*1 per the end of 1991 her with in conversation was a shareholder KPC after the KA- Kupper merger. Mr. she would not on is appeal be share- KPC record plaintiff holder in the new devoid corporation why and at the of reason dis- lawsuit, in ofMay latest 1994 when missed the first and we do not find the certificate dismissal, suggests, as merger merger of the KA her KPC was KPC of admission she was not a shareholder Regardless triggered issued. of what date limitations, of KPC. argues statute KPC plaintiffs five-year period to file a cause of that, not We do find based on a matter 1, 2001, elapsed by action had March law, plaintiffs by claim was barred date this cause action was filed. However, statute of or limitations laches. we pro- reverse remand for further
In promulgating in arguments sup- its ceedings genuine because we find a issue port plaintiffs of a bar claim based on regarding material fact was raised laches, the statute of limitations KPC plaintiff in whether shareholder KPC. neglects plaintiffs to consider that cause of If plaintiff is determined to be sharehold- action addresses the merger, KPC-GRA er we find as a matter of law that her Plaintiff, not the merger. KA-KPC based duties under section in 351.455were effect the merger plan, on believed her shares of waived due to KPC’s failure to comply KA stock were converted shares KPC with section 351.420. through part. stock no on action her If plaintiffs interpretation of merger foregoing, Based we reverse and correct, plan is question which is a of fact proceedings remand for further consistent above, as addressed then plaintiff became opinion. with this shareholder KPC and not would CRANE, KATHIANNE KNAUP J. and expected to file a cause action if she was SIMON, PAUL J. J. Sr. concur. satisfied her status as a shareholder in KPC. It was not until after the KPC- merger that plaintiff
GRA decided file argues suit. KPC that when Mr.
Kupper plaintiff told longer she would no shareholder,
be a plaintiffs rights as a shareholder disputed were and the statute WILLIAMS, Respondent, Madonna J. was triggered. limitations doWe single find that a conversation Mr. by Kup- DAUS, M.D., Appellant. Arthur S. per plaintiff more, anything without No. 25065. light especially merger plan, was an “unequivocal gave plaintiff act” that Appeals, Missouri Court of right notice that her to her stock was in District, Southern dispute. En Banc. KPC points by also to the lawsuit filed 30, July 2003. plaintiff in plaintiff 1995 as evidence that Rehearing Motion for or Transfer Denied was aware of the KA-KPC merger but did Aug. 2003. bring suit at issue until March Application for Transfer Denied brought by plaintiff 2001. The lawsuit Sept. 1995,which voluntarily was later dismissed plaintiff, sought rights assert as brought a shareholder. The lawsuit supports plaintiffs argument that she *6 Stitt, Gregory Forney,
Charles H. P. Shurin, City, Shaffer Lombardo Kansas for appellant. Greis, Pickett,
William H. David T. Wil- Pickett, P.C., City, liam H. Kansas respondent. BARNEY,
ROBERT S. Judge. (“Appellant”) Dr. Arthur S. Daus ap- peals a jury against from him verdict negligence based on medical related two *7 surgeries performed on Madonna J. (“Respondent”). Williams as- Appellant serts five of court points trial error. The essentially first points three claim Re- spondent failed to amake submissible case on of categories damages some of IV, Respondent. awarded to In Ap- Point pellant contends the trial court erred in denying his motion for after a mistrial juror acquired and related to extra- judicial prejudiced Appel- evidence which V, Lastly, lant. Appellant Point con- tends that the trial court erred in submit- ting verdict director failed to submit necessary the ultimate facts for a verdict Respondent. favor of Respondent The record shows that had trouble, history including bulg- of back ing spine. disk in the lumbar In June of 1987, prior following surgeries per- of back to and complained she discomfort Unruh, Gregory and with Dr. who by Appellant. visited formed her diagnosed later with lumbar strain. provided an expert testimony Additional of January Between her initial visit and im- projection actuarial of economic 1991, Dr. Respondent visited Unruh sever- pact of her condition after her resulting times var- regarding complaints al more of surgeries, estimates Re- together with in the injuries ious to her back and neck and spondent’s lost income lost household course of various household activities. services, upon present her medical based In Respondent March of com- inability condition and to return to work. days back plained severe several against Ap- a verdict The returned by lifting at spasms employ- caused her Respondent and mil- pellant, awarded $1 perform Dr. Unruh ment. directed her $200,000 damages: past lion in total for work, only following but the light duties $200,000 damages; economic and medical complained Respondent again month once $200,000 past damages; non-economic injury of a work-related back which left $200,000 for damages; for future medical Dr. get her unable out of bed. Unruh damages; economic future non-medical stay her to off work for six to directed $200,000for dam- future non-economic weeks, eight by May Respon- but of 1991 ages. judgment trial court entered complained pain dent that the back contin- award, Ap- consistent and denied worsen, had her progressed ued down judgment pellant’s motions for notwith- sleep left and that she unable to thigh, (“JNOV”), remittitur, standing the verdict had not improved or walk. This condition and a new trial. has by August Respondent I, In trial Point contends the not returned to work since. granted regard- have should JNOV In August Appellant performed ing be- damages economic and medical surgery Respondent his first for nerve Respondent cause what failed establish compression. spinal root A cerebral fluid portion injuries of her were attributed subsequently leak was discovered which Appellant’s Appellant argues conduct. required a second correct the surgery to Respondent pre-existing had Respon- leak and additional bone. remove condition, and evi- debilitating developed cyst dent after the sur- also with a dence did not establish reasonable pain. gery that caused additional certainty portion degree of medical what experience continued *8 injuries from the sur- present her resulted pain and considerable in her persistent her gery portion and what was due to legs surgeries, and since the two and back condition. prior eventually brought against Appellant suit negligence. for medical A trial court should sustain