Swartz v. Gale Webb Transp. Co.

• Citation: 215 S.W.3d 127
• Decision Date: 27 February 2007
• Docket Number: No. SC 87890.,No. SC 87891.,SC 87890.,SC 87891.
• Parties: Megan SWARTZ, Respondent, v. GALE WEBB TRANSPORTATION COMPANY, Defendant, and Christopher Hobbs, Appellant. Megan Swartz, Respondent, v. Gale Webb Transportation Company, Appellant, and Christopher Hobbs, Defendant.
• Court: United States State Supreme Court of Missouri

215 S.W.3d 127

Megan SWARTZ, Respondent, v. GALE WEBB TRANSPORTATION COMPANY, Defendant, and Christopher Hobbs, Appellant.

Megan Swartz, Respondent, v. Gale Webb Transportation Company, Appellant, and Christopher Hobbs, Defendant.

No. SC 87890.

No. SC 87891.

Supreme Court of Missouri, En Banc.

February 27, 2007.

Karl W. Blanchard, Jr., Joplin, Randy P. Scheer, S. Jacob Sappington, Springfield, for appellant.

Eric M. Belk, Springfield, for respondent.

Mark J. Evans, Chad C. Lucas, Kansas City, for Amicus Curiae, Missouri Association of Trial Attorneys.

LAURA DENVIR STITH, Judge.

Gale Webb Transportation Company ("Webb Transportation") and Christopher Hobbs appeal from a judgment awarding Megan Swartz damages for personal injuries sustained in an automobile accident. They argue that the trial court erred in admitting expert testimony that Ms. Swartz's injuries put her at an increased risk of future surgery and other complications because the experts did not also testify that she was reasonably certain to develop these complications. Ms. Swartz argues that an injury that carries the risk of complications is more significant than one that does not include this risk and the expert testimony was, therefore, properly admitted to assist the jury in determining the nature and extent of her present injuries. This Court agrees. The judgment is affirmed.

I. BACKGROUND

Ms. Swartz was a passenger in a vehicle driven by Mr. Hobbs that was struck by a school bus owned by Webb Transportation. She sued Webb Transportation and Mr. Hobbs for fractures to her pelvis and lower back and other injuries she alleged that she suffered as a result of the accident. At trial, Ms. Swartz presented the deposition testimony of two physicians, Dr. Clyde Parsons III, an orthopedic surgeon, and Dr. Charles Bret Bowling, a family practice physician. Both had treated Ms. Swartz for her accident-related injuries. Dr. Parsons testified that Ms. Swartz suffered from a partial dislocation of a joint in the back part of her pelvis, fractures of multiple pelvic bones, and fractures of the first and second lumbar vertebral bodies. Dr. Bowling testified that Ms. Swartz also suffered from bulging discs in her lower back.

Neither doctor was able to state that Ms. Swartz was more likely than not to require surgery or develop complications related to taking pain medication in the future. Both doctors testified, however, that she has an increased risk of needing surgery in the future, and Dr. Bowling testified that the pain medication she takes for her back carries with it a risk of gastric, liver and kidney complications. Dr. Parsons further testified that the fracture to her pelvis might also cause her more difficulty in giving birth naturally should she become pregnant, although whether it would do so could not be determined in advance.

The jury found that the defendants were liable for Ms. Swartz's injuries and awarded her $335,000 in damages. It assigned 75 percent of the fault to Webb Transportation and 25 percent of the fault to Mr. Hobbs. Both defendants appealed, alleging that the trial court erred in admitting expert testimony that Ms. Swartz was at an increased risk of requiring back surgery and in refusing a withdrawal instruction directing the jury to disregard the same testimony. In addition, Webb Transportation alleges that the trial court erred in admitting evidence that Ms. Swartz may suffer from complications from use of pain medication and that the fracture to Ms. Swartz's pelvis might make giving birth naturally more difficult should she become pregnant. Webb Transportation also claims that the trial court should have given the jury a withdrawal instruction on the issues of adverse effects of medication and problems with childbirth.

II. STANDARD OF REVIEW

A trial court's decision whether to admit an expert's testimony and its determination whether to refuse a withdrawal instruction will not be disturbed on appeal absent an abuse of discretion. McGuire v. Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004); Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 209 (Mo. banc 1991). "A trial court will be found to have abused its discretion when a 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." McGuire, 138 S.W.3d at 720.

