Opinion
No. WD 55657.
Opinion Filed: February 29, 2000.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE RONALD R. HOLLIGER, JUDGE.
Harlan D. Burkhead, Kansas City, for appellant.
Patrick Steven O'Brien, Kansas City, for respondent.
Before Presiding Judge Laura Denvir Stith, Judge Robert G. Ulrich and Judge James M. Smart, Jr.
Defendant-Appellant, Kansas City Southern Railway Company (KCS), appeals the trial court's judgment based on a jury verdict awarding $1,520,000 to Plaintiff-Respondent, Gary Giddens. The jury found that Mr. Giddens suffered personal injuries during the course of his employment with KCS for which KCS is responsible under the Federal Employer's Liability Act (FELA), 45 U.S.C.A. § 51 et seq. KCS asserts the trial court erred in: (1) denying its motion for directed verdict and for judgment notwithstanding the verdict because Mr. Giddens failed to make a submissible case to the jury; (2) sanctioning KCS by prohibiting it from using certain deposition testimony to impeach Mr. Giddens; (3) admitting OSHA regulations without a proper foundation, and misleading the jury into believing this was a negligence per se case; (4) failing to find the verdict was against the weight of the evidence because the damages were grossly excessive, there was no competent and substantial evidence to support the damage award, and the jury failed to reduce damages based on Mr. Giddens' duty to mitigate damages by seeking gainful employment; (5) violating due process by failing to instruct the jury to separately set out the percentage of comparative fault it assigned to plaintiff and defendant; and (6) refusing to permit evidence of Mr. Giddens' receipt of a disability pension as evidence of his lack of motivation to find gainful employment. Because we find the allegations of error to be without merit, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
Considered in the light most favorable to the verdict, the evidence at trial showed:
In 1989, Mr. Giddens was employed as a foreman for KCS' maintenance-of-way department, which constructs and maintains the railroad's roadbeds and right-of-way. In May 1989, there were heavy rains in Louisiana which caused "wash-outs," that is, areas where the ballast under the ties and the rail are washed away, leaving the rail and ties suspended without roadbed support. Even though wash-out repair was not within Mr. Giddens' general duties, KCS assigned him and his crew of three to four employees to wash-out repair because of its urgent need to return the railroad roadbeds to operable status.
Wash-out repair is generally performed by taking cross-ties and stacking them in twos in opposite directions underneath the suspended railway track. The ties are stacked until they are level with the track and able to support the track. The box-type structure of ties is called a "pigpen" or a "crib." Once the structure is completed, a railcar loaded with ballast is placed above the structure. The railcar then dumps the ballast in the crib to establish a new roadbed.
On May 18, 1989, Mr. Giddens and other KCS workers assessed the damage to a particular area of roadbed where Mr. Giddens and his crew were to begin repairs. Mr. Giddens testified that his supervisor, Larry Dobson, instructed him to begin repair work with his crew at mile post 612, and told him that a KCS locomotive crane would be at mile post 612, so that his crew could use the chains located on the crane to lift the tracks out of the way while they inserted the cross-tie supports underneath the tracks. Mr. Dobson testified that he did not remember either telling Mr. Giddens about the crane, or giving him instructions as to how to perform repairs with the crane.
On May 19, 1989, Mr. Giddens and his crew began to repair the wash-out damage at mile post 612. Mr. Giddens had never before performed wash-out repair by using a crane. At the work site, a division engineer instructed Mr. Giddens to use a back hoe to move all of the old fill and mud in the surrounding area back underneath the suspended track, as this would build up a foundation more quickly than would stacking the cross-tie support in a crib or pigpen manner. The engineer said that, if the old mud did not completely refill the hole under the tracks, Mr. Giddens and his crew could "shim" the landfill up by taking ties and building a box structure on top of the fill.
After Mr. Giddens and his crew completed the work with the back hoe, they determined that additional support from ties was still needed. At approximately 5:00 p.m., Mr. Giddens and his crew therefore began to climb up the sides of the mud-filled foundation in order to build up a mini-crib on top of the mud. As Mr. Giddens inserted a tie underneath the track, he placed his left hand on top of the tie to steady himself. While his hand was on top of the tie, the chain from the crane holding the track assembly broke, causing the suspended track to drop and pin Mr. Giddens' left hand between the tracks and the tie at the top of the crib. After approximately three to five minutes, those at the scene were able to attach the chain back to the crane and lift the track off of Mr. Giddens' left hand.
Mr. Giddens was taken to the hospital for emergency treatment and was subsequently treated by a hand specialist. He suffered crush-type fractures of the middle, ring, and small fingers of his left hand. Several reconstructive surgeries were performed on his left hand to repair the damage. Throughout the time period during which Mr. Giddens was receiving the initial treatment for his hand injury, he was not permitted to return to work, but he remained on KCS' payroll through its wage continuation program.
The injury was sufficiently severe that it was not until June 1990, approximately one year after the accident, that Mr. Giddens was released by his physicians to return to work for KCS. Six months later, in December 1990, Mr. Giddens left work for vacation and additional tendon surgery. He returned to work again in May 1991. In December 1991, Mr. Giddens took a vacation and subsequently underwent additional surgery as well. Two months later, in February 1992, Mr. Giddens attempted to return to work, but a KCS physician disqualified him from work because of safety concerns regarding his ability to lift heavy objects. Subsequent surgeries followed. In the summer of 1992, Mr. Giddens attempted to return to work again, but failed a KCS field test. At this time, Mr. Giddens was notified that he would be taken off of the wage continuation program as of October 1992. In November 1992, Mr. Giddens filed suit against KCS under FELA, alleging that his hand injury resulted from KCS' negligence and that he was entitled to damages.
Although Mr. Giddens was taken off of KCS' wage continuation program, he remained eligible for disability pension benefits under the Railroad Retirement Act.
Mr. Giddens' case went to trial for the first time in 1994, resulting in a $500,000 jury verdict in favor of Mr. Giddens. The trial court granted a new trial due to failure to give an instruction on mitigation of damages. The second trial was held in April 1995. The jury again returned a judgment in favor of Mr. Giddens, this time for $1,400,000, but the trial court again awarded a new trial, this time on the basis of an improper closing argument by counsel for Mr. Giddens. Mr. Giddens appealed the trial court's award of a new trial to this Court. Giddens v. Kansas City Southern Ry. Co., 937 S.W.2d 300 (Mo.App. 1996). In 1996, this Court affirmed the trial court's grant of a new trial, and remanded. Id. A third trial was held beginning on January 14, 1998, and resulted in a verdict for Mr. Giddens in the amount of $1,520,000. This is the verdict at issue on this appeal.
At the time of the filing of the original Petition in 1992, Mr. Giddens filed interrogatories and request for production asking for the names of persons who had obtained written statements from Mr. Giddens, including a video or motion picture of him, and for copies of those statements and videotapes. In the spring of 1997, prior to the inception of the third trial, KCS hired an investigator to watch Mr. Giddens. The investigator made videotapes of his surveillance, one of which he sent to counsel for KCS on May 16, 1997, and the other of which he sent to counsel for KCS on June 3, 1997. The videotapes showed Mr. Giddens performing various activities, including raking leaves, sweeping and clearing natural debris, breaking tree branches and sticks, carrying tree limbs, gathering trash, and mowing the lawn with a push mower. In some parts of these videotapes, Mr. Giddens appeared to be using his injured hand to hold or push items.
