Aliff v. Cody

• Decision Date: 30 June 2000
• Citation: 26 S.W.3d 309
• Parties: (Mo.App. W.D. 2000) Catherine C. Aliff and James B. Aliff, Appellants v. David L. Cody, Respondent. WD57373 0
• Court: Missouri Court of Appeals

26 S.W.3d 309 (Mo.App. W.D. 2000)

Catherine C. Aliff and James B. Aliff, Appellants v. David L. Cody, Respondent.

WD57373

06/30/2000

Appeal From: Circuit Court of Jackson County, Hon. Justine E. Del Muro

Counsel for Appellant: H. William McIntosh and Steven Hobson

Counsel for Respondent: Gregory Minana

Opinion Summary: Catherine and James Aliff appeal the judgment entered upon a jury verdict on a claim for damages for injuries sustained in an automobile accident. They allege the trial court erred by allowing improper impeachment of Mrs. Aliff by a claimed prior inconsistent statement and in denying them the opportunity to impeach one of Mrs. Aliff's treating doctors called to testify by the defendant, by use of a claimed prior inconsistent statement.

REVERSED AND REMANDED.

Division holds: Division holds that trial court abused its discretion in not allowing a prior inconsistent statement relating to causation when causation that is in writing, directly on cross-examination, also applies if the prior inconsistent statement is oral, in which case the plaintiff may lay a foundation for the statement during cross-examination and then offer extrinsic proof of the statement on rebuttal.

Ronald R. Holliger, Judge

Catherine C. Aliff and her husband, James B. Aliff, appeal from a judgment entered upon a jury verdict in favor of David L. Cody on their claim for damages for injuries sustained in an automobile accident. The Aliffs raise two points on appeal. They first contend that the trial court erred in denying them the opportunity to impeach one of Mrs. Aliff's treating doctors called by Mr. Cody by use of a claimed prior inconsistent statement. Secondly, they contend that the trial court committed plain error by allowing improper impeachment of Mrs. Aliff by a claimed prior inconsistent statement. This is the second appeal from the same judgment.¹

FACTS

On January 13, 1993,² Mrs. Aliff and Mr. Cody were involved in an automobile accident. The Aliffs filed suit in the Jackson County Circuit Court on May 19, 1995. The uncontested evidence was that Mrs. Aliff was diagnosed many months after the accident as having a herniated disc in her neck. On April 8, 1994, she underwent surgery by Dr. Parkins, an orthopedic surgeon, for repair of the herniation. During the surgery, she sustained a new injury to her spinal cord, leaving her partially paralyzed. The Aliffs brought their claim against Cody alleging that the accident with him caused the disc herniation and that he was responsible for that injury and the additional damage caused by the surgery. Schumacher v. Leslie, 232 S.W.2d 913, 917 (Mo. banc 1950). Causation of the disc injury was the hotly contested issue in the trial. Both issues raised on appeal deal with either the mechanics of Mrs. Aliff's claimed injury or aspects of damage causation. We reach those issues in spite of a general verdict in favor of Cody because the trial court directed a verdict in favor of the Aliffs on the issue of liability. The case was thus submitted to the jury expressly on the issue of causation and damages only. There was no real contest as to the fact of Mrs. Aliff's damage, but there was severely conflicting evidence whether the collision caused the disc herniation.

There was also conflicting evidence as to the force of the impact. The parties agreed that Mrs. Aliff received no medical diagnosis or treatment for some months after the accident. She testified of symptomatic complaints until she saw her primary physician, Dr. Hoecker, in early February 1994. She admitted she did not tell him on that first visit about the Cody accident occurring a year earlier, but did tell him what happened on her follow-up visit shortly thereafter. After a course of physical therapy, Dr. Hoecker referred her to Dr. Parkins. He ordered an MRI, which revealed the cervical disc herniation. Her surgery and tragic sequale followed in April 1994. At trial, the Aliffs presented expert causation testimony through Dr. Hoecker that the herniation was a result of the Cody collision. The Aliffs also presented expert and other testimony about the force of the impact.

Cody called Mrs. Aliff's surgeon as a witness. Dr. Parkins testified that although it was possible that the auto accident was a causative factor in the herniation, it was his expert opinion that the most probable cause was degenerative changes. At the conclusion of the defendants' evidence, Aliffs' counsel proposed to call both plaintiffs as rebuttal witnesses to testify as to alleged prior inconsistent statements made by Dr. Parkins on the issue of causation.

