Payne v. Fiesta Corp.

• Decision Date: 27 March 2018
• Docket Number: No. ED 105370,ED 105370
• Citation: 543 S.W.3d 109
• Parties: Adam PAYNE, Respondent, v. FIESTA CORPORATION, Appellant.
• Court: Missouri Court of Appeals

543 S.W.3d 109

Adam PAYNE, Respondent,
v.
FIESTA CORPORATION, Appellant.

No. ED 105370

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: March 27, 2018

Andrew G. Mundwiller, Christine E. Anderson, St. Louis, MO, For Plaintiff/Respondent.

James F. Bennett, Matthew K. Crane, Clayton, MO, For Defendant/Appellant.

Colleen Dolan, P.J.

Fiesta Corporation ("Fiesta") appeals a judgment entered against it by the Circuit Court of Jefferson County after the jury returned a verdict of $1,500,000 in damages in favor of Adam Payne ("Respondent"). On appeal, Fiesta alleges multiple trial court errors: (1) the admission of deposition testimony from Respondent’s expert witness, (2) the exclusion of evidence concerning Respondent’s past medical bills and past lost wages, (3) the court’s failure to declare a mistrial for an allegedly leading question by Respondent’s trial counsel that unfairly prejudiced Fiesta, (4) the court’s denials of Fiesta’s motions for directed verdict and judgment notwithstanding the verdict, (5) the court’s denial of Fiesta’s motion for new trial based on an excessive verdict unsupported by the evidence, and (6) the court’s denial of Fiesta’s motion for remittitur. We find the trial court did not err on any of these matters. Thus, we affirm the judgment.

I. Factual Background

The litigation in this case stems from the pain and suffering sustained by Respondent

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when he fell from a "Spaceball human gyroscope ride" ("the Spaceball") at a fundraising event on September 29, 2012. The event was organized by Hillsboro Youth Football and Cheer ("HYFC"), and Fiesta owned both the Spaceball and the recreational facility where the event was held.

Fiesta described the Spaceball and how it is operated as follows:

The Spaceball is a single-seat human gyroscope that inverts and rotates its rider. To prevent the rider from exiting the ride mid-operation, the Spaceball is equipped with a harness that is locked in place with a cotter pin and secures the rider to the chair. The Spaceball is controlled by an operator who manually spins a control wheel to cause the rider to invert and rotate.

Representatives of HYFC wanted to sell tickets to ride the Spaceball. Fiesta alleges that it provided training for certain HYFC staffers to operate the Spaceball but these trained staffers failed to show up and operate the Spaceball on the day of the event. Respondent alleges "Fiesta never provided training on the Spaceball to anyone from HYFC." Thus, under either version of the facts, the Spaceball was left unattended. Nonetheless, the Spaceball was used by patrons, including Respondent. Shawn James, an employee of Fiesta, testified that he saw people using the Spaceball "all night long" without supervision, but neither he nor any other employee of Fiesta acted to stop the unsupervised use of the Spaceball.

As there was no trained personnel to oversee patrons, Respondent relied on a couple of bystanders to enter the ride and secure him with the harnesses. Respondent contends that he was not aware that the people helping him were bystanders and he believed they were part of a trained staff qualified to operate the ride. Respondent testified that the two bystanders were not wearing any special type of clothing or uniform to indicate an affiliation with Fiesta, but no one else at the event—including Fiesta employees—wore such apparel either. These untrained bystanders did not properly secure Respondent into the ride. Consequently, as Respondent’s brother-in-law manually operated the ride and "[gave] it a good spin," Respondent fell out of the Spaceball head first onto the steel flooring of the ride. Respondent testified that the fall caused him tremendous pain immediately. He also testified that after he went to bed that night, he woke up in the middle of the night and had to vomit. Respondent stated he was still in "an incredible amount of pain" the next morning, and consequently, he went to the emergency room. Respondent went to St. Clare Hospital and had his neck examined by Dr. Eric Sincoff, who diagnosed Respondent with an acute left C4 facet joint fracture. Additionally, Dr. Sincoff determined that Respondent suffered from pre-existing scoliosis and a curvature in his neck and spine that would continue to worsen with time. Part of the condition involved degenerative joint disease, which affected disks C3-4, C4-5, and C5-6.

