Moore v. Missouri Pacific R. Co., 73587

• Decision Date: 25 February 1992
• Docket Number: No. 73587,73587
• Citation: 825 S.W.2d 839
• Parties: Richard M. MOORE, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 839

825 S.W.2d 839

Richard M. MOORE, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Respondent.

No. 73587.

Supreme Court of Missouri En Banc.

Feb. 25, 1992.

Rehearing Denied March 24, 1992.

Leonard P. Cervantes, St. Louis, Norman Jones, Houston, Tex., for plaintiff-appellant.

William Guerri, Michael D. O'Keefe, Dan H. Ball, Patrick J. Hagerty, St. Louis, for defendant-respondent.

ROBERTSON, Chief Justice.

We granted transfer in this case to consider two questions of general interest: First, whether evidence of collateral source payments is admissible in a Federal Employers' Liability Act (FELA) case where such evidence is volunteered by the plaintiff in a nonresponsive answer on cross-examination; and second, whether testimony regarding a routine diagnostic examination of plaintiff requested by the defendant's medical expert and administered by a physical therapist is within the scope of Rule 60.01.

The trial court answered both of these questions in the affirmative. The Court of Appeals, Eastern District, in a sharply divided en banc decision, reversed the judgment of the trial court and remanded for a new trial. Our jurisdiction rests on Mo.Const. art. V, § 10. We affirm the judgment of the trial court.

I.

Since 1959, Missouri Pacific Railroad (MOPAC) had employed plaintiff Richard Moore. On the date of his injury, July 29, 1985, Moore worked as a signalman for MOPAC in its North Little Rock, Arkansas, rail yard.

Not surprisingly, Moore and MOPAC hold antithetical views of the case. Moore contends that he suffered a work-related injury as he began his shift at approximately 11:00 p.m. on July 29, 1985. Moore testified that upon arrival at the rail yard, he immediately proceeded to the master retarder. There, he used an intercom to contact the retarder operator to inform the operator that he, Moore, intended to check the retarder without first stopping by the retarder building.

The master retarder stands approximately three to four feet above the ground. It slows rolling railroad cars as they move during the switching process in the rail yard. On a given day as many as 3,000 cars pass over the master retarder. These spill oil and grease on and around the retarder. Thus, the retarder area normally suffers from an accumulation of lubricating substances.

Moore began the inspection. As he climbed the retarder, he slipped and fell to the ground, a distance of approximately four feet, and injured his back. He claims permanent injury that will prevent his return to work.

MOPAC contended that Moore's entire claim was fraudulent, concocted to provide Moore with economic sustenance should he lose his job due to his poor performance.

Moore's supervisor testified that he, the supervisor, attempted to contact Moore throughout the day prior to the injury to inform Moore of his temporary suspension from his job for poor performance. Both the supervisor and the supervisor's secretary testified that they spoke to a person whose voice they recognized as Moore's but who nevertheless denied being Moore. They informed this person that Moore need not report to work due to the railroad's disciplinary actions. Moore denied receiving any telephone calls informing him of the disciplinary action. Moore testified that he had been in Hot Springs, Arkansas, July 29, visiting his mother who had undergone surgery there.

MOPAC introduced evidence that Moore normally reported to the retarder building before beginning his shift. On the night of the injury, however, Moore did not report to the retarder building; instead he went immediately to the master retarder where he fell on the oil and grease normally accumulated there.

No one witnessed the fall. Persons arriving shortly thereafter testified that Moore climbed out of the retarder area unassisted and walked to his Volkswagen van, which he started by pushing it down an incline and "popping" the clutch. Moore drove to the equipment building and began filling out an accident report. Several minutes later, however, he took a cab to the hospital, leaving the report unfinished. The hospital provided Moore with pain medication and an appointment to return the next day for x-rays. Moore left the hospital, returned to the railroad's equipment building and finished the accident report.

Moore's orthopedic surgeon in Arkansas, Dr. Ashley Ross, diagnosed a lumbo-sacral sprain and advised Moore that he would need approximately six weeks to recover. Ross believed that Moore would be able to return to light or medium work on October 8, 1985. However, Moore's complaints about his back continued past that date, and he did not return to work.