On July 3, 1997, KCS conducted a supplemental deposition of Mr. Giddens. At the deposition, counsel for KCS again questioned Mr. Giddens concerning the physical limitations associated with his injured hand, this time specifically addressing the types of activities captured on the video surveillance, but did so without revealing the existence of these videotapes. According to KCS, Mr. Giddens' answers as to his ability to perform various activities were seriously at odds with what the videotapes showed he could do in at least ten respects. According to Mr. Giddens, his testimony and the videotapes are not inconsistent, since the questions were vague or dealt with abilities not depicted in the videotapes in various respects. Our review of the videotapes, the deposition, and Mr. Giddens' later trial testimony, indicates the truth to be somewhere in the middle: he did exaggerate or misstate his disabilities in three or four respects in the deposition as compared to what he stated at trial and as to what the videotape showed, but other inconsistencies could well be considered matters of interpretation or emphasis or the result of the wording of questions rather than of an intent to deceive.
Following the July 3, 1997 deposition, KCS served an amended discovery response advising Mr. Giddens of the existence of the videotape surveillance. On September 18, 1997, Mr. Giddens' attorneys deposed the investigator who performed the video surveillance. He explained when and how he obtained the videotapes and sent them to counsel for KCS.
On October 2, 1997, Mr. Giddens filed a motion in limine to exclude the video surveillance tapes from evidence and for such other relief as the court deemed proper, including striking KCS' pleadings or imposing other sanctions, on the basis that KCS failed to seasonably divulge information regarding the videotapes by keeping them secret until after Mr. Giddens' supplemental deposition.
The trial judge did not rule on Mr. Giddens' motion in limine until January 14, 1998, the day of trial. He held that KCS had violated discovery rules by failing to seasonally supplement its interrogatory answers concerning its videotape "statements" of Mr. Giddens. He declined to exclude the videotapes as a sanction for this alleged discovery violation, however, because he believed the tapes might be needed so that the jury could see what activities Mr. Giddens could perform. Instead, he sanctioned KCS by prohibiting use of Mr. Giddens' post-surveillance deposition testimony, even for impeachment purposes.
At trial, Mr. Giddens testified about his physical condition and limitations. His answers were consistent with what the videotape surveillance showed about his condition, and presumably were consistent with his prior trial testimony, as the latter was not used to impeach him. His testimony was not fully consistent with portions of his excluded deposition testimony, however, as there he had indicated a more limited physical capacity. Mr. Giddens also provided testimony from three expert witnesses, including: (1) a railroad specialist who testified as to the alleged deficiencies in KCS' operations; (2) a psychologist-rehabilitation specialist who testified as to his injuries and his rehabilitation; and (3) an economist who testified as to his lost wages. Mr. Giddens further introduced OSHA regulations allegedly violated by KCS as evidence of KCS' negligence in operating and maintaining the work site.
The jury returned a verdict in favor of Mr. Giddens in the amount of $1,520,000. KCS' motions for judgment notwithstanding the jury verdict (JNOV), remittitur and new trial were overruled by the trial court. KCS appeals.
II. STANDARD OF REVIEW
KCS challenges the submissibility of Mr. Giddens' case and argues that the trial court erred in failing to grant its motion for JNOV. The standard of review of denial of a JNOV is essentially the same as for review of denial of a motion for directed verdict. A case "may not be submitted `unless each and every fact essential to liability is predicated upon legal and substantial evidence.'" Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo.banc 1995), quoting, Houghton v. Atchison, Topeka Sante Fe R.R. Co., 446 S.W.2d 406, 409 (Mo. banc 1969). In determining whether the evidence was sufficient to support the jury's verdict, we view the evidence in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences which conflict with that verdict. Id. ; Resnik v. Blue Cross Blue Shield, 912 S.W.2d 567, 570 (Mo.App.E.D. 1995). If the record contains probative facts which support the conclusion reached by the jury, we will affirm. Brenneke v. Dept. of Missouri, Veterans of Foreign Wars, 984 S.W.2d 134, 137 (Mo.App.W.D. 1998).
KCS also challenges errors by the trial court in ruling on the admission of evidence, in imposing sanctions for discovery violations and in instructing the jury. The trial court is vested with broad discretion regarding rulings on the admission of evidence and the imposition of sanctions for discovery violations, and we will find an abuse of discretion only when the trial court's decision is against the logic of the circumstances and is so arbitrary and unreasonable that it shocks the sense of justice. Pollard v. Whitener, 965 S.W.2d 281, 286 (Mo.App.W.D. en banc 1998). The failure to submit an instruction to which a party is entitled is error, but will warrant reversal only when the merits of the action have been materially affected and when the error is properly preserved. Wise v. Pottorff, 987 S.W.2d 407, 409-10 (Mo.App.W.D. 1999).
III. SUBMISSIBILITY OF THE CASE
In its first point on appeal, KCS asserts the trial court erred in denying its motions for directed verdict and for JNOV because Mr. Giddens failed to make a submissible case of negligence. Specifically, KCS argues the uncontroverted evidence at trial established that it was not KCS, but rather Mr. Giddens' own negligence and violation of safety rules, which caused the accident and resulting injury.
Mr. Giddens brought suit pursuant to FELA, which provides in relevant part:
Every common carrier by railroad while engaging in commerce between any of the several States or Territories . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works . . . or other equipment.
FELA, 45 U.S.C.A. Sec. 51.
FELA was enacted in 1908 by Congress to serve as a remedial statute providing liberal recovery for injured railroad workers. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-43, 114 S.Ct. 2396, 2403-04, 129 L.Ed.2d 427 (1994). Under FELA, an employer has a duty to provide its employees with a reasonably safe place to work. Crawford v. Norfolk Western Ry. Co., 901 S.W.2d 252, 254 (Mo.App.E.D. 1995). The duty of providing a reasonably safe place to work does not require the elimination of all dangers, but it does require the elimination of these dangers which could be removed by the exercise of reasonable care on the part of the employer. Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84, 86 (Mo.banc 1990); Crawford , 901 S.W.2d at 254 . The burden is on the employee to show such negligence and its causal connection to the injury. Id. However, the employee simply needs to show that he or she was injured because of an unsafe condition that could have been reasonably removed by the employer, and that the employer's negligence played any part, even the slightest, in producing the employee's injury. Euton v. Norfolk Western Ry. Co., 936 S.W.2d 146, 151 (Mo.App.E.D. 1996); Crawford, 901 S.W.2d at 254; White v. Union Pacific R. Co., 871 S.W.2d 50, 53 (Mo.App.E.D. 1993). Contributory negligence by the employee will not bar recovery, but instead is a matter for the jury to consider in apportioning fault.
KCS asserts an exception to the usual comparative fault rule applies here because, as foreman, Mr. Giddens was in charge of the job site and assumed an independent duty to follow KCS' safety rules. Those rules precluded him from putting his hand under the railroad tracks while they were raised. However, the line of cases cited by KCS in support of its position has long been altered by various amendments to FELA, most notably, the adoption of a comparative fault system under which employee negligence is not used as a complete bar to recovery, but merely as a reduction to the recovery. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943) (assumption of risk and primary duty doctrine abolished by 1939 amendments to FELA); Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947). Moreover, KCS cites Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2nd Cir. 1952), for the proposition that a supervisor who has consciously assumed a duty to ensure a safe place to work as a term of his employment is barred from any type of recovery under FELA. Walker, however, is a Jones Act case rather than a FELA case, and recent cases have rejected its holding for a more modern rule apportioning responsibility for the injury between the employer and the employee. See McSpirit v. Great Lakes Intern., 882 F. Supp. 1430 (S.D.N.Y. 1995); Kelley v. Sun Transp. Co., 900 F.2d 1027 (7 th Cir. 1990).