notwithstanding the judgment motion for trial, At Respondent presented testimo- “only evidence and verdict when all ny regarding from medical her experts to be drawn the reasonable inferences history two back problems, of back strong against plain 1991, therefrom are so surgeries place opinions that took for tiffs that there is no room reason case for root surgery on whether nerve able minds to differ.” Poloski v. Wal- compression necessary, and evidence was (Mo. Stores, Inc., 445, 448 Mart 68 S.W.3d relating Respondent’s post-operative motion, a this App.2001). her To survive regarding She also testified condition. have made a submissible experienced plaintiff back troubles both must pain and case, which plaintiff occurs when the has a submissible case and it was error to set presented every substantial for evidence judgment.” aside the Brooks v. SSM fact liability. essential Id. at 448. (Mo. Care, 686, Health 73 S.W.3d 692-93 which, ‘“Substantial evidence is that App.2002). true, issues, probative upon has force certainty “‘Absolute is not re and from which the trier can of facts rea quired proving a causal connection be sonably (quoting decide the case.’” Id. negligent tween a defendant’s actions and Inc., Love v. Sys., Hardee’s Food Butts, plaintiffs injury.’” 73 S.W.3d 739, 742 (Mo.App.2000)). ap S.W.3d On 339). 837 (quoting Coggins, 37 S.W.3d at peal, all light we view evidence in the most A submissible case is made if substantial favorable to the prevailing party and disre presented inju evidence is shows gard evidence and inferences that conflict ry is a natural and probable consequence Express the verdict. Butts v. Person negligence. defendant’s Id. A Services, 825, nel 835 (Mo.App. may also infer causation from the circum 2002). only canWe reverse trial stances of the case. Id. If the evidence appeal court’s decision on when there is a “ logical leads to the conclusion that ‘if complete probative absence of sup facts to “ things certain had properly been done cer port the verdict. Id. ‘A judgment not occurred, tain results would not have and action,
withstanding the verdict is a drastic occur, such results did the evidence of only be granted should when rea ” causation is sufficient.’ Par (quoting Id. persons sonable could not differ on a cor ” Med, Inc., 694, ris v. Uni disposition rect (quoting case.’ Id. “A (Mo.App.1993)). causal connection is Coggins Co., v. Laclede Gas often showing established facts cir (Mo.App.2000)). ‘fairly suggest’ negli cumstances which ‘The elements of a claim for medical gence proximate as the in light cause 1) malpractice are: an act or omission ordinary circumstances.” Id. Absent com by the defendant that failed to meet the pelling evidence which establishes the ab 2)
requisite
care,
medical standard of
causation,
sence of
question
the causation
negligent performance of
that act
Butts,
jury.
is
still work? physi- Contrary findings other people point A: can heal to the Some diagnosed Respondent cians with which work, can back to but they go where strain, diagnosed lumbosacral chronic, nagging still have they then compression with nerve root through. they work problems, which surgery. From what and recommended record, from the Dr. Daus glean we can that the course Dr. Watts added best L4, L5 and performed laminectomy it for strain is to let action a lumbosacral SI, portions of bone from which removed heal with time: and also foraminoto- Respondent’s spine, Q: How strains or [lumbosacral do SI, cutting required on L5 and which my heal? sprains] joints points facet of the into various any They just A: heal with time like removing portions of the nerve spine and just body for the bruise ... takes time L4, L5, and SI. roots heal, would take. just like a braise However, testimony showed that expert sig- of the classic “indications” —i.e. none way that the best to allow know [W]e compres- nals which revealed nerve root just them things to heal is rest these medi- present Respondent’s sion—were let with them. and Mother Nature deal records, surgery and therefore the cal pretty good Nature’s at that. Mother by Appellant was not neces- performed sary. opinion: a similar expressed Dr. Abrams are well- Dr. that “there Watts testified sprain, does one Q: you When have surgery when indications established area? sprained over time in the heal He compression.” root ex- there is nerve Generally speaking, A: [Dr. Abrams]: may indications be exhibited plained these yes. function, radi- muscle abnormalities injuries affirmed that such
Dr. Unrah also pain neuropathy. and radiculopathy cular disabling lumbosa- generally from recover compression may Additionally, nerve root cral strains: implicated by ruptured evidence of a disc, herniation, en- time, neuroforaminal Doctor, get disc people over
Q: croachment, or stenosis. spinal canal dis- temporarily lumbosacral strains not? normally, they do able them that, the sur- prior shows record *10 of these exhibited none gery, Respondent As rule. general A: a classic indications could signify Respondent’s which and further contributed root compression. nerve Dr. Watts stated post-operative had pain. Respondent also that, reviewing Respondent’s after medical scarring surgery. from the first Dr. Watts records, surgery should per- not have been explained Dr. that a and Lennard second on Dr. also Respondent. formed Watts on surgery performed Respondent, that Appellant diagnosed Respon- noted spinal during which repaired dent with a “foraminal on stenosis L5-S1 leak, cyst, addi- fluid removed the made pre-operation diagnosis, the left” a but portion cuts remove a greater tional acknowledged no Dr. Watts that clinical or lamina, L3 and extended the laminec- imaging supported diagno- indications that foraminotomy at L4 L5 and the tomy and sis and that the radiologist did not indicate L4, L5, and SI. report, foraminal stenosis in did his nor Dr. surgeries Watts added that the also x-rays or films of Respondent’s spinal headaches, led to more in in- an increase compression. area indicate nerve root Dr. stability more back pain, and chronic and acknowledged Abrams Dr. that Unruh and symptoms right additional on her side not physicians three other diagnosed Respon- previously present. opined Dr. that Watts having only strain, dent as a and lumbar as a result “in con- Respondent was worse no made notation of an neurolog- abnormal post-operatively dition than she was before ical finding. acknowledged Dr. Watts first operation” and also that “as a that, absent compression indications of surgery, result of this im- she was not patient’s from history, physical, imag- proved.” Dr. further testified that Watts ing, “you certainly don’t think oper- about pain back Respondent’s worsened and be- ating.” He also that testified these after surgeries. came intractable Dr. circumstances “it was inappropriate to of- similarly opined, Unruh rea- upon based surgery fer [Respondent], let alone do degree of certainty sonable medical it” and that the recommendation for sur- he probability, that felt inwas gery and the decision to perform that sur- a worse overall condition than before gery was below the standard of care. surgery. Expert testimony also showed that