There is no objection shown on the record to the proposed rebuttal testimony.³ The record does reflect a statement by the court that "I'll maintain my same ruling." This was followed immediately by an offer of proof by the Aliffs. As part of the offer, Mrs. Aliff testified that she and her husband met with Dr. Parkins before the surgery and asked him what caused her disc herniation. Although saying she could not state his exact words, "[he] indicated that the cause of this was consistent with or what happens when you have a car wreck." Mr. Aliff offered to testify that Dr. Parkins stated "that the most probable cause of the herniated disc was the car accident." The case was submitted to the jury without any rebuttal testimony. Cody acknowledges that he did object to the proposed testimony and that the court sustained the objection.

STANDARD OF REVIEW

Appellate review of error alleged in the admission or exclusion of evidence is limited to an abuse of discretion standard. The focus is not on whether the evidence was admissible but on whether the trial court abused its discretion in excluding the evidence.

A trial court possesses great discretion in its determination of whether evidence should be excluded. State v. McKibben, 998 S.W.2d 55, 58 (Mo. App. 1999); Phillips v. American Motorist Ins. Co., 996 S.W.2d 584, 587 (Mo. App. 1999). The trial court's decision to admit or exclude evidence is given substantial deference on appeal. Felton v. Hulser, 957 S.W.2d 394, 397 (Mo. App. 1997). We are not bound on review by the rationale for the objection made or the reasons expressed by the trial court for excluding the evidence. "The trial court's ruling is upheld when there exists any recognizable ground on which the trial judge could have rejected the evidence." State ex rel. Missouri Highway and Transp. Comm'n v. Buys, 909 S.W.2d 735, 738 (Mo. App. 1995). "Once the appellate court has found that the trial court had alternative choices that would not yield a result contrary to the law, however, the review ends, and the appellate court will affirm any of those choices." Waters v. Barbe, 812 S.W.2d 753, 757 (Mo. App. 1991).

This Court's abuse of discretion review standard is quite severe:

Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 73 (Mo.banc 1999)(internal citations omitted). The burden of establishing abuse of discretion is on the appellant. Klinckman v. Pharris, 969 S.W.2d 769, 771 (Mo. App. 1998). "Failure to admit evidence does not mandate a reversal of a judgment unless the error materially affected the merits of the action." Environmental Waste Management, Inc. v. Industrial Excavating & Equipment, Inc., 981 S.W.2d 607, 613 (Mo. App. 1998). "We will not reverse unless there is a substantial or glaring injustice." State ex rel. Missouri Highway and Transp. Comm'n v. Pracht, 801 S.W.2d 90, 93 (Mo. App. 1990).

POINT I

The Aliffs first contend that the trial court erred in excluding their proposed rebuttal testimony because it would have established a prior inconsistent statement by Dr. Parkins, which was admissible for the purposes of impeachment and as substantive evidence on the central issue of causation. Cody contends that the rejected testimony lacked an adequate foundation, was not really inconsistent testimony, and was not proper rebuttal. He further argues that even if the testimony was properly admissible, its exclusion was not prejudicial error that would warrant reversal.

Was the Testimony Proper Rebuttal?

Cody argues that the Aliffs' proffered testimony was not proper rebuttal because it was evidence that could have been presented in the Aliffs' case in chief and did not address new points first raised by him. He further argues there was no prejudice from its exclusion and the court did not abuse its discretion. The order of proof is discretionary with the trial judge. St. Louis Southwestern Ry. Co. v. Federal Compress and Warehouse Co., 803 S.W.2d 40, 45 (Mo. App. 1990). The admissibility of rebuttal evidence is within the discretion of the trial court. Bray v. Bi-State Dev. Corp., 949 S.W.2d 93, 100-01 (Mo. App. 1997). "Determining the scope of rebuttal is in the trial court's discretion and, absent an abuse of that discretion, we will not reverse the trial court's decision." State v. Petty, 967 S.W.2d 127, 140-41 (Mo. App. 1998). "Rebuttal evidence may explain, counteract, repel, or disprove a defendant's evidence either directly or by implication." Id. at 141. "Rebuttal evidence is evidence tending to disprove 'new points first opened by' the opposite party." Edley v. O'Brien, 918 S.W.2d 898, 907 (Mo. App. 1996) (internal citations omitted).

"A party is entitled to introduce evidence to rebut that of his adversary, and for this purpose any competent evidence to explain, repel, counteract, or disprove the adversary's proof is admissible." Bray, 949 S.W.2d at 101. See also, St. Louis Southwestern Ry. Co., 803 S.W.2d at 45. The use of rebuttal is not, however,...