Respondent filed suit against Fiesta and Thomas Kerr—Fiesta’s President—on March 28, 2013. Respondent then filed a first amended petition on November 11, 2013, adding HYFC as a defendant. Finally, Respondent filed a second amended petition on November 12, 2014 (herein "Amended Petition"), which is the subject of the underlying litigation in this matter. Respondent’s Amended Petition included claims of negligence against Fiesta and HYFC. In the Amended Petition, Respondent claimed that Fiesta’s negligence caused him $54,000 in medical expenses and $9,000 in lost wages at the time of filing the petition. Respondent also claimed

543 S.W.3d 117

that his injuries would force him to incur "future medical care and substantial future medical expenses," and he alleged his "ability to continue gainful employment has been destroyed and he will suffer future lost wages and diminished earnings capacity in the future." Further, Respondent alleged that his "ability to enjoy a normal life has been permanently altered as a result of [Fiesta’s] negligence." Before the trial, Respondent dismissed his claims of "past medical bills and past loss wages" from the Amended Petition.

Two trials were held in this case. Before the first trial, on January 29, 2016, Respondent dismissed its negligence claim against HYFC—which removed HYFC as a party from the action. The first trial commenced on February 2, 2016. However, the court declared a mistrial, finding Respondent’s counsel elicited prejudicial testimony from a witness. The case was reset and tried from November 8–10, 2016.

During closing argument, Respondent’s counsel suggested that the jury should award between $500,000 and $750,000 to Respondent for his future pain and suffering. On November 11, 2016, the jury returned a verdict assessing 100% of the fault to Fiesta. The jury also determined that Fiesta’s negligence caused $1,500,000 in damages to Respondent.

a. Evidence Presented at Trial

i. Video Deposition Testimony of Dr. Levy

Dr. Armond Levy is a board-certified neurosurgeon who actively practices neurosurgery. Dr. Levy performed several physical examinations on Respondent and prescribed treatments, such as physical therapy and pain management. Dr. Levy’s qualifications to be considered an expert witness are undisputed.

Prior to Dr. Levy’s doctor-patient relationship with Respondent, Respondent saw Dr. Sincoff for his neck injury. Respondent first visited Dr. Sincoff the day after he fell from the Spaceball in November of 2012. Dr. Sincoff continued to provide care for Respondent until he left his practice, at which point Dr. Levy began treating Respondent.

Dr. Levy relied on some of Dr. Sincoff’s notes to care for Respondent, which he often alluded to throughout the deposition. Dr. Levy testified that Dr. Sincoff diagnosed Respondent with an acute facet fracture of his C4 facet joint—"acute" meaning "[i]t had just occurred"—which Dr. Levy said was reflected by the records from the emergency room on the day after Respondent’s fall. While Dr. Sincoff was treating Respondent, he initially noted that fusion surgery to the cervical spine in Respondent’s neck was a possible course of treatment, but Dr. Sincoff decided it would be prudent to try more conservative measures before recommending the surgery; these conservative measures included "physical therapy, injections, wearing a cervical collar, resting, [and] various kinds of medications."

Dr. Levy first saw Respondent in August of 2013, approximately a year after his fall from the Spaceball. Respondent told Dr. Levy that the pain in his neck had not lessened since the injury. Also, records from Respondent’s primary care physician show he had never complained of neck injury before the Spaceball incident. Dr. Levy testified that—within a reasonable degree of medical certainty—there was a connection between the Spaceball incident and Respondent’s neck pain. Dr. Levy also opined that Respondent’s pain had been "set in motion by the fall."

Dr. Levy discussed the possibility of a three-level cervical fusion surgery to help alleviate some of Respondent’s pain. Pain

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was Respondent’s primary motivating factor for considering the surgery. Dr. Levy noted that his recommendation of surgery was largely dependent upon Respondent’s pain tolerance. Dr. Levy also noted that unless the surgery was performed, Respondent would likely need to do certain things throughout his lifetime to manage his pain, such as taking medication, doing physical therapy, and receiving injections. Although Dr. Levy had hoped to solve the problem with a much less invasive surgery ("a posterior left C 4 foraminotomy"), he eventually reverted back to his original, "more aggressive"...