Mr. Giddens' case was submitted to the jury under FELA on the theory that his injuries and damages resulted in whole or in part from the negligence of KCS because: (1) KCS failed to provide reasonably safe methods to perform the wash-out repair work assigned; (2) KCS failed to provide reasonably safe conditions for the work; (3) KCS failed to provide adequate equipment, tools and appliances for the work; (4) KCS failed to provide sufficient manpower to complete the work; and (5) KCS knew, or should have known, that these alleged failures were reasonably likely to result in harm to Mr. Giddens.
At trial, the evidence showed that Mr. Giddens was the foreman in charge at the scene of the repair. Mr. Giddens further testified that his superior instructed him to perform wash-out repair by using a locomotive crane and the chains attached to the crane. According to Mr. Giddens, on the date of the accident, the locomotive crane arrived at the work site, and he proceeded to perform the wash-out repair as instructed. Mr. Giddens testified that he had never used a locomotive crane before, was unaware of the specific weight capacity of the chains, and was not in charge of the crane operator. Mr. Giddens ultimately testified that he had to place his hand in peril underneath the suspended railway tracks in order to steady himself on the steep, wet incline in an attempt to prevent himself from falling.
Tom Rainey, a railroad inspector, also testified for Mr. Giddens. He said that KCS did not properly instruct Mr. Giddens as to how to perform the wash-out repair, that attempts to refill the wash-out with mud from the surrounding area created an improper foundation for the tracks, that the crane was an improper tool to use to perform the repairs, and that the crane did not have the appropriate equipment to perform the job. Mr. Rainey concluded that Mr. Giddens' injuries were a result of the unsafe conditions created by his superiors at KCS.
KCS offered testimony of several KCS employees present at the time of Mr. Giddens' accident. The employees testified that Mr. Giddens was in charge of the work being performed at the job site and that no one was present during the day of the accident who was higher on the chain of command than Mr. Giddens. One employee, Roy Peters, testified that Mr. Giddens did not have to use a crane, and could have instead chosen to utilize track jacks as a method to lift the railroad tracks. Mr. Arnold, the crane operator, testified that Mr. Giddens was in charge of the job site. He said that, when Mr. Giddens told the crew to attach the chains from the crane to the truck, he got out of the crane and told the crew that the chains were not of sufficient strength to hold the weight of the track, but that Mr. Giddens told the crew to get the chains nevertheless. Mr. Arnold further testified that he got off his crane and "told them I didn't want to pick [the track assembly] up." Mr. Giddens nonetheless gave Mr. Arnold the signal to lift the track assembly with the crane, and he complied.
Although KCS' evidence contradicted Mr. Giddens' testimony, and although KCS argues that its testimony was more credible and cast serious doubt on Mr. Giddens' version of events, it was up to the jury to make its own credibility determinations as well as any inferences of negligence from the evidence. Williams v. Jacobs, 972 S.W.2d 334, 338 (Mo.App.W.D. 1998) (credibility of witnesses, resolution of conflicting testimony, and weight of evidence are questions reserved for the jury). Furthermore, in FELA actions, there is a strong policy in favor of leaving the determination of negligence up to the jury and to uphold its determination, even if another result would appear more reasonable. Euton, 936 S.W.2d at 151; See also Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946) (a jury verdict in a FELA case must be upheld unless there is a "complete absence" of probative facts to support the finding of negligence and causation).
Viewing the evidence in the light most favorable to Mr. Giddens, there was evidence that Mr. Giddens was inexperienced in both crane use and wash-out repair, that KCS failed to provide the proper equipment to perform the wash-out repair, and that the working conditions were unsafe. A jury could reasonably infer from this evidence that KCS was negligent in providing an unsafe work environment and that its lack of care played at least some part in Mr. Giddens' injury. Therefore, the trial court did not err in overruling KCS' motion for JNOV. Point I is denied.
IV. IMPEACHMENT OF MR. GIDDENS WITH DEPOSITION TESTIMONY
In its second point, KCS asserts the trial court erred in concluding that it failed to seasonably supplement discovery and in imposing a discovery sanction by barring introduction of Mr. Giddens' videotaped deposition testimony at trial. KCS asserts that: (1) its supplementation of its interrogatory answers was seasonable in that it notified Mr. Giddens of the videotapes at least seven months prior to trial; and (2) even if its supplementation was not seasonable, barring introduction of the deposition testimony for impeachment purposes was error because it prevented the jury from knowing that Mr. Giddens had previously testified under oath somewhat inconsistently with his testimony at trial, and thus was not a credible witness.
The trial court is vested with broad discretion regarding rulings on issues arising from pretrial discovery and the determination of the appropriate remedy in the event of noncompliance with a discovery rule. Heifner v. Synergy Gas Corp., 883 S.W.2d 29, 34 (Mo.App.S.D. 1994); Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 (Mo.App.S.D. 1990). We will find an abuse of discretion only when the trial court's order is clearly against the logic of the circumstances, and is so arbitrary and unreasonable that "it shocks the sense of justice, and indicates a lack of careful consideration." Pollard v. Whitener, 965 S.W.2d at 286. See also Richardson v. State Highway Transp. Comm'n, 863 S.W.2d 876, 881 (Mo.banc 1993).
Here, the trial court imposed a sanction for a discovery violation in connection with a failure to timely reveal the videotape surveillance of Mr. Giddens. Rule 56.01 allows discovery of a party's statements concerning the action, as follows:
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.
Rule 56.01(b)(3) (emphasis added).
In State ex rel. Missouri Pacific v. Koehr, 853 S.W.2d 925 (Mo.banc 1993), the Missouri Supreme Court held that a videotape of a party constitutes a "statement" of the party within the meaning of Rule 56.01. Therefore, under Koehr , the video surveillance tapes were within the boundaries of discoverable evidence.
In interrogatories propounded in 1993, Mr. Giddens asked KCS whether it had any knowledge of videotapes of Mr. Giddens taken since the time of the accident. In its original response, KCS answered in the negative, for at that time it had no such videotapes, and Mr. Giddens did not thereafter propound additional interrogatories asking for such statements obtained after KCS' response to the 1993 interrogatories. There was, however, no need for him to do so. Under Rule 56.01(e), a party has a sua sponte obligation to seasonably amend its answer to an interrogatory if an initial response becomes inaccurate due to later events. That rule requires:
(e) Supplementation of Responses. A party who has responded to written interrogatories with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
. . . .
(2) A party is under a duty to amend a prior response seasonably if the party obtains information upon the basis of which a party knows that the response (A) was incorrect when made or (B) though correct when made is no longer true.
Rule 56.01(e) (emphasis added).
Here, the parties agreed that under Koehr and Rule 56.01(e), KCS had a sua sponte duty to seasonably supplement its prior interrogatory answers by informing Mr. Giddens in writing of the existence of the videotapes. And, in fact, KCS did supplement its response by identifying these videotapes. It did so only after it had taken a supplemental deposition of Mr. Giddens, however. The parties sharply disagree as to whether supplementation at that point falls within the meaning of the term "seasonable" as used in Rule 56.01(e), as to whether any undue prejudice resulted from the fact that the videotape was not produced until after the supplemental deposition, and as to whether the trial court's handling of the difficulties arising out of the allegedly unseasonable production of the videotape was an abuse of discretion.
