Opinion
No. WD66837
November 20, 2007
Appeal from the Circuit Court of Jackson County, The Honorable Sandra C. Midkiff, Judge.
Thomas B. Weaver, St. Louis, for Appellant.
Grant L. Davis, Kansas City, for Respondent.
Before Thomas H. Newton, Presiding Judge, Paul M. Spinden, Judge, and Ronald R. Holliger, Judge.
URS Corporation appeals the circuit court's judgment finding it liable in the amount of $25 million for injuries to Anna Berthelsen resulting from a collision of a truck driven by one of its employees with a vehicle in which Berthelsen was riding. URS complains that Berthelsen did not present evidence that supported the jury's award for future damages. We affirm the circuit court's judgment.
On June 19, 2002, URS' employee, Robert Bolin, was driving one of URS' trucks in the scope of his employment when the truck collided with a van driven by Eric Berthelsen. A passenger in the van and Eric Berthelsen's daughter, Anna, sustained severe head trauma and significant brain injury. Her injuries included left-sided hemiparesis in which the left side of her body was weakened and rendered abnormal by injury to her brain's right side.
Anna Berthelsen sued URS, alleging that it was vicariously liable for Bolin's negligent driving. URS conceded that it was liable for Bolin's negligence that had caused his truck to collide with the Berthelsen van. The case went to trial only on the issue of damages. At the close of the evidence, URS made a motion for directed verdict, contending that Berthelsen did not present any evidence of future damages. The circuit court overruled the motion and submitted the case to the jury, which returned a verdict for $25 million in compensatory damages. On December 14, 2005, the circuit court entered judgment for Berthelsen in the amount of $25 million. On January 12, 2006, URS filed a motion for new trial, or, in the alternative, a motion for remittitur. The circuit court denied the motion, and URS appealed.
In its first point on appeal, URS asserts that the circuit court erred in overruling its motion for a directed verdict at the close of all the evidence, which sought a directed verdict on the ground that Berthelsen did not make a submissible case. URS contends that Berthelsen did not present evidence establishing that she would suffer future damages, such as needing future surgeries or developing diseases as depression or Alzheimer's or Parkinson's diseases.
As a preliminary matter, we must determine whether or not URS sufficiently preserved its point on appeal. To preserve the issue of whether or not a plaintiff has made a submissible case for appeal, a defendant must file a motion for directed verdict at the close of all the evidence and raise the issue in an appropriate after-trial motion. Pope v. Pope, 179 S.W.3d 442, 451 (Mo.App. 2005) (citation omitted).
The parties agree that URS made a motion for a directed verdict at the close of all the evidence. Berthelsen, however, argues that URS did not claim this as error in any after-trial motions. Although URS did not specifically use the term "directed verdict," it did claim that the circuit court erred in submitting the issue of future damages to the jury because there was no evidence supporting the fact that they were reasonably certain to occur. This is the same argument it made in its motion for directed verdict. The rule's purpose is to provide the circuit court with an opportunity to correct its errors without the expense and hardship of an appeal. Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo.App. 1993). URS' motion for new trial was sufficiently clear to put the circuit court on notice of its argument. URS preserved its claim for our review.
Unless the plaintiff makes a submissible case, the circuit court cannot allow the case to go to the jury. Hertz Corporation v. Raks Hospitality, Inc., 196 S.W.3d 536, 549 (Mo.App. 2006). To make a submissible case, the plaintiff must present substantial evidence from which a reasonable juror can find each element of his or her claim. Id. In determining whether the plaintiff has made a submissible case, we view the evidence in a light most favorable to the plaintiff. Id. A court cannot supply missing evidence and give the plaintiff the "benefit of speculative, unreasonable, or forced inferences." Id. A submissible case "cannot be based on conjecture, guesswork, or speculation beyond inferences reasonably to be drawn from the evidence." Id. Whether the evidence in the record supporting a claim is substantial and the inferences to be drawn therefrom are reasonable are questions of law. Duncan v. American Commercial Barge Line, LLC, 166 S.W.3d 78, 82 (Mo.App. 2004). We decide questions of law de novo. Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434, 442 (Mo.App. 2004).