surgeries Respondent’s caused condition testified, Dr. Abrams to a reasonable worsen with a resulting increase in pain. degree certainty, Respon- of medical that testified, Dr. Watts to a degree reasonable pain” dent had low leg “residual back certainty, medical a spinal fluid pains due surgery. Dr. Abrams leak occurred surgery, after the first which also testified that Respondent’s condition necessitated a second surgery corrective each “I surgery worsened after and that Dr. repair the leak. Abrams and Dr. Len- think that stamps surgical inter- acknowledged nard spinal fluid vention as precipitating cause of her likely leak from resulted the first surgical pain.” acknowledged Dr. Adams but procedure, during which appar- the dura surgery, Respondent for the would ently was torn or patched. incised and not any scarring have and fibrosis. leak, result Respondent expe- As a of that witness, Finally, Appellant’s expert own spinal rienced headaches increased Lennard, following Dr. was asked the pain. that, Dr. Abrams also testified Respondent’s questions by attorney during reasonable degree certainty, medical cross-examination: cyst developed body over the S2 vertebral point near during Q: surgery of incision the first And con- certainly most surgery, now, pressured spinal which disability, nerves it? tributed didn’t *11 re- rating, Respondent presented
A: It also evidence impairment did affect garding and medical costs the economic yes. post-operative with her condi- associated mean, Q: usually you I lumbar strains Respon- testified that tion. Dr. Abrams now, you? percent, do go don’t require quarterly dent’s condition would A: No. examinations, work, pain lab ongoing fact, you if Q: you’re lucky of Dr. esti- prescriptions. Matter Adams medication five, that this could about say isn’t that true? mated treatment cost per examination and a mini- quarterly $100 correct, yes. A: That’s per pain of in medi- mum month $300 cation. in Q: of all sur- problems Because Ward, economist, Dr. also John true, that gery, isn’t Doctor? provided projections Respon actuarial surgical proce-
A: It’s because of the loss, dent’s total economic based done, dure, yes. what was just prior to per hour earned $4.05 injury and the estimated value testimony submissible evi- provides Such longer household services she could no upon reasonably which a could dence testified, to reason perform. Dr. Ward Appellant’s conclude that conduct caused certainty, degree of economic able suf- Respondent’s injuries and that she much Respondent’s losses could reach as impairment physical fered discernible as $355,382. Appellant as While contends of Appellant’s result conduct. Dr. calculations did not ac Ward’s Respon- The record also evidences that condition, pre-existing count for her and medical dam- dent suffered economic rely upon testimony medical could ages post-operative due to her worsened by Dr. Lennard and and evidence offered condition. experts appro what an other determine be at priate percentage damages could Respon- Expert testimony showed that Furthermore, surgeries. tributed to the capable of longer continuing was no dent Appellant contends Dr. Ward’s even as employment. Dr. Unruh her former questionable, estimates were somewhat on a de- acknowledged, based reasonable certainty predicting future “absolute probability, gree certainty of medical damages required.” Long is not Mis Respondent disabled permanently was Center, Delta Medical souri surgery after the and that she will never (Mo.App.2000). doing prior what she did capable surgery disability. first to her Dr. due also that Re contends explained Respondent Unruh that while spondent expert failed testimo present functioning, once but still she ny degree certainty” was disabled “to reasonable pain.1 now disabled due intractable which established that his conduct caused Respondent dam Respondent’s Dr. Abrams testified that economic and medical longer capable functioning any the true mea ages no or which established damages resulting from his con meaningful capacity living, to make a other sure of disagree. duct. We extremely sedentary than activities. community, from the more debil- active
1. The indicates distinguished disability disability by a chronic itating experienced patient caused who strain, generally permitted which Iumosacral pain. intractable remained in working remaining patients to continue
363 discussed, previously through As the form that now appeal. he demands on 125; out her questioning expert witnesses See 891 Bynote, Seabaugh S.W.2d opinions Farms, on “a Respondent Inc., 202, solicited based v. 816 Milde S.W.2d degree certainty.” (Mo. reasonable 1991);3 of medical 210 Hemeyer banc see also Respondent inquired also if Wilson, 574, Dr. Ward’s v. 59 (Mo.App. S.W.3d 581 projection actuarial on the economic losses 2001); County Graham v. Medical degree was based on reasonable eco (Mo. Co., 145, 24 149 Equipment certainty. nomic further that We note Moreover, App.2000). Appellant “failed precise by “the used wit expert words an to question [Respondent’s experts’] de do necessarily ness not his ‘render testimo cross-examination, gree certainty on ny inadmissible he intended to express forum for proper raising the doubts ” opinion judgment.’ Bynote his or Na v. brings it now on up appeal.” Bynote, Markets, Inc., Super tional 891 S.W.2d Weber, 125; S.W.2d at see v. Miller 1995) (Mo. 117, 125 banc (quoting Lineber 389, (Mo.App.1985). 