KCS argues that seasonableness is determined by looking at how long before trial the supplementation occurred. Where, as here, KCS supplemented its interrogatory answers seven months before trial, KCS argues, the trial court abused its discretion in finding that its supplementation was not seasonable. In support, it cites a number of cases holding that a party seasonably supplemented its interrogatory answers or witness list where it did so sufficiently prior to trial to allow the other party to prepare for trial, and holding supplementation unseasonable only where the supplementation was not made until directly before or even during trial. See, e.g., Bailey v. Norfolk Western Ry. Co., 942 S.W.2d 404 (Mo.App.E.D. 1997) (allowing party to change opinion after deposition but before trial without notice discovery violation) ; Clark v. Clark, 805 S.W.2d 290 (Mo.App.E.D. 1991) (supplementation of trial witnesses nine days before trial was seasonable) ; State ex rel. Missouri Highway and Transp. Comm'n v. Dooley, 738 S.W.2d 457 (Mo.App.E.D. 1987) (supplementation of answers to interrogatories two weeks prior to trial was seasonable) ; State ex rel. Highway and Transp. Comm'n v. Pully, 737 S.W.2d 241 (Mo.App.W.D. 1987) (identification of expert witnesses and general witnesses four days before trial unseasonable response to discovery request) ; Ellis v. Union Elec. Co., 729 S.W.2d 71 (Mo.App.E.D. 1987) (disclosure of expert witness party intended to call to testify just six days before trial untimely) ; State ex rel. State Highway Comm'n of Missouri v. Cool's Tall Tower Restaurant, 654 S.W.2d 224 (Mo.App.S.D. 1983) (supplemental answers regarding expert witnesses filed five days before trial, and oral notification of additional expert witnesses on the eve of trial unseasonable) ; Keenoy v. Sears Roebuck Co., 642 S.W.2d 665 (Mo.App.E.D. 1982) (identifying key witness one day before trial was unseasonable supplementation of discovery).
Mr. Giddens argues, in contrast, that seasonableness depends not just on the time remaining before trial, but also on the time that has elapsed since the party became aware of the information which was required to be revealed in a supplemental response, and on whether delay in supplementation has worked a prejudice on the opposing party. Here, he argues, KCS unreasonably delayed supplementing its interrogatory answer about statements by Mr. Giddens in its possession until after it had taken a supplemental deposition of Mr. Giddens, at which supplemental deposition it specifically and purposely attempted to get Mr. Giddens to make statements about his physical abilities which were to one degree or another at odds with what the videotapes appeared to show him doing. Thus, Mr. Giddens argues, the very purpose of taking the supplemental deposition was to gain an unfair advantage over him to his prejudice. In this context, he argues, it was not an abuse of discretion for the trial judge to find that the supplementation offered only after Mr. Giddens was redeposed was unseasonable.
Unfortunately, the language of Rule 56.01 does not in itself provide a clear guide as to which of these two interpretations of the word "seasonable" is correct. We note, however, that if the drafters had intended that seasonableness is always to be measured by the period of time remaining after the disclosure and before trial, they presumably would have said so. Instead, the rule appears to purposely use a more indefinite and subjective standard by stating that the disclosure must be seasonable, thus putting the burden on the trial court to determine what constitutes seasonableness in a particular case. As we stated in Pully :
The word `seasonable' is defined as follows: `An action is seasonable when taken within the agreed time or if no time is agreed within a reasonable time.' Black's Law Dictionary 1212 (rev. 5th Ed. 1979). Since no time was agreed in the present case, the supplemental responses were `seasonable' if made within a reasonable time.
Because the word `reasonable' does not lend itself to precise definition, any determination of reasonableness must be made on a case-by-case basis, considering all the facts and circumstances.
737 S.W.2d at 244. Similarly, the Eastern District of this Court has said in the context of a case addressing the seasonableness of disclosure of an expert witness:
The infinite variety of situations which develop in pre-trial discovery renders impossible the adoption of a hard, fast rule designating exact and inflexible time limitations for disclosure of witnesses. For this reason, requirement of `seasonable' disclosure is not defined, but is left to the exercise of sound discretion in each case. Exercise of this discretion should be directed toward the accomplishment of fundamental fairness and the avoidance of unfair disadvantage.
Ellis, 729 S.W.2d at 75-76 (emphasis added). See also Heifner , 883 S.W.2d at 34-35 ("Exercise of such discretion should be directed toward the accomplishment of fundamental fairness and the avoidance of unfair disadvantage"); Hacker v. Quinn Concrete Co., Inc., 857 S.W.2d 402, 413 (Mo.App.W.D. 1993) (accord).
This approach to the determination of seasonableness is consistent with the principle stated in many cases that, even when a discovery rule has been violated, sanctions may not be imposed until the trial court determines whether, in the particular situation, the opposing party has been prejudiced. See Eagleburger, 794 S.W.2d at 233 ; Pully, 737 S.W.2d at 245 . In making a determination of prejudice, the trial court looks to the purpose of the discovery rule; i.e. the rules of discovery were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits. See Ellis, 729 S.W.2d at 75 ; Crompton v. Curtis-Toledo, Inc., 661 S.W.2d 645, 650 (Mo.App.E.D. 1983).
In almost all cases, of course, KCS is correct that fairness and the avoidance of unfair disadvantage or surprise and prejudice can be accomplished if the information is revealed within a reasonable time prior to trial, for this will allow the other party to prepare to respond at trial to the matters revealed. And, as KCS notes, it notified Mr. Giddens of the video surveillance tapes approximately one month after it acquired possession of the tapes, and some seven months prior to trial. We agree that in most circumstances this would be more than sufficient time to allow a party to prepare for trial.
On the other hand, here, the video surveillance tapes were relevant to Mr. Giddens' supplemental deposition, not just to his trial testimony, and Mr. Giddens' interrogatories asking about the existence of videotapes or other statements were served long prior to the taking of at least the second of Mr. Giddens' two prior depositions. Here, although KCS had already recorded Mr. Giddens' description of his injuries in the course of two depositions and two trials, after KCS gained possession and knowledge of the videotapes, it proceeded to request yet a third deposition of Mr. Giddens without first disclosing its new videotaped statement unknowingly made by him. In this situation, where the fact that the videotapes were given to Mr. Giddens seven months before trial was of little more use to him than if the videotapes had been given to him one day before trial, the trial judge, in his discretion, could have determined that in the circumstances of this case, an unfair disadvantage to Mr. Giddens occurred because he was not aware of the existence of the videotapes prior to his supplemental deposition.
On these particular facts, where the discovery concerns a party's own statement, if seasonableness means discovery of the statement in sufficient time to allow the other party to avoid unfair disadvantage and avoid surprise, we do not find it was an abuse of discretion for the court to conclude in this case that the videotape should have been revealed prior to the deposition to which it was relevant in order for the supplementation to be "seasonable."
Of course, this analysis presumes that the prejudice Mr. Giddens experienced is the type of prejudice which Rule 56.01(e) is intended to prevent. KCS says, with some moral force, that it is not, for revelation of the videotapes prior to the supplemental deposition could only be prejudicial if plaintiff were to lie at his supplemental deposition, and the rules are certainly not intended to provide a means by which a plaintiff may avoid the truth or avoid being caught in a lie. In other words, if Mr. Giddens had been completely truthful in his answers to questions propounded at that supplemental deposition, then no prejudice would have occurred.