Berthelsen alleged that, under the doctrine of respondeat superior, URS was vicariously liable for the negligent acts of its employee, Bolin. " [R]espondeat superior imposes vicarious liability on employers for the negligent acts or omissions of employees or agents as long as the acts or omissions are committed within the scope of the employment or agency." Cabellero v. Stafford, 202 S.W.3d 683, 694 (Mo.App. 2006) (citation omitted). As the underlying act of negligence, Berthelsen alleged that (1) Bolin had a duty to operate URS' vehicle in a safe and reasonable manner, (2) he breached this duty when he collided with the van in which she was riding, and (3) this act resulted in injuries to her. See Thompson v. Brown and Williamson Tobacco Corporation, 207 S.W.3d 76, 98 (Mo.App. 2006). Before trial, URS conceded that it was liable for Bolin's negligence under the doctrine of respondeat superior and that Bolin had a duty to operate URS' vehicle in a safe and reasonable manner, which he breached when his truck collided with the Berthelsen van. The only issue at trial was the nature and extent of Berthelsen's damages.
On appeal, URS concedes that Berthelsen had submitted sufficient evidence for the circuit court to submit the issue of present damages to the jury. Its complaint is that Berthelsen did not present sufficient evidence to establish that she is reasonably certain to suffer future damages as a result of her injuries.
A plaintiff is entitled to recover for future damages as long as he or she can prove that the damages are reasonably certain to occur. Swartz v. Gale Webb Transportation Corporation, 215 S.W3d 127, 130 (Mo. banc 2007). "The degree of probability of such damages must be greater than a mere likelihood; it must be reasonably certain to ensue. . . . Consequences which are contingent, speculative, or merely possible may not be considered." McKersie v. Barnes Hospital, 912 S.W.2d 562, 566 (Mo.App. 1995) (citation omitted). Usually, future damages are a matter of medical opinion that require expert medical testimony. Id.
Berthelesen presented sufficient evidence to support the circuit court's submitting the issue of future damages to the jury. Physicians diagnosed Berthelesen as suffering left-sided hemiparesis. Peter Patrick, a neuropsychologist at the University of Virginia School of Medicine, testified that injuries to her brain would worsen as she aged. He said that, by the time she becomes a teenager, she will have trouble understanding and processing information and that she probably would not be able to interact socially. Ann Modricin, chief physician of rehabilitation at Children's Mercy Hospital, agreed that Berthelsen's brain injuries would worsen as she aged. The evidence also established that Berthelsen would most likely not be able to attend college; therefore, she would lose approximately $1.5 million in wages and fringe benefits. The evidence also established that Berthelsen would need care nearly on a daily basis. As a result, Gary Yarkony, a neurologist, developed a life care plan to provide support for Berthelsen for the rest of her life, which economist Bernard Pettingill opined would cost $8 million. The circuit court did not err in overruling the motion for directed verdict.
In making its claim, URS relies on Modricin's and Yarkony's testimony that, although Berthelsen is at a higher risk of developing certain medical conditions such as depression and Alzheimer's and Parkinson's diseases, they could not say that Berthelsen will definitely develop these conditions. URS claims that, because Berthelsen's own experts could not opine with reasonably certainty that she will develop any of these conditions, she did not present sufficient evidence on future damages. Merely because Berthelsen did not present evidence on one particular type of future damages — i.e., future surgeries or future diseases — does not mean, however, that the circuit court erred in submitting the issue of future damages to the jury. The evidence, as summarized supra, was sufficient to submit the issue to the jury.
Moreover, URS misunderstands the relevance of Modricin's and Yarkony's testimony. This is because expert testimony that a person is more likely to develop a future disease does not go to the issue of future damages but to the issue of present damages. Swartz, 215 S.W.3d at 130-31. The Swartz court further instructed:
[W]hen an expert testifies to a reasonable degree of certainty that the defendant's conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff's present injuries, even if those future consequences are not reasonably certain to occur.
Id. at 131 (emphasis added). URS' claim regarding Modricin's and Yarkony's testimony is irrelevant to the issue of whether or not Berthelsen made a submissible case on the issue of future damages.
In its second point, URS asserts that the circuit court erred in not prohibiting Berthelsen's counsel from arguing that "the jury could award plaintiff damages for diseases, conditions, and future surgeries that it believed plaintiff was more likely than not to suffer" because these statements misstated the law. To recover for future damages, URS argues, Berthelsen had to establish that the future damages were reasonably certain to occur.
URS concedes that it did not preserve this point for our review because it did not object. It, however, requests plain error review under 84.13(c).
