Buatte v. Schnuck Markets
| Decision Date | 19 February 2002 |
| Docket Number | ED78788 |
| Parties | Diane Buatte, Plaintiff/Appellant, v. Schnuck Markets, Inc., Defendant/Respondent. ED78788 Missouri Court of Appeals Eastern District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Patricia L. Cohen
Counsel for Appellant: Leonard P. Cervantes and Jennifer L. Suttmoeller
Counsel for Respondent: Michael B. Maguire and T. Michael Ward
Opinion Summary:
Diana Buatte brought an action against Schnuck Markets Inc. for negligence stemming from her slip and fall at one of Schnuck's grocery stores. Buatte appeals from the judgment awarding $12,500 in damages and finding each party 50 percent at fault for the accident. On appeal, Buatte contends she was prejudiced because the jury was presented with information during closing argument, in violation of the collateral source rule, indicating that her medical bills were paid by a collateral source.
Division Three holds: The majority holds that Schnuck's violated the collateral source rule during closing argument by displaying its Exhibit M to the jury without redacting the reference that clearly indicated that Buatte had medical insurance coverage. Though the issue was not preserved for review, Buatte is entitled to plain error relief because the error engendered prejudice to her detriment, thereby resulting in manifest injustice.
The dissent would find that although errors in admitting evidence of payment of benefits from a collateral source are presumed prejudicial, the record rebuts the presumption in this case, and the asserted violation of the collateral source rule does not rise to the level of plain error.
Diane Buatte ("Plaintiff") sued Schnuck Markets, Inc. ("Defendant") for negligence stemming from her slip and fall at one of Defendant's grocery stores. The jury returned a verdict assessing $12,500 in damages and finding Plaintiff and Defendant each fifty percent at fault for the accident. Plaintiff thus was awarded $6,250 in damages. On appeal, Plaintiff argues that she was prejudiced by the erroneous display to the jury of evidence indicating that her medical bills were paid by a collateral source. We reverse and remand for a new trial.I. Background
On July 26, 1993, Plaintiff was walking through a Schnuck market when she slipped and fell on a puddle of clear liquid. There were no cones or barricades around the puddle. After her fall, Plaintiff spoke with a store employee, who told her that prior to her fall someone in the store had been contacted and asked to mop up the wet spill. Plaintiff then walked to the front of the store to speak with a manager. Plaintiff gave the manager her name and phone number and told the manager that she had hurt her right arm and knee. When Plaintiff and manager looked at the spot where Plaintiff had fallen, it was in the process of being mopped up, and cones surrounded the area. After talking with the store manager, Plaintiff did her shopping and drove herself home.
Plaintiff went to a hospital emergency room on July 28, 1993, complaining of knee pain. Following an x-ray, she was diagnosed with a knee contusion. Then in September Plaintiff visited her family doctor, Dr. Sonsa. At that time Plaintiff complained of knee and arm pain, and Dr. Sonsa referred her to a physical therapist. Plaintiff's pain continued and eventually Dr. Sonsa referred Plaintiff to an orthopedic surgeon, Dr. Tessier. In February of 1994, when Plaintiff complained of back pain, Dr. Sonsa also referred her to another orthopedic surgeon, who was a back specialist, Dr. Hollocher. In March of that year, an MRI performed on Plaintiff showed that she had a herniated lumbar disc. Surgery was performed on Plaintiff's lower back in May and November of 1994, and again in December of 1995.
Following the third surgery, Plaintiff developed neck pain. An MRI of her neck was performed, revealing a herniated cervical disc. A fourth surgery was performed on Plaintiff, to remove the damaged neck disc. After the four surgeries, Plaintiff also developed problems in her left shoulder and left knee, which she alleged were due to physically overcompensating for her original injuries.