There is great appeal to this contention. Indeed, it is at least partly to avoid such behavior by a party that the federal courts have held that under Federal Rule of Civil Procedure 26(e), a party may delay producing the other party's statements until after the other party has been deposed. This way, the party's response will be put on the record before the information is revealed. Often, the federal courts permit such a delay in production of a plaintiff's statements by issuing a protective order allowing defendant to delay disclosure of statements until after the plaintiff's deposition has occurred. See Torres-Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487 (S.D.Cal. 1994); Smith v. Central Linen Service Co., 39 F.R.D. 15 (DC Md. 1966). Where no protective order has been requested, some federal courts have held that the statement must be produced. See, e.g., Willard v. Constellation Fishing Corp. , 136 F.R.D. 28 (D.Mass. 1991). This approach has the benefit of allowing the defendant to get the plaintiff's version of the facts on the record before producing a statement that might affect plaintiff's testimony, yet ensures that the plaintiff will have the statement in time to prepare for trial. Moreover, those litigating in the federal system are aware of this rule, and it thus has the salutary affect of ensuring that a deponent is careful not to exaggerate, because the deponent cannot be sure what written or videotape statement may be produced in discovery after the deposition. It is probably for these reasons that various jurisdictions which have held surveillance is discoverable appear to follow the federal approach to this issue. 23 AM.JUR.2D Deposition and Discovery Sec. 46 (1983).
Other federal courts have similarly held that a party may delay production of surveillance photos and film until after deposing the plaintiff under Rule 26(b)(3) because the tapes are work product and the court has authority to condition production of work product until after a deposition has been taken. See Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582 (S.D. Tex 1996); Corrigan v. Methodist Hosp., 158 F.R.D. 54 (E.D.Pa. 1994); Ward v. CSX Transp., Inc., 161 F.R.D. 38 (E.D.N.C. 1995); Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa. 1973). KCS, however, does not raise this argument.
Koehr , however, rejected the argument that Missouri's Rule 56.01(e) permits a defendant to delay production of surveillance videotapes until after the plaintiff has been deposed or testified at trial, stating "[a]gain, the argument overlooks the language of the rule which permits discovery of an audio, video, motion picture or other recording of the party concerning the action or its subject matter." Koehr , 853 S.W.2d at 927. Similarly, Hilmer v. Hezel , 492 S.W.2d 395 (Mo.App.E.D. 1973), held that a plaintiff had a right to examine his statement before his deposition so he could be aware of it and thus avoid impeachment. Id. at 396-97. This suggests that Missouri courts have determined that the right of a party to be aware of his prior statements outweighs the right of the opposing party to test that party's credibility by delaying production of the statement.
So far as the published opinion indicates, it appears that in Koehr the defendant had only argued that the videotapes should not be revealed prior to the plaintiff's deposition because they would not be admissible for impeachment purposes until the plaintiff testified inconsistently with them. This argument was properly rejected, for the videotapes were clearly relevant and thus discoverable. Id. So far as the opinion indicates, the defendant in that case failed to argue to the Supreme Court that Rule 56.01(c) gives Missouri courts the power to issue a protective order "that the discovery may be had only on specified terms and conditions, including a designation of the time or place," Rule 56.01(c)(1), or that "certain matters not be inquired into, or that the scope of discovery be limited to certain matters." Rule 56.01(c)(4). This is the basis on which many of the federal cases have limited revelation of a party's statements until after a deposition has been taken. See Torres-Paulett, 157 F.R.D. 487; Smith, 39 F.R.D. 15.
For these reasons, we cannot be absolutely sure how our Supreme Court would react were the issue squarely put before it in a case in which defendant had sought a protective order under which it would be allowed to put plaintiff's version of events on record in a deposition before being required to produce plaintiff's statements to plaintiff. Even were our Supreme Court to recognize a right to delay production under Rule 56.01(e) in such a case where a protective order is requested, however, no protective order was sought here. Moreover, KCS had already deposed Mr. Giddens twice before it took the videotapes, and had already questioned him at two trials. None of the cited cases indicate that in such a circumstance the defendant is entitled to take yet a third deposition before producing a newly acquired statement. Mr. Giddens had already told his story four times. This is thus not a situation in which KCS needed to get his version of events on tape to get an unbiased statement of his injuries. It has his story on the record from numerous sources. Surely, if he lied at the upcoming trial, one of these prior sworn statements could have been used for impeachment purposes.
Moreover, one reason federal courts find it fair to allow delay in production of statements such as the videotape at issue here is because the plaintiff is aware that his or her statements may not be produced until after the deposition, and this helps ensure the plaintiff is careful not to exaggerate his or her injuries. In other words, a purpose of the rule is to ensure accuracy in testimony, rather than just to allow defendants a chance to impeach an unaware plaintiff by catching him or her in an exaggeration.
Here, by contrast, Mr. Giddens could not know that his testimony would be compared word-for-picture with a videotape, for, in light of Koehr, he had every reason to believe that any videotape would have been produced prior to his deposition. And, while that would certainly not excuse lying in a deposition, here Mr. Giddens' testimony for the most part constituted exaggerations of handicaps and playing down of abilities rather than direct untruths.
In these unusual circumstances, even assuming a protective order could be issued under Rule 56.01(e) in a case in which no deposition of the plaintiff had yet been taken, here we cannot find that the trial court abused its discretion in deciding, in reliance on Koehr , that the failure to produce the videotapes prior to his supplemental deposition gave Giddens an unfair disadvantage, in that it precluded him from adequately preparing for the deposition, thereby creating an opportunity for KCS to manipulate the questions and answers in the deposition to the activities surrounding the videotapes and thereby strengthen KCS' case. In this situation, given the purpose of the rule to promote truth rather than necessarily to provide opportunities for impeachment, we again cannot say that the trial court abused its discretion in holding that the identification of the videotapes the week after the deposition was unreasonable and so failed to meet the seasonable supplementation requirement of Rule 56.01(e).
Rule 61.01 grants the trial court broad authority to determine whether or how to sanction a party for failing to answer interrogatories or for providing incomplete or evasive answers to interrogatories by authorizing the trial court to "make such orders in regard to the failure as are just." Rule 61.01(b). These sanctions include, but are not limited to, excluding evidence at trial, striking all or parts of pleadings, dismissing the action or proceeding or any part thereof, or rendering default judgment against the disobedient party. Rule 61.01(b); Pully, 737 S.W.2d at 246 .
Here, KCS asserts that, even if it failed to seasonably supplement its interrogatory answers, the sanction the trial court imposed was unreasonable. As noted earlier, the court ruled that it would permit KCS to introduce the videotape surveillance of Mr. Giddens, but would not permit KCS to use the supplemental deposition of Mr. Giddens for any purpose at trial, including impeachment. We disagree that this ruling was an abuse of discretion. It is true that, in most cases, a court sanctions a party for untimely disclosure by excluding the late-disclosed matter, here, the videotape. See cases cited supra . But, were that done here, it would have permitted introduction of inaccurate testimony by Mr. Giddens at his supplemental deposition about his physical limitations, and denied KCS the opportunity to impeach him with the videotape. This would have misled the jury.
For these reasons, the trial court took the approach of excluding the prejudicial and arguably untruthful deposition. In so doing, the trial court may have excluded one possible method for KCS to impeach Mr. Giddens on cross-examination, but in keeping the videotape surveillance available for showing to the jury, the trial court permitted the jury to hear and see relevant evidence relating to the extent of Mr. Giddens' physical injuries. Moreover, it effectively put KCS and Mr. Giddens in the position they would have been in had the videotaped statement been produced before the deposition, since if he had been aware of the videotape Mr. Giddens presumably would have been more circumspect in his description of his physical disabilities.
