Holdeman v. Stratman

• Decision Date: 28 August 2018
• Docket Number: WD 80586
• Citation: 556 S.W.3d 46
• Parties: Steven L. HOLDEMAN, et al., Respondents, v. Philip STRATMAN, et al., Appellants.
• Court: Missouri Court of Appeals

556 S.W.3d 46

Steven L. HOLDEMAN, et al., Respondents,

v.Philip STRATMAN, et al., Appellants.

WD 80586

Missouri Court of Appeals, Western District.

OPINION FILED: AUGUST 28, 2018

Michael Manners and Dennis Matteuzzi, Kansas City, MO, Counsel for Respondents.

Susan Ford Robertson, Kansas City, MO, Counsel for Appellants.

Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge Alok Ahuja, Judge

Anthony Rex Gabbert, Judge

Philip Stratman appeals the circuit court’s December 13, 2016, judgment entered after a jury verdict finding Stratman 99% at fault for injuries Steven Holdeman sustained in a motor vehicle collision and awarding Mr. Holdeman and Mr. Holdeman’s wife, Sarah Holdeman,¹ past and future damages related to Mr. Holdeman’s injuries and Mrs. Holdeman’s loss of consortium. Stratman contends on appeal that the circuit court erred in: 1) prohibiting Stratman from impeaching the credibility of the Holdemans' liability expert through the use of materials contained in his file evidencing a settlement reached between the Holdemans and two of the three defendants, 2) excluding evidence of settlement agreements to impeach witnesses and demonstrate party bias, 3) limiting use of defendant Brown’s failed post-accident drug test, 4) excluding the testimony of Stratman’s non-retained expert on the basis of work product privilege, and 5) permitting new, undisclosed expert opinions on the Holdemans' claim of future loss of income. We affirm.

Factual and Procedural Background

On February 13, 2014, around 11:00 p.m., Philip Stratman was driving his wife’s Mitsubishi Galant south on Interstate 435 approaching the Winner Road exit on his way home from a casino. This portion of I-435 has three lanes with shoulders on the inside and outside lanes. The maximum speed on the highway is sixty-five miles per hour and the minimum speed is forty miles per hour. Stratman, with knowledge that the vehicle he was driving had a tendency to die when the engine was at low RPM’s, shifted his car into neutral to save gas and reduce wear and tear on his brakes. He coasted in the center lane, rather than moving to the right lane or exit lane; he had just washed the car and wanted to avoid getting it dirty. He intended to remain in the center lane until reducing his speed to twenty-five miles per hour and then planned to move to the exit ramp. After coasting for approximately 1600 feet, Stratman’s car died, and he came to a complete stop in the center lane of the highway. He did not activate his hazard lights.

Behind Stratman, Mr. Holdeman was driving his wife’s Volkswagen Rabbit. He was driving his normal route to work. As he started the decline toward the Winner Road exit, he saw Stratman’s car in the center lane. Mr. Holdeman had noticed Stratman’s car slowing down and was able to come to a complete stop behind Stratman’s stalled car. However, behind Mr. Holdeman was Roger Brown, a commercial truck driver hauling a load for C&G Express. Brown saw Stratman’s and Mr. Holdeman’s cars in front of him as he began the 1600 foot decline toward the Winner Road exit. He saw their taillights and thought it was normal traffic. About 300 feet away, he realized they were stopped. Brown braked but was unable to stop and collided with Mr. Holdeman’s car while traveling at about fifty-two miles per hour. Physical evidence showed heavy emergency braking by Brown starting seventy-two feet before the impact.

Mr. Holdeman was hit from behind by Brown. On impact, the front of Mr. Holdeman’s car was pushed into the back of Stratman’s car. Mr. Holdeman was severely injured in the crash. He suffered injuries to his spine

rendering him a paraplegic.

On April 2, 2015, the Holdemans filed suit against Stratman, Brown, and Brown’s employer, C&G Express. The Holdemans claimed past and future damages related to Mr. Holdeman’s injuries and Mrs. Holdeman’s loss of consortium. After a two-week jury trial, the jury found Mr. Holdeman 1% at fault for his injuries, Stratman 99% at fault for Mr. Holdeman’s injuries, and Brown (and C&G Express, where vicarious liability was claimed) 0% at fault for Mr. Holdeman’s injuries. The jury awarded Mr. Holdeman $30,000,000 for his personal injuries and Mrs. Holdeman $7,500,000 for her loss of consortium. Stratman appeals the judgment entered upon that jury verdict.