Rule 84.13(c) grants us authority to consider "[p]lain errors affecting substantial rights . . . when [we find] that manifest injustice or miscarriage of justice has resulted" from the plain error. The rule presents a bit of a conundrum by granting us authority to review plain error only if we find manifest injustice or a miscarriage of justice. Making a finding of manifest injustice or a miscarriage of justice seems tantamount to a review, but the Supreme Court suggested in State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031 (1995), that it intended that we should first examine for plain error by reviewing the record "facially" and to grant plain error review only if we discerned a substantial ground for believing that manifest injustice or miscarriage of justice has resulted from plain error. If we find that the plain error claim does not establish facially substantial grounds for believing that manifest injustice or miscarriage of justice has occurred, we should decline to exercise our discretion to review a claim of error under Rule 84.13(c). "The rule makes it clear that not all prejudicial error — that is, reversible error — can be deemed plain error." State v. Dowell, 25 S.W.3d 594, 606 (Mo.App. 2000). Plain error is evident, obvious, and clear error. In re Moore, 885 S.W.2d 722, 727 (Mo.App. 1994); Ryder Farms, Inc. v. Hullinger Trucking, Inc., 837 S.W.2d 575, 576 (Mo.App. 1992).
Although Brown construed Rule 30.20, Rule 30.20 is sufficiently identical to Rule 84.13(c) in this regard that we apply Brown's construction in this case.
Well-established law provides that comments made during closing arguments will rarely constitute plain error because trial strategy is an important part of closing arguments. Rush v. Senior Citizens Nursing Home District of Ray County, 212 S.W.3d 155, 163 (Mo.App. 2006). Moreover, any claim of error suggesting that the circuit court should have sua sponte interrupted a party's closing argument ignores the possibility that the attorney did not object for strategic reasons. Id. In the absence of an objection, the circuit court's options are "`narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.'" State v. Bennett, 201 S.W.3d 86, 88 (Mo.App. 2006) (citations omitted). "A party cannot fail to request relief, gamble on the verdict, and then, if adverse, request relief for the first time on appeal." Id. Hence, plain error in a closing argument occurs only if the closing argument "`contains reckless assertions, unwarranted by proof and intended to arouse prejudice, which, therefore, may be found to have caused a miscarriage of justice.'" Porter v. Toys `R' Us-Delaware, Inc., 152 S.W.3d 310, 323 (Mo.App. 2004) (citation omitted).
During closing arguments, Berthelsen's attorney said concerning damages:
Power wheelchair, braces, Botox, vulnerability, loss of ability to walk, arthritis, early Alzheimers, early dementia, loss of I.Q., nursing home, lonely sad, scared, future surgeries. All of those things. Daily headaches. All of those things. You tell me — you take this board, more likely than not she has suffered these, will she suffer in the future? You have got to say yes to all of those. So then you have 69 years of that. Sixty-nine years.
We added the emphasis.
Later during his rebuttal argument, Berthelsen's attorney said:
There is a lot of damage, a lot of things she won't be able to do. But if you are doing your jobs [as jurors], as sworn officers of the court, and you put this question to each topic[—]which is[: I]s she more likely than not to suffer this in the future[—]you are going to find she is. And, if you do, then — if you find she has great damages[—]then you must compensate that.
On appeal, URS contends the circuit court should have excluded these two comments sua sponte because, together, they gave the jury the false impression that it could compensate Berthelsen for future surgeries that were "more likely than not" to occur. URS claims that this is a misstatement of the law because, for Berthelsen to recover for future damages, she had to prove that they are reasonably certain to occur. Swartz, 215 S.W.3d at 130.
Even assuming, arguendo, that URS is correct, its claim fails because it did not establish that it suffered manifest injustice or a miscarriage of justice as a result of the court's not excluding the argument sua sponte. To meet this burden on appeal, URS had to show that the record clearly demonstrates that the purported misstatement of the law in Berthelsen's closing argument "`had a decisive effect on the outcome of the trial.'" Rush, 212 S.W.3d at 163. Missouri's courts consistently have held that, when a party misstates the law in closing argument but the circuit court properly instructs the jury, manifest injustice or a miscarriage of justice has not occurred. State v. Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). In the absence of evidence to the contrary, we presume the jury to have followed the circuit court's instructions. Brown v. Bailey, 210 S.W.3d 397, 412 (Mo.App. 2006).
The circuit court gave the jury Instruction No. 6, taken from M.A.I 31.07. The instruction said:
Under the law, defendant is liable for damages in this case. Therefore, you must find the issue in favor of plaintiff and award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe she sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.
