King v. Copp Trucking, Inc.

• Decision Date: 06 April 1993
• Docket Number: No. WD,WD
• Citation: 853 S.W.2d 304
• Parties: Carol L. KING, Respondent, v. COPP TRUCKING, INC., Defendant, and Anheuser-Busch, Inc., Appellant. 45914.
• Court: Missouri Court of Appeals

Page 304

853 S.W.2d 304

Carol L. KING, Respondent, v. COPP TRUCKING, INC., Defendant and Anheuser-Busch, Inc., Appellant.

No. WD 45914.

Missouri Court of Appeals Western District.

April 6, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1993.

Joseph C. Smith, Shughart, Thomson & Kilroy, P.C., Kansas City, for appellant.

Max Von Erdmannsdorff, Von Erdmannsdorff & Mowry, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and SHANGLER and KENNEDY, JJ.

BRECKENRIDGE, Presiding Judge.

Anheuser-Busch, Inc. appeals from the $164,500 judgment entered against it upon a jury verdict in favor of Carol L. King (King) and against Anheuser-Busch and Copp Trucking, Inc. The jury assessed King's damages to be $658,000 and apportioned 75% of the fault to Copp Trucking and 25% to Anheuser-Busch. Anheuser-Busch claims that the trial court erred in: 1) overruling Anheuser-Busch's objections to the admission of new expert opinions; 2) precluding the introduction into evidence of a video tape of tests performed by Anheuser-Busch's expert; and 3) allowing counsel to use leading questions in examination of an expert.

The judgment is affirmed.

On February 3, 1989, King filed suit against Anheuser-Busch and Copp Trucking for injuries she sustained in an accident involving the rollover of a tractor trailer owned by Copp Trucking. King was a passenger in the truck, which was being driven by her husband, Kevin King. The accident occurred as the truck was proceeding through a construction detour. The truck was transporting kegs of beer manufactured by Anheuser-Busch which had been loaded by Anheuser-Busch employees at its St. Louis facility. King's allegations against Copp Trucking involved the negligent driving of her husband and the negligent provision of a truck with defective equipment. Her allegation against Anheuser-Busch was that the kegs were negligently loaded which made the trailer unstable and caused or contributed to the rollover of the truck.

Prior to trial, King entered into a Mary Carter Agreement with Copp Trucking. ¹ At trial, John M. Bentley was called as an expert witness by King. Bentley was retained in this case by Copp Trucking to offer testimony regarding his reconstruction of the accident. Bentley's deposition was taken prior to trial. At the deposition, Bentley presented a document setting forth four opinions and indicated that, although this document contained all of his final opinions, he had formulated sub-opinions in support of these final opinions. Bentley's document set forth the following four opinions: 1) Slide to stop speed is consistent with T/T (tractor trailer) following flow of traffic; 2) Under a stable load the T/T should not have experienced rollover; 3) The rollover was a result of lateral load shift; and 4) Had the cargo been restrained laterally, the accident could have been avoided.

At trial, Anheuser-Busch objected to Bentley's trial testimony on the basis that it contained "new" opinions based on facts not previously disclosed. The court overruled the objection stating that these opinions were not new, but were interpretations of the opinions Bentley gave in his deposition.

After direct examination of Bentley by King's counsel, Bentley was cross-examined by counsel for Copp Trucking. Anheuser-Busch- "Busch objected to Copp Trucking's use of leading questions when questioning its own expert witness. The court overruled the objection.

Anheuser-Busch sought to introduce into evidence a video tape of tests conducted by their expert witness, H. Boulter Kelsey. King and Copp Trucking objected on the grounds that the video tape would mislead the jury because it did not depict experiments similar enough to the accident to be probative. Although the court sustained the objection and excluded the video tape, the court allowed Kelsey to testify about the tests he had conducted and their results.

The jury found in favor of King and against both Anheuser-Busch and Copp Trucking in the amount of $658,000. The jury assessed Copp Trucking with 75% of the fault and Anheuser-Busch with 25% of the fault. The trial court entered judgment in favor of King and against Copp Trucking in the amount of $493,500 and against Anheuser-Busch in the amount of $164,500. Anheuser-Busch appeals from such judgment.

