Stevens v. Craft

• Decision Date: 21 October 1997
• Docket Number: No. 21115,21115
• Citation: Stevens v. Craft, 956 S.W.2d 351 (Mo. App. 1997)
• Parties: Michael STEVENS, Plaintiff-Respondent, v. Steve CRAFT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 351

956 S.W.2d 351

Michael STEVENS, Plaintiff-Respondent, v. Steve CRAFT, Defendant-Appellant.

No. 21115.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 21, 1997.

Motion for Rehearing or Transfer to

Supreme Court Denied Nov. 12, 1997.

Application to Transfer Denied

Dec. 23, 1997.

William R. Robb, Timothy B. O'Reilly, Price, Fry & Robb, P.C., Springfield, for Defendant-Appellant.

James E. Corbett, Kurt J. Larson, Corbett & Larson, Springfield, for Plaintiff-Respondent.

PARRISH, Presiding Judge.

Steve Craft (defendant) appeals a judgment entered following a jury trial awarding Michael W. Stevens (plaintiff) damages for personal injuries sustained when the parties' pickup trucks were involved in a collision. This court affirms.

On April 27, 1991, plaintiff was visiting at the Herman Ferguson residence on Ramsey Street in Springfield, Missouri. Mr. Ferguson's house was located across the street from defendant's house. Plaintiff had two children with him in his pickup truck. He was parked in Mr. Ferguson's driveway. After talking with Mr. Ferguson for 15 or 20 minutes, plaintiff prepared to back out of the driveway and be on his way. He was in his pickup, continuing to talk to Mr. Ferguson, when he looked over his shoulder and saw defendant preparing to back a truck from defendant's driveway on the other side of the street.

Plaintiff testified, "And at that point he was already in the middle of the road, and was coming at me at a much higher rate of speed than I knew he was going to be able to stop his truck." The back of defendant's vehicle struck the back of plaintiff's vehicle.

Plaintiff got out of his vehicle and approached defendant's vehicle. He told the jury he did not experience pain immediately after the accident. He explained, however, "And that evening, the more that I sat at the house and on the couch, it felt like my head and my neck was getting stiff as I sat there." The next morning plaintiff testified he was "totally stiff." He testified, "I was almost to the point that I couldn't turn my head at all. But I had a little movement up and down, a little movement back and forth, but it hurt to move my head any at all." About two weeks later he saw a physician.

Plaintiff consulted Dr. Donald Eugene Menchetti. Plaintiff complained of a stiff, popping neck and soreness across his shoulders. Dr. Menchetti prescribed warm packs, muscle relaxants, anti-inflammatory agents, an injection of steroids and range of motion exercises. Plaintiff returned to Dr. Menchetti nine days later complaining of continued neck problems and headaches. A stronger anti-inflammatory medication was prescribed. An X-ray was taken. It revealed no abnormality. Plaintiff returned again five or six weeks later complaining that his neck was still stiff. Dr. Menchetti referred plaintiff to Dr. Canlas, a neurosurgeon.

Dr. Canlas examined plaintiff. He submitted an initial report to Dr. Menchetti confirming Dr. Menchetti's impressions that plaintiff's pain was a musculoligamentous type of pain typical in a cervical strain--a pulled muscle or strained muscle and ligaments. Dr. Canlas ordered an MRI. The MRI disclosed that plaintiff had two ruptured discs.

In a second report to Dr. Menchetti, Dr. Canlas recommended surgery. Dr. Menchetti explained that, in his opinion, the condition for which surgery was recommended was a condition that had existed for years; that it predated the accident. He stated his opinion that the preexisting back condition, combined with the muscle strain, created a chronic musculoligamentous strain.

Plaintiff elected not to have surgery. He continued to take medication and changed the activities in which he engaged. Plaintiff testified that he had to be careful in order to avoid "putting [his] back out of place." He was careful when he lifted things. He avoided lifting items weighing more than 35 to 40 pounds.

Plaintiff is a plumber. After the accident he could not crawl into spaces and turn his head to work underneath houses. Because of his condition, plaintiff changed from residential work to commercial work. He explained he had to take a foreman position that did not require him to do the physically demanding type of work he had done before the accident.

This court initially addresses an issue concerning defendant's brief. Plaintiff suggests the statement of facts in defendant's brief fails to comply with requirements of Rule 84.04(c) for statements of fact to fairly and concisely state facts relevant to the questions presented for determination without argument. Plaintiff requests this court to strike defendant's brief and dismiss the appeal. This court declines.