391-92 Ac Shull, ry 132, (Mo.App. v. 695 S.W.2d must find cordingly, Appellant we 1985)). record, In our review of the we waived this contention. Respondent’s expert determine that wit cannot that the trial We find court erred express nesses respective intended their denying request Appellant’s for JNOV. opinions judgments regarding Re and/or Respondent presented sufficient evidence condition, spondent’s physical prior both that Appellant’s conduct was the cause surgeries, despite after her fact injuries her and the resulting economic they always assertedly did use the damages and medical attributable to that talismanic phrase, within a de “reasonable conduct. Point I is denied. Id.; gree certainty.” medical see also II, In Point contends the trial (Mo. 351, Craft, Stevens v. court erred when submitted an instruc- App.1997); Kilmer v. Browning, 806 tion and verdict which director defined (Mo.App.1991) 81-82 recovery Respondent’s allowed lost Furthermore, Appellant points to earnings, earnings capacity, lost and future no instance at trial presented where he expenses. medical Appellant argues that specific objection Respondent’s failure present failed to submissible to use the phrase “within a reasonable damages evidence that these were caused degree certainty” of medical when solicit by conduct. We Appellant’s disagree. ing testimony from expert medical By witness. failing specific to offer a ob Every instruction must be sup jection during evidence, at trial or deposition2, Ap by “every ported sufficient pellant deprived Respondent of op element of a verdict sup director must be portunity rephrase questions in ported substantial evidence.” Vintila speculation 2. The objection record indicates that Dr. Unruh and Dr. waived at trial. The trial, present Abrams were and that explained objection Court had portions deposition testimony of their were question during or answer been made played videotape. read or deposition, plaintiff's counsel would have opportunity rephrase, clarify, had the or Regarding deposition testimony, the Su lay question. better foundation for Sea preme Seabaugh ruled Court that a defen (Mo. 1991). baugh, 816 S.W.2d banc object expert testimony dant who failed to analogous pres We find that situation to that plaintiff’s injuries likely” were or "more ently before us. “probable” to instead "a worsen of within degree certainty” reasonable of medical Drassen, his regarding overheard comments (Mo.App. “ 2001). ‘Appellate prior malpractice review the sufficien insurance and medical *13 of support giving him, of evidence to the cy the and then related that against claims light in most the instruction is made the jurors during to information other deliber- submission, in to the favorable its argues that informa- Appellant ation. this by any theory, its supportable struction is of negligence tion concerned the issue de- ” Id. Hol proper.’ (quoting is submission prejudiced Appellant trial and veloped at (Mo. Blevins, 558, v. 927 S.W.2d lis 564 medically that it he was in- in indicated regarding Our determination App.1996)). competent. to exists sub whether sufficient evidence question jury legal mit the issue to the is rule in general “The Missouri judicial Id. and not a matter of discretion. juror’s testimony jury about mis is that a allegedly affecting conduct deliberations length in previously As set out at may impeach jury’s to the that, be used- I, viewed in the Point we find when Stone, 1, 4 v. 66 of verdict.” Travis S.W.3d light most favorable to the submission “precedents director, (Mo. 2002). sub- the instruction and verdict banc regarding the is missible evidence existed rule legion recite the state are which Respondent’s eco of causation and sues testimony juror is ‘the affidavit or Therefore, damages. nomic and medical in is not to be received inadmissible and its court did not err in decision the the impeaching purpose evidence the and verdict director submit an instruction juror jury’ of a of which was verdict II denied. that claim. Point based on 926 Neighbors Wolfson, member.” v. III, 35, (Mo.App.1996) (quoting In contends that the S.W.2d 37 Point 713, in Dr. admitting John 717 Smugala trial erred v. 404 S.W.2d Campana, regarding Respondent’s testimony (Mo.1966)). Ward’s Generally, “jurors may only capacity earnings earnings lost and lost can through their verdict ... speak [and] present sub- because failed or misconduct speak any partiality Appellant caused missible evidence that jury room nor of the transpired in the loss. operated pro induced motives which or Taylor, v. 917 the verdict.” State duce that this claim of error relates
We note
222,
ju
(Mo.App.1996). “[A]
as
S.W.2d
225
substantially the same issues
those
may
testimony or affidavit
not be
I
II. As discussed
ror’s
presented
Points
that submissible
points,
impeach
in those
we find
the verdict as miscon
used
support
on that issue to
evidence existed
or outside the
room
duct
inside
damages
Ap-
attributable to
finding
is dis
or after
whether before
Therefore,
testimony
Dr. Ward’s
pellant.
Meyer,
Stotts v.
822 S.W.2d
charged.”
by the trial court.
properly
admitted
887,
“firmly
(Mo.App.1991). This
888-89
III
Point
is denied.
as]
is [known
rule Missouri
entrenched
Kemp Burlington
v.
rule.”
appeal, Appellant
In
point
his fourth
Mansfield
(Mo.
Co.,
10, 13
R.R.
Northern
in not
that the trial court erred
contends
is true
App.1996).
whether
“[T]his
new trial based on
granting his motion for
in or
from the
juror concurred
dissented
juror
acquir-
misconduct of
purported
Hosp. and
Reed v. Sale Mem.
verdict.”
extra-judicial
relevant to
ing
evidence
819,
Clinic,
(Mo.App.1987);
during
posits that
particular,
case.
In
he
Wingate v. Lester E. Cox Med.
see also
a juror
Appel-
of trial
visited
the course
(Mo.
1993);
Ctr.,
banc
either solicited
place
employment,
lant’s
Cross,
Smugala,
together
(Mo.App.
Stotts,
1947).
cases cited in
‘No one is competent
a ver-
(whether
mony regarding
misconduct
as to
dict
matters inherent
the ver-
room)
or
the jury
occurred inside
outside
dict, such
as that
did not un-
verdict,
com
impeach
party
is to
derstand the law as contained in the
plaining of
must make
instructions,
court’s
or that he voted a
objection
timely
proper
else
*14
way
misconception
certain
due to a
of
Travis,
4;
is
66
at
issue waived.”
S.W.3d
evidence,
the
or misunderstood
the
see
37;
Neighbors,
also
926 S.W.2d at
witness,
statements of a
mat-
or other
Thorn,
497;
Edley
accord
v.
201
at
S.W.2d
“resting
juror’s
ters
alone
in the
’
O'Brien,
898,
(Mo.App.
918
906
S.W.2d
breast.”
(citation
1996)
omitted).
(“A juror’s testi
Co.,
McCormack v. Capital Elec. Const.
35
mony or
is
im
affidavit
inadmissible to
410,
S.W.3d
414 (Mo.App.2000) (quoting
However,
peach a
no objection
verdict.
Dillon,
Maxam v.
258,
674
260
S.W.2d
was made to the affidavit tendered
(Mo.App.1984)); see also William Carver
parties
object
trial court. When
fail to
Co.,
Bros., Inc.,
v. Poos
684,
778 S.W.2d
an affidavit submitted
admissibility
(Mo.App.1989).
688
considered.”);
purpose, may
for that
be
v.
Fletcher/Mayo/Associates,
Shearin
recognize
Courts
687
exception to
rule,
198,
Hale v.
general
however,
(Mo.App.1984);
and
a S.W.2d
203
allow
Co.,
Family
American
Mut.