Standard of Review

Stratman’s five points on appeal all involve alleged error regarding the trial court’s admission or exclusion of evidence. " ‘We review the trial court’s admission or exclusion of evidence under a deferential standard of review.’ " McGuire v. Kenoma , LLC, 375 S.W.3d 157, 183-184 (Mo. App. 2012) (quoting Ziolkowski v. Heartland Regional Medical Center , 317 S.W.3d 212, 216 (Mo. App. 2010) ). On appellate review, the issue is not whether the evidence was admissible or should have been excluded, it is whether the trial court abused its discretion in admitting or excluding the evidence. McGuire , 375 S.W.3d at 184. "A circuit court has broad discretion in determining the admission of evidence [.]" Lewellen v. Franklin , 441 S.W.3d 136, 149 (Mo. banc 2014). A court abuses its discretion only when the court’s ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Johnson , 207 S.W.3d 24, 40 (Mo. banc 2006). "If reasonable persons may differ as to the propriety of an action taken by the trial court, then there was no abuse of discretion." State v. Quick , 334 S.W.3d 603, 609 (Mo. App. 2011) (citing State v. Reed , 282 S.W.3d 835, 837 (Mo. banc 2009) ). Even if we find an abuse of discretion, we "will reverse only if the prejudice resulting from the improper admission of evidence is outcome-determinative." Williams v. Trans States Airlines, Inc. , 281 S.W.3d 854, 872 (Mo. App. 2009).

Point I—Exclusion of Settlement Evidence to Impeach Expert

In his first point on appeal, Stratman contends the circuit court erred in excluding evidence that the Holdemans settled with Brown and C&G Express prior to filing suit, arguing that the evidence was relevant and admissible to impeach the credibility of the Holdemans' accident reconstruction expert. Stratman claims the expert, Fred Semke, had information in his file regarding executed settlement agreements, which Semke admitted he reviewed.² Stratman contends he was entitled to impeach the credibility of Semke’s opinions with this settlement evidence because Semke found no fault with Brown’s conduct in causing the collision. Stratman argues that because Semke acknowledged that at the time of the accident Brown was over the allowed number of driving time hours, inaccurately kept logs of the number of hours driven, and saw the cars in front of him but braked only one hundred yards before impact, Semke should have concluded that Brown had some responsibility for the collision. Stratman contends that, even if Semke did not believe the settlement between Brown, C&G Express, and the Holdemans affected his opinion as to fault, the jury was entitled to decide whether it influenced his opinion. Stratman argues prejudice is proven by the jury’s allocation of 0% fault to Brown and 99% to Stratman.

"The basic rule, in Missouri and elsewhere, is that evidence of settlement agreements is not admissible. This is because settlement agreements tend to be highly prejudicial and, thus, should be kept from the jury unless a clear and cogent reason exists for admitting a particular settlement agreement." Mengwasser v. Anthony Kempker Trucking, Inc. , 312 S.W.3d 368, 376 (Mo. App. 2010) (internal citation and quotation marks omitted); Newman v. Ford Motor Co. , 975 S.W.2d 147, 149 (Mo. banc 1998).

We first note that, although Stratman requested the court allow him to question Semke regarding the settlement agreements, Stratman never made an offer of proof regarding the questions he intended to ask Semke or Semke’s proposed testimony. An offer of proof is required to preserve a claim that the court improperly excluded evidence. Lozano v. BNSF Ry. Co. , 421 S.W.3d 448, 452 n.4 (Mo. banc 2014).³ Nevertheless, it appears all parties agreed at trial that Stratman preserved this issue for appeal. Just prior to Semke’s testimony, the Holdemans' counsel stated to the court:

Counsel [ ] are in agreement to permit Defendant Stratman to have a continuing objection to the Court’s ruling excluding 537.065⁴ so that we don't have to bring that up each time. We stipulate to it. They have, in our view—on the record, we are stating that they have preserved that on appeal, and that it is not necessary, pursuant to our stipulation, to raise it each and every time that they wish to. It’s preserved no matter what the conclusion of the case so that we can avoid—for efficiency.

Nevertheless, Stratman’s arguments on appeal exemplify the value and necessity of an offer of proof. While Stratman argues that knowledge of the settlement agreements biased Semke, he fails to show how. Logically, the settlement agreements suggest that Brown and C&G Express admitted some fault for the accident, or at the very least chose to accept some responsibility in lieu of risking a more unfavorable jury verdict. This logical assumption is one reason settlement agreements are considered highly prejudicial and are not disclosed to juries. See State ex rel. Malan v. Huesemann , 942 S.W.2d 424, 428 (Mo. App. 1997) (internal quotation marks and citation omitted) (discussing that the danger of admitting settlement evidence is that the trier of fact may consider the settlement an indication of the merits of the case, thereby denigrating the defense position at trial.) Semke, however, found Brown and C&G Express to have no fault for the accident. Therefore, there is no logical connection between Semke’s knowledge of the settlement agreements and his ultimate conclusions. Stratman’s attacks on Semke’s opinions really go toward suggesting bias as the...