The trial court's approach may not have been a perfect solution, for it did prevent the jury from knowing of Mr. Giddens' prior exaggerations about his injuries. But, there was no perfect resolution to this situation. And, the approach taken by the trial court had the benefit of ensuring that the jury was, at least, accurately informed about Mr. Giddens' injuries, for if Mr. Giddens misrepresented his physical condition at trial, KCS could have impeached him with the videotape or with his prior testimony from the first or second trial or first or second depositions. KCS did not impeach him with any testimony on this issue from the first or second trial or first or second depositions, so presumably Mr. Giddens testified consistently here with his testimony there.
For all of these reasons, we conclude that, in excluding the third deposition, the trial court did not abuse its discretion, but rather attempted to find a reasonable balance between permitting KCS to impeach Mr. Giddens and avoiding prejudice due to KCS' delay in supplementing its interrogatory responses. The court's exclusion of Mr. Giddens' supplemental deposition was therefore not so arbitrary and unreasonable as to shock the sense of justice or indicate a lack of careful consideration by the trial court. Point II is denied.
V. ADMISSION OF OSHA REGULATIONS
In its third point on appeal, KCS asserts the trial court erred in permitting Mr. Giddens' counsel to read and display to the jury certain regulations promulgated under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (OSHA). Plaintiff testified about KCS' compliance with OSHA regulations during his examination of John Edwin Blaylock, a division engineer, and during his examination of Larry Dobson, KCS' company representative. The OSHA regulations at issue concerned the type of chains used on the locomotive crane which lifted the railroad track, and the OSHA requirements that such chains be tested, inspected, and labeled for their appropriate use. KCS objected to the use of the OSHA regulations at trial.
Outside the presence of the jury, both parties argued to the judge regarding the admissibility of the OSHA regulations. Mr. Giddens' counsel asserted that OSHA regulations are admissible in FELA cases as evidence of negligence. He asserted that the OSHA regulations he was referring to pertained to the capacity of the chains used with the crane, and the requirement that the chains be inspected. He stated that he was offering the regulations to show the negligence of the railroad in this particular case in failing to conduct periodic inspections of the chains. Counsel for KCS objected to use of the OSHA regulations because KCS was unsure whether the regulations cited by Mr. Giddens' counsel were applicable to the use of the locomotive cranes in this instance. The court acknowledged KCS' continuing objection to Mr. Giddens' use of the regulations, but ultimately overruled the objections and admitted the OSHA regulations as exhibits.
Both witnesses testified they were not familiar with the OSHA regulations. During closing argument, Mr. Giddens' counsel referred to the OSHA regulations and argued KCS' duty to know applicable OSHA regulations, and to follow them, and that KCS' conduct failed to meet these OSHA regulations when it failed to test the chains, failed to inspect the chains, and failed to tag the chains with their weight capacity. KCS now asserts any reference to OSHA and any admission of the regulations into evidence was error.
Prior cases in Missouri and elsewhere have held that OSHA regulations offered as evidence of the standard of care owed by a party are competent evidence relevant to the question of negligence. See Schneider v. Union Elec. Co., 805 S.W.2d 222, 229 (Mo.App.W.D. 1991); Baugh v. Woodard, 808 F.2d 333 (4 th Cir. 1987); Ries v. National R.R. Passenger Corp., 960 F.2d 1156 (3d Cir. 1992); Koll v. Manatt's Transp. Co., 253 N.W.2d 265 (Iowa 1977). Moreover, such rules and regulations promulgated pursuant to federal statutes may be judicially noticed and considered as evidence. See Kawin v. Chrysler Corp., 636 S.W.2d 40, 44 (Mo. banc 1982). Our Supreme Court has held that there is no reason that a trial court cannot, in its discretion, permit pertinent rules of this type to be read into evidence or that a violation of the substance of pertinent rules should not be hypothesized as evidence which may support a jury finding of negligence. Id. ; Hough v. Rapidar, Inc., 298 S.W.2d 378, 383 (Mo.banc 1957).
KCS now argues that Mr. Giddens failed to prove the applicability of the OSHA regulations he cited to the use of the crane at issue here, and that it was other OSHA regulations adopted in 1989 rather than these 1984 OSHA regulations that governed. At trial, however, it merely argued generally that it did not believe the OSHA regulations were applicable to cranes, although it had not had time to determine this definitely, and its witnesses never suggested that other regulations governed or that they were familiar with any other governing regulations. To the contrary, they said they did not know whether any OSHA crane regulations applied, or, if so, what they were, but they presumed that the crane operator or someone in the safety department would know about the regulations. We will not convict the trial court of error in failing to exclude evidence based on arguments not made to it. In any event, we find that Mr. Giddens presented sufficient evidence of the relevance and applicability of the OSHA regulations at issue to allow their admission. Their weight and applicability then became a question of fact for the jury to resolve.
Finally, while KCS argues that Mr. Giddens used the OSHA regulations as a basis for arguing negligence per se, our review of the record reveals that the OSHA regulations where used only to support the argument that KCS breached a standard of care it owed to its employees by violating the regulations. For this purpose, the regulations were competent evidence which could be considered by the jury, along with other evidence bearing upon the question of KCS' negligence. See, e.g., Schneider, 805 S.W.2d at 229 . Negligence per se was neither argued nor submitted. Therefore, it was not error for the trial court to admit evidence of the OSHA regulations and their alleged violation by KCS.
As we find it was not error to admit the OSHA regulations, we also reject KCS argument that the trial court erred in failing to give the jury an instruction withdrawing from its consideration evidence of the regulations and of KCS' alleged violation of them. Point III is denied.
VI. EXCESSIVE JURY VERDICT
In it fourth point, KCS asserts the trial court erred in failing to find that the amount of the jury verdict was against the weight of the evidence in that: (1) the $1,520,000 award was so grossly excessive as to indicate bias, passion and prejudice on the part of the jury; (2) there was insufficient evidence to support the amount of the award; and (3) the amount of the award was so large as to show that the jury failed to follow the court's instruction that Plaintiff had a duty to mitigate damages.
As both parties recognize, our standard of review of a claim that the trial court erred in failing to find the verdict excessive is a narrow one:
Because the trial court can observe the effect of the trial proceedings upon the jury, it may infer the jury's bias or prejudice from the size of the verdict alone, even though in so doing the court must weigh the evidence. Reynolds v. Arnold, 443 S.W.2d 793, 801 (Mo. 1969). Appellate courts, on the other hand, may not weigh the evidence nor infer bias or prejudice from the size of the jury's award alone.
Smith v. Archbishop of St. Louis, 632 S.W.2d 516, 524 (Mo.App.E.D. 1982). Therefore, in order to obtain reversal based on excessiveness of the verdict, an appellant must show both that the verdict is excessive and that some event occurred at trial which incited the bias and prejudice of the jury. Id.
KCS has failed to meet this standard, for it has failed to identify any trial event that could have caused the bias and prejudice it claims occurred. It simply argues generally that the errors it alleges elsewhere in its brief are adequate to have incited such bias and prejudice. But, as Mr. Giddens notes, the errors alleged elsewhere in the brief by KCS do not claim the erroneous admission of inflammatory evidence or the occurrence of some improper and biasing jury argument. KCS alleges errors in submitting the case, in admitting OSHA instructions, in refusing to allow it to use certain impeaching evidence, and in refusing to allow it to direct the jury to consider certain collateral payments. We have found no merit to any of these allegations, and therefore they cannot serve as a predicate for a finding of excessiveness of the verdict. Even if one of these issues had been erroneously determined by the court below, however, the alleged errors are not inflammatory in nature and thus are not of the type which could have caused the jury to become so inflamed as to render a verdict based on bias and prejudice rather than on the evidence. For these reasons, KCS' argument that the verdict is excessive due to bias and prejudice must fail.
