future medical treatment. To the contrary, the trial court
ruled it would allow Appellant’s counsel to make this argument if he established Respondent’s
counsel told the jury during opening statement Respondent sought no medical bills. The record
indicates Appellant’s counsel made no effort during closing argument to assert damages should
16
not be awarded for past or future medical expenses. We will not fault the trial court for
Appellant’s counsel’s failure to follow up and assert this argument during closing argument. See
State v. Skillicorn, 944 S.W.2d 877, 888 n.4 (Mo. banc 1997), overruled on other grounds by Joy
v. Morrison, 254 S.W.3d 885 (Mo. banc 2008) (holding that, to preserve an objection made in
chambers for appellate review, a party must renew the objection in court and make a record
specifically identifying the action to which the party is objecting and the proper legal grounds
supporting the objection). We also note Appellant made no objection to the trial court’s jury
instruction on damages she now claims is prejudicial. “No party may assign as error the giving
or failure to give instructions unless that party objects thereto on the record during the
instructions conference, stating distinctly the matter objected to and the grounds of the
objection.” See Rule 70.03; City of Harrisonville v. McCall Serv. Stations, 495 S.W.3d 738, 746
(Mo. banc 2016).
We cannot find the trial court committed error entitling Appellant to a new trial or
remittitur.
Point III is denied.
Point IV: Cumulative Effect of the Alleged Errors
In her final point, Appellant contends the trial court abused its discretion by not granting
her a new trial because the cumulative effects of the previously alleged errors prejudiced her.
We disagree. “Numerous non-errors cannot add up to error. Having determined that none of
[Appellant]’s previous points amount to reversible error, there can be no reversible error
attributable to their cumulative effect.” State v. Buchli, 152 S.W.3d 289, 310 (Mo. App. W.D.
2004) (internal quotations omitted).
17
Conclusion
The trial court’s judgment is affirmed.
_______________________________
Philip M. Hess, Presiding Judge
Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.
18