At trial, Plaintiff presented evidence that these injuries were suffered as a result of her fall at Defendant's store. She identified Plaintiff's Exhibit 13, a list of all her medical bills, and testified that the bills totaled $49,059.88. She also presented evidence that as a result of the injuries she continues to suffer from constant severe pain, is required to take a morphine derivative every eight hours as well as frequently use a TENS unit in order to cope with the pain, and will most likely be required to eventually undergo a spinal fusion, leave her employment prematurely and thereby lose substantial future earnings. Defendant presented evidence that the only injury Plaintiff suffered as a result of the fall was an injury to her right knee, and that her herniated discs were due to either the natural progression of underlying degenerative disc disease or some other cause. There was evidence that Plaintiff had suffered prior neck and back pain due to an automobile accident in 1991. All of the doctors, however, including Defendant's expert, testified that she did not have any herniated discs, in either her lower back or neck, prior to her fall at the Schnuck's store.
As part of its attempt to disprove that the fall had caused Plaintiff's lower back injury, Defendant prepared its "Exhibit M." Exhibit M was a 30 x 40 blow-up of one page from Dr. Tessier's medical record of Plaintiff. It indicated, and was used by Defendant to show, that Plaintiff did not first complain to a doctor about back pain until approximately seven months after the fall. On the top left this record contained Plaintiff's name, apparent address and phone number. Across from this information, on the top right, was a line with the word "Insurance" pre-printed on it, and the words "Blue Choice" plainly written in on that same line next to the word "Insurance." Both Plaintiff and Defendant read to the jury portions of Exhibit M referencing Plaintiff's back complaints. Only those portions of Exhibit M which were read to the jury were admitted into evidence, and the parties stipulated that the medical records would not be taken into the jury room during deliberations. Before trial Plaintiff had filed a motion in limine to bar any collateral source evidence, and notes in her brief that in response to that motion, Defendant had agreed not to present any collateral source evidence.
Although both parties read from Exhibit M during trial, there is no indication in the record that Exhibit M was ever displayed to the jury by either party, prior to closing argument. However, during closing argument Defendant's counsel displayed Exhibit M to the jury in the course of arguing that Plaintiff had not complained about her back pain until some months after the fall. Defendant failed to redact the reference to Plaintiff being insured by Blue Choice before displaying Exhibit M to the jury, and the reference was in plain view of the jury. Plaintiff's counsel did not object when Exhibit M was displayed to the jury, and later stated that he was unaware at that time that the reference to Plaintiff having Blue Choice insurance coverage had not been redacted.
After the verdict, one of the jurors reported that the reference to Blue Choice health insurance coverage had been seen by the jury, considered in their deliberations, and served as a reason not to fully compensate Plaintiff for her medical bills. Plaintiff filed a post-trial motion requesting to interview that juror, which was denied. Plaintiff subsequently filed an affidavit from the juror's employer, attorney James Collins, indicating that the juror had advised him that Exhibit M had been displayed to the jury and that the jury had considered that Plaintiff was insured with Blue Choice in arriving at their award of damages. Plaintiff asserted this as one of the grounds for relief in her timely filed motion for new trial. That motion was denied and the judgment became final; this appeal follows.II. Discussion
In her first point on appeal Plaintiff contends that it was plain error and violated the collateral source rule when Defendant was allowed to display to the jury during closing argument Exhibit M, which contained the reference indicating Plaintiff had health insurance coverage through Blue Choice.
Since Plaintiff did not object when Defendant displayed Exhibit M to the jury, she requests plain error review under Rule 84.13(c). That rule allows an appellate court to consider plain error affecting substantial rights even though the error has not been preserved for review, when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom. Plain error relief is sparingly granted in civil cases, and is reserved for situations where the error complained of has engendered hatred, passion or prejudice. Robertson v. Cameron Mutual Ins. Co., 855 S.W.2d 442, 447 (Mo. App. W.D. 1993).
The collateral source rule is an exception to the general rule that damages in tort actions should be compensatory only. Washington by Washington v. Barnes Hospital, 897 S.W.2d 611, 619 (Mo. banc 1995). Where the rule applies, it serves both substantive and evidentiary purposes. Substantively, the rule provides that a wrongdoer is not entitled to have the damages for which it is liable reduced by proving that the plaintiff has received or will receive compensation or indemnity for the loss from some third party, such as an insurance company, when that third party (the "collateral source") is wholly independent of the wrongdoer. Id. Although various courts have cited "numerous rationales" for the collateral source rule, Missouri courts have traditionally cited the language that "the wrongdoer may not be benefited by collateral payments...
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