We also find that KCS has failed to meet the second prong of the excessiveness test by showing that the size of the verdict is so grossly excessive as to shock the conscience because it is glaringly unwarranted. Tax Increment Financing Comm'n of Kansas City v. Romine, 987 S.W.2d 484, 487 (Mo.App.W.D. 1999). A jury is in the best position to examine the facts in each case and to determine what constitutes reasonable compensation. Callahan v. Cardinal Glennon Hospital , 863 S.W.2d 852, 871-72 (Mo.banc 1993). Furthermore, the trial court has broad discretion in ordering remittitur. Its decision whether or not to reduce damages will not be disturbed on appeal absent an abuse of discretion. King v. Unidynamics Corp., 943 S.W.2d 262, 268 (Mo.App.E.D. 1997). For this reason, we will interfere with a jury's determination of damages only when the verdict is so grossly excessive that it shocks the conscience of the court and convinces the court that both the jury and the trial court abused their discretion. Fust v. Francois , 913 S.W.2d 38, 49 (Mo.App.E.D. 1995).
Here, as a result of the accident, Mr. Giddens sustained permanent injury to his left hand, limiting the dexterity and overall strength in his left arm. The injury was sufficiently severe that he was unable to work for one year after the injury and required repeated surgeries and consequent additional months off work while he recovered. A disability evaluation performed by Phillip Osborn, M.D., rated Mr. Giddens at a 30% disability of the left upper extremity, and an 18% disability of the body as a whole. At the time of trial, Mr. Giddens was 44 years old with a high school education. Mr. Giddens' entire work history consisted of heavy labor for the railroad. He was ultimately let go by the railroad because he was unable to continue employment in this line of work due to his injury. Dr. Samuel Bernstein, a rehabilitation specialist, testified that Mr. Giddens' future employment opportunities would be limited to areas of light and sedentary work requiring minimal use of the left hand. Dr. Bernstein offered the opinion that, even were Mr. Giddens able to find employment of this nature, it would most likely be an unskilled, minimum wage job, and that, because of Mr. Giddens' injury, it was reasonable to expect he would suffer periods of unemployment. Dr. Larry Grossman, a professor of economics, testified that the present value of Mr. Giddens' total lost earnings ranged from a high of $1,017,019, to a low of $541,836, depending on when Mr. Giddens would have retired and whether he would be able to find minimum wage employment.
While the jury award of $1,520,000 based on this evidence was generous, particularly if the jury found Mr. Giddens to be contributorily at fault to a substantial degree, we cannot say it was so grossly excessive, in light of the amount of his past and potential future lost wages and in light of his injuries, pain and suffering, that it shocks the conscience of the Court or causes us to believe that the jury award was based on passion and prejudice rather than on the evidence.
For all of these reasons, Point V is denied.
VII. INSTRUCTIONAL ERROR
In its next point, KCS objects to the manner in which the trial court directed the jury to record its damage determinations. As KCS notes, in most Missouri cases the jury is asked to determine a total amount of damages and to determine the percentage of fault of plaintiff and of defendant, and is told that the judge will reduce the total damages awarded by the percentage of fault attributed to plaintiff. See, e.g., MAI 37.03. But, the drafters of MAI determined that FELA requires the jury rather than the judge to diminish the total damages by the comparative fault of the plaintiff. 45 U.S.C.A. Sec. 53. For this reason, MAI 8.02 (1996 Revision), which governs submission of injury to an employee under FELA in Missouri, tells the jury that after it determines the sum of damages to which it believes plaintiff is entitled as a result of the defendant's conduct, "If you find plaintiff contributorily negligent as submitted in Instruction Number _____, then your award must be determined by diminishing plaintiff's total damages in proportion to the amount of negligence attributable to plaintiff." MAI 8.02.
The Committee Comment to MAI 8.02 states the reason for this variance in how comparative fault issues are submitted, as follows:
The submission of comparative fault in an F.E.L.A. case differs from the method in Chapter 37.00 for use in cases based on Missouri law. F.E.L.A. cases are governed by federal law. Under 45 U.S.C. Sec 53, the jury diminishes damages in proportion to the employee's negligence. Under Chapter 37.00, the jury determines total damages and plaintiff's percentage of fault but the judge makes the actual computation diminishing total damages to the amount recoverable by plaintiff.
MAI 8.02, Committee Comment (1996 Revision).
KCS objected below to instructing the jury in accordance with MAI 8.02 on the basis that this instruction "unconstitutionally discriminates against railroads by instructing in FELA cases differently than in other similar comparative fault cases." KCS never elaborated on this objection by explaining for the trial court how or why this alleged discrimination was unconstitutional, and the trial court overruled the objection. In this Court, KCS now argues that the instruction and verdict form are unconstitutional in that they treat railroads differently than they treat other negligence defendants, and this violates the Missouri and United States due process, equal protection and supremacy clauses.
As Mr. Giddens notes, this Court rejected a nearly identical argument that Missouri's manner of submitting FELA cases was unconstitutional in Roth v. Atchison, Topeka Sante Fe Ry. Co. , 912 S.W.2d 583 (Mo.App.W.D. 1995), on the basis that as an intermediate appellate court we have no authority to hold that the trial court erred in giving an applicable MAI instruction, since under Rule 70.02 the giving of an applicable MAI instruction is mandatory. Id. After we decided Roth , however, our Supreme Court held in State v. Carson , 941 S.W.2d 518 (Mo.banc 1997), that:
If an instruction following MAI-CR3d conflicts with the substantive law, any court should decline to follow MAI-CR3d or its Notes on Use . . . To the extent holding otherwise, the cases listed in the appendix are overruled.
Id. at 520. We applied Carson to a claim in a civil case that an MAI instruction was unconstitutional in Letz v. Turbomeca Engine Corp. , 975 S.W.2d 155, 167 (Mo.App.W.D. en banc 1997), stating:
Although an applicable MAI must be given by a trial court to the exclusion of all others . . . an exception is that a court is not required to give an MAI instruction that violates the United States or Missouri Constitutions. . . .
Id. at 167. Letz made it clear, however, that a party wishing to argue that an applicable MAI violates the Missouri or United States Constitutions must preserve that objection at trial. Because the defendants in Letz failed to preserve their constitutional objection below, we declined to address it on appeal. Id.
The approach we took in Letz governs here. We find that KCS has failed to preserve its claim that the manner of submitting FELA cases violates the Missouri constitution. It nowhere even cites what provisions of the Missouri constitution are allegedly violated (Missouri, of course, has no supremacy clause), much less does it argue how they are violated. It limits the argument portion of its brief to a discussion of the alleged violation of federal law and the federal constitution. We accordingly do not further address its claims of violation of the Missouri Constitution. See Beatty v. State Tax Comm'n, 912 S.W.2d 492 (Mo. banc 1995) (where no authority is cited in support of proposition of a constitutional violation, the point is considered abandoned) ; Leahy v. Leahy, 858 S.W.2d 221 (Mo.banc 1993) (failure to assert how constitutional rights were violated resulted in no consideration by the court).
