Hemann v. Camolaur, Inc.

• Decision Date: 02 March 2004
• Docket Number: No. WD 62079.,No. WD 62126.,WD 62079.,WD 62126.
• Citation: 127 S.W.3d 706
• Parties: Marjorie HEMANN, Appellant-Respondent, v. CAMOLAUR, INC., Respondent-Appellant.
• Court: Missouri Court of Appeals

127 S.W.3d 706

Marjorie HEMANN, Appellant-Respondent, v. CAMOLAUR, INC., Respondent-Appellant.

No. WD 62079.

No. WD 62126.

Missouri Court of Appeals, Western District.

March 2, 2004.

Andrew H. McCue, Kansas City, MO, for Appellant-Respondent.

Keith J. Schieber, St. Joseph, MO, for Respondent-Appellant.

Before BRECKENRIDGE, P.J., and EDWIN H. SMITH and HOWARD, JJ.

VICTOR C. HOWARD, Judge.

Marjorie Hemann (Plaintiff) sued Camolaur, Inc. (Defendant), for injuries she sustained after she slipped and fell at one of Defendant's Taco Bell restaurants in St. Joseph, Missouri, on September 22, 1996. The case proceeded to a three-day jury trial in September of 2002. After a jury returned a verdict in Plaintiff's favor assessing her total damages at $300,000, the trial court entered judgment in that amount plus court costs. The court later found Plaintiff was entitled to costs in the amount of $1,010.

On appeal from the judgment, Defendant claims the trial court erred in overruling its objection to Plaintiff's closing argument concerning Defendant's failure to call its "own" medical doctor. In her cross-appeal from the judgment, Plaintiff claims the trial court erred in not awarding prejudgment interest pursuant to section 408.040.2¹ because the amount of the judgment exceeded her settlement offer of $300,000.

As explained below, we affirm as to Defendant's appeal, but we reverse as to Plaintiff's cross-appeal and remand for entry of a judgment including prejudgment interest.

Background

Defendant does not challenge the sufficiency of the evidence to support the verdict. Viewed in a light most favorable to the verdict, the evidence showed as follows:

On September 22, 1996, Plaintiff, her husband, her son, and her grandson traveled from their home in Woodward, Iowa, to St. Joseph, Missouri, for Plaintiff's granddaughter's birthday party. Around noon, the family stopped for lunch at a Taco Bell in St. Joseph. After placing their order at the counter, they went to find a seat in the dining area. As Plaintiff walked to the dining area while carrying a tray of drinks, she fell, landing on her back with her left knee "bent up under [her]." Immediately after the fall, she noted that her back hurt and her knee "really hurt bad." Eventually, her husband and a bystander helped her up, and she went to a nearby booth to sit down. After they sat down, Plaintiff noticed a "wet floor" warning sign near where she fell, but it was tucked behind a booth, hidden from view. Plaintiff also noticed water dripping from a fan or vent in the ceiling to the spot where she had fallen.

Shortly after Plaintiff fell, Diane Patton, the assistant manager of the store, discussed the incident with Plaintiff and her family. Ms. Patton indicated to Plaintiff that the employees at the restaurant had been trying to keep up with the water leak all day. After having Plaintiff fill out an accident report, Ms. Patton suggested Plaintiff see a doctor at the local medical clinic. After leaving the Taco Bell, Plaintiff went to the medical center, where x-rays of her knee and back were taken. The doctor, who indicated to Plaintiff that she had sprained her knee, put a stabilizer on her knee, gave her a prescription for pain pills, and advised her to see her family doctor in Iowa in a few days.

Plaintiff and her family returned to their home in Iowa that same day. The following week, Plaintiff spent a lot of time in bed and used ice on her back. She also had pain in her head, neck, and knee. Three days after the fall, Plaintiff went to see her family doctor, Dr. Halberg. She complained of continuing pain in her knee and back. Her doctor indicated that "he was sure it would get better" and prescribed physical therapy and some prescription medications. Plaintiff went to "some" of the physical therapy appointments but not all of them because "it was uncomfortable" and thirty miles from her home. And "riding in the car really bothered [her] back a lot."

