Koedding v. Kirkwood Contractors, Inc., 60791

• Decision Date: 27 April 1993
• Docket Number: No. 60791,60791
• Citation: Koedding v. Kirkwood Contractors, Inc., 851 S.W.2d 122 (Mo. App. 1993)
• Parties: James KOEDDING, Plaintiff/Appellant, v. KIRKWOOD CONTRACTORS, INC., Defendant/Respondent. . Division Four
• Court: Missouri Court of Appeals

Page 122

851 S.W.2d 122

James KOEDDING, Plaintiff/Appellant, v.KIRKWOOD CONTRACTORS, INC., Defendant/Respondent.

No. 60791.

Missouri Court of Appeals,

Eastern District.

Division Four.

April 27, 1993.

Arthur C. Popham, Jr., Dennis E. Egan, Popham Law Firm, P.C., Kansas City, Herb Price, St. Louis, for plaintiff/appellant.

Paul E. Kovacs, Gary Phillip Paul, Aaron I. Mandel, Brinker, Doyen & Kovacs, Clayton, for defendant/respondent.

CRANE, Judge.

Plaintiff sought damages from defendant for injuries received after diving into a river from a bridge constructed by defendant.The jury returned a verdict in favor of defendant and the trial court entered its judgment thereon.Plaintiff appeals from this judgment, asserting error in the admission of expert testimony.We affirm.

In 1982, two years before the accident in question, defendantKirkwood Contractors, Inc.(Kirkwood) contracted with Jefferson County to remove a bridge built over the Big River in 1907 and replace it with a new highway bridge.Before beginning the project, Kirkwood hired divers who found numerous steel beams in the river bed about thirty feet downstream from the 1907 bridge and believed to be from a bridge that had collapsed in 1904.Kirkwood informed Jefferson County about the steel.The steel did not interfere with the construction of the new bridge or the removal of the old bridge, and Jefferson County did not ask Kirkwood to remove that steel.

After the project began, Kirkwood discovered another steel structure buried six to ten feet underground that obstructed drilling for the new bridge.Jefferson County issued a change order to remove this structure.The steel which obstructed the construction was removed and the remaining steel was beat below the river bed with a 3,000 pound wrecking ball.After removing the steel, Kirkwood inspected the area, which was under eighteen inches of water, and found nothing more there.

All of the steel pieces from the dismantled 1907 bridge were removed and hauled away.None were put in the river.

On August 26, 1984plaintiffJames Koedding and three companions drove to the recreational area along the Big River to go swimming.After arriving at the recreational area, Koedding, along with one of his companions, William Alvey, walked directly to the bridge built by Kirkwood and climbed onto a guardrail on the downstream side of the bridge to make a dive.Koedding was 6'1"' and weighed 175 pounds.In making his dive, Koedding projected himself approximately ten to fifteen feet from the bridge and entered the water head first with arms outstretched at approximately an eighty degree angle.He remembers entering the water and abruptly stopping as a result of hitting something just immediately below the surface.He surfaced and tried to get to shore when his other two companions, James Ball and William Miner, rescued him.

Alvey witnessed the dive from the guardrail.He saw Koedding come to an abrupt stop, never fully disappearing from view, and come back to the surface.Ball and Miner had already jumped off the bridge from the upstream side and were in the water.Miner saw Koedding enter the water and his legs buckle when he was approximately waist deep in the water.When Ball and Miner reached him, Koedding was bleeding from a cut in the center of his head which exposed his skull.

Koedding suffered a fracture of the third cervical vertebra.He was hospitalized for five days and spent four months in a halo brace.This was followed by fusion surgery, after which he returned to work.At the time of trial he still experienced pain and stiffness in his neck and had limited range of motion in his neck.

On October 28, 1988, Koedding filed a petition in the circuit court of the City of St. Louis for personal injuries sustained on August 26, 1984 as a result of his dive off the highway bridge constructed by Kirkwood.Koedding alleged Kirkwood was negligent in the performance of the contract 1) by leaving "existing structures projecting upward from the bottom" of the river which were "concealed" under the surface of the water and 2) by dislodging and pulling up from the river bed portions of the 1904 bridge.Koedding alleged that he collided with either parts of the 1907 bridge that Kirkwood allegedly "pulled from its piers and deposited into the river and left underwater" or a part of the 1904 bridge that Kirkwood allegedly shifted or raised, cut off, and left submerged.

At trial Koedding offered evidence that a week after the accident his companions discovered a rigid steel I-beam projecting upward from the bottom of the river at the location where he entered the water.Kirkwood offered evidence that it did not leave any projecting beams in the river from the dismantled 1907 bridge or from the portion of the 1904 bridge that was the subject of the change order.It also presented evidence from its expert witness, Dr. Leon Kazarian, that Koedding's injury was not caused by hitting a steel beam.Kirkwood also offered evidence that Koedding was negligent in failing to check the depth of the water or the existence of debris in the water.

The jury returned a unanimous verdict in favor of Kirkwood, assessing 100 percent fault to Koedding.The trial court entered judgment on the jury's verdict.

Plaintiff appeals, asserting the trial court"erred in permitting defendant's witness Leon Kazarian, over plaintiff's objection, to express his opinion that, as a cause of his injury, plaintiff did not strike any piece of metal."He asserts the following reasons for error:

1.An expert witness may not express an opinion when the subject matter is of such common knowledge as to invade the province of the jury.

2.An expert witness must base his opinion on facts established by competent evidence, and not upon conjecture and speculation.

3.The question of whether an opinion expressed by an expert witness is based on and supported by sufficient facts or evidence to sustain the same is a question of law for the appellate court.

4.Our courts recognize the unusually effective and strong impression that outstanding expert witnesses make on jurors, and hold illegal and erroneous the misuse of their testimony when it is not properly based on facts in evidence.¹

Kirkwood responds that the error described in this point was not preserved for review because no timely objections to the admission of the testimony were made on these grounds at trial.We agree.

At trial Koedding did not object to Dr. Kazarian's opinion testimony on the ground that it invaded the province of the jury.Accordingly, Koedding waived any error in the admission of testimony on this ground.Chism v. Steffens, 797 S.W.2d 553, 559(Mo.App.1990).He first objected to the expert testimony on this ground in his motion for new trial.An objection presented for the first time in a motion for a new trial is not timely.Spalding v. Monat, 650 S.W.2d 629, 631(Mo.App.1981).

Likewise Koedding did not object to Dr. Kazarian's testimony on the ground that it was based on conjecture and speculation or was based on insufficient facts in evidence.In his reply brief Koedding argues that this point was preserved for review by his objection during Dr. Kazarian's voir dire.We disagree.

In an in-chambers discussion during plaintiff's case, Koedding's attorney advised the court that Kirkwood proposed to call Dr. Kazarian to testify to his opinion that Koedding "couldn't have hit steel based on biomechanics of the injury."The trial judge said he would hear voir dire on Dr. Kazarian's qualifications to give his opinion testimony.The judge limited voir dire to Dr. Kazarian's qualifications and did not permit the voir dire to cover the facts of the case.After voir dire, the court found Dr. Kazarian, an expert in the field of orthopedic biomechanics, ² to be qualified to testify on this subject.³Koedding's attorney then stated: "Okay, Your Honor.I want to reserve an objection based on Missouri law.I think this is so speculative that it's really way out there."The court responded: "I can understand your objection.But from what I have heard I believe that this doctor's scientific background is such that he would be permitted to give his opinion."Koedding's objection was based on his position that the field of biomechanics was speculative.His objection cannot be construed to be directed to the sufficiency of the facts supporting an opinion.

When Dr. Kazarian...