Connour v. Burlington Northern R. Co., WD

• Citation: 889 S.W.2d 138
• Decision Date: 22 November 1994
• Docket Number: No. WD,WD
• Parties: William L. CONNOUR, Respondent, v. BURLINGTON NORTHERN RAILROAD CO., Appellant. 48667.
• Court: Court of Appeal of Missouri (US)

Page 138

889 S.W.2d 138

William L. CONNOUR, Respondent, v. BURLINGTON NORTHERN RAILROAD CO., Appellant.

No. WD 48667.

Missouri Court of Appeals Western District.

Nov. 22, 1994.

Charles Marshall Friedman, St. Louis, for respondent.

Russell Charles Ashley, Kansas City, for appellant.

Before ULRICH, P.J., and KENNEDY and BERREY, JJ.

BERREY, Judge.

William L. Connour was the plaintiff below in his Federal Employer's Liability Act (FELA) claim against Burlington Northern Railroad Co. (BNRR). Liability was admitted by BNRR and the case was tried to a jury on the nature and extent of Connour's injuries and the resulting damages. The jury returned a verdict of $200,000 and BNRR appealed.

Connour's right arm was caught between two large shaped steel "wing sheets." He sustained bruises and abrasions to the right forearm. The arm was not fractured. These wing sheets weigh approximately 400 to 500 pounds each and are put in place by an overhead crane. While placing the wing sheet in position, Connour's arm was pinned between the wing sheets. The arm was bruised from the palm to beneath his armpit. After receiving emergency treatment, he was treated by Drs. Pazell, Schwab and Bobenhouse.

Dr. Schwab, an orthopedic surgeon, diagnosed Connour's condition as "moderate severe contusion of the right forearm with periosteal contusion mid-ulnar region and a mild lateral epicondylitis." Dr. Schwab recommended "continued rest and continued activity, return, I think, in three weeks, continue with light work duties or sedentary work activities."

Dr. Bobenhouse, a neurologist, examined Connour. Dr. Bobenhouse diagnosed Connour's condition as "a right forearm contusion with probable ulnar nerve irritation or injury, ... that he had right shoulder pain and upper arm pain related to the muscle strain while attempting to pull his arm out of the pieces of metal. There was a slight suggestion of irritation of the muscles on the EMG testing, which is the needle test, where we insert needles into the muscles to look for nerve damage." Dr. Bobenhouse stated he thought there was a mild stretch injury to the brachial plexes. Dr. Bobenhouse also stated, "I thought that there may have been a superimposed thoracic outlet syndrome at that time as well."

Dr. Pazell diagnosed Connour as having a "status post release for lateral epicondylitis." Further, Pazell testified, "I think he's still got disease in the radial capitular joint or inside the elbow ... and he's got cubital tunnel syndrome ..."

BNRR raises three points of trial court error. 1) The trial court erred in overruling BNRR's objection to improper cross-examination by plaintiff of BNRR's employee/witness Patricia Heather. 2) The trial court erred in overruling BNRR's objection to improper argument personally attacking BNRR, and; 3) the trial court abused its discretion in overruling BNRR's motion to dismiss grounded on forum non convenes.

I

BNRR alleges in Point I that the trial court erred in overruling its objection to the cross-examination of employee witness, Patricia Heather, which allowed plaintiff to reference depositions of other employees of BNRR taken in other lawsuits against BNRR. BNRR contends it was prejudiced on the issue of Connour's claim for damages for loss of future earnings from employment with the railroad.

Patricia Heather is a senior claim representative for BNRR. She testified on direct examination that BNRR attempts to get injured workers back to employment as quickly as possible and that the railroad allows injured workers to perform restricted duties or modifies the work place to allow injured workers to continue to work. On cross-examination, Connour's attorney, Douglas K. Rush, asked Ms. Heather, "Who is Mr. Stremcha?". Ms. Heather answered, "Mr. Stremcha is the Superintendent of the Havelock Shops." Counsel for BNRR stated Excuse me, your Honor. May we approach? Now, yesterday Mr. Rudd cross-examined witnesses on the stand from depositions taken of other persons not in this case and not the witness on the stand regarding the, I suppose whatever is suggested by the testimony in those depositions taken in other cases of other persons, and I think it is entirely inappropriate to do that in this case, to cross-examine a witness on the stand not from their own deposition, not from the deposition of any witness in this case, but from some transcript from some other case and I object to it ...

