Uxa ex rel. Uxa v. Marconi
Decision Date | 16 December 2003 |
Docket Number | No. ED 81192.,ED 81192. |
Citation | 128 S.W.3d 121 |
Parties | Benjamin UXA, by and through Margaret UXA, and Margaret Uxa and Charles Uxa, individually, Respondents/Cross-Appellants, v. Victor C. MARCONI, Defendant/Cross-Respondent, and Dorel Juvenile Group, Inc., Appellant/Cross-Respondent. |
Court | Missouri Court of Appeals |
Daniel T. Rabbitt, Jr., Steven J. Hughes, Brian D. Kennedy, Rabbitt, Pitzer & Snodgrass, P.C., St. Louis, for Appellant/Cross-Respondent.
Cheryl A. Callis, Kortenhof & Ely, St. Louis, for Defendant/Cross-Respondent.
Thomas J. Magee, Robyn Greifzu Fox, Catherine Vale Jochens, Moser and Marsalek, P.C., St. Louis, for Appellant/Cross-Respondent.
Before GARY M. GAERTNER, SR., P.J., KATHIANNE KNAUP CRANE, J. and PAUL J. SIMON, SR., J.
Appellant, Dorel Juvenile Group, Inc. ("Dorel") appeals from the judgment of the Circuit Court of the City of St. Louis, entered in favor of respondents/cross-appellants, Benjamin Uxa, by and through his parents, Margaret Uxa and Charles Uxa (collectively, "plaintiffs," individually "Benjamin," "Margaret," and "Charles"), after the jury returned a verdict in the amount of $10,500,000 for Benjamin and $200,0001 for Margaret and Charles. Plaintiffs brought a negligence claim against defendant Victor Marconi ("Marconi") and a products liability claim against Dorel. Plaintiffs cross-appeal from the trial court's denial of their motion for prejudgment interest. We affirm in part and reverse and remand in part.2
The evidence presented in this case, in the light most favorable to the verdict, is as follows. On September 27, 1999, Benjamin was properly strapped into his child safety seat, a Cosco3 High Back Booster, in the back seat of Margaret's automobile. Benjamin was approximately two years and eight months old at this time, he weighed twenty-seven pounds and he was approximately thirty-five inches tall. Margaret was attempting to turn left onto Jamieson Avenue from Devonshire Avenue in the City of St. Louis. Marconi was driving northbound on Jamieson at approximately 44 miles-per-hour ("mph") and collided with the left side of Margaret's automobile. The change in velocity of Margaret's automobile was approximately 20-23 mph, and there was a gravitational force ("g-force") of about 16-20. Marconi was intoxicated and pleaded guilty to two counts of second-degree assault.
Neither Marconi nor Margaret suffered any major injuries. Benjamin was still strapped into his car seat when emergency workers arrived on the scene. The first emergency worker on the scene noticed that Benjamin had vomited, was gurgling and was unresponsive. Benjamin was then transported to St. Louis Children's Hospital, where he was in a coma for the first four days following the collision. He was eventually diagnosed with a laceration of the spleen, a brain injury that included bleeding on and around the brain, traumatic optic neuropathy and a brachial plexus injury.4 Benjamin remained at St. Louis Children's Hospital for approximately fifty days, and the total cost of his medical treatment was $162,238.98.
Benjamin recovered from his spleen injury without medical intervention. According to plaintiff's experts, his spleen injury was likely to have occurred regardless of what kind of car seat he was using.
As a result of his brain injuries, Benjamin underwent serial casting on his feet to prevent his toes from curling and he received significant physical and occupational therapy. Benjamin also was required to wear a patch over his right eye for two hours a day for approximately one and half years because of the optic neuropathy injury. Dr. Michael Noetzel, a pediatric neurologist at St. Louis Children's Hospital, treated Benjamin's brain injury. Dr. Noetzel testified that Benjamin suffered a "significant traumatic brain injury" that could not have occurred unless Benjamin's head came into contact with an object, in this case the car door. Dr. Noetzel examined Benjamin again in July of 2001. Dr. Noetzel testified he believed Benjamin sustained "limited but definite cognitive problems" resulting in a permanent decrease in intelligence, as well as permanent injuries to his left leg and left arm. Benjamin's permanent injuries to his left leg and left arm include weakness, poor control and spasticity.