URS does not argue that this instruction misstated the law. Indeed, it correctly says that the jury can award future damages only if its finds that the damages were reasonably certain to occur. Swartz, 215 S.W.3d at 130. Moreover, the record reflects that the circuit court read Instruction No. 6 to the jury before its deliberations. We presume that the jury followed Instruction No. 6, and URS points to nothing in the record that rebuts this presumption. We cannot say from the face of URS' claim that the challenged portion of Berthelsen's closing argument resulted in manifest injustice or a miscarriage of justice to URS. We, therefore, decline plain error review.
In its third point, URS asserts that the circuit court erred in not granting its motion for remittitur, which sought a reduction of the compensatory damages of $25 million on the basis that the jury made an honest mistake in calculating her damages.
An excessive verdict can arise in two situations: when the jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awards a disproportionate amount of damages and when the jury is biased by trial misconduct. Knifong v. Caterpillar, Inc., 199 S.W.3d 922, 927 (Mo.App. 2006). When the jury makes an honest mistake in calculating the damages, remittitur is appropriate without re-trial, but, if the jury is biased by trial misconduct, a new trial is appropriate. Id.
URS does not argue that trial misconduct prejudiced the jury and resulted in a grossly excessive verdict. It claims that the jury made an honest mistake in calculating the damages and a remittitur is required. We must exercise caution in interfering with a jury's award. We review the evidence in a light most favorable to the verdict, and, only when a verdict is "`manifestly unjust'" should we intervene. Id. In evaluating the reasonableness of compensatory awards, courts typically uses these factors: "(1) loss of present and future income; (2) medical expenses; (3) plaintiff's age; (4) the nature and extent of plaintiff's injuries; (5) economic considerations; (6) awards approved in comparable cases; and (7) the trial court's and jury's superior opportunity to evaluate plaintiff's injuries and other damage." Id. at 928. Courts also may consider "`certain intangibles' that do not lend themselves to precise calculation, such as past and future pain, suffering, effect on life-style, embarrassment, humiliation, and economic loss." Id.
The jury's award of $25 million was not excessive. The circuit court did not err in not remitting it. The evidence established that Berthelsen lost income potential of nearly $1.2 million because she would not be able to obtain a bachelor's degree. The evidence also established that if Berthelsen would have otherwise obtained a master's degree, her injuries resulted in nearly $1.5 million in lost income. In either case, she would lose more than $300,000 in fringe benefits, according to her evidence. URS concedes that these numbers are accurate, but it claims that she did not present evidence that her present condition would prevent her from obtaining college degrees. To the contrary, Wilbur Swearingin, a vocational rehabilitation counselor, opined that, given her present condition and her permanent brain damage, she would not complete college. URS claims that, while Swearingin testified that her not completing college was a possibility, he also testified that her completing college was a possibility. In light of this concession, URS argues, his testimony had no probative value. In support of its argument, URS points to this testimony by Swearingin:
Q. . . . Now that doesn't mean that you are telling this jury that it is impossible that Anna would get a degree; is that right, sir?
A. I am not saying it is impossible. You know, anything is possible.
Q. Sure.
A. But that is my estimate of her best, most likely outcome.
Swearingin obviously believed that Berthelsen would not be able to obtain a college degree. When he said, "anything is possible," he merely was acknowledging that some miracle might intervene to change her situation, but, without some sort of miracle, her chances for completing college were extremely small. The jury had a reasonable basis for believing that Berthelsen would not be able to complete college, reducing her potential earning power by at least nearly $1.2 million in lost wages and more than $300,000 in lost fringe benefits.
Regarding Berthelsen's medical expenses, Yarkony developed a life care plan to provide support for Berthelsen for the rest of her life. Bernard Pettingill testified that the present value of the life plan was nearly $8 million. URS concedes these opinions were a part of the record, but it asserts that Berthelsen did not present evidence to support the opinions' assumption that Berthlesen would need someone to care for her constantly. To the contrary, the life plan's value was not based on the assumption that Berthelsen would need constant care. Indeed, Pettingill testified that his computations assumed that Berthelsen will need home health aides approximately 255 to 288 days a year. The jury had a reasonable basis for concluding that Berthelsen's medical expenses would be nearly $8 million. This figure, added to her lost wages and future medical expenses, permitted the jury to conclude reasonably that her economic damages alone would total more than $9 million.
