Coats v. Hickman
Decision Date | 28 December 1999 |
Citation | 11 S.W.3d 798 |
Parties | (Mo.App W.D. 1999) . Janith Coats, Appellant, v. John A. Hickman, Respondent. WD56363 Missouri Court of Appeals Western District Handdown Date: |
Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Buchanan County, Hon. Weldon C. Judah
Counsel for Appellant: Martin M. Bauman
Counsel for Respondent: Ben T. Schmitt
Opinion Summary:
Janith Coats appeals from the circuit court judgment for John Hickman on her claim for personal injuries from a motor vehicle accident with Hickman.
AFFIRMED.
Division III holds:
(1) The trial court did not err in overruling Coats' objection to and motion for new trial based on Hickman's closing argument concerning her medical expert witness's lack of familiarity with alleged authoritative materials as not supported by the evidence. Coats should have objected to Hickman's cross-examination of her expert on the issue at that time. Her failure to do so waived any subsequent objection, including references in closing.
(2) This Court declines plain error review. This Court finds no merit in Coats' claim that certain of Hickman's comments, which Coats challenged as improper personalization and unsupported by the evidence, changed the case's outcome.
(3) Although Hickman's counsel was permitted to read a witness's partial deposition answer, Coats' counsel then read the full answer to clear up any confusion, curing any prejudice that may have resulted.
Opinion Vote: Judgment of the circuit court is affirmed. Ulrich, P.J., and Howard, J., concur.
Janith Coats appeals from the judgment of the Circuit Court of Buchanan County, Missouri, for the respondent, John Hickman, on her claim for damages for personal injuries arising out of a motor vehicle accident with the respondent.
The appellant raises three points on appeal. In Point I, she claims that the trial court erred in overruling her objection to and motion for new trial with respect to the respondent's closing argument concerning her medical expert witness's lack of familiarity with alleged authoritative materials on myofascial pain syndrome (MPS) because this argument was not supported by the evidence in that the materials were never offered and admitted into evidence. In Point II, the appellant claims that the trial court erred in overruling her motion for new trial based on alleged improper closing argument of respondent's trial counsel because he engaged in improper personalization and referred to matters not in evidence. In Point III, the appellant claims the trial court erred in allowing, over her objection, the respondent's trial counsel, on cross-examination of Dr. Mark Noble, the appellant's treating urologist, to read a partial answer to a question from his deposition because it misled and confused the jury as to his actual testimony such that she was entitled to a new trial.
We affirm.
On March 26, 1996, the appellant was a passenger in a pickup truck driven by Samuel Howe (Howe). Howe was driving west on Mitchell Avenue in St. Joseph, Buchanan County, Missouri, when he approached the traffic light at the intersection of Mitchell Avenue and Tenth Street. The light was green for traffic traveling on Mitchell Avenue when Howe entered the intersection. Howe's vehicle then collided with a pickup truck being driven north on Tenth Street by John Hickman, the respondent.
The respondent's vehicle struck the front driver's side of Howe's vehicle, causing the appellant to strike the steering column with her neck and left shoulder and slamming her back against the seat. As a result, she ended up in a kneeling position between the dashboard and the seat. Jammed into her abdomen was a binder of class notes that the appellant, a cosmetology instructor, had been reviewing when the collision occurred.
After the accident, the appellant told the police officer at the scene that she was suffering neck pain, but refused to be taken to the hospital at that time. Later that day, she visited a chiropractor, Dr. James Kinnard, to treat the pain she said she was experiencing. The appellant claims that she told Dr. Kinnard she was experiencing abdominal pain at that visit, but his notes do not mention such a complaint.
The appellant claims that she began to experience incontinence within a month after the automobile accident, a problem which she attributed to the collision. The appellant saw a physician about three months after the accident, but she did not discuss any incontinence during the visit. The appellant did not seek treatment for her incontinence until over a year after the accident.
The appellant sued the respondent and Howe in the Circuit Court of Buchanan County for the injuries she claims to have sustained as a result of the automobile accident. On July 13, 1998, the court entered a default judgment against Howe. On that same day, a jury trial commenced on the appellant's claim against the respondent. The jury returned a verdict in favor of the respondent. On September 16, 1998, the court entered its judgment against the appellant and in favor of the respondent, assessing costs against the appellant.