Ins.
party to attack a
927
ground
verdict on the
522,
(“Affi
528,
1
juror
(Mo.App.1996)
that
S.W.2d
n.
misconduct occurred outside the
courtroom,
testimony
jurors
and
general
davits
are
juror
such as when
gathers
ly
impeach
inadmissible
verdict.
evidence extraneous to the trial. See Tra
vis,
inadmissibility
may,
of such
how
evidence
In motion
new
based —was
misconduct,
hearing
from consid
precluded
court
juror
of
the
upon allegations
ering Appellant’s
jury
claim of
misconduct.
normally
upon
contesting
burden
the
is
Thorn,
37;
Neighbors,
S.W.2d at
party to
the misconduct and that the See
926
show
(“a
Travis,
cannot be
prejudicial.
Id.; Baumle, 420 at S.W.2d 347. Stephens, 88 do that in State v. We note trial, the Western (Mo.App.2002), 876 Appel
In motion for new S.W.3d his Court, context of of this of one of the District presented lant affidavit trial, Travis mean testimony interpreted jurors, with the four criminal together occurring out evidence misconduct jurors, juror evi that reciting gathered that into room could be received then related side dence extraneous to trial and 792, (Mo.App.1978); Zweifel, 795 Hwy. 570 S.W.2d ex State Comm’n v. 4. See also State rel. Leibovich, 373, (Mo. Lock, 46, (Mo.App.1982); 49-50 S.W.2d 374 v. 569 Gantz 584, Lazarus, Hilleman, 589 Bailey Norwood v. App.1978); v. S.W.2d Suschank, (Mo.App.1982); v. State (Mo.App.1978). (Mo.App.1979); v. State evidence, is, nevertheless, new despite timely proper sup- ob- tion for trial jection. Id. Stephens at 882-83. reasoned ported the record.
that Travis
“did
intend to cut down the
in
We determine in the first
just
it
Id.
exception
recognized,”
had
present any
stance that
failed to
previously
it had
when
set out that
recognizable
juror
and relevant evidence of
party complaining
testimony
“the
hearsay
misconduct
of the
nature
because
timely
objection
must make a
proper
jurors’ testimony
of the
See
presented.
Travis,
waived,”
or else the issue is
Rodriguez
Corp.,
Suzuki Motor
4;
Stephens,
369
Stores,
Inc.,
be
in the Smith
967
considered “matters inherent
v. Wal-Mart
198,
(Mo.App.1998)
privileged.
(quoting
verdict”
be
None of these
S.W.2d
208
Gillespie,
be
Miller v.
853
344
impeach
statements could
used to
S.W.2d
Furthermore,
trial
objection
(Mo.App.1993)).
“[a]
verdict when an
intro
their
ruling
court’s
on a motion for new trial
duction was
properly lodged, as it was
Stotts,
to set forth its reasons for the
889;
required
this case. See
822
at
S.W.2d
process
conclusion reached or the mental
Baumle,
348;
420 S.W.2d at
Williams
by
determination was
Co.,
Maxam,
which
688;
Carver
778 S.W.2d at
made_” McCormack, 35
at 414.
260;
S.W.3d
McCormack,
674
at
see
S.W.2d
also
“jurors
35
at 414. The fact that
S.W.3d
hearing
Based
re
on
court’s
motives,
improper
reasoning,
acted on
be
during
hearing,
marks made
concomi
liefs or mental operations [that matters
is]
hearing
tant
fact
court
verdict,”
provide
inherent
no
trial,
Appellant’s
overruled
motion for new
grounds
attacking
jury.
for
verdict
hearing
we discern that
court
while
Neighbors,
“Jury
lant Burns, 477; now seeks a new a non-MAI. 55 S.W.3d indications.” (1991). 70.02(b), grounds Rule Court Rules trial on the instruction Missouri failed vague jury and uncertain in that it to The must submit to was instructions jury ultimate were required advise the what facts “the facts to sustain a ultimate necessary to conclude that was v. Stalcup verdict.” Orthotic & Prosthetic performing surgery. Lab, Inc., 654, negligent for (Mo.App. 989 S.W.2d “ 1999). universally are precise, ‘There no “ ‘In reviewing the submissibil definitions applicable explicitly differ instruction, appellate of an an ity evidentiary facts from ultimate entiate infer the evidence and reasonable views ” Id. (quoting facts.’ Duncan First light in the most favorable to the ences Bank, (Mo.App. State 848 S.W.2d disregards contrary all evi instruction 1993)). ... must determine what “Courts ” Vintila, at 35 (quoting 52 S.W.3d dence.’ case-by-case the ultimate facts are on Automotive, Inc., 31 O’Reilly Deckard v. Id. “This involves basis.” determination The error (Mo.App.2000)). theory analysis specific upon relied erroneous in prejudicial, must be Id.; offering the instruction.” party materially must affect the merits struction Burns, 55 S.W.3d 478. grounds the action to be for reversal challenging the sub appeal. party Id. Appellant’s claim of error relates mission of the also must show instruction instruction submit directing the verdict misdirected, offending that the instruction (Instruction 7) ted on the jury No. misled, jury, or that the or confused That negligence. issue of instruction set instruction affected merits the case. out: Id; Butts, 73 at 839. A see also plaintiff must be for the Your verdict opportunity court has the best trial if you J. believe: Madonna Williams whether a instruction is determine Daus, M.D., First, Arthur S. defendant misleading, and we shall not confusing or in- surgery proper without performed a ruling absent abuse disturb dications, and, Ambu Burns v. Elk River discretion. lance, Inc., (Mo.App. Daus, Second, defendant Arthur S. Portis,
2001); 38 S.W.3d at M.D., thereby negligent, and Third, directly either instructions, negligence such reviewing
When
Madonna
damage
plaintiff
caused
ordinary intel
must credit
“we
pre-exist-
sense,
Williams or combined with her
average un
ligence, common
directly
cause dam-
ing back condition
language.”
derstanding
English
Williams.
Burns,
age
plaintiff
Madonna
relat
“[I]ssues
at 478.
weight, credibility, or the resolu
ing to the
*19
objected to the
Appellant timely
testimony
in
are matters
tion of conflicts
at trial
instruction at trial. He contended
and are not
jury’s
a
determination
for
appeal
in
that the term “with
and now this
v.
appellate
matters for
review.” Lashmet
indications,” absent some defi
proper
out
(Mo.App.