Although defendant's statement of facts is hardly a model of compliance with Rule 84.04(c), it does not give a distorted and unbalanced view of the evidence to the extent that occurred in Estate of DeGraff, 560 S.W.2d 342 (Mo.App.1977); nor does defendant's statement of facts approach the outright misrepresentation, sarcasm and unbridled argument that led to dismissal of the appeal in Vodicka v. Upjohn Co., 869 S.W.2d 258 (Mo.App.1994). Nevertheless, defendant's appellate counsel would be well advised to more carefully scrutinize the record on appeal in drafting statements of fact in future appeals.

Defendant's first allegation of trial court error is directed to the trial court denying defendant's motion for directed verdict. Defendant contends plaintiff failed to prove causation for the injuries he alleged were sustained in the accident. Defendant argues the evidence was uncontroverted that plaintiff had preexisting injuries, and no doctor testified to a reasonable degree of medical certainty that the pain about which plaintiff complained was the result of injuries the accident produced. Defendant argues further that the "sudden onset rule" is not applicable in this case to prove causation. ¹

Dr. Menchetti was asked if he could state within a reasonable degree of medical certainty what type of injury plaintiff sustained in the accident. He testified that plaintiff suffered a cervical strain. After he stated the opinion that plaintiff suffered a cervical strain, Dr. Menchetti was asked if the cervical strain would be a condition that would be more aggravating in view of the preexisting conditions that had been disclosed. Dr. Menchetti said he thought the preexisting conditions could be aggravated by a cervical strain.

"[T]he testimony of a physician concerning a diagnosis of a patient is admissible even when it is not based on a reasonable degree of medical certainty." Johnson v. Creative Restaurant Mgmt., 904 S.W.2d 455, 459 (Mo.App.1995). The terms "think," "guess" or "suggest" do not render an expert witness's testimony inadmissible if the expert intended to express his opinion or judgment. Id.; Lineberry v. Shull, 695 S.W.2d 132, 136 (Mo.App.1985). It is obvious that Dr. Menchetti intended to express his opinion or judgment with respect to what caused plaintiff's ailments.

There was medical evidence of causation. Defendant's challenge to the applicability of the sudden onset rule need not be addressed. However, see Berten v. Pierce, 818 S.W.2d 685, 687 (Mo.App.1991), for a discussion of the applicability of that rule in cases involving a preexisting condition or an intervening factor.

Plaintiff presented medical evidence of causation. The trial court did not err in denying defendant's motion for directed verdict. Point I is denied.

Defendant's second allegation of error contends the trial court erred in overruling a "motion in limine and objections to the videotaped testimony of Dr. Donald Menchetti regarding future surgery because no health care provider had testified to a reasonable degree of medical certainty that [plaintiff] would require future surgery to remedy injuries sustained by [plaintiff] in the ... accident." Defendant contends a "false issue" was injected into the case. Plaintiff responds that Point II was not preserved for appellate review. This court agrees. Point II was not preserved for appellate review.

Point II complains of two rulings by the trial court. It contends the trial court erred in overruling a motion in limine and in overruling objections to videotaped testimony of Dr. Menchetti regarding possible future surgery to which plaintiff might be subjected. As plaintiff points out, defendant did not object when the evidence about which he complains was offered at trial.

Defendant's brief suggests an argument was made at the hearing on the motion in limine that was consistent with the allegation in Point II. There is no record of a hearing on the motion in limine in the record on appeal. Regardless, as this court explained in Slankard v. Thomas, 912 S.W.2d 619 (Mo.App.1995):

A ruling on a motion in limine is interlocutory in nature. Ellis v. Jurea Apartments, Inc., 875 S.W.2d 203, 210 (Mo.App. S.D.1994). It is a timely objection at trial, when the evidence is offered, which preserves the matter for review, and not the rejection of a motion in limine. Id. See also Honey v. Barnes Hospital, 708 S.W.2d 686, 694 (Mo.App. E.D.1986). A party waives any objection by failing to object when evidence, which had been the subject of a motion in limine, is offered at trial. Graf v. Wire Rope Corp., 861 S.W.2d 588, 590 (Mo.App. W.D.1993).

Id. at 627-28.

Dr. Menchetti's videotaped testimony was the first evidence presented the morning of April 2, 1996, the second day of trial. Immediately before the jury was brought into the courtroom, the trial court stated that plaintiff's attorneys wanted "to pre-admit some exhibits." An item-by-item description was given of the exhibits plaintiff wished to offer in evidence. The discussions between the respective attorneys and the court covers six and one-half pages of transcript. One of the exhibits was Dr. Menchetti's deposition. Plaintiff's attorney informed the trial court and opposing counsel, "Plaintiff's Exhibit 41, which is Dr. Menchetti's...