KCS does allege in its argument in this Court that due process is violated because the parties and the appellate courts have no means of determining whether the jury correctly made its mathematical computations in diminishing total damages by the amount of plaintiff's negligence, or whether it properly reduced total damages by plaintiff's fault in the first instance, and therefore denies meaningful judicial review. This is not the same argument which KCS made to the trial court below, however. There, it argued not that the instruction was vague or ambiguous, or denied the parties meaningful appellate review, but rather that the instruction unconstitutionally discriminated between FELA and non-FELA cases. A party may not change or broaden its constitutional objections to jury instructions on appeal in this manner. To the contrary, in order to preserve claims of instructional error, counsel is required to make specific objections at trial, and when an alleged instructional error on appeal differs from the objections made to the trial court, the error may not be reviewed on appeal. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 140 (Mo.App.E.D. 1999). Furthermore, in order for the issue of constitutional validity to be preserved for review, it must be raised at the first opportunity. Gleitz v. St. John's Mercy Medical Center, 927 S.W.2d 506, 508 (Mo.App.E.D. 1996). This portion of its argument is also not preserved.
The bulk of KCS' argument in this Court on the issue of submission of damages asserts that the distinction between how the jury records its damage verdict in FELA and non-FELA cases constitutes unconstitutional "discrimination" against FELA cases. It never explains in the argument portions of its brief how this alleged discrimination rises to a constitutional level, or what provisions of the constitution KCS alleges it violates and how it does so, however. In its Point Relied On, KCS suggests a violation of the equal protection clause, but it never refers to that clause in its argument nor does it cite any cases supporting an equal protection claim. That argument is therefore deemed abandoned. See State v. Tiger, 972 S.W.2d 385 (Mo.App.W.D. 1998) (constitutional question waived unless the party designates specifically the constitutional provision claimed to have been violated and states facts showing the violation); Coleman v. Gilyard, 969 S.W.2d 271, 274 (Mo.App.W.D. 1998); Luft v. Schoenhoff , 935 S.W.2d 685, 687 (Mo.App.E.D. 1996) (point not developed in argument section of brief is deemed abandoned).
While KCS also fails to directly refer to the supremacy clause in the argument section of its brief, it does support its discrimination argument by citing to a number of federal cases that have struck down state laws discriminating against the bringing of FELA actions, see, e.g., New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Mondou v. New York New Haven R.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1911); Dice v. Akron, Canton Youngstown R.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). It notes these cases do not allow a state to "discriminate disadvantageously against actions for negligence under the Federal Act as compared with local causes of action in negligence." While most of these cases do not address the supremacy clause issue, Mondou and McKennet v. St. Louis S.F. Ry. Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227 (1934), cite that clause as a basis for striking down application of state law in FELA cases regarding jurisdictional issues. Mondou, 223 U.S. at 57-9.
Here, however, KCS has not identified any way in which Missouri is discriminating disadvantageously against actions for negligence under FELA. It is simply objecting to how Missouri allows the jury to record its damage verdict in such cases, not to law governing the standards under which such damages may be awarded or the amount of damages which may be awarded. KCS cites no authority for the proposition that it is disadvantageous to FELA actions if jury instructions are not identical in FELA and non-FELA cases, and we find none. Moreover, none of these cases address the issue now raised by KCS, that it is unconstitutional to require a jury to break out its damages and comparative fault determination separately in FELA cases than in non-FELA cases. While we concur in its argument that the drafters of MAI could have complied with FELA and yet had the jury make more specific findings on negligence and damages, we do not find the method chosen by MAI either irrational or unconstitutional. Accordingly, we reject KCS' constitutional arguments on this issue.
VIII. EVIDENCE OF PENSION
In its sixth point on appeal, KCS asserts the trial court erred in refusing to admit evidence of Mr. Giddens' Railroad Retirement Disability Benefits. KCS recognizes that, as a general rule, evidence of a plaintiff's receipt of disability pension payments under the Railroad Retirement Act is inadmissible at trial under the "collateral source doctrine" because its probative value is outweighed by its potential prejudicial effect on the jury. Eichel v. New York Cent. R.R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). The collateral source rule prevents a tortfeasor from reducing its liability to an injured person by proving that the plaintiff received payments for the loss from a collateral source, independent of the wrongdoer. Ford v. Gordon, 990 S.W.2d 83, 85 (Mo.App.W.D. 1999); Duckett v. Troester, 996 S.W.2d 641, 647 (Mo.App.W.D. 1999). This doctrine is predicated on the theory that a tortfeasor has no right to benefit from monies received by the injured person from sources unconnected with the defendant. Shelter Mut. Ins. Co. v. Ganaway, 694 S.W.2d 521, 523 (Mo.App.W.D. 1985). KCS argues, however, that the rationale behind exclusion of collateral source payments does not apply to Mr. Giddens' pension benefits, since they are funded, at least in part, by the railroads themselves. But, as KCS recognizes, our Supreme Court has adopted the Eichel rule and we are not at liberty to vary from it. See Carter v. Carter, 970 S.W.2d 344, 345 (Mo.App.S.D. 1998) (Court of Appeals is constitutionally bound to follow the decisions of the Supreme Court of Missouri); MO. CONST., art V, sec. 2 (1945).
KCS also argues that an exception to the collateral source rule has been recognized where the plaintiff injects his financial condition into a case, citing Moore v. Missouri Pacific R. Co., 825 S.W.2d 839 (Mo.banc 1992), and Mateer v. Union Pacific Systems, 873 S.W.2d 239 (Mo.App. 1993). In Moore , the plaintiff injected his financial condition into the proceedings in such a way as to imply financial distress, so the railroad was permitted to rebut this evidence by showing plaintiff had financial assistance available from disability benefits.
KCS argues that the Moore exception applies here, because Mr. Giddens put his financial condition in issue when his rehabilitation expert testified that he was well-motivated and wanted to return to work. To counter this argument, KCS solicited testimony from several KCS employees that they observed Mr. Giddens to have no physical problems after his injury which impaired his work performance. They sought to imply through this evidence that Mr. Giddens returned to work only to accumulate enough months of service with the railroad so as to qualify for disability payments under the railroad pension plan, and that he left not because he was unable to work, but because he had served long enough for his benefits to fully vest. To reinforce this evidence, KCS then sought to introduce evidence that Mr. Giddens' monthly disability pension benefit decreases a dollar for every dollar he earns over $400 in monthly income. Therefore, KCS wanted to argue, once he began receiving these pension benefits, he had no motivation to return to work.
KCS is precluded from raising this issue by the law of the case doctrine. Under that doctrine, if an appellate court determines Issue A on appeal but remands for retrial of other issues, the court's judgment on Issue A becomes the law of the case in subsequent proceedings in the same cause, precluding reexamination of that issue on remand. See Bellon Wrecking Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 546 (Mo.App.E.D. 1998). This doctrine applies here, for the issue whether the testimony of the rehabilitation specialist as to Mr. Giddens' motivation to work opened the door for introduction of evidence of Mr. Giddens' pension benefits was determined unfavorably to KCS by this Court in its opinion on KCS' first appeal, reported at Giddens v. Kansas City Southern Ry. Co., 937 S.W.2d 300 (Mo.App. 1996). In that decision, we held that here, unlike in Moore , Mr. Giddens' did not improperly use the specialist to suggest financial distress for the purpose of appealing for jury sympathy or to increase the jury's award of damages, and that, accordingly, evidence of collateral source benefits could not be introduced. Id. at 305. KCS is not free to relitigate this issue now. Point VI is denied.
For all of the reasons stated above, the judgment of the trial court is affirmed.
Judge Robert G. Ulrich and Judge James M. Smart, Jr. concur.