552
954
McQueary,
constitutes
specifically
nition of what
1997).
overly
or
was
“proper”
an “indication”
jury any
to
vague,
provide
In
and failed
Approved
use Missouri
The
regarding what facts
consider
where
direction
mandatory
any
ease
structions
result,
As
he
otherwise,
negligent.
him
a
to find
apply;
instructions
provided
jury
ways
hypothesized
claims the instruction
To have
different
“roving
with a
commission.”10
be
compression might
which nerve root
physician
to an examining
“indicated”
support
cites to
case in
one
70.02(b) con-
precisely
would be
what Rule
argument,
Tygett,
his
v.
Grindstaff
demns, i.e.,
“re-
of instructions that
giving
(Mo.App.1983),
in which the
evidentiary
quire findings of detailed
paragraph
first
verdict
Grindstaff
70.02(a),
facts.” Rule
Missouri Court
language
director contained the
“defen
Lashmet,
(1991); see
Rules
dant
a
performed midforceps rotation de
553;
Brown,
Spain v.
livery
procedure
when
such
was
medi
(Mo.App.1991).
cally
Id.
proper.”
at 73. The Grindstaff
merely stating
proce
court held that
Colom,
that in
Kampe
We observe
v.
medically
dure “was not
proper” without S.W.2d 796
an
(Mo.App.1995),
instruction
including
complained
the acts or omissions
jury
directed
find
if a
negligence
jury
of gave
guidelines
no factual
doctor “failed monitor the medications
Id.;
determine
v.
negligence.
see Wilson
patient].” Kampe,
he
for
prescribed
[a
Lockwood,
(Mo.App.
Dr. Watts testified that a doctor should case, to jury ask whether the found the have compression indications nerve root oversaw, “observed, supervised, doctor had surgery appropriate. before was He testi- regulated” or proscribed. the medication fied that reviewing Respondent’s after ex- Id. records, isting medical surgery should not have performed been Dr. Respondent. In Brooks SSM Health ad- Care we ensuing
Watts reasoned that the surgery dressed instruction which allowed improper absent such indications. jury negligent to find a doctor either he foregoing gave meaning drug]
This
evidence
[a
“administered
when was
EKG,
the phrase
proper
“without
in-
patient’s]
[the
indications.”
indicated
broad,
may
question
way
10. A
instruction
considered
abstract
*20
roving
jury
if
any
commission it fails to advise the
without
to the
and
limitation
facts
law.
686,
Care,
party
what acts or omissions of the
would
Brooks v. SSM Health
73 S.W.3d
liability,
the
(Mo.App.2002);
Dryden,
constitute
when
instruction is too
v.
see also Coon
general, or
a
(Mo.App.2001).
where the instruction submits
92-93
jury
roving
a
commission when
at a rate which exceeded
received
drug]
[the
fused
” Brooks,
if
negligence
find
it found that
73 S.W.3d directed to
hospital guidelines....
“unnecessary
in-
performed
hysterecto-
The
claimed that
the
he
an
at 696.
doctor
reviewing
vague
my.”
in that it failed to
Id. at 498. The
court
struction was too
had
they
expert testimony
facts
must de-
indi-
jury
inform the
what
determined that
However,
negligence.
hysterectomy
inappropri-
for
we
cated that a
was
termine
presented
accepted
there was evidence
and
a
from the
found that
ate
was
deviation
were
Id. at 499.
regarding what EKG indications
nec-
of medical care.
standards
essary
drug,
reviewing
and deter-
court reasoned that from
to administer the
The
jury
that the
showing
testimony,
mined that there was evidence
could find
hospital guidelines.
perform
hys-
duty
doctor exceeded
doctor had a
to
jury
plaintiffs
for the
and
a
terectomy,
set out
was
as
result
We
negligence theory
supported
the factual issues of whether the
was
resolve
evidence,
hospital’s protocol
properly
exceeded
and the instruction was
defendant
administering
drug.
Id. at 696-
Id.
when
submitted.
97.
analysis
our
of the evidence
Based on
Bums,
brought
In
a medical
plaintiff
case,
say that
to this
we cannot
peculiar
emergency
an
negligence
against
claim
confusing,
jury
vague,
was
instruction
(EMS) provider after her
medical services
jury
otherwise faded
advise
an asthma attack and
experienced
son
Respondent only
find
they could
for
stopped breathing
hospital,
en route to a
they
performed
had
determined
eventually
Among other
where he
died.
indications, as dis
surgery
proper
without
claims,
plaintiff alleged that the EMS
The instruction did not
cussed at trial.
long
her son
provider
transport
took too
jury
authorize the
find
and
hospital
to the
and failed to establish
presented at
from those
on facts different
airway
provide oxygen to
maintain an
The
jury
that contained the
instruction
Burns, 55
actions. See
the trial court’s
airway”
and “trans
“establishing
proper
Respondent’s
478.
instruction
vague.
in
too
port
timely
manner” were
compe
and
supported by
substantial
“prop
the word
argued
Id The defendant
trial. Point
during
evidence adduced
tent
proce
necessarily
did
refer to
er”
V is denied.
device,
or insertion of
artificial
dure
affirmed.
judgment
“timely”
“adequate” required the
possess
expertise
medical
to determine
PREWITT, P.J., Concurs.
job
its
provider performed
if the EMS
Id.
We found
correctly.
at 478.
PARRISH, J.,
Dissents
Concurs
understand such
juror could
reasonable
MONTGOMERY,
opinion of
J.
dissenting
terms,
did not
the instruction
and that
or utilize
speculate
require
J.,
SHRUM,
separate
Concurs
Id.
that it did not have.
expertise
medical
opinion.
MONTGOMERY, P.J.,
Kovac,
Dissents
Similarly, Smith
separate opinion.
that a
a doctor claimed
(Mo.App.1996),
*21
(2)
GARRISON, J.,
relevant,
dissenting
Concurs
at
and
“even
MONTGOMERY,
opinion of
v.
hearsay
J.
evidence is
State
inadmissible.”
(Mo.banc
Mease,
RAHMEYER, C.J., Concurs in the
1992).2
principal opinion
concurring
and the
SHRUM,
of
opinion
J.
court,
cites
Travis
approval
Meyer,
Stotts v.
SHRUM, Judge,
KENNETH W.