Moore's attorney counseled Moore to come to St. Louis, Missouri, where the attorney arranged an appointment with a neurosurgeon of the attorney's choosing. The St. Louis neurosurgeon, who was partially retired and who testifies on behalf of plaintiffs approximately fifty times each year, examined Moore and performed a procedure known as a facet rhizotomy. A facet rhizotomy is an invasive, outpatient procedure designed to relieve back pain by heating nerve fibers. The St. Louis doctor performed the procedure twice. Although Moore experienced some relief after each procedure, he continued to need pain medication. Evidence at trial indicated that no other physician in either Little Rock or St. Louis performs a facet rhizotomy; expert opinion places the efficacy of a facet rhizotomy in considerable doubt.

Prior to trial, Dr. Michael Winer, an orthopedic surgeon in St. Louis, examined Moore for MOPAC pursuant to Rule 60.01(a). Winer directed Moore to a physical therapist in an adjoining office for a routine diagnostic procedure performed on an Isostation B-200 (B-200). The B-200 utilizes nautilus-type exercise equipment connected to computers to measure strength and range of motion. Dr. Winer uses the information provided by the B-200 to provide an objective measure of inconsistent levels of effort involved in identical movements for purposes of determining the existence and degree of injury. A physical therapist at the Spine Rehabilitation Center administered the B-200 procedure. Dr. Winer is the medical director of that center. As a result of his examination and testing, Dr. Winer found no objective signs of injury to Moore's back.

Prior to trial, Moore's counsel filed a motion in limine to exclude evidence of Moore's receipt of collateral benefits. Defense counsel agreed not to broach the subject unless plaintiff injected it. During cross-examination of Moore by MOPAC counsel, the following exchange took place:

Q: (By defense counsel) Dr. Evans [a Little Rock physician] doesn't really treat you, does he? He examines you and gives you pills; isn't that what he does for you?

A: He sent me to a therapist and then I went to a back school that he sent me to.

Q: When was the last time he sent you to a therapist?

Q: Back in 1985?

A: I don't know. At the therapy place, they said we could no longer cover your expenses.

Q: Who could no longer cover your expenses?

A: It wasn't in '85, I don't believe.

Q: So, you couldn't go back to the therapy place because of your expenses?

A: They wouldn't do anything unless I gave them cash, and I didn't have any money.

Q: You don't have any money, is that what you are telling me?

A: What do you mean by money?

Q: You are saying you couldn't go back there because you couldn't afford it?

A: Yes, sir, I couldn't afford it.

The trial court ruled that Moore had injected the issue of his financial condition during cross-examination. Over Moore's objection, the court permitted defense counsel to inquire as to Moore's receipt of collateral source payments. Moore went on to testify in response to cross-examination that he received $1,070 per month from the Railroad Retirement Board, $200 from CNA Insurance Company, and loans of $500 per month from his attorney. All of this testimony was permitted by the trial court over Moore's counsel's objections.

Moore offered evidence that the present value of his past and future lost earnings totaled $386,049. The jury returned a verdict for Moore for $5,105, the exact amount of his lost wages between July 29, 1985, and October 8, 1985. Moore appealed.

II.

Eichel v. New York Central R.R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1962), announced a general rule that evidence of collateral source payments is inadmissible to impeach the plaintiff as to his motive for refusing to work or as to the permanence of his injuries in a FELA case. Eichel reasoned that "misuse by the jury clearly outweighs the value of this evidence.... Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits ... were considered as evidence of malingering by an employee asserting a claim under the Federal Employers' Liability Act." Id. at 255, 84 S.Ct. at 317.

Gladden v. P. Henderson & Co. v. Lavino Shipping Co., 385 F.2d 480 (3rd Cir.1967), and Lange v. Missouri Pacific R.R. Co., 703 F.2d 322 (8th Cir.1983), recognize an exception to Eichel's general rule of inadmissibility, permitting evidence of collateral source payment if the plaintiff voluntarily injects the issue into the lawsuit. In Gladden, the plaintiff volunteered testimony on direct examination that he did not return to his doctor because "my bills got behind and when I went back to work, that was one of the main reasons I went back to work, was to try to catch my bills up and support my family." 385 F.2d at 482. Gladden held that the defendant was not required to leave this testimony unchallenged. "The barriers which have been created against the admission of otherwise relevant evidence because of its prejudicial effect do not extend to the affirmative volunteering by a plaintiff of testimony which breaks into this restrictive area." 385 F.2d at 483-84.

In Lange, the Eighth Circuit considered a case in which defense counsel objected to plaintiff testifying on...