III. EVIDENCE THAT INJURIES CREATED AN INCREASED RISK OF FUTURE COMPLICATIONS WAS ADMISSIBLE

Both Dr. Parsons and Dr. Bowling testified in their depositions that, as a result of her injuries, Ms. Swartz was reasonably certain to have an increased risk of needing back surgery in the future. Dr. Parsons testified that she had a "50/50" chance of requiring such future surgery, while Dr. Bowling put her risk of such future surgery at "25 to 50 percent." Dr. Parsons further testified that he tells patients in her position that they "are in a group that now is at a definite increased risk" of surgery but that does not necessarily mean it will happen. On cross-examination, Dr. Parsons agreed that whether Ms. Swartz would require future surgery was "speculation" on his part and could not be stated "with a reasonable degree of medical certainty." If surgery were required, Dr. Parsons testified that it was likely to cost at least $25,000.

Dr. Bowling also testified that Ms. Swartz would have to take anti-inflammatory medications to control the back injury if she did not have surgery and that the daily use of these medications carries with it a "a 5 percent per year risk of developing an ulcer or gastric bleeding" and, more rarely, the risk of allergic reaction or kidney or liver damage.

All parties agree that the foregoing testimony does not establish to a reasonable degree of medical certainty that Ms. Swartz will need back surgery or will suffer other complications. All parties also agree that under existing Missouri law a plaintiff is only entitled to recover for an injury that has not yet occurred if the injury is reasonably certain to occur in the future. See, e.g., Seabaugh, 816 S.W.2d at 210-11 ("The standard for recovering for future consequences requires evidence of such a degree of probability of those future events occurring as to amount to reasonable certainty"); Breeding v. Dodson Trailer Repair, Inc., 679 S.W.2d 281, 283 (Mo. banc 1984) (testimony regarding future damages is incompetent if it lacks "reasonable certainty").

All parties further agree that, according to the experts, Ms. Swartz has at most a 50 percent and at least a 25 percent risk of requiring future surgery and a 5 percent risk of developing complications related to use of anti-inflammatory medications. Under Seabaugh, therefore, Ms. Swartz was not entitled to recover the costs of the possible future back surgery or other complications themselves since they are not reasonably certain to occur. But Ms. Swartz did not seek to recover the cost of these potential complications themselves. To the contrary, she simply asked that the jury consider the fact that she must now cope "with not knowing whether she is going to have surgery in the future" and with the possibility of other additional complications arising when it determined how to compensate her for her injuries. The trial court did not err in admitting this evidence for this purpose.

It is Missouri's well-settled rule that a plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by a preponderance of the evidence were caused by the defendant. See MAI 4.01.¹ In accordance with this basic damage instruction, when an expert testifies to a reasonable degree of certainty that the defendant's conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff's present injuries, even if those future consequences are not reasonably certain to occur.

For example, Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 447 (Mo. banc 1998), held that the trial court did not err in admitting a physician's testimony that, to "a reasonable degree of medical certainty," plaintiff might need an operation in the future. The doctor explained that plaintiff's herniated disc was operable and that an operation might cure the injury or get rid of some of the pain. Id. The doctor further testified, however, that he would hesitate to operate because it would not prevent pain from continuing due to other aspects of plaintiff's back injuries and because any surgery had a slim chance of success. Id. He did not, therefore, recommend surgery at that time but would continue to evaluate plaintiff in the future. Id. In holding that it was proper to overrule defendant's objection to this testimony, this Court stated:

At the outset we note it is not improper `to ask an expert witness if something might, could or would produce a certain result. An expert's view of possibility or probability is often helpful and proper.' [citation omitted]. Here, both experts agreed plaintiff's condition was operable as it existed at the time of trial. Both agreed surgery would probably help plaintiff, and plaintiff's expert said he would not recommend it at this time, although that possibility was not discounted. The record indicates the experts' testimony in this case is no more speculative than that in other cases where surgery is possible in the future but has not yet been recommended to the patient.

Id. (emphasis added).

As Emery noted, many other Missouri cases also have admitted expert testimony of the probability, short of reasonable certainty, that a future surgery may be necessary and of the potential cost of such treatment. For instance, in Breeding v. Dodson Trailer Repair, Inc., 679 S.W.2d 281, 283-84 (Mo. banc 1984), this Court held that testimony regarding future surgery for the treatment...