(Mo.App.1991),
proposition
for
concurring.
permissible
testimony
“it is
to elicit
about
I concur in the affirmance of the trial
juror misconduct that occurred outside the
judgment.
court’s
I write
re-
separately
room,
jury
alleged
such as the
gathering
garding
jury
misconduct issue and the
my
extrinsic
at issue
In
evidence
here.”
question.
submissibility
however,
view,
that statement does not
First, I respectfully suggest that to ac- give
special
juror
rise to
rule for
a
miscon-
cept
analysis
the dissent’s
of the
mis-
testify
duct cases which allows
conduct claim
expand
scope
would
allegedly
juror
about what an
errant fellow
Stone,
(Mo.banc
Travis v.
ing of one more to ered the visits scene, 888, juror in course of the accident n. 1. at transpires during deliberations. What judge The the trial overruled fact that jurors fellow the deliberations between objections hearsay ev Respondent’s in- because it’s an cannot be scrutinized are consequence. idence is of no We sanctity room. vasion into the the trial court sorted out presume that Further, hearsay. it is inadmissible As irrelevant, incompetent, and inadmissible result, testimony we focus on the upon decision and based its evidence hearing Septem- Flippo Juror at Mulle competent evidence. and relevant 28,1990.” ber St. Props, City v. nix-St. Charles (citation omitted) 888, at n. Charles, (Mo.App. 557[13] 983 S.W.2d (emphasis supplied). 1998). presumption in the Indulging Flip- on only court focused The Stotts com Judge Dally upon based his decision i.e., misconduct, gathering his actual po’s evidence, left we are petent and admissible by personally visiting of extrinsic evidence wholly fails show a record the accident scene. evidence; gathered extrinsic Juror No. Dally did not abuse consequently, Judge earlier, question
As noted the ultimate a new refusing grant his discretion juror actually misconduct here is whether juror 883); upon alleged trial based misconduct. at (Stephens, 88 occurred No. 2 actually whether Juror specifically, Second, carefully read the more I have Appellant’s gathered extrinsic evidence. testimony and of trial pages than 1200 allegation No in such engaged that Juror record, parts relevant other self-proving, but had conduct was examination, I have concluded from that by him evidence. proven via admissible cau- Respondent presented sufficient Stotts, Id.; at n. 1. 822 S.W.2d the trial court’s support sation evidence 2No. went only evidence that Juror judgment motion Appellant’s denial of evidence came gather outside the record notwithstanding the verdict. jurors testified about
from fellow who evi told them. Such what Juror No. MONTGOMERY, Presiding KERRY L. view, hearsay. was, clearly my dence dissenting. Judge, Stotts, gener n. 1. See opinion, In my I dissent. respectfully Markets, Super ally, Bynote National denying Appellant’s the trial court erred (Mo.banc Inc., 117, 120[2] mis- motion for new trial based 1995) (holding, a witness offers the “[w]hen extra-judicial evi- acquiring conduct prove of another to statements out-of-court prejudiced Appellant. dence which in the the matter asserted the truth of new statement, on the motion for hearsay”); hearing At the trial, that Juror No. Schroeder, testified 22A Prac four A. Missouri William hospital where § them visited n. 1 told she tice: Missouri Evidence 800.1 either solicited (2000). such, evi “species worked As Appellant’s regarding ulti overheard comments prove competent” dence claims, possible loss fact, i.e., prior malpractice whether Juror dispositive mate license, malpractice of his of his and loss evidence. actually gathered No. 2 extrinsic 556[5], Re- The trial court overruled Be insurance. Opponents, 564 S.W.2d See objections testimony. to this timely spondent’s that was ing inadmissible evidence *23 Neighbors In v. Wolfson, jury’s to the impeach used verdict. (Mo.App.1996), However, the of permissible Eastern district it is to elicit testi- “precedents Court said that of this state oc- mony juror about misconduct that legion are which recite the room, rule that ‘the jury curred outside the such as testimony juror affidavit or of a is inadmis- alleged gathering the extrinsic evi- of sible and is not to be in received evidence dence at issue here. Even where the for the of purpose impeaching the verdict purpose testimony regarding of mis- the jury of a juror of which the a mem- was (whether it conduct occurred inside or However, ber.” Id. at 37. Neighbors also room) the jury impeach outside is to the explained juror’s that a testimony can be verdict, the party complaining of the jury used attack the con- verdict two testimony a timely must make and prop- ditions are met: objection er or else the issue is waived. First, the in party whose favor ver- the (citations omitted) added). Id. (emphasis dict was returned acquiesce must the observing After that the Defendants did proposition juror that the competent is juror’s object not testimony, the the give testimony; such acquies- such Court decided the was testimony properly cence when party object exists a fails to Id. received. of admission both the con- affidavits majority The concludes that Travis does taining juror the statements and the not change proper objection the rule that a
juror testimony offered court. Sec- precludes juror testimony which im- ond, juror testimony the allege must peaches jury’s Recently, the verdict. State (i.e., that evidentiary extrinsic facts facts v. Stephens, (Mo.App.2002), bearing on trial but properly issues has interpreted ruling Travis as otherwise. trial) introduced at interjected were into deliberations, jury’s than rather In Stephens, the defendant offered evi- merely acted improper on dence at the on hearing his motion for new motives, reasoning, beliefs or op- mental juror, trial that a during a recess delib- (the erations type juror latter testi- erations, al- had visited the scene of the mony is said to concern inher- “matters leged assault. Id. 881. The State ar- verdict”). ent gued hearing at the “that as matter law, jury’s (citations omitted). verdict could not be im- Id. peached juror juror testimony of mis- Neighbors and like cases were decided (defendant) conduct, attempting as the was prior Supreme to our Court’s decision in to do.” Id. The trial court denied the Stone, (Mo. Travis banc motion for new trial. On appeal, defen- 2002). There, juror acci- visited traffic dant contended that an exception exists dent during scene the break in trial in general juror rule where misconduct order to sort the testimony compet- out outside, inside, jury occurs rather than ing experts. juror The denied that her room. Id. 881-82. Defendant relied visit accident scene entered into the delib- Travis stating exception, as such an way. in any erations Id. at 4. agreed. Western District of this Court Initially, pro- the Court considered the Id. at 882. priety allowing juror’s testimony issue, In analyzing this the Court deter- and said: mined that Travis general rule in Missouri is juror’s testimony about ... recognizing exception misconduct that an allegedly affecting may deliberations as to general prohibiting existed rule testimony impeach juror permissi- the verdict and holds exception being jury, ble where the misconduct occurs outside