This appeal follows.
In Point I, the appellant claims that the trial court erred in overruling her objection to and motion for new trial with respect to the respondent's closing argument concerning her medical expert witness's lack of familiarity with alleged authoritative materials on MPS because this argument was not supported by the evidence in that the materials never were offered and admitted into evidence. Although we find that error occurred as alleged, such error was not prejudicial, as discussed, infra, and, thus, the appellant's Point I is without merit.
"[T]he trial court is accorded broad discretion in ruling on the propriety of a closing argument to the jury and will suffer reversal only for an abuse of discretion." Moore v. Missouri Pac. R.R. Co., 825 S.W.2d 839, 844 (Mo. banc 1992). This is so because the trial court is in the best position to evaluate the consequences of any impermissible comments. Hammer v. Waterhouse, 895 S.W.2d 95, 105 (Mo. App. 1995). "[C]ounsel is traditionally given wide latitude to suggest inferences from the evidence on closing argument." Moore, 825 S.W.2d at 844 (citing Carter v. Liberty Equip. Co., 611 S.W.2d 311, 315 (Mo. App. 1980)). "This is so 'even though the inferences drawn are illogical or erroneous.'" Id. (quoting Eickmann v. St. Louis Pub. Serv. Co., 323 S.W.2d 802, 810 (Mo. 1959)).
"The permissible field of closing argument is a broad one, and as long as counsel confines himself to the evidence and does not go beyond the issues and urge prejudicial matters or urge a claim or defense which the evidence does not justify, he is to be given wide latitude in his comments."
Whisenand v. McCord, 996 S.W.2d 528, 531 (Mo. App. 1999) (quoting Hoehn v. Hampton, 483 S.W.2d 403, 408 (Mo. App. 1972)). "A party is entitled to argue all the evidence presented for the determination by the jury." Id. (quoting Hoehn, 483 S.W.2d at 409). A trial court abuses its discretion in allowing closing argument when the challenged comments are "'plainly unwarranted and clearly injurious' to the adverse party." Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 363 (Mo. App. 1999) ( ). "'In ruling on the propriety of final argument, the challenged comment must be interpreted in light of the entire record rather than in isolation.'" Id. at 363 ( ).
As to the issue raised, the record reflects that the appellant called in her case-in-chief her treating chiropractor, Dr. Kinnard. On direct, he testified, inter alia, that the appellant suffered from MPS as a result of the accident. On cross-examination, with respect to his diagnosis, the respondent's counsel asked whether he was familiar with what counsel represented to be an authoritative treatise on MPS. In this regard, the record reflects:
Q. Had you ever read the Myofascial Pain and Dysfunction Trigger Point Manual?
A. No, I have not read that manual.
Q. Well, you know that's where the diagnosis started from, don't you?
A. No, I don't know that either.
Q. Never heard of Dr. Janet Travell (sp)?
A. No, I haven't.
Q. Have you ever seen two red books, Volume 1 and 2, called the Myofascial Pain and Trigger Point Manual?
A. No, I have not.
Q. But yet you're making the diagnosis of myofascial pain syndrome?
A. Yes, I am.
The appellant did not object to these questions. In closing argument, with respect to his assertion of claim building, the respondent's trial counsel stated:
Mr. Schmitt: All right. No evidence of claim building. The best evidence is this claim right over here and these figures (indicating). It starts and begins there. And let me tell you that their entire case strikes me as one of claim building.
Let's begin with Dr. Kinnard. I make a diagnosis of myofascial pain syndrome. Doctor, can you tell us what the diagnostic criteria is and have you read the materials in order --
Mr. Randall Bauman: Objection. It's a misstatement of the testimony.
The Court: Overruled.
Mr. Schmitt: -- and have you read the materials and do you understand, and have you ever even seen the books that it come [sic] from? No.
The books being referenced by respondent's counsel were Volumes 1 and 2 of the Myofascial Pain and Dysfunction Trigger Point Manual (the MPS manual), about which he asked during his cross-examination of Dr. Kinnard. It is this argument of counsel that the appellant contends entitled her to a new trial because it referred to matters not in evidence.
Although learned treatises are hearsay and "'are not of themselves direct and independent evidence' . . . [they] may be...
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