Following remarks by Mr. Rush, BNRR's attorney added:

Well, I haven't heard anything that makes the cross-examination of this witness proper with those depositions to attempt to bootstrap in some cross-examination from some other deposition of another person.

The objection was overruled. Mr. Rush proceeded to ask Ms. Heather about Mr. Stremcha and the deposition he gave in the case of Gustafson vs. Burlington Northern Railroad. No further objection was offered by counsel for BNRR. Mr. Rush also asked Ms. Heather about Joe Burroughs, the director of shop operations at Havelock, and the deposition he gave in the Gustafson case. BNRR did not object. BNRR concedes the purported testimony read by Mr. Rush was not necessarily contrary to what Ms. Heather had testified, but contends its use to cross-examine her suggested a contradiction and that some portions of the disputed testimony were open to interpretation and argument.

We first look at the use of the Stremcha deposition. A review of the transcript indicates Ms. Heather agreed with the testimony read to her from the Stremcha deposition. Heather was asked if she remembered Stremcha stating that BNRR had no positions at Havelock that "will accommodate an employee for the remainder of their career with lots of restrictions;" that the railroad creates positions for persons with limited restrictions for a short period of time; and that BNRR has no people that work for a "long, long period of time with multiple restrictions." Ms. Heather answered, "I don't remember specifically, but that's certainly true." Ms. Heather also agreed with Mr. Stremcha deposition testimony that he could order a "fit-for-duty examination[ ] by a doctor of the Burlington Northern's choosing?" Ms. Heather was also given opportunity on redirect examination to fully explain her understanding of the policies of BNRR concerning light duty, physical restrictions on employees, and the railroad's vocational retraining program. BNRR failed to make specific objections to this procedure as it unfolded.

The instant case is similar to Frey v. Barnes Hospital, 706 S.W.2d 51, 57 (Mo.App.1986) where the court held that the plaintiff's contention that the defendant's use of a deposition constituted improper impeachment of his expert witness was not preserved for purposes of appeal where the plaintiff never expressly objected at trial. In Frey, the plaintiff made a general objection to the use of the deposition. The Court suggests that because plaintiff "never expanded his previous objections to include improper impeachment or the failure to lay the requisite foundation for prior inconsistent statements" the issue was not preserved for appeal. Id. The same should apply to the present case. A general objection preserves nothing for review. Bergel v. Kassebaum, 577 S.W.2d 863, 870 (Mo.App.1978).

After Mr. Rush questioned Ms. Heather about Mr. Stremcha's deposition testimony, he questioned her about Joe Burroughs and his deposition testimony. There was no objection to the use of the Mr. Burroughs' deposition.

Objections to the admission of evidence must be timely and specific. Appelhans v. Goldman, 349 S.W.2d 204, 207 (Mo.1961).

... Relevant evidence received without objection may be properly considered, although it would have been excluded on proper objection. * * * Even hearsay evidence without objection has been considered. * * * A rule of evidence not invoked is waived. Id.

BNRR did not object to the use of Mr. Burroughs' deposition in the cross-examination of Ms. Heather. We cannot find that the trial court erred in allowing the use of Mr. Burroughs' deposition, when a timely and specific objection to its use was not made by BNRR. Point I is denied.

II

For its second point BNRR claims the trial court erred when it overruled "defendant's objection to improper argument personally attacking defendant, allowing plaintiff's counsel to invoke prejudice against defendant by arguing that defendant and defendant's attorney had misrepresented the facts, tried to confuse the jury and thrown up a smoke screen which resulted in an excessive verdict."

Mr. Rush, delivered the plaintiff's closing argument. At one point he stated:

There has been another party in this lawsuit who have made promises to you from the beginning about what the evidence would show, that didn't show that. They have made statements to you that are flat misrepresentations of the facts that later came out in this court, and they have been trying to confuse you and throw up smoke screens.

BNRR's attorney offered the following in response to this statement:

MR. ASHLEY: Ho, ho, ho, excuse me, Your Honor. I object to the personal attack on defendant in this case. That's an improper argument.

The court overruled the objection and advised the jury that "this is argument."

This was the only objection interposed by BNRR during plaintiff's closing argument and BNRR made no further objections during plaint...