juror’s testimony, concerning alleged ju- jury room. Id room, ror outside the misconduct Relying on Travis and I would Stephens, specifically gathering of extrinsic ev- properly find that the trial court admitted independent as part idence investi- *24 jurors’ testimony. the four This evidence case, gation, alleged in our could be as juror gathered that a evidence established jury’s to a verdict. impeach used Therefore, to the trial. the extraneous Id. at 882. shifted to to show that burden argued The State that Travis did Travis, from it. prejudice no resulted general exception an to the rule create case, Respondent 4. In this of- S.W.3d at Supreme because the Court stated the overcoming pre- no the fered evidence party complaining of the misconduct important An factor in prejudice. sumed objection timely proper must make a prejudice materiality of determining is the Travis, or the issue See waived. when the the evidence such as evidence rejected The Stephens 4. in pertains to a critical issue the gathered argument by saying: Clearly, Appellant’s case. Id. at 6. medical State, Contrary the contention of the to case, in competence was critical issue the language we fail to see how that would gathered and the evidence him portrayed modify respect intent with the Court’s view, medically incompetent. my In the as immediately express language pre- the in denying trial court abused its discretion ceding interpret opin- it. To the Court’s for trial. the motion new State, by argued ion as for the we would (1) majority opinion determines totally ignore express have the lan- ju- Appellant present evidence of failed guage opinion permissi- that it is the juror’s ror because the testi- misconduct juror testimony impeach ble to use (2) alternatively, mony hearsay and alleged juror verdict where the mis- jury Juror that the trial court determined that jury the room. conduct occurred outside 2 “may” jurors during have told delib- No. fair of the of the Any reading portion hospital her visit but that erations about opinion question in would lead us “she, fact, in trial court concluded that including language conclude that in I with both disagree never went there.” State, by championed Court was conclusions. an basis simply recognizing alternative First, I that the four cannot find ques- in allowing juror testimony by hearsay testimony. As noted gave jury’s in impeach tion Travis to ver- hearsay if majority, a statement is not not intend to cut down the dict did in the mere of the statement lies relevance in just recognized it exception had and no reliance is fact that was made paragraph. same credibility of the out-of-court placed on Id. at 882-83. Rodriguez v. Motor declarant. Suzuki reasoning I that case is believe the (Mo. 1999). Corp., 996 S.W.2d banc interprets as it Travis. As stated sound case, of Juror No. Travis, In this the relevance trial do con- procedures “[o]ur fact that she in- lies the mere template well tolerate such 2’s statement and cannot infor- jurors.” brought into the room outside by dependent investigation in trial. mation not offered Whether clearly condemns the 4. Travis was true or false did not extrinsic evidence” information “alleged gathering of change the fact that report- party’s superior her statement 1. one means of knowl- edge identity ed the of an the existence and of the independent results factual witness; investigation no oppor- had
tunity against to defend the inference that 2. the nature that the medically incompetent. expected give he was I believe witness would be in the previous light of his statements or very the conduct of Juror is the decla- No. evil rations, any, about the facts of the thwart, i.e., that Travis intended to case; and independent investigation by juror
subsequent report jury. relationship borne the wit- particular party ness as the same Second, trial “fairly court was con- reasonably would to affect expected vinced” that Juror No. told the personal his interest outcome *25 about her I hospital interpret visit. this to litigation the and make it natural that he mean that trial the court the believed testi- to expected testify would be favor of jurors. mony the four The trial court’s the one party against the other. observation, quoted by majority, the con- Boles, Hill v. 145-46 tinues with trial simply the posing (Mo. 1979). banc question of what if hap- this event did not All of these factors indicate that Juror pen. Contrary to I majority opinion, 2 equally No. was available Respondent. to agree cannot that posing question As to factor parties both had the same equates to a finding offending knowledge of existence and identity juror fact, never went to hospital. In Respondent the witness. Factor 2 favors testimony absence of from Juror No. in light of of Appellant’s the remarks coun- gave the trial court no basis to conclude sel that the court could assume No. Juror that she was untruthful. deny visiting hospital. would third factor also Finally, equal availability I shows disagree with majority because suggests the record no relation- decision that this can Court draw an ad- ship would indicate verse from testimony inference the lack of might give testimony Juror No. favor- view, from Juror my No. 2. In she was Therefore, able him. I disagree that equally Respondent available to who also Ap- adverse inference can be from drawn chose not to call her. pellant’s failure call Juror No. 2. “Failure of party to call a witness who If had called Juror No. 2 to has knowledge facts circumstances testify and then she gathering denied vital to the case generally a pre raises evidence, reporting extraneous the trial sumption that the would be un court could have a credibility made deter- favorable to the party faffing offer it.” stands, mination. As the record now Colom, (Mo. Kampe trial court did determine that Juror No. “To App.1995). argument allow of a nega actually reported results resulting tive inference from a party’s fail independent her outside investigation. produce ure to witness reversible er report may Her have influenced the nine ror, however, equally the witness is Respondent. three verdict favor of parties.” available both Id. Obviously, at least one of four Respondent. who testified voted in favor of determining In whether a witness is parties, equally Therefore, available I disagree majority follow- with the ing factors are considered: opinion offending which concludes that the story
juror simply made she up which result, and,
told as a her state- should be as “matters
ments considered in the and privileged.
inherent verdict” me, nothing supports
To the record such
a conclusion. stated,
For the I reasons believe and that Appel- misconduct occurred prejudiced thereby.
lant I would re- judgment
verse the the case remand
for a new trial. *26 Missouri, Plaintiff-
STATE
Respondent, CHARLTON,
Daniel Alan
Defendant-Appellant.
No. 24766. Appeals,
Missouri Court District,
Southern
Division One.
July 2003. Rehearing or Transfer
Motion Aug. 2003.
Denied Transfer Denied
Application for Sept.