Anheuser-Busch raises three points on appeal claiming that the trial court erred in: 1) overruling Anheuser-Busch's objections to the admission of Bentley's new expert opinions because the new opinions were not revealed in Bentley's deposition or provided thereafter; 2) precluding Anheuser-Busch from introducing into evidence the video tape depicting tests performed by its expert, Kelsey, because the tape would have aided the jury in understanding Kelsey's opinions; and 3) allowing counsel for Copp Trucking to use leading questions during its examination of expert witness Bentley because Bentley was retained by Copp Trucking.

In Point I, Anheuser-Busch argues that the trial court erred in overruling its objections to the admission of expert opinions given by Bentley which it claims were new. Anheuser-Busch claims that, because the new opinions were not revealed at Bentley's deposition or any other time before trial, they were not admissible at trial.

The decision of the trial court as to the admissibility of evidence is accorded substantial deference on appeal and will not be disturbed unless the trial court has abused its discretion. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). In State ex rel. Webster v. Lehndorff Geneva, 744 S.W.2d 801, 804 (Mo. banc 1988), the Supreme Court of Missouri described the standard for determining whether a trial court has abused its discretion as follows:

Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. (citation omitted).

A ruling within the trial court's discretion is presumed correct and the appellant bears the burden of showing that the trial court abused its discretion. Id. In addition to showing that the trial court abused its discretion, Anheuser-Busch must also prove that it has been prejudiced by the abuse because an error in the exclusion of evidence is harmless if the same facts have been shown by other evidence and exhibits. Around the World Importing v. Mercantile, 795 S.W.2d 85, 89 (Mo.App.1990).

Anheuser-Busch argues that it is entitled to a new trial free from the prejudice that resulted from Bentley's new opinions. Anheuser-Busch claims that, according to this court's opinion in Gassen v. Woy, 785 S.W.2d 601, 604 (Mo.App.1990), King was obligated to disclose those new opinions to Anheuser-Busch prior to trial. Rule 56.01(e)(2) requires a party to supplement written interrogatory responses when a response changes or becomes untrue. In Gassen, this court held that the rules and the case law establish a similar principle in regard to deposition answers. Id. When an expert witness has been deposed and after the deposition, but before trial, either changes his opinion or bases an opinion upon new or different facts from those which were disclosed in the deposition, the party intending to use the expert witness must disclose the new information to the adverse party. Id.

Anheuser-Busch bears the burden of proving that Bentley's opinions were new and different from those which he gave in his deposition. The opinions which Anheuser-Busch alleges were offered for the first time at trial are:

1. Taking into account the weight of this load and the trailer involved, the trailer compartment would be tilted on the order of 6 to 8 degrees as it proceeded around this curve prior to rollover.

2. The G-force required to cause a rollover of the tractor trailer involved in this case was below .3 to .35.

3. The pallets should have been loaded differently, stacking them in a different configuration than that utilized by Anheuser-Busch for this load.

An examination of the transcripts from Bentley's deposition and the trial reveals that the trial court did not abuse its discretion in permitting Bentley to testify to these opinions. Bentley's opinion that the trailer was tilted on the order of six to eight degrees while proceeding around the curve was not objected to at trial. Anheuser-Busch's failure to object does not preserve any error for review on appeal. Health Related Services v. Golden Plains, 806 S.W.2d 102, 110 (Mo.App.1991). At trial Anheuser-Busch did object that Bentley's opinion that the G-force required to cause a rollover of the Copp Trucking tractor trailer was below .3 to .35 was a new opinion. Although Bentley stated in his deposition that he did not apply the computation of G-force to this case, he expressed the opinion that .3 to .35 was the range of G-force required to cause the rollover of a stable, loaded tractor trailer. A reasonable extension of such opinion is that it would take a lower G-force to cause a rollover of an unstable tractor trailer. The trial court's ruling permitting Bentley to testify to this opinion is not so arbitrary and unreasonable as to shock this court's sense of justice.

The third opinion which Anheuser-Busch claims was erroneously permitted at trial was that the pallets should have...