Hurley v. Burton
| Decision Date | 27 April 2021 |
| Docket Number | ED 109062 |
| Citation | 626 S.W.3d 810 |
| Court | Missouri Court of Appeals |
| Parties | Kayla HURLEY, Appellant, v. Karen BURTON, Respondent. |
Christopher J. Finney, Alexander L. Ledbetter, Finney Injury Law, 1600 S. Brentwood Blvd., Suite 220, St. Louis, MO 63144, Craig A. Schlapprizzi, Donald L. Schlapprizzi, P.C., 211 N. Broadway, Suite 2430, St. Louis, MO 63102, for appellant.
David P. Bub, Thomas M. Ward, Jennie Adamek, Jeffrey D. Lester, Kelsey L. McLean, Brown & James, P.C., 800 Market Street, Suite 1100, St. Louis, MO 63101-2501, for respondent.
Plaintiff Kayla Hurley (Appellant) appeals from the trial court's judgment, following a jury trial, awarding her $15,000 in damages from Defendant Karen Burton (Respondent) in a personal injury action involving a motor vehicle accident. We affirm.
On July 20, 2017, in the City of St. Louis, Appellant was traveling eastbound on Interstate 44 in her Honda Civic. She slowed, due to congested traffic. Respondent was driving her Jeep Cherokee in the same direction as Appellant. An eyewitness also driving in the same direction said a Jeep Cherokee cut her off while changing lanes and smashed into the Honda Civic in front of her. Appellant was stopped at impact. At the time, she reported she was shaken up but not hurt. But she later claimed she sustained an injury to her mid-back, for which she sought damages in a jury trial against Respondent, including $3 million in non-economic damages. Respondent originally denied fault but admitted to causing the accident shortly before trial. However, she disputed the amount of damages attributable to the accident, arguing the damages were worth $3,000 to compensate Appellant for her initial six-week period of physical therapy and chiropractic care. A jury trial took place in February 2020. The following evidence was adduced.
Before the accident, Appellant had sought treatment for pain in her neck, hip, and back. After the accident, Appellant began noticing back pain in early August, although she continued her usual work schedule at a physically demanding job as an events manager and exercised regularly. She sought medical treatment with urgent care, a chiropractor, and a physical therapist. Multiple magnetic resonance imaging
(MRI) studies revealed a cranially extruded disc in her thoracic spine, described by the defense as a muscle or ligament tear. On September 17, 2017, Appellant reported to her chiropractor that her mid-back pain was gone. When she was discharged from his care on October 3, 2017, she said, "I feel like myself before the accident." The physical therapist noted she met all range of motion and activity goals and was restored to her pre-accident condition.
However, in November, Appellant's attorney (Appellant's Counsel) recommended she seek additional treatment from another physical therapist, Josh Borgmeyer, who specialized in mid-back cases like hers. Because her attorney was also a friend, she trusted his recommendation. She sporadically treated with this physical therapist in hopes that he could provide long-term help with her mid-back and neck pain. However, almost a year later, on October 2, 2018, Appellant sought treatment at an orthopedic spine clinic for chronic thoracic back pain, a sharp stabbing pain, which she attributed to the accident. She reported that her physical therapy and chiropractic care were helping her, but had not resolved the pain.
On April 2, 2019, upon the recommendation of the physical therapist, Appellant was seen by a physiatrist, Dr. Patricia Hurford. She determined Appellant had mild disc protrusion in the mid-back area and recommended continued physical therapy because surgery was not an option. Dr. Helen Blake, a pain management physician, reviewed records from a prior chiropractic visit for Appellant's low back. She testified as an expert witness that Appellant's thoracic spine injuries
were triggered by the motor vehicle crash, although Appellant had a degenerative condition. She said Appellant's treatment options were limited and Appellant would have to manage her pain.
Appellant testified that since her injury she felt like she was always carrying a backpack. The intensity of her pain was not consistent, however. She testified she could not exercise with the same intensity as before, and that she had difficulty fully enjoying activities with her family and long-distance travel. She had not missed any work because of the accident, was not taking medication, and did not intend to pursue surgery or injections. She provided no medical bills or other evidence of economic damages. Appellant's witnesses included her sister, her co-worker, and her boyfriend, who testified about how Appellant's back pain and injuries impacted her life.
During trial, Respondent's counsel (Defense Counsel) explained in opening statement that Appellant hired her attorney, who recommended the additional treatment from physical therapist Josh Borgmeyer. Appellant's Counsel objected on the grounds that it was a comment on Appellant's use of the legal system. Appellant's Counsel sought a mistrial, proposed two separate curative instructions, and asked to present rebuttal evidence on Appellant's reason for hiring an attorney. The trial court denied each of these requests. Appellant's Counsel asked the jury to return a verdict of $3 million for the permanent chronic injuries she received in the accident. He suggested the jury should decide on zero if it believed the range to be closer to $10,000, to save Appellant's dignity. The jury returned a verdict of $15,000 in damages. Appellant filed a motion for new trial and alternative motion for additur, which the trial court denied. This appeal follows.
Appellant raises six points on appeal. Her first three points allege the trial court abused its discretion in denying a motion for mistrial, denying curative instructions and admonishment, and denying rebuttal evidence, all with respect to Respondent's opening statement regarding Appellant hiring counsel, which Appellant alleges was improper and prejudicial.
Appellant's fourth and fifth points allege the trial court abused its discretion in denying Appellant's motion for a new trial with respect to evidentiary rulings, specifically allowing Respondent to introduce evidence of medical treatment and argue that unrelated treatment was the cause of Appellant's pain, excluding evidence of Respondent's prior abandoned pleading, and overruling Appellant's request to recall the Respondent to impeach her with the prior abandoned pleading regarding her prior inconsistent statement. Appellant's sixth point alleges the trial court erred in denying her motion for new trial because the cumulative effect of the errors resulted in substantial prejudice and injustice.
Each of Appellant's points of alleged error fall within the "abuse of discretion" standard of review. An abuse of discretion occurs when the court's ruling is "clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Mansil v. Midwest Emergency Med. Servs. , 554 S.W.3d 471, 475 (Mo. App. W.D. 2018). This Court reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Rogers , 529 S.W.3d 906, 910 (Mo. App. E.D. 2017).
Appellant's first three points allege the trial court abused its discretion in denying a motion for mistrial, denying curative instructions and admonishment, and denying rebuttal evidence, all with respect to Respondent's opening statement regarding Appellant hiring counsel, which Appellant alleges was improper and prejudicial.
During opening statement, Appellant's Counsel generally described and acknowledged the gaps in Appellant's treatment. Appellant's Counsel stated, over Defense Counsel's hearsay objection, that a doctor who would not be testifying told Appellant her condition was chronic and that "you're just stuck" with it. The trial court permitted these statements, accepting Appellant's Counsel's argument that they were necessary to explain Appellant's subsequent failure to seek treatment for a period of time and were not intended to prove a chronic injury.
Respondent's opening statement provided a timeline of Appellant's treatment for the injuries she claimed were caused by the accident. Defense Counsel displayed a calendar of the date of the accident and the date when Appellant first claimed to experience back pain approximately two weeks later. The calendar showed the dates when Appellant received treatment and from various providers. It showed the months of July, August, and September 2017. Defense Counsel explained that Appellant routinely visited a physical therapist, and later a chiropractor, for approximately six weeks until September 9, 2017, when it was reported that her back pain had resolved.1
Defense Counsel continued with the timeline of treatment, noting that after Appellant's initial discharge, she sought no further treatment for approximately seven weeks, until her attorney recommended that she obtain additional treatment from a new physical therapist. Defense Counsel explained:
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