Dr. Susan MacKinnon, the Chief of Plastic Surgery at Washington University School of Medicine, first examined Benjamin's brachial plexus injury on January 6, 2000. Dr. MacKinnon stated she thought that Benjamin "had a very severe left brachial plexus injury." Dr. MacKinnon was concerned about Benjamin's recovery because she first examined Benjamin several months after the accident, and she did not think he had shown sufficient improvement. Dr. MacKinnon performed surgery on February 7, 2000 to improve Benjamin's brachial plexus. During the surgery, Dr. MacKinnon stimulated Benjamin's nerves in his shoulder and elbow and removed some scarring. The surgery was successful, but Benjamin still has problems moving his left arm.
Plaintiffs purchased Benjamin's car seat, a Cosco High Back Booster, on September 16, 1999. The car seat was designed and marketed for use by children weighing between twenty-two and seventy pounds. The primary purpose of such car seats is to provide protection to children involved in an automobile collision. Plaintiffs argued the car seat they purchased was defective and unreasonably dangerous because it did not provide adequate protection for a child Benjamin's size in a side impact collision. Plaintiff's expert, Louis D'Aulerio ("D'Aulerio"), an engineer, testified the car seat should have had wider wings on the side and padding to protect a child's head. He also testified the size range was too broad for the car seat because smaller children need more protection than larger children do. He concluded the car seat was defective and unreasonably dangerous because it did not provide sufficient protection in the event of a side collision. D'Aulerio stated a car seat that provided more lateral protection by having wider wings and more padding would be a better alternative design.
D'Aulerio ran some tests at a Canadian test facility to determine the effectiveness of child car seats in a side impact collision. He tested the car seat Benjamin was using, as well as a Fisher-Price Safe Embrace car seat. D'Aulerio concluded that the car seat Benjamin was using provided no protection for a child's head leaving the confines of the car seat, and that a car seat with wider wings and padding, such as the Fisher-Price seat, would have provided much better protection.
Dr. Joseph Burton ("Dr. Burton"), a forensic pathologist, testified the car seat was a substantial factor in causing Benjamin's injuries because the car seat allowed Benjamin's head to hit the car door and stretch his neck which ultimately caused Benjamin's brain and brachial plexus injuries. Dr. Burton testified that Benjamin's injuries either would not have happened or would have been less severe if his head was not allowed to leave the confines of the car seat. He testified that Benjamin's brain injury would have been much less severe if he was in a car seat similar to the Fisher-Price Safe Embrace seat. Dr. Burton also testified Benjamin would have received the injury to his spleen no matter what kind of car seat he was using.
On March 1, 2002, following two weeks of trial, the jury returned a verdict finding Dorel and Marconi jointly and severally liable to plaintiffs in the amount of $10,500,000 for Benjamin and $200,000 (subsequently reduced to $140,000) for Margaret and Charles. Dorel filed motions for a new trial and judgment notwithstanding the verdict, which the trial court denied. Plaintiffs filed a motion for prejudgment interest, which the trial court also denied. Dorel raises nine points on direct appeal, and plaintiffs raise two points on cross-appeal.
All other relevant facts will be discussed in our disposition of the points on appeal.
In its first point on appeal, Dorel makes three arguments. First, Dorel argues the trial court erred in denying its motion for a directed verdict and motion for judgment notwithstanding the verdict ("JNOV") because plaintiffs failed to prove the claimed defect in the car seat proximately caused Benjamin's injuries. Second, Dorel argues plaintiffs failed to meet the legal requirements of a second collision case. Third, Dorel argues Missouri should adopt the reasonable alternative design test of the Restatement (Third) of Torts.
This court reviews the denial of a motion for directed verdict and a motion for JNOV in essentially the same manner. Burns Nat. Lock v. American Family Mut., 61 S.W.3d 262, 271 (Mo.App. E.D. 2001). Before a case may be submitted every fact essential to liability must be predicated on legal and sufficient evidence. Id. We view the evidence and inferences therefrom in the light most favorable to the verdict and disregard evidence and inferences therefrom that conflict with the verdict. Id. The credibility of witnesses is a determination for the jury. Id. We will reverse the verdict of a jury for insufficient evidence only if there is a complete absence of probative fact to support the jury's decision. Id. For a trial court to sustain a defendant's motion for directed verdict or a motion for JNOV, the facts in evidence and the reasonable inferences therefrom must be "so strongly against a party that no room is left for reasonable minds to differ." Burns, 61 S.W.3d at 271.
In a strict tort liability case, arising from a design defect, the primary question "is whether the product—because of the way it is designed—creates an unreasonable risk of danger to the consumer or user when put to normal use." Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375 (Mo.banc 1986). The plaintiff, in a...
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