Concerning Berthelsen's age and the nature and extent of her injuries, the evidence supported the $25 million award. Berthelsen is a young girl who suffered severe and permanent injuries. She was seven-years-old when the accident occurred. As a result of her injuries, she was in a coma for two days. When she regained consciousness, she did not recognize her parents and could not use her legs or left arm. She spent the next 31 days in the hospital in intense physical therapy relearning how to use her legs and left arm. We have already noted the injury to her brain. The brain injuries are permanent, irreversible, and not expected ever to improve. Because of the injuries, she has poor organizational, auditory, and visual skills. She has lost significant I.Q. points and suffered a dramatic decline in her memorization skills. She has difficulty processing basic information, and this problem will worsen with time. Because of the injuries, she walks with a severe limp and fatigues easily, and this condition, too, will worsen with time. The evidence established that she will never be able to do many normal activities like jogging, skiing, or dancing. She is also at a higher risk for developing Parkinson's disease, Alzheimer's disease, depression, and arthritis.
In addition to mental and physical problems, Berthelsen has also suffered social problems. She has an increasingly difficult time with her self-control and social conduct. It is very hard for her to stay focused on a particular topic or task. She has become impulsive and disinhibited. She constantly exhibits nervousness, anxiety, and fear. She has trouble interacting with others and, as a result, has trouble maintaining interpersonal relationships. These problems, too, will worsen as she ages. The evidence established that her life expectancy is 69.6 years.
Concerning economic considerations, we have already discussed her loss of future wages and fringe benefits. We also must evaluate Berthelsen's award in light of awards in comparable cases, but we are not to view this factor as an effort to keep her award from exceeding the awards in other cases. Id. at 930. "To apply solely . . . [a] comparative approach in determining damages as a matter of course in every case, could, in a given set of circumstances, violate the mandate that once liability is established, the plaintiff is entitled to fair and reasonable compensation for his damages." Id. In this regard, the parties point us to numerous cases, which have resulted in a wide range of awards. For example, URS points us to McCormack v. Capital Electric Construction Company, 159 S.W.3d 387 (Mo.App. 2005), in which this court upheld the circuit court's decision to remit a plaintiff's award from $30.4 million to $8.9 million. At the opposite end of the spectrum, Berthelsen points us to Alcorn v. Union Pacific Railroad Company, 50 S.W.3d 226 (Mo. banc 2001), in which the Supreme Court upheld the circuit court's decision to remit a damage award from $40 million to $25 million. In both cases, the plaintiff suffered permanent brain injuries.
Although Berthelsen's award is on the high end of the spectrum of cases cited by the parties, we cannot say that the facts of this case do not justify the award. From its superior vantage point, the circuit court declined to remit the jury's compensatory damage award. Given Berthelsen's age, her life expectancy, and her permanent, life-altering injuries, we cannot say that the circuit court abused its discretion in refusing to remit the jury's award.
We, therefore, affirm the circuit court's judgment.
Thomas Newton, Presiding Judge, and Lisa White Hardwick, Judge, concur.
OPINION SUMMARY
URS Corporation appeals the circuit court's judgment finding it liable in the amount of $25 million for injuries to Anna Berthelsen resulting from a collision of a truck driven by one its employees with a vehicle in which Berthelsen was riding.
Affirmed.
Division holds:
In its first point on appeal, URS claims that the circuit court erred in submitting the issue of future damages to the jury. Berthelesen, however, presented sufficient evidence to support the circuit court's submitting the issue of future damages to the jury. Physicians diagnosed Berthelesen as suffering left-sided hemiparesis. Peter Patrick, a neuropsychologist at the University of Virginia School of Medicine, testified that injuries to her brain would worsen as she aged. The evidence also established that Berthelsen would most likely not be able to attend college; therefore, she would lose approximately $1.5 million in wages and fringe benefits. The evidence also established that Berthelsen would need care nearly on a daily basis at the cost of $8 million dollars.
In it second point, URS claims that Berthelsen made prejudicial comments during her closing arguments regarding the law of future damages and the circuit court erred in failing to sua sponte strike them from the record. However, we presume that the jury followed Instruction No. 6, which property stated the law of future damages, and URS points to nothing in the record that rebuts this presumption. We cannot say from the face of URS' claim that the challenged portion of Berthelsen's closing argument resulted in manifest injustice or a miscarriage of justice to URS.
In its third point, URS claims that the circuit court should have remitted the $25 million judgment. The evidence of her injuries was substantial enough to justify the award and we find no reason to remit it
This summary is UNOFFICIAL and should not be quoted or cited.