On October 17, 1996, Plaintiff returned to her family doctor's clinic, continuing to complain of pain in her lower back that was "getting worse and moved down into [her] legs." She also had problems with her feet tending to drag when she walked. The doctor again told her it would "get better" and eventually "resolve itself." However, Plaintiff never felt she was "getting better" and continued to receive physical therapy treatments, during which she eventually mentioned to her therapist that she had been having trouble controlling her bladder. After hearing this, the therapist referred Plaintiff to Dr. McKey, a neurologist in Ames, Iowa, for a CAT scan and an MRI. Dr. McKey diagnosed a herniated disc in Plaintiff's lower back. As treatment, Plaintiff received cortisone injections and two epidurals for short-term relief from her back pain. After the last epidural, Plaintiff experienced a "really sharp pain" and returned to see Dr. McKey, who referred her to Dr. Terrance Lagerlund, a neurologist at the Mayo Clinic. On December 17, 1997, Dr. Lagerlund specifically diagnosed a "L4-5 central herniated disc and a [chronic] right L5 radiculopathy," which he described as a "pinched nerve." After testing, Dr. Lagerlund determined that Plaintiff's injuries required surgery, for which she was referred to a Mayo Clinic neurosurgeon.

The surgery in January of 1998 relieved some of Plaintiff's back pain and other problems. Although she still sometimes has numbness in her right foot and some pain in her right leg, she does not have the shooting pains down her legs that she had prior to surgery. However, at the time of trial, she continued to ice her back nightly, and twice a week she was using a portable "TENS unit," which electrically stimulated her lower back to help ease the pain. Her bladder problems also improved. Although she continued to suffer from incontinence, it was not as bad as it had become prior to the surgery.

On January 16, 2002, Plaintiff filed her Petition for Damages against Defendant for negligence.² On February 26, 2002, Plaintiff sent, by certified mail to Defendant's counsel, an offer to settle her claim for $300,000. The offer was not accepted and discovery continued, which included Plaintiff's depositions of Drs. Lagerlund, Marsh and Ver Helst.³

On September 10, 2002, the case proceeded to a three-day jury trial. During the trial, Plaintiff, her son, her husband, Ms. Patton (the Taco Bell assistant manager), and Cindy DeSpain (the Taco Bell manager who was not on duty at the time of the incident but testified concerning normal protocol when accidents occur at the restaurant) all testified to the events surrounding Plaintiff's fall and her subsequent condition. In addition, Plaintiff presented medical evidence as follows: the deposition testimony of Dr. W. Richard Marsh, who directed her surgery at the Mayo Clinic, which was read to the jury; portions of videotaped deposition testimony from her chiropractor, Dr. Kurt Ver Helst, which was shown to the jury; and portions of videotaped deposition testimony from Dr. Lagerlund, which was also shown to the jury. Defendant also presented the testimony elicited from Plaintiff's doctors on cross-examination in addition to portions of deposition testimony from Plaintiff and her husband.

The case was submitted on comparative fault principles. The jury returned a verdict in Plaintiff's favor, finding Defendant one hundred percent at fault and assessing damages at $300,000. The trial court subsequently entered judgment for Plaintiff for $300,000 "plus court costs." Plaintiff then applied for taxation of deposition costs and moved to amend the judgment to include prejudgment interest. Defendant also moved for a new trial. After a brief hearing on the motions, the trial court denied Defendant's motion and Plaintiff's motion for prejudgment interest and granted Plaintiff's application for taxation of costs. It ordered that its judgment entry reflect an award to Plaintiff of total costs in the amount of $1,010.

Both parties have appealed.

Defendant's Appeal

In its sole point on appeal, Defendant claims the trial court erred in overruling its objection to Plaintiff's closing argument concerning Defendant's failure to call its "own" medical doctor.

The primary point of contention throughout the trial was whether Plaintiff's slip and fall at Defendant's restaurant caused or contributed to cause Plaintiff's back injury; or, as argued by Defendant, whether Plaintiff's back injury was not caused by the slip and fall and was instead related solely to Plaintiff's preexisting degenerative back problems for which she had sought chiropractic and other treatment prior to the fall.

During the opening portion of Plaintiff's closing argument to the jury, Plaintiff summarized the medical testimony concerning the relationship between Plaintiff's injuries and the slip and fall and made the following argument, the italicized portions of which Defendant now complains:

[PLAINTIFF'S COUNSEL]: Those doctors that we brought to you who testified to you the evidence. And you'll see when you look at the instructions, it talks about witnesses and evidence. Doesn't say anything about what the lawyers say. So you look at the witness testimony and the evidence.

Those doctors who go to school and who are board certified and put their reputation on the line when they testified at the Mayo Clinic testify to a reasonable degree of medical certainty and professional certainty.

You might ask yourselves, the defendants offered how much medical proof. None. Did some doctor come here and endorse the theory that well, she's been to a chiropractor so this fall couldn't have contributed to cause her injury? You can walk out the front door of this courthouse and point in any direction but west and you are pointing at the Heartland Health Facility.

I would suggest to you that the defendant's inability to get a doctor to come here and endorse their views about the medical evidence speaks...